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State Justices Uphold Death Sentence in Hired Killing

February 17, 1988|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — The death sentence imposed on the murder-for-hire killer of a 19-year-old Redlands junior college student in 1981 was unanimously upheld Tuesday by the California Supreme Court.

In a 114-page opinion by Chief Justice Malcolm M. Lucas, the court rejected a wide-ranging appeal brought by lawyers for Gary Lee Howard Sr., convicted in the death of Walter Berkey.

The body of Berkey, who had been shot four times in the back of the head, was found in a deserted dairy barn near Interstate 10 in Redlands.

Fourth Affirmation

The ruling marked the fourth time the conservative-led court has affirmed a death sentence in seven capital cases it has decided since three new appointees of Gov. George Deukmejian took office last March.

In one other case, the justices now are reconsidering a death sentence they previously upheld.

Howard, now 41, was accused of killing Berkey for $1,500 offered by Richard (Tony) Lemock, who operated a real estate sign-posting business in San Bernardino. Berkey was operating a rival business to help pay his way through school and, according to the prosecution, Lemock offered Howard the money to get rid of his competitor.

At Howard's trial, several witnesses testified that they had heard Lemock say that he wanted Berkey killed--and that at one point, Lemock had said he expected his "Redlands problem," a reference to his competitor, to be soon resolved.

Howard's defense counsel argued that the killing was performed only as "a favor" to Lemock, but not for financial gain--a charge that would subject Howard to the death penalty.

Lemock, who did not testify at Howard's trial, later was tried separately and acquitted of first-degree murder charges. Lemock said at his trial that his alleged threats against Berkey had been made under the influence of alcohol and drugs.

The justices, reviewing Howard's appeal, held that the defendant could be sentenced to death for murder for financial gain without proof of an agreement between Howard and Lemock.

"All that was required was that the defendant murder the victim with the intent to thereby obtain some financial gain," Lucas wrote. "For example, if a man murders his wife intending to benefit from life insurance proceeds, but it turns out that the policies have been canceled, the (capital charge) could still apply."

"Similarly, here, Lemock might have convinced a jury, for example, that while at some point he said, 'I'd pay a million dollars to the man who gets Berkey,' he was merely using hyperbole and never intended anyone to act on that statement," Lucas continued. "It could be shown, however, that (Howard) believed the statement and undertook the murder of Berkey in order to collect."

The court concluded that any procedural errors that occurred during Howard's trial were "insubstantial" and did not require a reversal of his conviction and sentence.

In a separate opinion, Justice Allen E. Broussard agreed that Howard's conviction and death sentence should be upheld. But he expressed concern that the court had not sufficiently limited the definition of murder for financial gain to prevent overlap with the separate capital charge of murder during a robbery or burglary.

While those crimes also are performed to obtain money, they are different from killing with the aim of being paid to do so, and a distinction should be made in the law to prevent duplicative charges for one act, Broussard said.

In this case, however, the jury clearly found that Howard was a "hired killer" and thus he was guilty of murder for financial gain under the correct definition, the justice said.

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