Date: September 14, 2011

Cody Lee unable to discern whether talking to police was right thing to do, ruling says.

By Sheena Delazio Staff Writer

WILKES-BARRE – The state Supreme Court on Monday denied a prosecutor’s request to appeal a lower court’s decision in the case of a teen charged with homicide, making it likely the case can move forward in Luzerne County Court.

The state Supreme Court denied a request by prosecutors to appeal a March decision by the Superior Court.

In that decision, the Superior Court ruled prosecutors cannot reargue why statements made by Cody Lee, 17, who is charged in the December 2009 shooting death of his great-grandfather, Herbert Lee, will not be permitted to be used.

The court’s ruling on Monday makes way for a hearing on whether homicide charges in Lee’s case should be sent to county juvenile court since Lee was 16-years-old at the time of the shooting. Lee’s case is currently being heard in adult court.

Or, prosecutors can decide to appeal the Supreme Court’s decision to the U.S. Supreme Court.

In April, Senior Judge Joseph Augello ruled that statements Lee made to investigators in 2009 will not be permitted to be used because Lee was suffering from hypothermia and was unable to discern whether talking to police was the right or wrong thing to do.

Prosecutors First Assistant District Attorney Jeff Tokach and Assistant District Attorney Richard Hughes argued in a December 2010 filing that the Superior Court should reconsider its decision because Augello ruled Lee suffered from a “moderate degree” of hypothermia, which prosecutors argued unsuccessfully is a “minor injury” that could not affect Lee from making an “informed waiver of his Miranda rights.”

Prosecutors had said Augello’s ruling “clearly substantially handicapped” their case.

Lee’s attorneys, Peter Paul Olszewski, Jr., Melissa Scartelli and Charles Rado, said in court papers filed in January that prosecutors misunderstood Augello’s ruling regarding the hypothermia.

“The commonwealth’s argument can be construed as disingenuous,” the attorneys wrote. “(Augello) never found that a moderate degree of hypothermia equates to a “minor injury.”

The attorneys also argued that prosecutors are “absolutely and totally” incorrect to argue that Lee’s father, Scott, was not an interested adult when his son was being questioned by police.