Date: November 3, 2011

By Sheena Delazio sdelazio@timesleader.com
Staff Writer

WILKES-BARRE – Attorneys for a teen charged in the shooting death of his great-grandfather asked a judge Wednesday to toss out psychiatric reports and evidence seized, including a notebook the teen allegedly kept that lists things to do, including “kill grandpa.”

Cody Lee, 17, of Lake Township, is charged in the December 2009 shooting death of 80-year-old Herbert Lee 23 months ago.

His case is scheduled for a hearing on Nov. 21 where a judge will hear arguments on why the teen’s case should be heard in juvenile court. It is now being handled in adult criminal court by Senior Judge Joseph Augello.

Lee’s attorneys, Melissa Scartelli, Peter Paul Olszewski and Charles Rado, said in court papers an expert report written by psychiatrist John O’Brien should be thrown out and O’Brien should not be permitted to testify for prosecutors because he based his report of Lee off of statements Lee allegedly made to police.

Augello ruled in April 2010 those statements where Lee allegedly admits to killing his great-grandfather, will not be permitted to be used at any trial. Augello ruled Lee made the statements while he was distressed because he was affected by hypothermia after being out in the woods following the shooting.+

The state Superior and Supreme Courts upheld Augello’s ruling, and Lee’s attorneys contended because the statements aren’t technically allowed to be used, and because O’Brien based his report partially off those statements, O’Brien should not be permitted to testify and his report should be thrown out.

Prosecutors originally asked O’Brien to evaluate Lee in their attempt to keep Lee’s case in adult court.

“An expert witness cannot base his opinion upon facts which are not warranted,” Lee’s attorneys wrote. “It would be fundamentally unfair, highly prejudicial, and most importantly, complete impossible for (O’Brien) to, in some way, “disregard” or attempt to set aside (Lee’s statements) in any “revised analysis.””

In their second filing, Lee’s attorneys say two items – a notebook and a back pack – were illegally seized in a search warrant that was conducted a day after Herbert Lee’s death.

Cody Lee’s attorneys said the items were specifically listed in a search warrant, and that they only knew of the items after a 16-year-old juvenile told police Lee showed him his notebook that contained a list that included “kill grandpa” and “kill dad.”

“(Lee) has a reasonable, protected expectation of privacy in his black ring notebook,” the attorneys wrote, and police had no probable cause to search for and take the items.

Augello scheduled a hearing on Nov. 14 for lawyers to argue the request regarding O’Brien’s report and another for the evidence issue on Nov. 21.