P. v. Shawkey
Filed 9/6/13 P. v. Shawkey CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
GARY A. SHAWKEY,
Defendant and
Appellant.
G045698
(Super. Ct.
No. 09ZF0078)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Richard F. Toohey, Judge. Affirmed.
Mark David Greenberg,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Meredith White and James
D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
On February 16, 2008, appellant Gary Shawkey and Robert Vendrick
boarded a sailboat in Dana Point Harbor bound for Catalina Island.
Shawkey arrived, Vendrick did not.
In fact, Vendrick was never seen or heard from again. At trial, the prosecution theorized Shawkey
murdered Vendrick at sea for financial gain, and the jury agreed. Shawkey contends there is insufficient
evidence he killed Vendrick, and the trial court erred in admitting certain
hearsay statements into evidence.
Finding these contentions unmeritorious, we affirm the judgment.
FACTS
At the
time of his disappearance, Vendrick was a 71-year-old retired software systems
analyst. He spent most of his career in San Jose, but in 2004, he and his wife of many years
moved to Phoenix. They
had two children and three grandchildren, whom Vendrick spoke to and visited
regularly. Vendrick’s family considered
him to be a loving spouse, affectionate father and doting grandfather. His wife Carole described Vendrick as “always
very pleasant[,] . . . hard working and wanting to help in any way that he
could, but not gregarious, somewhat naïve from his . . . growing up in Indiana on a farm, [and] somewhat gullible.â€
As
a retiree in search of extra income, Vendrick spent much of his time on the
Internet pursuing multilevel marketing schemes and other financial
opportunities. He wanted to prove he
could be a successful businessman, but he ended up sinking hundreds of
thousands of dollars into failed financial gambits. Most of that money went to Shawkey, who was
described by witnesses as a large, heavy-set man, with a jovial and gregarious
demeanor. In interviews with the Orange
County Sherriff’s Department (OCSD), Shawkey said he was both a friend and
business partner to Vendrick. Shawkey
had briefly been licensed as a personal protection specialist and bail
enforcement agent in Virginia, but in 2008 his licenses were revoked for
violating regulations.
Shawkey and Vendrick met
in late 2002, and over time they developed a financial relationship. A number of e-mails between the two men
starting in June 2004 document their dealings.
Almost all of the e-mails Vendrick received from Shawkey involved urgent
pleas for some quantity of cash up front with a promise of tremendous rewards
to be reaped in the immediate but unspecified future. In February 2005, Shawkey sent an e-mail to Vendrick
asking if he knew “anybody who can swing about $45,000 to get [his company]
through.†Shawkey made a point of
about his interests and made the matter seem unduly urgent by stating “we are
going to be in real trouble if I do not find somebody to bail us out.†After this initial email, Vendrick inquired
whether and when there would be a return on this investment, and Shawkey
assured him it would be for a stake in his company and promised a net positive
return within 90 days. Vendrick gave
Shawkey the money, but his return never came.
By late 2005, after
another business venture with Shawkey had collapsed, Vendrick had given Shawkey
$239,037 in wire transfers, $10,000 in checks and another $10,500 via PayPal,
an online money transfer service. At
this point, Shawkey was under investigation by the Securities and Exchange
Commission for fraudulently attracting investors. However, he defended himself to Vendrick by
telling him he had only gotten happy e-mails from investors, and that he was
“[b]ottom line scared to death. I think
you are the only one left that believes in what I am doing.â€
In this correspondence,
Shawkey said he was exhausted financially, faced $9,600 in monthly expenses,
and asked Vendrick for a personal loan.
This pattern continued throughout 2006, with Shawkey’s requests for
money to Vendrick growing ever more familiar and casual, until Vendrick in
October of 2006 sent Shawkey a message that he was “strapped to the limitâ€
financially. Throughout the course of
their dealings, Vendrick was ultimately paying a significant portion of
Shawkey’s personal expenses, under the guise of “keeping things going†for
unsubstantiated business goals.
In
his next e-mail to Vendrick, Shawkey acknowledged, “I know you are in trouble
with money and I will get that straight when I get out of this hell hole.†In February 2007, sensing that his supply of
easy money was threatened, Shawkey reverted to his tactic of promising huge
investment returns, claiming, “[W]e can re-coop [sic] VERY quickly. . . . [W]e
will win and we will win FAST!†When
Vendrick did not respond, Shawkey e-mailed again. Claiming he had “been contacted by Microsoft
and YouTube directly,†he assured Vendrick he would make his first million back
within the year.
By this time, though,
Vendrick had tired of Shawkey’s ploys and largely run out of money. His reply to Shawkey’s newest battery of
promises was that “[y]ou have said all that before about being so close and I
have seen nothing. The plan you present
is meaningless if the numbers do not come in.â€
In a call made by Shawkey to Vendrick in 2007, Carole interrupted their
conversation to berate Shawkey for taking so much of their retirement
money. Shawkey responded “you’re going
to get it back. The accounts are all set
up.â€
Vendrick decided for the
first time in 2007 to prepare and file his taxes himself instead of through a
CPA or tax service. It did not go well
for him. He under-reported his income
and assets by a substantial amount and faced a number of financial penalties as
a consequence of his miscalculations.
At
Carole’s insistence, Vendrick hired an attorney, Leo Pruett, to assist him in
recouping his money from Shawkey. At
this time, Carole discovered Vendrick had been sending money to Shawkey behind
her back. She also learned about a
secret P.O. Box Vendrick had been using and insisted he close it. Vendrick acquiesced, but nevertheless renewed
the mailbox shortly before his disappearance.
Pruett sent Shawkey a letter asking for documentation of his business
ventures, but Shawkey never replied or mentioned the letter to Vendrick.
Around
this period, Vendrick sent Shawkey a desperate email, saying “Taxes killed any
hope of my surviving.†He asked Shawkey
if there was any news that might help him financially, and Shawkey responded
with a new angle. He told Vendrick he
was seeking a grant to provide unspecified computer services for the federal
government, saying “we own all of the equipment and programs and they are all
password protected.†Vendrick was
intrigued. Having already invested
around a million dollars with Shawkey, he was excited about the prospect of
recouping his money and urged Shawkey to apply for the grant immediately. Shawkey thanked Vendrick for being patient
while “things have not gone as planned.â€
And, as he had done so many times before, he promised Vendrick the deal
would bring him great financial reward.
After a few more e-mails
asking for immediate last-minute funds, Shawkey told Vendrick in early 2008
that he was coming to Phoenix to meet with him personally about the computer
project. On February 3, 2008, Vendrick
replied he was “somewhat confused as to the reason for [Shawkey] coming to
Phoenix. . . . My wife thinks the lawyer
needs to review the forms before I sign anything. [¶] . . .
Is this just another carrot you are putting before me without any actual
contract? [¶] I am in a very desperate situation
financially!â€
Despite
his reservations, Vendrick agreed to meet Shawkey in Phoenix on February 9,
2008. In the wake of that meeting,
Vendrick told his wife that Shawkey had arranged a secret, computer-related
deal with the federal government involving 22 different agencies. Even though Vendrick was something of an
expert with computers, he told Carole he had no idea what the deal was
about. He also said that in order to
facilitate the deal, he and Shawkey would be travelling by boat to San Clemente
Island, a military-owned island roughly 25 nautical miles south of Catalina
Island.
At Carole’s behest,
Vendrick met with attorney Pruett on February 11, 2008, before heading off to
California. Vendrick told Pruett he and
Shawkey were planning on doing business with a variety of federal agencies, and
the terms of this arrangement were supposed to net him $1.2 million sometime
around February 19, with an additional $600,000 per year for the next five
years. Vendrick also told Pruett that in
order to finalize the deal, he (Vendrick) would have to open a $100,000 account
at Wells Fargo. Vendrick repeated the
secrecy of the deal to Pruett and said he had to go to California for several
days of training on the use of federal “forms and procedures.†Vendrick also stated Shawkey would be making
arrangements for the two of them to travel together to San Clemente
Island.
attempted to register a limited liability corporation with an online
service. The name of the corporation was
to be “GSRV,†the initials of Gary Shawkey and Robert Vendrick, and its stated
purpose was software development.
Shawkey and Vendrick were the sole shareholders, with Vendrick occupying
all the managing board positions. The
corporation’s billing and shipping addresses were both in Phoenix, but parts of
the online form were not completed, so the LLC was never formally
registered.
On February 13, two days
before departing to California, Vendrick called his younger brother, Charles
Frederick Vendrick (Fred), who lives in Hermosa Beach, to ask for a short-term
personal loan of $40,000. Vendrick had
only $60,000 of sufficiently liquid funds to put into the Wells Fargo account,
and turned to his brother for assistance in raising the $100,000 Shawkey had
insisted upon. Vendrick told Fred the
money was to secure a government contract, promised him an immediate return
plus an extra $10,000 on top of his investment, and insisted the repayment be
formalized and notarized as a written contract with payment due by April 7,
2008. Vendrick did not tell Fred he
would be coming to California in the imminent future, nor did he elaborate on
the nature of the contract or provide any paperwork to substantiate his claim. Nevertheless, Fred trusted his brother, and
on February 14, he wired Vendrick $40,000 to a designated account at Wells
Fargo.
That same day, Vendrick
purchased a round trip airline ticket from Phoenix to California, with a
departure set for February 15 and a return on February 18, with a rental car
reservation for the same period. After
flying into Long Beach on the 15th, Vendrick met Shawkey at the Dana Point
Marina. The two men were together when
Vendrick checked into the Marina Inn at 3:30 p.m. After checking in, Vendrick called his wife
to let her know which hotel he was staying in.
He also told her that he and Shawkey were going to San Clemente Island
the following morning to finalize the computer deal.
After
checking into his hotel room, Vendrick also called Sharlene Slama, who lived in
Turlock, California and was then 67 years old.
Vendrick first met Slama in 2001, when he was still living in San
Jose. Over time, they developed a
romantic relationship, and after Vendrick moved to Arizona, they saw each other
when Vendrick would travel to business seminars around the country. At Vendrick’s invitation, Slama made the
seven-hour drive to Dana Point and spent the night with him at the Marina
Inn.
Shawkey had stayed at
that hotel the night before, on February 14, but he did not stay there on the
15th, which was the day before Vendrick went missing. Prior to that time, Shawkey had been very
busy.
title="">[1] After
travelling from Virginia to Phoenix to meet Vendrick on February 9, Shawkey
took a bus to Los Angeles and arrived there the next morning. From there, he made his way by bus and cab to
Laguna Beach, whereupon he started looking for a boat to buy. During this period, Shawkey “got drunk [in
Dana Point] a couple nights†and took several trips to Catalina Island. Records from the Catalina Express indicate
Shawkey travelled from San Pedro to Catalina on February 10, returned the next
day, and then made a round-trip voyage from Dana Point to Catalina on the
13th.
The night of February 12,
Shawkey was in a bar in Huntington Beach, where he met a Chilean abalone farmer
named Carlos. Supposedly, he and Carlos
agreed to have Shawkey and Vendrick travel to Chile to install underwater
anti-piracy fencing around Carlos’ threatened livelihood. In fact, neither Shawkey nor Vendrick had any
experience doing such. Shawkey told the
police that, with the help of “positive thinking,†he intended to learn the
trade upon arriving in Chile. However,
he never turned over any promised information on Carlos or his abalone
company. And when investigators spoke
with Carlos about the supposed agreement, he told them the entire proposal was
a ludicrous idea to which he never gave any serious thought.
On February 13, Shawkey
purchased a sailboat, The Odyssey, in
Dana Point from Tom Smith for $1,000.
The following day, Smith took Shawkey out on the water for a couple of
hours to show him how the boat functioned.
The vessel had two anchors on it, which Smith showed Shawkey how to use
in different depths of water. Both of
the anchors were functioning normally at this time. Shawkey asked Smith how to run the engine,
steer the boat, and anchor it, but he had no interest in learning how to
sail. Shawkey would later claim to
investigators that Smith did not take him past the breakwater, and only
demonstrated to him how to use the front anchor, not the rear one.
The
night of February 14, Shawkey stayed at the Marina Inn, where Vendrick would
stay the following night, but he was only permitted to stay a single night
because his credit card was not authorized. He would spend subsequent nights in the cabin
aboard The Odyssey.
The next morning, before
he met Vendrick, Shawkey went to West Marine, a marine and hardware store in
Dana Point. He checked out at 9:52 a.m.,
purchasing a handheld depth finder, batteries, an 18-pound river anchor, a
paint tray and roller, a first aid kit, an outboard 9.9 horsepower engine and a
tool kit, for a total of $2,500, which he paid in cash.
Shawkey did not have a vehicle, so the sales associate drove him back to
the sport fishing wharf area of the Dana Point Harbor, where Shawkey had left
his vessel. However, while he was out
shopping, Shawkey’s boat was towed, because he had not rented a slip and had
left The Odyssey parked in an area
only permitted for the sport fishing fleet.
At
the harbor patrol impound, Shawkey was able to recover his vessel, and while he
was there, he went about installing the new engine to replace the old one,
which was in a questionable state of repair.
A deputy sheriff offered to assist him with the new engine, which
appeared heavy, but Shawkey hoisted the machine easily into place without any
help. When the deputy commented upon
this feat, Shawkey told him that he should see him “when he has to take down a
300-pound man†and that “he was a bounty hunter/bail bondsman from back eastâ€
who had made over 1,000 arrests. His
bounty hunting work “for the government†supposedly “took him up and down the
state†so he had purchased the boat to travel and live aboard to save money on
hotels. Shawkey asked the deputy if he
could leave his old engine with the harbor patrol, but the deputy rejected the
idea and directed Shawkey to the fuel dock as a location to sell or donate it.
Later that day, Shawkey
again illegally parked The Odyssey in
a slip belonging to a private owner. The
owner’s friend, Leo George, asked whether Shawkey knew he was in another
person’s slip. Shawkey replied he did
not, but that he had to go and meet his friend to prepare to go to Catalina
Island. Shawkey then left
Vendrick. While he was gone, George
boarded The Odyssey out of curiosity
and found the cabin “a total mess.†He
also noticed the new mushroom river anchor.
When Shawkey returned with Vendrick, George helped walk them out of the
slip and off into the water at roughly 5:00 p.m.
As
explained above, Vendrick had checked into his hotel not long before then. Hotel records for that day, February 15, show
the door to Vendrick’s hotel room was opened with the room’s key at 4:08 p.m.,
4:31 p.m., 9:44 p.m. and 11:05 p.m.
Shawkey told police that he and Vendrick, after taking the boat out
briefly, returned with it to the fuel dock at Dana Point Harbor and had dinner
at Turk’s, a restaurant along the harbor’s main commercial strip, before going
to buy items for the boat. At around
7:00 p.m., they went to a Target store in Dana Point in Vendrick’s rented PT
Cruiser, and Shawkey bought several items while Vendrick purchased only a
windbreaker. Shawkey told investigators
Vendrick also bought a card to make phone calls, but Target records and a
receipt later found in Vendrick’s hotel room showed no such purchase. Shawkey also claimed he and Vendrick visited
a nearby CVS Pharmacy that evening, so Vendrick could get a new glucometer and
insulin supplies for his (Vendrick’s) diabetes.
However, the sales records of the CVS showed no such purchase.
Shawkey also told police
that, when he was with Vendrick that night, he noticed that Vendrick was in
possession of a large duffel bag containing between $200,000 and $500,000. Shawkey claimed he noticed the money when
Vendrick fished through the bag to find a cell phone charger. That evening, Shawkey rented a slip and slept
on The Odyssey, and Vendrick stayed
in his hotel room with Slama.
The
next morning, Slama awoke to find Vendrick was already awake. She made him breakfast, and he told her he
had to go to Catalina Island to “meet his boss†and “clear some big,
money-making deal.†Vendrick was excited
about the deal, but he seemed hesitant about getting on the boat with Shawkey;
neither of them had any experience boating or sailing, much less navigating a
vessel in open water. Vendrick told
Slama to wait at the hotel, and he would be back some point that day, though he
couldn’t say exactly when. He did not
ask Slama if she wanted to come along with him.
Nor did he say anything about going sailing with her, going to Mexico,
Bike Week in Florida, travelling to Chile, or lobster fishing.
When he left Slama that
morning, Vendrick took nothing with him except his wallet and cell phone,
leaving his computer, suitcase, and his diabetes medication in the room. He then drove to meet Shawkey at
recorded a light going on aboard the boat at 5:58 a.m., Vendrick’s rental car
pulling in nearby a minute later, and then an hour later, at 7:04 a.m., the
boat pulled away. A fuel dock attendant
identified Vendrick and Shawkey as her third customer that morning, and a
receipt showed their purchase of gas for the boat at 7:50 a.m. The attendant saw Vendrick moving about from
the cabin to the cockpit and back again as they were at the fuel dock. The boat then motored out to sea.
Because neither Shawkey
nor Vendrick knew how to sail, the boat could only be powered by the 9.9
horsepower engine that Shawkey had purchased.
That engine, known as a “kicker,†had a top speed of about 5 knots. Since boating conditions were optimal that
day, it should have taken Shawkey and Vendrick about five hours and forty-five
minutes to travel from the Dana Point breakwater to the Avalon Harbor on
Catalina Island. A nautical expert who
examined The Odyssey before trial
found no issues with the keel of the boat, its rudder, or any other parts of
it.
While en route to
Catalina, Shawkey left a series of voicemails on Vendrick’s cell phone that
indicated that something was amiss. At
11:06 a.m., he left a message informing Vendrick he was halfway to Catalina and
had roughly three hours left before he got there and commenting that he hoped
Vendrick had made it on the Catalina Express ferry. Shawkey left two more messages around 2:30
p.m., one that there was an issue with The
Odyssey’s keel and that there would be a delay, and another giving Vendrick
a location in Avalon to meet him at with Slama that evening. At 4:01 and 4:52 p.m., Shawkey left messages
asking why Vendrick had not called him back and asking him “[w]hat’s going
on?â€
At 5:00 p.m., nine hours
after his departure, Shawkey arrived alone in Avalon Harbor. Seeking mooring for his boat, he took
advantage of an off-season sale and bought seven nights in advance. The next morning at about 9:00 a.m., Shawkey
had a conversation with dock master Paul Bates of the Avalon Harbor
Patrol. Shawkey told Bates his “partnerâ€
had become seasick, so he dropped him off in Long Beach the previous day. Claiming he had never been to Avalon before,
he asked Bates if he knew of any good places to store his boat while he took a
month-long job as a commercial diver in Chile.
Shawkey never mentioned where he had sailed to Catalina Island from, nor
did he specify where in Long Beach he had dropped off his partner. Bates returned to Shawkey’s moor around noon,
by which time Shawkey had departed.
Following
Vendrick’s departure from Dana Point on the morning of the 16th, Slama stayed
in his hotel room all that day, and during that time, Vendrick never returned
for his belongings. Slama left for home
the next morning, thinking Vendrick and Shawkey had run off on some adventure
and she should not worry over boys being boys.
Shawkey continued to
leave odd voicemails for Vendrick after arriving on Catalina Island. He made reference to Vendrick and Slama
getting a hotel on Catalina per some fictitious preexisting arrangement, spoke
to Vendrick as “bro,†and expressed confusion that he and Slama were not
meeting him for dinner as they were supposed to. The next morning, Shawkey left several more
messages. He first asked Vendrick if he
and Slama had departed, and in so doing, had “follow[ed] through with the
plan.†An hour later, another message
said, “You got [Slama] to come up here.
You want me to take you down to Mexico.
I have the whole thing set up.
I’m sitting over here on Catalina Island ready to go. I’ve got charts. I’ve got everything planned and I — you’re
not calling me back.â€
After another hour,
Shawkey left another message, following the same trend: “I’ve been holding all this money for you,
saving it for you so you could do what you gotta do with [Slama] and everything
was fine yesterday morning and then you decided you didn’t want to take the
boat across and have her take the ferry, whatever. You — then, that’s the last time I talked to
you. And the night before we had dinner,
all the plans were made. I got the boat
for — to take you to Mexico. I’m going
to San Diego. Okay? . . . Because that’s
where I’m taking the flight out of to go to, uh, Florida to handle what I need
to handle over there. Okay? . . . I mean I feel like I’m being set up or
something.â€
That
evening, Shawkey called again, assuring Vendrick he would not tell Carole about
Slama or his “running off†without “giving anybody any info.†In that regard, Shawkey told Vendrick he was
“doing [his] job†and doing what Vendrick “paid [him] to do.†Shawkey’s final voicemail was left the next
morning, February 18, during which he said, “[E]verything was a go for —
everything down in Chile. Everything in
the San Juan Islands. I don’t understand
why you’re not calling me . . . .â€
On
February 17, Shawkey travelled from Avalon to Two Harbors, a small town on the
northern end of Catalina Island, where he stayed briefly, and from there, he
piloted The Odyssey to Long
Beach. The evening of February 18, he
was in Buster’s Beach House, a bar in Long Beach, where he talked with the
bartender and told her he was a commercial lobster fisherman out checking his
traps. Because of water damage, his cell
phone was unusable, and he borrowed another customer’s to call his wife in
Virginia. He told the bartender that he
was on his way to the Port of Los Angeles and had pulled into Buster’s because
of bad weather. He had a friendly
demeanor, but at no point mentioned having a missing friend or that he had been
travelling with anyone. He eventually
left to return to his boat where he drank extensively, as he had done every
night since arriving in California.
The
next morning, February 19, Shawkey took a taxi around Long Beach, stopping at a
Payless Shoe Store to buy new shoes, a cell phone store, a CVS for phone cards,
a Wells Fargo branch, the DMV to register his boat, and then back to Wells
Fargo a second time. He twice stopped at
pay phones to make calls, and again never mentioned having a missing friend. While they were in the car, Shawkey asked the
taxi driver if he knew anyone who was interested in buying a boat, as Shawkey
intended to go to Cuba.
Monique Farfan, the
assistant manager of the Wells Fargo Shawkey visited, testified Shawkey entered
the bank first at around 9:30 a.m., seeking to withdraw $30,000 in cash and
process a $60,000 wire transfer. She
could not allow him to withdraw that much cash, but processed the wire, and
Shawkey said he would come back later.
He returned just before noon and asked for a $30,000 cashier’s check to
purchase a Harley Davidson motorcycle.
The wire he had requested earlier was blocked by Wells Fargo’s Wire
Investigation Division, and Farfan told him there was a problem with processing
it, but did not elaborate about the reason for the block.
Shawkey told Farfan the
money should be available and it was sent to him “because he was doing business
and he was going to take a boat out . . . somewhere along Chile for some type
of fishing business,†also commenting that “a man named Robert was his business
partner and that’s where the funds were coming from.†He also told her he was meeting Robert in
Chile, but did not say anything to the effect that Robert was missing. While Shawkey was polite in the bank with
Farfan, his taxi driver said he was irritated and agitated when he got back to
the cab.
title="">[4]
The two calls Shawkey had
made that day were to the OCSD, which he called because his wife told him that
investigators were looking for him and because missing persons pictures of
Vendrick had begun appearing in local media outlets. He told the watch commander on the phone he
was supposed to meet Vendrick in Dana Point, he had been leaving messages for
Vendrick since Saturday on his voicemail, and Vendrick had likely gone to Chile
with Slama.
After
Vendrick failed to make his flight back to Phoenix, his wife called the police
to report him missing, and an investigation into his whereabouts was
commenced. Vendrick’s rental PT Cruiser
was found locked where it was parked the morning he and Shawkey departed for
Avalon. Inside the vehicle investigators
found a white napkin with a shopping list for the trip
“Distribution Directive.†The document
called for an initial disbursement of $45,000 to Fred Vendrick on March 1, 2008
for “seed money.†It was not signed, but
it did contain signature lines for Robert Vendrick and Gary Shawkey. The document also had Shawkey’s DNA on it. With Shawkey’s consent, the police also
searched The Odyssey. They found a messy cabin with a single
sleeping bag and documentation of Shawkey’s $60,000 wire transfer to his wife
in Virginia. On February 22, a search
warrant was issued for The Odyssey,
but nothing more was found of any relevance.
None of Vendrick’s blood or DNA was found aboard the vessel, and not a
trace of him was found in the waters around Dana Point.
Deputies also entered
Vendrick’s room at the Marina Inn the evening of February 18, shortly after
Carole had called to report Vendrick missing.
They found the room neat, a laptop on the table open and running, the
room’s fireplace turned on, a suitcase on the luggage stand with folded
clothing inside it, a Target receipt for a windbreaker, and a nylon medical kit
containing Vendrick’s insulin in the refrigerator. Upon leaving, the investigators instructed
the hotel’s staff not to allow anybody to disturb the room. Unfortunately, the staff called Vendrick’s
brother Fred to have him collect Vendrick’s things, which he did the next day.
Shawkey’s first account of
the voyage was several days later, to OCSD Deputy Mike Thompson, the lead
investigator on the case. Shawkey called
Thompson from Long Beach and said that after he and Vendrick set out from Dana
Point, they were only about half a mile past the breakwater when Vendrick
became uncomfortable with the boat.
Shawkey turned The Odyssey
around and dropped Vendrick off on the dock in front of Turk’s. Then Vendrick told him he was going to get
Slama, check out from the hotel, and meet him on Catalina. At that point, Shawkey made the voyage to
Catalina alone. Upon arrival, he checked
all the hotels there, then headed back the next morning to try to catch
Vendrick at John Wayne airport.
In
speaking with Thompson, Shawkey also provided the first of what would be many
colorful descriptions of all the ways in which Vendrick supposedly hated his
wife. Shawkey also talked about the
prospect of him and Vendrick meeting Carlos in Chile at the end of April. Shawkey surmised Vendrick was going to go to
Chile with Slama by travelling through Mexico, Brazil and Panama, and he
(Shawkey) was going to meet them there, after first going to “Bike Week,†a
large motorcycle festival in Daytona, Florida.
Shawkey further claimed
that the $60,000 Vendrick had transferred to him was for buying the boat, dive
gear, and other things to go to Chile.
complained at some length about his inability to access the $60,000, which left
him unable to get to Daytona or Chile.
Shawkey said he had wired the money to his wife so she could have it sent
to him wherever he went around the world, saying international wiring laws
would prevent him from accessing the Wells Fargo account while he was
abroad. He also brought up Vendrick’s
duffel bag, claiming it contained hundreds of thousands of dollars in
hundred-dollar bills.
Later
that night, Shawkey was taken by Thompson and his partner, Investigator Ken
Hoffman, to the Long Beach Police Department Headquarters to conduct a more
formal interview. Shawkey then told them
about Vendrick’s Schwab account, which his wife supposedly did not know about,
which contained money Vendrick used to help pay for Shawkey’s expenses and to
finance their various and sundry business ventures. This, he explained, was also the progenitor
of the duffel bag full of cash that he described, claiming that whenever
Vendrick would give Shawkey large personal payments of this kind, he expected
any remaining balance to be delivered back to him in cash.
According to Shawkey, the
net result of this was that Vendrick had given him about a million dollars in
wire transfers and checks, etc., and he had ultimately returned a half a
million in cash to Vendrick. Shawkey
claimed proof of this arrangement could be found in what were surely hundreds
of thousands of dollars in cash withdrawals from his own accounts. However, that claim was tested and disproved
by forensic accountants.
name="_ftnref7" title="">[7]
Shawkey
then lodged several more protests and complaints about how the money in the
Wells Fargo account was rightfully his to do with as he pleased, citing as
authority the fact Vendrick had been giving him money for years. Shawkey told the investigators he was going
to go to Florida to look for Vendrick, who was as surely there as he had been
surely on his way to Chile in their previous conversation.
Shawkey
then asserted Vendrick had left his diabetes medication in his hotel room
because of the difficulty he would surely face trying to bring it into
Chile. He also commented that it was
“weird†that Vendrick did not bring any of his belongings with him on
that Vendrick had tried to run off without Shawkey, framing him for his
disappearance in the process.
Shawkey claimed Vendrick
had a tremendous gambling habit, and he had seen him personally spend $5,000
playing a single game of craps. He also
said Vendrick had a “party life and hookers†that nobody else in his life knew
about because of Vendrick’s illogical, extreme transformations which Shawkey
likened to Dr. Jekyll and Mr. Hyde. He
also later claimed Vendrick had been suicidal in Las Vegas the previous
year. After the investigators pointed
out to Shawkey a number of gigantic holes in his plan to become the commercial
lobster fisherman he already had claimed to be, Shawkey changed his story so
that instead of this being the plan he and Vendrick had originally devised, now
it was one which Shawkey had put together independently.
When forced to return to
matters of substance, Shawkey told investigators about his old engine that he
had abandoned and that he had also lost an anchor the morning he returned from
Catalina Island to Long Beach. That
anchor, one of the two that was originally on The Odyssey when Shawkey had purchased it, was later recovered by
an OCSD dive team after they had Shawkey return to the area to point out
exactly where it was lost. However, it
was not until investigators had conducted a more thorough examination of
Shawkey’s story that they uncovered his purchase of the river anchor from West
Marine. At no point did Shawkey disclose
this purchase or the anchor’s loss either while assisting the dive team or in
interviews.
In a follow-up interview
on February 20, Shawkey attempted to patch holes in his stories about the use
of the sailboat for fishing, his agreement with Carlos to build underwater
fencing, and the purpose of the Wells Fargo account. He admitted he had no actual underwater
welding experience, nor any truly marketable skills that Carlos may have found
a use for. The story about the $100,000
account became one wherein the money was a “gift†to “keep things going†and
cover Shawkey’s day-to-day expenses.
Vendrick had asked Shawkey how much he would need to “last a few monthsâ€
and then sent the money no questions asked.
Shawkey also denied any and all knowledge of any government contracts,
writing off the possibility as a story that Vendrick
made up for some reason. He also
claimed that all of the money given to him by Vendrick over the last six years
was not an investment, but simply “good time†money.
In another interview on
February 23, Shawkey revisited his story about his meeting with Vendrick in
Phoenix on February 9. Now the entire
trip to California was about taking Slama sailing before the two of them gallivanted
back to Bike Week in Florida, but may also have included discussion of
commercial fishing in Washington and off the California coast.
the end of the meeting, Shawkey said, their plan had been to have him find a
sailboat he could turn into a fishing boat, and it also somehow included Catalina
Island. Shawkey disavowed any knowledge
that Fred Vendrick had deposited $40,000 into his account, calling it simply
“another mysterious deposit.â€
Shawkey also claimed to
have no knowledge of San Clemente Island or any software development plans, and
that he had not even thought about software since they had lost their software
and computer company to a competitor several years earlier. He claimed to know for a fact that Vendrick
intended to flee the country, leave his wife, and disappear without a trace,
and that Vendrick had told him as much personally. He also denied having any knowledge of the
formation of Vendrick’s proposed LLC, or why it would be focused on software
development. Despite all this, Shawkey
alleged he and Vendrick never had an argument of any kind.
Shawkey was then
confronted by the investigators with several falsities he had planted in his
voicemails, specifically about having charts prepared to travel to Mexico and
about checking hotels in Avalon, neither of which were true. They also pointed out that despite his
professed concern for Vendrick and his disappearance in those voicemails, he
never once actively searched for him, never made reference to his disappearance
in any of his many interactions with others, and had spent the next three days
largely idling about in Long Beach. The
only productive things Shawkey had done to that point were buy a replacement
anchor for the one he had jettisoned in Two Harbors and a pirate flag for his
boat, and despite his professed years of experience tracking fugitives as a
bail bondsman, he had even forgotten to check with Vendrick’s hotel to see if
he had checked out. Nonetheless, the
investigators did not arrest Shawkey and released him to pursue whatever leads
he could imagine.
Shawkey left Orange
County and, as promised, travelled to Bike Week in Daytona, where he claimed to
have been contacted by Vendrick through a mysterious bartender at a
saloon. He called Investigator Hoffman
to provide him with this update on March 5, 2008. This provided a new explanation for Shawkey
to use regarding the insulin left in the hotel room, that Vendrick had a far
more severe and imminently fatal condition that had caused him to want to flee
from all his friends and family and live a life on the run. After finally acknowledging the existence of
the river anchor that investigators had learned about, Shawkey then made
another complaint about the held-up $100,000 in his account, arguing that it
“was not [Vendrick’s] money. [Vendrick]
gave that to me. [¶] . . . [¶] He wired that money to me.â€
On May 8, Shawkey again
phoned the OCSD to inform investigators he knew for a fact they did not have
any leads, because Vendrick was actually in Mexico. He claimed he had spoken to Vendrick in
person in Mexico after walking across the border in Brownsville, Texas. He used this fact to also explain how it was
that Vendrick had arrived in Mexico despite leaving his passport at home in
Phoenix when he left for Orange County in February. He elaborated that Vendrick had developed
dementia, and that he did not want to be contacted or called by the police, and
that everyone would be better off if they just dropped the case.
Shawkey had apparently
found Vendrick through the same mysterious contact he used in Florida. He alleged Vendrick was travelling under the
alias “Mike Vendrick†and staying at the Hotel Victoria in Matamoros,
Mexico. Shawkey also alleged he had a note
in Vendrick’s handwriting to prove he was alive. Supposedly, Slama had dropped off Vendrick at
the border with his duffel bag full of money, and the note had been delivered
to Shawkey through a secret Mexican contact on an island off the Texas
coast. Shawkey would later contradict
this story by saying the contact was the same bartender he had met in
Daytona. Investigators would also later
confirm that nobody named Robert, Mike, or Vendrick had stayed at the Hotel
Victoria on the dates Shawkey gave them.
Shawkey would continue the
charade of tailing Vendrick across Mexico, trying to lure him onto buses bound
for San Diego to turn him in at the border, meeting with secret contacts whose
identity and descriptions would change with each call to investigators, and
hitch-hiking across Mexico and the American Southwest. None of Shawkey’s claims about Vendrick’s
life in Mexico or his efforts to track him down would ever bear fruit. The handwritten note he recovered underwent
extensive handwriting analysis and was determined not to be penned by
Vendrick.
On May 16, 2008, Shawkey
came back to Orange County for another interview. There he detailed many of his travels around
Mexico supposedly looking for Vendrick, and mentioned Vendrick had left a phone
for him in Daytona that Vendrick had used to call him. This flew in the face of all plausibility of
the secret contacts and third party communications Shawkey had to this point
told investigators about. Shawkey also
went back into his history with Vendrick, claiming that in all his communications
with him, money had always been a non-issue for Vendrick. Shawkey also claimed that Vendrick was going
to give him $150,000 to “sell the computer program,†despite having repeatedly
denied any knowledge of any software or sales thereof to that point.
Confronted
with his many inconsistencies, Shawkey admitted his story seemed
farfetched. When investigators asked him
what “12 licensed drivers†would likely make of all of his claims, Shawkey said
they would probably conclude he killed Vendrick.
Shawkey would later claim
in a March phone call to authorities that he had dumped the river anchor in the
Dana Point Harbor once he realized it was useless, specifying it was attached
to 20-30 feet of old white rope. Based
on this claim, a highly trained dive team searched five locations around Dana
Point Harbor, effectively covering the entire area the anchor could have
reasonably been. The team was equipped
with active sonar technology capable of mapping the ocean floor to a high
degree of accuracy in nearly any water condition, and in each case the team
recovered a smaller double-blind test anchor hidden by their dive master. However, they never found the river anchor
Shawkey allegedly discarded.
Despite
a massive international missing-persons investigation that involved local
police, federal agents and Interpol, authorities never found any sign of
Vendrick either. In February 2009,
roughly one year after Vendrick went missing, Shawkey was arrested on unrelated
charges in Virginia. He was then
extradited to California and charged with special circumstances murder for
financial gain and grand theft. The
prosecution also alleged the value of the taking exceeded $200,000. Trial was by jury. It spanned several weeks, but it took the
jury less than three hours to find Shawkey guilty as charged.
I
Shawkey contends there is
insufficient evidence to support the jury’s finding he killed Vendrick. While he admits the evidence suggests he’s a
“liar and a thief,†he insists he’s “not a murderer.†Having thoroughly examined the voluminous record
in this case — and having set it forth at great length above because it is a
“no body murder case†based entirely on circumstantial evidence — we find
substantial evidence to support the jury’s verdict.
In reviewing the sufficiency of the evidence
to support a criminal conviction, we review the entire record “‘to determine
whether it discloses substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.’ [Citation.]†(People
v. Stuedemann (2007) 156 Cal.App.4th 1, 5.)
In so doing, we presume “in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.†(People
v. Kraft (2000) 23 Cal.4th 978, 1053.)
The same standard applies when, as here, the
defendant’s conviction rests primarily on circumstantial
Shawkey argues no
rational trier of fact could have rejected his claim to investigators that,
rather than killing Vendrick at sea on his way to Catalina Island, he returned
Vendrick to the dock at Dana Point between 8:00 and 10:00 on the morning in
question. However, Shawkey did not come
off as a pillar of veracity in speaking with authorities. In fact, his assertions were thoroughly
discredited by investigators, and every time he claimed Vendrick was alive
while he was gallivanting about in Florida and Mexico, it was shown that not
only was he incorrect about Vendrick’s whereabouts, he was actively, and incompetently,
lying. We are not at liberty to
second-guess the jury’s determination Shawkey was not telling the truth when
expressing his innocence to authorities.
(People v. McDaniels (1980)
107 Cal.App.3d 898, 903.)
Shawkey
claims his story about returning Vendrick to Dana Point is equally plausible
with the prosecution’s murder theory, therefore necessitating reversal. (See People
v. Blakeslee (1969) 2 Cal.App.3d 831 [overturning murder conviction against
the victim’s daughter because there was an almost equally strong case to be
made against the victim’s son].) But
that is clearly not the case. To accept
Shawkey’s story, the jury would have had to adopt an entirely unreasonable
interpretation of the facts. To
wit, after getting dropped off at the dock, Vendrick, who had no luggage or
passport, is not noticed by anyone. The
first thing he does is disable his cell phone before Shawkey can call and leave
his first voicemail. Then he gets rid of
all of his credit cards, personal checks, and anything else that could
personally identify him, except the cash in his wallet and the clothes on his
back. The first stage in his plan
complete, he now makes good his escape from his wife, his girlfriend, his only
brother, his children and grandchildren, and his personal finances, tattered
though they may be in their post-Shawkey state.
After
that, Vendrick sneaks around every security camera and witness in Dana Point,
abandoning his rental car, insulin supply,
and other personal effects in his hotel room.
He then travels, presumably on foot, to Mexico, where he takes on the
name Mike and decides to spend his golden years using every cheap
espionage-thriller trope he can think of to lead Shawkey on a merry chase
across the North American continent, never to be heard from again.
While
it is a time-honored tradition among the worst sorts of people, Shawkey’s story
redefines the concept of blaming the victim.
Vendrick did not simply fail to call and check in after getting off a
flight. He did not merely arrive home
late from work by a few hours, or a few days, or even a few months. He vanished from the face of the earth, now
for over five years. Vendrick, a then
71-year-old retiree, spent the majority of his time using the Internet, the
most sophisticated tool for communication in history, and while doing so always
left an enormous online footprint in the form of mailing list subscriptions and
such. Yet, no trace of his activities
has been found online. That he could
disappear so suddenly, utterly, and without any iota of preparation to do so
allows only one tragic and inescapable conclusion.
His
body was never found, so he did not simply fall off the dock in Dana Point,
especially considering how thoroughly and repeatedly it was searched for him. He was not seen by any eyewitnesses, while
over the next several days a myriad of people remembered even the briefest of
encounters with Shawkey and called investigators to say so. Vendrick had no access to his finances,
meager though they were at that point, and no resources on which to survive had
he simply walked away. As interconnected
and heavily-surveilled as our world is, it would take tremendous effort to
disappear in such a manner, even if Vendrick had reason to do so. The only reasonable conclusion is that he
died between Dana Point and Avalon.
And
this is without reference to Shawkey’s own phantasmagoric reports. Once one accounts for almost a year’s worth
of blundering by one of the world’s most incapable liars, his innocence becomes
inconceivable. He lies compulsively and
inconsistently. He repeatedly urges that
he should not only be found innocent, but that he deserves the last $100,000
that his former friend was able to scrape together as some grisly reward for
getting away with it. Shawkey is a large
man, and Vendrick was not. There are any
number of ways to murder at sea without leaving blood on the deck of one’s
ship, at least one of which involves a river anchor.
Shawkey
not only lost a river anchor while at sea, he conveniently failed to mention
this to the police when they initially questioned him. He left 13 voicemails for a man he had not
seen in two days, then abandoned this pitiful token of concern to get drunk in
Long Beach and buy a pirate flag. All
things considered, the jury could only reasonably construe Shawkey’s voicemails
as a thinly veiled attempt to create an alibi for killing the very person to
whom he pretended to be speaking.
Then there is the matter of
Vendrick’s dismal financial situation, to which Shawkey himself greatly
contributed. At the time of his
disappearance, Vendrick no longer had any disposable money Shawkey could
extract from him, and in fact, he was trying his best to recover the small
fortune Shawkey had swindled from him over the years. Not only had Vendrick outlived his usefulness
to Shawkey, he was actually becoming a nuisance and threatening Shawkey’s
ever-perilous financial condition. Thus,
Shawkey had a considerable motive to get rid of him.
Considering all the circumstances
attendant to Vendrick’s disappearance, the conclusion that Shawkey murdered him
at sea for financial gain is virtually inescapable. Not only is the evidence of Shawkey’s guilt
substantial, it is positively overwhelming.
We therefore reject his challenge to the sufficiency of the
evidence.
II
Shawkey’s other argument
is that the trial court erred in admitting certain hearsay statements into
evidence. This claim also fails.
The
statements in question were made by Shawkey to Vendrick during their meeting in
Phoenix on February 9, 2008, a week before Vendrick went missing. Over defense counsel’s objection, several
witnesses were allowed to testify that, during the meeting, Shawkey told
Vendrick he had acquired a lucrative contract with the federal government that
necessitated Vendrick travelling to San Clemente Island.
As
Shawkey admits, the statements he made to Vendrick constituted party
admissions. Thus, had Vendrick been
around to testify about the statements, they clearly would have been
admissible. (Evid. Code, § 1220.) The
problem, as Shawkey sees it, is that the statements came in through third
parties who learned of Shawkey’s statements from Vendrick. In Shawkey’s view, this created a second
layer of hearsay — Vendrick to the witnesses — that rendered the statements
inadmissible.
However, the statements
from Vendrick to the witnesses about what Shawkey had told him were not hearsay
because they were not admitted for their truth, i.e., to prove there was a
federal contract Vendrick had to attend to in California. Rather, the statements were admitted to show
Vendrick’s state of mind and to explain his actions after hearing them. (Evid. Code, §
1252 [statements admitted for these purposes are not made inadmissible by the
hearsay rule].) Particularly, they were
relevant to explain what motivated Vendrick to come to California and to show
what he did once he got there.
Recognizing
the statements were admissible for this limited purpose, the trial court
instructed the jurors as follows:
“During the trial, certain evidence was admitted for a limited
purpose. Witnesses Carole Vendrick,
Sharlene Slama, Fred Vendrick, and Leo Pruett testified that Robert Vendrick
told them about statements allegedly made to him by the defendant Gary
Shawkey. You are not to consider those
statements for the truth of the matter asserted in those statements, rather you
may consider the statements to evaluate Robert Vendrick’s state of mind and the
effect, if any, that the alleged statements had on Robert Vendrick’s
actions. You may consider that evidence
only for the limited purpose and for no other.â€
Shawkey
argues the court should have worded this instruction differently, and instead
of tailoring it to the statements he told Vendrick, it should have referenced
the statements Vendrick told the witnesses.
But the context of the instructions makes clear the statements Vendrick
told the witnesses were the same statements Shawkey told him. So, by telling the jury not to consider those
statements for their substantive truth, the jury avoided the hearsay problem
that Shawkey complains of. It is simply
not reasonably probable the jury misused the subject evidence or that its
admission rendered Shawkey’s trial unfair.
Therefore, there is no cause for reversal.
DISPOSITION
The
judgment is affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
name="_ftn1" title=""> [1] Our
description of Shawkey’s activities during this time is based on what he told
investigators in the wake of Vendrick’s disappearance. Shawkey did not testify at trial.
name="_ftn2" title=""> [2] The
river, or “mushroom,†anchor is especially noteworthy, as river anchors are
useless for embedding on the sea floor; their shape is designed for the
rockier, more irregular bottoms of rivers, and do little more than bounce along
the top of the sandy ocean shelf.
