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State v. Lepon

Court of Appeals of Iowa

September 13, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
LEIGH LAZ LEPON, Defendant-Appellant.

         Appeal from the Iowa District Court for Story County, Michael J. Moon, Judge.

         The defendant appeals from his conviction for murder in the second degree. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Leigh Laz LePon, Fort Madison, pro se.

          Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          POTTERFIELD, JUDGE.

         Leigh LePon appeals from his conviction for murder in the second degree. LePon raises a number of claims of error, both through his appellate attorney and pro se. He maintains: (1) the charges against him should have been dismissed due to violation of the speedy-indictment rule; (2) the district court was wrong to deny his motion to suppress; (3) his constitutional rights were violated when the district court allowed the State to dismiss some of the charges against him before trial; (4) the district court abused its discretion in allowing the assistant medical examiner to testify about the manner of death, Sadie Book to testify about LePon's prior bad acts-his use of methamphetamine on the night in question, and the State's expert Kenneth Martin to testify at all; (5) the court should have granted LePon's motion for mistrial after the medical examiner testified the type of wound suffered by the deceased "usually implies intent"; (6) the court erred in finding there was sufficient evidence to support the malice-aforethought element for murder; (7) an evidentiary hearing is warranted to investigate his allegations of prosecutorial misconduct; and (8) trial counsel was ineffective for failing to recall Book in order to establish her bias before the jury and for failing to challenge the weight of the evidence.

         I. Background Facts and Proceedings.

         On December 20, 2013, at approximately 10:30 p.m., LePon called 911 and reported that his friend, Devlin Lockman, had accidentally shot himself in the face. LePon stated Lockman was intoxicated and had been playing with the gun-moving it from hand to hand-when it discharged. Sadie Book, LePon's girlfriend at the time, was also at the residence when the gun discharged.

         Police and medical responders arrived shortly after the 911 call was received; Lockman was conscious, though bleeding heavily from the face and unable to be understood due to the wounds suffered to his face, mouth, and tongue. When directed or asked to do so, LePon assisted medical efforts by holding a towel to Lockman's face to stem the bleeding. Lockman was placed in the ambulance so he could be taken to the hospital; he suffered cardiac arrest during the drive and was later pronounced dead.

         Both LePon and Book rode with police officers to the local police station on the night in question. They were kept in separate rooms and asked a variety of questions about what had taken place. Book told officers she saw Lockman with the gun and heard it discharge but that she had not witnessed what actually occurred because she was looking at her tablet at the time. She also reported LePon had immediately called 911. LePon told officers that Lockman had a history of playing with guns when he was drunk, including a previous incident when he had accidentally shot through the leg of his pants into the floor. He reported Lockman had been waving the gun around and then threatened LePon with it; LePon denied feeling threatened but claimed he wanted Lockman to put the gun down. He stated he had reached out to grab Lockman's arm, and that is when the gun had discharged. While LePon was being interviewed, he received a call on his cell phone. The caller informed him Lockman had died. Shortly after, LePon ended the interview with police.

         Officers applied for and obtained a warrant in the early morning hours of December 21. The items to be searched and seized included LePon's clothing and his cell phone. Book and LePon ultimately left the station together, but officers first downloaded the content from both of their phones and took LePon's clothing that had blood on it.

         The Deputy State Medical Examiner, Dr. Michelle Catellier, performed the autopsy of Lockman's body on December 22. She had received an initial report from the medical legal death investigator, as well some statements from police officers, that the shooting was the result of the accidental discharge of a gun. Dr. Catellier did not believe the wounds were consistent with the initial findings, including what she termed a "hard contact wound" on Lockman's face. She asked the officers to allow her to study the gun, and she indicated to them that she thought further investigation was needed.

         On January 1, 2014, Book went back to the police station. During her second interview, she again reported the shooting was an accident, but she also reported that she had more to tell the officers but was scared to do so while LePon was not in jail.

         On January 3, LePon was arrested on charges of willful injury causing bodily injury, domestic abuse assault impeding air/blood flow, and two counts of violation of a no-contact order for actions he allegedly perpetrated against Book on New Year's Eve. The same day, Book went to the police station for a third interview. She told officers for the first time that she witnessed LePon shoot Lockman.

         In early February, the medical examiner ruled Lockman's death a homicide. Shortly thereafter, LePon was arrested for murder in the first degree. The State then dismissed the other charges against LePon from the New Year's Eve incident.

         LePon's trial did not take place until November 2015. In the months leading up to trial, the court was asked to decide a number of motions in limine and motions to suppress.

         At trial, Book testified that on the night of December 20, she had witnessed LePon pick up the handgun and walk toward Lockman, who was sitting on the couch; heard the safety click into the "off" position; and then saw a brief struggle between Lockman and LePon before she heard the gun go off and saw Lockman slump backward. She was allowed to testify-over defense objection-that she and LePon had been using methamphetamine for approximately two days before the shooting occurred. Other witnesses for the State included LePon's former cellmate, who testified LePon had told him he "shot his best friend in the face" because he had been fighting with his girlfriend and felt like his best friend took the girlfriend's side. Additionally, over objection, Dr. Catellier was allowed to testify that the manner of death was homicide, and the State was allowed to call an expert witness to analyze the blood spatter on the couch where Lockman was sitting at the time of the shooting. The State also offered into evidence LePon's phone records, which the State had obtained from the phone company pursuant to a warrant, showing LePon called a cab approximately thirty-eight seconds before he called 911 on December 20.

         The defense called an expert witness, who provided testimony about how many pounds of pressure it would take for the gun in question to discharge- attempting to explain how easily an accidental discharge could occur-and an expert forensic pathologist, Dr. Thomas Young, who disagreed with the medical examiner's conclusion that Lockman suffered a "hard contact wound" and, accordingly, the distance that would have had to exist between Lockman's face and the gun when it fired.

         The jury found LePon guilty of the lesser-included offense of murder in the second degree, and he was ultimately sentenced to a term of incarceration not to exceed fifty years.

         LePon appeals.[1]

         II. Discussion.

         1. Speedy Indictment.

         LePon maintains the charges against him should have been dismissed pursuant to the speedy-indictment rule contained in Iowa Rule of Criminal Procedure 2.33(2)(a). He argues because he was seized on the night of the shooting-December 20, 2013-and the filing of the trial information did not take place until February 25, 2014, he was not charged within the forty-five days set by the rule.[2] "We review interpretations of the speedy indictment rule for errors at law." Williams, 895 N.W.2d at 860.

         Prior case law provided the speedy-indictment rule was triggered when "a reasonable person in the defendant's position would have believed an arrest occurred, including whether the arresting officer manifested a purpose to arrest." State v. Wing, 791 N.W.2d 243, 249 (Iowa 2010), overruled by Williams, 895 N.W.2d at 867. But now, "[t]he rule is triggered from the time a person is taken into custody, but only when the arrest is completed by taking the person before a magistrate for an initial appearance." Williams, 895 N.W.2d at 867.

         LePon was arrested pursuant to an arrest warrant on February 14, 2014.[3]He had his initial appearance in front of a district court judge on February 17; it was then the speedy-indictment clock began to run. LePon was charged by trial information with murder in the first degree on February 25. Based on our current understanding of the speedy-indictment rule, LePon was charged well within the forty-five days required by Iowa Rule of Criminal Procedure 2.23(2)(a).

         2. Motion to Suppress.

         LePon maintains the district court should have granted his motion to suppress. Before trial, he argued for the suppression of the statements he made to police on December 20 after he was taken to the station; the evidence obtained at the station-his clothing and the information from his cell phone; the later, second recovery of his cell phone on January 10, 2014; and the search of his cell phone records. As he did in his motion to suppress, LePon argues for the suppression of various pieces of evidence under different theories. We will address each below; "[b]ecause the motion to suppress is based on a claim of deprivation of the defendant's constitutional rights against unlawful seizures, this court's review is de novo." State v. Wilkes, 756 N.W.2d 838, 841 (Iowa 2008). We make an independent evaluation of the circumstances as shown by the entire record, considering both the evidence introduced at the suppression hearing and the evidence introduced at trial. State v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015).

         A. Alleged Seizure of LePon's Person.

         LePon maintains he was illegally seized on December 20, 2013, when officers transported him to the police station. The State responds that LePon voluntarily accompanied police to the station to give a statement.

         "The Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution protect persons from unreasonable searches and seizures." State v. Reinders, 690 N.W.2d 78, 81 (Iowa 2004). "The Fourth Amendment's protection against unreasonable intrusions on a person's liberty arises when an officer seizes a person. A seizure occurs when an officer by means of physical force or show of authority in some way restrains the liberty of a citizen." Id. at 82 (citations omitted). "[A] seizure does not occur if 'a reasonable person would feel free to disregard the police and go about his business.'" Wilkes, 756 N.W.2d at 843 (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). "[O]bjective indices of police coercion must be present to convert an encounter between police and citizens into a seizure." Id. We determine whether a seizure occurred by the totality of the circumstances. Id.

         LePon has not claimed that an officer used physical force to seize him. Rather, he maintains the officers' show of authority made him feel as if he was not free to refuse to go to the police station or to leave after he arrived there. Specifically, LePon points to his statements that he wanted to be with Lockman at the hospital and two officers' testimony that if LePon had tried to leave, they would have contacted a superior before allowing him to do so.

         During the hearing on LePon's motion to dismiss charges (based on the speedy-indictment rule), when trying to convince the court he had been "in custody" on December 20, LePon testified that when he was standing outside the station smoking a cigarette waiting to be interviewed by a detective, he "began to walk away on two occasions" and "[a]n officer-I'm not sure who it was-came from around the back side of a vehicle and told me I had to go back to the door of the police station." LePon clarified that the officer did not touch him but stated he was "herded" back toward the door and the officer used an "authoritative" or "directive" tone. The district court did not include LePon's version in its finding of facts. Rather, the court found LePon had "consented to be interviewed at the police station, was not handcuffed or locked in a room, was told he was not under arrest, was Mirandized, [4] took a personal call, was given a break when requested, and was allowed access to Book when requested."[5] In its ruling on the motion to suppress, the court found LePon "was never threatened by police, the police never displayed their weapons or indicated that they would compel him to submit to their request if he refused to accompany them to the police station, and the police gave no other objective indication that he was not free to leave." While we are not bound by the district court's findings, our de novo review of the record has not led us to find ...


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