from the Iowa District Court for Story County, Michael J.
defendant appeals from his conviction for murder in the
second degree. AFFIRMED.
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Laz LePon, Fort Madison, pro se.
J. Miller, Attorney General, and Benjamin Parrott, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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.
Background Facts and Proceedings.
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
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
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.
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.
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.
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.
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.
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
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.
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
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
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.
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. "We review interpretations of the
speedy indictment rule for errors at law."
Williams, 895 N.W.2d at 860.
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
was arrested pursuant to an arrest warrant on February 14,
2014.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
Motion to Suppress.
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).
Alleged Seizure of LePon's Person.
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.
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
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.
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,  took a personal call, was
given a break when requested, and was allowed access to Book
when requested." 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 ...