State v. Lapan

249 Ariz. 540

472 P.3d 1103

The STATE of Arizona, Appellee,

v.James R. LAPAN Jr., Appellant.

No. 2 CA-CR 2018-0342

Court of Appeals of Arizona, Division 2.

Filed August 11, 2020

Mark Brnovich, Arizona Attorney General, Michael T. O'Toole, Chief Counsel, By Mariette S. Ambri, Assistant Attorney General, Tucson, Counsel for Appellee

Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellant

Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

STARING, Presiding Judge:

¶1 James LaPan appeals from his convictions and sentences for first-degree murder and first-degree burglary, as well as the trial court's restitution order. For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against LaPan. See State v. Murray , 247 Ariz. 583, ¶ 2, 454 P.3d 1018 (App. 2019). On Monday, July 18, 2016, N.M.’s fiancé found him dead at home with multiple gunshot wounds. Based on a neighbor's report of hearing a loud noise, detectives believed N.M. had been shot at approximately 4:00 a.m. from the roof of his patio, which provided a view into his master bedroom.

¶3 Detectives found multiple .45 caliber shell casings inside the home and in the backyard, which bore marks consistent with having been fired from a handgun fitted with a suppressor. Detectives also found blood on the exterior wall of the master bedroom by the window, the outside windowsill and blinds, a wall inside the closet, the bathroom counter, and the lid of a mouthwash bottle on the bathroom floor, as well as DNA on the mouthwash lid and a pair of scissors in the bathroom. It appeared to detectives that the shooter had also bled and "as if somebody had tried to clean [it] up" because of the bottles of cleaning products in the master bedroom, broken window glass that appeared to have been swept into a pile, a piece of the master bedroom carpet that appeared to have been cut and was missing, and mouthwash that had been poured on the bathroom floor.

¶4 Three days later, detectives went to N.M.’s workplace, an aerospace company, and spoke to several employees, including LaPan. LaPan told detectives that he had issues with N.M., the most recent of which resulted in him filing a formal grievance against N.M. the Friday before the murder. LaPan also said N.M. previously had dated a woman named J.P.—with whom, according to LaPan's wife, LaPan had recently been having an affair. LaPan volunteered that he was a "precision marksman" and owned several firearms, including a .45 caliber handgun. When detectives asked LaPan about a "deep" cut on his forearm, he said he sustained the wound from falling through an airplane hatch at work the Saturday before the murder and ripped it open again that same evening while playing with his children. LaPan's coworkers confirmed that they had seen LaPan fall through an airplane hatch. LaPan also told detectives he was asleep at home with his wife the night of Sunday, July 17, woke up at 5:00 a.m. on Monday, and exercised with his wife before she went to work. LaPan's wife corroborated his statement, saying that as far as she knew, he was in bed with her all night, and she "d[id]n't think" he could have gotten up without her hearing him.

¶5 Detectives executed a search warrant for LaPan's home, where they found several boxes of .45 caliber ammunition and a bucket of spent casings that included two .45 casings that were the same brand as the casings found at N.M.’s home, as well as boxes for a .45 semi-automatic handgun and a suppressor to fit such a firearm. Detectives also searched LaPan's vehicles and found fibers that appeared to match the carpet that had been cut in N.M.’s bedroom. Subsequent testing revealed that DNA and blood collected from the murder scene matched LaPan's.

¶6 The state charged LaPan with one count of first-degree murder and one count of first-degree burglary. After a nine-day jury trial, LaPan was convicted as charged and sentenced to concurrent prison terms, the longest of which is natural life. The trial court entered a restitution order compensating N.M.’s brother for his use of annual leave as a result of N.M.’s death, and the subsequent investigation, trial, and sentencing. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

¶7 On appeal, LaPan argues the trial court erroneously denied his motion to suppress evidence, abused its discretion by declining to admonish the prosecutor for asking venire members during jury selection whether their friends or family would describe them as a "sucker," and improperly awarded restitution to N.M.’s brother for his use of annual leave.

Motion to Suppress

¶8 LaPan argues the trial court erroneously denied his motion to suppress evidence seized during a search of his home because the detective "intentionally or recklessly omitted material information from her affidavit, in violation of Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)." When reviewing the denial of a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing it in the light most favorable to upholding the court's ruling. State v. Goudeau , 239 Ariz. 421, ¶ 26, 372 P.3d 945 (2016). "A trial court's finding on whether the affiant deliberately included misstatements of law or excluded material facts is a factual determination, upheld unless ‘clearly erroneous.’ " State v. Buccini , 167 Ariz. 550, 554, 810 P.2d 178, 182 (1991) (quoting United States v. Fawole, 785 F.2d 1141, 1145 (4th Cir. 1986) ).

¶9 Before trial, LaPan requested a Franks hearing to challenge the evidence seized pursuant to what he alleged was an "unlawful" search warrant.¹ LaPan argued the "affidavit recklessly omitted known material facts, and in doing so exaggerated the strength of the evidence against [him] and created an illusion of probable cause where none existed." He also argued the detective "repeatedly attempted to discount LaPan's account" by describing the airplane hatch as where he "allegedly" fell and that it was improper for her to include her opinion that the cut on LaPan's arm was inconsistent with his explanation of falling through the airplane hatch.

¶10 The affidavit submitted in support of the warrant included the following information: Three days after the murder, detectives spoke with LaPan, who told detectives he "ha[d] issues with [N.M.] at work," as N.M. had previously accused him of being on an electronic device, "berated him across the room in front of fellow employees," and a recent argument had resulted in LaPan filing a formal grievance against N.M.; N.M. had previously dated J.P., with whom LaPan had also recently been involved; LaPan told detectives he was a trained "precision marksman" and owned several firearms, including a .45 handgun; when police noticed a "deep gouge and scratches that appear[ed] to be a few days old," LaPan "advised that he had fallen through a hatch in an airplane floor on July 16" and did not seek medical attention for the cut; and two of LaPan's coworkers said they had seen LaPan fall into the hatch. The affidavit stated that after seeing the airplane hatch LaPan had fallen through, the affiant concluded "the injury on [his] left forearm is inconsistent" with him falling through the hatch. The affidavit also included LaPan's statement that he was in bed asleep with his wife from approximately 8:30 p.m. until 5:00 a.m. on the night of the murder, and that his wife corroborated the statement.

¶11 Detectives believed that "[d]ue to the evidence at the scene ... the individual who committed this homicide[ ] climbed onto the back patio roof, entered through the upstairs master bedroom" and, based on the blood found on and outside the window, "sustained injuries while going through the window." Detectives knew that DNA from the scene belonged to one male and "[i]t appear[ed] the perpetrator had some type of weapons training" due to "the skills needed to complete such precision shooting in a tactical manner." The bullet casings found at the scene were all the same "obscure brand," had "distinct extraction and ejector markings," and were fired from the same weapon. Additionally, before seeking the search warrant at issue, the detective had received information that seven months before the murder, LaPan had gone to a machine and fabrication shop where he requested equipment related to repairing a firearm suppressor.

¶12 Based on that information, detectives believed LaPan's house and vehicles may have contained evidence of N.M.’s murder, including the weapon used, "items capable of reducing the sound and recoil of a firearm," ammunition, electronic devices and cell phones, evidence from the crime scene including shards of glass, "carpet cut outs or carpet fibers," and bullet casings. Detectives also sought to search LaPan's person for DNA, fingerprints, and photographs to document his injuries. The warrant was issued and authorized the seizure of any firearms or items related to firearms, electronic devices,² any physical items and clothing "deemed relating to this crime," LaPan's DNA, fingerprints, and photographs of him, as well as forensic processing of LaPan's home and vehicles, and their contents, including carpet cut-outs, fingerprints, and DNA.

¶13 At the hearing on LaPan's motion to suppress, he argued the following omissions from the affidavit were "extremely material to the case": (1) N.M.’s neighbor, S.K., had told the detectives she saw a blonde man with a red face drive by N.M.’s house; (2) LaPan told the detectives, and his wife confirmed, he was home when the murder occurred around 4:00 a.m., as LaPan went to sleep around 8:30 p.m. and woke up at 5:00 a.m.; (3)...