State v. Lowry

389 So.3d 261

23-392 (La.App. 5 Cir. 5/15/24)

STATE of Louisiana

v.Leonidas LOWRY aka "Chico"

NO. 23-KA-392

Court of Appeal of Louisiana, Fifth Circuit.

May 15, 2024

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 16-7077, DIVISION "D", HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, LA, Thomas J. Butler, Andrea F. Long, Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLANT, LEONIDAS LOWRY, Bertha M. Hillman

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst

GRAVOIS, J.

₁Defendant, Leonidas Lowry a/k/a "Chico," appeals his conviction and sentence for second degree murder. There is only one issue on appeal: Did the trial court err in denying defendant’s motion to suppress evidence extracted from his cell phone? We conclude, based on a plain reading of La. C.Cr.P. art. 163, the pertinent statute, the trial court properly denied the motion to suppress the contents of the cell phone. We affirm defendant’s conviction and sentence. We remand the matter for correction of the Uniform Commitment Order and the sentencing minute entry, as noted below in our Errors Patent Review.

PROCEDURAL STATUS

In 2017, a Jefferson Parish Grand Jury indicted defendant, Leonidas Lowry a/k/a "Chico," with the second degree murder of Ethan Allen, in violation of La. R.S. 14:30.1. Defendant pled not guilty at his arraignment.

The bill of indictment also charged Steven R. Tate Jr., a/k/a "Bubba," with the second degree murder of Mr. Allen and with conspiracy to commit an armed robbery of Mr. Allen, along with defendant, "A.L.," and other persons, in violation of La. R.S. 14:26 and 14:64. In a separate trial, Tate was convicted of second degree murder. This Court upheld Tate’s conviction. See State v. Tate, 22-570 (La. App. 5 Cir. 6/21/23), 368 So.3d 236. The State’s theory of the case against defendant was that he was a principal with Steven Tate to second degree felony murder (armed robbery) of Mr. Allen.

In due course, defendant filed a motion to suppress the evidence extracted from his cell phone. After a hearing, the trial court denied the motion.

On March 23, 2022, a jury found defendant guilty as charged. The trial court sentenced defendant to life imprisonment without the benefit of probation or suspension of sentence.¹ In May 2023, the trial ₂court granted defendant an out-of-time appeal. On appeal, defendant argues the court erred in denying his motion to suppress extractions from his cell phone.

FACTS ESTABLISHED AT TRIAL

During the evening of November 29, 2016, Gerald Katicich heard gunshots outside his home at 801 Gulf Drive in Gretna. Specifically, he heard a couple of shots from one gun, a slight pause, and then a return of gunfire from another gun. Mr. Katicich went outside and heard people across the street yelling: "He’s been hit!" Mr. Katicich then observed a car swerving down the street. He got into his truck and followed the swerving car as he called 9-1-1. The car he was following eventually stopped against a traffic sign. As Mr. Katicich approached the car, Officer Corey Boudreaux with the Gretna Police Department arrived.

Officer Boudreaux saw the driver, later identified as Ethan Allen, gasping for air. Mr. Allen had a cell phone and cash on his lap. Officer Boudreaux placed the cell phone and cash on the dashboard and removed Mr. Allen from the car. Mr. Allen stopped breathing once he was removed from the car. Officer Boudreaux performed CPR on Mr. Allen as other officers arrived.

Dr. Dana Troxclair, a forensic pathologist, established that Mr. Allen died from a single gunshot wound that entered his right lateral chest and exited his back. She explained the lack of searing, soot, and stippling indicated it was a distant-range gunshot wound, which is "over two to three feet" from the firearm.

Casings and a gun were found in the back seat of the car. The rear passenger window was shattered and there was glass inside the car, No "weed" was found in the car.² A search warrant of the car ₃was obtained and executed and the following items were recovered: a Smith and Wesson 40 caliber firearm, a projectile located in the passenger front door, and eight spent casings—seven from inside of the vehicle and one from underneath Mr. Allen. Mr. Allen’s phone and $7 were also recovered in the vehicle, and $93 was found on Mr. Allen’s person.

Kremly Marrero, who lived at 803 Gulf Drive, also heard gunfire—"Pom! Pom!" a pause, and then "Pom! Pom! Pom! Pom! Pom!"—around the same time Mr. Katicich did. Mr. Marrero went outside and saw a young man screaming that his friend had been shot. He ran across the street to 812 Gulf Drive and attended to a person, whom he described as being "hit everywhere." Defendant was also present at that time. The Gretna police arrived within minutes.

Officer Damond Bartlett with the Gretna Police Department approached the carport area of 812 Gulf Drive where Steven Tate (also called "Bubba"), who had been shot, was located. EMS took Tate to the hospital for multiple gunshot wounds. Evidence from the roadway where the incident occurred, including two 45 caliber shell casings, projectiles, and automotive glass, was collected. A .45 caliber Springfield Armory 1911 handgun was located in the back yard of 810 Gulf Drive, and a Sig Sauer 9 mm firearm was found on top of a utility shed in the rear of 812 Gulf Drive.

Authorities executed a search warrant of 812 Gulf Drive, defendant’s residence, on the night of the incident. Two phones located on the sofa were recovered, as well as a 9 mm Taurus Millennium firearm found between the fitted sheet and mattress in defendant’s bedroom.

That night, the Gretna Police Department took defendant to the police station where he gave two recorded statements to the police. Defendant’s grandmother, Debra Lowry, was also present. After advising him of his Miranda³ rights, Detective Ralph Dunn with the Gretna Police Department took defendant’s first recorded statement. ₄Defendant told Detective Dunn that he and Tate were standing on his porch after walking outside to smoke a cigarette when Tate received a phone call. Defendant was texting while Tate walked up and down the driveway and sidewalk and talked on the phone. During this time, defendant’s family and his friend, Treven Vinet, were inside. Defendant stated he saw a dark, grayish-blueish four-door SUV pass by and slow down by Tate in front of a neighbor’s house. The front passenger window of the car rolled down and defendant heard at least six shots and saw a flame. He ran toward his porch, and as he looked back, he saw Tate coming towards him. Tate was screaming and told him to call an ambulance. Defendant and his grandmother called 9-1-1. When the detective asked who started shooting at the car, defendant said something indiscernible and then, "Bubba ain’t start shooting at the car." Later in his statement, defendant stated he saw Tate return fire at the car. Defendant denied firing any weapons during the incident. Defendant also denied Tate was dealing "dope." Defendant acknowledged he knew Tate to carry a gun. Defendant said Tate had previously been charged with attempted murder and speculated this shooting was in retaliation.

Defendant stated he saw Tate and Treven with three guns that day and earlier he "played" with all three guns in his backyard. Tate had a black .45 with a wooden grip and the brand was "something armory," and Tate also had a black 9 mm Millennium. Treven had a black 9 mm Sig Sauer. Defendant thought the two guns found outside were placed there by Treven. He said Treven was asking for the guns and looking for them as defendant cared for Tate. Defendant also said Tate must have thrown his gun when he ran to the porch where he collapsed.

Detective Dunn obtained video surveillance from the Jefferson Parish Sheriff's Office ("JPSO") uniform shop located at the end of Gulf Drive where the victim, Mr. Allen, was located. He also obtained video from 1121 8th Street, which is in the area of 812 Gulf Drive where Tate was located. He explained the video showed two people exit the porch area of 812 Gulf Drive and approach the street prior to when the victim’s Honda CRV approached down Gulf Drive. ₅A few minutes later, two people ran from the street back to the porch area of 812 Gulf Drive. Because defendant’s statement, that he was under the carport when Tate ran back, did not match the video, Captain Jerry Broome interviewed defendant a second time that same night.

Captain Broome learned that defendant, his grandmother, his two sisters,⁴ Tate, Treven, and Chris Cross were at the house on the day in question. Defendant told Detective Broome that Tate and Treven brought the three guns to the house and were showing him the guns in the back yard. After Chris arrived, they went inside and played video games. Shortly before the incident, Treven gave him the Millennium gun found in his bedroom. After defendant’s sisters arrived, Tate called Mr. Allen. Mr. Allen went to his house because he was supposed to sell Tate "weed."

Defendant and Tate went outside to wait for Mr. Allen, the victim. Everyone else was inside. Defendant had the Millennium firearm with him and Tate had the Springfield .45 firearm on his person. Mr. Allen pulled up one house down. As defendant stood under the carport, Tate went to the car. Tate acted like he was going to get in the back passenger side, but then he closed the door and got in the front. As Tate exited the car, defendant heard shots. He thought Tate shot first and Tate was outside the car when he fired two or three times. The person inside the car returned fire. Defendant turned around to run inside, but Tate ran to him before he made it inside. At that point, Treven was outside trying to find Tate’s gun. Defendant and his grandmother called the police, and as the police arrived, his grandmother told them the...