State v. Lemons, 19-1024

• Decision Date: 23 March 2021
• Docket Number: No. 19-1024,19-1024
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Roger Lee Lemons, Jr., Defendant Below, Petitioner
• Court: West Virginia Supreme Court

State of West Virginia, Plaintiff Below, Respondent v. Roger Lee Lemons, Jr., Defendant Below, Petitioner

No. 19-1024

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

March 23, 2021

(Mercer County 18-F-148-WS)

MEMORANDUM DECISION

Petitioner Roger Lee Lemons, Jr., by counsel David B. Kelley, appeals from the Circuit Court of Mercer County's August 9, 2019, order memorializing the jury verdict and the circuit court's October 8, 2019, order denying his motion for a new trial. The State of West Virginia, by counsel Andrea Nease Proper, filed a response in support of the circuit court's orders.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

On December 23, 2017, Angela Seal obtained an emergency domestic violence protective order ("DVP") against petitioner, her boyfriend, noting that he had threatened to strangle her. Petitioner, who had been living with Ms. Seal, was served with the DVP on that same day, and he was escorted out of the apartment by law enforcement.

On December 24, 2017, Ms. Seal's cousin could not reach her by phone. Ms. Seal's cousin went to Ms. Seal's residence the following day. Upon his arrival, the cousin discovered Ms. Seal's body and reported his findings to the police. Responding officers from the West Virginia State Police ("WVSP") came to the residence to secure the scene. The medical examiner also came to the scene and transported Ms. Seal's body to Princeton Community Hospital for further examination.¹

In addition to the WVSP, the Princeton Police Department also responded to the scene. Officers from both departments conducted a search of the residence and the surrounding areas, including the alleyway behind the residence. During their investigation, officers uncovered a knife handle and a blade that fit the handle, Ms. Seal's keys, and the remains of Ms. Seal's cell phone, which were scattered in the alley behind the residence. The investigating officers also spoke with a neighbor who saw petitioner at the residence after he was served with the DVP.

Petitioner voluntarily went to the police department on Christmas Day. After being given his Miranda warnings,² he gave a statement to the officers and allowed the officers to view the contents of his cell phone. Petitioner did not volunteer any information relevant to the murder investigation and was not detained or under arrest at that time.

Petitioner was arrested the following day, on December 26, 2017, on several charges, including outstanding warrants for public intoxication, failure to pay a child support obligation, and violation of the DVP obtained by Ms. Seal. After he was arrested, he was not processed immediately, but instead was held until the lead investigator returned to the police department. Before petitioner received any Miranda warnings on December 26, 2017, he made several statements which are at issue on appeal as to his DNA being on the victim's keys and on the murder weapon. The lead investigator asked petitioner to submit to a cheek swab and fingernail scraping, and petitioner consented.

Petitioner was indicted on June 12, 2018, on one count of violation of a protective order, one count of strangulation, and one count of first-degree murder. Petitioner moved to sever the DVP violation from the remaining counts, arguing that evidence from this count would be prejudicial to petitioner if it was not severed from the other counts. The court denied petitioner's motion to sever reasoning that "I think in the murder case [the State is] entitled to get into that as part of the motive."

Petitioner also filed motions to exclude or suppress evidence, and several hearings were held on the suppression issues. First, petitioner moved to exclude information obtained from his cell phone, arguing that the phone was searched without his permission and then seized, making the information that was later obtained pursuant to a search warrant the fruit of the poisonous tree, due to the initial illegal search. Petitioner maintained that the officers did not know that there was any evidence on the phone that was at risk of being destroyed.

At a hearing on October 19, 2018, Detective Butler from the WVSP testified that he seized petitioner's cell phone to prevent the destruction of evidence due to exigent circumstances after petitioner voluntarily gave him the phone to review because petitioner was a prime suspect in the murder investigation. Another officer testified that petitioner allowed them to review the contents of the phone and noted that all call logs and all but one text message had been deleted. The officer testified that he seized the phone to prevent the destruction of further evidence on December 25, 2017. Although petitioner had allowed the investigating officers to view his phone, he did not agree to the seizure of the phone. However, the phone was not formally searched until after a search warrant was obtained.

Petitioner also moved to exclude statements that he made to the investigating officers due to the prompt presentment rule. He maintained that he was kept in custody for several hours while the officers were attempting to obtain a confession from him, despite the fact that he had requested an attorney. The State argued that for the prompt presentment rule to apply, the purpose of the delay had to be to obtain a statement, which did not occur in this case. Specifically, when petitioner gave Detective Butler permission to obtain a DNA swab, the officer told petitioner that Ms. Seal's keys were found to which petitioner responded that his DNA would be on the keys because he also used them.³ Also, Detective Butler told petitioner that the murder weapon was found, to which petitioner replied that his DNA would be all over Ms. Seal's knives, although petitioner had not been told that the murder weapon was a knife. The officer testified that he was not asking petitioner questions but was responding to petitioner's questions about the investigation. Petitioner maintained that although the officer was not technically asking him questions, he was offering details of the investigation and eliciting responses, which is the same thing.

When the circuit court examined the suppression issue, it found that because petitioner was clearly in custody on December 26^th, the issue was whether petitioner was interrogated. After thoroughly considering the testimony, the court found that petitioner was not being interrogated by the officer at the time that he gave his statements and therefore he did not require a Miranda warning. Additionally, the circuit court examined petitioner's prompt presentment argument and found that petitioner was arrested in the early morning but was not presented to the magistrate until the evening. However, the court found that the primary reason for the delay in presentment was not to obtain a statement, as Detective Butler did not question petitioner. Thus, the circuit court found there was no prompt presentment violation.

Petitioner's case was tried to a jury in August of 2019. He was convicted of second-degree murder and violation of a protective order; the resulting order was entered on August 9, 2019. On September 9, 2019, he filed a motion for judgment of acquittal notwithstanding verdict and/or new trial. This motion was denied by order entered on October 8, 2019. Petitioner appeals from these orders.

On appeal, petitioner raises multiple assignments of error. He argues that the circuit court erred when it made several evidentiary rulings. Initially, he alleges that the circuit court erred when it admitted his cell phone information and records, his statement to police, and prejudicial assumptions made by witnesses. Next, petitioner argues that the circuit court erred when it denied his motion to sever the offense of violation of a protective order from the other charges in the indictment. Further, he claims that there was insufficient evidence presented to the jury to justify his second-degree murder conviction. Finally, he contends that the circuit court erred in denying his motion for a new trial. We will address these issues in turn.

On appeal, petitioner claims that the circuit court erred when it admitted testimony and evidence concerning his cell phone at the trial of this matter. Petitioner concedes that he allowed the officers to review his phone but contends that he did not authorize the officers to seize thephone. Thus, he argues that "[a]ny and all evidence obtained from [petitioner's] cell phone including, but not limited to, call logs, text messages, tracking [petitioner's] movements via third-party cell towers, any opinions or testimony by any and all police officers as to information being deleted from the cell phone, and all other information recovered from the cell phone should have been excluded."

We have stated that "[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syl. Pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998).

We recently addressed the seizure of a phone in State v. Deem, ___ W. Va. ___, 849 S.E.2d 918 (2020). In Deem, unlike the present case, petitioner refused to give officers the phone when they asked. However, this case is analogous to Deem in that both petitioner and Mr. Deem sought return of the phone. The officers in Deem believed that seizure of the phone was necessary to prevent destruction of potential evidence. On appeal, we found that exigent circumstances existed that would lead a...