By Kat Cisar
kcisar@
themonroetimes.net
MADISON — The state Court of Appeals has affirmed the convictions of a man sentenced for the 2017 death of 70-year-old Juda resident Dave Leck in a head-on crash along Wisconsin 11.
Nathan L. Leopold, 47, was sentenced to 15 years in prison in July 2019 after pleading no contest to a felony charge of homicide by operation of a motor vehicle, with a detectable amount of restricted controlled substance in his blood. He also pleaded no contest to a misdemeanor charge of operating a motor vehicle with a detectable amount of restricted controlled substance in his blood, causing injury to a minor.
Leopold then sought to appeal his convictions, under a state law that permits appeal of certain circuit court decisions even after a defendant pleads guilty or no contest.
His attorney, Steven Zaleski, argued that Green County Judge Thomas Vale erred in his decision not to suppress statements Leopold made to police in the aftermath of the Oct. 20, 2017 crash that killed Leck and injured Leck’s only passenger, his 12-year-old granddaughter.
Leopold answered questions while lying on a gurney in an ambulance receiving treatment at the crash scene and later in his hospital room, according to transcriptions of body camera footage included with Zaleski’s appeal.
The problem, Zaleski maintains, is that the Green County deputy who asked the questions did not first read Leopold his Miranda rights warning (“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney”).
The deputy, Joshua Mayer, climbed into the back of the ambulance and said, “Nate, we found your pipe and your weed in your vehicle. When’s the last time you smoked?” Leopold replied, “Oh, earlier today.” When asked to clarify a time, Leopold replied that it was 2 p.m., about four hours before the crash.
Later, from his hospital bed, Leopold told Mayer he’d “just had two beers with supper” at a pub in Monroe.
Mayer did eventually read Leopold his Miranda rights, at the end of their interaction at the hospital, in connection to questions for an alcohol and drug influence report, but after his other questions of Leopold and after getting Leopold’s consent for a blood draw.
It was also near the end of their interaction when Leopold learned the crash had been fatal. Mayer mentioned that Leopold’s citation for operating while intoxicated “will be amended in court to a fatal, OWI causing fatal injury.”
“What?” Leopold asked, confused. Mayer explained that the other driver had died. “Oh no,” Leopold responded. “A person died?”
Judge Vale denied Leopold’s motion to have his statements to Mayer suppressed, saying, “Suppression is a remedy if there is a violation of some constitutional provisions, but I simply don’t believe that it exists under those circumstances.”
Zaleski argued, however, that Mayer’s questioning “cannot be characterized as routine, general questioning directed to a citizen at the scene of an accident” but rather “was specifically and intentionally carried out with the purpose of extracting an admission from Leopold.”
Body camera footage from the scene shows officers discussing that they would initially cite Leopold with a “straight OWI” and they expected the charge would be amended to a homicide by the district attorney.
“The words and actions of the officers communicated their belief that Leopold had committed a crime, that he was the only suspect and that he would be charged,” Zaleski wrote.
“It is significant that Leopold, upon hearing the Miranda warnings finally read by Mayer, did not waive his rights. It is significant that Leopold refused to sign the waiver form, and refused to submit to questioning.”
The “the logical inference,” Zaleski added, is that if Mayer had provided Leopold with his Miranda warnings prior to any questioning, Leopold would not have agreed to the questioning and would have exercised his rights to remain silent and to have counsel.
Mayer was being deceptive and had a “strategic motive for intentionally waiting to provide the Miranda warnings,” Zaleski wrote. Zaleski also argued that evidence from the blood draw should be suppressed.
But the Court of Appeals sided with Vale. The court’s opinion was filed Aug. 20 by judges Michael Fitzpatrick, Brian Blanchard and Rachel Graham.
The judges concluded that “under the totality of the circumstances both in the ambulance and at the hospital ... Leopold was not in custody under applicable constitutional standards” and therefore no Miranda warnings were necessary.
The judges acknowledge that Leopold was immobilized due to his injuries. However, “the deputy acted in a low-key and courteous manner” and did not coerce Leopold or enlist the help of medical personnel in coercing Leopold.
The judges note that the questioning occurred in a “neutral setting” — not under arrest or in custody — and that Leopold readily answered the deputy’s questions.
“Leopold decided to terminate the interrogation when he did based on his own subjective views in the moment; a reasonable person would have known that he or she had been free to do so at any earlier point,” the judges wrote.
Leck is not the first person to die in a crash involving Leopold.
In April 2002, Leopold hit a jogger along a Dane County road. He kept driving. The body of Aimee Kubler, 28, was found by her husband and brother in a ditch. Police found her blood on the front of Leopold’s truck.
At his sentencing in 2003, Leopold said he was under the influence of alcohol at the time of the accident and hadn’t realized he hit Kubler but insisted he would have stopped had he known. Police didn’t locate Leopold until three days after that crash. He was sentenced to seven years in prison and in a related bail jumping case also received a lengthier probation, which he was still serving at the time of the accident that killed Leck.