Leonard v. State
| Decision Date | 26 October 2017 |
| Docket Number | Court of Appeals Case No. 49A02–1703–CR–443 |
| Parties | Mark LEONARD, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellant : Susan D. Rayl, Smith Rayl Law Office, LLC, Indianapolis, Indiana
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana
[1] Mark Leonard appeals his conviction of Class A felony conspiracy to commit murder.1 He presents two arguments for our review:
We affirm.
[2] On November 10, 2012, a house in the Richmond Hill subdivision exploded. Leonard, who lived in the house, but was not home at the time, became a person of interest. During their investigation of Leonard, police spoke with Mark Duckworth, Leonard's longtime friend. Duckworth gave police information relevant to their investigation.
[3] On December 21, 2012, police arrested Leonard in connection with the Richmond Hill explosion. The State charged Leonard with multiple crimes, including murder, conspiracy to commit insurance fraud, and arson ("Explosion Case"). The probable cause affidavit supporting these charges referenced Duckworth as "MD." (Ex. Vol. I at 221.)
[4] While awaiting trial, Leonard was housed in Cellblock 4D of the Marion County Jail. Also in Cellblock 4D was Robert Smith, who went by the nickname "Smitty." (Tr. Vol. II at 13.) In the past, Smith had worked as an informant with the Marion County Sheriff's Department ("MCSD"). On March 4, 2013, Smith sent an envelope to his police contact, MCSD Deputy Corey McGriff. Deputy McGriff was out of town, so Sergeant Cory Grogg took possession of the envelope.
[5] The envelope contained a letter and a map, and the envelope was marked, "Don't open without gloves on!" (Ex. Vol. I at 158.) The letter stated:
(Id. at 159) (errors in original). The phrase "Agree payment 180 days upon release," (id.), was in different handwriting than the rest of the letter, and there was a signature after that language. Also included was a map.
[6] At trial, the envelope, letter, and map were admitted over Leonard's objection as Exhibit 7 ("Letter Exhibit"). Duckworth identified the handwriting inconsistent with the rest of the letter and the signature to be Leonard's handwriting and signature. He also testified the map enclosed with the letter was drawn in Leonard's handwriting, depicted the area in which Duckworth lived, and included information about a white Ford Explorer that Duckworth owned.
[7] Sergeant Grogg contacted Detective Jeffrey Wager and Marion County Deputy Prosecutor Denise Robinson, who were both involved in the Richmond Hill explosion case. Detective Wager contacted Duckworth and then the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). On March 7, 2013, ATF Special Agent Jeremy Godsave met with Robinson and Detective Wager, and the group formulated a plan "to try to corroborate the—the [sic] threat of—of [sic] the murder of Mark Duckworth." (Tr. Vol. III at 46.) The group decided Special Agent Godsave would pose undercover as a hitman named "Jay." (Id. at 47.) Special Agent Godsave provided Detective Wager a phone number to give to Smith, who would then deliver it to Leonard. The phone number was to be given to Leonard to "gauge his seriousness and see if he would actually call [Special Agent Godsave] as someone that he thought would be a hit man." (Id. at 48.)
[8] On March 13, 2013, Leonard called "Jay" using Smith's jail phone PIN number. The call was recorded per standard jail procedure. He identified himself as "Mark," a friend of "Smitty's." (Ex. Vol. I at 116.) Leonard indicated to "Jay" he drew the map "Smitty's old lady" gave to "Jay." (Id.) Leonard and "Jay" then discussed parts of the map and the area depicted on the map. Leonard told "Jay" he had known the person referenced on the map, "for 25 years, he's just blabbing like a mother fucker." (Id. at 125.) Leonard told "Jay" he wanted "this thing" done "[y]esterday." (Id. at 126.) The discussion of the act continued:
(Id. at 127–8) (errors in original). "Jay" told Leonard to call him the next day to confirm the plans.
[9] On March 14, 2013, Leonard called "Jay" again, using Smith's jail phone PIN number. The call was recorded per standard jail procedure. "Jay" indicated he went to "where dude [sic] lives" and "there's a sign that says like no ‘something’ on the fence, right there by his car." (Id. at 136.) Leonard told "Jay" the sign said, "Verboten, it means no trespassing in German, or something." (Id.) Leonard and "Jay" went on to discuss the murder:
(Id. at 138–9) (errors in original). Leonard told "Jay" he would "need a throw away—and um, just make sure the gun is either missing all the other bullets or just missing one, because he's going to have one shot to the head." (Id. at 141.) Leonard also suggested "Jay" threaten the victim's parents so the victim would say the sentences on the 911 call. Finally, Leonard and "Jay" discussed payment, and Leonard told "Jay" he would "give [him] an extra 5 ... cause this is going to make a big difference right here[.]" (Id. at 144.) At trial, Duckworth confirmed many of the details that were discussed in the phone calls, including the placement of the "Verboten" sign.
[10] On March 25, 2013, Smith was moved to Cellblock 4F while Leonard remained in Cellblock 4D. On March 27, Leonard wrote a letter to Smith:
(Id. at 162) (errors in original). Leonard's DNA was found on the letter and Duckworth testified the letter was in Leonard's handwriting.
[11] Smith was released from jail on March 28, 2013. He pled guilty to the charges in his pending criminal cases, and the ATF paid him $5,000.00 for his cooperation in the investigation against Leonard. On March 29, Leonard's letter to Smith was returned to the jail marked, "RETURN TO SENDER NO SUCH NUMBER UNABLE TO FORWARD[.]" (Id. at 163.) Sergeant Grogg took possession of the letter shortly after it was returned.
[12] The State charged Leonard with Class A felony conspiracy to commit murder. Leonard filed a motion to suppress on State Constitutional grounds the jail calls from March 13 and 14 ("Jail Phone Calls"), and the trial court denied his request following a suppression hearing. On January 30 and 31, 2017, the trial court held a jury trial. At trial, Leonard objected to the admission of the Jail Phone Calls, on grounds different than those set forth in his motion to suppress. After the Jail Phone Calls were admitted, Leonard belatedly renewed his...
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