                                                                                 FILED
                                                                             Oct 26 2017, 8:42 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Susan D. Rayl                                              Curtis T. Hill, Jr.
Smith Rayl Law Office, LLC                                 Attorney General of Indiana
Indianapolis, Indiana
                                                           Jodi Kathryn Stein
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Mark Leonard,                                              October 26, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1703-CR-443
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Sheila A. Carlisle,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           49G03-1303-FA-20360



May, Judge.




Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017                           Page 1 of 17
[1]   Mark Leonard appeals his conviction of Class A felony conspiracy to commit

      murder. 1 He presents two arguments for our review:


                 1. Whether the trial court abused its discretion when it admitted
                 Exhibits 3 and 4 because the admission violated Leonard’s right
                 to counsel under Article 1, Section 13 of the Indiana
                 Constitution; and


                 2. Whether it was fundamental error when the trial court
                 admitted Exhibit 7, a letter containing a map to Mark
                 Duckworth’s house.


      We affirm.


                                Facts and Procedural History
[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




      1
          Ind. Code § 35-42-1-1 (2007) (murder); Ind. Code § 35-41-5-2(a) (1977) (conspiracy).


      Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017                 Page 2 of 17
      (“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:


              Hey,


              A friend of mine is in jail Because, of Mark Duckworth. He’s
              running his jaws on Lynard, Gill, and all of Mark’s friends.


              Mark wants an accident to happen to Duckworth.


              He doesn’t want Duckworth to show up for court or show up at
              all. 


              He’s telling on them now. He might tell on you next who knows.


              Lynard will pay $15,000 for this accident.




      Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 3 of 17
              Mark is also drawing a map to show you were Duckworth lives.
              Its in closed.


              After this accident happens let us know. Mark said he would pay
              the $15,000 like this


              Agree payment 180 days upon release.


      (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

      Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 4 of 17
      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:


              [Leonard]: See. I know it’s hard -- I know it’s hard to
              understand but like, um, if -- if -- if I was in your shoes and you
              know somebody was telling me and I looked at this situation, I’d
              have to scope it out too but -- like let me tell you on the -- on the
              scale of one to ten, how easy it will be? It’ll be a, um--


              [“Jay”]: Yup.


              [Leonard]: --It’ll be a ten, it’s that easy cause there nobody
              around there, you know?


      Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 5 of 17
        [“Jay”]: Yeah. You want a -- you want me to -- you want me to
        send a message or anything like that?


        [Leonard]: Nope.


        [“Jay”]: Okay.


        [Leonard]: Hell no. Just make --


        [“Jay”]: You just want it quick and quiet and shit?


        [Leonard]: Yep. Yeah, just, uh --


        [“Jay”]: You don’t want the mother fucker to suffer?


        [Leonard]: No, fuck it. That takes too much time.


        [“Jay”]: Dude, I enjoy that shit, though.


        [Leonard]: Get it over with. Well, if you wanna. (Laughing).


        [“Jay”]: Alright.


        [Leonard]: (Laughing).


        [“Jay”]: I’ll bring your ass a souvenir if you want.


        [Leonard]: Yeah, I want me -- reading in the paper will be
        enough.




Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 6 of 17
      (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:


              [Leonard]: But here’s the thing. I wanna make it look like, um --
              um -- you asked me last night about how I want to do it.


              [“Jay”]: Yeah.


              [Leonard]: Wanna make it -- I want to make it look like a
              suicide.


              [“Jay”]: Ah, for real.


              [Leonard]: Yeah, because if -- see this way, it will get me out of
              jail pretty much instantly -- if you have him call 911 from his, like
              cell phone . . .


              [“Jay”]: Yeah.


              [Leonard]: Right before you do it -- and write -- I got three
              sentences that I wrote down -- and if you just have him say these
              three sentences inside that 911 call right before, it’ll get me out of
              here quick.

      Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 7 of 17
        [“Jay”]: No shit? What do you want him to say?


        [Leonard]: I want him to say, “I did not mean to frame Mark
        and Moncie for their own house in Richmond Hills” -- then the
        other sentences, “there are large amounts of money he always
        leaves laying around, and that’s what bought -- bought a lot of
        drugs and whores -- um -- um, three sentences, but if he says that
        dude, they’ll let me out of here fucking within a couple days I
        bet.


        [“Jay”]: Alright, comment again on that so I get it down right,
        you know what I mean?


        [Leonard]: Yeah, okay, yeah I hear you bro. Alright, “I did not
        mean to frame Mark and Moncie for their own house in
        Richmond Hills.”


        [“Jay”]: Moncie?


        [Leonard]: Moncie, M-O-N-C-I-E, that’s my ole lady’s name.


        [“Jay”]: Okay, “I did not mean to frame Mark and Moncie for .
        . .”


        [Leonard]: “There own house in Richmond Hills.”


(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

Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 8 of 17
       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:


               Hey there bro.


               Still no word of anything. I can’t really talk about it yet. Can
               you send me something. I owe you a bike when this is over. If
               already done I need something. Please don’t let me down.


               Mark


       (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

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 9 of 17
       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

       objection to the admission of the Jail Phone Calls based on State Constitutional

       grounds. He also objected to the admission of the Letter Exhibit, which

       included the envelope, letter, and map that Smith gave to Sergeant Grogg.


[13]   The jury found Leonard guilty as charged. On February 8, 2017, the trial court

       sentenced Leonard to fifty years incarcerated.



                                   Discussion and Decision
                                       I. General Standard of Review

[14]   We review rulings regarding the admission of evidence for an abuse of

       discretion, which occurs “when a decision is clearly against the logic and effect

       of the facts and circumstances before the court.” Johnson v. State, 992 N.E.2d

       955, 957 (Ind. Ct. App. 2013), trans. denied. We do not reweigh the evidence or

       assess the credibility of witnesses. Id. Instead, we “consider conflicting

       evidence in a light most favorable to the trial court’s ruling.” Id.


                                              II. Jail Phone Calls

[15]   Leonard concedes he did not timely object at trial to the admission of the Jail

       Phone Calls with “Jay” on State Constitutional grounds, which is the crux of

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 10 of 17
       his argument on appeal. Thus, he must demonstrate fundamental error. See

       Taylor v. State, 687 N.E.2d 606, 609 (Ind. Ct. App. 1997) (defendant who does

       not object at trial waives any claim of error on appeal unless the error is

       fundamental), trans. denied. Fundamental error is a “blatant violation of basic

       principles, the harm or potential for harm is substantial, and the resulting error

       denies the defendant fundamental due process.” Kimbrough v. State, 911 N.E.2d

       621, 634 (Ind. Ct. App. 2009). The fundamental error exception is extremely

       narrow. Id.


[16]   Leonard argues the admission of the Jail Phone Calls violated his right to

       counsel under Article 1, Section 13 of the Indiana Constitution. 2 Our Indiana

       Supreme Court examined facts very similar to this case in Jewell v. State, 957

       N.E.2d 625 (Ind. 2011). In that case, Jewell was arrested and charged with

       Class A misdemeanor tattooing a minor for taking his stepdaughter, T.S., to get

       a tattoo. The alleged tattooing incident occurred in August 2008. While those

       charges were pending T.S. divulged she had a sexual relationship with Jewell

       from 2004 to 2007, starting when she was thirteen years old.


[17]   A detective arranged for T.S. to call Jewell in an effort to obtain evidence for

       the sexual misconduct allegations. The detective recorded the phone calls, was

       present during the calls, and “prompted T.S. with notes on things to say and




       2
        Our Indiana Supreme Court addressed the admissibility of the Jail Phone Calls under a Sixth Amendment
       analysis in Leonard v. State, 73 N.E.3d 155, 165-8 (Ind. 2017). In that case, the Court held Leonard’s Sixth
       Amendment right to counsel had yet to attach to the conspiracy charge because it was a separate offense for
       which he had not been charged. Id. at 168.

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017                      Page 11 of 17
       questions to ask.” (Id. at 628.) During the conversation, Jewell mentioned the

       pending misdemeanor charge and that he had retained an attorney, but he also

       made several incriminating statements about the alleged sexual misconduct.

       Based thereon, the State charged Jewell with multiple sex-related crimes.


[18]   Jewell moved to suppress the statements made in the phone calls with T.S. on

       the grounds they violated his right to counsel under the Sixth Amendment and

       Article 1, Section 13 of the Indiana Constitution. The trial court denied his

       motion to suppress and overruled his renewed objection to the admission of the

       evidence at trial. The trial court found Jewell guilty, and he appealed, alleging

       the trial court abused its discretion when it admitted the statements in the

       phone calls with T.S. because they violated his right to counsel under the Sixth

       Amendment and Article 1, Section 13 of the Indiana Constitution.


[19]   Our Indiana Supreme Court held, based on Texas v. Cobb, 532 U.S. 162 (2001),

       that the Sixth Amendment right to counsel had not yet attached at the time of

       the phone calls with T.S. because the protection is specific to the offense. See

       Jewell, 957 N.E.2d at 629 (Protections under the Sixth Amendment “are

       ‘offense specific,’ [and] do not attach until formal commencement of

       adversarial proceedings, and ‘cannot be invoked once for all future

       prosecutions.’”) (quoting, in part, Cobb, 832 U.S. at 175). However, the Court

       also noted two exceptions to the “offense specific” nature of the Sixth

       Amendment - the “inextricably intertwined” exception and the “circumvention

       of Sixth Amendment right” exception. Id. (citing Brewer v. Williams, 430 U.S.

       387 (1977), reh’g denied, and Maine v. Moulton, 474 U.S. 159 (1985)).

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 12 of 17
[20]   After concluding Jewell’s statements did not fall within either of those

       exceptions for the purposes of his Sixth Amendment right to counsel, the Court

       moved on to an analysis of Jewell’s right to counsel under Article 1, Section 13

       of the Indiana Constitution. In doing so, the Court noted, as a preliminary

       matter, Indiana courts have long held


               the Indiana Constitution provides a more protective right to
               counsel than the Sixth Amendment, specifically in that Indiana’s
               constitutional right - contrary to the Sixth Amendment - can
               attach “prior to the filing of formal charges against the
               defendant,” but both provisions “guarantee the right to counsel at
               any critical stage of prosecution where counsel’s absence ‘might
               derogate from the accused’s right to a fair trial.’”


       Id. at 634 (citations omitted). However, it recognized the holding in Hall v.

       State, which treated Article 1, Section 13 of the Indiana Constitution as “offense

       specific” like the federal right. 870 N.E.2d 449, 460 (Ind. Ct. App. 2007), trans.

       denied. The Court then examined the question, “does the ‘inextricably

       intertwined’ exception have a place within Indiana’s constitutional

       protections?” Jewell, 957 N.E.2d at 634.


[21]   Holding the “inextricably intertwined” exception does apply to Article 1,

       Section 13 of the Indiana Constitution, our Indiana Supreme Court set forth

       factors to determine whether that exception applies to the “offense specific”

       nature of an Article 1, Section 13 right to counsel challenge.


               The “inextricably intertwined” exception to the general rule that
               Section 13’s right to counsel protection is offense specific applies
               when it was objectively foreseeable that the pending offense, for
       Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 13 of 17
               which the right to counsel has already attached, was so
               inextricably intertwined with the offense under investigation that
               the right to counsel for the pending offense could not be
               constitutionally isolated from the right to counsel for the offense
               under investigation. The inquiry focuses on the nature of the
               conduct involved rather than on the elements of the offenses. A
               reviewing court must examine and compare all the facts and
               circumstances - as known at the time of the investigation - related
               to the conduct, including the nature of the conduct, the identity
               of the persons involved (including the victim, if any), and the
               timing, motive, and location of the crimes.


               None of those factors is particularly dispositive, nor do all factors
               need to tip in favor of the exception for it to apply. However, the
               greater the commonality of the factors and the more directly
               linked the conduct involved, the more likely it is that the two
               offenses are “inextricably intertwined.”


       Id. at 635-6. We now turn to these factors as applied to the case before us.


[22]   In the Explosion Case, it is undisputed the right of counsel had attached.

       Leonard was accused of arson, insurance fraud, and murder in a plot to blow

       up his girlfriend’s house in order to collect insurance money. Leonard carefully

       planned the manner in which the explosion would occur, as well as seemingly

       plausible alibis for himself and his girlfriend. The crime involved multiple

       actors, including Leonard and his girlfriend. The victims of that crime were

       many - two people who were killed as a result of the explosion and many others

       in the neighborhood who sustained property damage.


[23]   In the case at issue here, Leonard conspired with “Jay” to kill Duckworth

       before he could be a witness against Leonard. Leonard also believed

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 14 of 17
       Duckworth’s death would result in his release from jail. Leonard called “Jay”

       twice using Smith’s jail phone PIN number, discussed the map he drew to

       Duckworth’s house and details about Duckworth’s house, suggested ways to

       kill Duckworth, and told “Jay” what Duckworth should say to authorities prior

       to his staged suicide.


[24]   Leonard’s arguments complicate a very simple analysis. He attempts to attach

       a right to counsel based on the fact the detective investigating the murder for

       hire plot knew Leonard was in jail and had counsel for the explosion-related

       charges. He then asserts the State’s mention of the explosion case during the

       murder-for-hire case indicated the interweaving of the offenses. They are

       related, however, only to the extent that but for his commission of one crime,

       Leonard would not have attempted to commit another.


[25]   Considering “all the facts and circumstances - as known at the time of the

       investigation - related to the conduct, including the nature of the conduct, the

       identity of the persons involved (including the victim, if any), and the timing,

       motive, and location of the crimes[,]” as set forth in Jewell, 957 N.E.2d at 635,

       the two cases are not inextricably intertwined. Thus, Leonard’s Article 1,

       Section 13 right to counsel did not attach in the murder-for-hire case. To hold

       otherwise would frustrate the police’s “interest in investigating new or

       additional crimes after an individual is formally charged with one crime.” Hall,

       870 N.E.2d at 461. Further, “[t]he right to counsel is a shield against what may

       well be the coercive influences of the State. The rule’s salutary function cannot

       be distorted to immunize one represented by an attorney against investigative

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 15 of 17
       techniques that capture a new crime in progress.” People v. Ferrara, 430 N.E.2d

       1275, 1279 (N.Y. 1981).


                                                   Letter Exhibit

[26]   Leonard argues the trial court abused its discretion when it admitted the Letter

       Exhibit, which included an envelope, the letter indicating Leonard would like

       Duckworth killed, and a map to Duckworth’s house, because “(1) it was not

       property [sic] authenticated, (2) hearsay not falling within an exception, and (3)

       violated his constitutional right to confront and cross-examine a witness against

       him.” (Br. of Appellant at 12.)


[27]   We need not decide whether the challenged statements were hearsay or were

       improperly admitted, as any such error was harmless. Errors in the admission

       of evidence “are to be disregarded as harmless unless they affect the substantial

       rights of the party.” Mathis v. State, 859 N.E.2d 1275, 1280 (Ind. Ct. App.

       2007). An error in the admission of evidence may be harmless when the

       evidence is merely cumulative of other properly admitted evidence. Id.


[28]   Here, the Letter Exhibit contained information discussed in the Jail Phone

       Calls, such as the location of Duckworth’s house and the amount of money

       Leonard offered “Jay” to kill Duckworth. As we have determined the Jail

       Phone Calls were properly admitted, any error in the admission of the Letter

       Exhibit is harmless because the information included therein was cumulative of

       other properly admitted evidence, including the Jail Phone Calls.




       Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 16 of 17
                                                Conclusion
[29]   The trial court did not commit fundamental error when it admitted the Jail

       Phone Calls because they were not obtained in violation of Leonard’s right to

       counsel under Article 1, Section 13 of the Indiana Constitution. In addition,

       any error in the admission of the Letter Exhibit was harmless because the

       information contained therein was merely cumulative of other properly

       admitted evidence. Accordingly, we affirm.


[30]   Affirmed.


       Barnes, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1703-CR-443 | October 26, 2017   Page 17 of 17
