Defense counsel for Mark Leonard, the man convicted of killing two people in a 2012 home explosion, argued before the Indiana Supreme Court Thursday that Leonard’s constitutional rights to an attorney were violated when an undercover officer posed as a hitman in prison and questioned Leonard, without his attorney present, about his plan to have a key witness killed.
Further, Victoria Bailey, Leonard’s counsel, told the Supreme Court that a recording of the conversation between Leonard and the undercover officer should never have been entered as evidence in the jury trial that ultimately resulted in Leonard’s sentence of two life terms without parole plus 75 years. Leonard had counsel at the time of the conversation, but his counsel was not present for the conversation, so allowing the recorded conversation to be admitted as evidence was in violation of his Sixth Amendment rights.
But the five justices seemed to have trouble following Bailey’s logic, often interrupting her to ask the same question – how does the admission of the recording as evidence constitute error?
Justice Mark Massa said that the state elicited Leonard’s statements about his plan to have Mark Duckworth, the key witness against Leonard, killed as part of a new crime – the murder-for-hire scheme – for which he did not yet have counsel, which means his Sixth Amendment rights could not have been violated. But Bailey countered, saying the Indiana Supreme Court has established precedent that evidence of a defendant trying to kill a witness is incriminating as to the offense the defendant is already charged with.
If the conversation had been admitted as evidence in a trial for the murder-for-hire scheme, it would not be error, Bailey said. But because it was admitted in the home explosion trial, for which Leonard had counsel, the admission constituted error, she said.
But the state argued that although Leonard and the undercover officer did discuss the night of the explosion in the recorded conversation, the officer did not directly seek out information about the explosion, so there was no Sixth Amendment violation.
Further, Andrew Kobe, who argued the state’s case before the Supreme Court, said the recording was only a small part of the state’s case against Leonard, and that there was sufficient evidence outside of that conversation to support his conviction and sentence.
If there was other evidence to support the state’s case against Leonard, then Justice Robert Rucker asked why admitting the recording was relevant to the home explosion trial.
Kobe said the conversation showed that Leonard wanted and intended to kill Duckworth, whom Leonard had told two days prior to the explosion that he would be collecting $300,000 in insurance on the home. That fact also served as consciousness of guilt, Kobe said.
Rucker and Chief Justice Loretta Rush also asked Kobe to prove that the case constituted a knowing murder on Leonard’s part.
Kobe argued that Leonard blew up a home that was only 10 feet away from other homes, and that most people would know that doing so could result in severe bodily harm to anyone near the explosion.
But Rucker pushed Kobe on that point, repeatedly asking him to show evidence in the record that Leonard knew people would die as a result of the explosion.
Kobe conceded that there were no statements in the record that showed that Leonard had knowledge that his actions would kill two people, but also argued that in this situation, direct evidence is not needed because common experience shows that setting off an explosion in close proximity to other buildings or people could result in injury or death.