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Justices hear home explosion appeal

October 5, 2016

Nearly four years after he orchestrated an Indianapolis home explosion that killed two people, Mark Leonard is arguing that he should not have to spend the rest of his life in prison because his Sixth Amendment rights were violated.

Victoria Bailey, a public defender who argued on behalf of Leonard before the Indiana Supreme Court on Sept. 22, pointed to one piece of evidence in the St. Joseph County trial that she said never should have been admitted — a recorded phone conversation between Leonard and Jeremy Godsave, a special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives, who was posing as a hit man.

In the conversation, which did not occur in the presence of Leonard’s attorney, the defendant detailed his plan to hire the purported hit man to kill Mark Duckworth, a key witness in the state’s case against Leonard in the home explosion trial.

Because that conversation took place without Leonard’s attorney, Bailey argued that admitting it as evidence violated his Sixth Amendment right to an attorney. Thus, his convictions of murder, knowing murder, conspiracy to commit arson and multiple counts of arson — and his subsequent sentence to two life terms without parole plus 75 years — should be overturned.

Leonard, his half-brother Bob Leonard, Mark Leonard’s girlfriend and homeowner Monserrate Shirley, Gary Thompson and Glenn Hults were criminally charged after they allegedly conspired to blow up Shirley’s home to collect insurance money. The November 2012 explosion killed Shirley’s neighbors, Dion and Jennifer Longworth. Shirley and Thompson took plea deals; Bob Leonard was convicted in February of murder, arson and other charges, and has appealed. Hults’ trial on conspiracy to commit arson is scheduled for November.

But Andrew Kobe, a deputy attorney general who argued for the state, said the recording was admissible because Godsave never explicitly sought information about the home explosion in his conversation with Leonard. Instead, Godsave was discussing the murder-for-hire scheme, which the right to an attorney had not yet attached, so the Sixth Amendment couldn’t have been violated, Kobe said.

Similarly, Justice Mark Massa contended that because law enforcement elicited Leonard’s statements about his plan to have Duckworth killed as part of a new crime — the murder-for-hire scheme, for which he did not yet have counsel — his Sixth Amendment rights couldn’t have been violated.

But Bailey countered, saying the Indiana Supreme Court has established precedent that evidence of a defendant trying to have a prosecution’s witness killed is incriminating against the offense the defendant is already charged with.

Bailey laid out three scenarios that occurred during the trial that she said prove the admission of the recording as evidence put Leonard at a disadvantage.

First, during jury selection, Bailey said Leonard’s counsel told prospective jurors that he had been implicated in a murder-for-hire scheme to kill Duckworth, a fact that prompted many of the potential jurors to say Leonard was implicitly guilty in the home explosion case.

Although the jurors who gave that answer were dismissed, Bailey said their responses show that admitting the recording as evidence would have a substantial impact on how any juror might perceive Leonard’s role in the home explosion.

Next, Bailey pointed to the state’s closing arguments, which she said encouraged the jury to rely on Godsave’s testimony when considering Leonard’s charges. Such encouragement was inappropriate, Bailey said, because the conversation with Godsave and his testimony were improperly admitted as evidence under the Sixth Amendment.

Although Kobe contended that Godsave only elicited comments from Leonard about the plot to kill Duckworth, Justice Robert Rucker pointed out that there was some discussion about the night of the explosion. Under the Sixth Amendment, the state could not elicit comments about that night from Leonard without his attorney present.

Kobe conceded that Leonard and Godsave did talk about the explosion, but he also said the undercover agent never directly asked Leonard to discuss that night; instead, Leonard spoke about it voluntarily.

Finally, Bailey said allowing jurors to hear Leonard’s voice describing the murder-for-hire scheme in the recording was essentially the same as hearing Leonard testify against himself. He chose not to take the stand during the trial.

But Kobe said the recording was cumulative to the other evidence in the case, including a letter written by Leonard explaining the murder-for-hire plot, which was admitted as evidence before the recorded conversation.

In regard to Leonard’s knowing murder convictions, Bailey argued the court should look at the question of whether Leonard knew that the explosion would kill someone, not that it could kill someone. Using that standard, his counsel said there was not enough evidence to prove that Leonard definitively knew blowing up the house would result in two deaths.

Kobe acknowledged there was no direct evidence that showed Leonard knew his actions would kill two people. But he also said the state does not have to have direct evidence to prove knowing murder in this situation because most people understand that an explosion large enough to destroy a 3,000-square-foot house has the potential to kill people, especially people living in homes only 10 feet away.

Rucker pushed back, saying despite the fact that the record shows Leonard blew up the house only in an attempt to collect insurance money, he was still convicted of felony murder.

Leonard may have orchestrated the explosion to collect insurance money, Kobe said, but he still showed he either didn’t care if people were killed, or that their deaths didn’t bother him.

In her rebuttal, Bailey argued that not caring about or not being bothered by the deaths showed recklessness, not knowing murder.

Rucker challenged that argument, saying the jury was instructed on recklessness, but ultimately rejected it in favor of a knowing murder conviction.

Chief Justice Loretta Rush also challenged Bailey, saying evidence, such as Leonard taking steps to get a hotel room on the night of the explosion, proved he knew there was a high probability that someone would get hurt.

Bailey further argued that Leonard’s sentence was unconstitutional because the judge in the case, not the jury, found there were statutory aggravators, and that those aggravators outweighed the mitigators. She pointed to the case of Hurst v. Florida, 136 S. Ct. 616 (2016), in which U.S. Supreme Court Justice Sonia Sotomayor wrote those findings must be made by a jury, not a judge.

Rush pointed out that Leonard had waived his right to have those sentencing issues decided by the jury, but Bailey said the waiver Leonard signed included the caveat that he was not waiving his right to a constitutional challenge.

Kobe dismissed the Hurst argument, saying the decision in that case added nothing new to Indiana’s existing jurisprudence.

Hurst doesn’t change anything, and the court explicitly says that,” he said.•

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