from the Marion Superior Court The Honorable Sheila A.
Carlisle, Judge Trial Court Cause No. 49G03-1303-FA-20360
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
Mark Leonard appeals his conviction of Class A felony
conspiracy to commit murder. He presents two arguments for our
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
and Procedural History
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.
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.)
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 Sheriffs 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.
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:
A friend of mine is in jail Because, of Mark Duckworth.
He's running his jaws on Lynard, Gill, and all of
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
Lynard will pay $15, 000 for this accident.
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.
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
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.)
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--
[Leonard]: --It'll be a ten, it's that easy cause
there nobody around there, you know?
["Jay"]: Yeah. You want a -- you want me to -- you
want me to send a message or anything ...