*1 LEONE, Appellant A. Jeff
(Plaintiff below), Indiana, Appellees
STATE below).
(Defendants
No. 28S00-0206-CR-327.
Supreme Court of Indiana.
Oct. *2 Defender of Carpenter,
Susan K. Public Indiana, Freund, Deputy P. Public David Defender, Defender, Public Office IN, Attorneys Indianapolis, Appellant. for Carter, Attorney General Steve Indiana, Kreider, Deputy A. Attor- Seott General, ney Attorney Office of the Gener- al, IN, Attorneys Appel- Indianapolis, lee.
SHEPARD, Chief Justice. Leone had been banned from his Jeff trailer, anyway, in ex-wife's but he went thirteen-year-old discovered her daughter daughter inside. He took the her, camper where he killed had inter- corpse, course with her and discarded her body property on the behind shed. for this murder was life The sentence parole, prison without based two statu- circumstances, torture tory aggravating killing attempting while and intentional ar- committing child molestation. Leone gues correctly that the evidence does not torture, something establish which is done person. aggra- to a live Even without circumstance, however, vating we conclude that the sentence is sustainable. of Facts and Statement History Procedural Leone and Linda Watkins met Jeff cohabitated, married, Texas, and later from a October 1990. Linda's children (Daniel, previous marriage Stephanie, Jennifer) with their father remained experienced property. and Leone was on their Linda allowed him Texas. Linda separated, problems marital to take showers and wash clothes in the Ellettsville, Indiana. moved to trailer home since the not did have reconciled, Linda moved couple Early running Saturday water. one morn- *3 Linda and Leone secured to Ellettsville: trailer, ing, Leone entered the turned in University employment Indiana television on and up, the volume and con- Bloomington, where Linda worked with sumed food and drink. Linda up- became security. in computers and Leone worked set, and she told Leone the trailer was During the summer of longer no his home and that he was not family Robert and other members brother anymore. welcome in it Leone then re- that Leone living in Ellettsville noticed belongings moved his from the trailer and difficulty including had with motor skills keys Linda the to gave the trailer. He claimed driving, speech, and balance. 8, 2000, On December Linda took her all of the time. A neu- that he was tired school, daughter Stephanie high oldest to determined that Leone had suf- rologist and then went to work. Her thirteen multiple strokes. fered year-old daughter stayed Jennifer home Leone told Linda he wanted a a due to cold. Tennessee for a divorce. Leone went to Ellettsville, week, and returned to but nev- a.m., At Leone entered the mar- again. er mentioned the divorcee key trailer with a and took a shower. He to deteriorate thereafter. riage continued later, told Jennifer that he would see her activi- began to lose interest all Leone prevent but then decided to kill Jennifer to mari- except eating, drinking, smoking ties telling her from Linda he had in the been juana, hygiene movies. His watching and trailer. stopped taking as he show- also suffered camper Leone returned to and re- ers. trailer, tape. trieved duct He entered the Linda's three children moved to Elletts- from grabbed Jennifer the kitchen table ville after her ex-husband died taped keep and her mouth to her from Leone, Linda, the three children and yelling. Leone bound her wrists with the County, moved to a trailer Greene camper. tape and led her towards to smoke mari- Indiana. Leone continued juana and listen to music. Linda asked they camper, arrived at the Jenni- When stop growing marijuana him to in their him, away run fer tried to from but Leone Though Lin- greenhouse, but he refused. dragged her inside. grabbed her encourage tried to Leone to do more da then threw Jennifer onto a mat- Leone house, than sit around the his behavior did off, tress, ripped her shirt When change. not Linda also discussed Leone's her, going rape if he Jennifer asked was poor hygiene attempts have sexual "Yep." responded, proceeded Leone He intercourse with her he was unclean. when a cutter. cut Jennifer's clothes with box good Leone told Linda that all she for was in- paycheck. was sex and Linda then Leone sat next Jennifer smoked formed Leone she did not want to have sex marijuana lay while she there nude. He anymore. him with periodically genital fondled her area and performed oral sex on her. breasts and Thanksgiving Day Leone told On Leone tried to have sexual intercourse Linda he wanted divorcee and de- sired to move into the small that with Jennifer but was unable. opening the door to going he was The sound of Leone what
Jennifer asked next, respond. not trailer awakened Linda. but he did to do hang- in, choker that was dog keys on the bar dropped then retrieved walked it around Jennifer's ing nearby, placed sitting, picked she was stool next where it, He had neck, and killed her. someone, pulled phone, and called whom up the He corpse. with Jennifer's intercourse dispatcher. later discovered was she outside, body cut dragged her then say, get Linda heard Leone "Come mouth, taped her an- tape off of her me, I her." Leone talked did it. killed a hole together. dug He and wrists kles of minutes and then handed couple body it with her Jennifer's phone to her. When Linda asked *4 Thereafter, he her. clothes and buried Jennifer, Leone said why Leone he killed Robert, they visited his brother him a "sexless man." because she made marijuana. smoked hung up the Linda that after she testified phone, Leone said that he could show her from arrived home Stephanie When was buried and that Jenni- where Jennifer called for pm., around 3:15 she school police not suffer". ar- fer "did When trailer, entered the when she Jennifer rived, out and told put Leone his hands Stephanie called response. did not hear a work, away. grand- and then her take him her mother at them to mother, Jennifer's where- to ask car, in a placed Detective Lewis Leone eventually went to Robert abouts. She rights; him Leone waived his read if road to see residence across the gave hap- a statement of what rights and playing with his two was there Jennifer then showed where he bur- pened. Leone saw inquired whether Robert sons. She body in a hole behind the ied Jennifer's not. day, and he said he had Jennifer that expressed shed. Leone his sorrow for his Leone, Paddie, Daniel Lillie Robert actions. He later told Detective Lewis Watkins, different ar- and Leone searched any mari- that since he did not have more property to look eighteen-acre eas of the juanga going get and since he was Jennifer, and Leone never indicated he just turn himself in. caught, he would happened had to her. knew what day, pathologist next forensic Dr. The p.m., Detective Chris Lewis Around 6:80 Roland Kohr went to assist with the exshu- trooper arrived to and an Indiana State body. He noticed an mation of Jennifer's and to look help search for Jennifer around Jennifer's neck that was abrasion Lewis went around the trailer. Detective He ligature consistent with a abrasion. camper to ask his whereabouts to Leone's appeared that fresh blood later testified had day; replied Leone that he for the coming vagina, from Jennifer's which be day all and had not been in the sexually possibly indicated that she was anything. initially or heard seen assaulted. trailer had not been inside of the said he Thanksgiving, but later admitted en- since tape that the duct autopsy The revealed it times to take showers tering several had been across Jennifer's mouth left, continued to everyone after Dr. was still alive. Kohr ob- while she entered the trailer on the insist he had not hemorrhages petechial served Jenni- day stayed home. Jennifer face, strongly fer's which are associated blood flow is asphyxial 4 with deaths where around police premises left the by strangulation and causes small cut off Thereafter, Linda, Stephanie, am. rupture from the increased sleep living capillaries in the room. Daniel tried to ting attempting Kohr also noticed that contu- to commit child pressure. moles- larynx pressure indicated that tation, sions on the and he tortured Jennifer while she area, and he applied had been was still alive. pressure dog from the
believed I. Was the Evidence of the contusions. choker caused Torture Sufficient? Dr. Kohr believed that Jennifer was argues that the State failed had been buried. He dead before she beyond prove reasonable doubt the opined that Jennifer's heart continued to existence of the aggravating circumstance time after she lost con- beat for short breathing torture. While Leone's actions stopped sciousness and because were congestion lungs. he found her He said disgusting, agree they we do not meet the ap- conscious for probably Jennifer was definition of torture. af-
proximately thirteen to fifteen seconds
ligature interrupted
ter the
the blood flow
Though
Indiana Code
35-50-2-
brain,
to her
and he concluded
her
9(b)(11)
specifically
not
does
define "tort
by ligature strangula-
death was caused
ure"
recently
we
held that torture re
lacerations,
tion. Kohr further
found
con-
quires "something more" than
require
*5
tusions,
hemorrhages
to the external ments for the usual crime. Nicholson v.
genital area.
(Ind.2002).
State,
On December Leone a second appreciable period pain punishment or statement to Detective Lewis which he intentionally inflicted designed either complained sexually he had not been in- to coerce the or victim for the torturer's volved Linda for with the last two months. essence, indulgence." sadistic Id. In "tor him He said that when Linda told that she ture gratuitous is the infliction of substan plan engage did not to in intercourse with tial pain suffering or excess of that anymore, him think began he to with the associated commission of the raping killing Stephanie, Linda's old- charged erime." Id. at 447.2 daughter. er Leone said he killed Jenni- The trial court that keep telling
fer to from found Leone "tor- her Linda he showered the trailer. He stated that he tured" Jennifer he because bound Jenni- rape already decided to Jennifer after he tape, fer's hands and mouth with duct kill decided to her. Leone attributed his marched her from the kitchen and forced high appetite sexual to his strokes. His her into his for more than two appetite particularly strong was when he hours, cutter, cut her clothes with a box marijuana. smoked attempted vaginal to have intercourse and her, performed dog oral sex on eventually pled guilty. The trial neck, it choker around her and used inten- murder, felony court found Leone tionally strangle (Appel- to her to death. ill. It found that Leone in- 628-29.) App. lant's tentionally killed Jennifer while commit- 35-50-2-9(b)(11)(C)(West 1. Ind.Code someone; agony penal- torment or induced to 1998), aggravating states that an circum- religious political ize dissent or noncon- burned, money stance is torture if defendant formity to extort a confession or a "[the mutilated, contribution, or tortured the victim while the give pleasure or to sadistic to was victim alive." Third New Interna- the torturer." Webster's (1993). Dictionary tional Dictionary 2. Webster's defines torture as the pain punish "infliction of intense to or coerce TAS cireumstances have been evaluated despica- actions were
Although Leone's sentence, determining mur- scope of ble, not exceed the balanced they did attempt to (iv) He did not molestation. der or forth the trial court's own must set acts, nor appropriate torturous that the sentence is through conclusion coerce Jennifer in sadistic acts. and the indulge this offender appear punishment did he fact, continuously expressed remorse he crime. Moore v. actions, police and contacted the for his that the evi- him conclude
pick
up. We
here determined
The trial court
finding
support
inadequate
was
dence
all of
aggravator outweighed
that either
of torture.
629.)
App. at
mitigators.
(Appellant's
Balancing Mitigating
II..
a contention that Leone had
Concerning
Aggravating Circumstances
record, the court ac
significant prior
no
trial court
contends
for car
knowledged Leone's conviction
in weighing various
abused its discretion
ap
court
years
fifteen
earlier. The
theft
circumstances.
mitigator
to find lack of record as
peared
gave inadequate weight
says
He
the court
significance
it "attaches little
but said
it
of the cireumstances
found as
to several
Although a
mitigator."
Id. at 620.
this
mitigating.
given
criminal record must be
lack of a
mitigator, Edge
substantial
as
deference to a
give great
We
(Ind.1996),
comb v.
manifest stroke, to capacity he did not have the more, to ex obligated a trial court is not law because of conform his conduct the why it a cireumstance not to be plain finds Indiana disease or defect under mental at Id. 592. mitigating. 35-50-2-9(c)(6). con The court Code "that defendant suffers from a men cluded sentencing requirement The due to strokes he suffered tal defect falling stringent more in cases findings is ... that the strokes affected his non-capi than in capital under our statute App. (Appellant's speech and behavior." tal cases. The trial court's statement 628.) that the (1) The court found statuto identify mitigating each reasons must (i) found, no credible ry mitigators did exist but aggravating circumstance specific include the facts and reasons must to excuse or ex evidence was sufficient Finally, killing of Jennifer. plain existence which lead the court to find the that court summarized twelve factors (ii) cireumstance, must artic of each such mitigating cireumstances.3 constituted mitigating ulate that the following mitigating dysfunctional 3. court found the in a fami- 2. Leone was raised emotionally ly physically, and had been factors: sexually abused. gainfully employed for. 1. Leone had been biological propensity to- Leone had a adult life until he suffered multi- most of his an alcoholic wards violence as a male of ple strokes. father. present- plain 'crazy'", cireumstances and it should Of the thus be a ed, that argues significant mitigating (Appellant factor. 49-50.) significant mitigating ill cireumstance. is Br. at He cites Weeks stay Leone chose (Ind.1998), suggested in which we several marijuana, smoke but there is no indica- that amount of support factors tion that functioning he had limited due given that illness should be in a mental the strokes. The strokes occurred 1) decision, sentencing such as: the extent supports but no evidence that he suffered inability of the defendant's to control his or from mental illness as result. Nor does or impair- her behavior due to the disorder a nexus exist between the strokes and his 2) ment, functioning, limitations on overall murdering Jennifer. Leone murdered 3) 4) illness, the duration of the mental Jennifer because he did not want her to any the extent of nexus between the disor- tell Linda he was in the day. trailer that impairment der or and the commission of He molested victim afterthought. as an the crime. Though thought irrational, process is it suggests The record Leone was seems nonetheless unrelated to the stroke. himself, to control as there generally able The trial court's sentencing order is de- previous is no indication of outbursts of thoughtful. tailed and The court found any of stepchil- violent behavior toward his charged that each of the aggravators out- Although dren. Leone states that he weigh cireumstances. The thought raping Stephanie, he never aggravator-intentional valid killing while thoughts expressed acted on those or them attempting committing child molesta- anyone. tion, appears adequate outweigh explain Leone tries to his actions as a mitigators, given the nature of the mental depression, result of which resulted from illness cited. Dr. suggested the stroke. Haskins III. Sentence Review self-medicating repressing Leone tried Leone contends that he thoughts smoking excessive was sen marijuana. urges parole amounts of tenced to life without under a facial *7 ly killing structurally his reasons for Jennifer were "total- unconstitutional statu scheme, ly deranged "just tory and unbalanced" and sentencing citing Ring v. good marriage 4. Leone had a awas ment which could have alleviated the defi- loving stepfather prior to his strokes in cits. Also, inap- separated shortly 1997. Leone had never acted 9. Leone from his wife be- propriately abusively step- largely changes or toward his fore the murder due to strokes, prior following personality children to the offense. his his history marijuana living a 5. Leone had of abuse the in the he conditions likely using was it to self-treat his men- moved into led to and de- increased stress tal disorders. pression. learning disability shortly 6. Leone had a that was 10. Leone turned himself in after the treated, diagnosed may crime, confessed, never nor and it aided in the investi- predisposed impulsive have him to and vio- gation. lent behavior. consistently expressed 11. Leone has re- ap- morse for his crime and his remorse multiple 7. Leone suffered strokes in 1997 impairment ability pears genuine. that led to of his to con- to be impulses. prison trol his un- 12. Leone's behavior has been personality changed appro- 8. Leone's after the der control since he was libido, including priate (Appellant's App. strokes increased medication. at 623-25.) Leone received no medications or treat- 750 The plea the existed.5 2428, 584, factual basis 122 S.Ct. 158
Arizona, 536 U.S.
court,
fact,
Leone sever
questioned
(2002),
v. New trial
Apprendi
L.Ed.2d 556
2348,
his
466,
147
understood
120
that he
S.ct.
al times to ensure
Jersey, 530 U.S.
(2000).4
he waived
fully aware that
rights and was
L.Ed.2d 435
that Leone's
rights. We conclude
those
Supreme
the U.S.
Apprendi,
In
Apprendi
with
does not conflict
sentence
a
statute
unconstitutional
held
Court
Ring.
the tradition
to extend
courts
allowed trial
involved
they
when
sentencing scheme
al
Conclusion
at
530 U.S.
Apprendi,
hate crimes. See
stated,
468-97,
The Court
2348.
120 S.Ct.
trial court.
the
of the
affirm
decision
We
for a
penalty
increases the
"any fact that
statutory
prescribed
beyond
crime
JJ.,
BOEHM, RUCKER,
DICKSON,
jury, and
to a
submitted
must be
maximum
concur.
Id. at
doubt."
beyond a reasonable
proved
SULLIVAN,
J.,
and dissents
concurs
490,
Ring,
the Court
2348.
120 S.Ct.
opinion.
separate
with
cases, holding
capital
Apprendi
applied
cireumstances had
that the
Justice,
SULLIVAN,
concurring and
Ring, 536 U.S.
by jury.
a
determined
be
dissenting.
case, how
Neither
See revise the sentence to review and power n. 770 N.E.2d life a sentence of imposed." To sustain Indiana law parole, without imprisonment Ring nor Apprendi Neither proven properly of the requires is not entitled that a defendant suggests trial. The trial to be jury statutory aggravating cireumstances right waive any greater than plea was court found § 35- that exist. Ind.Code that a cireumstances voluntarily, freely and made 35-50-2-9, were pursuant to Ind.Code In Bostick extending be- the sentence (Ind.2002), based on facts we stated: jury's yond the maximum authorized however, Court, Supreme United States *8 finding guilty of murder. [him] verdict that the Sixth Amend determined has since Here, plead guilty the murder and requires U.S. Constitution ment to the jury rights to a trial. waived his penalty the for "any increases fact that statutory max beyond prescribed the crime by jury, right trial a fundamental 5. The jury, to a submitted imum must be by of right guaranteed the Sixth Amendment Ap doubt." proved beyond a reasonable 1, and Article 13 Constitution the federal 466, 490, Jersey, 120 prendi 530 U.S. v. New Constitution, subject is of the Indiana 2348, (2000). Ring 435 S.Ct. 147 LEd.2d voluntary intelligent, waiver. knowing, Arizona, ap Apprendi made it clear v. State, (Ind.1986). N.E.2d 409 v. 501 capital sentencing 536 Woodson plies schemes. waived, effectively right has been Once the 2443, 584, 153 LEd.2d U.S. at 122 S.Ct. the rests within of the waiver Ring, withdrawal Apprendi the Contrary to at 556. at 411. the court. Id. parole discretion of life without sentences to defendant's
751
50-2-9;
State,
545,
determine,
v.
749 N.E.2d
as I can
Greer
this is the first case in
(Ind.2001). I
549
believe the Court should which we have ever
affirmed sentence of
imposed
the sentence
here
imprisonment
revise
because
life
without parole
per
on a
weight
aggravating
of the sole
circum-
guilty
son found
but mentally ill following
not,
view,
my
outweigh
stance does
the
a guilty plea. This Court has repeatedly
weight of mitigating
combined
cireum-
reduced lesser sentences
inadequate
where
weight
stances.
given
has been
to the mitigating
weight of an adjudication
of
opinion,
As discussed in the Court's
State,
ill. See
v.
770
trial court's sentence was
on its
Crawford
based
775,
(Ind.2002)
(reduction
N.E.2d
783
of
finding
statutory
aggravating
two
cir-
year
defendant's 65
sentence to the pre
part
cumstances existed.
I of the
sumptive
years
55
in part due to
"sig
opinion,
Court's
the Court holds that the
nificant mitigating circumstance" of defen
finding
trial court's
of the existence of one
illness);
State,
dant's mental
v.
Weeks
697
statutory aggravating
of those
cireum-
28,
(Ind.1998)
(reduction
N.E.2d
31
of de
contrary
stances was
to law. The sole
year
fendant's 60
sentence to the presump
existing statutory
circum-
years
tive sentence of 50
due to defen
stance,
killing
committing
intentional
while
illness);
State,
dant's mental
Archer v.
molesting,
question very
child
is without
689
(Ind.1997) (defendant's
678,
N.E.2d
weighty
685-86
aggravating circumstance. But
long-standing mental illness should have
weight
greater
believe that its
is no
than
been
mitigator
considered as a
and there
the combined
of the
cir-
fore warranted a reduction in defendant's
cumstances.
(Gambill
sentence);
State,
total
v.
675
First,
pled guilty
to the crime
(Ind.1996) (defendant's
668,
N.E.2d
677-78
charged.
guilty plea
A
demonstrates a
mental
mitigator
illness was a substantial
acceptance
responsibility
defendant's
of
for
calling
imposition
of the presump
partially
crime and at least
confirms
sentence);
State,
Mayberry
tive
v.
670
regarding
evidence
his char
(Ind.1996)
1262,
N.E.2d
1271
(finding an
State,
506,
acter. Scheckel v.
655 N.E.2d
abuse of discretion where trial court failed
(Ind.1995).
511
A guilty plea further ex
to consider defendant's mental
illness as
tends
benefit to the state and the victim
mitigator;
imposition
pre
remanded for
family by avoiding
or the victim's
a full-
sentence);
State,
sumptive
Barany v.
658
Thus,
blown trial.
Id.
a defendant who
(Ind.1995)
60,
(finding
N.E.2d
67
a rela
pleads guilty deserves to have some miti
tionship between
ill
defendant's mental
gating weight
guilty plea
extended to the
crime;
ness and the commission of the
Accord,
State,
in return.
Id.
Widener v.
imposition
presumptive
remanded for
529,
(Ind.1995);
659 N.E.2d
534
Hardebeck
sentence).
State,
486,
v.
656 N.E.2d
(Ind.Ct.App.1995),
493
ns.
denied. See also Duvall v.
tra
Third,
out,
points
as
Court
lack of a
State,
(Ind.1989);
540 N.E.2d
Davis
criminal
given
record must be
substantial
State,
(Ind.1985)
v.
mitigator. Edgecomb
as a
(death
case);
penalty
Lang
benefit cireumstance.
mitigating in footnote forth
Fourth, sets the Court circum- twelve
3 an additional court to exist. the trial found
stances profound to the relate these of
Several of personality impact on
negative Sev- he suffered strokes
multiple to the mental explicitly relate
eral others he suffers. from which
illness of that the combined find would least is at cireumstances
these remaining of the sole
equal to re- and would circumstance imprisonment of life sentence
duce Leone's years. of a term to one parole
without Appellant
THOMAS,
Mark
(Defendant below), Indiana, Appellee
STATE below).
(Plaintiff
No. 49S04-0305-PC-175. of Indiana.
Supreme Court 22, 2003.
Oct.