Leone v. State

Attorneys for Appellant Attorneys for Appellee

Susan K. Carpenter Steve Carter
Pubic Defender of Indiana Attorney General
of Indiana

David P. Freund Scott A. Kreider
Deputy Public Defender Deputy Attorney General
Office of the Public Defender Office of the
Attorney General
Indianapolis, Indiana Indianapolis, Indiana

____________________________________________________________________________
__

In the
Indiana Supreme Court
_________________________________

No. 28S00-0206-CR-327

Jeff A. Leone,
Appellant (Plaintiff below),

v.

State of Indiana.
Appellees (Defendants below).
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Appeal from the Greene Circuit Court, No. 28C01-0012-CF-101
The Honorable David K. Johnson, Judge
_________________________________

Direct Appeal
_________________________________

October 22, 2003

Shepard, Chief Justice.

Jeff Leone had been banned from his ex-wife’s trailer, but he went in
anyway, and discovered her thirteen-year-old daughter inside. He took the
daughter to his camper where he killed her, had intercourse with her
corpse, and discarded her body on the property behind a shed.

The sentence for this murder was life in prison without parole, based
on two statutory aggravating circumstances, torture and intentional killing
while attempting or committing child molestation. Leone argues correctly
that the evidence does not establish torture, which is something done to a
live person. Even without that aggravating circumstance, however, we
conclude that the sentence is sustainable.

Statement of Facts and Procedural History

Jeff Leone and Linda Watkins met in Texas, cohabitated, and later
married, in October 1990. Linda’s children from a previous marriage
(Daniel, Stephanie, and Jennifer) remained with their father in Texas.
Linda and Leone experienced marital problems and separated, and Leone moved
to Ellettsville, Indiana. The couple reconciled, and Linda moved to
Ellettsville. Linda and Leone secured employment at Indiana University in
Bloomington, where Linda worked with computers and Leone worked in
security.

During the summer of 1997, Leone’s brother Robert and other family
members living in Ellettsville noticed that Leone had difficulty with motor
skills including driving, speech, and balance. He claimed that he was tired
all of the time. A neurologist determined that Leone had suffered multiple
strokes.

In 1998, Leone told Linda he wanted a divorce. Leone went to
Tennessee for a week, and returned to Ellettsville, but never mentioned the
divorce again. The marriage continued to deteriorate thereafter. Leone
began to lose interest in all activities except eating, drinking, smoking
marijuana, and watching movies. His hygiene also suffered as he stopped
taking showers.

Linda’s three children moved to Ellettsville after her ex-husband died
in 1999. Leone, Linda, and the three children moved to a trailer in Greene
County, Indiana. Leone continued to smoke marijuana and listen to music.
Linda asked him to stop growing marijuana in their greenhouse, but he
refused. Though Linda tried to encourage Leone to do more than sit around
the house, his behavior did not change. Linda also discussed Leone’s poor
hygiene and attempts to have sexual intercourse with her when he was
unclean. Leone told Linda that all she was good for was sex and a
paycheck. Linda then informed Leone she did not want to have sex with him
anymore.

On Thanksgiving Day 2000, Leone told Linda that he wanted a divorce
and desired to move into the small camper that was on their property.
Linda allowed him to take showers and wash clothes in the trailer home
since the camper did not have running water. Early one Saturday morning,
Leone entered the trailer, turned the television on and the volume up, and
consumed food and drink. Linda became upset, and she told Leone that the
trailer was no longer his home and that he was not welcome in it anymore.
Leone then removed his belongings from the trailer and gave Linda the keys
to the trailer.

On December 8, 2000, Linda took her oldest daughter Stephanie to high
school, and then went to work. Her thirteen-year-old daughter Jennifer
stayed home due to a cold.

At about 10 a.m., Leone entered the trailer with a key and took a
shower. He told Jennifer that he would see her later, but then decided to
kill Jennifer to prevent her from telling Linda he had been in the trailer.

Leone returned to the camper and retrieved duct tape. He entered the
trailer, grabbed Jennifer from the kitchen table and taped her mouth to
keep her from yelling. Leone bound her wrists with the tape and led her
towards the camper.

When they arrived at the camper, Jennifer tried to run away from him,
but Leone grabbed her and dragged her inside. Leone then threw Jennifer
onto a mattress, and ripped her shirt off. When Jennifer asked if he was
going to rape her, Leone responded, “Yep.” He proceeded to cut Jennifer’s
clothes with a box cutter.

Leone sat next to Jennifer and smoked marijuana while she lay there
nude. He periodically fondled her genital area and breasts and performed
oral sex on her. Leone tried to have sexual intercourse with Jennifer but
was unable.

Jennifer asked Leone what he was going to do next, but he did not
respond. Leone then retrieved a dog choker that was hanging nearby, placed
it around Jennifer’s neck, pulled on it, and killed her. He had
intercourse with Jennifer’s corpse. He then dragged her body outside, cut
the tape off of her mouth, and taped her ankles and wrists together. He
dug a hole and placed Jennifer’s body in it with her clothes and buried
her. Thereafter, he visited his brother Robert, and they smoked marijuana.

When Stephanie arrived home from school around 3:15 p.m., she called
for Jennifer when she entered the trailer, but did not hear a response.
Stephanie called her mother at work, and then her grandmother, to ask about
Jennifer’s whereabouts. She eventually went to Robert Leone’s residence
across the road to see if Jennifer was there playing with his two sons.
She inquired whether Robert saw Jennifer that day, and he said he had not.

Robert Leone, Lillie Paddie, Daniel Watkins, and Leone searched
different areas of the eighteen-acre property to look for Jennifer, and
Leone never indicated he knew what had happened to her.

Around 6:30 p.m., Detective Chris Lewis and an Indiana State trooper
arrived to help search for Jennifer and to look around the trailer.
Detective Lewis went to Leone’s camper to ask his whereabouts for the day;
Leone replied that he had been in the camper all day and had not seen or
heard anything. Leone initially said he had not been inside of the trailer
since Thanksgiving, but later admitted entering it several times to take
showers after everyone left. Leone continued to insist he had not entered
the trailer on the day Jennifer stayed at home.

The police left the premises around 4 a.m. Thereafter, Linda,
Stephanie, and Daniel tried to sleep in the living room. The sound of
Leone opening the door to the trailer awakened Linda. Leone walked in,
dropped the keys on the bar stool next to where she was sitting, picked up
the phone, and called someone, whom she later discovered was a 911
dispatcher. Linda heard Leone say, “Come and get me, I did it. I killed
her.” Leone talked for a couple of minutes and then handed the phone to
her. When Linda asked Leone why he killed Jennifer, Leone said because she
made him a “sexless man.” Linda testified that after she hung up the
phone, Leone said that he could show her where Jennifer was buried and that
Jennifer “did not suffer”. When the police arrived, Leone put his hands
out and told them to take him away.

Detective Lewis placed Leone in a car, read him his rights; Leone
waived his rights and gave a statement of what happened. Leone then showed
where he buried Jennifer’s body in a hole behind the shed. Leone expressed
his sorrow for his actions. He later told Detective Lewis that since he
did not have any more marijuana and since he was going to get caught, he
would just turn himself in.

The next day, forensic pathologist Dr. Roland Kohr went to assist with
the exhumation of Jennifer’s body. He noticed an abrasion around
Jennifer’s neck that was consistent with a ligature abrasion. He later
testified that fresh blood appeared to be coming from Jennifer’s vagina,
which indicated that she was possibly sexually assaulted.

The autopsy revealed that the duct tape had been placed across
Jennifer’s mouth while she was still alive. Dr. Kohr observed petechial
hemorrhages on Jennifer’s face, which are strongly associated with
asphyxial deaths where blood flow is cut off by strangulation and causes
small capillaries to rupture from the increased pressure. Kohr also
noticed that contusions on the larynx indicated that pressure had been
applied to that area, and he believed that the pressure from the dog choker
caused the contusions.

Dr. Kohr believed that Jennifer was dead before she had been buried.
He opined that Jennifer’s heart continued to beat for a short time after
she lost consciousness and stopped breathing because he found congestion in
her lungs. He said Jennifer was probably conscious for approximately
thirteen to fifteen seconds after the ligature interrupted the blood flow
to her brain, and he concluded that her death was caused by ligature
strangulation. Kohr further found lacerations, contusions, and
hemorrhages to the external genital area.
On December 12th, Leone gave a second statement to Detective Lewis in
which he complained he had not been sexually involved with Linda for the
last two months. He said that when Linda told him that she did not plan to
engage in intercourse with him anymore, he began to think about raping and
killing Stephanie, Linda’ s older daughter. Leone said he killed Jennifer
to keep her from telling Linda that he showered in the trailer. He stated
that he decided to rape Jennifer after he already decided to kill her.
Leone attributed his high sexual appetite to his strokes. His appetite was
particularly strong when he smoked marijuana.

Leone eventually pled guilty. The trial court found Leone guilty of
felony murder, but mentally ill. It found that Leone intentionally killed
Jennifer while committing or attempting to commit child molestation, and he
tortured Jennifer while she was still alive.

I. Was the Evidence of Torture Sufficient?

Leone argues that the State failed to prove beyond a reasonable doubt
the existence of the aggravating circumstance of torture. While Leone’s
actions were disgusting, we agree they do not meet the definition of
torture.

Though Indiana Code § 35-50-2-9(b)(11) does not specifically define
“torture”[1], we recently held that torture requires “something more” than
the requirements for the usual crime. Nicholson v. State, 768 N.E.2d 443
(Ind. 2002). It is “an appreciable period of pain or punishment
intentionally inflicted and designed either to coerce the victim or for the
torturer’s sadistic indulgence.” Id. In essence, “torture is the
gratuitous infliction of substantial pain or suffering in excess of that
associated with the commission of the charged crime.” Id. at 447. [2]

The trial court found that Leone “tortured” Jennifer because he
bound Jennifer’s hands and mouth with duct tape, marched her from the
kitchen and forced her into his camper for more than two hours, cut her
clothes with a box cutter, attempted to have vaginal intercourse and
performed oral sex on her, placed a dog choker around her neck, and used it
intentionally to strangle her to death. (Appellant’s App. at 628-29.)

Although Leone’s actions were despicable, they did not exceed the
scope of murder or molestation. He did not attempt to coerce Jennifer
through torturous acts, nor did he appear to indulge in sadistic acts. In
fact, he continuously expressed remorse for his actions, and contacted the
police to pick him up. We conclude that the evidence was inadequate to
support a finding of torture.

II. Balancing Mitigating and Aggravating Circumstances

Leone contends that the trial court abused its discretion in weighing
various mitigating and aggravating circumstances. He says the court gave
inadequate weight to several of the circumstances it found as mitigating.

We give great deference to a court’s determination of the proper
weight to assign a circumstance and the appropriateness of the sentence,
which is in the trial court’s discretion. Dunlop v. State, 724 N.E.2d 592,
597 (Ind. 2000). We only set aside its decision upon the showing of a
manifest abuse of discretion. Id. Furthermore, a trial court is not
obligated to explain why it finds a circumstance not to be mitigating. Id.
at 592.

The requirement for sentencing findings is more stringent in cases
falling under our capital statute than in non-capital cases. The trial
court’s statement of reasons (i) must identify each mitigating and
aggravating circumstance found, (ii) must include the specific facts and
reasons which lead the court to find the existence of each such
circumstance, (iii) must articulate that the mitigating and aggravating
circumstances have been evaluated and balanced in determining the sentence,
and (iv) must set forth the trial court’s own conclusion that the sentence
is appropriate punishment for this offender and the crime. Moore v. State,
771 N.E.2d 46, 53 (Ind. 2002).

The trial court here determined that either aggravator outweighed all
of the mitigators. (Appellant’s App. at 629.) Concerning a contention
that Leone had no significant prior record, the court acknowledged Leone’s
conviction for car theft fifteen years earlier. The court appeared to find
lack of record as a mitigator but said it “attaches little significance to
this mitigator.” Id. at 620. Although a lack of a criminal record must be
given substantial weight as a mitigator, Edgecomb v. State, 673 N.E.2d 1185
(Ind. 1996), it is apparent that Leone is not entitled to as much
mitigating consideration on this score as someone who had no prior record
at all.

Leone contends that because of his stroke, he did not have the
capacity to conform his conduct to the law because of mental disease or
defect under Indiana Code § 35-50-2-9(c)(6). The court concluded “that
defendant suffers from a mental defect due to strokes he suffered in 1997…
and that the strokes affected his speech and behavior.” (Appellant’s App.
at 623.) The court found that the statutory mitigators did exist but no
credible evidence was sufficient to excuse or explain Leone’s killing of
Jennifer. Finally, the court summarized twelve factors that constituted
mitigating circumstances. [3]
Of the mitigating circumstances presented, Leone argues that guilty
but mentally ill is a significant mitigating circumstance. He cites Weeks
v. State, 697 N.E.2d 28, 30 (Ind. 1998), in which we suggested several
factors that support the amount of weight that mental illness should be
given in a sentencing decision, such as: 1) the extent of the defendant’s
inability to control his or her behavior due to the disorder or impairment,
2) overall limitations on functioning, 3) the duration of the mental
illness, and 4) the extent of any nexus between the disorder or impairment
and the commission of the crime.

The record suggests that Leone was generally able to control himself,
as there is no indication of previous outbursts of violent behavior toward
any of his stepchildren. Although Leone states that he thought about
raping Stephanie, he never acted on those thoughts or expressed them to
anyone.

Leone tries to explain his actions as a result of depression, which
resulted from the stroke. Dr. Haskins suggested that Leone tried self-
medicating and repressing his thoughts by smoking excessive amounts of
marijuana. Leone urges that his reasons for killing Jennifer were “totally
deranged and unbalanced” and “just plain ‘crazy’”, and it should thus be a
significant mitigating factor. (Appellant Br. at 49-50.)

Leone chose to stay in the camper and smoke marijuana, but there is no
indication that he had limited functioning due to the strokes. The strokes
occurred in 1997, but no evidence supports that he suffered from mental
illness as a result. Nor does a nexus exist between the strokes and his
murdering Jennifer. Leone murdered Jennifer because he did not want her to
tell Linda he was in the trailer that day. He molested the victim as an
afterthought. Though the thought process is irrational, it seems
nonetheless unrelated to the stroke.

The trial court’s sentencing order is detailed and thoughtful. The
court found that each of the charged aggravators outweigh the mitigating
circumstances. The valid aggravator – intentional killing while attempting
or committing child molestation, appears adequate to outweigh the
mitigators, given the nature of the mental illness cited.

III. Sentence Review

Leone contends that he was sentenced to life without parole under a
facially and structurally unconstitutional statutory sentencing scheme,
citing Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey,
530 U.S. 466 (2000).[4]

In Apprendi, the U.S. Supreme Court held unconstitutional a statute
that allowed trial courts to extend the traditional sentencing scheme when
they involved hate crimes. See Apprendi, 530 U.S. at 468-97. The Court
stated, “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Id. at 490. In Ring, the Court applied Apprendi to
capital cases, holding that the aggravating circumstances had to be
determined by a jury. Ring, 536 U.S. at 609. Neither case, however,
addresses its application when the defendant issues a guilty plea and
waives his right to a jury trial, as the State properly argues. With a
plea of guilty, Leone forfeits claimed entitlement to certain rights
including the right to a jury trial. See Id. at 334-35; Mapp v. State, 770
N.E.2d 332, 334 n. 3 (Ind. 2002).

Neither Apprendi nor Ring suggests that a defendant is not entitled to
waive his right to a jury trial. The trial court found that Leone’s guilty
plea was made freely and voluntarily, and that a factual basis for the plea
existed.[5] The trial court, in fact, questioned Leone several times to
ensure that he understood his rights and was fully aware that he waived
those rights. We conclude that Leone’s sentence does not conflict with
Apprendi or Ring.

Conclusion

We affirm the decision of the trial court.

Dickson, Boehm, Rucker, JJ., concur
Sullivan, J., concurs and dissents with separate opinion.
Sullivan, Justice, concurring and dissenting.

I concur in parts I and III of the Court's opinion. I respectfully
dissent from part II.

Article VII, § 4, of Indiana Constitution provides that "[t]he Supreme
Court shall have, in all appeals of criminal cases, the power to review and
revise the sentence imposed." To sustain a sentence of life imprisonment
without parole, Indiana law requires the weight of the properly proven
statutory aggravating circumstances to be greater than the weight of any
mitigating circumstances that exist. Ind. Code § 35-50-2-9; Greer v.
State, 749 N.E.2d 545, 549 (Ind. 2001). I believe the Court should revise
the sentence imposed here because weight of the sole aggravating
circumstance does not, in my view, outweigh the combined weight of the
mitigating circumstances.

As discussed in the Court's opinion, the trial court's sentence was
based on its finding that two statutory aggravating circumstances existed.
In part I of the Court's opinion, the Court holds that the trial court's
finding of the existence of one of those statutory aggravating
circumstances was contrary to law. The sole existing statutory aggravating
circumstance, intentional killing while committing child molesting, is
without question a very weighty aggravating circumstance. But I believe
that its weight is no greater than the combined weight of the mitigating
circumstances.

First, Leone pled guilty to the crime charged. A guilty plea
demonstrates a defendant's acceptance of responsibility for the crime and
at least partially confirms the mitigating evidence regarding his
character. Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995). A guilty
plea further extends a benefit to the state and the victim or the victim's
family by avoiding a full-blown trial. Id. Thus, a defendant who pleads
guilty deserves to have some mitigating weight extended to the guilty plea
in return. Id. Accord, Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995);
Hardebeck v. State, 656 N.E.2d 486, 493 (Ind. Ct. App. 1995), trans.
denied. See also Duvall v. State, 540 N.E.2d 34, 35 (Ind. 1989); Davis
v. State, 477 N.E.2d 889, 899 (Ind. 1985) (death penalty case); Lang v.
State, 461 N.E.2d 1110, 1112-1113 (Ind. 1984); Singer v. State, 674 N.E.2d
11, 14 (Ind. Ct. App. 1996).

Second, Leone was adjudged by the trial court to be guilty but
mentally ill. As best as I can determine, this is the first case in which
we have ever affirmed a sentence of life imprisonment without parole on a
person found guilty but mentally ill following a guilty plea. This Court
has repeatedly reduced lesser sentences where inadequate weight has been
given to the mitigating weight of an adjudication of guilty but mentally
ill. See Crawford v. State, 770 N.E.2d 775, 783 (Ind. 2002) (reduction of
defendant's 65 year sentence to the presumptive 55 years in part due to the
"significant mitigating circumstance" of defendant's mental illness); Weeks
v. State, 697 N.E.2d 28, 31 (Ind.1998) (reduction of defendant's 60 year
sentence to the presumptive sentence of 50 years due to defendant's mental
illness); Archer v. State, 689 N.E.2d 678, 685-86 (Ind.1997) (defendant's
long-standing mental illness should have been considered as a mitigator and
therefore warranted a reduction in defendant's total sentence); Gambill v.
State, 675 N.E.2d 668, 677-78 (Ind.1996) (defendant's mental illness was a
substantial mitigator calling for the imposition of the presumptive
sentence); Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind.1996) (finding an
abuse of discretion where trial court failed to consider defendant's mental
illness as a mitigator; remanded for imposition of presumptive sentence);
Barany v. State, 658 N.E.2d 60, 67 (Ind.1995) (finding a relationship
between defendant's mental illness and the commission of the crime;
remanded for imposition of presumptive sentence).

Third, as the Court points out, lack of a criminal record must be
given substantial weight as a mitigator. Edgecomb v. State, 673 N.E.2d
1185 (Ind. 1996). The Court finds that this weight should be diminished in
Leone's situation for the sole reason that he was convicted of auto theft
when he was 24 years old. I would find that a single, non-violent youthful
encounter with the law is insufficient to deprive him of the benefit of the
lack of a criminal record mitigating circumstance.

Fourth, the Court sets forth in footnote 3 an additional twelve
mitigating circumstances found by the trial court to exist. Several of
these relate to the profound negative impact on his personality of the
multiple strokes he suffered in 1997. Several others relate explicitly to
the mental illness from which he suffers.

I would find that the combined weight of these mitigating
circumstances is at least equal to the weight of the sole remaining
aggravating circumstance and would reduce Leone's sentence of life
imprisonment without parole to one of a term of years.

-----------------------
[1] Ind. Code § 35-50-2-9(b)(11)(C) (West 1998), states that an aggravating
circumstance is torture if “[t]he defendant burned, mutilated, or tortured
the victim while the victim was alive.”
[2] Webster’s Dictionary defines torture as the “infliction of intense pain
to punish or coerce someone; torment or agony induced to penalize religious
or political dissent or nonconformity to extort a confession or a money
contribution, or to give sadistic pleasure to the torturer.” Webster’s
Third New International Dictionary 2414 (1993).
[3] The court found the following mitigating factors:

1. Leone had been gainfully employed for most of his adult life until he
suffered multiple strokes.
2. Leone was raised in a dysfunctional family and had been physically,
emotionally and sexually abused.
3. Leone had a biological propensity towards violence as a male of an
alcoholic father.
4. Leone had a good marriage and was a loving stepfather prior to his
strokes in 1997. Also, Leone had never acted inappropriately or
abusively toward his step-children prior to the offense.
5. Leone had a history of marijuana abuse and likely was using it to self-
treat his mental disorders.
6. Leone had a learning disability that was never diagnosed nor treated,
and it may have predisposed him to impulsive and violent behavior.
7. Leone suffered multiple strokes in 1997 that led to impairment of his
ability to control his impulses.
8. Leone’s personality changed after the strokes including increased
libido, but Leone received no medications or treatment which could
have alleviated the deficits.
9. Leone separated from his wife shortly before the murder largely due to
changes in his personality following his strokes, and the living
conditions in the camper he moved into led to increased stress and
depression.
10. Leone turned himself in shortly after the crime, confessed, and aided
in the investigation.
11. Leone consistently has expressed remorse for his crime and his remorse
appears to be genuine.
12. Leone’s behavior in prison has been under control since he was placed
on appropriate medication.
(Appellant’s App. at 623-25.)
[4] In Bostick v. State, 773 N.E.2d 266, 273 (Ind. 2002), we stated:
The United States Supreme Court, however, has since determined that
the Sixth Amendment to the U.S. Constitution requires that "any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Ring v.
Arizona, made it clear that Apprendi applies to capital sentencing
schemes. 536 U.S. at 584, 122 S.Ct. at 2443, 153 L.Ed.2d at 556.
Contrary to Apprendi and Ring, the defendant's sentences to life
without parole pursuant to Ind. Code § 35-50-2-9, were based on facts
extending the sentence beyond the maximum authorized by the jury's
verdict finding [him] guilty of murder.
Here, Leone plead guilty to the murder and waived his rights to a jury
trial.

[5] The right to trial by jury, a fundamental right guaranteed by the Sixth
Amendment of the federal Constitution and by Article 1, § 13 of the Indiana
Constitution, is subject to knowing, intelligent, and voluntary waiver.
Woodson v. State, 501 N.E.2d 409 (Ind. 1986). Once the right has been
effectively waived, withdrawal of the waiver rests within the discretion of
the court. Id. at 411.