William Steve Landske v. State of Indiana ( 2020 )

FILED
May 14 2020, 9:04 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott King Curtis T. Hill, Jr.
Lakeisha Murdaugh Attorney General of Indiana
King, Brown & Murdaugh, LLC
Merrillville, Indiana Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Steve Landske, May 14, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2528
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Rex W. Kepner,
Appellee-Plaintiff. Special Judge
Trial Court Cause No.
45G01-1808-MR-15
Najam, Judge.
Statement of the Case
[1] William Steve Landske appeals his conviction for murder, a felony, following a
jury trial. He presents two issues for our review:
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1. Whether the State presented sufficient evidence to negate
Landske’s contention that he was acting under sudden
heat.
2. Whether his sentence is inappropriate in light of the nature
of the offense and his character.
[2] We affirm.
Facts and Procedural History
[3] Landske and his wife, Sue Landske, were married for many years, and they ran
various businesses together. The Landskes were friends with Tracy Edward
“Ted” Page, a lawyer and former Lake Superior Court Magistrate, who had
“do[ne] taxes for the Landske family” for approximately thirty years. Tr. Vol. 2
at 121. In the course of that work, Page had accumulated scores of documents
relevant to the Landskes’ tax returns.
[4] Sue, a former State Senator, died in February 2015. Landske, who was then
eighty years old, had difficulty managing his affairs, and one of his daughters,
Cheryl Boisson, became Landske’s attorney-in-fact. Page continued in his role
as tax preparer for the Landskes, and after Sue died, Landske continued to
deliver tax-related documents to Page. At one point, Landske and Boisson
dropped off eight or ten large boxes of Landske’s “tax[-]related documents” to
Page at his home. Appellant’s Br. at 7.
[5] In the years following Sue’s death, Landske and other family members became
concerned and frustrated that Page had not been diligent in handling the
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family’s taxes, and they decided to ask Page to return their documents. Page
agreed, and they made an appointment to meet Page at his home on August 15,
2018. On that day, when Boisson and her sister Jackie Basilotta were visiting
with Landske in anticipation of their meeting with Page, Boisson found
Landske in his bedroom sitting with Sue’s ashes. Landske told Boisson that he
was “talking to mom.” Id. at 43. Basilotta then entered the bedroom, and
Landske began “expressing some opinions” about Page. Id. at 44. Landske
twice asked, “what has Ted done these last three years?” Id. Basilotta then told
Landske that he did not need to go to Page’s home—that she and Boisson
would take care of everything. But Landske insisted that he would go with
them.
[6] When Landske and his daughters arrived at Page’s home in Hobart, Page and
his husband, Kevin Swanson, met them and showed them approximately forty
bags and boxes of documents assembled on the floor in the foyer. While
Boisson and Basilotta began carrying boxes outside to their vehicles, Landske
and Page left the foyer and walked outside into the yard together. Landske told
Page he wanted to talk, put his arm around Page, and, within moments, pulled
a handgun from his pocket and shot Page four times, first in his abdomen and
then in his back. 1 Page fell to the ground and died immediately. One of
1
Landske asserts in his brief at page 11 that he shot Page twice, but the coroner’s report admitted at trial
states that Page died from “(4) gunshot wounds.” State’s Ex. 7.
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Landske’s daughters called 9-1-1, and the officers who responded arrested
Landske.
[7] Later, Landske agreed to give a statement to law enforcement. Landske stated
that he had been “pissed off” at Page because of Page’s procrastination in
preparing his taxes. State’s Ex. 26. And Landske stated that, when he put his
arm around Page, he knew he was going to shoot him.
[8] The State charged Landske with murder. At his jury trial, Landske argued that
he had killed Page in the heat of the moment as a result of Page’s provocation.
Thus, Landske asserted that he could only be convicted of voluntary
manslaughter, not murder. When Landske requested a voluntary manslaughter
instruction, the parties and the trial court discussed, at length, whether there
was a “serious evidentiary dispute” on the question of sudden heat, which is
required to prove voluntary manslaughter. Tr. Vol. 3 at 52. The court stated
that it was a “close call.” Id. at 72. In the end, the court instructed the jury on
both murder and voluntary manslaughter. The jury found Landske guilty of
murder. The trial court entered judgment of conviction and sentenced Landske
to the advisory sentence of fifty-five years in the Department of Correction.
This appeal ensued.
Discussion and Decision
Issue One: Sudden Heat
[9] Once a defendant presents evidence of sudden heat, the State bears the burden
of disproving its existence beyond a reasonable doubt. Whitt v. State, 91 N.E.3d
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1082, 1093 (Ind. Ct. App. 2018), trans. denied. Landske contends that the
State’s evidence was insufficient to disprove his defense. In particular, Landske
contends that the State failed to rebut the evidence that, when he shot Page, he
was acting under sudden heat. Our standard of review on a claim of
insufficient evidence is well settled:
For a sufficiency of the evidence claim, we look only at the
probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
not assess the credibility of witnesses or reweigh the evidence. Id.We will affirm the conviction unless no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable
doubt. Id.Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[10] To prove murder, the State had to show that Landske knowingly or
intentionally killed Page. Ind. Code § 35-42-1-1 (2019). However, if Landske
knowingly or intentionally killed Page while acting under sudden heat, Landske
committed voluntary manslaughter. I.C. § 35-42-1-3. In other words, the
existence of sudden heat is a mitigating factor that reduces what otherwise
would be murder to voluntary manslaughter. Id. Once a defendant places
sudden heat into issue, the State bears the burden of negating the presence of
sudden heat beyond a reasonable doubt. Earl v. State, 715 N.E.2d 1265, 1267
(Ind. 1999). The State may meet this burden by rebutting the defendant’s
evidence or by affirmatively showing in the State’s case-in-chief that the
defendant was not acting in sudden heat when the killing occurred. Id.Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 5 of 11
“Sudden heat exists when a defendant is ‘provoked by anger, rage, resentment,
or terror, to a degree sufficient to obscure the reason of an ordinary person,
prevent deliberation and premeditation, and render the defendant incapable of
cool reflection.’” Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018) (quoting Isom
v. State, 31 N.E.3d 469, 486 (Ind. 2015)). It involves an “impetus to kill” that
arises “suddenly.” Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct. App.
2010), trans. denied. Words alone, however, are not sufficient provocation to
reduce murder to manslaughter. Id.[11] Here, Landske maintains that the evidence shows the shooting was a “quickly
transpiring tragedy” that happened because he “lost it” when he saw “the ocean
of bags that he believed Page was taking care of on his behalf.” Appellant’s Br.
at 11. But the undisputed evidence shows that, before he arrived at Page’s
home the day of the shooting, Landske knew there would be a large number of
documents there, which had accumulated over many years, so that was not a
surprise. Landske’s angry reaction upon seeing the bags and boxes was entirely
within his control and not attributable to anything Page did to him. Landske
had insisted that he accompany his daughters to Page’s home, after they had
told him that he did not need to go. The Landskes had made an appointment
with Page, and there was nothing sudden or unanticipated about Landske’s
meeting with Page.
[12] Landske does not contend or suggest that, other than returning the documents,
Page did anything on August 15, 2018, to provoke him. Indeed, the evidence
shows that, only a short time after Landske had arrived at Page’s home,
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Landske and Page were standing next to each other in the yard when Landske
suddenly shot Page. Landske concedes that he and Page “were actually on
good terms” and that there was “no heated argument or physical
confrontation” before the shooting. Appellant’s Br. at 11. Nevertheless, he
contends that he “became enraged when he observed the ocean of bags.” Id.We are not persuaded that the sight of a large number of tax-related documents
in Page’s foyer was a provocation sufficient to cause a sudden “impetus to kill.”
Suprenant, 925 N.E.2d at 1283. Landske confuses irritation and consternation
with provocation.
[13] Landske also contends that there is no evidence of premeditation, but this
argument is misplaced. The State was not required to prove premeditation to
convict Landske of murder. And neither does the absence of premeditation, in
itself, show that Landske acted under sudden heat. To the extent Landske
contends that there is insufficient evidence to prove he intended to kill Page, we
cannot agree. It is well settled that “[t]he intent to commit murder may be
inferred from the intentional use of a deadly weapon in a manner likely to cause
death.” Taylor v. State, 681 N.E.2d 1105, 1111 (Ind. 1997). The evidence
shows, and Landske admitted, that he shot Page at close range, which proves
that he intentionally killed him. Id.[14] “‘Existence of sudden heat is a classic question of fact to be determined by the
jury.’” Jackson v. State, 709 N.E.2d 326, 329 (Ind. 1999) (quoting Fisher v. State,
671 N.E.2d 119, 121 (Ind. 1996)). The jury’s conviction of Landske for murder
was a rejection of his sudden heat defense. Id. Findings of fact are the province
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of the jury. Landske asks that we reweigh the evidence on appeal, which we
cannot do. The jury found no sudden heat, and we will not disturb its finding.
Accordingly, we hold that in its case-in-chief the State presented evidence
beyond a reasonable doubt that Landske was not acting under sudden heat
when he killed Page.
Issue Two: Sentencing
[15] Landske next contends that his advisory sentence of fifty-five years is
inappropriate in light of the nature of the offense and his character. As our
Supreme Court has made clear:
The Indiana Constitution authorizes appellate review and
revision of a trial court’s sentencing decision. Ind. Const. art. 7,
§§ 4, 6; Serino v. State, 798 N.E.2d 852, 856 (Ind. 2003). This
authority is implemented through Indiana Appellate Rule 7(B),
which permits an appellate court to revise a sentence if, after due
consideration of the trial court’s decision, the sentence is found to
be inappropriate in light of the nature of the offense and the
character of the offender. Serino, 798 N.E.2d at 856. The
principal role of such review is to attempt to leaven the outliers.
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The burden
is on the defendant to persuade the reviewing court that the
sentence is inappropriate. Bowman v. State, 51 N.E.3d 1174, 1181
(Ind. 2016).
Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam).
[16] Further:
Indiana Appellate Rule 7(B) is a “rare” avenue for appellate relief
that is reserved “for exceptional cases.” Livingston v. State, 113
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N.E.3d 611, 612-13 (Ind. 2018) (per curiam). Even with Rule
7(B), “[s]entencing is principally a discretionary function in
which the trial court’s judgment should receive considerable
deference.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)
(quoting Cardwell, 895 N.E.2d at 1222). “Such deference should
prevail unless overcome by compelling evidence portraying in a
positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent
examples of good character).” Id. Absent such a “sufficiently
compelling” evidentiary basis, we will not “override the decision
of . . . the trial court.” Id.
Sorenson v. State, 133 N.E.3d 717, 728 (Ind. Ct. App. 2019) (alteration and
omission original to Sorenson), trans. denied. And we have explained that the
revision of a sentence under Appellate Rule 7(B) requires that an appellant
“‘demonstrate that his sentence is inappropriate in light of both the nature of the
offenses and his character.’” Sanders v. State, 71 N.E.3d 839, 843 (Ind. Ct. App.
2017) (quoting Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008))
(emphasis original to Williams), trans. denied. Regarding the nature of the
offense, the advisory sentence is the starting point the Legislature has selected
as an appropriate sentence for the crime committed. Childress v. State, 848
N.E.2d 1073, 1081 (Ind. 2006). The advisory sentence for murder is fifty-five
years, with a sentencing range from forty-five to sixty-five years. I.C. § 35-50-2-
3. Here, again, the trial court imposed the advisory sentence of fifty-five years.
[17] In support of his contention that his sentence is inappropriate, Landske relies on
Griffin v. State, 963 N.E.2d 685 (Ind. Ct. App. 2012), a partially analogous case
in which the trial court also gave both a murder and an involuntary
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manslaughter instruction and the defendant was convicted of murder and
sentenced to fifty-five years. As here, the crime in Griffin was brutal. On
appeal, Griffin contended that his sentence was inappropriate and should be
revised pursuant to Indiana Appellate Rule 7(B). Like Landske, Griffin had no
criminal history, cooperated with law enforcement, had served in the military,
and was honorably discharged.
[18] While the jury rejected Griffin’s voluntary manslaughter defense, there was
“pervasive evidence” which showed that the homicide was in response to a
sexual assault. Id. at 692-93. We concluded that, “[a]lthough the jury’s
rejection of ‘sudden heat’ is sustainable on appeal, we would be less than
diligent in our assessment of the nature of the offense if we ignored such
evidence,” and we revised Griffin’s sentence to forty-five years. Id. at 693. In
sum, while the sexual assault was not a mitigating factor, we held that, as the
victim of a crime, Griffin was entitled to some consideration in sentencing.
Griffin is distinguishable from the instant case. Here, there was nothing in
Page’s conduct that would remotely entitle Landske to mitigation of his
sentence. Landske’s reliance on Griffin is misplaced.
[19] Still, Landske contends that the nature of the offense, while “horrific,” does not
support the advisory sentence. Appellant’s Br. at 13. Again, Landske
maintains that Page’s murder was not premeditated, but was “indisputably
caused by sudden heat.” Id. And Landske describes the murder as having been
the result of “tension” due to Page’s mishandling of the Landske family taxes
and because Landske was “a depressed widower faced with potential[ly] serious
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IRS issues.” Id. at 13-14. However, Landske shot Page, his friend of some
thirty years, at point blank range, over Page’s inattention to Landske’s taxes.
And Landske committed the murder in the presence of Page’s husband and
Landske’s daughters. We cannot say that Landske’s fifty-five-year sentence is
inappropriate in light of the nature of the offense.
[20] Landske also contends that his sentence is inappropriate in light of his
character. He points out that he has no criminal history, he served in the
military and received an honorable discharge, he confessed to killing Page, and
he has the support of friends and family. However, we agree with the trial
court’s description and assessment of Landske’s conduct, that whether or not
the murder was premeditated, Landske’s behavior toward Page was methodical
and deliberate, that he delivered not one shot but multiple shots to Page, point
blank and at close range, all of which reflects poorly on his character. And then
Landske calmly recounted the details of the murder to law enforcement in a
matter-of-fact manner with no apparent indication of remorse. The trial court’s
judgment in sentencing is entitled to considerable deference. Cardwell, 895
N.E.2d at 1222. We cannot say that Landske’s advisory sentence is
inappropriate in light of his character.
[21] Affirmed.
Kirsch, J., and Brown, J., concur.
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