William Steve Landske v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 14, 2020
• Docket: 19A-CR-2528
• Status: Published

Opinion

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:

Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 1 of 11 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

Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 2 of 11 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.

Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 3 of 11 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

Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 4 of 11 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,

Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 6 of 11 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

Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 7 of 11 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

Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 8 of 11 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 Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 9 of 11 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

Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 10 of 11 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.

Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020 Page 11 of 11