Kubsch v. Neal

• Decision Date: 12 August 2015
• Docket Number: No. 14–1898.,14–1898.
• Citation: 800 F.3d 783
• Parties: Wayne KUBSCH, Petitioner–Appellant, v. Ron NEAL, Superintendent, Indiana State Prison,Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

800 F.3d 783

Wayne KUBSCH, Petitioner–Appellant
v.
Ron NEAL, Superintendent, Indiana State Prison¹ Respondent–Appellee.

No. 14–1898.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 10, 2015.
Decided Aug. 12, 2015.
Rehearing En Banc Granted, Opinion Vacated Nov. 23, 2015.

800 F.3d 787

Marie F. Donnelly, Alan Michael Freedman, Evanston, IL, for Petitioner–Appellant.

Stephen R. Creason, James Blaine Martin, Office of the Attorney General, Indianapolis, IN, Respondent–Appellee.

Before WOOD, Chief Judge, and TINDER and HAMILTON, Circuit Judges.

Opinion

HAMILTON, Circuit Judge.

Wayne Kubsch appeals the denial of his habeas corpus petition. After being convicted of murdering his wife, her son, and her ex-husband, Kubsch was sentenced to death. Kubsch's three principal arguments on appeal are that his conviction and sentence are unconstitutional because (a) the Indiana trial court excluded evidence of a witness's exculpatory but hearsay statement to police, (b) he was denied effective assistance of counsel in seeking admission of the witness's hearsay statement, and (c) his waiver of counsel and choice to represent himself at the sentencing phase of his trial were not knowing and voluntary.

We reject all three claims. Kubsch argues for a constitutional right to defend himself with otherwise inadmissible hearsay, at least if the hearsay seems sufficiently reliable and is sufficiently important to his defense. See Chambers v. Mississippi, 410 U.S. 284, 300–02, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Kubsch's evidence is not sufficiently reliable to fit that narrow constitutional exception and to have required Indiana courts to disregard long-established rules against using ex parte witness interviews as substantive evidence at trial. His able trial counsel tried hard to have the statement admitted; they were not successful but also were not constitutionally ineffective.

As for the waiver of counsel claim, the Indiana Supreme Court rejected the claim

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in a careful discussion tailored to the facts of this case. Its rejection of the claim was not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1) ; Harrington v. Richter, 562 U.S. 86, 102–03, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

In addition to the exculpatory hearsay claim, the related ineffective assistance claim, and the waiver of counsel claim that we address in detail, Kubsch raises a number of other arguments on appeal, all of which are challenges to the effectiveness of his counsel. We have considered all of these additional arguments, and we reject them for the reasons Chief Judge Simon explained in his thorough opinion. See Kubsch v. Superintendent, No. 3:11CV42–PPS, 2013 WL 6229136 (N.D.Ind. Dec. 2, 2013). Accordingly, we affirm the denial of relief as to both Kubsch's convictions and the death sentence.

I. Factual and Procedural Background

A. Court Proceedings

The State of Indiana charged Kubsch with murdering Beth Kubsch, Aaron Milewski, and Rick Milewski: his wife, her son, and her ex-husband. The three were murdered in Kubsch's home on September 18, 1998. Kubsch was first tried and found guilty in May 2000. The jury recommended and the judge imposed the death penalty. On direct appeal the Indiana Supreme Court held that the first trial violated Kubsch's constitutional rights when the prosecution used his post-Miranda silence as evidence against him. Based on that and other errors, the court vacated the convictions and ordered a new trial. See Kubsch v. State, 784 N.E.2d 905 (Ind.2003).

Kubsch's second trial in March 2005 is our focus. Once more a jury convicted Kubsch of the three murders. There were two big differences in the second trial, in addition to avoiding the errors that had required the new trial. First, Kubsch offered as evidence the videotaped interview of Amanda Buck, a nine-year-old neighbor of Aaron and Rick Milewski. Amanda told a police detective four days after the murders that she had seen both Aaron and Rick alive and well at their home on the day of the murders at a time for which Kubsch has a solid alibi. The judge excluded her recorded statement as hearsay and as having no impeachment value. Second, unlike the first trial, Kubsch decided to waive counsel and represent himself in the sentencing phase of the trial. He also declined to present any mitigating evidence. He told the jury he agreed with the State that no mitigating factors outweighed the aggravating factors supporting a death sentence, but he insisted on his innocence. He ended his brief statement to the jury by saying he did not care what penalty was imposed.

Again the jury's verdict was for death and the judge imposed the death penalty. The state courts affirmed the convictions and sentence on direct appeal, Kubsch v. State, 866 N.E.2d 726 (Ind.2007), and on post-conviction review, Kubsch v. State, 934 N.E.2d 1138 (Ind.2010).

Kubsch then petitioned for a writ of habeas corpus in federal court, raising many more issues than we address in this opinion. The district court denied relief on all claims, Kubsch v. Superintendent, No. 3:11CV42–PPS, 2013 WL 6229136 (N.D.Ind. Dec. 2, 2013), and then denied Kubsch's Rule 59 motion, Kubsch v. Superintendent, No. 3:11CV42–PPS, 2014 WL 1260021 (N.D.Ind. March 24, 2014). Kubsch appeals. We review the district court's decision de novo. E.g., Harris v.

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Thompson, 698 F.3d 609, 622 (7th Cir.2012).

B. The Case Against Kubsch

Chief Judge Simon aptly described the case against Kubsch as a “slow-moving accumulation of a glacier of circumstantial evidence.” 2013 WL 6229136, at *3. A critical factor was that Kubsch's account of his own actions changed dramatically between the night of the murders and his trial testimony, after he knew the constraints imposed by physical and other evidence such as telephone records.

Kubsch lived with his wife Beth in Mishawaka, Indiana. They shared the home with Beth's twelve-year-old son, Anthony Earley. September 18, 1998 was Beth's birthday. She had planned to meet Kubsch for lunch. Beth was supposed to pick up Anthony late in the afternoon after a school dance. When she did not appear, Anthony got a ride home with a friend. At about 5:30, he found Beth's car in the driveway, along with a truck that her ex-husband Rick Milewski was using. The house was locked. Only Wayne, Beth, and Anthony had keys. No one seemed to be home. There was no sign of forced entry.

As Anthony looked around the main floor of the house, though, he saw bloodstains and signs of a struggle. He opened the door to the basement. He saw Rick lying at the foot of the stairs. The handle of a large kitchen knife was sticking out of his chest. Anthony went down the stairs, realized Rick was dead, and also found the body of his eleven-year-old step-brother Aaron lying next to Rick.

Anthony ran for help. Mishawaka police officers arrived about 5:45 p.m. Both Aaron and Rick had multiple stab wounds. The police officers found no sign of gunshot wounds. They also found no sign of Beth. After finding no one else in the house, the police secured the scene until they could obtain a search warrant.

That day Wayne Kubsch had finished work at an area factory shortly before 2:00 p.m. Late in the afternoon, he was returning to Mishawaka from picking up his son in Three Rivers, Michigan. He dropped off his son at Kubsch's grandmother's home. Kubsch arrived home about 6:45 and found the house surrounded by police. Kubsch was told that Aaron and Rick were dead and that no one knew where Beth was.

Kubsch soon went with police officers to the South Bend police department for questioning by detectives. That initial interview was audio- and video-recorded. Kubsch appeared preoccupied and careful, not distraught or frantic. He made no reference to the search for his missing wife, though there were obviously powerful reasons to be worried about her safety. He showed little emotion.

In that first interview on the night of the murders, Kubsch gave the police his first account of his movements and activities that day. Kubsch said that he and Beth had planned to meet for lunch to celebrate her birthday, but that he had called her to cancel because he had been late for work that morning. He also said that he had gotten permission to leave work early for lunch so he could buy Beth a birthday present (something he did not actually do until much later in the day). He told the police that he had gone home at lunch but could not get inside because he had forgotten his house key. He also did not mention that he had gone home a second time—shortly after work—before going to pick up his son in Michigan.

Kubsch ended the interview. His friend Dave Nichols and Nichols' wife testified that Kubsch called them about 8:00 or 8:30 that evening and said two things known to the killer but not yet known to the police.

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He told Nichols that Beth was “gone,” which Nichols understood to mean that she was dead, not missing.² At that time, Beth's body had not yet been...