Kubsch v. State, 71S00-9904-DP-239.

Citation784 N.E.2d 905
Case DateMarch 14, 2003
CourtSupreme Court of Indiana

784 N.E.2d 905

Wayne KUBSCH, Appellant (Defendant),
STATE of Indiana, Appellee (Plaintiff)

No. 71S00-9904-DP-239.

Supreme Court of Indiana.

March 14, 2003.

784 N.E.2d 910
Monica Foster, Rhonda Long-Sharp, Foster & Long-Sharp, Indianapolis, IN, Attorneys for Appellant

Steve Carter, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN, Marshall L. Dayan, Durham, NC, Brief of Amicus Curiae Commission on Social Action of Reform Judaism.

784 N.E.2d 906
784 N.E.2d 907
784 N.E.2d 908

784 N.E.2d 909
On Direct Appeal

RUCKER, Justice.

Case Summary

After a trial by jury, Wayne Kubsch was convicted of three counts of murder in the shooting and stabbing deaths of his wife Beth Kubsch, Beth's ex-husband Rick Milewski, and Beth's eleven-year-old son, Aaron Milewski. Following the jury's recommendation, the trial court sentenced Kubsch to death. In this direct appeal Kubsch raises eighteen issues for review, which include whether the trial court erred

784 N.E.2d 911
in admitting Kubsch's entire videotaped interrogation into evidence. This issue is dispositive. We therefore reverse the trial court's judgment and remand this cause for a new trial. However, because several issues are likely to arise on retrial, we address them as well. Restated the issues are: (1) did the trial court err by allowing into evidence items seized from Kubsch's truck; (2) was inadmissible hearsay allowed into evidence; (3) did the trial court err by allowing opinion testimony into evidence; (4) did the trial court err by allowing certain photographs into evidence; and (5) was Kubsch denied the opportunity to present a meaningful defense

Facts and Procedural History

Wayne and Beth Kubsch dated several years before getting married in November 1997. At the time of their marriage, Beth was the mother of two sons from a previous marriage: eleven-year-old Aaron Milewski, and twelve-year-old Anthony Earley. Aaron lived in South Bend with his father Rick Milewski, and Anthony lived with Kubsch and Beth in their Mishawaka home. In addition to the house in Mishawaka, Kubsch owned eleven rental properties throughout St. Joseph County with mortgages totaling over $456,000. By 1998, Kubsch had amassed considerable personal debt. In March 1998, Kubsch refinanced four of his rental properties to pay off credit card debt exceeding $16,000. Despite paying off this debt, by August 1998 Kubsch had accumulated another $23,000 in credit card debt. And by September 1998, Kubsch was falling behind on some of his mortgage payments, and the taxes on his rental properties were so delinquent that he was in danger of losing them in a tax sale.

In the midst of these financial problems, Kubsch purchased a life insurance policy on his wife Beth, and listed himself as the sole beneficiary. The policy was issued July 27, 1998, and paid $575,000 upon the death of the insured.

On September 18, 1998, Beth was scheduled to retrieve Anthony from a school dance at 4:45 p.m. When she failed to show, Anthony received a ride home from a friend. Arriving at the house at approximately 5:30 p.m., Anthony saw the cars of both Beth and Rick parked in the driveway. When he entered the house, however, no one appeared to be home. While searching the house, Anthony noticed blood on the floor in his mother's bedroom as well as signs of a struggle. He then checked the basement, where he found the bodies of Rick and Aaron. Rick had been shot in the head, and a knife was protruding from his chest. A later autopsy revealed that Aaron also had been shot in the head and stabbed twenty-two times. Unable to find the telephone, Anthony ran to the house of a neighbor, who called 911.

When Kubsch arrived home around 6:45 p.m., his house was closed off with crime scene tape. After being told that Rick and Aaron were dead and that his wife's whereabouts were unknown, Kubsch accompanied police to the Special Crimes Unit in South Bend for routine questioning. Michael Samp and Mark Reihl, both detectives with the Special Crimes Unit, videotaped and audio taped the questioning. Although Detective Samp informed Kubsch that he was not under arrest, he nevertheless read Kubsch Miranda warnings. Kubsch signed a waiver of rights form and proceeded to answer the detectives' questions concerning his whereabouts that day. Kubsch told police that he had not seen Beth since he left for work around 6:00 a.m. that morning and that he had just returned from Three Rivers, Michigan where he had picked up his son. Eventually Kubsch said, "I don't wanna talk anymore...." R. at 914. When the detectives began asking additional questions,

784 N.E.2d 912
Kubsch again said, "I don't want to go [talk] anymore" and left the interview room. R. at 914.

Around 9:00 p.m., police discovered Beth's body in the basement. It was hidden in a "fort" that Anthony had built underneath the basement steps. R. at 3359. Beth had been "hog-tied" with duct tape, and her head was encased in duct tape. R. at 3359-60. She had been stabbed eleven times. A pair of sunglasses belonging to Kubsch was lying beside her left knee.

After learning that Beth's body had been found, Detective Samp instructed an officer to bring Kubsch back to the Special Crimes Unit. Detective Samp wanted to ask Kubsch a few more questions, seek permission to search his vehicle, and inform him that his wife was dead. This second round of questioning was also audio taped and videotaped. Upon entering the interview room, Kubsch said "I really don't want to answer anymore ... questions ... [b]ecause if I was you ... I would look at me as a prime suspect and I ... really don't want to answer any questions." R. at 914-15. Detective Samp then asked Kubsch for permission to search his vehicle, and Kubsch signed a consent form permitting officers to do so. At that point, Detective Reihl asked Kubsch "[w]hat happened at the house?" R. at 917. When Kubsch did not answer, Detective Reihl informed him that Beth was dead. Kubsch's reaction was "[that] was fairly obvious." R. at 917. Detective Reihl then asked Kubsch again what happened at the house, to which Kubsch responded, "I don't want to answer anymore questions." R. at 917. Detective Reihl replied, "Exactly what do you mean when you say you don't want to talk to us?" R. at 917. Kubsch elaborated, "I don't want to talk without an attorney." R. at 917-18. The questioning was discontinued.

From September to December 1998, no one was arrested or charged in connection with the three deaths. However, on December 18, 1998, a person by the name of Tashana Penn told police that during the first week of December she and her boyfriend were present at a restaurant in Mishawaka. According to Penn, when her boyfriend left the table to go to the restroom, she overheard a conversation between two men who were seated in a booth directly behind her. Penn told police that one of the men said he had hurt a little boy and although he did not like the little boy, he never meant to hurt him. According to Penn, the man also admitted hurting the little boy the most severely and predicted that he would never get caught. Penn later identified Kubsch from a photo array as the man talking in the restaurant.

On December 22, 1998, the State charged Kubsch with three counts of murder. And on April 7, 1999, the State filed its notice of intent to seek the death penalty. The trial was held June 1-15, 2000. The State's theory at trial was that Kubsch's financial difficulties spawned the purchase of the life insurance policy and the plot to kill Beth. The State argued that the murders were committed between 1:53 and 2:51 p.m. primarily based on Kubsch's cellular phone records. The State contended that Kubsch first killed Beth, was surprised by Rick and Aaron's arrival, and then was forced to kill them. The defense theory at trial was that Kubsch was in Michigan picking up his son at the time of the murders and that Brad Hardy, a lifelong friend of Kubsch, committed the murders.1 In support of its theory, the State presented evidence that Kubsch's cellular

784 N.E.2d 913
phone records placed him near his home in Mishawaka, when he claimed to be present in Michigan. The State also presented evidence that duct tape packaging was found during the search of Kubsch's vehicle. And despite Kubsch's claim that he had not seen Beth since 6:00 a.m. on the morning of the crimes, the State presented evidence that a bank receipt stamped 11:13 a.m. on September 18 with Beth's fingerprints on it had also been found during the search of Kubsch's vehicle.

The jury found Kubsch guilty as charged. The penalty phase of trial was held on June 16, 2000, and the jury returned a recommendation of death. Following a sentencing hearing, the trial court imposed the death penalty in a one-page sentencing order dated September 1, 2000. Kubsch appealed to this Court raising eighteen issues, one of which was that the sentencing order was deficient. The State conceded this point, and we remanded this cause to the trial court for a new sentencing order. On January 11, 2002, the trial court issued a new sentencing order once again imposing the death penalty. Kubsch now appeals. In addition to the seventeen issues initially raised, Kubsch also contends that the new sentencing order is again deficient.2



Doyle Violation

During its case in chief, the State played the videotape showing both rounds of Kubsch's questioning. Kubsch objected to those portions of the videotape showing him invoking his right to silence. Overruling the objection, the trial court played the videotape in its entirety. During deliberations, the jury requested to view the videotape again. Over Kubsch's objection, the trial court replayed the entire videotape. Kubsch contends that the trial court erred in admitting those portions of the videotape showing him invoking his...

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