KUBSCH v. State of Ind.

• Decision Date: 10 December 2010
• Docket Number: No. 71S00-0708-PD-335.,71S00-0708-PD-335.
• Parties: Wayne D. KUBSCH, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

934 N.E.2d 1138

Wayne D. KUBSCH, Appellant (Petitioner below),

v.STATE of Indiana, Appellee (Respondent below).

No. 71S00-0708-PD-335.

Supreme Court of Indiana.

Oct. 5, 2010.

Rehearing Denied Dec. 10, 2010.

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Susan K. Carpenter, Public Defender of Indiana, Steven H. Schutte, Deputy Public Defender, Laura L. Volk, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition for Post-Conviction Relief

RUCKER, Justice.

Case Summary

Wayne Kubsch has been tried twice for the murders of his wife, Beth Kubsch, her ex-husband, Rick Milewski, and her eleven-year-old son, Aaron Milewski. Two juries found him guilty and both juries recommended the death penalty. On direct appeal we affirmed Kubsch's conviction and sentence of death. Thereafter, Kubsch filed a petition for post-conviction relief which the post-conviction court denied after a hearing. Kubsch now appeals that denial raising several issues for our review, nine of which are waived because they were known and available at the time of Kubsch's direct appeal, ¹ and another three issues are barred because of the doctrine of res judicata. ² We address the remaining issues which we summarize as follows: (1) did the prosecutor fail to disclose exculpatory evidence; and (2) was Kubsch denied the effective assistance of trial counsel.

Facts and Procedural History

A detailed recitation of the facts is set forth in our prior opinions on direct appeal. See Kubsch v. State, 784 N.E.2d 905 (Ind.2003) (“ Kubsch I ”); Kubsch, 866 N.E.2d 726 (Ind.2007) (“ Kubsch II ”). We summarize them here as follows. On September 18, 1998, twelve-year-old Anthony Early found the bodies of his half-brother, Aaron Milewski, and Aaron's father, Rick Milewski, in the basement of his Mishawaka home. Anthony lived in the home with his mother, Beth Kubsch, who was Aaron's mother and Rick's ex-wife, and Wayne Kubsch, Beth's husband at the time. Beth Kubsch's body was also found in the basement by crime scene investigators later that evening. All three victims had been stabbed repeatedly, and Aaron and Rick Milewski had also been shot at close range.

In late December 1998, the State charged Kubsch with the three murders and filed notice of intent to seek the death penalty in April 1999. A trial ensued in 2000 and Kubsch was found guilty and sentenced to death consistent with the jury's recommendation. Kubsch appealed, and we reversed on the basis of a Doyle violation and ordered a new trial. Kubsch I, 784 N.E.2d at 926. ³

The second trial took place in March 2005 and the jury found Kubsch guilty of the three murders and recommended the death penalty. The judge imposed the death sentence in April 2005. We affirmed Kubsch's convictions and sentence on direct appeal. See Kubsch II, 866 N.E.2d at 740. Thereafter Kubsch filed a petition for post-conviction relief which the post-conviction court denied after a hearing. This appeal followed. Additional facts will be discussed as necessary below.

Standard of Review

The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993). Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, “[a] post-conviction court's findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (internal citation and quotation omitted).

Discussion

I. Exculpatory Evidence

Kubsch contends that he is entitled to a new trial on the basis that the State failed to turn over exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Kubsch claims the State suppressed a letter written by Michael Dvorak prior to his election to the post of St. Joseph County Prosecutor but during his representation of Brad Hardy. The letter was written to Scott Duerring, the deputy prosecutor, and disclosed to Duerring that Hardy knew a person named Darin Polachek who drove a tan-over-brown 1978 Oldsmobile and Hardy had played basketball with Polachek at Kubsch's home a few days before the murders. The letter also disclosed that Hardy had suffered a head injury sometime in the 1990s which apparently affected his short-term memory. Although Kubsch does not say so in express terms, he apparently contends the letter amounts to newly discovered evidence because it was discovered after his trial and direct appeal.

“[N]ew evidence will mandate a new trial only when the defendant demonstrates that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial.” Taylor v. State, 840 N.E.2d 324, 329-30 (Ind.2006) (quoting Carter v. State, 738 N.E.2d 665, 671 (Ind.2000)). “This Court analyzes these nine factors with care, as the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.” Id. at 330 (internal quotations omitted). The burden of showing that all nine requirements are met rests with the petitioner for post-conviction relief. Webster v. State, 699 N.E.2d 266, 269 (Ind.1998). Kubsch fails to meet the materiality requirement, thereby defeating both the initial claim of newly discovered evidence and the claim of a Brady violation. ⁴

Kubsch contends the evidence is material because the information contained in the letter is favorable to his defense in that it exculpates Kubsch by proving that Hardy identified an acquaintance that was present in Kubsch's neighborhood prior to the murders and drove a car similar to one seen by Kathy Kruszewski driving away from the area near the murder scene. ⁵ Furthermore, Kubsch contends the letter impeaches Hardy's credibility by revealing a head injury which affected his memory.

With regard to the information about Polachek and his brown car, we note that the evidence would not have been useful to the defense because the witness who saw the car reported that she would not recognize the driver. Even if the defense had the information, the witness' observations were too vague to be valuable. The information was shared with the prosecution after Kubsch's first trial and in connection with the investigation of Hardy. Duerring responded to the letter and informed Dvorak that the information about Polachek's car was not helpful given the witness' inability to recognize the driver and additionally noted that Hardy's mother owned a vehicle matching the description as well. See Appellant's App.PCR at 449. ⁶ This information is not relevant to Kubsch's guilt, and therefore there is no reasonable probability that the result would have been different if the prosecution had provided Kubsch with the letters.

Regarding Hardy's head injury and alleged memory impairment, Kubsch provided no documentation or substantiation of the injury or any lasting effects from the accident that would have affected Hardy's testimony. Kubsch additionally failed to establish what impact any impairment to Hardy's memory would have had on the trial. Although trial counsel were apparently unaware of any injury affecting Hardy's memory, counsel vigorously cross-examined Hardy and impeached Hardy's memory. Hardy's mother corroborated the key points of Hardy's testimony, and no evidence has been presented to impeach her memory.

In sum, neither the information about Polachek's car nor Hardy's head injury was material to Kubsch's case. Kubsch has failed to establish the nine requirements for obtaining a new trial due to newly discovered evidence, and therefore his Brady claim also must fail.

II. Ineffective Assistance of Trial Counsel

Kubsch's remaining complaints center on the alleged shortcomings of his trial counsel. Kubsch argues his trial counsel were ineffective because they: (a) failed to object to evidence regarding investigation of a life insurance claim, (b) failed to object to testimony regarding the presence of a non-testifying defense expert during DNA testing, (c) failed to object to the State's 404(b) notice, (d) failed to object to the introduction of a receipt for the purchase of a ski mask, (e) failed to present all available impeachment evidence to one of the State's witnesses, (f) failed to seek a stipulation or present evidence to bolster Kubsch's testimony, (g) failed to present evidence regarding a car driving away from the murder scene, (h) failed to present evidence of an ATM transaction the day after the murder, (i) introduced testimony that contradicted his defense, and (j) failed to adequately cross-examine the State's expert and correct inaccuracies in the State's closing argument. Additionally, Kubsch contends the cumulative effect of these several alleged inadequacies entitle him to a new trial.

To establish a post-conviction claim alleging the...