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ATTORNEYS FOR APPELLANT
Susan K. Carpenter Public Defender of Indiana Steven H. Schutte Deputy Public Defender Laura L. Volk Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Gregory F. Zoeller Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

FILED
Oct 05 2010, 2:07 pm

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Indiana Supreme Court
_________________________________ No. 71S00-0708-PD-335 WAYNE D. KUBSCH, Appellant (Petitioner below), v. STATE OF INDIANA, Appellee (Respondent below). _________________________________ Appeal from the St. Joseph Superior Court, No. 71D01-0803-PC-00014 The Honorable Jane Woodward Miller, Judge _________________________________ On Petition for Post-Conviction Relief _________________________________

In the

of the supreme court, court of appeals and tax court

CLERK

October 5, 2010

Rucker, Justice.

Case Summary

Wayne Kubsch has been tried twice for the murders of his wife, Beth Kubsch, her exhusband, 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 Kubschs 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 Kubschs 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
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Kubsch raises nine claims of prosecutorial misconduct which were based on the trial record. As framed by Kubsch the issues are: (a) "The Prosecutor Presented Irrelevant And Inadmissible Evidence That An Independent Third Party Had Determined Kubsch Was Responsible For The Murder Of His Wife," Appellants Br.PCR at 25; (b) "The Prosecutor Demeaned And Disparaged Defense Counsel Within The Hearing Of The Jury And In Closing Argument," Appellants Br.PCR at 29; (c) "The Prosecutor Implied Personal Knowledge Of Kubschs Guilt," Appellants Br.PCR at 33; (d) "The Prosecutor Elicited Prejudicial Testimony He Knew To Be Inadmissible," Appellants Br.PCR at 36; (e) The Prosecutor Elicited Evidence Which Suggested Kubsch Had A Burden To Produce Evidence," Appellants Br.PCR at 37; (f) "The Prosecutor Encouraged The Jury To Convict Kubsch Because Kubsch Exercised His Rights To Be Present At His Capital Trial, To Confront Witnesses Face To Face, And To Review Discovery," Appellants Br.PCR at 38; (g) "The Prosecutor Presented Evidence And Argument He Knew To Be False," Appellants Br.PCR at 42; (h) "The Prosecutor Manipulated The Filing Of Charges Against Hardy To Kubschs Prejudice," Appellants Br.PCR at 47; and (i) "Cumulative Impact Of The Prosecutors Misconduct," Appellants Br.PCR at 49. If an issue was known on direct appeal but not raised, it is waived. Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004). On direct appeal, Kubsch challenged the trial courts denial of his request for a special prosecutor based on an alleged conflict of interest arising from the St. Joseph County Prosecutors prior representation of Brad Hardy, who was once charged with conspiring with Kubsch to commit these murders. We rejected this challenge, determining that there was "no actual conflict of interest." Kubsch v. State, 866 N.E.2d 726, 733-34 (Ind. 2007) ("Kubsch II"). Here Kubsch attempts to relitigate this issue with additional evidence. Also on direct appeal, Kubsch complained that the trial court erred when it refused to admit a videotaped statement given by Amanda Buck. We held the trial court did not err in refusing to admit the tape as a recorded recollection, and that any error in refusing to admit the tape for impeachment purposes was harmless. Id. at 735. Kubsch attempts to revisit this issue by complaining his trial counsel was ineffective for failing to present "exculpatory evidence." Appellants Br.PCR at 78, 80 -83. Finally, Kubsch complained on direct appeal that his waiver of counsel for the penalty phase of his trial was not knowing or intelligent. We held that "Kubschs competence was never an issue. [T]hroughout trial Kubsch was alert, engaged, coherent, and capable of understanding the proceedings and their import. There is no evidence to suggest that his abilities to comprehend complex matters diminished suddenly prior to his decision to proceed pro se." Kubsch II, 866 N.E.2d at 737. Kubsch seeks to revisit this issue by arguing his counsel was ineffective for failing to secure a hearing to determine whether Kubsch was competent to proceed pro se with the penalty phase of trial. A petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an
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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 Aarons father, Rick Milewski, in the basement of his Mishawaka home. Anthony lived in the home with his mother, Beth Kubsch, who was Aarons mother and Ricks ex-wife, and Wayne Kubsch, Beths husband at the time. Beth Kubschs 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 jurys 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 Kubschs 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-

alleged error. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). Although differently designated, an issue previously considered and determined in a defendants direct appeal is barred for post -conviction review on grounds of prior adjudication

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