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ATTORNEYS FOR APPELLANT Eric Koselke Brent Westerfeld Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

In the

Indiana Supreme Court
_________________________________ No. 71S00-0507-DP-333 WAYNE KUBSCH, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the St. Joseph Superior Court, No. 71D02-9812-CF-592 The Honorable William Albright, Judge _________________________________

May 22, 2007

Shepard, Chief Justice. Appellant Wayne Kubsch has been tried twice for triple murder. Two juries found him guilty and both juries recommended the death penalty. This appeal arises from his second trial. Among other claims, he contends that the trial court erred in failing to appoint a special prosecutor to the case because St. Joseph County Prosecutor Michael Dvorak had a previous professional relationship with a witness who testified against Kubsch. We conclude that a special prosecutor was not necessary because no actual conflict existed between Dvorak and his duties to his former client, to Kubsch, or to the citizens of St. Joseph County.

Facts and Procedural History

On September 18, 1998, twelve-year-old Anthony Earley found the bodies of his stepbrother 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. Anthony looked more closely at the bodies, and then fled to a neighbor's house, from which the police were eventually summoned.

The Mishawaka Police Department arrived on the scene about 5:45 p.m. When Wayne Kubsch arrived at the house, he had to be restrained from entering. Kubsch then accompanied police officers to the South Bend Police Department for questioning by detectives of the special crimes unit.

Around 9 p.m., after Kubsch left the police station, crime scene investigators informed the detectives that they had also found Beth Kubsch's body in the basement, inside a "fort" Anthony had constructed underneath the stairs using old blankets. Beth had been "hog-tied" with duct tape and her head covered in tape. Like Aaron and Rick, she had been stabbed repeatedly. 1

Upon learning about the discovery of Beth's body, detectives instructed a junior police officer to locate Kubsch and bring him back to the station. The officer complied, and returned with Kubsch. The detectives requested that Kubsch allow a search of his vehicle, which he did, signing a consent form. The police then impounded the vehicle and searched it. 2

All three victims sustained severe stab wounds. Subsequent autopsies revealed that Aaron and Rick were also shot at close range. 2 The search of Kubsch's vehicle and the manner in which he was questioned on the night of the murders were subjects of contention in his first appeal. Kubsch v. State, 784 N.E.2d 905, 916-18 (Ind. 2003). We held that both the search and questioning, as well as any evidence obtained, were valid. Id. at 918. Despite the rather delicate manner in which the matter was handled by the State, Kubsch objected to the introduction of that evidence again at his second trial. (Trial Tr. at 1481.) Kubsch raises the issue again on this appeal. (Appellant's Br. at 35-47.) He notes in his brief, however, that he raises this issue "to preserve Kubsch[`s] rights to present them in subsequent federal court review." (Id. at 35.) This time around, the claim does not rest on any new evidence at trial or citation to any new authority regarding the validity of the search. In his second trial, Kubsch relied on the record

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In late December 1998, the State charged Kubsch with murdering Beth, Aaron, and Rick. In April 1999, the State filed notice of intent to seek the death penalty. A trial ensued in June 2000, and Kubsch was found guilty of the murders. The jury recommended the death penalty, and the trial judge entered an order imposing death. Kubsch appealed, claiming the order was defective. We agreed and remanded to the trial court to enter a new order. The trial court did so, and Kubsch appealed again. We reversed on the basis of a Doyle violation and ordered a new trial. Kubsch v. State, 784 N.E.2d 905, 910 (Ind. 2003). 3

During the second trial, in March 2005, the prosecution presented essentially the same case as it had at the first, arguing that Kubsch killed Beth in order to collect on her life insurance policy. Kubsch owed some $430,000 in mortgage debt on various rental properties, and another $23,000 in unsecured credit card debt. The State showed that, less than two months before the murders, Kubsch and Beth increased Beth's term life coverage to $575,000.

Cell phone records revealed that Kubsch made calls from the area near the house where the killings occurred at a time when he initially claimed to be traveling to Michigan. Testimony by Brad Hardy indicated that he and Kubsch had gone to Kubsch's home during Wayne's lunch hour, and that he had seen Beth in the house. Hardy also testified that the day after the murders, Kubsch asked him to lie to the police about their activities the day before.

The prosecution introduced some physical evidence linking Kubsch to the crime. It managed to link a fiber found in the duct tape used to bind Beth to a fiber taken from Kubsch's Geo Tracker. A duct tape wrapper in the Tracker matched the brand of duct tape used to bind Beth. A bank receipt, also found in the Tracker, showed a transaction made by Beth the morning of her murder.

of his first trial to establish the facts surrounding this claim. For this reason, and because Kubsch voluntarily foregoes our review, we do not address this claim. 3 The State used videotapes at trial that were taken during Kubsch's interviews with the police on the night of September 18, 1998. Those videotapes showed Kubsch invoking his Fifth Amendment right to silence, and the State used Kubsch's silence as "affirmative proof of its case in chief" in clear violation of Doyle v. Ohio, 426 U.S. 610 (1976). Kubsch, 784 N.E.2d at 914. We concluded that the State had "not carried its burden in demonstrating that references to Kubsch repeatedly invoking his right to silence [was] harmless beyond a reasonable doubt." Id. at 916.

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Kubsch testified at trial, giving an account different from the one he had given to the police during his initial interviews. Kubsch admitted that he had gone home during his lunch hour, but said he went alone and smoked part of a marijuana cigarette before returning to work. Kubsch opined that it was likely during the stop at home that he collected the bank receipt and took it with him. He also admitted that he had not gone immediately to Michigan as he previously told police. Rather, he testified he had first stayed in his workplace parking lot hoping to buy marijuana from a co-worker, returned home and retrieved the remainder of the marijuana cigarette he smoked earlier that day, and then left for Michigan to pick up his son. Kubsch said no one was home when he arrived at the residence after work.

Kubsch sought to exclude the evidence collected from his vehicle, claiming the search was illegal, and asked to introduce the previous testimony of Amanda Buck, who, according to the defense, would have testified that she saw Aaron after 3:30 p.m. on the day of the murders. The trial court denied Kubsch's motion to exclude, and barred the defense from showing a videotape or reading transcripts of Buck's previous testimony.

Following the presentation of the evidence, the jury found Kubsch guilty of three counts of murder. After the sentencing hearing, where Kubsch appeared pro se, the jury recommended death. On April 18, 2005, the judge imposed a death sentence.

Kubsch challenges both his conviction and sentence in this appeal. As to guilt, Kubsch claims the court violated his right to present a defense by refusing to admit Buck's previous testimony. Second, and more significantly, Kubsch argues that the trial court should have appointed a special prosecutor to avoid a conflict of interest arising from St. Joseph County Prosecutor Michael Dvorak, who previously represented Brad Hardy in a related criminal matter.

As for the sentence, Kubsch argues that his waiver of counsel at the sentencing phase was not knowing, intelligent, or voluntary, that the court should have instructed the jury that it must find the aggravating circumstances outweigh the mitigators beyond a reasonable doubt, that no individualized sentencing occurred, and that the trial judge failed to independently consider whether he was bound to follow the jury's recommendation.

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I. Special Prosecutor Properly Denied

Kubsch pointed to Michael Dvorak's earlier representation of Brad Hardy, one of the witnesses against Kubsch. The State once charged Hardy with conspiring with Kubsch to commit the murders and with assisting a criminal. These charges were filed against Hardy in May 2000, several months after Kubsch was charged. Hardy retained Dvorak, who was in private practice at the time. Dvorak represented Hardy at a deposition conducted by Kubsch's attorneys and during Hardy's testimony at the first murder trial in the summer of 2000. During the representation, Hardy received use immunity for his testimony in the first trial.

Kubsch was initially convicted on August 28, 2000. The charges against Hardy pended, with Dvorak still representing him, until May 6, 2002 when the State moved to dismiss, and the court did so. In November 2002, Dvorak was elected St. Joseph County Prosecutor. He took office in January 2003, two months before we reversed Kubsch's first conviction. Following a pre-trial hearing on October 31, 2003, Judge Frese ruled there was no actual conflict of interest arising from this scenario and denied the request for a special prosecutor. 4 Kubsch now claims that this ruling was incorrect and argues that it tainted the second trial sufficiently to warrant a third.

At the time of Kubsch's trial, our statutes afforded criminal defendants a vehicle for asking the trial court to appoint a special prosecutor when it is evident "by clear and convincing evidence that the appointment is necessary to avoid an actual conflict of interest . . . ." Ind. Code Ann.

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