Kubsch v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Eric Koselke Steve Carter
Brent Westerfeld Attorney General of Indiana
Indianapolis, 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 step-
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. 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

1
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

2
 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.

3
 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.

4
 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. § 33-39-1-6(b)(2) (West 2004). A judge called upon to decide whether the prosecutor
should be disqualified must determine whether “the controversy involved in the pending case is
substantially related to a matter in which the lawyer previously represented another client.” State
ex rel. Meyers v. Tippecanoe County Court, 432 N.E.2d 1377, 1378 (Ind. 1982). He must also
examine “whether the prosecutor has received confidential information in the prior
representation, and, more importantly, whether the information may have subsequently assisted
the prosecution.” Johnson v. State, 675 N.E.2d 678, 682 (Ind. 1996).

4
This hearing and ruling occurred before Judge Frese, who presided at the first trial and recused himself from the
second trial. It was after that recusal that Judge Albright took the case.

5
 Perhaps recognizing that any argument about client confidences relates solely to Hardy
and not to him, Kubsch argues that actual conflicts of interest arise not simply from the
acquisition and use of client confidences by prosecutors, but any time circumstances exist “‘in
which [the prosecutor] cannot exercise his or her independent [] judgment free of compromising
interests [or] loyalties.’” (Appellant’s Reply Br. at 1 (quoting State v. Culbreath, 30 S.W.3d 309,
312 (Tenn. 2000)).) Kubsch cites authority declaring that the unfair use of client confidences
gained through the prior representation of a defendant or co-defendant is not generally
recognized as the “only benchmark for determining whether there is an actual conflict of
interest.” (Id.); see also 63C Am. Jur. 2d Prosecuting Attorneys § 27 (1997).

The language of Ind. Code § 33-39-1-6(b)(2) and our own case law indicate that the
question of prosecutorial disqualification is not to be treated in the same manner in which
attorney disqualification is determined in the civil context. Johnson, 675 N.E.2d at 682. Rather
than limiting ourselves with “material adversity,” as we would in the civil context, we must
determine whether the relationship between Hardy and Dvorak gave rise to an actual conflict that
resulted in prejudice to Kubsch. Id.

The substance of Kubsch’s claim is that during the second trial, Dvorak’s professional
duties and obligations to Hardy as a former client rendered him unable to treat Kubsch fairly and
impartially, or to represent the interests of the State without conflict. (Appellant’s Br. at 20.) As
evidence of this disability, Kubsch points out that Dvorak was unable to testify fully at the pre-
trial hearing on whether a special prosecutor should be appointed. Kubsch says such testimony
would have theoretically assisted both the defense and the prosecution. (Id. at 21.) Kubsch also
claims that the prior representation prevented Dvorak from seeking a plea bargain with Kubsch
since doing so would have put his former client at risk of future prosecution. (Id. at 21-22.)

We think the trial judge got it right here. While the relationships among the parties
created the potential for a conflict, the subsequent actions of those involved demonstrate that no
actual conflict arose.

6
 This is certainly true of Kubsch’s claim regarding Dvorak’s testimony at the pre-trial
hearing. Kubsch contends that Dvorak’s ethical obligations to Hardy prevented him from
answering questions about the representation that might have revealed whether Dvorak
possessed disqualifying confidential information about Kubsch and the murders. Kubsch
contends that his inability to question Dvorak ultimately prejudiced him by preventing him from
subjecting Dvorak to a meaningful examination about the extent of his knowledge of the case
that might have revealed disqualifying facts. (Id. at 26-27.)

It is clear enough from the record that Dvorak did not possess such information. The
State presented to the trial court all the statements, depositions, and testimony of Hardy that were
a matter of record. (Hr’g Tr. at 4-7.) When asked if “you possess any other information about
this case, about the murders . . . than what is contained in the exhibits that [the State] admitted
into court today?” Dvorak responded, “I don’t believe so.” (Id. at 14.) Importantly, at the
hearing, Hardy specifically relinquished his privilege and allowed Dvorak to answer one
question relating to the representation: “Did I tell him anything different than what’s on them
transcripts.” (Id. at 47.) The prosecution subsequently asked Dvorak whether “there [is] any
information that you possess from your conversations with Mr. Hardy that is different or omitted
from any testimony and information he gave in depositions, testimony, or statements to Special
Crimes?” (Id. at 48.) Dvorak answered no. (Id.)

Kubsch seeks to minimize the import of this disclosure by suggesting that it was
insufficient to probe Dvorak’s knowledge of the defense. The release of the privilege, however,
provided an answer to the crucial question: Did Dvorak possess information about the crime not
otherwise available to another prosecutor? Through the release of the privilege, Dvorak was able
to show he had no more information that could have been used against Kubsch than any other
prosecutor. In the absence of such information, no actual conflict arose.

Specifically, there is no indication Dvorak either gained any privileged or otherwise non-
public information from Hardy or subsequently used such information at the second trial. And,
inasmuch as Kubsch and Hardy had never engaged in a joint defense, Dvorak would not have
learned anything from Kubsch for subsequent deployment, either. Compare Banton v. State, 475

7
N.E.2d 1160, 1164 (Ind. Ct. App. 1985) (prosecutor disqualified where “via a previous
relationship with the same case, [prosecutor learned] the details of [defendant’s] case”) 5 with
Garren v. State, 470 N.E.2d 719, 723 (Ind. 1984) (prosecutor not disqualified where “[d]efendant
has failed to show that the [p]rosecutor obtained information from him in confidence which was
relevant to the facts of the [case at bar]”), and Williams v. State, 631 N.E.2d 485, 488 (Ind.
1994) (prosecutor not disqualified where deputy prosecutor did not provide any “information or
assistance to the prosecutor” or participate at defendant’s trial). In Williams, we held it was
appellant’s burden to show both that “deputy prosecutor received confidential information” and
that “prejudice actually [] resulted” from the use of confidential information. 631 N.E.2d at 487.
In this case, there was no evidence that confidential information was received or used. Thus,
there was no need to disqualify Dvorak.

It is also apparent that no actual conflict arose as affected the possibility of a plea
bargain. As Judge Frese astutely noted, an actual conflict would have arisen had the parties
entered into a plea bargaining process because doing so would have put Dvorak into a position
where his own duty to Hardy would have conflicted with his duty of impartiality to Kubsch.
(Hr’g Tr. at 60-61.) Kubsch contends that Dvorak alone was unwilling to enter a plea
agreement. (Appellant’s Br. at 21.) The record does not support this contention. At the pre-trial
hearing, Judge Frese conducted a private conference with Kubsch and the defense counsel.
(Hr’g Tr. at 50-58.) Judge Frese specifically asked Kubsch if he were willing to “discuss a plea
agreement where the death penalty comes off the table.” (Id. at 57.) Kubsch responded that he
had no interest in entering into plea discussions. (Id. at 58.) During the subsequent description
of the substance of the conference in open court, Judge Frese indicated his perception that
Kubsch was unwilling to enter into any plea bargaining process. (Id. at 82-84.) Kubsch’s
attorneys made no attempt to object to these statements, suggesting it accurately reflected
Kubsch’s position. As Kubsch now seems to be contending that Dvorak’s prior representation
made a plea bargain unattainable, we observe that one cannot be unfairly denied something that
he did not want. We see no actual conflict of interest along these lines.

5
Defendant who prosecutor formally represented “testified he told [prosecutor] everything concerning the crimes
alleged, including material he would not reveal to the prosecutor.” Banton, 475 N.E.2d at 1164.

8
 Kubsch does make one other point worthy of mention here. He contends that Dvorak
unfairly and prejudicially failed to investigate Hardy’s alleged role in the murders since doing so
would have placed his former client at risk. (Appellant’s Br. at 28.) In doing so, Kubsch
contends Dvorak ignored potentially exculpatory evidence because of his interest in protecting
his own former client. This argument might have more punch had not Dvorak’s predecessor as
St. Joseph County Prosecutor, Christopher Toth, whom Dvorak defeated in a dramatic electoral
contest, treated Hardy in exactly the same way as Dvorak. Prosecutor Toth granted Hardy use
immunity for his testimony during the first trial and ultimately dismissed the charges against
him. (Appellant’s App. at 235, 237-38.) For all that appears, Toth simply concluded that Hardy
was not culpable. There is no evidence otherwise. 6

Ultimately, it is the defendant’s burden to produce evidence of an actual conflict, and in
this case he has not. He has also failed to make convincing arguments regarding his due process
claims. We conclude the trial court rightly denied the motion for appointment of a special
prosecutor.

II. Amanda Buck’s Videotaped Statement

Amanda Buck was nine years old at the time of the murders and lived across the street
from Aaron Milewski. She gave a videotaped statement to Police Officer Riehl on September
22, 1998, four days after the murders; in the videotape, she said she saw Aaron at his house after
3:30 p.m. on the day of the murders. At trial, however, Buck testified that she had no memory of
the police interview and that she did not see Aaron on the day in question. Kubsch attempted to
read a transcript of the videotape into evidence as a recorded recollection exception to hearsay,
or alternatively to impeach Buck with the prior inconsistent statement. The trial court denied
admission of the videotape and any impeachment.

6
We note briefly that Kubsch also raises claims that his due process rights under the Federal and Indiana
Constitutions were violated, because he was denied trial at the hands of a disinterested prosecutor. (Appellant’s Br.
at 27-29.) On these points Kubsch makes no citation to authority in support of his position.

9
 Kubsch argues on appeal that the recorded recollection exception applied, that he should
have been able to impeach Buck, and that the trial court violated his right to present a defense
when it refused to admit the videotape.

A. Recorded Recollection.

A memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable the witness to testify
fully and accurately, shown to have been made or adopted by the witness when
the matter was fresh in the witness’s memory and to reflect that knowledge
correctly . . . .

Ind. Evidence Rule 803(5).

The final element – the recording reflects the witness’s knowledge correctly – is the one
at issue. The recorded recollection exception applies when a witness has insufficient memory of
the event recorded, but the witness must be able to “vouch for the accuracy of the prior
[statement].” Gee v. State, 271 Ind. 28, 36, 389 N.E.2d 303, 309 (1979); see also Williams v.
State, 698 N.E.2d 848, 851 n. 4 (Ind. Ct. App. 1998) (requiring “some acknowledgement that the
statement was accurate when it was made”). Buck testified twice that she had no memory of
being interviewed by the police in 1998. (Trial Tr. at 2985.) As a result, the trial court correctly
denied Kubsch the opportunity to read Buck’s statement into evidence, because Buck could not
vouch for the accuracy of a recording that she could not even remember making.

B. Prior Inconsistent Statement. The trial court ruled that Kubsch could not impeach
Buck with her statements in the videotape because Buck gave no substantive evidence in her trial
testimony. (Id. at 3031-32, 3120.) The court observed that Buck simply stated that she could not
remember being interviewed by the police four days after the murder, and therefore, there was
“no positive fact . . . subject to impeachment.” (Id. at 3120.)

It was within the trial court’s discretion to rule that Buck’s testimony that she could not
remember the police interview was not inconsistent with her statements to the police that she saw
Aaron around 3:30 in the afternoon. See Dunlap v. State, 761 N.E.2d 837, 845 (Ind. 2002)

10
(“statement at trial of ‘I am not sure’ or ‘I don’t remember’ is not necessarily inconsistent with
an earlier statement that provides the answer to the question being asked”).

Buck’s claim of lack of memory, however, was not her only testimony. In response to
defense counsel’s attempt to establish Buck did not remember her statements to the police, Buck
offered, “I probably didn’t see [Aaron], because I go straight [from] home to the day care, and
then I would go home afterwards.” (Trial Tr. at 2985.) This testimony directly contradicts her
statement to the police that she saw Aaron that afternoon, and Kubsch should have been allowed
to impeach her on this matter.

We hold this error harmless, nonetheless. Monica Buck, Amanda’s mother, was present
with Amanda during the videotaped interview on September 22, 1998. (Id. at 3025.) Three days
after the interview, Monica’s husband Lonnie called Officer Riehl to tell Riehl that Amanda was
mistaken and instead saw Aaron the afternoon before the murders. (Id. at 3012-14.) Monica
followed up with a subsequent statement indicating that it was not Friday that she and Amanda
saw Aaron. (Id. at 3013.) The prosecution was prepared to put both Officer Riehl and Monica
on the stand to testify to this effect. 7 (Id. at 3014-15.) Amanda’s testimony should have been
impeached, but other testimony would have supported hers had she been impeached, and
therefore, her testimony likely did not contribute to the conviction. See Pavey v. State, 764
N.E.2d 692, 703 (Ind. Ct. App. 2002) (“An error in the admission of evidence is not prejudicial if
the evidence is merely cumulative of other evidence in the record.”).

III. Kubsch’s Waiver of Counsel Was Knowing and Intelligent

Kubsch asked to represent himself during the penalty phase, and the court permitted it.
He now contends Judge Albright failed to adequately warn him of the dangers and difficulties of
self-representation, and thus his decision to represent himself was not knowing and intelligent.

7
The availability of this testimony is also the reason why Kubsch’s claim that he was denied his federal
constitutional right to present a defense fails. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (protecting
defendant’s due process right by recognizing an exception to application of evidence rules where evidence found to
be trustworthy).

11
In particular, Kubsch argues that the judge minimized the difficulty of self-representation and led
him sufficiently astray to invalidate the waiver of his right to counsel.

The Sixth Amendment does not “force a lawyer upon [a criminal defendant] . . . when he
insists that he wants to conduct his own defense.” Faretta v. California, 422 U.S. 806, 807
(1975). Nevertheless, in order to waive the constitutionally protected right to counsel, a
defendant “must ‘knowingly and intelligently’ forgo those relinquished benefits” provided by
counsel, and be advised of the potential pitfalls surrounding self-representation so that it is clear
that “‘he knows what he is doing and [that] his choice is made with eyes open.’” Id. at 835
(citations omitted). There are no magic words a judge must utter to ensure a defendant
adequately appreciates the nature of the situation. Rather, determining if a defendant’s waiver
was “knowing and intelligent” depends on the “particular facts and circumstances surrounding
[the] case, including the background, experience, and conduct of the accused.” Johnson v.
Zerbst, 304 U.S. 458, 464 (1938).

We have elected to follow the lead of the Seventh Circuit in adopting a means for an
appellate court to review the adequacy of a waiver. We consider four factors: “‘(1) the extent of
the court’s inquiry into the defendant’s decision, (2) other evidence in the record that establishes
whether the defendant understood the dangers and disadvantages of self-representation, (3) the
background and experience of the defendant, and (4) the context of the defendant’s decision to
proceed pro se.”’ Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind. 2001) (quoting United States
v. Hoskins, 243 F.3d 407, 410 (7th Cir. 2001)). Considering these factors as they relate to the
facts and circumstances of this case, we conclude Kubsch’s waiver was knowing and intelligent.

First, we examine whether the court held any formal inquiry into Kubsch’s decision to
proceed pro se. A court need not provide an exhaustive list of the dangers of pro se
representation, but must “impress upon the defendant the disadvantages of self-representation.”
United States v. Todd, 424 F.3d 525, 531 (7th Cir. 2005) (citing United States v. Moya-Gomez,
860 F.2d 706, 732, 734 (7th Cir. 1988)). Indeed, it has been noted that the production of an
exhaustive list would not necessarily ensure the knowingness and intelligence of waiver since
even affirmative answers to pro forma “questions do not evidence understanding of the

12
complexities that lie ahead.” United States v. Hill, 252 F.3d 919, 928 (7th Cir. 2001). Rather,
we look to whether the warnings issued were sufficient to apprise the defendant of the dangers he
is facing in the particular matter at hand. Id.

Kubsch presents a list of what he calls critical omissions: not told his failure to object to
perceived legal error would waive issues for appeal; not told he would need to submit his own
jury instructions if he objected to those of the State; not told the precise nature and procedure to
be followed during the penalty phase; and judge minimized the dangers and difficulty of self-
representation by telling Kubsch that “your representation would not be as complicated . . . if
you were handling the whole trial.” (Appellant’s Br. at 48-52; Trial Tr. at 3342.)

Kubsch himself eliminated the need for many of these warnings. Kubsch was certainly
made aware that at the penalty phase he could produce witnesses and other evidence in
mitigation. He was notified what evidence his attorneys planned to present and declined to
present that information himself. (Trial Tr. at 3337-38.) In doing so, Kubsch rendered the
penalty phase significantly less procedurally complicated than it could have been. He also made
any court warnings about the potential difficulties in offering evidence for admission, or about
making timely objections to the evidence submitted by the prosecution much less useful than
they might customarily be. Indeed, as the trial judge pointed out (before the statement Kubsch
claims impermissibly minimized the danger of self-representation) in the absence of mitigating
or aggravating evidence, there was little more to the process than allowing both sides to address
the jury. (Id. at 3338, 3341-42.) The judge repeatedly made it clear that Kubsch would have this
right, as well as the right to present evidence if he chose to do so.

The court also warned Kubsch that were he to proceed pro se, his trial counsel could not
speak for him during the penalty phase, and Kubsch responded that he understood this warning.
(Id. at 3343.) At the same time, the court informed Kubsch that his trial counsel would be
available, and that he could seek their advice if he desired. (Id.) Moreover, the court warned
Kubsch that by proceeding pro se, he waived any claim on appeal of ineffective assistance of
counsel, and Kubsch indicated that he understood this as well. (Id. at 3349-50.) The judge
informed Kubsch of the gravity of the proceedings and the nature of the potential punishments,

13
and Kubsch indicated he understood. (Id. at 3350-51.) Taken together, these warnings were
adequate to warn Kubsch of the relevant dangers related to self-representation during the penalty
phase, and Kubsch’s responses demonstrate a knowing and intelligent decision to forgo the
benefits of counsel. Although they represent a basic set of warnings, their brevity alone is not
dispositive of whether Kubsch’s waiver was knowing and intelligent. The waiver must be
viewed in light of all facts and circumstances.

Second, we examine whether there is other evidence to suggest Kubsch understood the
dangers of self-representation, and there is. For example, the trial judge wanted it noted for the
record:

[T]hat the Court observed Mr. Kubsch throughout trial, that during trial he pretty
much constantly was able to confer with his attorneys, was able to confer with his
factual investigator that interviewed witnesses in this case, that he testified in this
case, that the Court found his testimony to be coherent and relevant to the facts of
this case, and that the Court has no reason to doubt Mr. Kubsch’s competency to
represent himself in this matter.

(Id. at 3340.)

Kubsch’s competence was never an issue. As Judge Albright pointed out, throughout
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. Consequently, given Kubsch’s
obvious intelligence and grasp of the issues surrounding his trial – as demonstrated during his
testimony and his statement to the jury during the penalty phase – there is little reason to doubt
that Kubsch’s waiver was made by a person who grasped the difficulties and dangers of self-
representation.

Third, we consider Kubsch’s prior background and experience. We examine Kubsch’s
“educational achievements, prior experience with the legal system . . . and performance at trial in
the case at bar.” United States v. Sandles, 23 F.3d 1121, 1128 (7th Cir. 1994). We have already
noted, as the trial judge did, that Kubsch’s performance during his second trial demonstrates
knowledge of criminal law and an understanding of the sentencing process. We cannot help but

14
note that at the time he chose to represent himself, Kubsch had already participated in two
murder trials and one penalty phase. Although Kubsch did not know all of the rules and
procedures, he certainly had experience with the penalty phase proceeding. In other words, he
obviously knew from his own experience of his right to call witnesses, present other evidence,
and propose mitigating factors.

Finally, we consider the context of Kubsch’s decision. The Seventh Circuit has observed
that “a defendant who waives his right to counsel for strategic reasons tends to do so
knowingly.” Todd, 424 F.3d at 533 (citing United States v. Bell, 901 F.2d 574, 579 (7th Cir.
2001)). Kubsch waived his right to counsel for a strategic reason: he did not want to present
witnesses.

His lawyers stood ready to call ten witnesses with mitigating evidence to offer: several
members of Kubsch’s family, former employers, a correctional expert, and a Ph.D. social
worker. Kubsch not only declined to call witnesses, but during his statement to the jury, Kubsch
indicated that he had not called witnesses or presented any mitigating evidence because he did
not “even dare try to insult [the jury’s] intelligence” by suggesting the crimes he had been found
guilty of did not deserve the death penalty. (Trial Tr. 3372-73.) Choosing to waive counsel
because one does not agree with trial strategy is perhaps not the best choice, or even a good
choice, but it can be a rational choice.

Kubsch’s trial lawyers believed Kubsch received adequate advisements about the dangers
of self-representation. (Id. at 3342-43.) They personally discussed these dangers with Kubsch.
(Id. at 3336.) Looking at all the facts and circumstances, we conclude that the trial judge
correctly determined Kubsch’s waiver of counsel for the penalty phase was knowing and
intelligent.

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 IV. Weighing Aggravators and Mitigators

Kubsch argues that the trial court violated his due process and jury trial rights when it
declined to instruct the jury that the jury had to find beyond a reasonable doubt that aggravating
circumstances outweighed mitigating circumstances. (Appellant’s Br. at 53-61.) First, contrary
to Kubsch’s position, the weighing of the aggravators and mitigators does not have to be proven
beyond a reasonable doubt. Ritchie v. State, 809 N.E.2d 258 (Ind. 2004). 8

Since we decided Ritchie, the U.S. Supreme Court rejected a challenge to the death
penalty law of Kansas in which the prisoner made a similar argument about the standard of
proof. Kansas v. Marsh, 126 S. Ct. 2516, 2524 (2006). The Kansas statute called for imposition
of death in instances where the jury found that aggravators and mitigating circumstances had
equal weight. The prisoner (and the dissenters) argued that the Constitution required that death
only be ordered where the former outweighed the latter. Id. at 2541 (Souter, J., dissenting). The
Court rejected this contention -- and a corollary claim that directing death when the
circumstances are in equipoise prevented a jury from performing its proper functions. Id. at
2527.

The breadth of the recent opinion in Marsh, led by the very justices who have
championed Blakely and Booker, makes it apparent that Kubsch’s claim that the Constitution

8
Ritchie analyzed Ind. Code § 35-50-2-9 in light of the U.S. Supreme Court’s holding in Apprendi v. New Jersey,
530 U.S. 466 (2000):

[T]he Indiana Death Penalty Statute does not violate the Sixth Amendment as interpreted by
Apprendi . . . . Once a statutory aggravator is found by a jury beyond a reasonable doubt, the
Sixth Amendment . . . is satisfied. Indiana now places the weighing process in the hands of the
jury, but this does not convert the weighing process into an eligibility factor. The outcome of
weighing does not increase eligibility. Rather, it fixes the punishment within the eligible range. It
is therefore not required to be found by a jury under a reasonable doubt standard.

Ritchie, 809 N.E.2d at 268.

Blakely v. Washington, 542 U.S. 296 (2004), was handed down after Ritchie, but its holding does not affect our
decision in Ritchie. Blakely defined statutory maximum as the maximum sentence a judge may impose based on the
jury verdict or a defendant’s admissions without finding additional facts. Blakely, 542 U.S. at 303. Indiana’s death
penalty statute, however, does not allow for judicial fact finding when the sentencing hearing is by jury. See Ind.
Code Ann. § 35-50-2-9(e), (l).

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requires that aggravating circumstances outweigh mitigators beyond a reasonable doubt is
untenable.

V. Was There Individualized Sentencing?

Kubsch cites the Court’s declaration that an individualized decision is essential in capital
cases. Woodson v. North Carolina, 428 U.S. 280, 304 (1976). He contends that the absence of
mitigating evidence before the jury in his case meant that there was no such individualized
sentence. This state of the evidence, of course, is the direct result of the strategy Wayne Kubsch
insisted on following – a strategy he discussed with his lawyers, articulated in open court, and
discussed directly with the jury.

Kubsch further contends that the trial judge erred by following the jury’s
recommendation, rather than ordering a new pre-sentence report and determining for himself,
apart from the jury’s recommendation, whether the evidence and the aggravators and mitigating
factors warranted death or life without parole.

This Court’s assessment of the role of jury and judge after the General Assembly’s 2002
amendments to the statute on death and life without parole is a work in progress. Still, two
principles have been articulated that seem adequate to address the present case. In one of several
cases handed down together, we observed that “there is only one sentencing determination,
which is made by the jury.” Stroud v. State, 809 N.E.2d 274, 287 (Ind. 2004). In another case,
Justice Boehm said that the amendments were not intended to “overturn traditional checks on
jury error or jury discretion, or to eliminate the trial judge’s function under Trial Rule 59.”
Helsley v. State, 809 N.E.2d 292, 306 (Ind. 2004) (Boehm, J., concurring).

Whatever else may be said about the sentencing process in this case, fashioned as it was
by Kubsch himself (who declined the judge’s invitation even to make a statement before the
court pronounced sentence), what we do know about the aggravating circumstances and the
mitigating circumstances that counsel would have attempted to prove had Kubsch not prevented

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it presents no basis for setting aside the jury’s recommendation and the trial court’s sentence
based upon it.

The aggravators were the fact of a triple murder and the fact that one of the victims was
under the age of twelve. These are two rather substantial factors. The mitigating evidence
Kubsch’s lawyers would have tried to present was that Kubsch was usually a caring person, a
good worker, someone who would live an orderly prison life, and that his triple killing was an
aberration to his personality. (Appellant’s App. at 348-53.) All in all, even had this evidence
been placed before the trial judge, it does not appear to rise to the level necessary under, say,
Trial Rule 59 for setting aside a jury verdict.

Conclusion

We affirm the judgment of the trial court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

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