Kubsch v. State

ATTORNEYS FOR APPELLANT:          ATTORNEYS FOR APPELLEE:

MONICA FOSTER                           STEVE CARTER
RHONDA LONG-SHARP                       Attorney General of Indiana
Foster & Long-Sharp
Indianapolis, Indiana                   JAMES B. MARTIN
                                        Deputy Attorney General
BRIEF OF AMICUS CURIAE            Indianapolis, Indiana

COMMISSION ON SOCIAL

ACTION OF REFORM JUDAISM:

KENNETH J. FALK
Indiana Civil Liberties Union
Indianapolis, Indiana

MARSHALL L. DAYAN
Durham, North Carolina





                                   IN THE


                          SUPREME COURT OF INDIANA



WAYNE KUBSCH,                           )
                                        )
      Appellant (Defendant),            )
                                        )    Supreme Court Cause Number
            v.                          )    71S00-9904-DP-239
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff).                  )


                  APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                      The Honorable Jerome Frese, Judge
                        Cause No.  71D02-9812-CF-592



                              On Direct Appeal


                               March 14, 2003

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  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,  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  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]

                                 Discussion

                                     I.

                               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 right  to  silence  because  it  violates
Doyle v. Ohio, 426 U.S. 610 (1976).
      In Doyle, the Supreme Court held, “[T]he use for impeachment  purposes
of petitioners’ silence, at the time of arrest and after  receiving  Miranda
warnings, violated the Due Process  Clause  of  the  Fourteenth  Amendment.”
Id. at 619.  The Court explained, “[W]hile  it  is  true  that  the  Miranda
warnings contain no express assurance that silence will  carry  no  penalty,
such assurance is implicit to any person who receives  the  warnings.”   Id.
at 618.  “Silence” does not mean only muteness; it  includes  the  statement
of a desire to remain silent as well as a desire to remain silent  until  an
attorney has been consulted.  Wainwright v. Greenfield, 474  U.S.  284,  295
n.13 (1986).   Further,  Doyle  is  not  limited  solely  to  “the  use  for
impeachment purposes” of a defendant’s silence.  Id.  at  292.   Rather,  it
also applies to the use of a defendant’s silence  as  affirmative  proof  in
the State’s case in chief.  Id.
      The State does not seriously dispute that it used Kubsch’s silence  in
the face of Miranda warnings as affirmative proof  in  its  case  in  chief.
Rather, the State contends that because Kubsch was not  in  custody  [3]  at
the time of the questioning, Doyle does not apply.  Br. of Appellee  at  13-
14.  It is true that Doyle refers to the use of a  defendant’s  silence  “at
the time of arrest.”   However,  the  critical  holding  in  Doyle  was  the
“implicit assurance contained in the Miranda  warnings  ‘that  silence  will
carry no penalty.’”  Wainwright, 474 U.S. at 290.  As the Supreme Court  has
also declared “Miranda warnings inform a  person  of  his  right  to  remain
silent and assure him, at least implicitly, that his  silence  will  not  be
used against him.  Doyle bars  the  use  against  a  criminal  defendant  of
silence maintained after receipt of governmental assurances.”   Anderson  v.
Charles, 447 U.S. 404, 407-08 (1980) (citations omitted).   It  is  apparent
that  a  defendant’s  prearrest,  post-Miranda  silence  enjoys   the   same
protection as a defendant’s postarrest, post-Miranda  silence.   See,  e.g.,
Kappos v. Hanks, 54 F.3d 365, 368-69 (7th Cir. 1995) (“[T]he  fact  that  an
arrest had not yet occurred does not render  Doyle  inapplicable.   Although
[the defendant’s] comments  about  his  refusal  to  answer  more  questions
occurred prior to his arrest, they were made after he  had  been  given  his
Miranda warnings.  It is then that the promise contained  in  the  statement
of  Miranda  rights  precludes  the  prosecutor  from  commenting   on   the
defendant’s silence.”); United States v. Rivera, 944 F.2d  1563,  1568  n.12
(11th Cir. 1991) (“[T]he vital distinction for our purposes .  .  .  is  not
when [the defendant] was arrested or technically in custody,  but  when  she
was given her Miranda warnings and  thereby  given  the  implicit  assurance
that her silence would not be used against her.”).  In this case,  by  using
Kubsch’s silence in the face of Miranda warnings  as  affirmative  proof  of
his guilt, the State violated the  Due  Process  Clause  of  the  Fourteenth
Amendment as articulated in Doyle.  The trial court thus erred in  admitting
an unredacted version of the videotape into evidence.
      Apparently anticipating the foregoing conclusion, the  State  contends
that any error in admitting those portions of the videotape  showing  Kubsch
invoking his right to silence is harmless.  A constitutional  error  may  be
harmless if it is clear beyond a reasonable
doubt that the error did  not  contribute  to  the  defendant’s  conviction.
Chapman v. California, 386 U.S. 18,  24  (1967).   In  analyzing  whether  a
Doyle violation is harmless beyond a reasonable doubt, this  Court  examines
five factors:  (1) the use to which the  prosecution  puts  the  post-arrest
silence; (2) who elected to pursue the line of questioning; (3) the  quantum
of other evidence indicative of guilt; (4) the intensity  and  frequency  of
the  reference;  and  (5)  the  availability  to  the  trial  court  of   an
opportunity to grant a motion for mistrial or give a  curative  instruction.
Robinette v. State, 741 N.E.2d 1162, 1165 (Ind. 2001).
      In response  to  these  factors,  the  State  argues  that  the  “few”
references to Kubsch’s invocation of his right to silence coupled  with  the
independent evidence of his guilt points to the conclusion  that  the  error
is harmless  beyond  a  reasonable  doubt.   Br.  of  Appellee  at  23.   We
disagree.  The use to which the State, in  its  case  in  chief,  put  those
portions of the videotape showing Kubsch invoking his right  to  silence  is
rather apparent:  Kubsch was unwilling to talk with police even  though  his
wife and step-son had just been killed, giving the  impression  that  Kubsch
had something to hide or else he would assist  in  locating  their  killers.
And although the amount of other evidence indicative of  Kubsch’s  guilt  as
set forth in the “Facts” section of this opinion is  sufficient  to  sustain
the convictions, that evidence is circumstantial and was fiercely  contested
at trial.[4]
      Regarding the frequency and intensity of the  references  to  Kubsch’s
silence, the videotape itself, which was played to the  jury  twice,  showed
Kubsch invoking his right to silence six times.   In  addition,  during  his
opening statement, the prosecutor made the following reference:
      Then the defendant said I don’t want to talk to you anymore.  I  don’t
      want to talk to you anymore because if I were you, I would consider me
      as the prime suspect.  The officers  urged  him,  look,  we  are  only
      trying to find out what happened here.  Nope.  And he walks out.


R. at 3107-08.  And on direct examination,  Detective  Samp  made  at  least
three references to Kubsch’s invocation of his right  to  silence.   One  of
these references was particularly instructive:
      So then I explained to [Kubsch] the fact  that  Beth  had  been  found
      dead, and knowing that, did that change anything,  did  he  still  not
      want to talk to us, and he said, yes, he didn’t want to talk to us, so
      at that point he was free to leave.


R. at 839-40.
      As for the trial court’s opportunity to grant a  motion  for  mistrial
or give a curative instruction, when  the  trial  court  overruled  Kubsch’s
objection to the videotape, Kubsch asked the trial court to give a  limiting
instruction.   The  limiting  instruction  would  have   provided   that   a
defendant’s silence in the face of Miranda warnings is inherently  ambiguous
and cannot be used against him.   The  court  said  that  it  would  give  a
limiting instruction, but that the instruction would provide that  a  person
has the right  to  invoke  the  Fifth  Amendment  and  to  change  his  mind
regarding that invocation.  Ultimately, no limiting instruction  was  given.

      In addition to the five factors, we  find  particularly  relevant  the
timing of the jury’s verdict.  On June 15, 2000, the last day of trial,  the
jury retired for deliberations at 2:15 p.m.  At 8:30 p.m., the jury  sent  a
note to the trial court requesting to view the  videotape  again.   After  a
hearing outside the presence of the jury and over  Kubsch’s  objection,  the
trial court replayed the entire videotape.  It is not clear from the  record
what time the videotape was replayed.  However,  at  10:37  p.m.,  the  jury
reached a verdict.  In light of the five factors and the fact that the  jury
finally reached a verdict just shortly after watching the  videotape  for  a
second time, we conclude that the  State  has  not  carried  its  burden  in
demonstrating that the references to Kubsch repeatedly  invoking  his  right
to silence are harmless beyond a reasonable doubt.  Accordingly, we  reverse
the trial court on this issue and remand this cause for  a  new  trial.   We
now address those issues likely to arise on retrial.
                                     II.
                             Search of the Truck
      Kubsch complains the trial court  erred  by  admitting  into  evidence
over  his  continuing  objection  various  items  seized  from  his   truck,
including a cellular telephone, a package of duct tape, and a  receipt  from
a Meijer department store.  Acknowledging  the  items  were  seized  as  the
result of a consent to search, Kubsch contends the search was not valid  and
even if  valid  the  search  exceeded  the  scope  of  the  consent.   Also,
insisting that he was in custody at the time the consent was  given,  Kubsch
argues the police failed to  “scrupulously  honor”  his  invocation  of  his
right to remain silent under Miranda.  Thus,  the  argument  continues,  any
evidence seized was the “fruit of the poisonous tree” and  should  not  have
been admitted at trial.

A.  Custodial interrogation

      The record  shows  that  Kubsch  talked  to  police  on  two  separate
occasions on the day the bodies were  discovered.   On  the  first  occasion
Kubsch was advised that his  home  was  a  crime  scene  and  was  asked  to
accompany police to the Special Crimes Unit  to  answer  routine  questions.
Upon arrival, Kubsch was seated in the  lobby.   At  the  time,  police  had
discovered only two bodies  at  Kubsch’s  home:  Rick  and  Aaron  Milewski.
Detective Michael Samp testified, “at  that  point  I  needed  to  ask  some
questions and try to ascertain what was going on.”   R.  at  830.   Although
not under arrest, Kubsch was advised of his  Miranda  rights.   R.  at  844.
However, Detective Samp was clear that Kubsch “wasn’t a suspect.  He  wasn’t
under arrest.”  R. at 846.  During the course of the  subsequent  interview,
Kubsch told Detective Samp that he wanted to talk with  his  wife’s  mother.
At that point Detective Samp testified, “I  said  that  was  fine,  that  he
wasn’t under arrest, that he could go ahead and go.  And he got  up,  and  I
opened the door for him, and he walked out.”  R. at 831.
      About an hour after  Kubsch  left  the  interview  room,  police  were
informed that the body of Kubsch’s wife had  also  been  discovered  in  the
parties’ home.  Deciding to let Kubsch know about the  discovery,  Detective
Samp directed another officer, Detective Mark  Reihl,  to  find  Kubsch  and
escort him back to the station.  He did so, and upon entering the  interview
room, Kubsch  was  advised  that  the  officers  wanted  to  ask  some  more
questions.  In response Kubsch replied, “Can I tell you this one thing []  I
know this is routine for you guys but at this point I really don’t  want  to
answer anymore questions.”  R. at  914.   Detective  Reihl  then  asked  for
permission to search Kubsch’s truck.  Kubsch agreed and signed a consent  to
search  form.   The  following  colloquy  describes  the  events   occurring
thereafter:
      Q.    [Prosecutor] After you had him complete [the consent to  search]
        form, what happens with Mr. Kubsch?


                             *     *    *
     A. [Detective Samp] So then I explain to him the fact  that  Beth  had
        been found dead, and knowing that, did that change anything, did he
        want to talk to us, and he said, yes, he didn’t want to talk to us,
        so at that point he was free to leave.


      Q. [Prosecutor] In fact did he leave?


     A. [Detective Samp] Yes.

R. at 839-840.

      Under Miranda “‘interrogation must cease’ when the person  in  custody
indicates that ‘he wishes to remain silent.’”  Michigan v. Mosley, 423  U.S.
96, 101 (1975) (quoting Miranda v.  Arizona,  384  U.S.  436,  474  (1966)).
Also, under the Indiana Constitution “a person in custody must  be  informed
of the right to consult with counsel about the possibility of consenting  to
a search before a valid consent can be given.”  Jones v. State,  655  N.E.2d
49, 54 (Ind. 1995).[5]  However, these  Miranda  safeguards  do  not  attach
unless “there has been such a  restriction  on  a  person’s  freedom  as  to
render him ‘in custody.’”  Loving v. State,  647  N.E.2d  1123,  1125  (Ind.
1995) (quoting Oregon v.  Mathiason,  429  U.S.  492,  495  (1977)).   Here,
focusing on the fact that he was initially driven to the police  station  in
the back of a locked squad car and that he was returned to the  station  for
a second interview  after  invoking  his  right  to  remain  silent,  Kubsch
contends he was in  custody  during  the  time  he  was  questioned  by  the
officers.  These facts are not controlling.  Rather, to determine whether  a
defendant is in custody  “we  apply  an  objective  test  asking  whether  a
reasonable person under the same circumstances would believe  themselves  to
be under arrest or not  free  to  resist  the  entreaties  of  the  police.”
Torres v. State, 673  N.E.2d  472,  474  (Ind.  1996)  (quotation  omitted).
Further, a person is not in custody where he is “unrestrained and  ha[s]  no
reason to believe he could not leave.”  Huspon v. State,  545  N.E.2d  1078,
1081 (Ind. 1989).   We  conclude  that  no  reasonable  person  in  Kubsch’s
position would have believed that he was under  arrest.   Not  only  did  he
have reason to believe he could leave, he was unrestrained and actually  did
leave,  after  both  the  first  and  second  interview.   Despite  Kubsch’s
arguments to the contrary, he  was  not  in  custody  when  he  gave  police
consent to search his truck.

B.  Voluntariness of consent

      Pointing to his allegedly “vulnerable” mental state, stating he had no
prior  experience  with  police,  and  alleging  “subtly   coercive   police
questions,” along with asserting “trickery, deceit  and  misrepresentation,”
Kubsch contends that his consent was not voluntary.  Br. of Appellant at 27-
29.  Generally, a search warrant is a  prerequisite  to  a  constitutionally
proper search and seizure.  Perry v. State,  638  N.E.2d  1236,  1240  (Ind.
1994).  In cases involving a warrantless search the State bears  the  burden
of proving an exception to the warrant requirement.   Short  v.  State,  443
N.E. 2d 298, 303 (Ind. 1982).  A valid consent is  such  an  exception.   In
turn, a consent to search is valid except where procured by  fraud,  duress,
fear or intimidation or where it is merely a submission to the supremacy  of
the law.  Martin v.  State,  490  N.E.2d  309,  313  (Ind.  1986).   Despite
Kubsch’s assertions to the contrary, the record before us  simply  does  not
support the view that the consent Kubsch gave  police  was  the  product  of
fraud, duress, fear or intimidation.  Further, Kubsch makes  no  claim  that
he was merely submitting to the supremacy of the law when  he  consented  to
the search of his truck.  Accordingly, we  conclude  that  Kubsch’s  consent
was freely and voluntarily given.

C.  Scope of consent

            Relying on the police request to “look inside”  his  truck,  and
his response “yes- over at the house,” R. at 915, Kubsch contends that  even
if his consent to search were voluntarily given, the evidence  seized  as  a
result still should have been suppressed because  the  search  exceeded  the
scope of the consent.  According to Kubsch: (i) the search should have  been
conducted at the location where the truck was parked, and  thus  police  had
no authority to impound the truck in order to conduct  a  search;  and  (ii)
the search was limited only to looking inside the truck.
            It is true that a consensual search allows a  suspect  to  limit
or restrict the search as he or she chooses.  Krise  v.  State,  746  N.E.2d
957, 964 (Ind.  2001).   However,  the  scope  of  a  consensual  search  is
measured by objective reasonableness and is determined by  what  a  “typical
reasonable person would have understood by the exchange between the  officer
and the suspect.”  Id. (quoting Florida v. Jimeno,  500  U.S.  248  (1991)).
Here, in addition to the verbal exchange between Kubsch and Detective  Samp,
the “consent to search” that Kubsch signed provided in pertinent part:
      I grant permission for … a search, [and] hereby authorize, consent and
      allow Special Crimes to conduct a complete search of my motor  vehicle
      which is (located at) (described as) corner of Prism Valley, 1994  Geo
      Tracker.  The above mentioned  person(s)  and  any  others  needed  to
      assist them are hereby authorized by me to take from my…motor  vehicle
      any merchandise, personal property, or chattels that may  be  involved
      in the investigation they are conducting.


R. at 919 (emphasis added).   It  is  clear  that  a  “complete  search”  of
Kubsch’s truck would encompass considerably more than simply looking  inside
the vehicle.  Also, we agree with the trial court  that  Kubsch’s  statement
“yes – over at the house” was not tantamount to saying, “you can  search  it
but only if  you  search  it  where  it  sits.”   R.  at  263  (emphasis  in
original).  Rather, it is apparent that Kubsch’s response  was  intended  to
assist the police in locating the vehicle, rather than to restrict or  limit
the scope or location of the search to be conducted.  In searching  Kubsch’s
truck, the police did not exceed the scope of  the  voluntary  consent.   We
conclude that the trial court did not err by  admitting  into  evidence  the
items seized as a result of the search.
                                    III.

                                   Hearsay

      Kubsch next contends the trial court erred by allowing  into  evidence
the hearsay testimony of Dave Milewski and Diane  Raisor.[6]   Respectively,
Milewski and Raisor are  the uncle and grandmother of  murder  victim  Aaron
Milewski.  Over Kubsch’s hearsay objection Milewski testified  that  several
weeks prior to his death,  Aaron  told  him  that  he  was  “frightened”  of
Kubsch.  R. at 3278.  Also over Kubsch’s objection Raisor testified  that  a
few weeks before his death, Aaron told her “Wayne still wants to  kill  me.”
R. at 4537.
      Hearsay  is  a  statement  made  out-of-court  that  is  offered  into
evidence to prove the truth of the  matter  asserted.   Ind.  Evidence  Rule
801(c); Craig v. State, 630 N.E.2d 207, 209 (Ind. 1994).  It is  clear  that
the contested  portions  of  both  Milewski’s  and  Raisor’s  testimony  are
hearsay.  Aaron made the statements out-of-court and the witnesses  repeated
the statements at trial for the purpose  of  proving  the  matter  asserted,
namely: that Aaron feared Kubsch and felt that Kubsch wanted  to  kill  him.
Such hearsay  is  not  admissible  at  trial  unless  it  fits  within  some
exception to the hearsay rule.
      The trial court admitted the witnesses’ hearsay testimony pursuant  to
Indiana Evidence Rule 803(3), which provides:
      The following are not excluded by the hearsay rule,  even  though  the
      declarant is available as a witness.


                                *     *     *


      (3) A statement of  the  declarant’s  then  existing  state  of  mind,
      emotion, sensation, or  physical  condition  (such  as  intent,  plan,
      motive, design, mental feeling,  pain  and  bodily  health),  but  not
      including a statement of memory or belief to prove the fact remembered
      or  believed  unless  it  related  to   the   execution,   revocation,
      identification, or terms of declarant’s will.


      In addition to the requirement that hearsay fall within  an  exception
to be admissible, the Indiana Rules  of  Evidence  also  mandate  that  only
relevant evidence is admissible.  Evid. R. 402.  Evidence is relevant  where
it has “any  tendency  to  make  the  existence  of  any  fact  that  is  of
consequence to the  determination  of  the  action  more  probable  or  less
probable than it would be without the evidence.”  Evid. R. 401.  A  victim’s
state of mind is relevant where it has been put at issue by  the  defendant.
Jester v. State, 724 N.E.2d 235,  240  (Ind.  2000);  Smith  v.  State,  721
N.E.2d 213, 218 (Ind. 1999).  For example in Ford v. State, 704  N.E.2d  457
(Ind. 1998), the victim’s statements  prior  to  her  death  concerning  her
“unhappy” relationship with the defendant, and her fear  that  if  she  left
the defendant “he would kill her,” were admissible  to  controvert  evidence
presented by the defendant showing the  victim  acted  aggressively  towards
him and provoked his actions.  Id. at 459-60.   Here,  however,  Kubsch  did
not put Aaron’s state of mind at issue.  Rather, his defense  at  trial  was
that he was in Michigan picking up his son when the  crimes  were  committed
and that Beth and Aaron were likely murdered  by  Kubsch’s  lifelong  friend
Brad Hardy.  In fact, the contested hearsay testimony was introduced  during
the State’s case in chief.  We conclude therefore that it  is  not  relevant
to any issue  at  trial.   The  trial  court  thus  erred  in  allowing  the
testimony into evidence.
                                     IV.

                              Opinion Testimony

       Kubsch  next  contends  the  trial  court  erroneously  allowed  into
evidence the opinion testimony of a homicide investigator.   The  facts  are
these.  Detective Steven E. Richmond  was  a  detective  sergeant  with  the
South Bend police department assigned  to  the  Special  Crimes  Unit  as  a
homicide investigator.  Detective Richmond was one of the  investigators  on
this case and testified at  length  at  trial.   A  part  of  his  testimony
concerned blood spatter evidence, to which no objection was  made.   At  one
point during his testimony the detective testified  that  he  observed  duct
tape covering Beth Kubsch’s face.  The following exchanged then occurred:
      Q.    [Prosecutor] In your experience as a homicide investigator  with
      your training, did that – the existence of  that  duct  tape  on  this
      victim’s face have any significance to you or the other investigators?


      A.    [Detective Richmond] Yes it did.


      Q.    [Prosecutor] In what way?


      A.    [Detective Richmond] During the  training,  an  investigator  is
      taught to, you know, pick up on certain clues, behavioral traits  that
      we might find as far as  evidence,  something  that  happened  in  the
      thing.  Oftentimes if a victim is masked, so to speak, by his face  is
      covered, that’s sometimes used as a sign –

R. at 3779-80.   At  this  point  Kubsch  objected  on  foundation  grounds.
During a  side-bar  conference  the  trial  court  expressed  skepticism  on
whether the officer possessed expertise in the area on which  he  was  about
to testify.  The trial court observed, “[h]is expertise  is  blood  spatter.
I don’t know that he’s been qualified as a psychologist as  to  how  victims
are treated by taping.”  R. at 3780.  The State  then  proceeded  to  lay  a
purported foundation for the officer’s testimony.  Responding  to  a  number
of questions posed by the State, Detective Richmond testified  that  he  had
investigated a large  number  of  homicide  scenes,  and  attended  numerous
homicide  investigation  seminars,  some  of  which   involved   “conducting
investigations of the crime scene as far as  association  with  suspect  and
victim relationship, stranger homicide or killings . . . . ”   R.  at  3782.
When asked about the content of the seminars, Detective Richmond  responded,
“[t]hey discuss  previous  cases,  documented  cases,  proven  investigative
techniques that other  officers  have  used  in  the  past.”   R.  at  3783.
Detective Richmond went on to say, “there are materials that were  given  to
read.  I have library books on all the different varieties.”   R.  at  3783.
Over Kubsch’s objection the detective then testified:
      A.    [Detective Richmond] It’s been my training that oftentimes  when
      a victim’s face is covered, it’s done to disassociate the victim  from
      the suspect.  It turns the victim from a person to an object.


      Q.    [Prosecutor] And in your experience and training, is  that  fact
      more  associated  with  cases  where  the  killer  knows  or   has   a
      relationship with the victim?


      A.    [Detective Richmond] Exactly.


R. at 3785.  Kubsch contends the foregoing testimony should not  have  been
permitted because the State failed to lay a foundation  demonstrating  that
the proffered testimony was scientifically reliable.
      Indiana Evidence Rule 702 provides:
      (a) If scientific, technical,  or  other  specialized  knowledge  will
      assist the trier of fact to understand the evidence or to determine  a
      fact in issue, a witness qualified as an expert by  knowledge,  skill,
      experience, training, or education, may testify thereto in the form of
      an opinion or otherwise.


      (b) Expert scientific testimony is admissible only  if  the  court  is
      satisfied  that  the  scientific  principles  upon  which  the  expert
      testimony rests are reliable.


Evid. R. 702.  Under this rule, a witness may be qualified as an  expert  by
virtue of "knowledge, skill, experience, training, or education.”  Id.   And
only one characteristic is necessary to qualify an individual as an  expert.
 Creasy v. Rusk, 730 N.E.2d 659, 669 (Ind. 2000).  As such,  a  witness  may
qualify as an expert on the basis of practical experience  alone.   Id.   It
is within the trial court's sound discretion  to  decide  whether  a  person
qualifies as an expert witness.  Id.  In this case, we have  serious  doubts
as to whether a police  detective  with  experience  investigating  homicide
scenes  and  attending  seminars  exploring   victim/suspect   relationships
qualifies as an expert in an area involving rather  complex  behavioral  and
social science issues.  However, we decline to substitute our  judgment  for
that of  the  trial  court  on  this  matter  of  discretion.   Nonetheless,
"[e]xpert scientific testimony is admissible only if the court is  satisfied
that the scientific principles upon which the  expert  testimony  rests  are
reliable."  West v. State, 755 N.E.2d 173, 180 (Ind.  2001)  (quoting  Evid.
R. 702(b)).
      When determining  whether  scientific  evidence  is  admissible  under
702(b), we  consider  the  factors  discussed  in  Daubert  v.  Merrell  Dow
Pharm., Inc., 509 U.S. 579 (1993).  In that  case  the  Supreme  Court  held
that for scientific knowledge to be admissible under Federal  Evidence  Rule
702, the trial court judge must determine that the  evidence  is  based  on,
among other things, scientifically valid methodology.  Id.  at  592-93.   To
assist trial courts in making this determination, the Court outlined a  non-
exclusive list of factors that may be considered:   whether  the  theory  or
technique can be and has been tested, whether the theory has been  subjected
to peer review and publication, whether there is a known or potential  error
rate, and  whether  the  theory  has  been  generally  accepted  within  the
relevant field of study.  Id. at 593-94.
      This court has held that the concerns driving  Daubert  coincide  with
the express requirement of Indiana Rule of Evidence 702(b)  that  the  trial
court  be  satisfied  of  the  reliability  of  the  scientific   principles
involved.  Steward v.  State,  652  N.E.2d  490,  498  (Ind.  1995).   Thus,
although not binding upon the determination of  the  state  evidentiary  law
issues, the federal evidence law of Daubert and its progeny  is  helpful  to
the bench and bar in applying Indiana Rule of Evidence 702(b).   Id.   Also,
the proponent of expert testimony  bears  the  burden  of  establishing  the
reliability of the scientific tests upon which  the  experts’  testimony  is
based.  See McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997).
      Here,  the  State  has  not  shown  that  the   general   subject   of
victim/suspect relationships is based on  reliable  scientific  methodology.
The State presented no evidence even suggesting that this subject can be  or
has been tested, has been subjected  to  peer  review  and  publication,  or
whether there is a known or potential error rate.  Further,  testimony  that
Detective Richmond received instruction on victim/suspect relationships  and
possesses library books on this area of study  is  not  sufficient  to  show
that  it  has  been  generally  accepted  within  the  study  of  social  or
behavioral sciences.  We  have  no  doubt  that  the  existence  of  certain
behavioral  characteristics  of  either  suspects  or  victims  may  provide
investigating officers  with  useful  and  important  clues  in  solving  or
preventing crimes.  However, it is  another  matter  to  say  that  evidence
concerning a particular investigative technique is  reliable  enough  to  be
admitted at trial.  The trial court erred by permitting  Detective  Richmond
to testify concerning the significance of duct tape covering  Beth  Kubsch’s
face because it was not proper expert testimony under Indiana Evidence  Rule
702.
      On appeal the State  makes  no  claim  that  Detective  Richmond  was
testifying as an expert witness.  Rather, according to the State,  Detective
Richmond was testifying as a “skilled lay observer.”   Br.  of  Appellee  at
50.  We first observe that the ground the  State  now  asserts  is  not  the
basis on which the trial court allowed the testimony.   Instead,  the  trial
court specifically acknowledged that Detective Richmond  was  testifying  as
an expert witness.[7]  In any event the State still cannot prevail  on  this
issue.
      Although a witness may not be  qualified  to  offer  expert  testimony
under Indiana Evidence Rule 702, the witness may be qualified as a  “skilled
witness” (sometimes referred to as a “skilled lay observer”), see Warren  v.
State, 725 N.E.2d 828, 831 (Ind. 2000), under Indiana Evidence Rule 701.   A
skilled witness is a person with  “a  degree  of  knowledge  short  of  that
sufficient to be declared an expert under [Indiana Evidence] Rule  702,  but
somewhat beyond that possessed by the ordinary jurors.”   13  Robert  Lowell
Miller, Jr., Indiana Evidence §  701.105,  at  318  (2d  ed.  1995).   Under
Indiana Evidence Rule 701, a skilled  witness  may  provide  an  opinion  or
inference that is “(a) rationally based on the  perception  of  the  witness
and (b) helpful to a clear understanding of the witness’s testimony  or  the
determination of a fact in issue.”  Evid. R. 701.
      “Perception” has been defined as “[t]he process, act,  or  faculty  of
perceiving. . . . [i]nsight, intuition, or knowledge gained by  perceiving.”
 The American Heritage College Dictionary 1014  (3d  ed.  1993).   In  turn,
“perceive” has been defined as “[t]o become aware of  directly  through  any
of the senses,  esp.  sight  or  hearing.”   Id.  at  1013.   In  this  case
Detective Richmond’s opinion that when a victim’s  face  is  covered  it  is
often done to disassociate the victim from the suspect and that  it  happens
more in cases where the victim and suspect know or have a relationship  with
each other, was not  rationally  based  upon  his  perceptions.   There  was
nothing that Detective Richmond either saw or heard  at  the  scene  of  the
crime, or became aware of through  his  other  senses,  that  supported  the
basis for his opinion.  Rather, the detective’s opinion  was  based  on  his
understanding of a phenomenon which the State in this case has not shown  to
be scientifically reliable.  In  sum,  his  testimony  did  not  qualify  as
skilled witness testimony under Indiana Evidence Rule 701.
                                     V.

                          Admission of Photographs


      Kubsch next contends the  trial  court  erroneously  admitted  several
photographs into  evidence.   However,  other  than  complaining  about  the
number of times the photographs were displayed to the  jury,  and  generally
asserting, “[t]he autopsy photographs were prejudicial,”  Br.  of  Appellant
at 90, Kubsch does not tell us whether he objected to the admission  of  the
photographs, the grounds for the objection, or  whether  he  is  complaining
solely about autopsy photographs  or  other  photographs.   Our  independent
examination of  the  record  shows  that  of  the  twenty-three  photographs
apparently at issue, some of which depicted the crime scene  and  others  of
which  depicted  the  autopsy  examinations,  fifteen  were  admitted   into
evidence with no objection from Kubsch.  See R. at 3364, 3366,  3375,  3752,
3997, 3998, 3999.  Failure to object at trial to the admission  of  evidence
results in waiver of that issue on appeal.  Woods v. State, 677 N.E.2d  499,
504 (Ind. 1997).  For the remaining eight photographs,  Kubsch  objected  to
two of them - which depicted the crime scene - on  grounds  that  they  were
cumulative.  See R. at 3370, 3752.  The  admission  of  cumulative  evidence
does not itself warrant a new trial.  Duncan v. State, 735 N.E.2d  211,  213
(Ind. 2000).  Rather, the appellant must show that unfair prejudice  flowing
from the evidence outweighs its probative  value.   Id.   Here,  Kubsch  has
made no such showing.
      The six photographs left are autopsy photographs of  Beth  and  Aaron.
Kubsch objected to their admission into evidence on grounds that  they  were
gruesome, cumulative, and served only to prejudice  the  jury.   See  R.  at
3990, 3996, 4020, 4015, 4018.  Photographs depicting the  victim’s  injuries
or demonstrating a  witness’  testimony  are  generally  relevant  therefore
admissible and will not be rejected merely  because  they  are  gruesome  or
cumulative.  Wright v. State, 730 N.E.2d 713, 720 (Ind. 2000);  Harrison  v.
State, 699 N.E.2d 645, 647 (Ind. 1998).  The photographs at issue  establish
the cause of death and the manner in which the crime  was  committed.   They
also show wounds to the victims at  different  angles.   Although  gruesome,
these photographs were not needlessly cumulative  and  were  not  introduced
solely for the purpose  of  inflaming  the  jurors’  emotions.   This  Court
reviews the trial court’s decision to admit  photographic  evidence  for  an
abuse of discretion.  Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000).   We
find no abuse here.
                                     VI.

                      Opportunity to Present a Defense

      Contending that the time of death of all three victims was critical to
his defense, Kubsch complains that the State never established the  time  of
death and that the trial court “barred” him from “presenting  evidence  that
the time of death could have been proven within a definite period.”  Br.  of
Appellant at 35.  According to Kubsch, the trial court’s action  denied  him
a meaningful opportunity to  present  a  defense.   To  support  his  claim,
Kubsch directs our attention to the  testimony  of  Dr.  Robert  Tomec,  the
pathologist who conducted  the  autopsies,  and  the  testimony  of  Officer
Thomas Mammon, a crime scene investigator.
      “Whether rooted directly in the Due Process Clause of  the  Fourteenth
Amendment or in the Compulsory  Process  or  Confrontation  clauses  of  the
Sixth  Amendment,  the  Constitution  guarantees  criminal   defendants   ‘a
meaningful opportunity to present a complete defense.’”  Crane v.  Kentucky,
476 U.S. 683, 690 (1986) (citations omitted) (quotation  omitted).   As  the
Supreme Court has also observed:
      The right to offer the testimony of witnesses,  and  to  compel  their
      attendance, if necessary, is in plain terms the  right  to  present  a
      defense, the right to present the defendant’s version of the facts  as
      well as the prosecution’s to the jury so it may decide where the truth
      lies.  Just as an accused has the right to confront the  prosecution’s
      witnesses for the purpose of challenging their testimony, he  has  the
      right to present his own witnesses to establish a defense.  This right
      is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19 (1967).

A.  Examination of the pathologist

      During cross-examination, the pathologist affirmed  that  he  did  not
attempt to establish a  time  of  death  for  the  victims.   The  following
exchange then occurred:
      Q.    [Defense Counsel] What would be the things that you  would  look
      at to determine time of death?


      A.    [Pathologist] There are a number of factors that can be examined
      to try to determine a range cause of death –  I’m  sorry,  a  time  of
      death, and  those  include  lividity  and  rigidity  that  we  already
      discussed as well as other factors like the temperature of the body.



                                *     *     *

      Q.    [Defense Counsel] Did you at all make an attempt to look  at  or
      determine time of death?


      A.    [Pathologist] I recorded certain findings of rigor and lividity,
      but other than that, I do not try to determine - - a time of death  at
      the time of the autopsy.

      Q.    [Defense Counsel] If you yourself were not present at the scene,
      what information would be useful to you to determine time of death?

R. at 4038.  At that point the State objected.  After a side-bar  conference
the  trial  court  sustained  the  objection  on  grounds  of   materiality.
Specifically, the trial court declared:
      I mean you’re asking him to answer a question [in] an ideal world,  if
      he had had this, and this, could he have made  a  determination.   And
      probably he could tell you what he could know if he  had  temperature,
      if he had opacity  of  eyes  …   In  an  ideal  world  could  he  have
      determined, yes, but so?  No, there’s nothing in this evidence that we
      can go on, you know, there’s  nothing.   It’s  a  non-question.   It’s
      immaterial.  Okay?

R. at 4041.

      Relevant evidence is,  “evidence  having  any  tendency  to  make  the
existence of any fact that is of consequence to  the  determination  of  the
action more  probable  or  less  probable  than  it  would  be  without  the
evidence.”  Evid. R. 401.  The  two  components  of  relevant  evidence  are
materiality and probative value.  “If the evidence is offered to help  prove
a proposition that is not a matter in issue, the  evidence  is  immaterial.”
1 McCormick on Evidence § 185, at 637 (John W. Strong ed., 5th ed. 1999).
      In the form posed by the defense, the question to the pathologist  did
not appear to be probative of anything at all.  The pathologist had  already
testified that he had not made a  time  of  death  determination.   In  fact
during further cross-examination, the pathologist was  even  more  explicit:
“I was not at the scene.  That’s correct.  And I do not - - have never  gone
to the scene of a homicide so that I’m not in the  practice  of  doing  that
type of work [taking measurements needed to determine time of  death].”   R.
at 4041-42.  Only in the  context  of  the  argument  Kubsch  now  makes  on
appeal, is it plausible that the contested testimony of the pathologist  may
have been both relevant and material.  In this  appeal,  Kubsch  essentially
advances the argument that he wanted to demonstrate  that  the  police  were
deficient in gathering the necessary  “time  of  death”  evidence  from  the
crime scene. If the police had done so, the argument  continues,  then  they
could have provided that information to the pathologist.  In  turn,  it  was
necessary to examine the pathologist on exactly what type of evidence  could
have been gathered and thus may have assisted the pathologist  in  making  a
time of death determination.  However Kubsch made no  such  argument  before
the trial court.  Rather, he merely commented, “[w]ell, time of death is  an
important  question,  Judge.”   R.  at  4040.   Because  the   question   is
important, does not necessarily mean that it is relevant or material.
      In any event, limiting the cross-examination of  the  pathologist  was
not a ban on Kubsch “presenting evidence that the time of death  could  have
been proven within a definite period.”  Br. of Appellant  at  35.[8]   Trial
judges retain wide latitude  to  impose  reasonable  limits  on  the  cross-
examination of witnesses based  on  concerns  about,  among  others  things,
interrogation that is only marginally relevant.  Smith v. State, 721  N.E.2d
213, 219 (Ind. 1999).  As we have  indicated,  the  question  asked  of  the
pathologist was not just marginally relevant.  As posed, it did  not  appear
to be  relevant  at  all.   Lacking  relevance,  the  question  thus  lacked
materiality.  The trial court’s ruling on this issue was correct.
B.  Examination of the crime scene investigator
      During  the  direct  examination  of  Thomas  Mammon,  a  crime  scene
investigator, the State established that when the  officer  arrived  at  the
scene at about 6:00 p.m. on September 18, 1998, he and other  officers  were
“waiting on a search warrant for the home.”  R. at 3586.  A warrant  arrived
around 9:00  p.m.  at  which  time  Mammon  and  the  other  officers  began
processing the scene.  Defense counsel followed-up on this testimony  during
cross-examination.  At one point counsel asked the  officer,  “you’re  aware
that you could have gotten the  consent  from  a  homeowner  to  search  the
house?”  R. at 3600.  The State objected and  after  a  side-bar  conference
the trial court sustained the objection and admonished the jury as  follows:

      [A]s stated, the question  would  call  for  a  conclusion  from  this
      witness that would be simply conjecture,  that  if  a  homeowner  were
      present and if he were asked, that he might have consented to  such  a
      search.

      There’s nothing in this evidence to suggest  that  this  witness  knew
      that the homeowner was there.  He said he didn’t.  And even if he did,
      there is no evidence thus far to suggest that he was asked or that  he
      would have consented or would not have consented  if  he  were  asked.
      And therefore to  ask  this  witness  that  question  is  an  improper
      question.  It calls for speculation.


R. at 3604.  On appeal Kubsch does not contest the underlying bases for  the
trial court’s  ruling.   Rather,  contending  that  the  response  from  the
officer was an important component of the defense’s  time  of  death  claim,
Kubsch insists that by sustaining the  State’s  objection  the  trial  court
denied him the right to present a meaningful defense.   To  demonstrate  the
significance  of  Officer  Mammon’s  testimony   on   this   issue,   Kubsch
essentially makes the following  argument.   At  the  time  police  officers
first arrived at the crime scene relevant evidence existed that  could  have
assisted the pathologist in determining the time  of  death.   The  argument
continues that because the officers waited  for  a  search  warrant,  rather
than taking steps immediately  to  obtain  a  consent  to  search,  valuable
information was lost.  See generally Br. of Appellant at 37-40.
      Regardless of Kubsch’s theory of  defense,  evidence  to  support  the
theory must comply with  applicable  evidentiary  rules.   An  answer  to  a
question of a witness that calls  for  speculation  and  conjecture  is  not
admissible.  Because it is axiomatic that a ruling or a verdict  should  not
be based upon “evidence which is conjectural,” Lindsey v. State, 485  N.E.2d
102, 106 (Ind.  1985),  “[t]o  require  a  witness  to  answer  hypothetical
questions based upon facts not established would invite  speculation.”   Id.
at 106-07.  As such, an objection to  such  a  question  would  be  properly
sustained.  See id. at 107.   The  trial  court  correctly  ruled  that  “as
posed” Kubsch’s question to the officer was improper.  Contrary to  Kubsch’s
claim on appeal, he was not denied  the  right  to  advance  his  theory  of
defense.  Rather, he simply could not ask an improper question in doing  so.
 We find no error here.

                                 Conclusion

      The admission into evidence of portions of a videotape showing  Kubsch
invoking his constitutional right to remain silent violated the Due  Process
Clause of the Fourteenth Amendment as articulated  in  Doyle  v.  Ohio,  426
U.S. 610 (1976).  Because the error in admitting  the  unredacted  videotape
was not harmless beyond a reasonable doubt, we are  constrained  to  reverse
the judgment of the trial court and remand this cause for a new trial.
      Judgment reversed and cause remanded.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
      [1]  For his involvement in  these  crimes,  Hardy  was  charged  with
assisting a criminal and conspiracy to commit murder.  R. at 4142, 4155.


      [2]  Specifically, Kubsch frames the issues as follows:

      (1) whether admission  of  Kubsch’s  entire  videotaped  interrogation
      violated the U.S. and Indiana Constitutions;  (2)  whether  search  of
      Kubsch’s car violated the U.S. and Indiana Constitutions; (3)  whether
      Kubsch’s interrogation  was  custodial  and,  if  so,  whether  police
      scrupulously honored his  Miranda  invocation;  (4)  whether  bans  on
      defense evidence,  argument  and  instruction  require  reversal;  (5)
      whether admission of victim’s  hearsay  statements  violated  evidence
      rules and Confrontation Clauses;  (6)  whether  reversal  is  required
      because the court failed to inquire into potential conflicts, deprived
      Kubsch of his right to presence and counsel, and failed to  disqualify
      the prosecutor; (7) whether expert testimony was erroneously admitted;
      (8) whether exclusion for cause of a prospective juror based solely on
      religion  was  unconstitutional;  (9)  whether  reversal  is  mandated
      because the prosecutor argued evidence not admitted at trial and  used
      silence  as  evidence  of  guilt;  (10)  whether  judicial  statements
      deprived Kubsch of a fair trial; (11) whether the accomplice liability
      instruction was erroneous; (12) whether  the  jury  was  organized  to
      return a verdict of death; (13) whether the court erroneously admitted
      photographs; (14) whether the Court should enforce Lowrimore v. State,
      (15) whether reversal is mandated because the court failed to consider
      or submit to jurors Kubsch’s good prison adjustment; (16) whether  the
      penalty verdict forms were erroneous; (17) whether the court  violated
      Apprendi  v.  N.J.,  (18)  whether  remand  is  mandated  because  the
      sentencing order is insufficient.

Br. of Appellant at 1-2.

      [3]  See discussion infra Section II.A.
      [4]  For example, Kubsch vigorously cross-examined the State’s witness
who testified that Kubsch’s cellular  phone  records  placed  him  near  his
house when he claimed to be in Michigan picking up his son.  R. at  4335-52,
4358-61.  Nail scrapings were taken from each victim, and the DNA  recovered
was compared to Kubsch’s DNA.  The DNA from the victims’ nail scrapings  did
not match Kubsch’s DNA.  R. at  3860.   Furthermore,  no  fingerprints  were
recovered from the knife or duct tape.   As  for  the  duct  tape  packaging
found in his vehicle, Kubsch contended that he often kept duct tape  in  his
vehicle for use at his rental properties.  Kubsch also gave  an  explanation
why the September 18th bank receipt  with  Beth’s  fingerprints  on  it  was
found in his vehicle.  R. at 5301-02.  As for Penn’s trial  testimony  about
the  conversation  she  overheard  at  the  Mishawaka   restaurant,   Penn’s
boyfriend also testified at trial and disavowed her story.  R.  at  5111-18.
Furthermore, Penn received a $1,000 reward from Crimestoppers for  providing
this information to the police.  R. at 4426.
      [5]   The  Indiana  Constitution  provides  greater  protection   than
provided by federal law. See, e.g., United States v. Saadeh,  61  F.3d  510,
517 (7th Cir. 1995); United States v. Smith, 3 F.3d  1088,  1098  (7th  Cir.
1993) (declaring that a  consent  to  search  is  not  a  self-incriminating
statement,  and  therefore  a  request  to  search  does   not   amount   to
interrogation).
      [6]  Kubsch also contests the hearsay  testimony  of  State’s  witness
James Filbert.  The  record  shows  that  during  his  presentation  of  the
evidence, Kubsch introduced  testimony  through  Stanley  Feathers  implying
that Kubsch neither possessed nor had access to a handgun.  See R. at  5164-
65.  On rebuttal, the State called Filbert,  a  long  time  acquaintance  of
Beth Kubsch.  Over Kubsch’s objection Filbert testified Kubsch  “had  a  gun
in the house” which he kept “in a closet in a box . . . [in]  the  bedroom.”
R. at 5228. Otherwise inadmissible evidence may become admissible where  the
defendant “opens the door” to questioning  on  that  evidence.   Gilliam  v.
State, 383 N.E.2d 297, 301 (Ind. 1978).  Contrary  to  Kubsch’s  claim,  the
trial court properly admitted the testimony because Kubsch opened the  door.



      [7]  The record shows that just before the  State  began  to  question
Detective Richmond on the significance of the duct  tape,  the  trial  court
admonished the jury in part as follows:


      [N]ow - - - pardon me for interrupting.  This  witness  is  testifying
      and has given certain answers about his training  in  certain  fields.
      When a witness does that, sometimes they are called a, quote,  expert,
      meaning they have certain training that most people may not have.


      In such a case, a witness may be allowed to give that witness’ opinion
      on the significance of some physical thing that the  witness  observed
      or is aware of  . . . You  have  to  make  your  decisions  about  the
      evidence and what it signifies.  But experts are allowed to  give  you
      their opinion and why they say it and what it’s based on as an  assist
      to you if you find it of assistance.  That ultimately is up to you.


R. at 3784-85

      [8]  In fact the record shows that  on  redirect  examination  by  the
State, the pathologist testified, “in a general sense  …  only  a  range  of
time of death can be determined not an exact time of death.”   R.  at  4047.
In addition, the pathologist agreed with the question posed  by  the  State,
“[t]here is no method known to man presently  that  you  can  determine  the
exact time of a person’s death; is that correct.”  R. at 4047.