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 stepbrother Aaron Milewski and Aaron’s father Rick Milewski in the basement of his Mishawaka 

home. Anthony lived in the home with his mother Beth Kubsch, who was Aaron’s mother and 

Rick’s ex-wife, and Wayne Kubsch, Beth’s husband at the time. Anthony looked more closely at 

the bodies, and then fled to a neighbor’s house, from which the police were eventually 

summoned. 

 The Mishawaka Police Department arrived on the scene about 5:45 p.m. When Wayne 

Kubsch arrived at the house, he had to be restrained from entering. Kubsch then accompanied 

police officers to the South Bend Police Department for questioning by detectives of the special 

crimes unit. 

 Around 9 p.m., after Kubsch left the police station, crime scene investigators informed 

the detectives that they had also found Beth Kubsch’s body in the basement, inside a “fort” 

Anthony had constructed underneath the stairs using old blankets. Beth had been “hog-tied” 

with duct tape and her head covered in tape. Like Aaron and Rick, she had been stabbed 

repeatedly.1

Upon learning about the discovery of Beth’s body, detectives instructed a junior police 

officer to locate Kubsch and bring him back to the station. The officer complied, and returned 

with Kubsch. The detectives requested that Kubsch allow a search of his vehicle, which he did, 

signing a consent form. The police then impounded the vehicle and searched it.2

 

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 pretrial 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 nonpublic 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 selfrepresentation 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 selfrepresentation. 

 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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