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
MARSHALL L. DAYAN
Durham, North Carolina
WAYNE KUBSCH, ) ) Appellant (Defendant ), ) ) Supreme Court Cause Number v. ) 71S00-9904-DP-239 ) STATE OF INDIANA, ) ) Appellee (Plaintiff ). )
R. at 3107-08. And on direct examination, Detective Samp made at least
three references to Kubschs 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 didnt want to talk to us, so at that point he was free to leave.
R. at 839-40.
As for the trial courts opportunity to grant a motion for mistrial or give a curative instruction, when the trial court overruled Kubschs objection to the videotape, Kubsch asked the trial court to give a limiting instruction. The limiting instruction would have provided that a defendants 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 jurys 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 Kubschs 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.
[Prosecutor] In fact did he leave?
[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
See footnote However, these
Miranda safeguards do not attach unless there has
been such a restriction on a persons 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 Kubschs 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 Kubschs 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 Kubschs 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 Kubschs 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 Kubschs truck would encompass considerably more than simply looking inside the vehicle.
Also, we agree with the trial court that Kubschs 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 Kubschs 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 Kubschs 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.
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 victims 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 victims 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 Aarons 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 Kubschs lifelong friend Brad Hardy.
In fact, the contested hearsay testimony was introduced during the States 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
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, thats 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 dont know
that hes 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 officers 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 Kubschs objection the detective then testified:
A. [Detective Richmond] Its been my training that oftentimes when a victims face is covered, its 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 Kubschs 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. See footnote 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 witnesss 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 Richmonds opinion that when a victims 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 detectives 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.
A. [Pathologist] There are a number of factors that can be examined to try
to determine a range cause of death Im 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.
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 youre 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, theres nothing in this evidence that we can go on, you know, theres nothing. Its a non-question. Its 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. Thats correct. And I do not - - have never gone to the scene of a homicide so that Im 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. See footnote 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 courts 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, youre 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.
Theres nothing in this evidence to suggest that this witness knew that the
homeowner was there. He said he didnt. 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 courts ruling. Rather, contending that the response from the
officer was an important component of the defenses time of death claim, Kubsch
insists that by sustaining the States objection the trial court denied him the
right to present a meaningful defense. To demonstrate the significance of Officer
Mammons 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 Kubschs 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 Kubschs question to the officer was improper. Contrary to Kubschs 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.
(1) whether admission of Kubschs entire videotaped interrogation violated the U.S. and Indiana
Constitutions; (2) whether search of Kubschs car violated the U.S. and Indiana Constitutions;
(3) whether Kubschs interrogation was custodial and, if so, whether police scrupulously honored
Miranda invocation; (4) whether bans on defense evidence, argument and instruction require
reversal; (5) whether admission of victims 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 Kubschs 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.
[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 its based
on as an assist to you if you find it of assistance.
That ultimately is up to you.
R. at 3784-85