FILED Oct 20 2020, 10:40 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven E. Ripstra Curtis T. Hill, Jr. Ripstra Law Office Attorney General of Indiana Jasper, Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kyle Schneider, October 20, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1928 v. Appeal from the Dubois Circuit Court State of Indiana, The Honorable Nathan A. Appellee-Plaintiff. Verkamp, Judge Trial Court Cause No. 19C01-1901-MR-47
Pyle, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 1 of 27 Statement of the Case [1] Kyle Schneider (“Schneider”) appeals his conviction by jury of murder1 and his
adjudication as an habitual offender.2 He argues that the trial court abused its
discretion in: (1) admitting and excluding evidence; and (2) instructing the jury.
Concluding that the trial court did not abuse its discretion, we affirm the trial
court’s judgment.
[2] We affirm.
Issues 1. Whether the trial court abused its discretion in admitting and excluding evidence.
2. Whether the trial court abused its discretion in instructing the jury.
Facts [3] The facts most favorable to the verdict reveal that in January 2019, twenty-
seven-year-old Schneider lived with Chloie Lubbehusen (“Lubbehusen”) in
Lubbehusen’s trailer in rural southern Indiana. Lubbehusen and Schneider had
been dating for a month. Lubbehusen’s cousin, Tikelan Kilburn (“Kilburn”),
and Kilburn’s wife, Ashley (“Ashley”) lived in a house, which was across the
road from Lubbehusen’s trailer.
1 IND. CODE § 35-42-1-1. 2 I.C. § 35-50-2-8.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 2 of 27 [4] At approximately 7:30 a.m. on January 11, 2019, Ashley heard someone
banging on her front door and “jingling” the door handle. (Tr. Vol. 4 at 74).
When she looked out the window, Ashley saw a naked Schneider walking
between her house and Kilburn’s car. Ashley tried to wake up Kilburn, who
was still sleeping, but she was unable to do so. She texted and telephoned
Lubbehusen, who did not respond. When Ashley looked out the window
again, she noticed something on Lubbehusen’s front porch. Ashley went
outside to investigate and discovered a naked and bloody Lubbehusen lying on
the porch.
[5] Ashley covered Lubbehusen with a blanket, called 911, ran back to her house,
and woke up Kilburn. Ashley and Kilburn returned to Lubbehusen’s porch.
Lubbehusen was struggling to breathe and was unable to communicate with
Ashley and Kilburn. Kilburn noticed that there was “blood everywhere.” (Tr.
Vol. 4 at 118). While Ashley was still on the phone with a 911 dispatcher,
Kilburn picked up Lubbehusen and carried her into the trailer to get her out of
the extreme cold. Kilburn placed Lubbehusen on the living room floor. While
sitting with Lubbehusen, Kilburn and Ashley noticed a bloody knife in the
living room. Kilburn also noticed “a blood trail through the kitchen to the
bedroom.” (Tr. Vol. 4 at 119).
[6] Shortly thereafter, Dubois County Sheriff’s Department deputies Stuart Wilson
(“Deputy Wilson”) and Brad Kendall (“Deputy Kendall”), a first responder,
and others arrived at the scene. The first responder transported Lubbehusen to
the hospital, where Lubbehusen died shortly thereafter. The deputies remained
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 3 of 27 at the scene to search for Schneider. Deputy Wilson found Schneider hiding in
insulation in a detached garage located near Lubbehusen’s trailer. Schneider,
who was wearing only a pair of socks and had blood on his hands, yelled,
“don’t shoot me. I want to tell my side of the story.” (Tr. Vol. 3 at 209).
[7] Deputy Wilson accompanied Schneider, who had no difficulty walking, to a
nearby sheriff’s department vehicle. Deputy Wilson gave Schneider a blanket
and placed him in the backseat of Deputy Kendall’s vehicle. While the deputies
were discussing the case, Schneider rolled down the vehicle’s window and
shouted: “[A]re there any vet[eran]s here? Any vet[eran]s? I want to talk to a
vet[eran]. I want to talk to someone that’s killed somebody.” (Tr. Vol. 3 at
213). When Deputy Kendall walked over to his vehicle to roll up the window,
Schneider asked the deputy if he “ha[d] [] ever killed anybody.” (Tr. Vol. 3 at
240). When Deputy Kendall responded that he had not, Schneider told the
deputy that “this would be [Schneider’s] first.” (Tr. Vol. 3 at 240).
[8] Deputy Kendall subsequently got into his vehicle to drive Schneider to the
“security center and to just detain [Schneider] there for questioning.” (Tr. Vol.
3 at 240). On the way to the security center, Schneider began complaining that
he “hadn’t used the bathroom in weeks and that his anus was bleeding.” (Tr.
Vol. 3 at 241). Deputy Kendall stopped at the hospital so that a doctor could
examine Schneider.3
3 Medical professionals found no evidence that Schneider’s anus was bleeding.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 4 of 27 [9] While Schneider was at the hospital, a hospital phlebotomist obtained a sample
of Schneider’s blood. In addition, Indiana State Police Trooper Ted Clamme
(“Trooper Clamme”) collected swabs from Schneider’s hands and cheeks.
Trooper Clamme also took photographs of Schneider’s hands and collected
Schneider’s socks. Schneider was compliant with Trooper Clamme’s requests,
and the trooper noticed no signs that Schneider was intoxicated.
[10] Also while Schneider was at the hospital, Dubois County Sheriff’s Department
Detective Jesus Monarrez (Detective Monarrez”) and Indiana State Police
Detective Brock Werne (“Detective Werne”) recorded an interview with
Schneider (“the First Video Interview”). Before the interview, Detective
Monarrez advised Schneider of his Miranda rights. Schneider responded that he
understood his rights and waived them. During the interview, Schneider was
oriented to place and time, and he answered questions coherently and in a
logical sequence. Both detectives noticed that Schneider appeared to be of
normal intelligence and physical condition. In addition, based on the
detectives’ training and experience, the detectives did not notice any signs that
Schneider was intoxicated. The detectives did not use violence, threats, or
promises while interviewing Schneider. At the time of the interview, the
detectives did not know whether Lubbehusen was alive, and Detective Werne
told Schneider that he was going to talk to Lubbehusen. Schneider appeared
surprised and asked if Lubbehusen was still alive. The First Video Interview
lasted less than thirty minutes.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 5 of 27 [11] At some point during the interview, the video camera’s battery died. Detective
Monarrez went to the prosecutor’s office to get another video camera. When
he returned to the hospital, the two detectives interviewed Schneider for a
second time (“the Second Video Interview”). During the interview, Schneider
invoked his right to counsel and asked the detectives for “advice.” (State’s Ex.
1, Disk 3, 2:05-3:00). The detectives told Schneider that they could not speak to
him if he wanted to consult with an attorney but that he could waive his right to
counsel if he chose to do so. Schneider responded that he wanted to speak to
Detective Monarrez and that he wanted Detective Werne to leave the room.
After Detective Werne had complied with Schneider’s request and had left the
room, Detective Monarrez again told Schneider that he had the right to consult
with an attorney. Schneider verbally waived his right to consult with counsel,
and Detective Monarrez continued the interview. At some point, Schneider
again requested to consult with an attorney, and Detective Monarrez stopped
the interview. Thereafter, Schneider was transported to the county jail.
[12] The following morning, January 12, 2019, at approximately 10:00 a.m.,
Schneider told the jail shift supervisor that he wanted to speak to Detective
Monarrez again but that he did not want the interview to be recorded.
Schneider spoke clearly, was able to participate in a coherent conversation, and
appeared to be conscious of what he was doing. The jail supervisor, who
noticed no signs that Schneider was intoxicated, telephoned Detective
Monarrez and told the detective what Schneider had requested. Detective
Monarrez told the jail supervisor that he would only speak to Schneider if the
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 6 of 27 interview was recorded. When the jail supervisor told Schneider what the
detective had said, Schneider said that he “wanted to think about it.” (Tr. Vol.
2 at 48).
[13] At 2:00 p.m., Detective Monarrez stopped by the jail to ask Schneider if he still
wanted to talk to the detective. Schneider responded that he did. Schneider
was escorted to an interview room and confirmed that he had requested to
speak with Detective Monarrez. Detective Monarrez read Schneider his
Miranda rights, and Schneider nodded his head to indicate that he understood
his rights and wished to waive them. Schneider also signed a written waiver of
rights form. During the interview (“the Third Video Interview”), Detective
Monarrez noticed that Schneider was oriented to time and place. Schneider
also answered questions coherently and in a logical sequence. In addition,
Schneider appeared to be of normal intelligence and physical condition.
Detective Monarrez did not use violence, threats, or promises while
interviewing Schneider. Although Detective Monarrez had told Schneider that
the interview was not being recorded, there was a camera recording the
interview.
[14] An hour into the Third Video Interview, Detective Monarrez encouraged
Schneider to tell him what had happened to Lubbehusen so that her family
could have closure. Schneider grabbed a nearby pen and wrote “I stabbed her”
on a piece of paper (“the Confession”). (Ex. Vol. 5 at 69). When Schneider
attempted to cross out with the pen what he had just written, Detective
Monarrez grabbed the piece of paper. Schneider asked the detective to give him
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 7 of 27 back the piece of paper. When Detective Monarrez refused to do so, Schneider
grabbed the piece of paper out of the detective’s hand. Several officers entered
the room to help Detective Monarrez retrieve the Confession. This incident
lasted less than one minute, and the Third Video Interview lasted an hour and
forty minutes.
[15] Forensic pathologist Dr. James Jacobi (“Dr. Jacobi”) performed Lubbehusen’s
autopsy on January 11, 2019. Dr. Jacobi found that Lubbehusen had been
stabbed a total of ten times. Specifically, Lubbehusen had a one-inch stab
wound on her forehead that had penetrated both her skull and her brain and
another stab wound on the back of her head that had also penetrated both her
skull and her brain. This was the first time that Dr. Jacobi had seen stab
wounds that had penetrated the victim’s skull. According to Dr. Jacobi, it
would have taken a “significant amount of force” for the knife to penetrate
Lubbehusen’s skull. (Tr. Vol. 5 at 29). Lubbehusen also had three stab
wounds to the back of her neck that had penetrated her spine and “creased or
compressed [her] spinal cord.” (Tr. Vol. 5 at 30). In addition, Lubbehusen had
incisions near her navel, on her leg, and near the center of her forehead. Dr.
Jacobi concluded that the cause of Lubbehusen’s death was exsanguination,
which was a loss of blood from the stab wounds.
[16] In addition, laboratory tests revealed that Schneider’s DNA was found on
Lubbehusen’s internal and external genitalia and on her anus. Schneider’s
DNA was also found under Lubbehusen’s fingernails, on the bloody knife
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 8 of 27 found in Lubbehusen’s living room, and on Lubbehusen’s left hand.
Lubbehusen’s DNA was found on the bloody knife and on Schneider’s socks.
[17] On January 16, 2019, the State charged Schneider with murder and alleged that
he was an habitual offender. In April 2019, Schneider filed a motion to
suppress the First, Second, and Third Video Interviews as well as the
Confession. Schneider specifically argued that his statements were involuntary
and were obtained in violation of both the Federal and Indiana Constitutions
because: (1) they were “obtained as . . . the direct . . . result of confronting
[Schneider] with certain material misrepresentations of fact known by the
interrogator to be misrepresentations[;]” (2) “the consumption of drugs so
affected the defendant that he was deprived of his free and independent will,
such that the [First Video Interview] statement was the product of an irrational
mind or coercion[;]” and (3) “[t]he interrogation continued after [Schneider]
had elected to consult with an attorney prior to further questioning.” (App.
Vol. 3 at 19-20).
[18] The trial court held a hearing on Schneider’s motion to suppress in May 2019.
At the hearing, the trial court heard the evidence set forth above regarding the
video interviews and the Confession. Also at the hearing, Deputy Kendall
testified that Schneider began “rambling” while the deputy was driving him to
the security center. (Tr. Vol. 2 at 121). When Deputy Kendall stopped his car
and advised Schneider of his Miranda rights, Schneider told the deputy “several
times that he knew his rights and that he had been in prison before and knew
his rights.” (Tr. Vol. 2 at 122). In addition, a forensic toxicologist testified at
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 9 of 27 the hearing that the blood that had been drawn from Schneider on the morning
of Lubbehusen’s murder had tested positive for methamphetamine,
amphetamines, and THC. The forensic toxicologist further testified that a
person with the levels of methamphetamine, amphetamines, and THC seen in
Schneider’s blood test results, would have been “conscious of what [he was]
doing and would not [have] be[en] in a state of mania.” (Tr. Vol. 2 at 102).
[19] Following the hearing, the trial court took Schneider’s motion to suppress
under advisement. Two days later, the trial court granted in part Schneider’s
motion to suppress when it ordered the suppression of the Second Video
Interview. However, the trial court also denied in part Schneider’s motion to
suppress when it denied the suppression of the First and Third Video Interviews
and the Confession.
[20] Schneider’s five-day trial began on May 13, 2019. During his opening
statement, Schneider argued that either Kilburn had murdered Lubbehusen or
Lubbehusen had stabbed herself. The State presented the evidence set forth
above through the testimony of Kilburn, Ashley, Deputy Wilson, Deputy
Kendall, Trooper Clamme, the jail supervisor, Dr. Jacobi, an Indiana State
Police forensic biologist, and others.
[21] Also at trial, Schneider objected when the State offered into evidence the First
Video Interview during Detective Werne’s testimony. Schneider’s objection
was “based upon all issues of suppression previously brought forward[.]” (Tr.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 10 of 27 Vol. 5 at 144). Outside the presence of the jury, the trial court responded to
Schneider’s objection as follows:
[T]here was a motion to suppress, the Court, as to this particular video, the Court denied that motion to suppress[.] I believe this particular video, the – the issue that [Schneider] had raised was that he was unable to . . . waive his Constitutional Rights because of intoxication and that there was maybe some deceit on the part of the law enforcement officer[.] And – and at this point . . . with respect to the motion to suppress, you know, I watched the whole video[.] I’m going to overrule your objection.
(Tr. Vol. 5 at 145). The trial court admitted the First Video Interview into
evidence, and the State played the video for the jury.
[22] During the testimony of Detective Monarrez, Schneider objected again when
the State offered into evidence the Third Video Interview. Outside the presence
of the jury, Schneider argued as follows:
Judge, we had previously filed a motion to suppress. A lengthy hearing was held, exhibits were introduced, testimony was taken. We would renew that objection based upon all of that information including . . . Schneider’s . . . state of intoxication, deception used by the State of Indiana to procure an involuntary statement. And renew that he had previously asserted his right to counsel and that the video that’s to be produced should be suppressed based on Indiana and . . . Federal Constitutions, Judge.
(Tr. Vol. 5 at 205-06).
[23] The trial court responded to Schneider’s argument as follows:
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 11 of 27 Of course at this time I’m going to overrule your objection. I found that based on my review . . . intoxication [was] not an issue . . . in any of these interviews. As . . . you’re well aware of the second interview at the hospital[,] the court did suppress and – but at that interview [Schneider] was repeatedly told that he ha[d] a right to counsel and c[ould] cease that interview at any time. At the end of that interview he did in fact make that statement and the interview ceased. Then following on the 12 th[,] [Schneider][] let it be known to [the jail shift supervisor] that he wished to speak to [Detective] Monarrez. [Four] hours later approximately [Detective] Monarrez came to the Security Center. [Schneider] was brought into the interview room. [Detective] Monarrez specifically asked, I was told you want to talk to me. [Schneider] nods his head in the affirmative that he does in fact want to talk to [Detective] Monarrez. [Schneider] was then Mirandized and therefore your objection is overruled.
(Tr. Vol. 5 at 206). The trial court admitted the Third Video Interview into
[24] Also during Detective Morarrez’s testimony, Schneider objected when the State
offered into evidence the Confession. Schneider specifically argued that he had
“move[d] to suppress the evidence [and] object[ed] to its admission, as [he] did,
of the prior items, pursuant to all the testimony [he] put forth before.” (Tr. Vol.
5 at 211).
[25] The trial court responded to Schneider’s objection as follows:
I'm going to overrule that objection, and, you know I think I said it on the record before, this is a subsequent interview at [Schneider's] request. That he was [M]irandized. He understood his rights. You know, I found [] [Schneider] to be an intelligent man. First thing he does -- you know, I know -- I did probably
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 12 of 27 address it before, but with the respect to the trickery that he alleges that Detective Monarrez told him that there was no - he was not being recorded at some point, [I] found that to be de minimums. [Schneider] clearly with his history is - h[e’s] accustom[ed] to police. The first thing he does - I didn't catch it the first time, first thing he does when he walks in the room is, he turns around, and looks at the camera up in the corner. He knew the camera was there. And, then he spends time during the interview looking through the - trying to look through the one[-] way glass. So, I certainly find that [Schneider] knew exactly what he was doing. So, with that, I going to overrule your objection.
(Tr. Vol. 5 at 211-12). Thereafter, the trial court admitted the Confession into
evidence.
[26] During Schneider’s case-in-chief, Schneider called Indiana State Police Crime
Scene Investigator Mark Green (“Investigator Green”) to the stand.
Investigator Green testified that while examining the crime scene, Investigator
Green had collected the following handwritten note (“the Note”), which was
dated December 26, 2018, fifteen days before Lubbehusen’s murder:
To One Of The Only F**ks I have left to give, Together we are going to achieve f**king greatness, swear. Always know who’s got your back. Always know your worth. I’ll give you a hint, you can’t put a price on it, I[’]m blessed to have you. My best friend (already), my rock [and] so much more. All the love I have to offer, CHLOIE
(Ex. Vol. 5 at 69). Schneider asked the trial court to admit the Note into
evidence. Based on the content of the Note, with Lubbehusen’s name at the
end of it, it appeared that Schneider was arguing that Lubbehusen had written it
to him. The State objected and argued that Schneider had “failed to lay a Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 13 of 27 sufficient foundation for the admission. There’s no proof who wrote that,
doesn’t have any handwriting evidence, there’s no proof.” (Tr. Vol. 6 at 5).
The State also argued that the Note was inadmissible hearsay. The trial court
sustained the objection and excluded the Note from evidence. There was no
additional testimony about the Note.
[27] After the parties had presented their evidence, Schneider tendered a reckless
homicide instruction and asked the trial court to instruct the jury on this lesser
included offense of murder. The trial court concluded that there was no serious
evidentiary dispute permitting the jury to find that Schneider had recklessly but
not knowingly killed Lubbehusen and declined to give the instruction.
[28] The jury convicted Schneider of murder, and Schneider admitted that he was an
habitual offender. The trial court sentenced Schneider to sixty-five (65) years
for murder. In addition, the trial court enhanced Schneider’s sixty-five (65)
year sentence by twenty (20) years for the habitual offender adjudication.
Schneider now appeals his conviction and his habitual offender adjudication.
Decision [29] Schneider argues that the trial court abused its discretion in: (1) admitting and
excluding evidence; and (2) instructing the jury. We address each of his
contentions in turn.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 14 of 27 1. Admission and Exclusion of Evidence
[30] Schneider argues that the trial court abused its discretion when it: (1) admitted
into evidence the First and Third Video Interviews and the Confession;4 and (2)
excluded from evidence the Note. We review the trial court’s ruling on the
admission and exclusion of evidence for an abuse of discretion. Cherry v. State,
57 N.E.3d 867, 875 (Ind. Ct. App. 2016), trans. denied. We reverse only where
the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Id.
A. Admission of Evidence
[31] Schneider first argues that the trial court abused its discretion when it admitted
into evidence the First and Third Video Interviews. He also challenges the
admission of the Confession. He specifically argues that his statements in both
interviews and the handwritten confession were involuntary under the federal
and state constitutions.
[32] The Fifth Amendment’s privilege against self-incrimination applies to the states
through the Fourteenth Amendment. Withrow v. Williams, 507 U.S. 680, 689
(1993). When a defendant challenges the voluntariness of a statement under the
United States Constitution, the State must prove by a preponderance of the
4 Although Schneider initially challenged the admission of this evidence through a motion to suppress, he now appeals following a completed trial. The issue is therefore appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial. Packer v. State, 800 N.E.2d 574, 578 (Ind. Ct. App. 2003), trans. denied.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 15 of 27 evidence that the statement was voluntarily given. Pruitt v. State, 834 N.E.2d
90, 114 (Ind. 2005). In addition, Article I, Section 14 of our Indiana
Constitution provides that “[n]o person, in any criminal prosecution, shall be
compelled to testify against himself.” The Indiana Constitution requires the
State to prove beyond a reasonable doubt that the defendant voluntarily waived
his rights and that he voluntarily gave his statement. Pruitt, 834 N.E.2d at 114-
15.
[33] When reviewing a challenge to the trial court’s decision to admit the
defendant’s statements or confession, we do not reweigh the evidence. Moore v.
State, 143 N.E.3d 334, 340 (Ind. Ct. App. 2020). Rather, we examine the
record for substantial probative evidence of voluntariness. Id. We examine the
evidence most favorable to the State, together with the reasonable inferences
that can be drawn therefrom. Malloch v. State, 980 N.E.2d 887, 901 (Ind. Ct.
App. 2012), trans. denied. If there is substantial evidence to support the trial
court’s conclusion, we will not set it aside. Id.
[34] The voluntariness of a defendant’s statement is determined by examining the
totality of the circumstances. Luckhart v. State, 736 N.E.2d 227, 229 (Ind. 2000).
Factors to be considered are “‘any element of police coercion; the length,
location, and continuity of the interrogation; and the maturity, education,
physical condition, and mental health of the defendant.’” Weisheit v. State, 26
N.E.3d 3, 18 (Ind. 2015) (quoting Wilkes v. State, 917 N.E.2d 675, 680 (Ind.
2009)). “The critical inquiry is whether the defendant’s statements were
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 16 of 27 induced by violence, threats, promises or other improper influence.” Ringo v.
State, 736 N.E.2d 1209, 1212-13 (Ind. 2000).
[35] We turn first to the First Video Interview, which was conducted by both
Detective Monarrez and Detective Werne. Our review of the evidence reveals
that during the interview, which took place in a hospital room, twenty-seven-
year-old Schneider was oriented to time and place, and he answered the
detectives’ questions coherently. Both detectives noticed that Schneider
appeared to be of normal intelligence and physical condition. The First Video
Interview lasted less than thirty minutes, and the detectives did not use
violence, threats, or promises while interviewing Schneider. Based on our
analysis of the relevant factors, we conclude that the State proved both by a
preponderance of the evidence and beyond a reasonable doubt that the
statement Schneider gave in the First Video Interview was voluntarily given.
[36] We further note that to the extent that Schneider argues that his statement was
involuntary because he was under the influence of methamphetamine,
amphetamines, and marijuana during the interrogation, a statement may be
given voluntarily notwithstanding voluntary intoxication. Luckhart, 736 N.E.2d
at 231. We will deem a defendant’s statement incompetent only when he is so
intoxicated that it renders him not conscious of what he is doing or produces a
state of mania. Id. Intoxication to a lesser degree only goes to the weight to be
given to the statement, not its admissibility. Id.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 17 of 27 [37] Here, our review of the evidence reveals that both Detective Monarrez and
Detective Werne testified that, based on their training and experience, they did
not notice any signs that Schneider was intoxicated during the First Video
Interview. In addition, a forensic toxicologist testified at the suppression
hearing that a person with the levels of methamphetamine, amphetamines, and
THC seen in Schneider’s blood test results would have been “conscious of what
[he was] doing and would not [have] be[en] in a state of mania.” (Tr. Vol. 2 at
102). Schneider’s alleged intoxication did not render his statement involuntary,
and the trial court did not abuse its discretion in admitting the First Video
Interview into evidence.
[38] We now turn to the Third Video Interview, which was conducted by Detective
Monarrez at the jail. Schneider argues that the statement he gave in this
interview was not voluntary because it was induced by Detective Monarrez’s
deception. Schneider specifically points out that although the detective had told
him that the detective was not recording the Third Video Interview, there was a
camera recording the interview. Detective Monarrez admitted at trial that he
was not truthful with Schneider about recording the interview. However, such
a fact, while relevant, is only one factor to be considered. See Carter v. State, 490
N.E.2d 288, 291 (Ind. 1986) (explaining that an officer untruthfully telling the
defendant that the victim might still be alive was only one factor to consider in
determining the voluntariness of the defendant’s confession). The totality of the
circumstance regarding a defendant’s statement must be examined in order to
determine the question of voluntariness. Id.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 18 of 27 [39] Our review of the totality of the circumstances regarding the interview reveals
that, during the interview, twenty-seven-year-old Schneider was oriented to
time and place, and he answered the detective’s questions coherently.
Detective Monarrez noticed that Schneider appeared to be of normal
intelligence and physical condition. The Third Video Interview lasted an hour
and forty minutes, and Detective Monarrez did not use violence, threats, or
promises while interviewing Schneider. We further note that the trial court
found that, based upon his criminal history, Schneider was “accustom[ed] to
police[.]” (Tr. Vol. 5 at 211). The trial court further pointed out that the first
thing that Schneider did when he walked into the interrogation room was turn
around and look up at the camera in the corner. Based upon Schneider’s
actions, the trial court concluded that Schneider “knew the camera was there[]
[and] knew exactly what he was doing.” (Tr. Vol. 5 at 211). Based on our
analysis of the relevant factors, we conclude that the State proved both by a
preponderance of the evidence and beyond a reasonable doubt that the
statement Schneider gave in the Third Video Interview was voluntarily given.
[40] Schneider also argues that the statement he gave during the Third Video
Interview was not voluntary because he had asked for an attorney in the Second
Video Interview. He is correct that when an individual who is in custody
invokes his right to counsel, all interrogation must cease until an attorney is
present, and the individual must be given the opportunity to speak with the
attorney and have the attorney present at any further questioning. See Hartman
v. State, 988 N.E.2d 785, 788 (Ind. 2013). However, if the individual initiates
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 19 of 27 “‘further communication, exchanges, or conversations’ with law enforcement,
then the individual may be further interrogated without counsel present.” Id.
(quoting Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). Here, the morning
after the Second Video Interview when Schneider had asked for an attorney,
Schneider told the jail shift supervisor that he wanted to speak to Detective
Monarrez again. The detective stopped by the jail four hours later and asked
Schneider if he still wanted to talk. Schneider responded that he did. Schneider
was escorted to an interview room and confirmed that he had requested to
speak with Detective Monarrez. Because Schneider initiated the Third Video
Interview with Detective Monarrez, his statement was voluntary, and the trial
court did not abuse its discretion in admitting it.
[41] Lastly, we turn to the Confession, which Schneider handwrote during the Third
Video Interview. We have already determined that the statement that
Schneider gave during the Third Video Interview was voluntary; however, we
will address Schneider’s specific challenge to the voluntariness of the
Confession. Schneider contends that the law enforcement officers “exceeded
the use of reasonable force to retrieve [the Confession].” (Schneider’s Br. 30).
[42] However, the critical inquiry in determining whether the Confession was
voluntary is whether the confession was induced by violence, threats, or other
improper influences. Here, Schneider does not argue that Monarrez used
violence, threats, or other improper influences while interviewing Schneider,
thereby inducing Schnier to handwrite the Confession. Rather, Schneider
challenges the officers’ retrieval of the Confession, which he had already
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 20 of 27 voluntarily written. The officers’ retrieval of the Confession is not a factor that
we consider when determining the voluntariness of an already-written
confession.
[43] We further note that our review of the evidence reveals that an hour into the
Third Video Interview, Detective Monarrez encouraged Schneider to tell him
what had happened to Lubbehusen so that her family could have closure.
Schneider grabbed a nearby pen and wrote “I stabbed her” on a piece of paper.
(Ex. Vol. 5 at 69). When Schneider attempted to cross out with the pen what
he had just written, Detective Monarrez grabbed the piece of paper. Schneider
asked the detective to give him back the piece of paper. When Detective
Monarrez refused to do so, Schneider grabbed the piece of paper out of the
detective’s hand. Several officers entered the room to help Detective Monarrez
retrieve the Confession. This incident lasted less than one minute. Schneider
has failed to specify how the officers’ retrieval of the Confession constituted
unreasonable force, and our review of the Third Video Interview reveals no
such force. The trial court did not abuse its discretion when it admitted the
Confession into evidence.
B. Exclusion of the Note
[44] Schneider also argues that the trial court abused its discretion when it excluded
the Note from evidence. According to Schneider, “[a]n assertion of love and
support, in the Victim’s handwriting, executed within two weeks of her death,
would have been powerful evidence for the Defense.” (Schneider’s Br. 43-44).
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 21 of 27 The State responds that “the trial court did not abuse its discretion by excluding
[the Note] from evidence because [the Note] lacked a proper foundation[.]”
(State’s Br. 34). We agree with the State.
[45] “‘To lay a foundation for the admission of evidence, the proponent of the
evidence must show that the evidence has been authenticated.’” Pavlovich v.
State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014) (quoting Hape v. State, 903 N.E.2d
977, 989 (Ind. Ct. App. 2009), trans. denied), trans. denied. Pursuant to Indiana
Evidence Rule 901(a), “[t]o satisfy the requirement of authenticating . . . an
item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” Absolute proof of
authenticity is not required. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App.
2008), trans. denied. All that is required is evidence establishing “a reasonable
probability that an item is what it is claimed to be[.]” Thomas v. State, 734
N.E.2d 572, 573 (Ind. 2000). Additionally, authentication of an exhibit can be
established by either direct or circumstantial evidence. Newman v. State, 675
N.E.2d 1109, 1111 (Ind. Ct. App. 1996).
[46] Indiana Evidence Rule 901(b) provides examples of evidence that satisfy the
authentication requirement, including: (1) “[t]estimony that an item is what it
is claimed to be, by a witness with knowledge[;]” (2) “[a] nonexpert’s opinion
that handwriting is genuine, based on a familiarity with it that was not acquired
for the current litigation[;]” (3) “[a] comparison with an authenticated specimen
by an expert witness or the trier of fact[;]” and (4) “[t]he appearance, contents,
substance, internal patterns, or other distinctive characteristics of the item,
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 22 of 27 taken together with all the circumstances.” Ind. Evidence Rule 901(b)(1),
(b)(2), (b)(3), and (b)(4).
[47] Here, during Schneider’s case-in-chief, Schneider called Investigator Green to
the stand. The investigator testified that while examining the crime scene, the
investigator had collected the Note, which was dated December 26, 2018.
Based on the content of the Note, with Lubbehusen’s name at the end of it, it
appeared that Schneider was arguing that Lubbehusen had written the Note to
him. When Schneider asked the trial court to admit the Note into evidence, the
State objected and argued that Schneider had failed to authenticate the Note.
The State specifically pointed out that there was no proof as to who had written
the Note and there was no handwriting evidence. The State also argued that
the Note was inadmissible hearsay. The trial court sustained the objection and
excluded the Note from evidence. There was no other testimony about the
Note.
[48] We agree with the State that Schneider failed to authenticate the Note.
Importantly, there was no testimony from a witness with knowledge that the
Note was what it was claimed to be. In addition, there was no nonexpert’s
opinion testimony that the handwriting was genuine, and no expert’s
comparison of the Note with an authenticated specimen of Lubbehusen’s
handwriting. Lastly, there was no testimony about the appearance, contents,
substance, internal patterns, or other distinctive characteristics of the Note that
could be taken together with other circumstances. We further point out that the
Note is not addressed to Schneider, and his name does not appear on the Note.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 23 of 27 Because Schneider failed to authenticate the Note, the trial court did not abuse
its discretion when it excluded the Note from evidence.5
[49] We further note that even if the trial court abused its discretion in admitting
into evidence the First and Third Video Interviews and the Confession and
excluding from evidence the Note, any error was harmless. The erroneous
admission of evidence is harmless where “‘the conviction is supported by
substantial independent evidence of guilt so as to satisfy the reviewing court
that there is no substantial likelihood the questioned evidence contributed to the
conviction.’” Messel v. State, 80 N.E.3d 230, 232 (Ind. Ct. App. 2017) (quoting
Duncan v. State, 23 N.E.3d 805, 811 (Ind. Ct. App. 2014)), trans. denied.
[50] Here, our review of the evidence reveals that after finding a naked and bloody
Lubbehusen in her trailer, Dubois County Sheriff’s Department deputies found
a naked Schneider hiding in insulation in a nearby garage. Schneider asked the
officers to let him tell his side of the story. While sitting in the back of Deputy
Kendall’s police car, Schneider yelled that he wanted to speak with someone
who had killed a person. When Deputy Kendall approached his vehicle to roll
up the window, Schneider asked the deputy if he had ever killed a person.
When Deputy Kendall responded that he had not, Schneider told the deputy
that this was his first kill. Laboratory tests revealed that Schneider’s DNA was
found on Lubbehusen’s internal and external genitalia and on her anus.
5 Because we affirm the trial court’s exclusion of the Note from evidence based upon Schneider’s failure to authenticate it, we need not determine whether the Note was hearsay.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 24 of 27 Schneider’s DNA was also found under Lubbehusen’s fingernails, on the
bloody knife found in Lubbehusen’s living room, and on Lubbehusen’s left
hand. In addition, Lubbehusen’s DNA was found on Schneider’s socks. The
evidence further revealed that Lubbehusen had been so violently stabbed that
the knife had penetrated both her skull and brain both in the front and the back
of her head and compressed her spinal cord. Given this overwhelming
independent evidence of Schneider’s guilt, we find that there is no substantial
likelihood that the First and Third Interviews and the Confession contributed to
Schneider’s conviction. Any error in the admission of this evidence was
therefore harmless.
2. Jury Instructions
[51] Schneider also argues that the trial court abused its discretion when it instructed
the jury. Schneider specifically contends that the trial court abused its
discretion when it declined to give his tendered lesser-included offense
instruction for reckless homicide.
[52] In Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995), the Indiana Supreme Court
set forth a three-part test that trial courts should perform when called upon by a
party to instruct the jury on a lesser-included offense to the crime charged.
First, the trial court must compare the statute defining the crime charged with
the statute defining the alleged lesser-included offense to determine if the
alleged lesser-included offense is inherently included in the crime charged. Id.
Second, if the trial court determines that an alleged lesser-included offense is
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 25 of 27 not inherently included in the crime charged under step one, then it must
determine if the alleged lesser-included offense is factually included in the crime
charged. Id. at 567. If the alleged lesser-included offense is neither inherently
nor factually included in the crime charged, the trial court should not give an
instruction on the alleged lesser-included offense. Id. Third, if a trial court has
determined an alleged lesser-included offense is either inherently or factually
included in the crime charged, “it must look at the evidence presented in the
case by both parties” to determine if there is a serious evidentiary dispute about
the element or elements distinguishing the greater from the lesser offense and if,
in view of this dispute, a jury could conclude that the lesser offense was
committed but not the greater. Id. It is reversible error for a trial court not to
give a requested instruction on inherently or factually included lesser offenses if
there is such an evidentiary dispute. Id. We now apply this framework to
Schneider’s tendered lesser-included reckless homicide instruction.
[53] Reckless homicide is an inherently included lesser offense of murder. Id. The
only element distinguishing the two offenses is the defendant’s state of mind.
Id. Reckless homicide occurs when the defendant “recklessly” kills another
human being. IND. CODE § 35-42-1-5. Reckless conduct is action taken in
plain, conscious, and unjustifiable disregard of harm that might result. IND.
CODE § 35-41-2-2(c). In addition, the disregard involves a substantial deviation
from acceptable standards of conduct. Id.
[54] Murder, on the other hand, occurs when the killing is done “knowingly” or
“intentionally.” IND. CODE § 35-42-1-1. A person engages in conduct
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 26 of 27 “knowingly” if the person is aware of a high probability that he is doing so.
IND. CODE § 35-41-2-2(b). Accordingly, Schneider was entitled to an
instruction on reckless homicide if there was a serious evidentiary dispute
permitting the jury to find that he recklessly but not knowingly killed
Lubbehusen. See McEwen v. State, 695 N.E.2d 79, 85 (Ind. 1998).
[55] Here, our review of the evidence reveals that Schneider stabbed Lubbehusen ten
times. Schneider used enough force while stabbing Lubbehusen’s head to twice
penetrate both her skull and her brain. Schneider also stabbed Lubbehusen in
the back of the neck with enough force to penetrate Lubbehusen’s spine and
compress her spinal cord. Stabbing a victim multiple times in the head and
chest is evidence of an awareness of a high probability that the victim will be
killed. See id. (explaining that “an assault . . . with a knife or similar sharp
object – particularly in the chest or head region – rarely occurs without
awareness of a high probability that death will result”). Based on this evidence,
there was no serious evidentiary dispute permitting the jury to find that
Schneider recklessly but not knowingly killed Lubbehusen. See id.
Accordingly, the trial court did not abuse its discretion when it refused to give
the jury Schneider’s tendered instruction on the lesser-included offense of
reckless homicide.
[56] Affirmed.
Bradford, C.J., and Weissmann, J., concur.
Court of Appeals of Indiana | Opinion 19A-CR-1928 | October 20, 2020 Page 27 of 27