Rubenstein v. State
| Docket Number: | 2000-DP-00727-SCT Linked Case(s): 2000-DP-00727-SCT2000-DP-00727-SCT |
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| Oral Argument: | 08-11-2005 | |
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| Supreme Court: | Opinion Link Opinion Date: 08-10-2006 Opinion Author: Dickinson, J. Holding: AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RESENTENCING |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Hearsay - M.R.E. 804(b)(5) - Prior bad acts - Limiting instruction - M.R.E. 404(b) - M.R.E. 403 - Bad character - M.R.E. 404(a) - Right of confrontation - Fair trial - Pre-arrest silence - Cautionary instruction - Polygraph test - Expert testimony - Rebuttal testimony - Exculpatory evidence - Felonious child abuse instruction - Conflicting jury instructions - Murder for hire - Evidentiary support for instruction - Jury venire - Closing argument - Forensic evidence - Counsel withdrawal - Circumstantial evidence instructions - Sentencing instructions - Section 97-3-21- Sympathy instruction Judge(s) Concurring: Waller and Cobb, P.JJ., Diaz, Carlson and Graves, JJ. Concur in Part, Dissent in Part 1: Easley, J. Concur in Part, Dissent in Part Joined By 1: Smith, C.J., and Randolph, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
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| Trial Court: |
Date of Trial Judgment: 02-05-2000 Appealed from: Pike County Circuit Court Judge: Keith Starrett Disposition: Appellant was convicted of capital murder and sentenced to death. District Attorney: Dee Bates Case Number: 98-57-KA |
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| Note: | Motion for rehearing filed by appellant is granted. The previous opinions are withdrawn and these opinions are substituted therefor. Smith, C.J., Easley and Randolph, JJ., would deny. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Alan Michael Rubenstein |
ELIZABETH JANE HICKS, DAVID PAUL VOISIN, JAMES E. SHIELDS, SR. |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JUDY T. MARTIN, MARVIN L. WHITE, JR. |
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| Topic: | Death penalty direct appeal - Hearsay - M.R.E. 804(b)(5) - Prior bad acts - Limiting instruction - M.R.E. 404(b) - M.R.E. 403 - Bad character - M.R.E. 404(a) - Right of confrontation - Fair trial - Pre-arrest silence - Cautionary instruction - Polygraph test - Expert testimony - Rebuttal testimony - Exculpatory evidence - Felonious child abuse instruction - Conflicting jury instructions - Murder for hire - Evidentiary support for instruction - Jury venire - Closing argument - Forensic evidence - Counsel withdrawal - Circumstantial evidence instructions - Sentencing instructions - Section 97-3-21- Sympathy instruction |
| Summary of the Facts: | The motion for rehearing is granted, and these opinions are substituted for the original opinions. Alan Rubenstein was convicted on three murder charges. He was sentenced to death for one of the charges and to life imprisonment for the other two charges. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Hearsay Rubenstein argues that witnesses were allowed to present hearsay testimony based on statements made by one of the victims. The trial court reviewed and properly overruled the defense’s objection as to the testimony under M.R.E. 804(b)(5). The trial court applied the testimony to the five requirements for admissibility of the victim’s statements stating its findings on each requirement. There is no evidence to support that the trial court abused its discretion in allowing the testimony. In addition, the statements that Rubenstein argues violated his Sixth Amendment right to confrontation do not constitute testimonial hearsay. Issue 2: Prior bad acts Rubenstein argues that the court committed reversible error by allowing the prosecution to introduce evidence of alleged prior bad acts. Of the sixteen statements that Rubenstein complains, many were without objection at trial, or the objections were sustained. Any issue to which Rubenstein failed to object is procedurally barred. With regard to a statement about an insurance scam, the statement was sustained by the trial court and the trial court’s attempt to satisfy the defenses’ request to ask the jury to disregard the statement was cut-off by defense counsel informing the judge that it was not needed. Therefore, the trial court did not err. With regard to other statements about insurance fraud, Rubenstein opened the door and elicited the response and cannot now complain. Issue 3: Limiting instruction Rubenstein argues that testimony from a number of witnesses concerning one of the victim’s alleged sex with Rubenstein for money was inadmissible as prior bad acts, and the court erred by failed to conduct a balancing test pursuant to M.R.E. 404(b) and 403 and failing to give a limiting instruction on this testimony. However, Rubenstein never objected to any of these statements on the basis of prior bad act and is therefore procedurally barred from asserting these alleged issues of error on appeal. Rubenstein’s argument that the trial court failed to issue a limiting instruction is without merit because he never requested such an instruction. The trial court is not obligated to give a sua sponte limiting instruction on evidence pursuant to M.R.E. 404(b). Issue 4: Bad character Rubenstein argues that the court erred by allowing evidence of his alleged bad character in the prosecution’s case in chief, because the use of bad character is prohibited under M.R.E. 404(a). Rubenstein either failed to object or failed to object for the reasons now argued pursuant to Rule 404(a). With regard to a racial comment made by Rubenstein, Rubenstein did not object to the statement, did not move the trial court to exclude the epithet from the statement, and did not establish the racial make-up of the jury. Thus, any objection is waived. Issue 5: Right of confrontation Rubenstein argues that the trial court erred by admitting numerous hearsay statements when there were available declarants and that the statements violated his constitutional right of confrontation. The trial court instructed the jury that a statement made out of court is only admissible where it meets an exception to the rule against hearsay or when it is not offered to prove the truth of a matter asserted, but rather for some other purpose allowed under the rule. With regard to the witnesses who were available to testify but were not called as witnesses by the State, the fact that the State did not call these witnesses is of no consequence, as either side could have called these witnesses. With regard to the statements at issue, Rubenstein failed to object to a number of these statements at trial. Issue 6: Fair trial Rubenstein argues that an officer’s testimony that he had dislike for anybody who hurts a child deprived Rubenstein of a fair trial. Here, the trial court instructed the jury to disregard the statement as requested by the defense. Issue 7: Pre-arrest silence Rubenstein argues that his constitutional right to counsel and right to remain silent were violated when an officer mentioned that when he interviewed Rubenstein in 1994, Rubenstein stated he needed an attorney and questioning was stopped. The State did not comment on Rubenstein’s decision to seek an attorney, and there was no negative connotation attached by the prosecutor. The State’s questioning focused solely on the murder investigation by the officer. Issue 8: Cautionary instruction Rubenstein argues that the court erred in denying his proposed cautionary jury instruction with regard to the testimony of incarcerated individuals. However, these witnesses did not receive any favorable treatment nor any promises in exchange for testimony. Therefore, denial of the instruction was proper. Issue 9: Polygraph test Rubenstein argues that he is entitled to a new trial because one of the witnesses inadvertently stated that he offered to take a polygraph test. The testimony regarding the polygraph was unsolicited by either the State or the defense. Furthermore, there was no objection by either the State or the defense to the testimony and in fact, the comment came during the defense’s cross-examination of the witness. Thus, there is no error. Issue 10: Expert testimony Rubenstein argues that the State knowingly presented false expert testimony or allowed a false impression of the evidence to be presented to the jury when it presented the testimony of a forensic anthropologist for purposes of establishing a date of death. The jury heard the testimony from all the experts. None of the experts pinpointed the same exact time of estimated death. The jury alone determines the weight and worth of any conflicting testimony, and the credibility of the expert as a witness at trial rests with the jury. Nothing in the record supports Rubenstein’s assertion on appeal that the State intentionally presented false testimony in this case. Issue 11: Rebuttal testimony Rubenstein argues that the State violated its discovery obligations by failing to disclose a forensic anthropologist who testified on rebuttal as a prosecution witness before trial. The record shows that the State listed the expert as a potential witness on the State’s witness list. Furthermore, the trial court conducted a pre-trial hearing at which the State informed the trial court that this expert would testify. Clearly, the defense was informed that this expert would be a witness. Rubenstein also argues that rebuttal testimony cannot be used to avoid the obligation to disclose evidence about its case-in-chief. There is no evidence to support Rubenstein’s claim the trial court abused its discretion in allowing the rebuttal testimony. Issue 12: Exculpatory evidence Rubenstein argues that an expert testified that he saw pupa casings and that since that testimony differed from that of another expert it amounted to exculpatory evidence that must have been disclosed. There is no indication the defense did not have access to the photographs, and the defense had experts to testify as to whether they observed pupa casings. In addition, the defense did not cross-examine the expert, and it never objected to the testimony about pupa casings. Issue 13: Felonious child abuse instruction Rubenstein argues that the instruction on the elements of felonious child abuse was improper as being vague and not supported by the evidence. The State correctly asserts that Rubenstein did not raise any objection regarding the felonious abuse instruction at trial. In addition, the jury instruction accurately tracked the language of the felonious child abuse statute. Instructions in a criminal case which follow the language of a pertinent statute are sufficient. Issue 14: Conflicting jury instructions Rubenstein’s theory of the case was that he could not have possibly killed three people at once. This theory forced the State to request alternate instructions for the jury. Rubenstein argues that the instructions allowed the jury to convict him without making a unanimous finding and deprived him of his right to a unanimous verdict and his due process rights. Rubenstein failed to object on the basis that the jury would be able to convict him without a unanimous verdict and his due process rights. In addition, there were a number of instructions which do require the jury to reach a unanimous verdict. The record shows that the jury returned a unanimous verdict. Issue 15: Murder for hire Rubenstein argues that an instruction constructively amended the indictment by allowing the jury the opportunity to convict him for murder for hire. The issue is barred since Rubenstein never objected to the instruction on those grounds. In addition, the language of the statute concerning murder for hire is not contained in any of the instructions given to the jury. Issue 16: Evidentiary support for instruction Rubenstein argues that there was no evidence to support one of the jury instructions which included the language “alone or in cooperation with another.” While the trial court found no testimony of another’s involvement, the defense’s theory of the case was that no one could have murdered the three people alone. The evidence presented at trial adequately support the instruction given by the trial court. Issue 17: Jury venire Rubenstein argues that the court erred by refusing to strike the venire denying him a right to a fair trial, because an indeterminate number of jurors heard a description of the crime as heinous. Rubenstein was not harmed or prejudiced by the information as none of the three potential jurors sat in judgment of his case. Issue 18: Closing argument Rubenstein argues that the State improperly commented on Rubenstein’s exercise of his right not to testify and assistance of counsel; misstated the applicable law; expressed a personal opinion as to the credibility of witnesses; and referred to facts not in evidence. The State’s remarks conformed to the evidence admitted at trial. Because the evidence supports that State’s comments on closing argument, the remarks were proper. Rubenstein also argues that the court erred in sustaining three of the State’s objections to the defense’s closing argument. However, the record shows that Rubenstein was allowed to make his point to the jury. Moreover, the defense opened the door for the State’s objection and the trial court’s ruling. Issue 19: Forensic evidence Rubenstein requested that the bodies of the victims be exhumed. The trial court refused to provide the funds for the exhumations and testing. Rubenstein now argues that the exhumation and DNA testing would provide critical evidence for his case. In order for the State to pay for DNA testing it must be shown that DNA testing would significantly aid the defense. Here, the exhumation of the bodies and the hair sampling, DNA sampling would not be beneficial based on the facts of this case. In addition, the trial court conducted extensive hearings on these matters before denying Rubenstein’s requests. Issue 20: Withdrawal of counsel Rubenstein argues that the court erred in refusing to allow his attorneys to withdraw before the second trial. The record does not reflect that the trial court erred by denying the motions to withdraw. The trial court heard the motions and made a detailed finding that no conflict existed. The trial court also determined the motions were pretextual designed to delay the trial setting. Issue 21: Circumstantial evidence instructions Rubenstein argues that a number of refused jury instructions should have been given to the jury. The main reason for giving these instructions, according to Rubenstein, was because the evidence presented was circumstantial. A circumstantial evidence instruction must be given only when the prosecution can produce neither an eyewitness nor a confession/statement by the defendant. The evidence at trial was direct evidence in the form of confessions and admissions by Rubenstein to other people. Therefore, no circumstantial instructions were warranted. Issue 22: Sentencing instructions Rubenstein argues that the trial court erred by denying proposed sentencing jury instructions. Rubenstein tendered jury instructions which clearly attempted to instruct the jury that it had the option of sentencing him to life without possibility of parole. The trial court rejected these instructions and failed to fashion any instruction which properly instructed the jury of its three options. It is well settled that the refusal of instructions offered by the defendant need not be objected to in order to preserve the issue for appeal. Rubenstein sufficiently preserved this assignment of error for appellate review when he tendered sentencing instructions including the life without parole option. Although Rubenstein committed the crimes in 1992, his trial did not commence until January 2000. The trial court determined the sentencing option of life without parole was inapplicable to Rubenstein because “this case falls within the gap between the two laws.” Thus, the trial court incorrectly concluded the amended statute did not apply to Rubenstein. Because Rubenstein’s trial began after the July 1, 1994, effective date, the plain language in section 97-3-21 required the trial court to instruct the sentencing jury on the sentencing options of life, life without parole, or death. The Legislature determined that a person convicted of capital murder whose trial begins after July 1, 1994, shall receive sentencing instructions that include the option of life without parole. The trial court’s failure to include the statutorily required sentencing option of life without the possibility of parole constitutes reversible error. Issue 23: Sympathy instruction Rubenstein argues that the trial court erred by instructing the jury that it could not consider sympathy. As there was no contemporaneous objection, this assignment of error is procedurally barred. In addition, Rubenstein’s assignment of error has been repeatedly rejected by the Court. |
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