State v. Rubens

• Decision Date: 11 January 2012
• Docket Number: No. 2010–KA–1114.,2010–KA–1114.
• Citation: 83 So.3d 30
• Parties: STATE of Louisiana v. Peter R. RUBENS.
• Court: Court of Appeal of Louisiana — District of US

83 So.3d 30

STATE of Louisiana

v.Peter R. RUBENS.

No. 2010–KA–1114.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 30, 2011.Rehearing Denied Jan. 11, 2012.

Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for State of Louisiana.

John Harvey Craft, Louisiana Appellant Project, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge CHARLES R. JONES, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).

DANIEL L. DYSART, Judge.

[4 Cir. 1] FACTS AND PROCEDURAL BACKGROUND

Defendant Peter Richard Rubens was charged by grand jury indictment with the second degree murder of Robert “Bobby” Irwin, a violation of La. R.S. 14:30.1. The Defendant pled not guilty at his October 15, 2008 arraignment. On January 9, 2009, the trial court heard and denied defendant's motion to suppress the statement to the police. On June 26, 2009, the trial court denied defendant's motion to suppress three voicemail messages he left. On August 18, 2009, the first day of defendant's five-day jury trial, the trial court ruled that the State would not be able to use evidence of an incident involving another crime allegedly committed [4 Cir. 2] by him. The State filed a writ application, and this Court stayed the trial. On August 19, 2009, this court denied the State's writ and lifted the stay. After deliberating for approximately one hour a jury found the defendant guilty as charged on August 24, 2009. Defendant filed a motion for a new trial on the date of sentencing, August 31, 2009, which the trial court denied. On that same date the trial court sentenced the defendant to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. Defendant subsequently filed this appeal.

The defendant, Peter Richard Rubens, was a longtime resident of New Orleans who had worked as an artist and painter. After Hurricane Katrina, the defendant went into the construction business, repairing residences and structures that had been damaged by the storm. The victim, Robert Irwin, who was also known as “Bobby” or “B”, had worked for the defendant in various construction capacities including a laborer, carpenter and foreman. Prior to the date of the victim's death on June 29, 2008, the defendant was living at 5036 South Prieur Street, a house that was owned by Ray Manning. Rubens was living there along with his girlfriend Diane Hoover. The house had been under repair for some months on an arrangement that had been worked out between Rubens and Manning that included Rubens living on the second floor of the residence while the repairs on the house were ongoing. Testimony at the trial revealed the arrangement between Rubens and Manning had soured somewhat, and Rubens had obtained an opportunity to land a lucrative construction job in Iowa. Along with a group of workers, Rubens planned on leaving for Iowa on June 29, 2008.

[4 Cir. 3] Further testimony revealed that Robert Irwin was not one of the workers who was to accompany Rubens on the trip to Iowa. Witnesses at trial testified that Irwin had been having an affair with Rubens girlfriend, Diane Hoover for some period of time. On Saturday, June 28, 2008 Robert Irwin spent the day in St. Rose with his friends Lynnette and Alan Betts. The Betts had been friends with Irwin for about two years. Irwin was in the process of purchasing the Betts' motorhome which Irwin lived in and was parked in the driveway of the Betts' home in New Orleans that was located across the street from 5036 South Prieur. Also spending Saturday June 28, 2008 with the victim were Jess Salt, son of Lynnette Betts, and Jess' girlfriend and mother of their two small children, Emily Shelton.

On Sunday, June 29, 2008, Jess Salt drove Robert Irwin from St. Rose back to New Orleans. Also along for the trip were Emily Shelton and her two children. Over the weekend Irwin had told his friends of his problems with his former boss Peter Rubens. He knew that Rubens and a group of his workers were soon to leave for a job in Iowa, and he wanted to get back home in order to safeguard his tools and to confront Rubens regarding money owed to him. Irwin also told his friends that Diane Hoover was not going to Iowa with Rubens but that she was to stay in New Orleans and build a life with him. Lynnette Betts was concerned for Irwin to confront Rubens and stated, “He [Bobby] feels like somebody probably could die that night.” Jess Salt testified that Irwin told him on the ride from St. Rose to New Orleans, “If he [Rubens] pulls a gun on me, I will shove it up his a--.”

Despite these comments, Salt and his girlfriend Shelton both testified that Irwin's demeanor was calm and relaxed when they reached the South Prieur Street address. The door to the home was open, and there were men on the porch and around the home. When Irwin exited the Salt vehicle, he left his bags as well as his [4 Cir. 4] dog “Tchoupi” and walked straight into the 5036 S. Prieur Street address. When Salt realized Irwin had left his bags and dog, he walked up to the residence and yelled for his friend “B.” Irwin came from inside of the house and told Salt all was fine, then gave him his keys so Salt could put his bags and dog in his motor home across the street. On his way back into the house Irwin joked with the men. Salt walked across the street to put Irwin's bags and dog in his motor home. On the way back to his car, he heard the shots and a scream. Salt walked to the front of the house, where the men were running everywhere. When he reached the front steps of the house, he saw the defendant, Peter Rubens, who appeared on the porch and said to Salt, “You got a problem? I'll put you down like I put ‘B’ down.” Salt did not see a gun, and told the defendant he would not leave until “B” came out. At this point, Salt saw his friend Irwin at the bottom of the front door. As he went to him, he could see that he had been shot, was suffering and moving only slightly. Salt ran out and called 911 when Ray Manning, the owner of 5036 South Prieur, walked up. Salt gave the phone to Manning, who gave the address to the 911 operator. Irwin expired when Salt returned inside.

New Orleans Police Department Homicide Detective Robert Long arrived on the scene approximately one and one-half hours after the shooting. The primary scene was in an office located on the second level of 5036 South Prieur Street, the residence of Ray Manning. Four .380 caliber spent shell casings and a spent bullet were recovered in the office. Det. Long's investigation revealed that all the shots were fired in the office. The secondary scene was where the victim was found, on the first level of the residence, just below the stairwell. There was a blood trail where the victim apparently touched the wall and handrail of the stairwell as he went down the stairs. The victim was lying on his back, face up. Peter Rubens [4 Cir. 5] was developed as a suspect, and an arrest warrant for his arrest for second degree murder was obtained at 11:55 p.m. on the night of the killing.

Det. Long searched for the defendant unsuccessfully. Later, he and Det. Weyshan returned to the Manning residence around 1:00 a.m. Det. Weyshan noticed that the front porch light that he had left on when they previously left the crime scene was off, and that a light was on in the second floor bedroom which had been turned off when they had left previously. A police tactical unit was called in and searched the residence. The defendant was apprehended inside the attic located on the third floor of the residence.

Det. Long advised the defendant of his rights at the scene, and defendant immediately began saying that he had to kill Bobby because Bobby was coming after him with a pencil. Det. Long asked defendant where the gun was, and defendant said he had dropped it by the body. He said if he had still had the gun, he would have killed himself. Defendant was taken back to the homicide office where Det. Long attempted to interview him, but the defendant invoked his right to counsel. Despite invoking his right to counsel defendant continued to state that he had to kill Bobby because Bobby came after him with a pencil. Defendant also said something to the effect that “my guys know what's gonna happen to them if, if they don't listen to me,” although Det. Long admitted that was not an exact quote. Det. Long contacted Det. Garcia, who had remained at the Manning residence, and asked her to conduct another canvas of the office to see if she could located a pencil out of place. There was no pencil out of place, and the gun was never found.

ERRORS PATENT

A review of the record reveals no errors patent on the face of the record.

[4 Cir. 6] ASSIGNMENT OF ERROR NO. 1PRO SE ASSIGNMENT OF ERROR NO. 1

In both his first counseled assignment of error and his first pro se assignment of error, defendant argues that the evidence was insufficient to rule out beyond a reasonable doubt that defendant killed Bobby Irwin in self-defense.¹

This court set forth the applicable standard of review for sufficiency of the evidence in State v. Huckabay, 2000–1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to...