State v. Ruebke

• Decision Date: 16 January 1987
• Docket Number: No. 58828,58828
• Parties: STATE of Kansas, Appellee, v. Arnold L. RUEBKE, Jr., Appellant.
• Court: Kansas Supreme Court

Page 842

731 P.2d 842

240 Kan. 493

STATE of Kansas, Appellee, v. Arnold L. RUEBKE, Jr., Appellant.

No. 58828.

Supreme Court of Kansas.

Jan. 16, 1987.

Syllabus by the Court

1. Media publicity alone has never established prejudice per se 2. The determination of whether to change venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant, with the burden upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality. State v. Haislip, 237 Kan. 461, 701 P.2d 909 (1985).

3. The defendant must show that such prejudice exists in the community that it was reasonably certain he could not have obtained a fair trial. There must be more than speculation that the defendant did not receive a fair trial. The State is not required to produce evidence refuting that of the defendant. State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977).

4. Photographs are erroneously admitted where they are unduly repetitious, gruesome, and without probative value. State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980). They are not inadmissible as evidence merely because they may be gruesome and shocking, provided they are true reproductions of relevant physical facts and conditions material to matters in issue. State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 (1978).

5. The admission in evidence of photographs of homicide victims must necessarily rest largely in the discretion of the trial judge. In each case, it is the trial judge who determines whether the photographs serve a proper purpose in the jury's enlightenment. His action will not be disturbed by an appellate court unless there is an abuse of discretion.

6. The record is examined and it is held: (1) The evidence was sufficient to support the verdict; (2) under the facts stated, the trial judge did not abuse his discretion by refusing to provide the defendant a copy of the transcript of the preliminary examination; (3) the amount of the defendant's appearance bond was not excessive; (4) the admission of prior crimes into evidence to show identity and motive was proper; (5) the trial judge's refusal to declare a mistrial because of alleged prosecutorial misconduct and alleged jury misconduct was correct; (6) the trial judge correctly admitted testimony and exhibits into evidence and properly excluded other testimony and exhibits; (7) the defendant was properly sentenced under the Habitual Criminal Act; and (8) the defendant received a fair trial.

Richard J. Rome, of Hutchinson, argued the cause and was on the brief for appellant.

Francis E. Meisenheimer, Asst. Co. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

LOCKETT, Justice:

The defendant was found guilty by a jury of three counts of first-degree murder and three counts of aggravated kidnapping. We affirm the convictions.

James and Deborah Vogelsang lived approximately one mile from Arlington, Kansas, with their two daughters and two-year-old twin boys. The boys' babysitter, Tammey Mooney, lived in a trailer across from the Arlington Grade School. On October 29, 1984, Deborah Vogelsang reported to the Reno County Sheriff's Department that her two-year-old twin sons and their babysitter were missing.

Three days later their bodies were found by an Arlington resident in a thickly wooded and grassy area west of Arlington and north of the Vogelsang residence. All three had been shot with a 12-gauge shotgun. One child had been shot once, the second child had been shot twice, and Tammey Mooney had been shot four times.

On November 4, 1984, the defendant, Arnold L. Ruebke, Jr., was arrested and charged with three counts of first-degree murder and three counts of aggravated kidnapping.

The evidence presented to the jury established the following events. On October 29, 1984, Deborah Vogelsang left for work at approximately 5:30 a.m. Just prior to 7:30 a.m., Tammey Mooney arrived at the Vogelsang home to babysit with the twins. James Vogelsang then left for work.

About 9:00 a.m. that morning, Arnold Ruebke requested $1.40 worth of gasoline at a service station. The owner of the service station accidently ran the pump to $1.65. Ruebke had only $1.56 in change to pay for the gasoline. Later that morning, Ruebke told the City Clerk that he would have money to pay his outstanding traffic fines. That afternoon, Ruebke purchased an additional $6.40 worth of gasoline and oil. He cashed in $4.34 in change at an Arlington bank; the change included two nickels, a 1941 Mercury dime, and the balance in pennies. Some of the pennies were wheat pennies and a few were corroded. Shortly before 1:00 p.m., Ruebke paid $5.00 on his traffic fines. Later that afternoon, Ruebke returned a 12-gauge shotgun and some shells he had borrowed previously to a friend in Kingman, Kansas.

At approximately 6:00 p.m., Mr. Vogelsang returned home. The boys and the babysitter were missing. Also missing was a bag that had contained pennies, a few of which were corroded and some of which were wheat pennies; one or two nickels; and a 1941 Mercury dime. Tammey's trailer was checked. Missing from her trailer was $15.00. Her coat that she had worn to babysit that morning had been returned to her trailer.

On October 30, law enforcement officers interviewed three children who, on the day of the victims' disappearance, had seen the victims with Arnold Ruebke between 11:30 a.m. and noon. The three children, Kevin Sipe, Kerri Shelite, and Monica Johnson, attended Arlington Grade School. During recess the children had seen the victims in Ruebke's car near Tammey's trailer, which could be seen from the school. The children recognized Ruebke's car because it was unique--a black Mustang automobile with horses portrayed on the rear window. Mooney's presence in the car was later substantiated by the testimony of Larry Morris, a KBI forensic examiner, who determined that a known head hair sample of Tammey Mooney matched a hair found on the right rear floorboard of the defendant's vehicle.

On the evening of November 1, the bodies of the victims were found in a thickly wooded and grassy area to the north of the Vogelsang residence. To protect the evidence, the crime scene was not processed until the next morning. Evidence revealed that the bodies had not been moved after they had been shot. Hugh Kizer, a criminalist from the KBI, testified that the shot taken from the bodies of the boys was consistent with No. 6 shot, that the shot taken from Mooney's body was No. 7 1/2 shot, and that shotgun shell shot caps taken from the scene and the bodies of the victims came from a 12-gauge shotgun. As the investigation progressed, it was learned that on October 29 the defendant returned to its owner a 12-gauge shotgun and Federal No. 6 game load shotgun shells. Later, an analysis of the samples taken from those No. 6 game loads revealed they contained a fiber wadding similar to the fiber wadding found in the bodies of the victims.

On the evening of November 2, 1984, Ruebke told an individual that his father was chief of police of Arlington, Kansas, and that he had helped his father carry the bodies out of the woods. He described the type and the location of the wounds of each victim. Ruebke's father was not a law enforcement officer. At that time, the details of the type and location of the wounds had not been released to the public.

At trial, the State introduced the testimony of Greg Fountain, the former chief of police of Arlington. Fountain related a conversation he had had with the defendant in May of 1984. Fountain had explained to Ruebke that if one were planning a murder, it was better to use a shotgun because the shot could not be traced through ballistics. They had also discussed using isolated, woody areas for disposing of bodies, and that the bodies should be left on top of the ground to decompose and allow the remains to be scattered by scavengers.

At his trial, Ruebke's testimony contradicted his earlier statements to the authorities. Ruebke, attempting to establish an alibi for the noon hour of the fateful day, testified that on that day he had attempted to make purchases at a certain business in South Hutchinson during the lunch hour, but it was closed. This testimony was contradicted by the store's personnel. The jury found Ruebke guilty on all counts. He appeals.

1. Sufficiency of the Evidence

Ruebke had moved for acquittal at the close of the State's case, upon final submission of the case, and after the verdict. He contends the State had failed to produce sufficient evidence to establish that he had committed the crimes charged and the trial court erred by not granting his motions for acquittal.

When renewing Ruebke's motion for acquittal after final submission of the case, the court was free to consider all the evidence. A trial judge, in passing on a motion for judgment of acquittal at the close of the evidence, must determine whether upon the evidence a reasonable mind might fairly conclude guilt beyond a reasonable doubt. State v. Falke, 237 Kan. 668, Syl. p 9, 703 P.2d 1362 (1985).

The State's evidence in this case was circumstantial. On appeal, when considering the sufficiency of circumstantial evidence to sustain a conviction of a crime, the question is not whether the evidence is incompatible with any reasonable hypothesis except guilt; that question is for the jury and trial court. The appellate court must be convinced that when the evidence is viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Taylor, 234 Kan. 401, 409, 673 P.2d 1140 (1983).

Under that standard of review, there was sufficient evidence to find the defendant guilty beyond a reasonable doubt. The court did not err in denying the motions for acquittal.

2. The...