State v. Baumruk

• Decision Date: 31 March 2009
• Docket Number: No. SC 88497.,SC 88497.
• Citation: 280 S.W.3d 600
• Parties: STATE of Missouri, Respondent, v. Kenneth BAUMRUK, Appellant.
• Court: Missouri Supreme Court

280 S.W.3d 600

STATE of Missouri, Respondent, v. Kenneth BAUMRUK, Appellant.

No. SC 88497.

Supreme Court of Missouri, En Banc.

March 31, 2009.

Rehearing Denied May 5, 2009.

Rosemary E. Percival, Office of Public Defender, Kansas City, MO, for Appellant.

Chris Koster, Atty. Gen., Daniel N. McPherson, Office of Missouri Atty. Gen., Jefferson City, MO, for Respondent.

PATRICIA BRECKENRIDGE, Judge.

Kenneth Baumruk appeals his conviction for first-degree murder and sentence of death. He was convicted of first-degree murder for killing his wife in 1992 at the St. Louis County courthouse. Mr. Baumruk's case was tried by a jury in St. Charles County after a change of venue. On appeal, Mr. Baumruk raises eight separate points alleging the trial court erred in its rulings on various issues, including competency to stand trial, self-representation, a request to obtain a different jury panel, limitations on voir dire, juror qualifications, expert reliance on illegally obtained statements, sentencing requirements and closing arguments. Because this case involves the death penalty, this Court has jurisdiction. Mo. Const. art. V, § 3. This Court concludes that no trial court error occurred, and it affirms both the conviction and sentence.

I. Factual and Procedural History¹

On May 5, 1992, Mr. Baumruk and his wife, Mary Baumruk, were scheduled for a hearing in a dissolution of marriage proceeding in the St. Louis County circuit court. Mr. Baumruk carried two .38 caliber handguns in his briefcase to court that day. Prior to the scheduled hearing, the attorney for Mr. Baumruk's wife, Scott Pollard, discovered that he had a conflict of interest because he had represented Mr. Baumruk in a previous case. Before the hearing began, Mr. Pollard told Ms. Baumruk that he represented Mr. Baumruk around 1975, when Mr. Baumruk hired him to modify the dissolution of his first marriage. Mr. Pollard also informed Garry Seltzer, Mr. Baumruk's attorney, of the potential conflict, and the two attorneys met with Judge Samuel Hais in chambers. Judge Hais made a record in open court and determined that the case would proceed only if both Baumruks waived the conflict.

After Judge Hais administered the oath to Mr. and Ms. Baumruk, Mr. Pollard examined Ms. Baumruk regarding the conflict, and she stated that she wanted Mr. Pollard to remain as her attorney. Mr. Baumruk then reached into his briefcase, retrieved the two handguns, stood and shot his wife in the neck. Mr. Baumruk turned toward Mr. Pollard and shot him in the chest. He then shot his own attorney, Mr. Seltzer, in the chest and arm and, when Mr. Seltzer turned to run, Mr. Baumruk shot him in the back. Next, Mr. Baummk walked around the counsel table, put the gun near his wife's head and shot her again, killing her. Judge Hais escaped through the door behind his bench as Mr. Baumruk pursued him.

As Mr. Baummk proceeded with his weapons down the hall outside of the courtroom in search of the judge, bailiff Fred Nicolay pushed a clerk and two attorneys into another judge's chambers, closing and locking the door behind them. Mr. Baummk then shot Mr. Nicolay in the shoulder. Mr. Baummk continued through the courthouse, shooting at two police officers, an investigator and a security officer, wounding only the security officer. Mr. Baummk shot at an additional officer as police officers in the courthouse returned fire, hitting Mr. Baummk nine times, including twice in his head. In sum, Mr. Baummk killed his wife and shot at eight additional people, wounding four, before he was subdued.

Mr. Baummk initially was charged with first-degree murder and multiple counts of first-degree assault and armed criminal action in St. Louis County. He filed a motion for change of venue, which was granted. The case was transferred to Macon County. After a competency hearing, the court there found Mr. Baummk was incompetent to stand trial due to the brain injuries he suffered when shot in the head by police officers. The Macon County court ultimately dismissed the charges against Mr. Baummk. State ex rel. Baumruk v. Belt, 964 S.W.2d 443, 443-44 (Mo. banc 1998) (Baumruk I).

The St. Louis County prosecutor subsequently obtained an 18-count indictment, which included a first-degree murder charge for the death of Mary Baummk. Mr. Baummk filed a motion for a change of venue from St. Louis County, which was overruled. Following a 2001 jury trial, Mr. Baumruk was convicted and, in accordance with the jury's recommendation, was sentenced to death. This Court, reversed the judgment and remanded the case with directions to the trial court to grant Mr. Baumruk's motion for change of venue because of pretrial publicity. State v. Baumruk, 85 S.W.3d 644, 651 (Mo. banc 2002) (Baumruk II).

On remand, the case was transferred to St. Charles County, where the trial court conducted a competency hearing in June 2005. During this hearing, the trial court heard conflicting expert testimony as to Mr. Baumruk's mental state. Experts for the state presented testimony that Mr. Baumruk was able to consult with his lawyers with a reasonable degree of rational understanding and was able to understand the proceedings against him. Despite the prior dismissal due to a finding of incompetence to stand trial, the trial court found Mr. Baumruk then was competent to stand trial.

Due to the publicity surrounding the case, the court summoned 283 people from St. Charles County to assure access to an unbiased jury. The court divided the potential jurors into three groups to conduct questioning. Defense counsel was allowed to ask potential jurors if they realistically could consider anything less than the death penalty if the evidence showed that Mr. Baumruk not only killed his wife but also shot at other people in the courtroom. The trial court also allowed counsel to indicate during voir dire that four other people were shot. The trial court, however, prohibited defense counsel from questioning potential jurors as to whether they could consider the full range of punishment given that Mr. Baumruk attempted to kill eight other people in addition to killing his wife.

Counsel had the opportunity to question members of groups one and two individually. No questioning of group three occurred as there was a sufficient pool from which to draw the jury among the first two groups. Five individuals who received individual questioning sat on the jury, and defense counsel did not attempt to strike any of those five jurors for cause. One of those serving on the jury was Ronald Matlock, who indicated during voir dire that he could not set aside his prior knowledge of the charged crime, could not presume Mr. Baumruk to be innocent and had misgivings about the death penalty. Mr. Matlock did state, however, that he could keep an open mind as to Mr. Baumruk's mental state during the alleged crime.

Mr. Baumruk's trial was held in St. Charles County from January 24 to February 6, 2007. At trial, the issue of Officer Glenn's testimony arose. The state agreed not to present evidence of Mr. Baumruk's statement to Officer Glenn during its case in chief, and defense counsel made no objection to the trial court taking judicial notice of the ruling of competency or to the state's experts' reliance on the statement to Officer Glenn. On completion of the evidence in the guilt phase of the trial, the jury found Mr. Baumruk guilty.

During the state's penalty phase closing argument, the state urged jurors to recommend a death sentence to send a message. The prosecutor argued that Mr. Baumruk "knew what he was doing was wrong, and that he had to plan it to the inth degree so that he could succeed in becoming one of the biggest mass murderers we've ever seen," and asked jurors "[w]hy is it that every time you have one of these acts [such as shooting spree], it must be something about mental disease, mental illness?" The jury found 10 statutory aggravating factors and recommended a death sentence.² The trial court ordered the recommended punishment be imposed. Mr. Baumruk appeals this conviction and sentence. Finding no error, this Court affirms both the conviction and sentence.

II. Standards of Review

This Court reviews the evidence presented at a criminal trial in the light most favorable to the verdict. See State v. Clayton, 995 S.W.2d 468, 474 (Mo. banc 1999). "The trial court is vested with broad discretion to admit and exclude evidence at trial," and "[e]rror will be found only if this discretion was clearly abused." State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999). On direct appeal, this Court reviews claims of trial court error "`for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.'" State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998) (internal citation omitted).

Issues that were not preserved may be reviewed for plain error only, which requires the reviewing court to find that manifest injustice or a miscarriage of justice has resulted from the trial court error. See State v. Worthington, 8 S.W.3d 83, 87 (Mo. banc 1999). Review for plain error involves a two-step process. The first step requires a determination of whether the claim of error "facially establishes substantial grounds for believing that `manifest injustice or miscarriage of justice has resulted.'" State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995) (internal citation omitted); Rule 30.20. All prejudicial error, however, is not plain error, and "[p]lain errors are those which are `evident, obvious, and clear.'" State v. Scurlock, 998 S.W.2d 578, 586 (Mo.App.1999) (internal citation omitted). If plain error is found, the court then must proceed to the second step and determine "whether the claimed error resulted in manifest injustice or a miscarriage of justice." Id.

III. Issues Raised on Appeal

On appeal, Mr. Baumruk raises eight separate points alleging trial court error. He alleges the trial court erred...