State v. Baumruk, SC 83745.

CourtUnited States State Supreme Court of Missouri
Citation85 S.W.3d 644
Docket NumberNo. SC 83745.,SC 83745.
PartiesSTATE of Missouri, Respondent, v. Kenneth BAUMRUK, Appellant.
Decision Date27 August 2002
85 S.W.3d 644
STATE of Missouri, Respondent,
Kenneth BAUMRUK, Appellant.
No. SC 83745.
Supreme Court of Missouri, En Banc.
August 27, 2002.
Rehearing Denied October 22, 2002.

Page 645


Page 646

Gary E. Brotherton, Office of the Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Breck K. Burgess, Assistant Attorney General, Jefferson City, for Respondent.


Kenneth Baumruk was convicted in 2001 of murder in the first degree for killing his wife in 1992 at the St. Louis County courthouse. The jury recommended the death penalty, and the court entered judgment accordingly. Baumruk appeals his conviction and sentence. This Court has exclusive appellate jurisdiction. Mo. Const. art. V, section 3.

Baumruk raises several points on appeal. The Court concludes that Baumruk, who had previously been found incompetent to stand trial, can be later indicted for the same offenses. But he should be tried in a venue other than St. Louis County. The trial court's refusal to grant Baumruk's motion for change of venue was an abuse of discretion in this unique case. Accordingly, the judgment is reversed, and the case is remanded with directions to the trial court to grant Baumruk's motion for change of venue.


On May 5, 1992, Kenneth Baumruk and his wife, Mary, were scheduled for a hearing in the St. Louis County circuit court for dissolution of marriage. Baumruk carried two .38 caliber handguns in his brief case to court that day. Before the scheduled hearing, the attorney for Baumruk's wife, Scott Pollard, discovered that he had a conflict of interest because he had represented Baumruk in a previous dissolution.

Before the hearing Pollard told Mary Baumruk that he recently discovered that he had represented Kenneth Baumruk around 1975. Pollard had been hired to modify the dissolution of Baumruk's first marriage. Pollard also told Garry Seltzer, Kenneth Baumruk's attorney, of the potential conflict, and the two attorneys met with Judge Samuel Hais in chambers. Judge Hais decided to make a record in open court and determined that the case would proceed only if both Mary and Kenneth Baumruk waived the conflict.

After Judge Hais administered the oath to Mary and Kenneth Baumruk, Pollard examined Mary regarding the conflict, and she stated that she wanted Pollard to remain as her attorney.

Baumruk then reached into his brief case and retrieved the two handguns, stood and shot Mary in the neck. Baumruk turned toward Pollard, shooting him in the chest. He then shot attorney Seltzer in the chest and, when Seltzer turned to

Page 647

run, Baumruk shot him in the back. Next, Baumruk 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 Baumruk shot at him and pursued him.

As Baumruk proceeded down the hall outside of the courtroom, bailiff Fred Nicolay pushed a clerk and two attorneys into another judge's chambers and closed and locked the door. Baumruk then shot Nicolay in the shoulder and ran out into the hall. Baumruk then shot at a police officer and then shot and wounded a security officer.

Police officers in the courthouse fired weapons at Baumruk, hitting him nine times. Two of the wounds were to his head.

St. Louis media provided extensive coverage of the incident, describing it as a "rampage," "shooting spree" and "mayhem" that "terrorized hundreds of people." In the media reports, several hundred citizens filled the streets around the courthouse, and more gazed down on the scene from their office windows. Quotes in the media compared the scene to a firefight in Vietnam. Hundreds were reported to have watched paramedics wheel Baumruk and the victims from the courthouse to ambulances.

After the shooting, the St. Louis County courthouse, which previously had not had metal detectors and other extensive security, received immediate attention. The number of security guards was doubled and metal detectors were installed.

Media coverage, which was massive, centered not only on the shootings, but also on domestic violence, concealed weapons, and the fears of domestic relations lawyers and clients. Several years after the incident, a poll indicated that approximately 70% of the county residents still remembered Baumruk's shootings at the courthouse. Baumruk was indicted in 1993 on first degree murder and multiple counts of first degree assault and armed criminal action.

Baumruk's motion for change of venue in the original case was granted. The Macon County circuit court, to which the case was transferred, found Baumruk to be incompetent to stand trial due to the brain injuries he suffered while he was being subdued. Baumruk was committed to the custody of the department of mental health.

The department of mental health commenced a guardianship proceeding in which a jury found that Baumruk did not require a guardian. State ex rel. Baumruk v. Belt, 964 S.W.2d 443, 443-444 (Mo. banc 1998). The Macon County circuit court refused to dismiss the charges. Baumruk sought review in this Court. This Court ordered the trial court to dismiss the indictment. Id.

After the dismissal in the Macon County circuit court, the St. Louis County prosecutor obtained an 18-count indictment in 1998, which included murder in the first degree in the death of Mary Baumruk.1

Baumruk's motion for a change of venue from St. Louis County was overruled.2

Page 648

Competency to Stand Trial

Baumruk contends that the trial court erred by finding him competent to stand trial after a previous judge had found him to be incompetent and this Court had ordered charges against him be dropped. He contends that he suffers from amnesia and cannot recall the events surrounding the offense.

The previous judge did not find Baumruk permanently incompetent to stand trial. The order states: "The Court further finds that [Baumruk] lacks mental fitness to proceed and there is no substantial probability that [he] will be mentally fit to proceed in the reasonably foreseeable future." Findings and Order, Circuit Court of Macon County, September 6, 1995.

Section 552.020 provides that no person shall be "convicted or sentenced for the commission of an offense" if he or she suffers from a "mental disease or defect [that deprives the person of the] capacity to understand the proceedings ... or to assist in his own defense.... This prohibition only lasts as long as the incapacity endures." Section 552.020 (emphasis added). A defendant is competent when he "has sufficient ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him." State v. Johns, 34 S.W.3d 93, 94 (Mo. banc 2000) (citing Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)). It is the duty of the trial court to determine which evidence is more credible and persuasive. Johns, 34 S.W.3d at 105.

The trial court in this case conducted a second competency hearing pursuant to section 552.020, on September 25-27, and October 19, 2000, five years after the first hearing. The trial court determined that despite the injuries caused by gunshot wounds to his head, Baumruk was now competent to understand and appreciate the proceedings and assist in his own defense.

Even if Baumruk did suffer from amnesia that affected his ability to recall the events surrounding the incident,3 amnesia does not bar prosecution of an otherwise competent defendant. State v. Davis, 653 S.W.2d 167, 173 (Mo. banc 1983).

The Macon County circuit court's determination of incompetency does not bar a later claim that Baumruk is competent to stand trial. Nor does the circuit court's finding of competency bar an assertion on Baumruk's behalf, in the trial court after remand, that he is incompetent to stand trial. See section 552.020.11(6).

The Change of Venue Motion

Whether to grant or deny a change of venue is within the discretion of the trial court. State v. Feltrop, 803 S.W.2d 1, 6 (Mo. banc 1991).4 That ruling will not be disturbed unless it was a clear abuse of discretion. State v. Barton, 998 S.W.2d 19, 27 (Mo. banc 1999). This discretion is abused when the record shows that the inhabitants of the county are so prejudiced against the defendant that a fair trial cannot occur in that county. Feltrop, 803 S.W.2d at 6. However, the question is not whether the community remembers the case but whether the actual jurors

Page 649

of the case have fixed opinions such that they could not judge impartially whether the defendant was guilty. Patton v. Yount, 467 U. S. 1025, 1035, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). There must be a "pattern of deep and bitter prejudice" or a "wave of public passion" such that the seating of an impartial jury is impossible. State v. Johns, 34 S.W.3d at 108 (Mo. banc 2000) (citations omitted). A change of venue is required when it is necessary to assure the defendant a fair and impartial trial. Kinder, 942 S.W.2d at 323 (citing Groppi v. Wisconsin, 400 U.S. 505, 507-511, 91 S.Ct. 490, 27 L.Ed.2d 571).

In Johns this Court found that there was no "wave of public passion" in part because the jury selection took place hundreds of miles from the trial location. 34 S.W.3d at 108. In State v. Deck, unlike Johns, the jury selection and trial took place in the same county as the commission of the crime, 994 S.W.2d 527 (Mo. banc 1999). The Court looked at the evidence presented regarding pretrial publicity and determined that the media coverage was not presumptively prejudicial because there was no "barrage of inflammatory publicity immediately prior to trial." Id. at 534.

This case is different. Six years after the shootings, in 1998, and three years before Baumruk's trial, a poll conducted by political scientist Dr. Kenneth Warren found that about 70% of St. Louis County residents...

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