State v. Duisen

• Decision Date: 10 July 1967
• Docket Number: No. 52446,52446
• Citation: 428 S.W.2d 169
• Parties: STATE of Missouri, Respondent, v. Theodore Anthony DUISEN, Appellant.
• Court: Missouri Supreme Court

Page 169

428 S.W.2d 169

STATE of Missouri, Respondent, v. Theodore Anthony DUISEN, Appellant.

No. 52446.

Supreme Court of Missouri, En Banc.

July 10, 1967.

Rehearing Denied Aug. 3, 1967.

Certiorari Denied March 4, 1968. See 88 S.Ct. 1063.

Norman H. Anderson, Atty. Gen., Jefferson City, James P. Jouras, Special Asst. Atty. Gen., Kansas City, for respondent.

Theodore F. Schwartz, Clayton, for appellant.

EAGER, Judge.

Defendant was convicted by a jury of first degree murder and sentenced to death. He has been effectively represented by counsel both at the trial and in this Court. All points raised on this appeal were covered in a motion for new trial. No question is raised on the sufficiency of the evidence, but certain assignments require us to state the evidence in some detail. The primary, and in fact only, defense was that of mental disease or defect, under § 552.030, RSMo, V.A.M.S., Laws 1963, p. 676; however, defendant and his counsel have not at any time admitted the crime or any of its elements. He did not testify.

On June 19, 1964, a body was found floating in the Meramec River in St. Louis County; the fire department was notified and the body was removed. The clothing consisted of a man's brown-checked sport shirt and a pair of levis or blue jeans. There was no hair on the head. Photographs were taken which will be referred to later. There were no labels on the clothing. The deputy coroner viewed the body and it was removed to the county morgue, where an autopsy was performed. On June 22 Dr. Wilcox, a dentist, also examined the body. The pathologist, Dr. Tucker, ascertained that the body was that of a young woman, noted her height and approximate weight, and testified further: that her head and her public region had been shaved of all hair a short time before her death, and that the body was decomposed, but the organs were intact; that no marks of violence were visible, that she had not been drowned, that no poison was present in the stomach contents, that she was not pregnant, but that he was not able to determine the exact cause of death. He stated as his opinion, however, that she had been strangled and testified that in some such cases there are no marks left on the neck; he found no evidence of a natural cause of death, after having examined the various organs and the brain. Dr. Wilcox, the dentist, testified that the teeth shown in a photograph of the mouth of this body, Exhibit No. 9, were 'very similar' to those shown in a photograph of Patricia Sutterfield (for whose death defendant is charged) and that they were in excellent condition. The body was retained by the county authorities until July 8, 1964, when, not having been identified or claimed, it was disposed of under §§ 194.120--194.180, RSMo 1959, V.A.M.S.

Of the photographs taken at and around the scene where the body was found the only ones material here are Exhibits 9, 4, 5 and 6. No. 9 merely shows the mouth and teeth in a very hazy photograph of a face; Exhibits 4, 5 and 6 show a body, prone in two photographs and in a sitting or leaning position on the bank of a stream in the other; the body is clothed in a shirt and trousers, is apparently somewhat bloated and decomposed, and the head appears to be entirely devoid of hair. At the trial Gerald Lee Sutterfield, husband of Patricia, identified Exhibit No. 11 as a photograph of his wife Patricia while alive; he also examined Exhibits No. 4, 5 and 6; concerning Exhibit 6, he stated that he believed the body to be that of his wife based largely on body structure; as to Exhibits 4 and 5, he stated that they showed a 'strong resemblance of my wife'; he further testified, after describing his wife's teeth generally, that the facial photograph of the body, Exhibit 9, was, he believed, a picture of his wife, and in that connection he also referred to Exhibit 11, the life photograph of her taken by 'her family.' Objections were made to Exhibits 4, 5, 6 and 9, as referred to later, but no objection to Exhibit 9 is raised on this appeal. They were admitted and shown to the jury.

Sutterfield, an automobile mechanic, had been married to Patricia for about two years, although she was apparently only 17 years old at the time of her disappearance. They lived at 2843 Russell in the City of St. Louis and she had, supposedly, been attending the Martin Training Institute in downtown St. Louis. They had no children. When her husband came home from work at about 9:30 or 10:00 p.m. on May 24 or 25, 1964, she was not there, and he never saw her again. He reported the disappearance to the police on the next evening with such information as he could give, made inquiries of relatives, and made sundry trips out of town in an effort to locate her. He told the police that he thought she might be with a 'James Castle,' a man 22 or 23 years of age who had been a filling station attendant in the neighborhood and who lived nearby; also, that she was last seen in a white, 1961 Chevrolet carrying a California license plate. Sutterfield had met 'James Castle' once; he next saw the man at the trial where he appeared as James Buddy Clubb, Jr., and testified as such.

The transcript does not disclose the steps taken to unravel this mystery, but we may assume that the activities of 'Castle' were a focal point. Defendant Duisen made various oral statements to the police and to the chief trial assistant of the Circuit Attorney. The Court held a hearing concerning these statements outside the presence of the jury and found in detail that the statements were voluntarily made. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. No point whatever is made here on the admission of those statements, and we therefore consider the facts so disclosed, with the testimony of Clubb, in our continuing narrative of the evidence.

From this evidence the jury could reasonably have found the following: that 'James Castle,' actually Clubb, met Patricia Sutterfield in the neighborhood where she lived, had several dates with her and had sexual intercourse with her; that he introduced her to the defendant, Theodore Anthony Duisen, who induced her 'to go into the prostitution business for him' and rented an apartment in the 4500 block on Forest Park; that she did so operate 'for him' for probably a month or less; that defendant's wife became 'jealous' and that Patricia, so defendant thought, was also causing trouble between defendant and Clubb by things she told to each separately; further, that defendant was afraid that she might talk concerning a 'prior event' which she had witnessed, and that 'in order to keep her quiet he killed her'; that defendant identified Exhibit No. 11 (the life photograph) as a picture of the girl he killed. (The 'prior event' was considered by the Court outside the presence of the jury, and properly so, for there was testimony that Patricia and others had witnessed the drowning by defendant in the Mississippi River of another girl who had declined to enter the business of prostitution for him.) Continuing with the facts of which there was substantial testimony, it was shown: that on or about June 15, 1964, Patricia was in a house rented by defendant's wife and located at 6222 Clayton in the City of St. Louis; that Clubb and defendant's wife were present; that then and there defendant 'slapped her around' in the living room of the house, then took her (Patricia) into the bathroom and shaved or clipped (with an electric razor or clippers) all the hair off her head, her public area, and her eyebrows; that he then ordered her to take a bath, and gave her a sport shirt and a pair of blue jeans from which the labels had been removed; that when she came out, he slapped her around some more, threw her down on the floor on her back, leaned over her and choked her until his thumbs became numb; that she then appeared to be dead and he raised her head up and slapped her; that he said 'If she is not dead now, I am going to make sure,' whereupon he got a wire extension cord, wrapped it around her neck, put a foot on one end and pulled as 'hard as he could' on the other; that there were then no signs of life in the girl. We interject here that defendant, in his statements, said that after choking the girl for a while, but before using the extension cord, he tried to revive her by mouth to mouth resuscitation but Clubb recalled no such efforts. The evidence further showed: that it was still daylight when all this occurred; that after dark Clubb helped defendant carry the body to defendant's car, that they placed it in the trunk, and thus transported it to the bank of the Meramec River at 'Long Beach' where they threw her in, the body being clothed in the shirt and jeans which defendant had furnished; that soon thereafter Clubb and defendant drove to California for a while in Clubb's 1961 Chevrolet; that defendant used narcotics but Clubb did not know whether he was under the influence of such at the time of the killing; that defendant was then armed with a loaded .38 caliber revolver; that he looked and acted 'mad' and 'cussed' during the proceedings, started 'raving,' and said 'I got to get rid of the body.' At the time of trial Clubb was under indictment for the murder, had consulted with his counsel and the Circuit Attorney's office, and had been advised of his constitutional rights. He testified that he protested to defendant, telling him that it made no sense to kill the girl, but without avail.

Defendant did not testify and there were no admissions made at the trial which lessened the State's burden on the evidence; in his final argument to the jury defendant's counsel said: 'There is not much doubt about the facts, there is not much doubt that everything you heard was probably pretty substantially right. There is no question about that.' The statement made at that time relieved the State of nothing. The defense, as already indicated, was 'mental disease or defect' under § 552.030, Laws 1963. The...