State v. Molasky

• Decision Date: 14 June 1983
• Docket Number: No. 45850,45850
• Citation: 655 S.W.2d 663
• Parties: STATE of Missouri, Plaintiff-Defendant, v. Mark MOLASKY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 663

655 S.W.2d 663

STATE of Missouri, Plaintiff-Defendant, v. Mark MOLASKY, Defendant-Appellant.

No. 45850.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 14, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 1, 1983.

Application to Transfer Denied

Sept. 20, 1983.

Arthur S. Margulis, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., John M. Morris, Jefferson City, for plaintiff-defendant.

SNYDER, Presiding Judge.

A jury found appellant guilty of rape, § 566.030 RSMo. 1978, ¹ three counts of sodomy, § 566.060, and abuse of a child, § 568.060. Appellant was convicted and sentenced to a total of 32 years imprisonment. ² The judgment is affirmed.

Appellant raises five points on appeal. He asserts that the trial court erred in: 1) Denying his motion for a change of venue and his motion to strike the jury panel and the jury; 2) admitting into evidence state's exhibit # 1, a video tape recording; 3) overruling appellant's objections to the introduction of his alleged statements because appellant himself was not present at the hearing on a motion to suppress; 4) failing to grant a new trial because the prosecutor used the term "Nazi" in his closing argument; and 5) submitting a verdict director which did not permit the jury to consider a verdict of not guilty when in fact he had not abandoned this defense.

Appellant first contends that the trial court abused its discretion in denying his motion for a change of venue. The point is denied.

The granting or denial of a change of venue "rests within the trial court's discretion, and that ruling is not to be disturbed unless an abuse of discretion is demonstrated." State v. Boggs, 634 S.W.2d 447, 457 (Mo. banc 1982). In order to find an abuse of discretion, it is necessary to conclude that the record permits no interpretation other than that "the minds of the inhabitants of the county ... are so prejudiced against the defendant that a fair trial cannot be had therein." § 545.430; see also Rule 32.04(a).

Appellant in effect merges two claims of error in this point. First, he is complaining about the trial court's failure to grant his motion for a change of venue prior to trial and second, its failure to grant his motion to strike the jury panel and the jury during the trial. Both the appellant and the state direct most of their argument to attempting to prove either prejudice or nonprejudice on the part of the veniremen, although appellant relates in detail the items of publicity received by the case in the broadcast and printed media.

After appellant's motion for a change of venue was filed, ³ a hearing was held on January 6, 1982. Defendant's evidence consisted of the testimony of one witness and the introduction of eleven motion exhibits. The state offered no evidence. The appellant's motion for change of venue was denied by the trial court on January 8, 1982.

Appellant's evidence at the motion hearing disclosed that one metropolitan newspaper, the St. Louis Post Dispatch, had published 40 articles concerning the defendant's case during the period beginning approximately six months prior to the date of the hearing. Forty-four articles appeared in the daily St. Louis Globe Democrat. Some of the articles related to other charges then pending or brought against the appellant.

Nineteen of the articles in the St. Louis Post Dispatch commented upon the video tape which was introduced in evidence at the trial. The articles said the video tape was made by the appellant and depicted a woman who later became his wife and his child engaging in sexual relations. However, the headlines of twenty-nine of the Post Dispatch articles related only to appellant's efforts to make bond or the property offered as security, although seventeen of these articles mentioned also the video tape of the sexual relations.

Comments of a prosecutor about the appellant and the case were published in the St. Louis Globe Democrat articles, comments better left unsaid. There was also evidence of an item in a gossip column about a traffic violation charge brought against one of appellant's attorneys ⁴ in a St. Louis county municipality. Headlines of thirty of the Globe Democrat articles related only to appellant's efforts to make bond, although some of these articles mentioned also the video tape and other aspects of the case.

This court cannot say that the trial court abused its discretion. In a metropolitan area the size of St. Louis, many crimes are reported, some of which are particularly violent or revolting. The case under review was one of them. The trial judge is in a better position to assess the effect of the publicity on the minds of the inhabitants of the county and to determine whether the people who reside in the county are so prejudiced against a defendant that a fair trial would be impossible. This court will not substitute its judgment for that of the trial judge.

The absence of prejudice was further borne out by the voir dire of the jury panel during the trial. Among a panel of thirty potential jurors, only three had formed an opinion (they were promptly stricken from the panel and replaced by alternate veniremen who had not formed an opinion). Eight had never seen or heard any publicity about the case or appellant. Twelve others testified that they remembered little or nothing of what they had heard or seen. Each of the potential jurors who had heard anything at all about the case was extensively questioned about his ability to afford appellant the presumption of innocence and to fairly judge the case, and each stated unequivocally that he could serve as a fair and impartial juror.

Even if a prospective juror has formed an opinion on an issue, if that "opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn." § 546.150. Exposure to publicity is not deemed inherently prejudicial and a juror may be sworn if he is able to set aside any opinion formed from the publicity when he enters the jury box. State v. Richards, 536 S.W.2d 779, 786 (Mo.App.1976); see also, United States v. Poludniak, 657 F.2d 948, 955 (8th Cir.1981) cert. den. 455 U.S. 940, 102 S.Ct. 1431, 71 L.Ed.2d 650 (1982) which approves the same rule for the federal courts.

The trial court is in a far better position to measure and evaluate a venireman's demeanor. State v. Royal, 610 S.W.2d 946, 950[6, 7] (Mo. banc 1981). It was within the legitimate province of the trial court to conclude that the jurors were not prejudiced against appellant as a result of whatever publicity they had seen. It follows that there was no error in denying appellant's motion to strike the jury panel and the jury.

Appellant relies on the volume of the publicity and also the nature of the information disseminated. He distinguishes the present case from State v. Parcel, 546 S.W.2d 571 (Mo.App.1977) in which the trial court's denial of a motion for a change of venue was upheld, by emphasizing that in Parcel the Southern District of the Court of Appeals pointed out that the media reported no statements of the authorities relevant to the guilt or innocence of the defendants or statements concerning the evidence. State v. Parcel, supra at 574.

In the case under review, comments on the evidence were published as well as comments about other charges against appellant. The complained of comments should not have been made by the prosecuting officials but considering the period of time over which the publicity was issued, the fact that St. Louis is a metropolitan area in which a large volume of publicity about crime is constantly before the public, and the absence of prejudice as shown by the voir dire examination, this court cannot say that the trial court abused its discretion in denying the motions.

Appellant relies also on a dissenting opinion in United States v. Poludniak, supra, in which a member of the court questioned the efficacy of the voir dire examination in undercovering prejudice among potential jurors. However, in Poludniak the denial of a change of venue was upheld by the federal court of appeals as was the adequacy of the voir dire examination which appellant challenged. Appellant fails to cite, and research has not disclosed, any Missouri case in which the appellate court has reversed a trial court because it abused its discretion in denying an application for a change of venue.

In his second point the appellant charges the trial court erred in admitting into evidence State's Exhibit # 1, a video tape. He argues that no foundation had been established, that the exhibit was testimonial in nature and constituted a privileged communication between husband and wife, and that the exhibit contained statements by a co-defendant who was not present at the trial, thereby depriving appellant of his constitutional rights of confrontation and cross-examination guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article 1, § 18(a) of the Missouri Constitution. This point is ruled against appellant.

During the course of the trial appellant admitted the authenticity of the video tape. His expert medical witnesses relied upon the exhibit when they testified that appellant was not responsible for his actions. Appellant's counsel admitted to the jury that the defense did not deny the video tape or the acts it depicted. Therefore, appellant cannot now argue successfully that admission of the video tape was prejudicial error.

A challenge to a sound recording of out of court statements by the defendant was denied in State v. Brown, 607 S.W.2d 881 (Mo.App.1980) in which the courts said "The defendant's point is disposed of by his admission that it was his voice on the recording played to the jury." Id. at 885. See also, State v. Ryder, 598 S.W.2d 526, 527 (Mo.App.1980); State v. Vandiver, 592 S.W.2d 304, 306-307 (Mo.App.1979); and State v. Quinn, 565 S.W.2d 665, 673 (Mo.A...