State v. Trimble
| Decision Date | 08 June 1983 |
| Docket Number | No. 11898,11898 |
| Citation | 654 S.W.2d 245 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Patrick Edward TRIMBLE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Timothy A. Braun, Public Defender, Linda Vespereny, Asst. Public Defender, St. Charles, for defendant-appellant.
John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Upon a change of venue from St. Charles County to Phelps County, a jury found defendant Patrick Edward Trimble guilty of two counts of kidnapping as defined by § 565.110, RSMo 1978, 1 four counts of sodomy as defined by § 566.060, one count of rape as defined by § 566.030 and one count of sexual abuse in the first degree as defined by § 566.010. The jury assessed his punishment at seven terms of imprisonment for fifteen (15) years and one term of imprisonment for five (5) years. The trial court ordered that all the sentences be served consecutively. Defendant appeals.
The offenses charged were committed upon the bodies of two female children about 9 years of age in a marshy, wooded area northwest of the City of St. Charles in St. Charles County. One of the victims was raped; she was born October 13, 1969, and we shall refer to her as the younger child. The other victim was born September 16, 1969; she will be referred to as the older child. Having had verdicts upon each count, the State is entitled to have this court accept as true all evidence, direct or circumstantial, and all reasonable inferences therefrom which tend to support those verdicts, disregarding those parts of the record contrary to the findings of guilt. State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981). So stated and taken, the depressing background facts of this appeal are: During the early evening of June 13, 1979, the two female children were playing in a wooded ravine alongside Ehlmann Road near its intersection with Essex Street northwest of St. Charles. They were trying to get a rope out of one of the trees in the ravine. Presently the defendant appeared, got the rope out of the tree and, for a short time, engaged in the children's play. Defendant demonstrated his skill at tying knots; finally he tied the rope tightly around one child's left wrist and the other's right wrist. Seizing the middle of the rope, defendant "pulled [the children] up through the woods" to a gravel road where his automobile was parked. The girls were told not to "cry or scream and [to] get in the car."
The children got in the back seat of defendant's four-door sedan. Defendant drove a short distance to a wooded area the girls could not identify. The children were instructed to disrobe and get out of the car. They started to comply, but another automobile "drove by" and the girls were told to get back in the automobile. They did so and were driven to a more remote area just off Hayford, or Hayford Bridge Road, northwest of St. Charles.
The defendant then got out of the car, opened the back door and took the children into a brushy area adjacent to the place where he had parked his vehicle. Defendant then ordered the children to remove the rest of their clothing and he assisted in removing their underwear.
The girls were seated on a log. The defendant "unzipped his pants," exposing his genitals. The younger child described her ordeal on direct examination as follows:
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Q. After you--after your clothes were off, then what did he do?
A. Kissed me.
Q. And where did he kiss you at?
A. Lips and breast.
Q. Okay. And what--what did he kiss you with on the breast?
A. Lips.
Q. Okay ... what happened then?
A. ... Made us suck on his penis.
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Q. And how did he make you suck on his penis? What did he do with his penis?
A. Just stood there and told us to do it.
Q. Okay. And where did he put it?
A. In our mouth.
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This witness was then taken "back to the car." She further testified:
Q. When you got back to the car, what happened then ...?
A. Then he told me to get on the ground.
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Q. Then when he told you to get on the ground, what happened?
A. Licked me between the legs.
Q. He did?
A. Licked me between the legs.
Q. Okay. And where at between the legs, the front or the back?
A. The front.
Q. Okay. And what did he lick you with?
A. His tongue.
Q. Okay. After he did that, what happened?
A. Put his penis in me.
Q. Okay. And where did he put his penis at?
A. Same place.
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Q. What happened when he put his penis between your legs, what happened after that?
A. After? Put his finger in me.
Q. And where at in you?
A. Between the legs.
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Q. And what did you feel? What did you do when he did that?
A. I started screaming.
Q. And after he put his penis between your legs and then put his finger between your legs, then what did he do?
A. Penis.
Q. And where--what did he do with his penis?
A. Same place.
Q. Where is that?
A. Between the legs.
Q. You said you started screaming. What--what did he do when you started screaming?
A. Put his hand over my mouth.
Q. Okay. Then what happened next?
A. Told us--me and [the other child] to get our clothes.
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Q. And when you went back to get your clothes, what did [the defendant] do?
A. Left.
The other child was not quite as cruelly abused, but her testimony follows and corroborates that of her companion, which we have recited.
In this court, the defendant has briefed and argued nine prolix and redundant points of error. As noted, the case was tried upon change of venue from St. Charles County to Phelps County. Formulating his argument in terms of due process, defendant maintains that the venue of the cause should have been changed to a more distant circuit and further argues, very abstractly, that voir dire examination is a constitutionally infirm method of determining a prospective juror's prejudice. In our view, abstract discussion of the sixth amendment right to trial by an impartial jury is unnecessary; the substantive question tendered by defendant's first three points is whether pretrial publicity created constitutionally impermissible jury partiality in Phelps County. The point has been briefed and argued on the federal precedents; we shall take the assignment as it was tendered and look to the totality of circumstances to determine whether pretrial publicity deprived the defendant of due process. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594 (1975).
While defendant was incarcerated in the St. Charles County jail awaiting disposition of the charges tried in this case, he made a "punk" or homosexual slave of his mentally retarded cellmate. Eventually, defendant strangled his cellmate. He was thereafter convicted of capital murder and sentenced to death. Our Supreme Court affirmed the judgment. State v. Trimble, 638 S.W.2d 726 (Mo. banc 1982). It may be granted that this crime generated a good deal of comment by the St. Louis metropolitan news media, principally the Newhouse and Pulitzer organizations. In considerable part, the media coverage was the result of an effort to close the proceedings to the press. Given the circumstances, we do not find the newspaper or television comment lurid or sensational; for the most part, it is as factual and objective as one could expect. As a criminal defendant reasonably suspected of sodomizing two 9-year-old females and thereafter torturing and murdering his mentally retarded cellmate, the defendant could scarcely expect to remain anonymous. Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344, 362 (1977).
In December 1979 the defendant filed an application for a change of venue in the Circuit Court of St. Charles County, averring prejudice throughout the Eleventh Judicial Circuit. This application was combined with a motion to suppress the victims' identification testimony. The motions came on for hearing before Honorable Donald E. Dalton, a regular judge of the Eleventh Circuit, and in the course of argument counsel for defendant addressed a wide range of topics, but we find no specific allegation that if the cause were transferred to Phelps County, defendant would be denied due process because of the bias and prejudice of possible veniremen in Phelps County. That assertion was made only after the cause had been transferred and was being heard by Honorable Eugene E. Northern, who tried the case. So, we stand in doubt that the due process issue now raised was timely preserved. See State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975). Nevertheless, because of the severity of the punishment imposed, the assignment of error will be considered.
The trial began on April 15, 1980. Before the voir dire began, the court excused six members of the panel for one reason or another, and at some time during the day additional talesmen were summoned. The sequence of events is not entirely clear from the record itself but it does appear that a panel of 36 veniremen was assembled and subjected to extensive voir dire examination. There is no contention that the panel was not lawfully selected nor that any member of the panel was disqualified for any statutory reason.
We first direct our attention to those veniremen who stated they had formed an opinion concerning defendant's guilt or innocence. Veniremen Robert Nash and Mary Strickland indicated they might have a tendency to prejudge the cause. Neither suggested that it would require evidence to set aside that opinion; nevertheless challenges to both for cause were sustained by the trial court. In response to a comprehensive question put by defendant's counsel, 14 members of the panel of 36 indicated they had "heard about [the] case either by word of mouth, rumor, TV, radio, or read it in the newspapers." These veniremen were isolated and were questioned...
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