Vermilye v. State

• Decision Date: 26 February 1979
• Citation: 584 S.W.2d 226
• Parties: Claudius I. VERMILYE, Jr., Appellant, v. STATE of Tennessee, Appellee. 584 S.W.2d 226
• Court: Tennessee Court of Criminal Appeals

Page 226

584 S.W.2d 226

Claudius I. VERMILYE, Jr., Appellant, v. STATE of Tennessee, Appellee.

584 S.W.2d 226

Court of Criminal Appeals of Tennessee.

Feb. 26, 1979 Certiorari Denied by Supreme Court July 2, 1979.

Philip M. Carden, Nashville, Joe S. Bean, Joe R. Hickerson, and C. Edward Murray, Winchester, for appellant.

William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., J. William Pope, Jr., Dist. Atty. Gen., Pikeville, Mike P. Lynch, Asst. Dist. Atty. Gen., Winchester, for appellee.

DAUGHTREY, Judge.

OPINION

The defendant-appellant, Claudius I. Vermilye, Jr., was convicted of three charges of crime against nature and five charges of aiding and abetting crime against nature. The jury imposed sentences of five to ten years on the first three counts, and ten to fifteen years on the remaining counts. The trial judge divided the eight sentences into three groups, ordering those in each group to be served consecutively to the others, for an effective total sentence of not less than 25 nor more than 40 years imprisonment.

The defendant now appeals, raising numerous assignments of error, the most significant of which challenge (1) the trial court's failure to suppress evidence seized from the defendant's home, (2) the Court's denial of the defendant's motion for a continuance, (3) the sufficiency of the convicting evidence, (4) the propriety of the prosecutor's closing argument, (5) the correctness of the jury instructions, and (6) the validity of the consecutive sentences imposed by the trial judge. Moreover, the defendant insists that the combination of these errors together with the highly sensational, nationally publicized events surrounding the trial produced an atmosphere which deprived him of a fair trial and violated his right to due process of law. After a careful study of the record on appeal, we must disagree.

There can be no doubt that the facts of the case were sensational in nature. The State proved to the jury's satisfaction that the defendant, a seminary graduate and ordained Episcopal priest, had been running Boys Farm, Inc., supposedly a home for wayward and homeless boys, for some four or five years prior to his arrest. The home was not church-sponsored or related and seems to have been maintained largely from funds raised by Vermilye from the sale of photographs and slides of the children to some 200 or more "sponsors." These photographs depicted the boys (most of whom were eleven to sixteen years of age when photographed) posed in the nude and engaged in various acts of simulated or actual fellatio and sodomy. This situation apparently came to light when local authorities received information that solicitations for contributions and pictures originating from Vermilye's Boys' Farm had appeared in various homosexual publications and pornographic magazines, and that similar evidence had been uncovered elsewhere as a result of investigations into an alleged national child pornography ring. An investigator from the local District Attorney's Office secured a search warrant and, as a result of its execution, seized various items from the Farm, including developed and undeveloped photos of the residents, correspondence between Vermilye and his "sponsors" and between the boys and the "sponsors," and card catalogs containing several hundred names of past and present financial contributors from across the country. T.B.I. agents and local investigators conducted out-of-state interviews with a large number of "sponsors," several of whom ultimately testified at trial in exchange for a grant of immunity from prosecution in Tennessee.

These witnesses introduced several hundred photographs and various pieces of correspondence, some of it lurid in its content, as exhibits to their testimony. They also told of personal visits to the Farm when they would spend the night with individual residents, engaging in various homosexual acts with the youngsters. Some of these sexual encounters were photographed by the sponsors; others were photographed by the defendant in the sponsors' presence.

Several of the ex-residents of the Farm also testified for the State. The boys described monthly photography sessions, during which the defendant would pose them in various homosexual activities and then photograph them, mailing out sets of pictures developed by Vermilye (sometimes with the boys' assistance) in a dark room located in the attic of the Farm's A-frame residence. These photographs would be "purchased" by the boys' sponsors at advertised prices, which were normally collected in addition to regular monthly contributions.

From the record it appears that some of these boys were placed at Boys' Farm by various courts and welfare agencies; others were "placed" there by their parents. In all cases, according to those who testified at trial, their homosexual activities were wholly consensual in nature. Not one of them testified to the use of force on Vermilye's part, although one child said that it was understood that participation in the photography sessions and in the sponsors' visits was necessary if he wanted to continue living at the Farm. Several of the boys testified to homosexual acts committed with the defendant, but none of these was ever photographed. As Vermilye explained to a patron of the Farm, such pictures "would be too hard to explain to the Bishop."

The defendant testified at trial and denied knowledge of or any responsibility for most of the photographs and slides introduced by the State. He said that he had taken a few photographs of the individual residents, posed nude, to supply an artist who needed them for life drawings, and to use in "sublimation" counselling with his homosexual "clients," whom he was trying to help stay "closeted" by fueling their homosexual fantasies with nude pictures of his own son, as well as residents of the Farm. He disclaimed responsibility for all other photographs, insisting that the Farm had been infiltrated by agents of a national "child porn" ring. He said that the boys themselves had developed and mailed many of the photographs at issue. Vermilye attempted to explain the rather lurid nature of correspondence found on his desk and mailed by him to various sponsors as the result of therapeutic "role-playing" with clients. He offered the testimony of one of the former residents of the Farm to corroborate his own testimony, and he presented two character witnesses.

We deal first with the defendant's contention that the search and seizure of items from the Farm was illegal because of a void warrant. This assertion is not borne out by the record. The warrant contains a careful and detailed description of the premises to be searched and the kinds of items to be searched ("evidence of such crimes (T.C.A. § 39-707 and § 37-254) including photographs and negatives of photographs, movie films and negatives thereof, photographes (Sic ) and film development equipment, records and correspondence to 'patrons' evidencing the forwarding or mailing of pictures depicting homosexual acts between said minors including fellatio and sodomy, and all records, journals, and correspondence...