State v. Nunley

341 S.W.3d 611

STATE of Missouri, Respondent,

v.Roderick NUNLEY, Appellant.

No. SC 76981.

Supreme Court of Missouri, En Banc.

May 31, 2011.Rehearing Denied July 19, 2011.

OPINION TEXT STARTS HEREWest CodenotesRecognized as UnconstitutionalV.A.M.S. § 565.030.4.

Michael J. Gorla, St. Louis, Jennifer Herndon, Florissant, Susan Hunt, Law Offices of Susan M. Hunt, Kansas City, for Nunley.Michael J. Spillane, Attorney General's Office, Jefferson City, for State.WILLIAM RAY PRICE, JR., Chief Justice.I. Introduction

Nunley pled guilty to first degree murder, armed criminal action, forcible rape, and kidnapping. He waived jury sentencing. He did so for strategic reasons because he was afraid that if he went before a jury, it might sentence him to death. The defendant's original guilty plea and jury sentencing waiver remained valid after his case was remanded for re-sentencing. Because of Nunley's guilty plea and waiver, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and State v. Whitfield, 107 S.W.3d 253, 265 (Mo. banc 2003), do not apply. In addition, this Court did not err in the proportionality review of the defendant's death sentence because the applicable law regarding proportionality review in State v. Deck, 303 S.W.3d 527 (Mo. banc 2010) (J. Stith concurring), and State v. Dorsey, 318 S.W.3d 648, 659 (Mo. banc 2010), is not retroactive. State v. Clay, No. SC78373, order dated December 9, 2010.

The motion to recall the mandate is overruled.

II. Facts and Procedure

Roderick Nunley committed first degree murder and received a death sentence. At his original plea hearing on January 28, 1991, Nunley gave his version of the murder:

Q: Starting with that night, March 21, 1989, who were you with?

A: Michael Taylor.

Q: Ok. Were you two smoking—well, let me ask this. Were you smoking or doing any drugs that night?

A: Yes, we were.

...

Q: Ok. At some point that night did you two steal a car?

A: Yes

Q: Ok. Who was driving that car?

A: Me.

...

Q: At some point that morning, March 22, 1989, did you two see a girl with a purse?

A: Yes.

Q: And did Michael Taylor tell you that he wanted to snatch that girl's purse?

A: Yes, he did.

Q: Did Michael Taylor then get out of the car and talk with the girl?

A: Yes.

...

Q: Did Michael Taylor, after speaking with her, grab her?

A: Yes.

Q: And did he put her in the car?

A: Yes, he did.

...

Q: Did you two force her to stay in the car?

A: Yes.

Q: You then drove to somewhere in Grandview, Missouri?

A: Yes.

...

Q: You went actually specifically to your mother's house; is that correct?

A: Yes.

...

Q: Once you got to that house, you then put the car in the garage; is that right?

A: Yes.

Q: And at some point did you give Michael Taylor something to blindfold [the girl]?

A: I think I did, yes.

Q: OK. And then at some point he took her out of the car and forced her to crawl down to the basement; is that correct?

A: Yes.

Q: Once the three of you were in the basement, you told her to sit down, didn't you?

A: Yes.

Q: And while you were in the basement, you saw Michael Taylor taking her clothes off, didn't you?

A: Yes.

Q: You then went upstairs?

A: Yes.

... Q: When you came back downstairs, did you see Michael Taylor forcing her to have intercourse with him?

A: Yes.

...

Q: At some point did Michael Taylor then ask you to go get him some lubricant?

A: Yes.

Q: And, in fact, did you do that?

A: Yes.

...

Q: Ok. You never stopped him from committing the rape, did you?

A: No.

Q: After that was over, you two then put her in the trunk of the car you had stolen; is that correct?

A: Yes.

Q: You then tied her up, didn't you?

A: Yes.

Q: And you and Michael Taylor stood there for a while; is that correct?

A: Yes.

Q: And the two of you had a conversation, didn't you?

A: Yes.

Q: Michael Taylor said that he did not want her identifying him in court later on, didn't he?

A: Yes.

...

Q: So at that point you two discussed what to do, didn't you?

A: Yes.

Q: And you two decided to kill her, didn't you?

A: Yes.

Q: You didn't have a gun; is that correct?

A: Yes.

Q: So Michael Taylor suggested using knives.

A: Yes.

Q: And you went upstairs and got two knives from the kitchen.

A: Yes.

Q; And then you took those two knives back down to the garage where Michael Taylor was; is that correct?

A: Yes, I did.

Q: You gave Michael Taylor the little knife, and you took the big knife.

A: Yes.

Q: And Michael Taylor then stabbed her, didn't he?

A: Yes, he did.

Q: And initially he stabbed her in the heart and the chest area a number of times; isn't that correct?

A: Yes.

Q: And Michael Taylor actually told you that he thought you two were in this shit together; do you remember that?

A: Yes.

Q: So you took your knife, and you also attempted to stab her, didn't you?

A: Yes

Q: Your knife was dull?

A: Yes.

Q: Was Michael Taylor then the one that ended up stabbing her in the throat where you had tried to?

A: Yes.

Q: While you were stabbing her and while Michael Taylor was stabbing her, you never left to go call the police or to get help, did you?

A: No, I didn't.

...

Q: You then took both of the knives back upstairs; is that correct?

A: Yes.

Q: And Michael Taylor closed the trunk of the car.

A: Yes, he did.

Q: And you knew that she was going to die, didn't you?

A: Yes.

Q: You drove the car away; is that correct?

A: Yes.

Q: And you parked it in some neighborhood fairly close to the house.

A: Yes.

...

Q: And on July 8, 1989, you gave a video taped statement regarding you participation in this offense, didn't you?

A: Yes.

...

Q: And it's your desire, in fact, to plead guilty here today?

A: Yes.

At the plea hearing, Nunley also testified that he knew he was waiving a jury trial and jury sentencing:

Q: Do you understand that by pleading guilty today you're waiving or giving up a certain number of constitutional rights that you would have if you went to trial?

A: Yes.

Q: Do you understand that at that trial you would have the right to a trial by a judge or a jury?

A: Yes.

...

Q: Do you understand that if you went to trial and you were found guilty of these charges that you would then start the second phase of the trial, which would be the sentencing phase by the jury; do you understand that?

A: Yes.

Q: By waiving that, you're not going to be sentenced by a jury. Do you understand that?

A: Yes.

...

Q: It is still your desire to plead guilty today?

A: Yes, it is.

After a three day sentencing hearing, the judge sentenced Nunley to death.

Nunley filed a Rule 24.035 motion for post-conviction relief that was overruled. Nunley then appealed. This Court vacated the death sentence and remanded the case for a “new penalty hearing, imposition of sentence, and entry of new judgment.”

The original judge recused, and Judge O'Malley was assigned to Nunley's case. Nunley filed a motion to withdraw his guilty plea under Rule 29.07, and the motion was overruled. Nunley then filed a motion for reconsideration or, in the alternative, jury sentencing. Nunley received a hearing on his motion to withdraw his plea on January 26, 1994. At the hearing, Nunley answered the following questions from the State:

Q: Last time, you put all of your eggs in one basket with the judge, the judge sentenced you to death, and now this time you want to try a different approach, correct?

A: Yes.

...

Q: Did you think about your case before you entered your plea?

A: Yes.

Q: Okay, in fact you had a number of discussions with your attorneys before you entered your plea, didn't you?

A: Yes

...

Q: In fact, you told [your attorneys] right off the bat, you said, “Hey, I'm guilty,” didn't you?

A: Yes, sir.

... Q: And they in essence told you the evidence against you was overwhelming, didn't they?

A: Yes.

...

Q: And that was something you took into consideration when you entered your plea of guilty, wasn't it?

A: Yes.

Q: And you knew you had the right to a jury trial?

A: Yes, sir.

...

Q: And you were explained how the State would present aggravating circumstances and your attorneys would be presenting mitigating circumstances, correct?

A: Yes, sir.

Q: And when you talked about this with your attorneys before you entered your plea, it was brought out the fact that a jury who saw this evidence would be outraged, wasn't it?

A: Yes, my attorney did mention that.

Q: And, in fact, you yourself were afraid that if you went before a jury, they very well may sentence you to death, weren't you?

A: Well, I really made the decision on the advice of my attorneys.

Q: Well let me ask you this, sir, based upon the discussions you had with your attorneys, your review of all the evidence, and the fact that you were guilty, you understood there was a strong likelihood that if you went before a jury, they were going to sentence you to death, weren't you, sir?

A: Yes, sir.

Q: And so then you started discussing your other options. You said, well, one option would be to go before a judge, right?

A: Yes.

Q: But in order to go before a judge, you would have to waive all of your constitutional rights and you would have to plead guilty and that judge would sentence you, correct?

A: Yes.

...

Q: So as I understand it at the time you entered your guilty plea, you did that because you, in fact, were guilty; you knew the evidence against you was overwhelming. You were afraid to go in front of a jury because they might sentence you to death, and you thought [the original trial judge] was a good judge to be in front of, is that a fair statement?

A: Yes.

...

Q: You gambled on the judge route, you lost, and now you want to try the jury route, isn't that a fair summary?

A: Yes, sir.

Judge O'Malley overruled Nunley's motion for reconsideration. A sentencing hearing was conducted in April 1994. At the hearing, the State presented a witness from the victim's family, testimony from officers who investigated the murder, testimony from a forensic chemist who worked on the case, testimony from the officers who apprehended Nunley, evidence of the autopsy results, and a witness who testified that Nunley confessed the...