Roderick Nunley

Case record: Roderick Nunley

Status and procedural posture

Roderick Nunley was sentenced to death on May 14, 1991. He later appealed the denial of his motion for post-conviction relief under Rule 24.035, and the appellate court affirmed the denial.

Background

After an indictment for first degree murder, kidnapping, forcible rape and armed criminal action, the State filed an information in lieu of indictment charging appellant with the four offenses listed above and as a prior and persistent offender. The prosecutor informed appellant that the state would seek the death penalty even if appellant pleaded guilty to the charged offenses.

The offence

Roderick Nunley and Michael Taylor stole a car after using drugs. While driving the stolen car on the morning of March 22 (during the night of March 21), the two men saw a fifteen-year-old girl, Ann Harrison, waiting for her school bus. Taylor stated that he wanted to steal the girl’s purse. Nunley stopped the car. Taylor grabbed Ann Harrison and forced her into the car.

Nunley drove the car to his mother’s house. The two men took Ann Harrison out of the car and forced her to crawl down to the basement. Taylor raped her. At some point, Nunley gave Taylor some lubricant to facilitate the rape. After the rape, the two men forced Ann Harrison into the trunk of the stolen car and tied her up.

After Taylor stated he was afraid the girl would identify him, the two men decided to kill her. Nunley retrieved two knives from the kitchen. Both men stabbed Ann Harrison. Nunley knew the girl was going to die from her wounds. The men drove to a nearby neighborhood and parked the car, leaving Ann Harrison in the trunk. She died of multiple stab wounds approximately thirty minutes later, according to testimony by the former county medical examiner that the victim was stabbed ten times and she died approximately thirty minutes later.

Nunley gave a videotaped confession to the police.

Charges and plea

Nunley entered guilty pleas to:

• First degree murder, in violation of section 565.020, RSMo 1994, for which he was sentenced to death
• Armed criminal action, section 571.015, RSMo 1994
• Kidnapping, section 565.110, RSMo 1994
• Forcible rape, section 566.030 RSMo 1994

Nunley pleaded guilty to the four charged offenses without a sentencing recommendation from the state.

Sentencing

After a hearing, the trial judge sentenced Nunley to death for the murder count and to consecutive terms of fifteen years for the kidnapping count, life for the forcible rape count, and ten years for the armed criminal action.

Following an earlier appellate procedure, the trial judge conducted a second penalty hearing and sentenced Nunley to death on the murder count and consecutive terms of fifteen years on the kidnapping count and life imprisonment on each count of forcible rape and armed criminal action.

Investigation and evidence

Appeals and post-conviction proceedings

Prior direct appeal and partial reversal/remand

In State v. Nunley, 923 S.W.2d 911 (Mo. banc 1996), cert. denied, 117 S.Ct. 772 (1997), the appellate court affirmed Nunley’s conviction and sentence. With respect to his Rule 24.035 motion, the appellate court affirmed in part and reversed in part, and remanded the cause for additional findings and entry of a new judgment.

A summary order vacated the judgment of the trial court and remanded the cause for a new penalty hearing, imposition of sentence, and entry of new judgment.

Rule 24.035 motion and this appeal

Nunley filed a pro se and amended Rule 24.035 motion. After an evidentiary hearing, the motion court overruled the motion. Nunley appealed.

The appellate review of the motion court’s judgment on a Rule 24.035 motion was limited to whether the findings and conclusions of the motion court were clearly erroneous (Rule 24.035(j)). The appellate court held the motion court’s findings and conclusions were not clearly erroneous.

Appellate court holdings and discussion

The appellate court affirmed. It held that the motion court did not clearly err in denying Nunley’s Rule 24.035 motion.

1. Racial discrimination claim (equal protection) Nunley urged that his sentence be vacated because the decision to seek the death penalty was the product of racial discrimination by the Jackson County prosecutor’s office in violation of the Equal Protection Clause. The court followed State v. Taylor, 929 S.W.2d 209, 221 (Mo. banc 1996), cert. denied, 117 S.Ct. 1088 (1997), which rejected an identical claim supported by identical evidence adduced at the first consolidated post-conviction hearing. The appellate court concluded the contention was without merit.

2. Ineffective assistance claims related to counsel’s advice about jury trial strategies The appellate court addressed ineffective assistance standards based on Strickland v. Washington, 466 U.S. 668, 687 (1984), requiring deficient performance and prejudice. It noted the presumption of adequate assistance and reasonable professional judgment from Strickland, and that for guilty plea cases, prejudice required showing a reasonable probability that, but for counsel’s unprofessional errors, Nunley would not have pleaded guilty and would instead have insisted on going to trial (Hill v. Lockhart, 474 U.S. 52, 59 (1984)).

Nunley contended that counsel at the guilty plea phase was ineffective in failing to consider options of:

• conceding guilt at a jury trial
• presenting to a jury the bad acts of appellant as being less culpable as compared to Michael Taylor’s acts
• offering a jury the option of convicting appellant of murder in the second degree based on his mental state

The appellate court held the claim was not properly preserved because Nunley’s motion did not aver that counsel failed to advise him of these jury trial strategies. It cited Amrine v. State, 785 S.W.2d 531, 535 (Mo. 1990), cert. denied, 498 U.S. 881 (1990), for the principle that claims not presented to the motion court cannot be raised for the first time on appeal.

As to a broader claim that plea counsel inadequately reviewed “the possibilities for a better result through a jury trial,” the appellate court held neither the claim as averred in the motion nor as presented on appeal was supported by the evidence. It found plea counsel undertook an extensive deliberative and investigative process before recommending a plea before the judge. It stated Nunley failed to show counsel was deficient in failing to consider the jury trial options or to advise him of such an extraordinary risk, and that Nunley failed to establish any likelihood that, but for counsel’s failure to advise more fully of options at jury trial, he would have insisted on a jury trial for determining culpability or for any other purpose (Lockhart, 474 U.S. at 59).

The appellate court stated that Nunley and counsel discussed numerous likely consequences of appearing before a jury. It also referenced testimony and Nunley’s statements:

• Both Nunley and his attorneys testified at the first post-conviction hearing that the attorneys advised Nunley at length about the likelihood of success at a jury trial.
• Nunley testified that he and counsel decided the facts of his case were likely to inflame a jury and that a jury would almost certainly sentence him to death.
• Nunley testified that he and counsel agreed that evidence of drug use as a mitigating circumstance would be more effectively presented to a judge than to a jury.
• Nunley testified that he and counsel agreed that evidence of Ann Harrison’s kidnapping while she waited for her school bus, followed by rape and murder, would be more shocking to a jury than to a judge.
• Nunley testified that he and counsel agreed that evidence of Nunley’s prior criminal record and his flight from the police would be less harmful if presented before a judge.
• Nunley testified that he was aware of publicity and outrage in the Kansas City area surrounding his case.
• Nunley testified at the post-conviction hearing that he still believed a jury would sentence him to death on the facts and evidence in the underlying criminal case.

The appellate court concluded the claim was without merit.

3. Failure to inform about the statutory right to seek a jury trial at sentencing stage Nunley argued that counsel at the guilty plea phase was ineffective in failing to inform him of his statutory right under section 565.006.2, RSMo 1994, to seek a jury trial at the sentencing stage after a plea of guilty. The appellate court noted that it explicitly rejected any such claim in State v. Nunley, 923 S.W.2d at 923.

4. Adequate funds and sufficient time to investigate and prepare for sentencing Nunley argued that trial counsel was deprived of adequate funds and sufficient time to investigate and prepare for sentencing, denying him a full presentation of mitigating evidence. The appellate court held the claim failed because Nunley failed to present any evidence of inadequate time or funding. It cited the rule that failure to present evidence at a hearing in support of factual claims constitutes abandonment (State v. Boone, 869 S.W.2d 70, 78 (Mo. App. 1993)), and that Nunley failed to meet his burden of proof required under Rule 24.035(h) (citing State v. Silvey, 894 S.W.2d 662, 671-72 (Mo. banc 1995)).

Footnote (FN1) included that Nunley’s abandonment may have been rooted in the record refuting his claim, including testimony that plea counsel received funding for all experts wanted, that the defense employed at least seven experts, and that two experts presented testimony. It further stated that the claim of inadequate time to prepare related to the first sentencing hearing; an order vacated the 1991 judgment and remanded for a new penalty hearing, sentence and judgment, allowing nearly ten months between the appellate court’s 1993 order and the second sentencing hearing that began on April 11, 1994.

5. Competency and validity of guilty plea Finally, Nunley contended counsel at the guilty plea phase was ineffective for failing to challenge his competency and his decision to plead guilty. The appellate court held the claim suffered from an infirmity identical to the preceding claim because Nunley failed to adduce evidence to support it, so he failed to show counsel was ineffective for failing to challenge competency or the validity of his guilty plea, citing Boone, 869 S.W.2d at 78. The appellate court stated the motion court did not clearly err in refusing relief on an issue unsupported by any evidence.

Footnote (FN2) stated the record refuted the abandoned claim, including that a psychiatrist and psychologist evaluated Nunley and opined that he understood the nature of the proceedings and could assist his attorneys. It also stated that one of Nunley’s attorneys testified that Nunley was an “active participant” in discussing matters of representation, that two of his attorneys testified they were not aware of any evidence from any source that Nunley was incompetent, and that Nunley testified at the guilty plea hearing that he understood the nature of the proceedings and could assist his attorneys both at plea and at trial.

Other details

• Opinion author: Ann K. Covington, Judge.
• The appellate decision was “All concur.”
• Case reference in the summary included:
  • United States Court of Appeals For the Eighth Circuit opinion 03-3961, State of Missouri v. Roderick Nunley, 923 S.W. 2d 911 (Mo.banc 1996).
  • Handdown date: 11/03/98.
  • Appeal from: Circuit Court of Jackson County, Hon. John R. O'Malley.
• The record described that Ann Harrison was stabbed ten times and died approximately thirty minutes later.