339 S.W.3d 500 (Mo. 2011), SC 90649, State v. Nash

Docket Nº:SC 90649.
Citation:339 S.W.3d 500
Opinion Judge:MARY R. RUSSELL, Judge.
Party Name:STATE of Missouri, Respondent, v. Donald R. NASH, Appellant.
Attorney:Frank K. Carlson, Sarah K. Tupper and Michael P. Bastian, The Carlson Law Firm, Union, for Nash. Theodore A. Bruce, Attorney General's Office, Jefferson, City, for The State.
Judge Panel:All concur.
Case Date:May 17, 2011
Court:Supreme Court of Missouri
 
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339 S.W.3d 500 (Mo. 2011)

STATE of Missouri, Respondent,

v.

Donald R. NASH, Appellant.

No. SC 90649.

Supreme Court of Missouri, En Banc.

May 17, 2011

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Frank K. Carlson, Sarah K. Tupper and Michael P. Bastian, The Carlson Law Firm, Union, for Nash.

Theodore A. Bruce, Attorney General's Office, Jefferson, City, for The State.

MARY R. RUSSELL, Judge.

A jury found Donald Nash guilty of capital murder in violation of section 565.001, RSMo 1978, for the 1982 killing of Judy Spencer. He was sentenced to life imprisonment without the possibility for probation or parole for 50 years.

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He appeals, asserting that he was wrongly convicted under section 565.001, RSMo 1978, because he argues that this statute was repealed in 1983 and that no other statute replaced it to criminalize the murder with which he was charged. He also maintains that his conviction should be reversed because it rests on insufficient evidence, he was not allowed to offer a circumstantial evidence jury instruction, and the trial court excluded his evidence that another person committed the murder.

Because this Court finds no reversible errors in Nash's case, the judgment is affirmed.1

I. Background

Judy Spencer was killed on the morning of March 11, 1982,2 in a rural area near Salem, where Judy lived with her boyfriend, Nash. On the night before Judy's death, there had been " a large party" in the area where her body was found.3 Judy's body had been dragged to and dumped in the foundation of an abandoned outhouse and then covered with tree branches and logs. She had been strangled with a shoelace from her shoe and, then, after she died, had been shot in the neck with a shotgun. Some of her clothing had been strewn in the woods near her body, which was discovered partially clothed. It later was determined, however, that there was no evidence of sexual contact or a sexual assault.

On the day before Judy's death, March 10, she had spent the afternoon and evening drinking 4 and driving around with her friends, including Janet Jones. Judy lied to Nash about drinking that night, saying she was out of town when she actually was drinking at Janet's apartment. Nash went to Janet's apartment to switch cars with Judy, and Janet observed Nash throw Judy's car keys toward her. Judy told Janet that Nash had told her, " This is the last time you'll ever lie to me, bitch." Judy also told Janet, " [Nash] thinks I'm ugly. He doesn't like my hair."

Janet testified that Judy washed and restyled her hair in Janet's sink after talking with Nash that night. Judy went to the home she shared with Nash, and Judy and Nash argued about drinking. Judy then returned to Janet's apartment. Later in the evening, Judy drove off mad and upset, saying she was going to Houston, Missouri.

Nash later told the state trooper who informed him of Judy's death that he had looked for Judy at some time after 8 p.m. March 10. He stated that he had looked for her at the Legion Hall and at the hospital and then had stayed home the rest of the

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night and did not leave until the next morning. Judy's friend, Christine Colvin, however, testified at trial that she had seen Nash driving through the parking lot of Janet's apartment complex between 11 p.m. and midnight March 10.

Janet also had searched briefly for Judy on the night of March 10. She recalled that Nash had called her around 8:30 p.m., 9:30 p.m., and 10 p.m. that night, stating that he loved Judy and was worried for her safety. The next day at 5:45 a.m., Janet called Nash, who had requested the previous night that she call him so he would not be late to work. Nash called Janet twice later that morning, again stating that he was worried and looking for Judy. He said that he was concerned that Judy would drink and drive and he feared that she would be in an accident or be arrested.

Nash also called Judy's mother, whom he had never called before, on the morning of March 11. He asked if Judy was at her mother's house, and when she said " no," he said " I won't keep you then." He told Judy's mother that he was calling from the telephone at his work and stated that he was looking for Judy.

In the afternoon on March 11, Nash and Janet left Salem and went to look for Judy in Houston. Nash continued to express that he was concerned for Judy. When Nash and Janet later returned to Salem and went to check Nash and Judy's answering machine, they received a call to come to the hospital, where they were informed that Judy had died. Janet had to be sedated, and Nash became upset and cried. Janet and Nash were interviewed separately by investigators, who did not provide details about Judy's death. Nash described Judy's drinking the night before, and he detailed what she had been wearing when he last saw her.

Janet testified at trial that Nash later appeared heartbroken because of Judy's death. But testimony also revealed that he was involved with another woman within a week of Judy's death.

When Judy's death initially was investigated in 1982, no blood or tissue was found under her fingernails, and no physical evidence linked Nash to the crime scene. He was fingerprinted and was swabbed for gunshot residue, but no gunshot residue was found. He also did not have scratches or marks that would have been consistent with being involved in a physical altercation. There was also no evidence that the tire tracks located in the area where Judy's body was discovered matched Nash's truck.

In May 1982, at the request of law enforcement, Janet recorded a conversation that she had with Nash discussing Judy's death. Janet told Nash that she suspected he was involved in Judy's death. He stated that he did not have an alibi for the night of March 10, and Janet did not ask him about having an alibi for the morning of March 11. He admitted that he had been angry with Judy on the night of March 10, but he also stated, " I'm innocent. They're on the wrong track. They're not going to catch the right guy."

Judy's case laid dormant until 2007, when Judy's sister requested that investigators renew the investigation. Investigators then requested a DNA sample from Nash to compare to DNA evidence found on fingernail clippings taken from Judy's body in 1982. He voluntarily gave a DNA sample, and testing revealed that his DNA was found under the fingernails of Judy's left hand. No DNA profile or evidence of a third person was detected under Judy's fingernails (only Judy's DNA and Nash's DNA was detected).

An information was filed charging Nash with the class A felony of capital murder in violation of section 565.001, RSMo 1978,

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and punishable under section 565.008.1, RSMo 1978. A jury trial was held, and jurors heard testimony about the events of March 10 and 11, 1982, and about the DNA evidence. The jury found Nash guilty, and the court sentenced him to life imprisonment with no chance for probation or parole for 50 years. This Court now considers his appeal.

II. Jurisdiction

Nash's jurisdictional statement asserts that this Court has exclusive jurisdiction over his appeal pursuant to Mo. Const. art. V, sec. 3, because he challenges that his conviction under section 565.001, RSMo 1978, violates Mo. Const. art. III, sec. 28, which provides:

No act shall be revived or reenacted unless it shall be set forth at length as if it were an original act. No act shall be amended by providing that words be stricken out or inserted, but the words to be stricken out, or the words to be inserted, or the words to be stricken out and those inserted in lieu thereof, together with the act or section amended, shall be set forth in full as amended.

His jurisdictional statement argues that the " statutes under which [he] was charged, tried and convicted are and at all times pertinent hereto were invalid" because the 1983 repeal of section 565.001, RSMo 1978, " was not accompanied or followed by [a] revival or reenactment of the repealed pre-October 1, 1984 [c]apital [m]urder statute, which revival or reenactment is prescribed by Article III, section 28 of the Constitution of Missouri."

But outside of these assertions in his jurisdictional statement, Nash's brief and reply brief do not discuss his challenge to his conviction in light of Mo. Const. art. III, sec. 28.5 And, because he failed to raise his arguments as to violations of Mo. Const. art. III, sec. 28 in his points on appeal, these arguments are deemed waived. See Brizendine v. Conrad, 71 S.W.3d 587, 593 (Mo. banc 2002) (noting that an argument not set out in the point relied on and merely referenced in the argument is non-compliant with Rule 84.04(d) and considered abandoned by this Court). This Court will not review a party's constitutional arguments that are not explained. See, e.g., Leahy v. Leahy, 858 S.W.2d 221, 228 (Mo. banc 1993) (citing Big Boys Steel Erection, Inc. v. Hercules Const. Co., 765 S.W.2d 684, 687 (Mo.App.1989), for the proposition that appellate review is not warranted when " ‘ references are merely bald statements without supporting argument’ " and " ‘ assertions made without reasoning’ " ).

Despite Nash's failure to maintain his argument invoking this Court's exclusive jurisdiction, the State's jurisdictional statement concedes that " jurisdiction is vested in the Supreme Court of Missouri" pursuant to Mo. Const. art. V, sec. 3, because Nash " does challenge his conviction as being in violation of [Mo. Const. art. III, sec. 28]." This concession to jurisdiction, however, is insufficient to warrant an opinion by this Court. " This Court may not obtain jurisdiction of the subject matter of [an] appeal by consent, waiver, or...

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