State v. Nave

Decision Date07 August 1985
Docket NumberNo. 66379,66379
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Emmett Clifton NAVE, Defendant-Appellant.
CourtMissouri Supreme Court

Holly G. Simons, Asst. Public Defender, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

DOUGLAS W. GREENE, Special Judge.

Defendant, Emmett Clifton Nave, was jury-convicted of capital murder, § 565.001, 1 in force at the time in question, robbery in the first degree, § 569.020, sodomy (three counts), § 566.060, and kidnapping (four counts), § 565.110. The jury recommended a death sentence on the capital murder charge. The trial court, after finding Nave to be a persistent offender, sentenced him to death for the capital murder conviction, life imprisonment for the robbery, life imprisonment without eligibility for probation or parole for 30 years on each of the sodomy charges, and 30 years' imprisonment for each of the kidnapping convictions, with all sentences to run consecutively.

Our review encompasses all errors enumerated by way of appeal, factual substantiation of the verdicts, and the validity of the death sentence, keeping in mind the precepts of § 565.035 defining our mandated inquiry in death penalty cases.

Although the sufficiency of the evidence to sustain the convictions is not disputed, it is necessary, because of the claim on appeal that the death sentence penalty for the capital murder conviction is excessive and disproportionate to penalties imposed in similar cases, to recast, to some extent, the evidentiary facts surrounding the murder, as well as Nave's attitude and conduct during the time frame in question.

Because of the violent, degrading, and abusive nature of the assaults by Nave on his victims of kidnapping and sodomy, their initials are being substituted for their names in this opinion.

Nave, 43 years old at time of trial, had spent approximately 25 years in penal institutions. He was paroled from the Missouri State Penitentiary on March 14, 1983, where he had been serving two life imprisonment sentences, after 1965 convictions for armed robbery and forcible rape. During that armed robbery, Nave took a woman hostage and later forcibly raped her. He also had a prior history of other felony convictions, including robbery and burglary in the first degree.

Nave and his wife were renting the basement apartment of a dwelling located at 303 Marshall Street in Jefferson City, in which Geneva Roling and her son, Daniel, occupied the first floor. The record does not indicate whether Mrs. Roling was the owner, or the manager, of the apartment house. In the past, Nave had confronted Mrs. Roling about parking space problems, lack of sufficient heat in his apartment, and problems with delivery of his mail.

Nave also was having trouble with his parole officer, Denise Balazic. Two of the conditions of his parole were that he not consume intoxicating beverages and that he attend Alcoholics Anonymous meetings. However, Nave continued consuming intoxicating beverages. He was then admitted into the alcohol abuse program at the Charles E. Still Osteopathic Hospital (hospital) on June 10, 1983, and again on November 14, 1983. On the evening of November 17, Nave had "AMA'd" (left against medical advice) the alcohol detoxification program at the hospital. L.N., a drug abuse counselor at the hospital, instructed Nave to report to his probation officer by 8:00 A.M. the following morning.

On November 18, after learning Nave had been convicted of driving while intoxicated, and was not attending AA meetings Denise told him, "[t]his is the end of the line now, if I find out you've had one drop to drink, if I find out that you're driving your car and you're intoxicated, if you don't go to work, if you miss any AA, whatever, one thing, one altercation--I believe I said: I'll lock your ass up." By this, she meant she would recommend that his parole be revoked. She also advised him that he would be required to swallow an Antabuse tablet in her presence every morning at 8:00 A.M., which drug would make him sick if he took a drink containing alcohol.

That evening, Nave told his wife that Denise and L.N. were "bitches" and that they were "trying to control his life." He was angry because he feared his parole was going to be revoked and "he just felt he was losing everything." During this conversation with his wife, Nave "talked about hurting a lot of people," including Mrs. Roling.

Early the next morning, which was November 19, Nave demanded that his wife drive him to the hospital so that he could attempt to get some drugs. He was carrying the .22 caliber semiautomatic rifle with which he had threatened to kill his wife a few minutes earlier. Before they left for the hospital, Nave said he needed to "talk to the upstairs neighbor," meaning Mrs. Roling. Mrs. Roling's apartment door was separated from the outside door by a hallway. Nave knocked on the outer door, and when they heard Mrs. Roling's apartment door open, Nave told his wife to go to their car. As she was headed to the parking area, Mrs. Nave heard a number of shots, and heard Mrs. Roling scream. She turned around and saw Nave standing in the doorway. Nave then walked to the car, and his wife drove away.

Mrs. Roling's body was discovered by her son, who had stayed with friends the previous night and had returned home shortly after the fatality occurred. She had been shot at least 10 times. Several of the bullet wounds had powder burns, indicating that the murder weapon had been held close to her body when fired. The fatal wound was from a bullet fired into the top of her skull at point blank range. Ballistics tests of shell casings found at the crime scene, spent bullets from Mrs. Roling's body, and bullets fired from Nave's .22 rifle, which was later recovered, indicated that his rifle was the murder weapon.

After killing Mrs. Roling, Nave and his wife drove to the hospital. During the trip, Mrs. Nave asked what had happened to Mrs. Roling and Nave told her not to ask. Upon arriving at the hospital, Nave went to the emergency room, where he was refused pain killing drugs he requested. He returned to the car where Mrs. Nave was waiting and told her that he felt his drug counselor, L.N., had told the nurses not to give him any drugs because he was consuming alcoholic beverages. Nave got the rifle and re-entered the hospital.

Nave went to the alcohol abuse treatment area of the hospital, and approached the nurse's station where L.N., his drug abuse counselor, was talking to a nurse, L.M. He pointed his rifle at the two women and said, "Give me Demerol, I'm tired of all this shit and I want it now." Nave was alert, spoke clearly, and gave no evidence of being under the influence of alcohol or drugs. Upon orders from Nave, L.M. gave him a shot of Demerol. Learning he had been given only 50 milligrams, which is a mild dose, Nave demanded another shot. He told her, "I've already killed two people this morning, I have nothing to lose." After receiving the second dose of Demerol, Nave ordered L.N. and L.M. to put all of the drugs from the narcotics cabinet in a plastic bag, which they did. The taking of the drugs through fear of the use of force constituted the basis for the robbery charge.

At this point, Nave pointed his rifle at the counselor's forehead and said, "I'm going to get you for what you said to Denise Balazic," and demanded she and L.M. leave the hospital with him. On their journey out of the hospital, Nave saw a cardiology department employee, R.K., and E.P., an employee in housekeeping, and ordered them to also come with him. When E.P. hesitated, Nave told her that, if she did not comply with his orders, he would "drop you where you stand."

Once outside the hospital, Nave ordered the four women to get into his car where his wife was waiting. After questioning each of the hostages as to where they lived, Nave directed his wife to drive to R.K.'s mobile home, which was located near Brazito, Missouri. During the trip, Nave told his hostages that he had already killed two people, and had nothing to lose by killing them all, if they did not do what he said. This abduction constituted the basis for the kidnapping charges.

Upon arrival at R.K.'s home, it was discovered that her keys to unlock the door were in her purse at the hospital. While R.K. attempted to find a way of gaining entry into her home, Nave stuck the rifle in L.N.'s mouth and said, "If they try anything funny, I'll kill you." R.K. broke a window, crawled through it, and unlocked the door to her home from the inside. After the group entered the mobile home, Nave ordered his four hostages to remove their clothing. He then forced L.N., R.K., and L.M., by threatening to kill them if they did not comply, to perform oral sex on him, his wife, and one another. These acts formed the basis for the sodomy charges.

Toward the conclusion of this sordid episode, L.N. and L.M. distracted Nave's attention by pretending they wanted more sexual attention from him. L.N. pushed the rifle, which Nave had laid on the floor near his hand, toward R.K., who grabbed it and tried to shoot Nave. When the gun would not fire, R.K. and E.P. fled, naked and screaming, from the mobile home. L.N. and L.M. also attempted to escape. However, Nave obtained a shotgun belonging to R.K.'s husband which was in the mobile home, and followed. L.M. managed to get away but L.N. tripped and fell. Nave caught her and hit her in the face so hard she blacked out. He dragged her back to the mobile home by her hair, struck her twice with the butt of the shotgun, and told her to get dressed. During this time, he was continuously threatening to kill her.

Nave then ordered L.N. into his car and his wife drove them to a secluded area near a highway maintenance shed where he said he intended to kill L.N. L.N. suggested...

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