State v. Nunley

Citation923 S.W.2d 911
Decision Date28 May 1996
Docket NumberNos. 76981,77941,s. 76981
PartiesSTATE of Missouri, Respondent, v. Roderick NUNLEY, Appellant. Roderick NUNLEY, Appellant, v. STATE of Missouri, Respondent.
CourtUnited States State Supreme Court of Missouri

Bernard J. Rhodes, Michael J. Abrams, Charles J. Williams, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Becky Owenson Kilpatrick, Asst. Attorney General, Jefferson City, for Respondent.

WHITE, Judge.

Defendant pleaded guilty to first degree murder, kidnapping, forcible rape and armed criminal action. Defendant was sentenced to death for the murder. Defendant's motions filed pursuant to Rules 29.07 and 24.035 were overruled. This Court has exclusive appellate jurisdiction. Mo. Const. art. V, § 3. Affirmed in part, reversed in part and remanded.

I.

This case comes to the Court for the second time. Defendant was indicted for first degree murder, kidnapping, forcible rape and armed criminal action. The State subsequently filed an information in lieu of indictment charging defendant with the four offenses and as a prior and persistent offender. The prosecutor informed defendant if he pleaded guilty to the charged offenses the State would still seek the death penalty. Defendant's counsel allegedly recommended the plea after inquiring about the reputation of the trial judge. Defendant subsequently pleaded guilty to the four charged offenses without a sentencing recommendation from the State.

During his plea hearing, defendant gave the following version of the crimes. After using drugs, defendant and Michael Taylor stole a car. While driving the car, the two men spotted a fifteen-year old girl waiting for her school bus. Taylor allegedly stated he wanted to steal the girl's purse, and defendant, who was driving, stopped the car. Taylor spoke to the girl and then grabbed her and forced her into the car. Defendant then drove the car to his mother's house. The girl was taken out of the car and forced to crawl down to the basement. Taylor then raped the girl. At some point, defendant gave Taylor some lubricant to facilitate the forced sexual intercourse. After the assault, the two men forced the girl 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 the girl. Defendant retrieved two knives from the kitchen and both men stabbed the girl. Defendant knew the girl was going to die from her wounds. 1 The men drove to a nearby neighborhood and parked the car, leaving the girl in the trunk. Defendant gave a videotaped confession to police.

The trial judge conducted a sentencing hearing and subsequently sentenced defendant to death for the murder count. The judge also sentenced defendant to consecutive terms of fifteen years for the kidnapping count, life for the forcible rape count and ten years for the armed criminal action count. The same day the judge sentenced defendant, he also sentenced Michael Taylor to death.

Defendant filed a pro se Rule 24.035 motion for post-conviction relief. The trial judge appointed counsel to represent defendant. At some point prior to the filing of an amended 24.035 motion, the trial judge learned there was an allegation the judge had been drinking alcohol the day of defendant's sentencing. The trial judge, a member of the sixteenth judicial circuit, then entered an order recusing himself. Defendant filed an amended 24.035 motion alleging, in part, the trial judge had been drinking during the sentencing hearing and the day defendant was sentenced. On October 28, 1991, Judge William Mauer of the sixteenth circuit recused from the case. The same day the acting presiding judge of the sixteenth circuit issued an order, which recused all judges from the sixteenth circuit and requested the Chief Justice of this Court to appoint a judge.

The Chief Justice of this Court then entered an order transferring Judge Dierker, of the twenty-second judicial circuit, to the sixteenth circuit to hear the matter. After an evidentiary hearing, Judge Dierker denied defendant's 24.035 motion. Defendant then appealed to this Court, raising fourteen points. This Court entered a summary order vacating the judgment and remanding for a new penalty hearing, imposition of sentence and entry of new judgment.

Defendant subsequently filed a motion to withdraw his guilty plea pursuant to Rule 29.07(d). Judge O'Malley, of the sixteenth circuit, denied this motion. Defendant filed a motion for reconsideration of the denial of his 29.07 motion or in the alternative a request for jury sentencing. Judge O'Malley also denied this motion.

On March 30, 1994, defendant filed with Judge O'Malley a notice of writ of prohibition or mandamus seeking to prohibit Judge O'Malley from proceeding with the sentencing hearing. In this notice, defendant argued he was entitled to withdraw his plea because he would not be sentenced by the judge to whom he pleaded guilty. This argument was not raised in the 29.07 motion.

On March 31, 1994, Judge O'Malley, the judge hearing Taylor's case and defendant's counsel met to discuss the October 28, 1991, order recusing all judges from the sixteenth circuit and this Court's order transferring Judge Dierker. The State was not present at the meeting and a record was not made. The same day the then Chief Justice of this Court issued an order transferring Judge Webber, of the first judicial circuit, to hear the cases of defendant and Michael Taylor. Judge Webber notified defendant's counsel he would be in Division 8 of the sixteenth circuit on April 4, 1994, for pre-trial conference and to hear any scheduled matters.

On April 4, 1994, Judge Webber, defendant and his counsel appeared at the appointed hour. Before the pre-trial conference with Judge Webber began, Judge O'Malley took the bench. Judge O'Malley stated he never agreed to recuse, he had not seen the order transferring Judge Webber and he wanted to hear argument from the State regarding the recusal issue. Defendant then made a motion for Judge O'Malley to recuse. After hearing arguments from the parties, Judge O'Malley denied the motion. On April 5, 1994, the then Chief Justice of this Court issued an order that rescinded the March 31, 1994, order transferring Judge Webber.

After a sentencing hearing, Judge O'Malley sentenced defendant to death for the murder count. Judge O'Malley also sentenced defendant to consecutive terms of fifteen years for the kidnapping count and life imprisonment for each count of forcible rape and armed criminal action. Defendant filed a pro se and amended Rule 24.035 motion. Judge O'Malley overruled this motion after an evidentiary hearing. This appeal followed.

II.

Defendant argues in his first point Judge O'Malley erred by not recusing himself. 2 Defendant first contends the order by the acting presiding judge of the sixteenth circuit recusing all sixteenth circuit judges and order by this Court transferring Judge Webber mandates Judge O'Malley's recusal.

Defendant relies on the principle that has been stated as after disqualification a trial judge loses or lacks "jurisdiction." State ex rel. Carver v. Whipple, 608 S.W.2d 410, 412 (Mo. banc 1980). The State first contends "jurisdiction" is not the issue but rather the issue is whether Judge O'Malley committed "error" by hearing the case. The State suggests defendant's framing of the argument in terms of "jurisdiction" justifies summarily rejecting defendant's argument. Jurisdiction connotes the power to decide a case on the merits. Wiglesworth v. Wyrick, 531 S.W.2d 713, 717 (Mo. banc 1976). This is the issue raised by defendant's argument and the State's contention fails.

Defendant first relies on the October 28, 1991, recusal order entered by the acting presiding judge of the sixteenth circuit. The order provides, in part, "Now on this 28th day of October, 1991, pursuant to Section 478.240 RSMo. and Local Court Rules, all of the judges of the Sixteenth Judicial Circuit are recused from the above captioned cause and the Chief Justice of the Supreme Court is requested to appoint a qualified Circuit Judge to hear and rule all issues pending or which may hereafter be raised." Defendant relies on the last portion of the quoted language, "issues ... which may hereafter be raised."

The initial inquiry is whether the acting presiding judge of the sixteenth circuit had the authority to enter an order recusing all judges from the circuit. Section 478.240.2 gives the presiding judge of a circuit the authority to assign judges to certain cases or divisions. The statute does not specifically provide a presiding judge with the authority to disqualify other judges from hearing a certain case. The authority to ask this Court to transfer a judge is necessary if, for example, all judges within a particular circuit are recused. But whether a presiding judge can disqualify other judges presents a different question. The local rules of the sixteenth circuit also do not provide authority for the presiding judge's order. There are no provisions in either the statutes or rules adopted by this Court that authorize the order at issue here. See State v. Erickson, 793 S.W.2d 377, 380 (Mo.App.1990).

"A disqualifying bias and prejudice is one that has an extrajudicial source and results in an opinion on the merits on some basis other than what the judge learned from his participation in a case." State v. Hunter, 840 S.W.2d 850, 866 (Mo. banc 1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 732 (1993). Given the definition of a disqualifying bias and prejudice, a particular judge is in the best position to determine if recusal is necessary. The circumstances affecting whether recusal is necessary may vary for different judges within a circuit. Here, Judge O'Malley clearly stated he never agreed to recuse and when the alcohol allegation arose he was serving in the juvenile division in the sixteenth circuit....

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    ...unjust for him to be ultimately sentenced by a different judge. This Court rejected the argument and upheld the guilty plea. State v. Nunley, 923 S.W.2d 911, 919–922 (Mo. banc 1996). On August 19, 2010, this Court issued an order setting Nunley's execution date for October 20, 2010. On Sept......
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