State v. Nunn, 64096
| Decision Date | 23 February 1983 |
| Docket Number | No. 64096,64096 |
| Citation | 646 S.W.2d 55 |
| Parties | STATE of Missouri, Respondent, v. John E. NUNN, Appellant. |
| Court | Missouri Supreme Court |
T. Patrick Deaton, Asst. Public Defender, Clayton, for appellant.
John Ashcroft, Atty. Gen., William K. Haas, Asst. Atty. Gen., Jefferson City, for respondent.
John E. Nunn was charged with rape, assault in the first degree and kidnapping. Acquitted of the rape and kidnapping charges, defendant was convicted by a jury of assault in the first degree, § 565.050, RSMo and sentenced to six years in the custody of the department of corrections. Nunn appealed to the Missouri Court of Appeals, Eastern District, which affirmed the conviction. The case was transferred to this Court pursuant to Rule 83.03.
The victim of the assault, 18-year-old Tracey Swaggert, testified at trial that defendant struck her in the head; beat her head while she was lying on the ground; kicked her and grabbed her by the neck; continued to beat her for ten or fifteen minutes; that after the assault her face, neck and arms were bleeding.
Defendant took the witness stand at the trial and testified that he hit Tracey with the back of his hand, and hit her again; that he was upset and angry, "very angry", and was yelling at her because she was "playing with (his) life"; that he believed his life was "in real danger"; that the fight with Tracey went on for about ten minutes; that after Raymond Griffin broke up the fight defendant again grabbed Tracey. Defendant acknowledged that he had to be "thrown down the hill" by Griffin in order to break it up the second time.
Defendant's witness Patricia Smith, an eyewitness, acknowledged on cross-examination that defendant hit Tracey in the head and body, threw her to the ground, kicked her, pulled her back to her feet and began to choke her.
Defendant testified at trial to the following on the "mitigating issue of extreme emotional disturbance":
Defendant and Tracey Swaggert had been having an affair for several months. Shortly after midnight on the day of the assault Tracey telephoned defendant, told him she wanted to talk to him, and asked him to meet her at a nearby street intersection. Defendant dressed and walked to the appointed place, but Tracey was not present. Defendant waited ten minutes, and when Tracey did not show up he started back to his mother's house where he was staying. He heard a shot and the sound of a bullet passing him. Defendant jumped behind a concrete structure, fearing for his life. Defendant ran back to his mother's house and immediately called Tracey on the telephone. No one answered the phone. That evening defendant encountered Tracey on the street. He confronted Tracey with her failure to appear at the intersection and asked her whether she knew anything about somebody trying to shoot him. Tracey repeatedly stated that she did not know what he was talking about. Suspecting that Tracey had something to do with it defendant became angry and upset and began the assault.
The trial court admitted in evidence defendant's detailed confession, made in the presence of two detectives. Defendant's incriminating admissions were recorded on a tape after defendant was taken into custody.
Appellant's first point is that the trial court erred in overruling his motion to suppress the tape-recorded statement and in allowing the tape to be played before the jury. Appellant contends that the statement was not voluntarily given; that he was not properly advised of and did not understand his constitutional rights during custodial interrogation; that he was led to believe that he would not be able to consult with an attorney until after formal warrants were applied for and issued, and was told by the interrogating officer that he was not waiving his constitutional rights by speaking with her.
This point is without substance. In the first place there was substantial evidence that defendant was effectively advised of all of his Miranda rights, including his right to remain silent and to consult with an attorney before speaking with the detective; that he intelligently and understandingly declined to exercise these rights and that the confession was given voluntarily. Furthermore, defendant took the stand at trial and admitted the crime, testifying in detail concerning the assault and the facts leading up to it, repeating on the stand essentially the same set of facts he told the detective in his taped confession. Defendant thus confirmed and established the truth of the incriminating statements in court under oath. State v. Ussery, 357 Mo. 414, 208 S.W.2d 245, 246-247 (Mo.Sup.1948). In this connection see State v. Bradford, 462 S.W.2d 664 (Mo.Sup.1971), five cases cited on page 669, and State v. Ryder, 598 S.W.2d 526, 527 (Mo.App.1980).
We conclude that the state met its burden of showing the voluntariness of the confession and that the trial court did not err in admitting the taped confession in evidence.
Appellant's second point is that the court erred in failing to give a converse instruction.
Note on Use No. 5 under MAI-CR 19.02 provides:
The court followed the mandates of the first, third and fourth sentences in Note on Use No. 5. The court gave the State's main verdict director MAI-CR 19.02 on assault in the first degree, including therein paragraph Second which, to find defendant guilty of assault in the first degree, required the jury to find "that the defendant did not act under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, as submitted in Instruction No. 10...
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...Cir.1968); Gladden v. Frazier, 388 F.2d 777, 783 (9th Cir.1968); McDonald v. United States, 307 F.2d 272, 275 (10th Cir.1962). State v. Nunn, 646 S.W.2d 55, 57 (Mo. banc 1983); State v. Sanders, 473 S.W.2d 700, 703-704 (Mo.1971); State v. Bradford, 462 S.W.2d 664, 668-669 (Mo.1971); State v......
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