State v. Nunnery

• Decision Date: 20 February 2004
• Docket Number: No. 25502.,25502.
• Citation: 129 S.W.3d 13
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ronald Joe NUNNERY, Defendant-Appellant.
• Court: Missouri Court of Appeals

129 S.W.3d 13

STATE of Missouri, Plaintiff-Respondent, v. Ronald Joe NUNNERY, Defendant-Appellant.

No. 25502.

Missouri Court of Appeals, Southern District, Division One.

February 20, 2004.

William J. Swift, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Anne E. Edgington, Assistant Attorney General, Jefferson City, for respondent.

JAMES K. PREWITT, Judge.

Following a bench trial, Ronald Joe Nunnery ("Appellant") was convicted of first degree murder (§ 565.020.1, RSMo 2000) and armed criminal action (§ 571.015, RSMo 2000) for the shooting death of his wife, Marcia Nunnery. Appellant waived his right to a trial by jury in exchange for the State's agreement not to seek the death penalty. On the charge of murder in the first degree, the trial court found that Appellant had acted with deliberation and sentenced Appellant to life imprisonment without the possibility of parole. Under the charge of armed criminal action, Appellant received a sentence of fifty years' imprisonment, to be served consecutive to the sentence he received for the first-degree-murder conviction. This appeal followed.

Appellant does not challenge the sufficiency of the evidence upon which he was convicted. Viewed in the light most favorable to the judgment, the following evidence was adduced.

On or about August 28, 2000, Appellant shot and killed his wife, Marcia Nunnery, outside of their home in Wayne County. Also present at the time of the shooting was Eunnona Starkey Nunnery. Appellant, Marcia and Eunnona had lived together with Appellant's and Marcia's children since some time in 1999, when Appellant and Eunnona participated in a marriage ceremony in Las Vegas, Nevada. Marcia was a witness to the ceremony and apparently consented to the arrangement. However, there was discord among the three adults, as Eunnona testified that Marcia set the rules for the family to follow and was difficult to get along with.

Following the shooting, Appellant and Eunnona hid Marcia's body in a freezer located in an outbuilding on their property. Eunnona cleaned up the blood on the sidewalk where Marcia had fallen after the shooting. When Eunnona returned from work later that day, she discovered blood leaking out of the freezer's drain. The following day, Appellant and Eunnona drove to Poplar Bluff where they rented a backhoe which Appellant operated to dig a hole and bury Marcia's body on his property.

Marcia had been the recipient of disability benefit checks from Social Security. For approximately sixteen months following Marcia's death, Appellant and Eunnona cashed the benefit checks, forging Marcia's signature. They told various stories to explain Marcia's disappearance; one being that Marcia had run off with a truck driver; and another, that Marcia had cancer. They told the children that Marcia had just decided to leave.

In October, 2000, a request from the Williamsville city marshal led the Missouri State Highway Patrol to join an investigation, along with the Wayne County Sheriff's Department, involving the disappearance of Marcia Nunnery. Some time later, the Office of the Inspector General of the Social Security Administration joined the investigation, after being contacted by the Division of Family Services to investigate possible fraud in connection with the cashing of Marcia Nunnery's disability benefit checks.

Following certain failed attempts to interview Appellant and Eunnona, Appellant was arrested on December 6, 2001. Initially, he was charged with sixteen counts of forgery. Appellant told officers that he had cashed Marcia's checks but had turned the cash over to Marcia, who would contact him to make arrangements to receive the money. After further questioning, Appellant admitted that he had killed Marcia and buried her body. Appellant consented to the videotaping of his statement and signed a "Consent to Search" form, after which law enforcement personnel conducted a search of Appellant's home and property. Under Appellant's direction, they recovered Marcia's body. A subsequent autopsy revealed an injury to Marcia's skull and a fractured ankle.

Following a change of venue from Wayne County to Dent County, Appellant's trial was held on January 6, 2003. Prior to trial, defense counsel moved to proceed "pursuant to an oral motion to suppress the statements of defendant" and a stipulation "asking that our federalization be included within our objections." The trial court took counsel's motion with the case. Appellant's motion to suppress was denied at the close of the case.

Appellant's first point relied on is set forth below:

The trial court clearly erred when it denied the motion to suppress statements and overruled counsel's objections to admitting statements [Appellant] made to all law enforcement because [Appellant] was denied his rights to due process and to not incriminate himself and his Miranda rights, U.S. Const. Amends. V and XIV and Mo. Const. Art. I, Sections 10 and 19, in that those statements were obtained through the police representing to [Appellant] that he was in custody to be interrogated about only sixteen forgery counts and he was not told as part of the Miranda warnings given that he was also going to be interrogated as a murder suspect in Marcia Nunnery's disappearance even though the police considered him a murder suspect. Therefore, [Appellant's] waiver of rights was not freely, knowingly, intelligently, and voluntarily made, but was the product of coercion and obtained in violation of Miranda.

Whether a defendant's constitutional rights were violated is a question of law reviewed de novo. State v. Hamilton, 8 S.W.3d 132, 135 (Mo.App.1999).

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), mandates that those in custody or subject to interrogation be properly advised of their constitutional guarantees of due process and protection against self-incrimination, including one's right to remain silent and one's right to the presence of an attorney. However, a suspect may waive his or her Fifth Amendment privilege, "provided the waiver is made voluntarily, knowingly and intelligently." Id.

To meet the standards imposed by Miranda, the State must "demonstrate that the defendant knowingly and intelligently waived his [or her] privilege against self-incrimination and his [or her] right to retained or appointed counsel." Id. at 384 U.S. at 475, 86 S.Ct. at 1628. Miranda also places on the State the burden to demonstrate by a preponderance of the evidence that the statement from the accused was made voluntarily. State v. Williams, 956 S.W.2d 942, 948 (Mo.App. 1997).

A waiver is defined as "an intentional relinquishment or abandonment of a known right or privilege." State v. Bucklew, 973 S.W.2d 83, 90 (Mo.banc 1998), cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999). The question of waiver is one of fact. State v. Scott, 841 S.W.2d 787, 789 (Mo.App.1992). Here, the State bears the burden of proving, by a preponderance of the evidence, that the accused properly waived his rights. State v. Banks, 922 S.W.2d 32, 39 (Mo.App.1996).

"[W]hether a waiver is knowing and intelligent depends on the facts and circumstances surrounding that case[,] and review is based on the totality of the circumstances, taking into account the background, experience and conduct of the accused." Bucklew, 973 S.W.2d at 90. "[U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against" a suspect. Miranda, at 384 U.S. at 479, 86 S.Ct. at 1630.

"The requirement that a waiver of rights be knowing and intelligent does not mean that a defendant must know and understand all of the possible consequences of the waiver." State v. Powell, 798 S.W.2d 709, 713 (Mo.banc 1990). "Rather, it requires that the defendant understood the warnings themselves;" that defendant at all times knew that he or she could stand silent, could request that an attorney be present during interrogation, and that the State could and would use any statement to obtain a conviction. Id.

In considering a challenge to the voluntariness of a confession, this court should "indulge every reasonable presumption against waiver of fundamental constitutional rights." Bucklew, 973 S.W.2d at 90. "Voluntariness depends on the absence of coercive police activity." Williams, 956 S.W.2d at 948. "The test for voluntariness is whether under the totality of the circumstances the defendant was deprived of a free choice to admit, to deny, or to refuse to answer, and whether physical or psychological coercion was of such a degree that the defendant's will was overborne at the time of the confession." Id.

Here, Appellant asserts that his waiver "was the product of coercion[,]" in that law enforcement initially represented to him that he was to be interrogated regarding sixteen counts of forgery, but was, in addition, interrogated as a murder suspect in his wife's disappearance.

A trial court's ruling on a motion to suppress will not be reversed if supported by substantial evidence. State v. Gilbert, 103 S.W.3d 743, 750 (Mo.banc 2003). On review, the facts and any reasonable inferences arising therefrom are viewed in a light most favorable to the trial court's ruling. State v. Davis, 32 S.W.3d 603, 610 (Mo.App.2000). Conflicts in the evidence and the credibility of witnesses are matters for the trial court to resolve. Banks, 922 S.W.2d at 39. The State must show, by a preponderance of the evidence, that a defendant's motion to suppress should be overruled. State v. Meinhardt, 900 S.W.2d 242, 244 (Mo.App.1995).

Appellant did not testify, nor did he call any witnesses. The State called Eunnona Nunnery and law enforcement personnel who were involved in the arrest and subsequent search of Appellant's property. Admitted over Appellant's objections, were two "Notification and Waiver of Rights" forms and a "Consent to Search" form, all...