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.
Because this Court finds no reversible errors in Nash's case, the judgment is affirmed.
Judy Spencer was killed on the morning of March 11, 1982,
On the day before Judy's death, March 10, she had spent the afternoon and evening drinking
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
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,
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:
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.
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 in the
Nash first argues that the trial court erred in overruling his motion to quash the information against him and to dismiss the charges against him. He contends that he improperly was charged, tried, and convicted under section 565.001, RSMo 1978, the statute that criminalized premeditated murder when Judy was killed in March 1982.
Section 565.001, RSMo 1978, was repealed in 1983 along with a number of other criminal statutes.
Section 565.001.
Nash maintains that the reference in section 565.001.2 to "the provisions of section 1.160, RSMo, notwithstanding," makes the provisions of section 1.160, RSMo Supp.2010, inapplicable to all murders committed before October 1, 1984. Section 1.160, RSMo Supp.2010, referred to as the "saving statute," provides:
He argues that, because the "notwithstanding" phrase in section 565.001.2 expresses that section 1.160, RSMo Supp. 2010, does not apply to the new chapter 565 provisions, no statute is in place that allows him to be prosecuted for Judy's murder, which occurred prior to the October 1, 1984, effective date for the new chapter 565, but was not prosecuted before the new provisions took effect.
This Court, however, is not persuaded by Nash's insistence that Judy's murder cannot be charged and punished pursuant to the provisions of section 565.001, RSMo 1978. The "notwithstanding" phrase of the new section 565.001.2 cannot be read in a way that would decriminalize a subset of murders simply because the perpetrators avoided prosecution before October 1, 1984.
Statutes cannot be interpreted in ways that yield unreasonable or absurd results, and it is assumed that the legislature's enactment of a statute is meant to serve the best interests and welfare of the general public. See Tribune Pub. Co. v. Curators of Univ. of Mo., 661 S.W.2d 575, 583 (Mo.App.1983). These canons of statutory construction undermine Nash's arguments that section 1.160, RSMo Supp.2010, is inapplicable and fails to permit his prosecution under section 565.001, RSMo 1978. Nash's view of the meaning of the "notwithstanding" phrase in section 565.001 advances that certain murders escape prosecution based on legislative semantics. This is an absurd result that is against the public's interest.
The apparent purpose of the 1983 enactment of the new section 565.001 was to make clear that an offense committed in 1982 should be charged and prosecuted according to the laws existing in 1982, not the law as it existed after the new chapter 565 changes were enacted. The effect of the language of section 565.001.2 is the same as the language in section 1.160, RSMo Supp.2010. The trial court did not err in allowing Nash's prosecution under section 565.001, RSMo 1978, to proceed, as Nash was not entitled to have the information filed against him dismissed.
Nash also argues that the evidence against him was insufficient to sustain his conviction, particularly because the State's case relied on circumstantial evidence.
Generally, this Court's review of the sufficiency of the evidence is limited to
Nash, however, argues that these current standards of review do not accurately reflect the standard of appellate review this Court should employ in assessing the sufficiency of the evidence in his case. He argues that the standards expressed above differ from the standard of review for testing the sufficiency of the evidence for a 1982 case based on circumstantial evidence. He argues that in 1982 his case would have been held to a higher sufficiency of the evidence standard based on the circumstantial evidence rule, which at the time required: "Where the conviction rests on circumstantial evidence, the facts and circumstances to establish guilt must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence." See State v. Grim, 854 S.W.2d 403, 405-07 (Mo. banc 1993) (discussing the historical purpose and application of the circumstantial evidence rule). In 1993, Grim abrogated the circumstantial evidence rule and rejected the use of the circumstantial evidence instruction. Id. at 407-08. Nash argues that failure to employ the circumstantial evidence rule in his case, as this Court would have done pre-Grim, will result in "an ex post facto-type violation of [his] due process rights" because his conviction will then be "resting upon insufficient evidence" according to standard appropriate in 1982.
Nash argues that this Court's failure to apply the circumstantial evidence rule would result in the type of ex post facto violation described in Calder v. Bull as a "law the alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798). But this Court's appellate review of the evidence through the lens of the present sufficiency of the evidence standards versus the circumstantial evidence rule does not alter what was required "in order to convict" Nash for Judy's murder.
Ex post facto concerns exist where "the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction." Carmell v. Texas, 529 U.S. 513, 533, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). In Nash's case, the elements of the crime that
Viewing the evidence in the light most favorable to Nash's conviction, there was sufficient evidence to allow a rational trier of fact to find him guilty beyond a reasonable doubt for Judy's murder.
The State's evidence included that only Judy's DNA and Nash's DNA were found under Judy's fingernails at the time of her death. It was the jury's province to weigh the theories offered by the State and the defense as to the significance of Nash's DNA being found.
The State's DNA expert stated that the quantity of DNA found and tested from under Judy's fingernails was not considered a "low level" sample of DNA, distinguishing the tested sample from one that would be considered "low level, non-contact." The expert testified that the same quantities of Nash's DNA and Judy's own DNA were found in the tested DNA sample.
The prosecution suggested that Nash's DNA lodged under Judy's fingernails when he killed her. It argued that Nash's DNA would not have been present on Judy on March 11 unless he had recent contact with her, highlighting that Judy had washed her hair on the night before her death. Although it was not known if Judy had washed her hair using shampoo, the State's DNA expert testified that hair-washing, particularly with shampoo, would remove DNA from underneath the fingernails that existed prior to the washing. The expert did not have an opinion as to what quantity of DNA would persist under fingernails following shampooing, but said it would "have a great effect" in removing DNA.
In countering the State's DNA evidence, Nash argued that the DNA evidence was insignificant and did not establish that he killed Judy. He maintained that the amount of his DNA found under Judy's fingernails was what would be expected to be present from touching a surface or clothing. He highlighted that there was no evidence of a struggle involved in Judy's murder, and he argued that his DNA was present because he and Judy lived together, not because he struggled with or killed her. He also presented evidence of studies examining DNA evidence found under fingernails.
The jury, by its verdict, found that the State's expert's testimony suggesting that Nash's DNA from under Judy's fingernails that existed on the night before her murder would have been removed when she washed her hair. It is not this Court's role to reweigh the DNA evidence to contradict the jury's conclusions. See State v. Hampton, 959 S.W.2d 444, 450 (Mo. banc 1997) (refusing to "reweigh the evidence and second-guess" the trier of fact's factual conclusion that was supported by expert testimony). There was sufficient evidence to support the jury's conclusions that Nash's DNA, rather than a third person's DNA, was present under Judy's fingernails because Nash was the last person to have contact with Judy before she was killed.
Additionally, viewing the evidence in the light most favorable to the State, other evidence supported the jury's conclusions that the presence of Nash's DNA was significant in linking him to Judy's death: the investigator who requested that Nash submit to DNA testing testified that Nash appeared to be very nervous at the time and his hands were shaking; he asked the investigator "will you let me know if I am eliminated?"; he told the investigator that he believed a female may have killed Judy, and he "stepped back and stared" at the investigator when he was told the DNA profile was that of a male; and when he was told that his DNA was found on Judy's fingernails and at the crime scene, he said it was not possible and his hands began shaking.
And this DNA-related evidence was bolstered by the other evidence favorable to the jury's conclusion that Nash killed Judy: he had told her the night before she died, "That's the last time you'll lie to me, bitch."; he was seen driving around Janet's apartment complex at a time after he told police he had gone home for the night on March 10; he was living with Judy but asked Janet to call him and wake him the morning Judy was killed; and he was involved with another woman shortly after Judy's murder.
In Nash's case, a reasonable juror could have found him guilty beyond a reasonable doubt for Judy's murder, especially considering the DNA evidence together with the other evidence favorable to the jury's guilty verdict. There was sufficient evidence to support Nash's conviction.
Nash also argues that his conviction should be overturned because the trial court erred in refusing to give the jury his proffered circumstantial evidence instruction that would have been applicable in 1982.
In reviewing Nash's claims of instructional error, this Court will reverse the trial court's decision only if the instructional error misled the jury and, thereby, prejudiced Nash. State v. Avery, 275 S.W.3d 231, 233 (Mo. banc 2009). "[R]eversal is only warranted when the instructional error is so prejudicial that it deprived
Nash argues that failure to instruct the jury with the 1982 circumstantial evidence instruction resulted in an "ex post facto alter[ation of] the legal rules of evidence to permit [him] to be convicted on less, or different, evidence than the law required" in 1982. But the court's refusal to issue the circumstantial evidence instruction did not change the elements of the crime that the State was required to prove beyond a reasonable doubt to convict Nash. As discussed above, Nash cannot show he suffered an ex post facto-type violation where nothing altered what the State was required to prove for his conviction. And the trial court's refusal to give the circumstantial evidence instruction did not impact the fairness of Nash's trial, particularly because the jury instead was instructed with the reasonable doubt instruction, which Nash does not challenge.
Grim equated the circumstantial evidence instruction to the reasonable doubt instruction, calling it a "different rule stating the same standard." See 854 S.W.2d at 408. In rejecting the use of the circumstantial evidence instruction, Grim stated:
Id. (emphasis added).
Because the circumstantial evidence instruction and the reasonable doubt instruction instruct the jury on "different rule[s] stating the same standard," offering both instructions would have been "confusing and redundant." As such, Nash cannot show that it was reversible error for the trial court to refuse to offer the circumstantial evidence instruction along with the reasonable doubt instruction.
Nash also argues that the trial court erred in refusing to give the 1982 circumstantial evidence instruction because failure to use the instruction was contrary to the requirements of section 565.001.2, which provides that the law to be applied for a 1982 case is the law in effect in 1982. The language of this statute, however, does not mention jury instructions. There is no statutory requirement that the court offer 1982 jury instructions in Nash's case.
The court's goal in instructing the jury is to provide it accurate instructions as to the burden of proof. See Drury v. Mo. Pac. R. Co., 905 S.W.2d 138, 146 (Mo. App.1995) ("The primary goal in instructing a jury is to translate complicated legal concepts into simple, clear and accurate laymen's language so that the jury may understand the factual issues of a claim or defense and act properly in deciding the case."). In Nash's case, because the instructions used accurately instructed the jury as to the State's burden, Nash cannot show that reversal is warranted based on the court's refusal to provide the jury the 1982 circumstantial evidence instruction.
Nash also asserts that the trial court erred in sustaining the State's motion
State v. Rousan, 961 S.W.2d 831, 848 (Mo. banc 1998) (internal citations and quotations omitted).
Nash argues that his constitutional rights to present his defense were violated by the exclusion of his evidence that a third person killed Judy. He maintains that the "direct connection rule" for evidence of third-person guilt unconstitutionally requires the defendant to show evidence of the third person's guilt that meets a higher standard than the beyond-a-reasonable-doubt standard required for convictions.
Although there is "broad latitude under the Constitution to establish rules excluding evidence from criminal trials[,]" that latitude is limited by the defendant's constitutional rights to "a meaningful opportunity to present a complete defense," which are rights rooted in the 14th Amendment due process clause and the 6th Amendment compulsory process and confrontation provisions. Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (internal quotations omitted). The defendant's right to present evidence in his defense cannot be impeded by rules that "infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve." Id. (internal quotations omitted).
Nash notes that in Holmes, the United States Supreme Court invalidated a South Carolina evidentiary rule that had been invoked to exclude third-person guilt evidence offered by the defendant. Id. at 330-31, 126 S.Ct. 1727. The invalidated rule at issue in Holmes, however, differed from Missouri's "direct connection rule" that Nash challenges. Holmes struck down an evidentiary rule that "held that where there is strong evidence of an appellant's guilt, especially where there is strong forensic evidence, the proffered evidence about a third party's alleged guilt does not raise a reasonable inference as to the appellant's own innocence." Id. at 324, 126 S.Ct. 1727 (internal quotations omitted). Holmes noted previous cases where evidentiary rules limiting the defense had been found unconstitutional,
Holmes provides:
Id. at 326-27, 126 S.Ct. 1727 (internal references omitted).
In light of Holmes, Missouri's "direct connection rule" is constitutional because it prevents confusion of the issues and reduces the potential to mislead the jury. It is not arbitrary to exclude evidence that does not directly connect a third person to the charged crime.
Nash argues that the trial court wrongly refused to admit his evidence that a third party, Anthony Lambert Feldman, had motive and opportunity to kill Judy. Nash's offer of proof highlighted that the evidence about Feldman included that Feldman's fingerprints were found on Judy's car, but Nash's and Judy's fingerprints
The trial court's decision to exclude Nash's evidence as to Feldman is a ruling that this Court reviews to determine if the trial court abused its discretion. See State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). The trial court has broad discretion in evidentiary rulings, and an abuse of discretion will not be found unless the ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration. Id. Evidentiary errors require reversal if they are prejudicial to the defendant because they deprived him of a fair trial. Id. at 223-24. An error is not prejudicial if there is no reasonable probability that it affected the outcome of the trial. Id. at 224.
As discussed above, the "direct connection rule" required that the Feldman evidence directly connect him to the corpus delicti of Judy's murder. See Rousan, 961 S.W.2d at 848. The rule also rejects evidence relating to a "disconnected or remote act" outside of Judy's murder. See id. Considering Nash's evidence as to Feldman in light of Missouri's "direct connection rule," the trial court's conclusion that Nash's evidence did not meet the requirements of the rule was not a decision that was clearly against the logic of the circumstances and so unreasonable as to indicate a lack of careful consideration. As such, the trial court did not abuse its discretion in refusing to admit the Feldman evidence.
For the foregoing reasons, the judgment is affirmed.
All concur.
547 U.S. at 327, 126 S.Ct. 1727.