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Nunley v. State

Court of Appeals of Missouri, Eastern District, Third Division

May 29, 2018

TRAVIS NUNLEY, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of the City of St. Louis Case No. 1422-CC09116 Honorable Thomas J. Frawley

          Gary M. Gaertner, Jr., Presiding Judge

         Introduction

         Travis Nunley (Movant) appeals from the motion court's judgment denying his motion under Rule 29.15[1] for post-conviction relief after an evidentiary hearing. We affirm.

         Factual and Procedural Background

         A jury convicted Movant of one count of second-degree felony murder, one count of first-degree robbery, and two associated counts of armed criminal action. This Court adopts our previous summary of the facts from the direct appeal, as follows. In the evening of January 14, 2012, Movant, together with Willis Smith-Nunley (Smith-Nunley), his brother and co-defendant at trial, and Wanekii Weems (Weems), a co-conspirator, went to 4317 Swan, in St. Louis, Missouri, with the purpose of either buying heroin at a discounted price or robbing the dealer, Jerry Massey. Movant was armed with a handgun and Smith-Nunley had a sawed-off shotgun. Movant and Weems went inside the house to buy discounted heroin, without success. Weems left to get Movant's car, a Monte Carlo, while Smith-Nunley approached the house, firing a shot at the front door. Inside the house, Movant drew his weapon and started shooting. Smith-Nunley and Movant shot and injured at least two people in the house, including Courtney Couch (Couch) and Jerald Massey (Victim), who died of a shotgun wound to his abdomen. Smith-Nunley robbed Rafael Ailred (Alfred) of fifty codeine pills.

         At trial, several witnesses testified. Weems testified as to how Movant and Smith-Nunley planned the robbery and how the robbery occurred. Devin Jackson (Jackson) testified that Movant had hired him to babysit some of the group's children on that evening and had driven him to Weems' house in the Monte Carlo. Jackson identified the guns Movant and Smith-Nunley were carrying. Couch and Ailred testified as to the robbery and identified Movant and Smith-Nunley as the shooters.

         After the jury's convictions, the trial court sentenced Movant as a prior and persistent offender to consecutive terms of life in prison on the felony murder and robbery charges and to two consecutive terms of twenty-two years on each ACA charge. This Court affirmed Movant's convictions and sentences on appeal. State v. Nunley, 476 S.W.3d 321 (Mo. App. E.D. 2015).

         Movant filed a Rule 29.15 motion, which was later amended by counsel.[2] In his amended motion, Movant asserted that his trial counsel was ineffective for: (1) acting under an actual conflict of interest, in that the husband and wife law firm of Jolene Taaffe and Robert Taaffe represented both Movant and Smith-Nunley, his co-defendant and brother; and (2) failing to call alibi witnesses at trial. For the first issue, Movant asserted both lawyers acted interchangeably for both defendants, even though Smith-Nunley was charged with first-degree murder as the shooter, while Movant was charged with second-degree felony murder. Neither counsel advised either brother of the advantages of testifying against the other, even though the State had offered either[3] Movant or Smith-Nunley a deal of twenty-five years in exchange for his testimony against the other.

         At an evidentiary hearing on the motion, Robert Taaffe testified to the following. He represented Movant throughout his trial, and initially, he had represented both Movant and Smith-Nunley. Before his initial representation of both brothers, he spoke with both and confirmed that the brothers had consistent defenses and that Smith-Nunley did not plan to testify against Movant or visa versa. When he reviewed the facts of the case, he did not see any evidence that was not admissible against both defendants. However, as it became apparent that the evidence against Movant was much worse than against Smith-Nunley, Robert Taaffe decided it would be better to have two attorneys present for the brothers, and he asked his wife, who worked at the same law firm and was familiar with the case, to step in to represent Smith-Nunley.

         Robert Taaffe agreed he did not conduct legal research into waivable versus non-waivable conflicts, but he testified that he did not have any personal interests that were adverse to Movant's defense and that he did not act in any way that was detrimental to Movant and advantageous to Smith-Nunley. Robert Taaffe stated that if the brothers' defenses had been inconsistent, he would not have represented both. Moreover, he stated they executed a written waiver of the conflict at trial, after jury selection but before taking evidence.

         As well, Jolene Taaffe testified that she was primary counsel for Smith-Nunley. She began to represent Smith-Nunley a couple weeks before trial. Prior to her representation, her husband Robert Taaffe represented both Movant and Smith-Nunley, and in her capacity as an associate in the firm, she had discussed the case with her husband and seen the legal file. The evidence against Smith-Nunley was much weaker than against Movant, and, as such, she had discussed with Smith-Nunley testifying against his brother, but Smith-Nunley would not consider it. The theory of defense for both cases was that Movant and Smith-Nunley were not guilty and that the witnesses were not credible. Having them present a unified front, both claiming to be innocent, was helpful to their joint theory of defense. Upon examination by the motion court, Jolene Taaffe testified that Movant and Smith-Nunley both stated they had no problem with or objection to their representation by Jolene Taaffe and Robert Taaffe.

         Movant did not testify. Smith-Nunley testified that he was aware the State was offering him a deal for twenty-five years, but he was not aware that the deal would require him to testify against his brother. Smith-Nunley stated he would never have testified against his brother.

         Regarding Movant's alibi, Danielle Jones (Jones) testified that she was dating Smith-Nunley at the time of the murder and robbery, and that on the evening of January 14, 2012 Movant, ...


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