Dennis Skillicorn, Allen Nicklasson, and Tim DeGraffenreid headed east
from Kansas City to obtain illegal drugs. During their return trip their
car broke down. They eventually burglarized a nearby home of Merlin
Smith, stealing guns and money. They paid for a tow, but the garage was
unable to repair the car. The drove back anyway and the car stalled
Richard Drummond stopped and offered
to drive the group to use a phone. They responded by kidnapping him at
gunpoint, and later leading him into the woods off I-70 where Nicklasson
shot him twice with a .22 caliber pistol. Drummond’s remains were found
eight days later. Skillicorn and Nicklasson fled to Arizona, where their
car got stuck in sand.
Another good Samaritan, Joseph Babcock,
47, tried to help. Nicklasson murdered him and his wife, Charlene, 38.
Nicklasson and Skillicorn were convicted of first-degree murder.
Skillicorn was executed by lethal injection in Missouri on May 20,
2009. DeGraffenreid, who was 17 when the crime took place, served time
for second-degree murder.
State of Missouri v. Allen L. Nicklasson
967 S.W. 2d 596 (Mo.Banc)
In late August 1994, Dennis Skillicorn, Allen Nicklasson, and Tim
DeGraffenreid headed east from Kansas City to obtain illegal drugs.
On August 23, 1994,
during their return trip to Kansas City, the 1983 Chevrolet Caprice in
which they were traveling broke down twenty-two miles east of the
Kingdom City exit on I-70. An offer of assistance by a state trooper was
The next day they
traveled 17 miles to the JJ overpass. They burglarized the nearby home
of Merlin Smith, stole some guns and money, and used the stolen money to
pay for a tow to Kingdom City. A garage in Kingdom City was unable to
repair the extensive mechanical problems.
They drove back toward
the site of the robbery and the car stalled again. Between 4 and 5 p.m.,
Richard Drummond, a technical support supervisor for AT & T saw the
stranded motorists and offered to take them to use a phone. He was
driving a white company car.
Nicklasson were both armed. They loaded the booty from the Smith
burglary into the trunk of Drummond’s car. While Nicklasson held a gun
to Drummond’s head, Skillicorn asked Drummond questions in order to calm
him down, including whether Drummond’s "old lady" was going to miss him.
As Drummond drove east,
Skillicorn "got to thinking...if we let this guy off, he’s got this car
phone." So they disabled the car phone. Skillicorn stated that he later
determined they would have to "lose" Drummond in the woods.
At some point during
this time, Nicklasson and Skillicorn discussed what they should do with
Drummond. Skillicorn, in his sworn statement, claimed that Nicklasson
said "he was going to, you know, do something to this guy. I tell him -you
know, now, we’re trying to talk on the pretenses that-that, uh, this guy
in the front seat don’t hear us too. Right? Right. ‘Cause, uh, I didn’t
want him panicking."
They directed Drummond
to exit I-70 at the Highway T exit. They proceeded four miles on to
County Road 202 to a secluded area where they ordered Drummond to stop
As Nicklasson prepared
to take Drummond through a field toward a wooded area, Skillicorn
demanded Drummond’s wallet. Knowing Nicklasson had no rope or other
means by which to restrain Drummond and that Nicklasson carried a loaded
.22 caliber pistol, Skillicorn watched as Nicklasson lead Drummond
toward a wooded area.
There, Nicklasson shot
Drummond twice in the head. Skillicorn acknowledged hearing two shots
from the woods and that Nicklasson returned having "already done what he
had to do." Drummond’s remains were found eight days later.
Reporter's Notebook: Statement of
By Nadia Pflaum
Wednesday, May. 13 2009
Allen Nicklasson, the other half of
the Good Samaritan Killers, was troubled from an early age. Dennis
Skillicorn's lawyer, Jenny Merrigan, describes him as "fascinating," and
"truly mentally ill."
Merrigan told me that at age four, he stabbed a man
he saw raping his mother, who worked as a prostitute and kept Nicklasson
in a closet while meeting johns. At age nine, he attacked his stepfather,
who pressed charges. Nicklasson moved from juvenile incarceration to
regular prison, and at his last parole hearing, he begged the board not
to let him out. The prison shrink seconded this, but he was granted
parole anyway, and it was soon after that he met Skillicorn at the
Salvation Army in Kansas City.
Nicklasson can't function in society, he told
Merrigan when he met with her at Potosi. She asked him to write a
statement to be included in Skillicorn's clemency petition. Nicklasson's
491 F.3d 830
L. Nicklasson, Appellant,
Don Roper, Warden, Potosi Correctional Center, Appellee
United States Court of Appeals, Eighth Circuit.
Submitted: January 10, 2007
Filed: June 21, 2007
Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.
WOLLMAN, Circuit Judge.
was found guilty by a jury in a Missouri state court of first-degree
murder and was sentenced to death. He appeals from the district court's1
judgment denying his petition for a writ of habeas corpus. We affirm.
For a complete
recitation of the facts giving rise to this case, see State v.
Nicklasson, 967 S.W.2d 596 (Mo.1998). The
facts relevant to this appeal are as follows. On August 23, 1994,
Dennis Skillicorn, and Tim DeGaffenreid decided to return to Kansas City
after a trip east to obtain drugs. Their vehicle broke down a number of
times along I-70. After one such breakdown, they burglarized a home and
stole four guns, ammunition, a skinning knife, money, a pillow case,
some change, and a cracker box. They stashed the stolen property in the
bushes, called a tow truck, and used the change-filled cracker box to
pay a mechanic to restart the car. Once the car was restarted, they
returned to recover the stolen property, at which point the car broke
down once again.
Richard Drummond saw the three stranded men and offered to take them
to a telephone. Accepting the offer, they transferred the stolen
property from their car to the trunk of Drummond's vehicle, keeping a
.22 caliber handgun and a shot-gun with them when they entered
Drummond's vehicle. Nicklasson then sat behind
Drummond, pressed the pistol against the back of Drummond's head, and
said, "[y]ou're going to take us to where we want to go." As they
proceeded towards Kansas City, the three decided to kill Drummond and
they had him drive to a secluded area off a county road. After ordering
Drummond to stop and exit the car, Nicklasson
walked him into the woods, ordered him to kneel, told him to say his
prayers, and shot him in the head twice. Drummond's body was found eight
days later. Nicklasson and Skillicorn were
later arrested while hitchhiking in California.2
imposition of his sentence, Nicklasson appealed
his conviction to the Supreme Court of Missouri, arguing, inter alia,
that the trial court had erred by (1) conducting a confusing and
inadequate death qualification voir dire without defense participation,
(2) prohibiting the defense from conducting follow-up voir dire after
asking the jury about their ability to follow Missouri's diminished
capacity instruction, (3) barring any voir dire of jurors concerning
their potential reaction to the introduction of evidence of
Nicklasson's involvement in two other Good
Samaritan murders, and (4) finding that the prosecution did not commit a
racially-motivated Batson violation for striking two black jurors.
A divided court held that the voir dire was constitutionally sufficient
and found no error in the trial court's determination that the jury
strikes were for legitimate reasons. Nicklasson,
967 S.W.2d at 609-14. Nicklasson's motion for
post-conviction relief was also denied. Nicklasson
v. State, 105 S.W.3d 482 (Mo. 2003). He then petitioned for a writ
of habeas corpus in federal district court. Following the district
court's denial of the petition, we granted a certificate of
appealability on the above-mentioned issues.
Pursuant to the
Antiterrorism and Effective Death Penalty Act (AEDPA), we may not grant
a writ of habeas corpus with respect to any issue decided by the
Missouri state courts unless the decision "was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court" or "was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding." 28 U.S.C. § 2254(d). AEDPA limits the scope of
federal review "in order to effect the intent of Congress to expedite
habeas proceedings with appropriate deference to state court
determinations." Whitmore v. Kemna, 213 F.3d 431, 433 (8th
Cir.2000) (citing Williams v. Taylor, 529 U.S. 362, 402-03, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000)). AEDPA "places a new constraint on
the power of a federal habeas court to grant a state prisoner's
application for a writ of habeas corpus with respect to claims
adjudicated on the merits in state court." Williams, 529 U.S. at
412, 120 S.Ct. 1495.
A state court decision
is "contrary to" clearly established federal law if it reaches a
conclusion opposite to one reached by the Supreme Court on a question of
law or decides the case differently than the Supreme Court has decided a
case with a materially indistinguishable set of facts. Id. at
405, 120 S.Ct. 1495. A state court decision involves an "unreasonable
application" of clearly established federal law if, in the federal
court's independent judgment "the relevant state-court decision [not
only] applied clearly established federal law erroneously or incorrectly[,
but also did so] . . . unreasonabl[y]." Id. at 410-11, 120 S.Ct.
1495. AEDPA requires federal courts to presume that state court factual
findings are correct, and it places the burden on
Nicklasson to rebut that presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
At the beginning of
voir dire, the trial court made introductory remarks. It recounted,
inter alia, a jury instruction concerning the elements of first-degree
murder; it described the general decision-making process necessary to
determine whether, if guilty, Nicklasson would
receive a death or life imprisonment sentence; it discussed the role of
mitigating and aggravating circumstances in the process; and it
concluded by explaining the state's burden of proof.
introduction, the trial court asked potential jurors whether they could
both follow the court's instructions and (1) decide if the defendant was
guilty or not guilty of murder in the first degree or of a lesser degree
of homicide, (2) consider evidence of aggravating circumstances, (3)
consider evidence of mitigating circumstances, (4) decide if the
mitigating circumstances outweigh the aggravating circumstances, (5)
unanimously decide with the other jurors that the aggravating
circumstances outweigh the mitigating circumstances, (6) consider the
imposition of the death penalty, and (7) consider the imposition of life
without probation or parole.
With respect to death
qualification, the court asked three additional questions of the venire
panel: (1) whether they would automatically vote for the death penalty,
(2) whether they would automatically vote for life without probation or
parole, and (3) whether they would be able to follow the court's
instructions and consider both the imposition of the death penalty or
the imposition of life without probation or parole.
responded that they would both automatically impose the death penalty
and would automatically impose life imprisonment if they convicted the
defendant of first-degree murder. Despite this contradiction, the court
refused to ask additional death qualification questions or allow counsel
to do so.
A. The Sufficiency
of the Death Penalty Voir Dire
Nicklasson's case is not materially indistinguishable from any
decided by the Supreme Court. Nicklasson
therefore argues that the issues presented represent an unreasonable
application of clearly established federal law set forth in Morgan v.
Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992),
Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68
L.Ed.2d 22 (1981) (plurality opinion), and Wainwright v. Witt,
469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
Nicklasson, 967 S.W.2d at 610.
i. The Clearly
Established Federal Law
The Supreme Court has
indicated that the Constitution demands that the defendant be afforded
an impartial jury. Morgan, 504 U.S. at 729-30, 112 S.Ct. 2222. "[P]art
of the guarantee of a defendant's right to an impartial jury is an
adequate voir dire to identify unqualified jurors." Morgan, 504
U.S. at 729, 112 S.Ct. 2222 (citing Dennis v. United States, 339
U.S. 162, 171-72, 70 S.Ct. 519, 94 L.Ed. 734 (1950)). Without an
adequate voir dire, a trial judge's responsibility to "remove
prospective jurors who will not be able impartially to follow the
court's instructions and evaluate the evidence cannot be fulfilled . . .
[and] the defendant's right to exercise peremptory challenges where
provided by statute or rule [is impaired]...." Rosales-Lopez, 451
U.S. at 188, 101 S.Ct. 1629 (citations omitted).
The conduct of voir
dire is generally left to the trial court's sound discretion, Morgan,
504 U.S. at 729, 112 S.Ct. 2222. Indeed, "the trial judge retains
discretion as to the form and number of questions on the subject. . . ."
Turner v. Murray, 476 U.S. 28, 37, 106 S.Ct. 1683, 90 L.Ed.2d 27
(1986) (plurality opinion) (citing Ham v. South Carolina, 409 U.S.
524, 527, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973)). Whether a trial court is
constitutionally compelled to ask certain questions or has unduly
restricted questioning by counsel is dictated by the essential demands
of fairness. Morgan, 504 U.S. at 730, 112 S.Ct. 2222 (citing
Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed.
1054 (1931)). Indeed, "[t]o be constitutionally compelled . . . it is
not enough that such questions might be helpful. Rather, the trial
court's failure to ask these questions must render the defendant's trial
fundamentally unfair." Id. at 730 n. 5, 112 S.Ct. 2222 (second
alteration in original) (quoting Mu'Min v. Virginia, 500 U.S.
415, 425-26, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991)).
For this reason, "we have not hesitated, particularly in capital
cases, to find that certain inquiries must be made to effectuate
Morgan, 504 U.S. at 730, 112 S.Ct. 2222. To otherwise allow a
death qualification voir dire in the absence of such inquiries leads to
doubt as to whether the "petitioner was sentenced to death by a jury
empaneled in compliance with the Fourteenth Amendment. . . ." Morgan,
504 U.S. at 739, 112 S.Ct. 2222 (citing Turner, 476 U.S. at
36-37, 106 S.Ct. 1683). The Supreme Court has, therefore, mandated
questions that probe into whether potential jurors maintain views that
"`prevent or substantially impair the performance of [their] duties as .
. . juror[s] in accordance with [their] instructions and . . . oath.'"
Witt, 469 U.S. at 433, 105 S.Ct. 844 (quoting Adams v. Texas,
448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). In particular,
the state must be allowed inquiries probing the extent to which
potential jurors' opposition to the death penalty impacts their
impartiality. Lockhart v. McCree, 476 U.S. 162, 170 n. 7, 106
S.Ct. 1758, 90 L.Ed.2d 137 (1986); see also Witt, 469 U.S. at 424
n. 5, 105 S.Ct. 844. Conversely, the defendant must be allowed inquiries
into whether potential jurors so strongly favor the death penalty that
it affects their ability to follow the dictates of the law. Morgan,
504 U.S. at 735, 112 S.Ct. 2222 (citing Turner, 476 U.S. at
34-35, 106 S.Ct. 1683); see also Witherspoon v. Illinois, 391 U.S.
510, 521, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (requiring questions
meant to assure the defendant that the jury is not "organized to return
a verdict of death").
Reasonableness of Missouri's Application of Clearly Established Federal
The Missouri Supreme
Court acknowledged that the Supreme Court mandated the Witherspoon
and Witt death qualification voir dire questions and noted that such
questions had been asked. Nicklasson,
967 S.W.2d at 611. It further recognized that
[t]he test of the
adequacy of voir dire is whether the process permits the parties to
discover bias, prejudice or some other form of impartiality on the
part of potential jurors. The trial court abuses its discretion and
reversal is required only if the voir dire permitted does not allow
the discovery of bias, prejudice or impartiality in potential jurors.
Id. at 609. We
take no issue with this enunciation of the federal principle. In
applying the principle, however, the Missouri Supreme Court effectively
concluded that because Nicklasson's voir dire
included questions that were mandated by the Supreme Court and deemed
relevant to the discovery of impermissible juror bias, the trial court's
questioning was constitutionally sufficient per se. Id. at 611.
By failing to recognize the need for additional death qualification
voir dire questioning in the face of contradictory responses by sixteen
potential jurors, the Missouri Supreme Court may have overlooked
essential demands of fairness, thereby misapplying clearly established
federal law. Were we reviewing this case on direct appeal, we might have
come to a different conclusion.4
As previously stated, however, "even if the federal habeas court
concludes that the state court decision applied clearly established
federal law incorrectly, relief is appropriate only if that application
is also objectively unreasonable." Penry v. Johnson, 532 U.S.
782, 793, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).
We are unable to say
that the Missouri Supreme Court's application of clearly established
federal law, even if erroneous, is objectively unreasonable for the
First, the Supreme
Court observed in Yarborough v. Alvarado, 541 U.S. 652, 124 S.Ct.
2140, 158 L.Ed.2d 938 (2004), that the more general the rule of decision,
the more leeway courts have under the "unreasonable application" prong
of § 2254(d)(1) to reach outcomes in case-by-case determinations. Id.
at 664, 124 S.Ct. 2140. Because determinations of whether specific voir
dire questions are mandated hinge on the "essential demands of fairness,"
Morgan, 504 U.S. at 730, 112 S.Ct. 2222, itself an indeterminate
rule of decision, we extend to the Missouri courts a wide range of
latitude in determining where to draw the relevant lines associated with
Second, the Missouri Supreme Court repeatedly justified its position
by citing deference to the trial court's judgment because the trial
court observed the jurors directly. See Nicklasson,
967 S.W.2d at 612. This is not an unreasonable position in light of
Supreme Court precedent regarding the detection of juror bias. See
Uttecht v. Brown, ___ U.S. ___, 127 S.Ct. 2218, 2224, 167 L.Ed.2d
1014 (2007). Reflective of the need for, and appropriate extent of
deference, the Supreme Court has notably held that "when there is
ambiguity in the prospective juror's statements, `the trial court, aided
as it undoubtedly [is] by its assessment of [the venireman's] demeanor,
[is] entitled to resolve it in favor of [a party].'" Brown, 127
S.Ct. at 2223 (last alteration added) (quoting Witt, 469 U.S. at
434, 105 S.Ct. 844).5
This is because the deeply rooted nature of juror bias often precludes
discovering it through general fairness and "follow the law" type
questions. Morgan, 504 U.S. at 734-36, 112 S.Ct. 2222; Witt,
469 U.S. at 424, 105 S.Ct. 844 ("determinations of juror bias cannot be
reduced to question-and-answer sessions which obtain results in the
manner of a catechism"). The Supreme Court has acknowledged that voir
dire transcripts reviewed on appeal may not reveal subtle indications of
bias otherwise detectable, even on a subconscious level, by the trial
[M]any veniremen simply
cannot be asked enough questions to reach the point where their bias has
been made "unmistakably clear"; these veniremen may not know how they
will react when faced with imposing the death sentence, or may be unable
to articulate, or may wish to hide their true feelings. Despite this
lack of clarity in the printed record, however, there will be situations
where the trial judge is left with the definite impression that a
prospective juror would be unable to faithfully and impartially apply
the law. . . . [T]his is why deference must be paid to the trial judge
who sees and hears the juror.
Witt, 469 U.S. at 424-26, 105 S.Ct. 844; see also Ristaino
v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976);
Brown, 127 S.Ct. at 2224 (2007) ("Deference to the trial court is
appropriate because it is in a position to assess the demeanor of the
venire, and of the individuals who compose it, a factor of critical
importance in assessing the attitude and qualifications of potential
jurors."). Accordingly, the Missouri Supreme Court acted reasonably and
consistently with respect to Supreme Court doctrine by deferring to the
judgment of the trial court judge that no further death qualification
questioning was necessary.6
Third, the Missouri Supreme Court's extension of deference conformed
to a principled and reasonable analytical framework. Though its decision
accords a broad degree of deference to the trial judge's judgment, the
court accorded that deference only after satisfying itself that the
mandatory Witherspoon and Witt questions had been asked.7
In fact, Nicklasson does not dispute that the
judge asked questions specifically aimed at exposing death penalty bias.
By recognizing the need that these questions be asked, the Missouri
Supreme Court guaranteed that at least some information could be
elicited from every potential juror—through verbal and nonverbal
responses—from which the trial judge could form impressions.8
Furthermore, as indicated above, outside of constitutionally mandated
question topics, "the trial judge retains discretion as to the form and
number of questions on the subject. . . ." Turner, 476 U.S. at
37, 106 S.Ct. 1683.
Fourth, the Missouri Supreme Court supported its position by noting
that the Supreme Court has held that "removal for cause of `Witherspoon-excludables'
serves the State's entirely proper interest in obtaining a single jury
that could impartially decide all of the issues in . . . [the] case."
McCree, 476 U.S. at 180, 106 S.Ct. 1758. Although the citation to
McCree may have been taken out of context and read in an unintended
we cannot say that the Missouri Supreme Court's interpretation of the
quotation was unreasonably strained. The quotation could indeed be read
to support the contention that sufficient information may be gleaned
from answers to a Witherspoon-type question to warrant excluding
biased jurors. We have not been made aware of any Supreme Court case
holding that a trial judge in a case such as this may not rely on proven
questions but must ask follow-up questions.10
Accordingly, even had
the Missouri courts misapplied clearly established federal law
pertaining to death penalty qualification voir dire, we are unable to
grant habeas relief because Nicklasson has not
shown that the misapplication was objectively unreasonable. The Missouri
Supreme Court reasonably concluded that the questions asked were
sufficiently specific to adequately probe the possibility of prejudice
by the trial judge in whom much discretion is vested.
B. The Jury
Instructions Given to Venire Panels
Nicklasson asserts that the trial court, in
its instructions preceding voir dire questioning, erred by omitting the
"knowledge" element of first-degree murder, by offering a very general
definition of "mitigating circumstances," by later asking jurors if they
could follow the law after telling the jurors that the law they must
follow would be described in full in final jury instructions, and by
erroneously describing evidence in mitigation of punishment as evidence
that would make "this homicide . . . not as serious as other homicides
or that [would make] the character of the defendant . . . not as bad as
others who have committed murder in the First Degree. . . ." We need not
address these points, however, because the Missouri Supreme Court
concluded that these claims were procedurally barred.11
"[A] procedural default
does not bar consideration of a federal claim on either direct or habeas
review unless the last state court rendering a judgment in the case
clearly and expressly states that its judgment rests on a state
procedural bar." Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct.
1038, 103 L.Ed.2d 308 (1989) (quotation omitted). Here, the Missouri
Supreme Court clearly and expressly stated that these claims lacked
merit because Nicklasson offered "nothing for
the Court to review." Nicklasson, 967
S.W.2d at 608. That the Missouri Supreme Court also addressed the merits
in the alternative is of no relevance. Harris, 489 U.S. at 264 n.
10, 109 S.Ct. 1038 (noting that a state court may address the merits in
an alternative holding without fear of federal habeas review when the
state court explicitly invokes a state procedural bar as a separate
basis for decision). Accordingly, we review a federal habeas
petitioner's constitutional claims that were defaulted in state court
under the cause and prejudice standard. Murray v. Carrier, 477
U.S. 478, 485-86, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). As
Nicklasson does not now present any argument
relating to cause and prejudice, he is precluded from obtaining habeas
relief on these grounds.
Nicklasson was allowed to recite Missouri's diminished capacity
instruction and ask the venire panel whether they could follow it, but
he was not allowed to ask whether any jurors had preconceived notions
about mental health or psychology that amounted to a disqualifying bias
against the acceptance of related testimony.
Nicklasson contends that because a diminished capacity defense
necessarily requires reliance on such testimony, this restriction
violated his respective rights to due process, a fair trial by an
impartial jury, effective assistance of counsel, and freedom from cruel
and unusual punishment.
established federal law does in some instances require inquiries into
certain biases such as race, Ham, 409 U.S. at 527, 93 S.Ct. 848,
a bias against psychological testimony is not among them. Cf. Ross,
424 U.S. at 594-95, 96 S.Ct. 1017 (observing that "the State's
obligation to the defendant to impanel an impartial jury generally can
be satisfied by less than an inquiry into a specific prejudice feared by
the defendant"). Because the conduct of voir dire is generally left to
the trial court's sound discretion, Morgan, 504 U.S. at 729, 112
S.Ct. 2222, Nicklasson had no entitlement to
the questions. Furthermore, we see no reason to conclude that the
Missouri courts misapplied clearly established federal law and
disregarded essential demands of fairness, because
Nicklasson was allowed to (1) read to the venire the Missouri
Approved Instruction on diminished capacity, (2) answer any questions
potential jurors asked relating to the instruction, and (3) ask members
of the venire if they could follow the instruction. This voir dire
process produced no indication that any venireperson would be unable to
adequately consider the diminished capacity defense. The Missouri
Supreme Court's deference to the trial judge's conclusion that this
process produced no indication that any venireperson would be unable to
fully consider and follow the diminished capacity defense was reasonable
and is entitled to deference. 28 U.S.C. § 2254(d).
Nicklasson contends that the Missouri courts
violated clearly established federal law by barring defense counsel from
questioning the jury as to whether information pertaining to additional
homicides in Arizona would substantially impair their ability to follow
the law in the penalty phase. Nicklasson
reasons that in light of evidence supporting his involvement in
additional murders, some jurors might be incapable of fully considering
all of the mitigating sentencing factors and might be so blinded by
their biases that they could not consider life imprisonment.
This claim is lacking in merit because it mischaracterizes the trial
court record. Nowhere in the record does Nicklasson's
counsel request the questions Nicklasson now
claims were disallowed; nor have we been able to identify an instance in
which the trial judge had stated that he would not allow such questions
even were they desired.12
Instead, read in context, the cited portion of the transcript only
describes defense counsel's request of leave to ask potential jurors
whether, given the indirect evidence of additional murders likely to be
presented in the guilt phase of the trial, they would be able to put
aside that evidence when considering Nicklasson's
guilt for Drummond's murder.13
The trial judge disallowed questioning on that guilt-phase topic. The
Missouri Supreme Court found no abuse of discretion. As the requested
question was not crafted or intended to detect impermissible juror
sentencing bias, we cannot grant habeas relief on this basis.
Nicklasson argues that the prosecutor's
peremptory challenges of Katy Yokley and Karen McNeil, both African-Americans,
were racially motivated and violated Batson v. Kentucky, 476 U.S.
79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court found that
the prosecutor was not improperly motivated. The Missouri Supreme Court
violations are considered in a three-step process. First, the opponent
of a peremptory challenge must make a prima facie case of racial
discrimination. Second, the proponent of the strike must tender a race-neutral
explanation. Finally, the trial court must decide whether the opponent
of the strike has proved purposeful racial discrimination. Purkett v.
Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per
curiam) (citing Hernandez v. New York, 500 U.S. 352, 358-59, 111
S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)). In federal
habeas review, the factual findings of state courts—which include
findings relating to the genuineness of the prosecutor's peremptory
challenge motive—"are presumed to be correct, and may be set
aside, absent procedural error, . . . only if they are not fairly
supported by the record." Purkett, 514 U.S. at 769, 115 S.Ct.
1769 (quotation marks and citation omitted); see also 28 U.S.C. §
Nicklasson has failed to meet his burden, and the record supports
the trial court's finding of a race-neutral motivation.
Nicklasson contends that the prosecutor's
proffered reasons for striking two black panelists "applies just as well
to . . . otherwise-similar nonblack[s] who [are] permitted to serve."
Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d
196 (2005). The state argues that there were relevant differences
between the white and black potential jurors. In response,
Nicklasson points out that the differences are
minor and that to impose a per se rule requiring identically situated
prospective jurors as a prerequisite to a finding of a Batson
violation would leave Batson inoperable. Id. at 247 n. 6,
125 S.Ct. 2317. Nevertheless, although Miller-El does bar such a
per se rule, it also provides that the credibility of the reasons given
by the prosecution may be measured by "`how reasonable, or how
improbable, the explanations are; and by whether the proffered rationale
has some basis in accepted trial strategy.'" Id. at 247, 125 S.Ct.
2317 (quoting Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003)). This approach accounts for the nature and
extent of the differences.
Yokley was purportedly
excused because, in response to a death qualification voir dire question
asking whether she would automatically impose a life sentence if the
defendant was convicted of first-degree murder, she responded "probably."
A Caucasian venireperson, Janice Floyd, responded to the same question
with "I believe so" and was not excused. Although Floyd provided a
similar response to the death qualification voir dire question, the
particular responses were central to the prosecution's determination of
whether, and to what extent, prospective jurors might be committed to
imposing life imprisonment over the death penalty. We agree with the
Missouri Supreme Court's observation that "[t]he state is entitled to
make judgments about the strength of a particular venireperson's
commitment to the life-without-parole option, vis-a-vis, that of another
venireperson whose words do not convey the same conviction."
Nicklasson, 967 S.W.2d at 613-14. It is an
entirely reasonable trial strategy for a prosecutor to excuse a juror
whose responses suggest that they may be more committed to the
imposition of life in prison than others.
It is reasonable to
contend that a potential juror answering "probably" would be more
committed to a position than one answering "I believe so." "Probably"
presents a predictive assessment cloaked in the objective garb of
statistical language, whereas "I believe so" reflects a naked,
subjective impression. Generally, objective or quantifiable evidence is
more persuasive and comprehensible than subjective or qualitative
evidence. The responses differ in their emphasis. This is a subtle
distinction perhaps, but it has a direct bearing on a legitimate,
reasonable, non-race-based trial strategy. Furthermore, as previously
discussed, the trial court judge restricted death-qualification voir
dire and asked those questions himself. In light of these restrictions,
even minor differences between each potential juror's response take on
added significance; such differences are all the parties have to inform
their peremptory challenge decisions.
Nicklasson's reliance on Miller-El
does not bolster his argument because the Supreme Court's finding of a
Batson violation did not hinge entirely on the closeness of the
excluded black juror's testimony to that of the white, but on the "totality
of the relevant facts" pertaining to the prosecutor's conduct during the
Miller-El, 545 U.S. at 239, 125 S.Ct. 2317.
Nicklasson does not offer similarly compelling "totality of the
record" evidence and instead relies entirely upon allegedly inconsistent
treatment of jurors who gave similar responses.15
Although the inconsistent application of a prosecutor's peremptory
challenge rationale between similarly situated white and black jurors
constitutes evidence of purposeful discrimination, see id. at
241, 125 S.Ct. 2317, there is not, nor should there be, a per se rule
stating that the presence of such evidence alone must always constitute
"clear and convincing" evidence sufficient to satisfy
Nicklasson's burden no matter its strength. Accordingly,
Nicklasson has failed to demonstrate that the
Missouri Supreme Court unreasonably applied clearly established federal
law when it concluded that Yokley's exclusion was not motivated by race.
The prosecution also
struck Karen McNeil, a child protection investigator for the Illinois
Division of Family Services, who is black. The prosecution claimed it
struck her to avoid her relating her work-related experiences in the
jury room. Nicklasson argues that the proffered
reason was pretextual because venireperson Stark, a white clinical nurse
specialist in child psychology, was not struck and might similarly share
stories of child abuse. The trial court was persuaded that there "are
quantum differences between the two jobs" and did not believe the strike
was racially motivated. The Missouri Supreme Court elaborated on these
differences, noting that family services investigators deal with "physical
and familial aspects of a child's life and attempts to stop or prevent
abuse" while a clinical nurse specialist in child psychology "attempts
rehabilitation of the mind and spirit after abuse has occurred."
Nicklasson, 967 S.W.2d at 614. These
findings are entitled to deference under §§ 2254(d) and (e), and we
agree with the Missouri courts that the experiences associated with the
two jobs are sufficiently different as to justify the prosecutor's use
of a peremptory challenge on McNeil but not on Stark. See United
States v. Pherigo, 327 F.3d 690, 696 (8th Cir.2003) (noting that
employment is a valid race-neutral reason for exercising a peremptory
challenge); United States v. Johnson, 905 F.2d 222, 222 (8th
The judgment is
The Honorable Gary A. Fenner, United States District
Judge for the Western District of Missouri
For an account of Skillicorn's prosecution for this
crime,see Skillicorn v. Luebbers, 475 F.3d 965 (8th Cir.2007).
The party wishing to exclude a juror must "demonstrate,
through questioning, that the potential juror lacks impartiality."Witt,
469 U.S. at 423, 105 S.Ct. 844.
We have noted that a trial judge's discretion in
conducting voir dire is "not without limits."Harold v. Corwin,
846 F.2d 1148, 1150 (8th Cir.1988). Further, we observed that
[t]he court, in the realization that
the purpose of the voir dire is to afford the parties a trial by
a qualified, unbiased, and impartial jury, should at all times be on
guard in its questioning in order to assist counsel in the exercise of
his or her preemptory [sic] challenges and challenges for cause to
eliminate those persons with an interest or bias.
Id. at 1150; see also United
States v. Spaar, 748 F.2d 1249, 1253 (8th Cir.1984) ("the central
inquiry is whether the judge's overall examination, coupled with his
charge to the jury, adequately protects the defendant from prejudice").
Particularly relevant to our analysis is the Supreme
Court's reminder that, when reviewing habeas petitions raising claims ofWitherspoon-Witt
error, we "owe deference to the trial court, which is in a superior
position to determine the demeanor and qualifications of a potential
juror." Uttecht v. Brown, ___ U.S. ___, 127 S.Ct. 2218, 2231, 167
L.Ed.2d 1014 (2007).
We note that despite the arguably erroneous
statements made in introductory remarks preceding the death
qualification questions, nothing about the death qualification questions
themselves appears confusing or unusual. Accordingly, the trial judge's
observations may well have led him to interpret the conflicting
responses to be, in context, indicative of moral uncertainty and not of
Nicklasson contends that the
questions suffered from infirmities because they consisted of "follow
the law" questions and outmoded "automatic" penalty questions. Contrary
to Nicklasson's contention, the trial court did
not rely exclusively on "follow the law" questions. The questions
relating to the automatic sentencing of life and death did not mention
adherence to the law at all. Additionally, although the Supreme Court
has dispensed with references to "automatic" decision making for
purposes of articulating the standard against which potential jurors are
to be considered for cause-based exclusion,Witt, 469 U.S. at
424-26, 105 S.Ct. 844 (replacing the prior standard), it is not
impermissible to phrase the question itself in "automatic" sentencing
terms. See Morgan, 504 U.S. at 729, 112 S.Ct. 2222 (noting that a
juror who would automatically impose the death penalty would fail to
qualify as impartial even under the new standard).
For this reason, we find Nicklasson's
citation ofTurner v. Murray, 476 U.S. 28, 32, 106 S.Ct. 1683, 90
L.Ed.2d 27 (1986), of limited relevance. In Turner, the Supreme
Court reversed a ruling that a defendant was not entitled to have
potential jurors questioned on issues of racial prejudice. Id. at
33, 106 S.Ct. 1683. The issue before us here, however, is not whether
Nicklasson was entitled to have jurors asked
their views on the death penalty, but whether the questions asked on the
subject were constitutionally sufficient in light of an arguable showing
of juror confusion.
The Supreme Court was addressing whether exclusions
for death qualification reasons generate imbalanced juries, not voir
dire adequacyLockhart v. McCree, 476 U.S. 162, 166-68, 106 S.Ct.
1758, 90 L.Ed.2d 137 (1986).
Nicklasson seems to suggest
that because determinations of "juror bias cannot be reduced to question-and-answer
sessions which obtain results in the manner of a catechism,"Witt,
469 U.S. at 424, 105 S.Ct. 844, the Supreme Court demands some amount of
responsive exchange between the questioner and the venire panel.
Contrary to this contention, the quotation when read in its full context
was meant to convey the Supreme Court's opinion that the stated
responses to questioning, taken alone, will not always expose all
impermissible bias. Id. at 424-26, 105 S.Ct. 844; Brown,
127 S.Ct. at 2222.
[These] claims are without merit. First, the [trial
court's comments] refute most of [Nicklasson's]
assertions of error based on omissionSecond,
Nicklasson's brief fails to favor the Court with legal argument
or authority tying his generalized assertions of error to specific
prejudice. Absent such argument, there is nothing for the Court to
review . . . . Finally, assuming arguendo, that the trial
court misspoke in some way during its introductory presentation to the
venire, the jury received proper instructions during the guilt and
penalty phases of the trial correcting the trial court's earlier error
before deliberations began. . . . The points are denied.
967 S.W.2d at 608 (emphasis added).
In the pre-trial transcript, there is a mention by
Nicklasson's counsel of a previous off-the-record
chambers discussion between himself and the judge concerning the judge's
not wanting further questioning relating to punishment. This represents
the only reference to any prohibition against questions in the penalty
stage. A trial court's decision will not be found to be constitutionally
erroneous in the absence of a record that clearly reflects that decision
The defense began by saying that
[t]here will be evidence in this case
that two or more people were killed in Arizona. . . . This evidence
wouldn't be admitted in its entirety until the second half of the trial
if we get that far, but there will be indirect reference to these
Arizona murders throughout the first part of the trial. I need to ask
you a question about the effect of knowing that Mr.
Nicklasson will be responsible for two other deaths in Arizona. .
. . How many of you are concerned about your ability to put aside
evidence of two additional murders when in this first part of the trial
you are being asked only to return Allen's
mental state at the time of the shooting?
Although not a model of clarity, the
wording of the question itself and the discussion between defense
counsel and the trial judge before and after the above-quoted language
leaves us with no doubt that the desired question pertained only to the
guilt phase of the trial.
The Court noted that the prosecutor excluded 91% of
eligible black venire panelists, mischaracterized a black venireperson's
testimony in such a way as to make that testimony appear objectionable
and different from that of a white venireperson when, in fact, the black
venireperson's responses should have made the individual an ideal jurist
for the prosecution, failed to ask follow-up voir dire questions to
clarify claimed distinctions of import, and exhibited a pattern and
practice of manipulating Texas voir dire panelist dismissal rules to
effectuate the automatic dismissal of black venirepersonsMiller-El,
545 U.S. at 240-66, 125 S.Ct. 2317.
Unlike the situation inMiller-El, the parties
here were not permitted to ask follow-up death qualification questions,
thereby increasing the significance of even minor differences in
responses. Additionally, the state's proffered rationale as applied to
the potential juror's testimony in Miller-El was clearly a
mischaracterization, Miller-El, 545 U.S. at 244, 125 S.Ct. 2317,
but not so here. The prosecution in Miller-El struck an otherwise
ideal juror for the prosecution, id. at 247, 125 S.Ct. 2317; here,
the prosecution struck a juror whose statements, no matter how
characterized, would be considered strategically unfavorable to a
prosecutor seeking the death penalty. Finally, there is no evidence here
of a pattern and practice of rule manipulation to avoid empaneling black
Missouri death row inmate Allen Nicklasson
Missouri death row inmate Allen Nicklasson
pauses speaks about co-defendant Dennis Skillicorn at the Potosi
Correctional Center Thursday, Aug. 14, 2008, in Mineral Point, Mo.
Nicklasson says he alone killed Excelsior Springs businessman
Richard Drummond in 1994 and that Skillicorn did not know about
the murder until he told him later.