Nicklasson v. State

• Decision Date: 27 May 2003
• Docket Number: No. SC 84496.,SC 84496.
• Citation: Nicklasson v. State, 105 S.W.3d 482 (Mo. 2003)
• Parties: Allen L. NICKLASSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 482

105 S.W.3d 482

Allen L. NICKLASSON, Appellant, v.STATE of Missouri, Respondent.

No. SC 84496.

Supreme Court of Missouri, En Banc.

May 27, 2003.

Susan M. Hunt, Kansas City, for appellant.

Jeremiah W.(Jay) Nixon, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, for respondent.

STEPHEN N. LIMBAUGH, JR., Chief Justice.

AppellantAllen L. Nicklasson was convicted and sentenced to death for the execution style murder of Richard Drummond on August 24, 1994.This Court affirmed the conviction and imposition of capital punishment in State v. Nicklasson,967 S.W.2d 596(Mo. banc 1998), and the facts of the case are recited in full in that opinion.In the Rule 29.15 motion that is the subject of this appeal, Nicklasson alleged two claims of ineffective assistance of counsel, one at the trial level and one on direct appeal.The motion court denied relief, and Nicklasson appeals.Because this case involves the death penalty, this Court has jurisdiction.Mo. CONST. art. V, sec. 10; order of June 16, 1988.The judgment is affirmed.

To establish ineffective assistance of counsel, a movant must show that "counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney" and that he was thereby prejudiced.Bucklew v. State,38 S.W.3d 395, 397(Mo. banc 2001)(citingStrickland v. Washington,466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984)).To prove prejudice, the movant must show "`a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different.'"Lyons v. State,39 S.W.3d 32, 36(Mo. banc 2001)(quotingStrickland,466 U.S. at 687, 104 S.Ct. 2052).The movant bears the burden of proving grounds for relief by a preponderance of the evidence.State v. Kreutzer,928 S.W.2d 854, 877(Mo. banc 1996);Rule 29.15(i).

In reviewing the motion court's denial of a claim of ineffective assistance, this Court is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous.Lyons,39 S.W.3d at 36.Findings of fact and conclusions of law will be deemed clearly erroneous only if, after a review of the entire record, the Court is left with the definite and firm impression that a mistake has been made.Id.

In his first point, Nicklasson alleges that trial counsel was constitutionally ineffective for failing to object to the prosecution's closing argument, which Nicklasson contends constituted a misstatement of the law that undermined his diminished capacity defense.

The defense theory presented at trial was that, due to a mental disease or defect, Nicklasson was incapable of acting with deliberation — the requisite mental state — on the date of the offense.In support of this theory, Nicklasson offered the testimony of a psychiatrist and a psychologist, both of whom averred that appellant suffered from post-traumatic stress disorder and borderline personality disorder — two conditions that they classified as mental diseases or defects as defined under section 552.010, RSMo 1994.The State presented rebuttal testimony from a psychologist appointed by the court who testified that Nicklasson did not suffer from a mental disease or defect, but from anti-social personality disorder.

In his guilt-phase closing argument, the prosecutor made the following comments concerning the significance of Nicklasson's mental conditions:

You've heard testimony from a number of psychologists, a couple who have been hired to [the] defense, with one who had been appointed by the Court.And there's no doubt in anybody's mind that there is a personality disorder here.Whether that rises to the level of mental disease or defect doesn't matter, given the evidence that's before you.It's clear it wasn't affecting him then.

Counsel did not object to these statements.This failure, according to Nicklasson, was ineffective assistance because the prosecutor misstated the law by informing the jury that the fact that Nicklasson was suffering from a mental disorder "doesn't matter," when under section 552.015.2(8), evidence of a mental disorder is relevant to determine deliberation.After conducting an evidentiary hearing on the issue, the motion court determined that the argument presented was not a misstatement of the law, but a "reasonable interpretation of the law of diminished capacity."

This Court agrees.When the challenged statements are considered in context, it is clear that the prosecutor's seeming disregard for Nicklasson's evidence of mental instability was not at all inconsistent with the law of diminished capacity.In order to prevail on a diminished capacity defense, a defendant must introduce evidence that he or she suffered from a mental disease or defect, State v. Erwin,848 S.W.2d 476, 480(Mo. banc 1993), and in this respect, evidence of a mental disease or defect does indeed "matter."But, the existence of a mental disease of defect will not alone suffice to diminish the defendant's criminal responsibility.SeeState v. Foerstel,674 S.W.2d 583, 592(Mo.App.1984)("Under [the] defense [of diminished capacity], a finding of mental disease or defect would permit the jury to conclude that appellant was unable to form the necessary specific or general intent and to thereby acquit him of the offense charged ...")(emphasis added).The jury must still determine, considering all the evidence, whether that mental disease or defect prevented the defendant from forming the requisite mental state at the time of the offense.The challenged statement represents nothing more than an acknowledgment of this fact, and a commentary on the strength of the deliberation evidence submitted at trial.¹

Appellant overlooks the clear import of the prosecutor's statements.The prosecutor stated: "Whether [appellant's personality disorder] rises to the level of mental disease or defect doesn't matter, given the evidence that's before you."By this statement, the prosecutor was not misdirecting the jury, but simply commenting that the evidence of mental disease or defect is not necessarily determinative.In fact, to hold that the prosecutor's statements constituted an erroneous statement of law would be tantamount to holding that, once the jury determines the existence of a mental disease or defect, the defendant would be entitled to a verdict of acquittal.As the diminished capacity instruction itself indicates, this is simply not the case.Under MAI-CR3d 308.03, the jury must consider all evidence — not just evidence that the defendant suffered from a mental disease or defect — in determining whether the accused acted with the requisite intent.²See alsoState v. Bell,798 S.W.2d 481, 487(Mo.App.1990)("[T]he fact that the only psychiatric testimony in this case was to the effect that the defendant did not knowingly cause serious physical injury [due to a mental defect] does not mean that the jury must reject a reasonable inference from his actions that the defendant acted knowingly.")Considered in context, the prosecutor's arguments, although inartfully phrased, merely advised the jury that in accordance with the diminished capacity instruction, evidence suggesting that appellant suffered from a mental disease or defect is just one consideration that must be taken into account in determining whether Nicklasson acted with the requisite state of mind.While clearer phrasing should be utilized in...