Skillicorn v. Luebbers

• Decision Date: 06 February 2007
• Docket Number: No. 05-3729.,05-3729.
• Parties: Dennis SKILLICORN, Appellant, v. Al LUEBBERS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

475 F.3d 965

Dennis SKILLICORN, Appellant, v. Al LUEBBERS, Appellee.

No. 05-3729.

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2006.

Filed: February 6, 2007.

Kent E. Gipson, argued, Jennifer A. Merrigan, Public Interest Litigation Clinic, Kansas City, MO, for appellant.

Michael Joseph Spillane, argued, Asst. U.S. Atty., Jefferson City, MO, for appellee.

Dennis Skillicorn, Mineral Point, MO, pro se.

Before LOKEN, Chief Judge, BEAM, and GRUENDER, Circuit Judges.

BEAM, Circuit Judge.

Dennis Skillicorn was convicted in Missouri state court of first-degree murder and sentenced to death. The district court¹ denied Skillicorn's petition for habeas corpus pursuant to 28 U.S.C. § 2254, but granted a certificate of appealability on eight issues. We affirm the district court.

I. BACKGROUND

In late August 1994, Skillicorn, Allen Nicklasson, and Tim DeGraffenreid headed east from Kansas City to obtain illegal drugs. On August 23, 1994, the 1983 Chevrolet Caprice in which they were traveling broke down on I-70. They refused a state trooper's offer of help. When the three had progressed only a few more miles the following day, they decided to burglarize a home in the vicinity. They stole guns and money, using the stolen money to pay for a tow to nearby Kingdom City, Missouri. A garage in Kingdom City was unable to fully repair the car's mechanical problems. The trio then drove the car back east toward the site of their earlier robbery. The car stalled again just outside of Kingdom City. Richard Drummond was driving by and saw the stranded motorists. Unfortunately for Drummond, he stopped and offered to take them to use a phone.

The three loaded the loot from the earlier burglary into the trunk of Drummond's car, and got in, with DeGraffenreid in the front, and Skillicorn and Nicklasson in the back. Nicklasson pulled a gun on Drummond, forcing him to drive them at gunpoint. According to Skillicorn's statement to the FBI, as Nicklasson held a gun to Drummond's head, Skillicorn asked Drummond questions ostensibly in order to calm him down, but included in the questioning whether Drummond's "old lady" would miss him. As Drummond drove east, Skillicorn "got to thinking . . . if we let this guy off, he's got this car phone." Skillicorn told Drummond that they would have to disable the car phone, and take Drummond "out in the woods somewhere on one of these side roads" and "lose" him. At some point during this time, Nicklasson and Skillicorn discussed what they should do with Drummond. Skillicorn claimed that Nicklasson told him that Nicklasson was going have to "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 ultimately directed Drummond to a secluded area off an I-70 exit just east of Higginsville, Missouri. As Nicklasson prepared to walk Drummond through a field toward a wooded area, Skillicorn demanded Drummond's wallet. Knowing that Nicklasson carried a loaded .22 caliber pistol, Skillicorn watched as Nicklasson led Drummond into the wooded area. There, Nicklasson shot Drummond twice in the head. Skillicorn acknowledged hearing two shots from the woods and that Nicklasson returned and stated that he had "done what he had to do." Drummond's remains were found eight days later.

Following this murder, Skillicorn and Nicklasson dropped DeGraffenreid off in Blue Springs, Missouri, and then fled the state. While on the run, in Arizona, Nicklasson shot and killed a man under circumstances similar to the Drummond murder — the man tried to help them retrieve their car from where it was stuck in the sand. After killing this good Samaritan, the two went back to his house and Nicklasson killed the man's wife as well. Nicklasson and Skillicorn then absconded across California, stealing a purse from a woman in a supermarket and committing armed robbery along the way. They eventually made it to Mexico, where, according to Skillicorn, Nicklasson killed a waitress at a diner. Eventually the two returned to the United States, and both were arrested in San Diego after the police picked them up on successive days as hitchhikers.

Following his arrest in San Diego, Nicklasson gave a confession to the FBI. Nicklasson admitted that he marched Drummond into the woods at gunpoint. Nicklasson alleged in this statement that he had a rope in his pocket to tie Drummond up, but he "snapped" and instead decided to shoot him, somewhat on an impulsive whim. Nicklasson also described the Arizona murders and numerous robberies the two committed while on the lam, and how he had killed his own abusive father at age nine.

Skillicorn also gave a sworn statement to the FBI admitting his involvement in the Drummond murder and giving some of the details about Drummond's final drive, recounted above. In his statement, Skillicorn told the FBI that he knew Nicklasson did not have a rope in his pocket as he led Drummond into the woods. Skillicorn also recounted the Arizona murders, the burglaries and armed robberies committed on the journey, and described how Nicklasson had killed the waitress in Mexico. Skillicorn was charged by the state of Missouri with first-degree murder on an accomplice theory. He proceeded to trial primarily on the theory that he did not possess the requisite culpable state of mind — deliberation — to be convicted of first-degree murder.

Prior to Skillicorn's trial, the defense filed a motion to admit the statement of Nicklasson (who was unavailable as a witness due to his invocation of his Fifth Amendment rights). Skillicorn wanted to introduce this evidence — through the testimony of the FBI agent who interviewed both Skillicorn and Nicklasson in San Diego — to help prove that he did not know Nicklasson was going to kill Drummond. Skillicorn argued that the statement was admissible because it was a statement against Nicklasson's penal interest that was exculpatory of Skillicorn. The trial court ruled pretrial that the hearsay statement was not admissible, but noted that he might reconsider the issue when the agent testified during the state's case-in-chief. During the guilt phase² of the trial, the jury did not hear any portion of Nicklasson's statement.

During the penalty phase of trial, the defense sought to introduce the testimony of a psychiatrist, Dr. Spiridigliozzi. Spiridigliozzi had examined Skillicorn and was prepared to testify that Skillicorn had a lower IQ, and that his dependent personality made him a "follower." Spiridigliozzi brought Skillicorn's file with him to the witness stand when he was called to testify. The prosecutor objected because he had not been supplied with the file, even though he had requested all relevant discovery materials. After a lengthy in-chambers exchange between the court and counsel for both parties, the trial court ordered the defense to turn the file over, or risk exclusion of the witness, and Skillicorn's attorney chose the latter option.

Skillicorn was convicted of first-degree murder by the jury. The same jury recommended a death sentence following the penalty phase of trial. On March 18, 1996 the trial court sentenced Skillicorn to death.

State Court Adjudication

On direct appeal, the Missouri Supreme Court found that Skillicorn's federal due process rights were not violated by exclusion of Nicklasson's statement, and applied Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), in conducting this analysis. The court held that because the statement did not have considerable assurances of reliability, its admission was not required under Chambers. State v. Skillicorn, 944 S.W.2d 877, 884-85 (Mo.1997) (Skillicorn I). The court deemed the statement not reliable because in it, Nicklasson sought to exonerate himself of the mental state required for first-degree murder and because the statement was uncorroborated by evidence. Id. at 885. With regard to the absence of the expert testimony and the refusal of defense counsel to turn over the file, the Missouri Supreme Court found that Skillicorn waived any physician-patient privilege by putting his mental condition at issue during the penalty phase. The court also found that the file was not attorney work product. Id. at 897-98.

Skillicorn then petitioned the trial court for postconviction relief, raising several claims of ineffective assistance of counsel. The trial court rejected these claims, and the Missouri Supreme Court affirmed. Skillicorn v. State, 22 S.W.3d 678, 682-90 (Mo.2000) (Skillicorn II). Skillicorn then filed the current petition for habeas corpus relief under 28 U.S.C. § 2254. The district court denied the petition, but granted a certificate of appealability on eight claims.

II. DISCUSSION

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." 28 U.S.C. § 2254(d). Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), a "federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). We address each issue from the certificate in turn.

A. Exclusion of Nicklasson's Confession

Skillicorn argues the Missouri Supreme Court unreasonably applied Chambers in rejecting his claim that the trial judge inappropriately excluded the Nicklasson's confession to an FBI agent, violating his due process rights...