Skillicorn v. State

• Decision Date: 13 June 2000
• Citation: 22 S.W.3d 678
• Parties: (Mo.banc 2000) . Dennis James Skillicorn, Appellant, v. State of Missouri, Respondent. Case Number: SC81919 Supreme Court of Missouri Handdown Date: 0
• Court: Missouri Supreme Court

22 S.W.3d 678 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Dennis James Skillicorn, Appellant, v. State of Missouri, Respondent.

Case Number: SC81919

Supreme Court of Missouri

Handdown Date: 06/13/2000

Appeal From: Circuit Court of Lafayette County, Hon. Robert H. Ravenhill

Counsel for Appellant: Melinda K. Pendergraph

Counsel for Respondent: Stacy L. Anderson and John M. Morris

Opinion Summary:

A jury found Dennis Skillicorn guilty of first-degree murder for his role in killing a man who gave him and his friends a ride when their car broke down in 1994. The jury recommended the death penalty. This Court affirmed his conviction and sentence on appeal. Skillicorn now appeals the overruling of his Rule 29.15 post-conviction relief motion.

AFFIRMED.

Court en banc holds:

(1) Counsel was not ineffective for declining to introduce Skillicorn's good behavior at the Salvation Army's rehabilitation center. The Salvation Army employees' testimony was cumulative. Omission of their testimony was presumably trial strategy. In any case, Skillicorn cannot demonstrate prejudice. The evidence supported all the aggravating circumstances and indicated the death penalty was an appropriate punishment.

(2) Counsel was not ineffective for failing to present evidence of Skillicorn's childhood, chemical dependency, and dependent personality. Voluntary intoxication would not negate the culpable mental state. Proposed testimony was cumulative, supported by scant evidence, and not persuasive. Evidence of his upbringing and personality was before the jury. Substance abuse may be an aggravating factor. In any case, there is no prejudice, as the evidence, at best, shows Skillicorn is a follower who allows his co-defendants to kill while he remains idle, having already stolen from the victims.

(3) Counsel was not ineffective for failing to investigate Skillicorn's Clay County jail records. The evidence was cumulative.

(4) Counsel was not ineffective in failing to elicit a hearsay declaration made by Skillicorn's co-defendant's girlfriend. Her testimony was inadmissible hearsay that failed the three-prong test of Chambers. It was not corroborated by other evidence. Although it is incriminating in one sense, it is also exculpatory and tries to minimize the deliberate nature of the crime.

(5) Counsel was not ineffective in failing to preserve a co-defendant's mental health records for review. Skillicorn cannot demonstrate prejudice. The evidence at best would add to the conclusion that Skillicorn paired himself up with a more dominant individual and participated in a murder to obtain desired property. The court determined the information in the file was irrelevant. The information would have little or no probative value. Skillicorn has not produced sufficient evidence to overcome the presumption that counsel was effective. (6) Counsel was not ineffective in failing to address the lack of a rope in his closing argument. Skillicorn's defense was that he did not intend to kill the victim but only tie him up. The prosecutor pointed out Skillicorn admitted he intended to "lose" the victim in the woods and was aware his co-defendant had no rope but did have a gun. Skillicorn was unable to show how counsel could have effectively explained away the inconsistencies in his own confession. In an unenviable position, defense counsel made a strong and thorough closing argument.

(7) Skillicorn had abundant notice of the aggravating factors the state introduced. These alleged unadjudicated bad acts helped the jurors make their determination. The evidence was properly before the jury. Appellate counsel made a reasonable, strategic decision in not presenting this claim on appeal.

(8) The motion court did not err by adopting the state's findings of fact and conclusions of law. This has become a common practice and raises no constitutional problems so long as the court, after independent reflection, concurs with the contents. Here, the evidence clearly supports the findings and conclusions.

Opinion Author: Michael A. Wolff, Judge

Opinion Vote: AFFIRMED. All concur.

Opinion:

Dennis Skillicorn appeals the overruling of a Rule 29.15 motion to vacate his conviction and death sentence. We have jurisdiction. Standing Order, June 16, 1988 (effective July 1, 1988). Skillicorn's conviction was affirmed by this Court on direct appeal. See State v. Skillicorn, 944 S.W.2d 877 (Mo. banc 1997). We affirm the judgment of the motion court.

Factual Background and History¹

In January 1996, a jury found Skillicorn guilty of first-degree murder for his role in the execution-style killing of Richard Drummond on August 24, 1994. The jury recommended the death penalty. On March 18, 1996, the court sentenced Skillicorn to death for his role in the murder. Pursuant to Rule 29.15, Skillicorn timely filed a pro se motion for post-conviction relief. After the motion court appointed counsel for Skillicorn, an amended motion was filed. The court held an evidentiary hearing, including live and deposition testimony. On June 21, 1999, the motion court issued its findings of fact and conclusions of law overruling Skillicorn's motion. This appeal followed.

Skillicorn's Claims

Skillicorn raises eight points on appeal.

(1) Skillicorn argues his trial counsel was ineffective for failing to investigate and present available evidence during the penalty phase regarding his good character, conduct, and habits at the Salvation Army Adult Rehabilitation Center and that this failure prejudiced him.

(2) Skillicorn argues he was prejudiced by his trial counsel's failure to put on penalty phase evidence of traumatic events in Skillicorn's childhood, his history of chemical abuse and dependency, and of his submissive personality, which allowed others to exercise dominion over him.

(3) Skillicorn believes he was prejudiced by his trial counsel's failure to enter into evidence during the penalty phase jail records from Clay County indicating that Skillicorn behaved well while incarcerated and that he displayed no violent tendencies.

(4) Skillicorn claims he was prejudiced by trial counsel's failure to obtain hearsay evidence from a co-defendant's girlfriend that he claims would have been admissible under Chambers v. Mississippi, 410 U.S. 284 (1973), and that such evidence would have provided mitigating facts on the issue of deliberation.

(5) Skillicorn argues he was prejudiced by trial counsel's failure to supply this Court with the mental health records of his co-defendant because the records could have been helpful in establishing Skillicorn's defense that his co-defendant exerted dominance over him and that his participation in the murder was minimal.

(6) Skillicorn maintains he was prejudiced by his trial counsel's failure to effectively address evidence showing that Skillicorn was aware that his co-defendant did not have a rope when counsel had earlier attempted to argue that the co-defendant would merely tie the victim up instead of murdering him.

(7) Skillicorn alleges his appellate counsel was ineffective for not raising the issue of unadjudicated bad acts on appeal and, instead, raising less meritorious claims.

(8) Skillicorn maintains the motion court violated his constitutional rights by adopting the findings of fact and conclusions of law prepared by the state without any independent review of the findings and conclusions.

Our Standard of Review

We review the claims of Skillicorn for the limited purpose of determining whether or not the motion court clearly erred in making its findings of fact and conclusions of law. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998); Rule 29.15(k). In order to prove that his counsel was ineffective, 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 movant was thereby prejudiced. Hall, 982 S.W.2d at 680 (citing Strickland v. Washington, 466 U.S. 668 (1984)). To demonstrate prejudice, a movant must show that, but for counsel's poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different. Id. Moreover, this Court presumes that counsel acted professionally in making decisions and that any challenged action was a part of counsel's sound trial strategy. Id. We now turn to Skillicorn's eight claims that are listed above.

(1) Counsel's Failure to Introduce Evidence of Skillicorn's Behavior at the Salvation Army Adult Rehabilitation Center

Skillicorn first claims that he was prejudiced by the failure of his trial counsel to introduce evidence in the penalty phase of his good behavior while he was receiving chemical dependency treatment at the Salvation Army Adult Rehabilitation Center in Kansas City, Missouri. Skillicorn believes that this failure prejudiced him because the evidence would have portrayed him in a positive light and may have served as mitigating evidence in the assessment of punishment. Further, Skillicorn argues that the evidence would have shown that his co-defendant, Allen Nicklasson, exercised his will over him, further mitigating his role in the murder of Richard Drummond.

After the post-conviction proceeding, the court found Skillicorn's attorney had access to the Salvation Army records and had spoken to the potential witnesses.² The court found that the information the witnesses would have presented would not have been persuasive or helpful, that Skillicorn could not overcome the presumption that it was a part of counsel's trial strategy not to call the witnesses, and that counsel was not ineffective.

Skillicorn argues that counsel's failure to explore these critical issues was not a matter of trial strategy. Instead, he asserts that counsel was professionally deficient and this deficiency prejudiced him, citing a number of federal cases to support this argument. None of these cases...