State v. McMillin

Decision Date10 January 1990
Docket NumberNo. 70502,70502
Citation783 S.W.2d 82
PartiesSTATE of Missouri, Respondent, v. Richard Dean McMILLIN, Appellant.
CourtMissouri Supreme Court

Melinda K. Pendergraph, Columbia, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.


Richard Dean McMillin was convicted by a jury of murder in the first degree. § 565.020.1, RSMo 1986. 1 The trial judge fixed punishment at death. The judgment is affirmed.

Appellant presents twenty-two points on appeal, many containing numerous sub-points. Some points and sub-points were preserved. Appellant seeks plain error review under Rule 30.20 of the substantial remainder.


The evidence before the jury showed that defendant was employed as a maintenance worker at St. John's Fitness Center in Springfield, Missouri. He lived in an apartment in Springfield with his sister, Marlene McMillin. Thomas Hawn, a friend of McMillin's, lived across the hall. Other friends of McMillin, Jerri Pendergrass and her boyfriend Bryan Nickle, lived across the street.

In March of 1987, Jerri Pendergrass telephoned her cousin, Kenny Pendergrass, from McMillin's apartment to obtain a gram of "crystal," a street name for methamphetamine, a Schedule II controlled substance. § 195.017.4. Kenny responded that he knew a woman who could obtain crystal. After borrowing $100.00 from Marlene McMillin, Jerri Pendergrass, Bryan Nickle and Richard McMillin drove to Kenny's residence where they met the murder victim, Jennifer Renee Scurlock. The parties agreed that Renee would take the money from Jerri, leave the house to purchase the crystal, and return with drugs or the money in approximately two hours. Renee Scurlock did not return. Jerri repaid the $100.00 to Marlene McMillin but was unsuccessful in her repeated attempts to retrieve the money from Renee Scurlock.

Throughout March and early April, Richard McMillin spoke to several individuals about a woman who owed him money, and McMillin told his sister and Nickle that he was tired of being "ripped off" and of "people messing him around on drug deals." McMillin also asked his friend and business partner, Easley Van Mitchell, to assist in obtaining a handgun. Mitchell first agreed but later told McMillin that he was unable to secure a handgun.

Early on Sunday evening, April 12, 1987, McMillin was at his apartment with Mitchell and Hawn, drinking and playing backgammon. McMillin made a telephone call, after which he told the others that he had "found out the f---ing bitch's phone number" from Jerri Pendergrass and that he was going to call Renee Scurlock. McMillin then made a second call, after which he told Mitchell and Hawn that he was going to meet Renee Scurlock at the corner of Glenstone and Sunshine streets. Before he left, McMillin asked Mitchell where he could find some cord that could not be traced. Mitchell replied that he thought he had some at his office. Approximately fifteen minutes after McMillin left, Mitchell and Hawn drove to Mitchell's office, collected a length of cord, then went to the intersection of Glenstone and Sunshine where they observed McMillin talking to a young woman in a brown Ford LTD. McMillin and the woman then drove to McMillin's apartment complex in their respective cars. Mitchell and Hawn returned to McMillin's apartment complex where they saw the brown LTD and McMillin's car parked on the street. Hawn went to his apartment, and Mitchell went to McMillin's.

McMillin had taken Renee Scurlock to Jerri Pendergrass' apartment. McMillin had in his possession a gun belonging to Jerri's father which McMillin had obtained shortly before meeting Renee Scurlock. Renee's face was cut and swollen.

Jerri Pendergrass and Bryan Nickle were in the apartment along with Jerri's cousin Linda Pendergrass and her boyfriend, John McHaffie. McMillin and Jerri demanded that Scurlock either return the money or obtain the crystal. Renee offered to leave and get the money, but McMillin refused to allow her to go, saying she would disappear just as she had done before. McMillin also rejected the suggestion that he take some personal property of Renee Scurlock's to compensate for the money she had kept. Jerri then told Linda and McHaffie to go into the bathroom and remain there because they "wouldn't want to know" what might happen.

McMillin ordered Renee Scurlock to lie down on the floor and told Bryan Nickle to go across the street to get from Mitchell the rope and a cloth to use as a gag. McMillin also requested Bryan Nickle to contact Tommy Hawn and tell Hawn that he was to follow in McMillin's car when McMillin departed in a few minutes. He further instructed Bryan Nickle to tell Hawn to purchase some gasoline on the way. Mitchell appeared at Jerri's apartment with a rope and some cloth which McMillin used to bind and gag Renee. McMillin then took Renee outside. After putting her in the passenger seat of her car, McMillin drove away. Hawn followed. McMillin and Hawn drove toward the outskirts of Springfield. On the way Hawn stopped and filled a gallon container with gasoline while McMillin waited two blocks ahead. Outside Springfield, McMillin and Hawn drove south on Highway 22, west on a farm road, and then turned into a gravel driveway in a field near Republic, Missouri. McMillin drove Renee Scurlock's car approximately fifty feet into the driveway while Hawn parked McMillin's vehicle by the side of the road.

After parking the vehicle, McMillin struck Renee Scurlock repeatedly about her face and head with the butt of his pistol. When Renee failed to lose consciousness, McMillin poured gasoline on her from the container Hawn had filled and attempted to ignite her with a cigarette lighter. Renee Scurlock, still bound and burning, escaped through the passenger door and attempted to run across the field, jumping up and down in an effort to extinguish the flames. McMillin got out of the vehicle and shot Renee Scurlock twice in the back.

The autopsy revealed that one bullet had penetrated Renee's heart, causing her to bleed to death. Hemorrhaging had occurred in the scalp area indicating the head wounds occurred prior to death. Over fifty percent of Renee Scurlock's body suffered second and third degree burns. Examination of the esophagus and trachea showed evidence that burning materials had been inhaled. The physician who performed the autopsy concluded from the presence of soot deposits in the trachea that Renee Scurlock had been in close proximity to a fire while she was still breathing.

After shooting Renee, McMillin went through Renee's purse. He poured gasoline inside the automobile in an attempt to destroy it. McMillin then got into his own car with Hawn and they returned to Springfield. When they reached the apartment complex, McMillin described the murder to Hawn, Mitchell, Nickle and Jerri. He commented on the blood spattered on his shoes and talked about disposing of the gun.

The evidence supports the jury's verdict on guilt.

In the penalty phase of the trial, the state introduced evidence of McMillin's court-martial conviction of possession of hashish with intent to distribute, and of the consequent bad conduct discharge from the United States Army. McMillin presented witnesses in mitigation including his mother, a former Army supervisor, a former high school teacher, and other friends and co-workers. McMillin himself testified. The jury returned a form of verdict stating that it was unable to agree on punishment. As provided under § 565.030.4(4), the trial judge entered judgment. The court imposed a sentence of death, finding that the evidence established as statutory aggravating circumstances that the murder of Renee Scurlock was outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind, § 565.032.2(7), that the murder was committed while McMillin was engaged in the perpetration of kidnapping, § 565.032.2(11), and that the murder was committed while McMillin was attempting to perpetrate the felony offense of a sale of methamphetamine, § 565.032.2(11).


In the sentencing proceeding, the trial court advised the defendant that he had the right to file a motion to vacate and set aside or correct his conviction or sentencing under Rule 29.15, summarized the claims available under the Rule, and informed the defendant of the time constraints contained in the Rule. In response to the trial court's subsequent questions, McMillin stated that he had no complaints about his defense attorneys, that his counsel had done everything he had asked them to do and were "[v]ery fine lawyers." Six months later, on November 15, 1988, McMillin filed a signed and verified motion under Rule 29.15 in which he raised a single claim: that trial counsel should have objected when, during the penalty-phase, the prosecutor described McMillin's court-martial conviction as a felony. The court appointed counsel to represent movant on December 5, 1988.

On December 30, 1988, the court granted counsel's request for an extension of time to file an amended motion.

On January 5, 1989, McMillin filed a pro se affidavit, with copies to the prosecutor and McMillin's appointed counsel, which asked the court to dismiss his Rule 29.15 motion: "(1) Movant states that he is withdrawing his motion 29.15. (2) Movant further states, all past, present and future appeals are hereby dropped. (3) Movant hereby states that all decisions made and stated herein are both voluntary and knowledgable decisions."

Twelve days later, on January 17, 1989, McMillin's counsel filed an "amended motion under Rule 29.15" alleging in excess of 230 grounds of ineffective assistance of counsel and other constitutional deprivations. The pleading did not contain appellant's signature and was not verified as required under Rule 29.15(d). The "amended motion" made no...

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