State v. Nicklasson, No. 79163

CourtMissouri Supreme Court
Writing for the CourtROBERTSON; COVINGTON; BENTON, C.J., and WHITE, J., concur in opinion of COVINGTON; COVINGTON
Citation967 S.W.2d 596
PartiesSTATE of Missouri, Respondent, v. Allen L. NICKLASSON, Appellant.
Docket NumberNo. 79163
Decision Date24 February 1998

Page 596

967 S.W.2d 596
STATE of Missouri, Respondent,
v.
Allen L. NICKLASSON, Appellant.
No. 79163.
Supreme Court of Missouri,
En Banc.
Feb. 24, 1998.
As Modified on Denial of Rehearing
March 24, 1998.

Page 602

John Bailey, Mesa, Ariz., Patrick J. Berrigan, Kansas City, for appellant.

Page 603

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Judge.

Allen Nicklasson took Richard Drummond, a Good Samaritan who had given Nicklasson and his friends a lift when their car broke down, to a secluded spot, told Drummond to kneel, suggested that he say his prayers and shot Drummond twice in the head at point-blank range with a pistol. A jury convicted Nicklasson of first degree murder. The jury also recommended the death sentence, which the trial court imposed. Nicklasson appeals. We have jurisdiction. MO. CONST. ART. V, SEC. 3 . The judgment is affirmed.

I.

This is a companion case to State v. Skillicorn, 944 S.W.2d 877 (Mo. banc), cert. denied, --- U.S. ----, 118 S.Ct. 568, 139 L.Ed.2d 407 (1997).

August 23, 1994, Allen Nicklasson, Dennis Skillicorn and Tim DeGraffenreid decided to return to Kansas City after a trip east along Interstate 70 to obtain drugs. They drove a 1983 Chevrolet Caprice. It broke down near the westbound Danville exit on I-70. Sergeant Ahern and Trooper Morrison of the Missouri State Highway Patrol came upon the disabled auto, helped push the car to the side of the road and left the men. The troopers last saw the trio as they walked toward a pay phone.

By the next morning, August 24, 1994, Nicklasson, Skillicorn and Degraffenreid and their car had made 17 miles' progress further west. Near Kingdom City the Caprice broke down again. In an effort to find jumper cables, the three approached a Missouri Highway and Transportation Department employee working in the median of the interstate. He could not assist them. They spotted Merlin Smith's nearby home, decided to burglarize it, and took four guns, ammunition, a skinning knife, money, a pillow case, some change and a cracker box. They stashed most of the stolen property in the bushes, then called for a tow truck to take their car to Roger Redmond's garage. Redmond's mechanic found major problems with the car but was able to restart it. The men paid Redmond with a cracker box full of change and left in the car.

Nicklasson and his cohorts decided to try and make it back to Kansas City in their ailing vehicle. First, however, the three men coaxed the car back toward Smith's house to recover the stolen goods they had previously hidden in the bushes alongside the road. The car gave out again, this time on the south outer road, east of Kingdom City.

Between 4:00 and 5:00 p.m., Richard Drummond saw the stranded Nicklasson, Skillicorn and Degraffenreid, stopped, and offered to take them to a telephone. They accepted. Drummond drove a white, 1994 Dodge Intrepid that belonged to AT & T, his employer. Nicklasson told Drummond to back up the Intrepid to the Caprice. Nicklasson and his friends loaded the stolen property from Smith's home into the trunk of Drummond's car, keeping a .22 caliber handgun and a shotgun with them when they got into Drummond's car. Nicklasson and Skillicorn sat in the back seat. Degraffenried sat in the front, passenger seat.

When Drummond took his place in the driver's seat, Nicklasson put the pistol to the back of Drummond's head and said, "You're going to take us to where we want to go." Nicklasson and his pals wanted to go back toward Kansas City. Along the way, they decided to kill Drummond. East of Higginsville, they told Drummond to take the Highway T exit. Four miles north of the interstate they turned onto County Road 202. Finding a secluded area, Nicklasson ordered Drummond to stop the car. Skillicorn took Drummond's wallet. Nicklasson walked Drummond into the woods, ordered Drummond to kneel, told him to say his prayers, and shot him in the head twice. Drummond's badly decomposed body was found and identified eight days later.

Nicklasson, Skillicorn and Degraffenreid continued west on I-70 in Drummond's car. They stopped at Joe Snell's house in Blue Springs. Kelly McEntee, who had dated Degraffenried, came to Snell's house, looking for Degraffenreid. She knocked on the door. Nicklasson answered, then came outside and

Page 604

said, "Don't nobody touch my car," referring to Drummond's car. With that Nicklasson went to the trunk of the Intrepid and removed a shotgun to assist him in assuring those watching that he did not want them to touch the car. He put the shotgun to McEntee's head and announced that he would kill her. He did not kill her, apparently satisfied that he had made his point after he hit her in the face.

Sometime later, Nicklasson, Degraffenried and Skillicorn left Snell's and went to Annie Wyatt's house. Nicklasson told Wyatt that he had killed someone in the woods and described the murder. After a planning session at a local restaurant, Nicklasson and Skillicorn decided to drive to Arizona. Degraffenreid stayed behind. Authorities arrested the two in California, where they were hitchhiking. Arizona authorities found the Intrepid stuck in a sandbar. It contained a letter Nicklasson had written and some of Richard Drummond's and Melvin Smith's property. Authorities also found shell casings near the Intrepid that matched those recovered at the Smith burglary scene and the Drummond murder scene.

For obvious reasons, Nicklasson does not challenge the sufficiency of the evidence to support his conviction.

II.

Rejecting Guilty Plea

Nicklasson assigns error to the trial court's decision to reject his attempted guilty plea at his arraignment. The trial court refused the proffered plea.

These additional facts assist in understanding this issue: The state charged Nicklasson with first degree murder on September 1, 1994. On November 10, 1994, the associate division of the Circuit Court of Lafayette County conducted a preliminary hearing the result of which was a decision to bind Nicklasson over to the circuit division of the court on the charge of first degree murder.

On November 15, 1994, the state filed an information charging Nicklasson with first degree murder and, on November 21, the trial court arraigned Nicklasson on the first degree murder charge. The state had not yet filed a notice of aggravating circumstances. Realizing this, and believing that a guilty plea entered prior to the filing of aggravating circumstances would avoid the possibility of a death sentence, Nicklasson tried to pretermit the process and secure a life sentence without possibility of parole by pleading guilty at the arraignment. The trial court refused to accept the guilty plea, indicating that the state still had time to decide whether it would seek the death penalty under section 565.005.1(1), RSMo 1994. That statute permits the state to file a list of aggravating circumstances within a "reasonable time before the commencement of the first stage of any trial of murder in the first degree at which the death penalty is not waived." (Emphasis added.) The state filed notice of aggravating circumstances on November 29, 1994. Nicklasson's trial did not begin until April 22, 1996.

The state filed its notice of aggravating circumstances within a reasonable time prior to the commencement of trial. Nevertheless, Nicklasson claims that he has a constitutional right to plead guilty at any stage of the proceedings. Reduced to its convoluted essence, Nicklasson asserts: that Missouri recognizes the right to plead guilty; that once such a right is recognized, it must be administered in accordance with due process; that the trial court's refusal to accept the proffered plea at the arraignment violated due process; and that Nicklasson has a right to a remand in this case to plead guilty under the circumstances that existed on November 21, 1994. Nicklasson cites no authority directly supporting his argument.

Nicklasson's argument is incorrect for two reasons. First, due process does not require the trial court to accept a guilty plea in a case that carries the potential for the death penalty until such time as the state has determined both the crime with which the defendant is charged and the extent of the punishment the state will seek. Indeed, section 565.005.1(1) requires an affirmative act by the state to waive the death penalty. Thus, the statutory presumption is that where first degree murder is charged, the

Page 605

death penalty is an option until that punishment is affirmatively waived by the state.

Of course, due process requires the state to make its punishment decision within a reasonable time prior to trial to give the defendant notice of the charges and aggravating circumstances against which he must prepare a defense. The eighty-two days the state took from filing the initial charge to filing its list of aggravating circumstances did not violate due process. This is because the trial did not occur until eighteen months after Nicklasson received notice of the state's list of aggravating circumstances. For these reasons, we believe the statement in North Carolina v. Alford, 400 U.S. 25, 38, n. 11, 91 S.Ct. 160, 167-68, n. 11, 27 L.Ed.2d 162 (1970), that "[a] criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court" extends to a case in which the state has not made a final decision to seek or waive the death penalty when the defendant attempts to enter a guilty plea.

Second, and more important, Nicklasson misreads section 565.005.1(1). As previously stated, section 565.005.1(1) requires an affirmative act by the state waiving the death penalty. Were we to remand this case to permit Nicklasson to plead guilty as things stood on November 21, 1994, the guilty plea would operate as Nicklasson's waiver of notice of aggravating circumstances and a willingness to accept the...

To continue reading

Request your trial
83 practice notes
  • State v. Bucklew, No. 80052
    • United States
    • United States State Supreme Court of Missouri
    • May 26, 1998
    ...871 (1988). And we have upheld cases where the defendant fired multiple shots to achieve his murderous end. See State v. Nicklasson, 967 S.W.2d 596 (Mo. banc 1998); State v. Rousan, 961 S.W.2d 831 (Mo. banc 1998); State v. Butler, 951 S.W.2d 600 (Mo. banc 1997); State v. Tokar, 918 S.W.2d a......
  • Mcpherson v. U.S. Physicians Mut., No. WD 59264.
    • United States
    • Court of Appeal of Missouri (US)
    • January 31, 2003
    ...the judge has learned from participation in the case." State v. Cella, 32 S.W.3d 114, 119 (Mo. banc 2000) (citing State v. Nicklasson, 967 S.W.2d 596, 605 (Mo. banc 1998)). But see Liteky v. U.S., 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ("[O]pinions formed by the judge on ......
  • State v. Griffin, SC 20439
    • United States
    • Supreme Court of Connecticut
    • July 22, 2021
    ...21, 2017); McGhee v. State, 899 N.E.2d 35, 38 (Ind. App. 2008), transfer denied, 915 N.E.2d 995 (Ind. 2009); State v. Nicklasson, 967 S.W.2d 596, 606 (Mo.), cert. denied, 525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998); State v. Old-Horn, 375 Mont. 310, 317, 328 P.3d 638 (2014); State ......
  • State v. Glass, No. SC 85128.
    • United States
    • United States State Supreme Court of Missouri
    • June 8, 2004
    ...broad discretion in determining whether evidence offered during the penalty phase of a capital case is admitted. State v. Nicklasson, 967 S.W.2d 596, 619 (Mo. banc 1998). To that end, it is not an abuse of discretion for the trial court to limit cumulative mitigation evidence. Glass present......
  • Request a trial to view additional results
83 cases
  • State v. Bucklew, No. 80052
    • United States
    • United States State Supreme Court of Missouri
    • May 26, 1998
    ...871 (1988). And we have upheld cases where the defendant fired multiple shots to achieve his murderous end. See State v. Nicklasson, 967 S.W.2d 596 (Mo. banc 1998); State v. Rousan, 961 S.W.2d 831 (Mo. banc 1998); State v. Butler, 951 S.W.2d 600 (Mo. banc 1997); State v. Tokar, 918 S.W.2d a......
  • Mcpherson v. U.S. Physicians Mut., No. WD 59264.
    • United States
    • Court of Appeal of Missouri (US)
    • January 31, 2003
    ...the judge has learned from participation in the case." State v. Cella, 32 S.W.3d 114, 119 (Mo. banc 2000) (citing State v. Nicklasson, 967 S.W.2d 596, 605 (Mo. banc 1998)). But see Liteky v. U.S., 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ("[O]pinions formed by the judge on ......
  • State v. Griffin, SC 20439
    • United States
    • Supreme Court of Connecticut
    • July 22, 2021
    ...21, 2017); McGhee v. State, 899 N.E.2d 35, 38 (Ind. App. 2008), transfer denied, 915 N.E.2d 995 (Ind. 2009); State v. Nicklasson, 967 S.W.2d 596, 606 (Mo.), cert. denied, 525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998); State v. Old-Horn, 375 Mont. 310, 317, 328 P.3d 638 (2014); State ......
  • State v. Glass, No. SC 85128.
    • United States
    • United States State Supreme Court of Missouri
    • June 8, 2004
    ...broad discretion in determining whether evidence offered during the penalty phase of a capital case is admitted. State v. Nicklasson, 967 S.W.2d 596, 619 (Mo. banc 1998). To that end, it is not an abuse of discretion for the trial court to limit cumulative mitigation evidence. Glass present......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT