State v. Skillicorn

• Decision Date: 29 April 1997
• Docket Number: No. 78864,78864
• Citation: 944 S.W.2d 877
• Parties: STATE of Missouri, Respondent, v. Dennis J. SKILLICORN, Appellant.
• Court: Missouri Supreme Court

Page 877

944 S.W.2d 877

STATE of Missouri, Respondent, v. Dennis J. SKILLICORN, Appellant.

No. 78864.

Supreme Court of Missouri En Banc.

April 29, 1997.

As Modified on Denial of Rehearing

May 27, 1997.

Elizabeth Unger Carlyle, Lee's Summit, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Cheryl A. Caponegro, Assistant Attorney General, Jefferson City, for Respondent.

PRICE, Judge.

A jury convicted Dennis Skillicorn of first degree murder pursuant to Section 565.020, RSMo 1994, ¹ for his part in the murder of Richard Drummond on August 24, 1994. The trial court imposed a sentence of death. We have exclusive jurisdiction over the appeal. Mo. Const. art. V, Section 3. The judgment is affirmed.

I. Facts

In late August, 1994, Dennis Skillicorn, Allen Nicklasson, and Tim DeGraffenreid headed east from Kansas City to obtain illegal drugs. On August 23, 1994, during their return trip to Kansas City, the 1983 Chevrolet Caprice in which they were traveling broke down twenty-two miles east of the Kingdom City exit on I-70. An offer of assistance by a state trooper was refused. The following day, the trio had progressed only 17 miles to the JJ overpass approximately 5 miles east of Kingdom City. They burglarized the nearby home of Merlin Smith, stole some guns and money, and used the stolen money to pay for a tow to Kingdom City. A garage in Kingdom City was unable to repair the Caprice's extensive mechanical problems.

The trio then drove the car back east toward the site of their earlier robbery. They stalled again on the south outer road east of Kingdom City. Between 4 and 5 p.m., Richard Drummond, a technical support supervisor for AT & T, saw the stranded motorists, stopped, and offered to take them to use a phone. He was driving a white, 1994 Dodge Intrepid, company car.

Skillicorn and Nicklasson were both armed. They loaded the booty from the Smith burglary into the trunk of Drummond's car. While Nicklasson held a gun to Drummond's head, Skillicorn asked Drummond questions in order to calm him down, including whether Drummond's "old lady" was going to miss him. As Drummond drove east, Skillicorn "got to thinking ... if we let this guy off, he's got this car phone." So they disabled the car phone. Skillicorn stated that he later determined they would have to "lose" Drummond in the woods. At some point during this time, Nicklasson and Skillicorn discussed what they should do with Drummond. Skillicorn, in his sworn statement, claimed that Nicklasson said "he was going to, you know, 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 directed Drummond to exit I-70 at the Highway T exit just east of Higginsville. They proceeded four miles onto County Road 202 to a secluded area where they ordered Drummond to stop his vehicle. As Nicklasson prepared to take Drummond through a field toward a wooded area, Skillicorn demanded Drummond's wallet. Knowing Nicklasson had no rope or other means by which to restrain Mr. Drummond and that Nicklasson carried a loaded .22 caliber pistol, Skillicorn watched as Nicklasson lead Mr. Drummond toward a wooded area. There, Nicklasson shot Mr. Drummond twice in the head. Skillicorn acknowledged hearing two shots from the woods and that Nicklasson returned having "already done what he had to do." Drummond's remains were found eight days later.

II.

A. Issues on Appeal

On appeal, Skillicorn alleges the following twenty-two points of trial court error: 1) the court erred by excluding as hearsay a statement by Nicklasson in the guilt-innocence phase because the statement was a declaration against Nicklasson's penal interest; 2) the court erred by excluding the testimony of Skillicorn's expert witness; 3) the court erred in overruling the motions for judgment of acquittal because the evidence was insufficient to show the required element of deliberation by Skillicorn; 4) the court erred in refusing to order the disclosure of the mental health records of Nicklasson to the defense because they contained information material to Skillicorn's defense and such denial violated Skillicorn's right to due process of law, compulsory process, to present defensive evidence, and to be free from cruel and unusual punishment; 5) the court erred in refusing to give Skillicorn's requested instruction A because the instruction actually given failed to require the jury to find that Skillicorn deliberated upon Drummond's murder; 6) the court erred in refusing to give Skillicorn's requested converse instruction B because the instruction actually given failed to negative deliberation; 7) the court erred in admitting evidence of subsequent offenses of appellant because such evidence was not relevant to any material issue and its prejudicial impact outweighed its probative value; 8) the court erred in giving instruction 5 concerning evidence of "other offenses" in that the instruction failed to specify only those purposes for which the evidence was admissible; 9) the court erred in admitting the crime scene videotape of Drummond's partially decomposed body in that its probative value was outweighed by its prejudicial impact; 10) the court erred in admitting still photographs of Drummond's decomposing corpse because the photographs' probative value was outweighed by their prejudicial impact; 11) the court erred in restricting the voir dire examination of venireperson Heitmeyer because Skillicorn was denied his right to make for cause and peremptory challenges intelligently; 12) the court abused its discretion in failing to provide the jury with defense exhibit T-18A immediately upon its request; 13) the court erred in admitting evidence of Skillicorn's statement because the statement was obtained in violation of his Fifth Amendment rights; 14) the court erred in excluding portions of appellant's statement offered by the defense, because the excerpts were admissible under the rule of completeness; 15) the court erred in permitting the medical examiner to testify, over Skillicorn's objection, that Drummond would have died of dehydration if tied for eight days because such testimony was irrelevant, speculative, and prejudicial; 16) the court erred in permitting FBI Agent McOmber to testify that persons giving statements often minimize their involvement in the offense because such testimony was not a proper subject for expert opinion; 17) the court erred in denying Skillicorn's motion to prohibit death-qualification of the jury because death-qualification violated Skillicorn's right to a fair trial and to be free from cruel and unusual punishment and prospective jurors' rights to equal protection of the law; 18) the court erred in admitting the two postcards sent to Annie Wyatt because their prejudicial effect outweighed their probative value; 19) the court erred in denying appellant's motion for a continuance of the hearing on his motion for a new trial and sentencing so that he could procure Nicklasson's testimony because such ruling denied Skillicorn his right to present defensive evidence and to be free from cruel and unusual punishment; 20) the court erred in overruling Skillicorn's challenges for cause to prospective jurors Huddleston, DeMasters, Homan, and Akridge because they indicated they were biased in favor of the death penalty and their inclusion in the jury panel subjected Skillicorn to cruel and unusual punishment and denied him a fair trial; 21) the death sentence in this case is unconstitutional and must be vacated because Section 565.035.3(3), RSMo, and Missouri's case law provide no guidance on proportionality review, and such violates Skillicorn's right to effective assistance of counsel and due process of law; 22) the death sentence is disproportionate to that imposed in other similar cases.

For convenience, we will consider these points in the order they arose at trial.

B. Standard of Review

On direct appeal, we review the trial court "for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996), cert. denied, --- U.S.---, 117 S.Ct. 307, 136 L.Ed.2d 224 (quoting State v. McMillin, 783 S.W.2d 82, 98 (Mo. banc 1990), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990)). We review the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). "To prevail on plain error review, [the defendant] must show that the trial court's error so substantially violated his rights that manifest injustice or a miscarriage of justice results if the error is not corrected." State v. Parker, 886 S.W.2d 908, 917 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995).

III. Disclosure and Suppression Issues

A. Nicklasson's Statement

Skillicorn first contends that a statement made by Nicklasson to FBI Special Agent Arthur McOmber was improperly excluded as hearsay. He argues that the statement was admissible as an admission against Nicklasson's penal interest. Agent McOmber testified at a pretrial hearing that Nicklasson told him:

They got out of the car. They walked--Mr. Nicklasson walked with Mr. Drummond at gunpoint off into an area. Mr. Nicklasson stated he initially was intending to tie Mr. Drummond up and take his car and leave him out there in the area tied up. As he walked, he said he, quote, snapped, that he was so angry at the entire situation. He said something inside of him told him to do it, do it, and he was worried about that feeling that he was getting. So he kept trying to change the subject, kept trying to change his thoughts, and he talked to Mr. Drummond about his military service. They continued walking.

Eventually Mr. Nicklasson told Mr....