Allen L. Nicklasson #1358

Allen L. Nicklasson
a/k/a "The Good Samaritan Killer"

Executed December 11, 2011 10:52 p.m. by Lethal Injection in Missouri

38th murderer executed in U.S. in 2013
1358th murderer executed in U.S. since 1976
2nd murderer executed in Missouri in 2013
70th murderer executed in Missouri since 1976

Since 1976 Date of Execution State Method Murderer
(Race/Sex/Age at Murder-Execution) Date of
Birth Victim(s)
(Race/Sex/Age at Murder) Date of
Murder Method of
Murder Relationship
to Murderer Date of
Sentence

1358
(38)
12-11-13 MO Lethal Injection Allen L. Nicklasson
W / M / 22 - 41
07-25-72 Richard Drummond
W / M / 47
08-24-94 .22 Handgun None 06-28-96

Summary:
Allen Nicklasson, Dennis Skillicom and Tim DeGraffenreid drove toward Kansas City to obtain drugs. Their 1983 Chevrolet Caprice broke down several times. Richard Drummond saw the stranded vehicle, stopped, and offered to take them to a telephone. They accepted. When Drummond took his place in the driver’s seat, Nicklasson put a pistol to the back of Drummond’s head and said, “You’re going to take us to where we want to go." Along the way, they told Drummond to take an exit and directed him to a secluded area where Nicklasson ordered him 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 and Skillicorn stole Drummond's car and drove to Arizona. When the vehicle broke down in the desert, they approached the home of Joseph and Charlene Babcock. Nicklasson killed Joseph Babcock after the man drove them back to their vehicle. Charlene Babcock was killed at the couple's home. Both Nicklasson and Skillicorn were sentenced to life in prison for the Arizona killings and also sentenced to death in Missouri for Drummond's death. Skillicorn was executed in 2009 even though Nicklasson took sole responsibility for killing Drummond. DeGraffenreid, 17 at the time, pleaded guilty to second-degree murder and did not receive a death sentence.

Citations:
State v. Nicklasson, 967 S.W.2d 596 (Mo. 1998). (Direct Appeal)
State v. Skillicorn, 944 S.W.2d 877 (Mo. 1997). (Accomplice direct appeal)
Nicklasson v. State, 105 S.W.3d 482 (Mo. 2003). (PCR)
Nicklasson v. Roper, 491 F.3d 830 (8th Cir. Mo. 2007). (Federal Habeas)

Final Meal:
Nicklasson had pizza and orange juice on Tuesday about 4 p.m. He ate regular prison meals on Wednesday.

Final Words:
None.

Internet Sources:

Wichita Eagle

"Missouri executes Good Samaritan killer," by Jim Salter. (Associated Press Dec. 11, 2013, 10:33 pm)

BONNE TERRE, Mo. — Allen Nicklasson once recalled the "euphoria" he felt after fatally shooting a kindly businessman who stopped to help when he saw Nicklasson's car stalled on Interstate 70 near Kingdom City, Mo., in 1994. Late Wednesday night, Nicklasson was put to death for Richard Drummond's killing — nearly 23 hours after he was originally scheduled to die. It was the second execution in Missouri in three weeks after a nearly three-year hiatus. Racist serial killer Joseph Paul Franklin was executed Nov. 20. The executions also were the first since Missouri switched from a three-drug protocol to use of a single drug, pentobarbital.

Nicklasson, 41, was pronounced dead at 10:52 p.m. Wednesday, eight minutes after the process began. His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about 2 minutes into the process. He offered no final words. Missouri Department of Public Safety spokesman Mike O'Connell said Nicklasson prayed briefly with the prison chaplain about 20 minutes before the execution. No one from his family or the victim's family attended.

The execution was the end of a life troubled almost from the start. Nicklasson grew up in Kansas City, Mo., in a fatherless home. His mother was a mentally ill stripper who brought home an assortment of men, many of whom abused her son. Nicklasson died bearing the scar from where one of the men burned him. Nicklasson declined interviews in the days leading up to his execution. But in a 2009 interview with The Associated Press, he recalled the trauma of his childhood — eating Alpo dog food for dinner, watching his mother shoot up heroin. She once made him fight a Doberman for money, he recalled. Then, there was the constant torrent of abuse from his mother's male friends. Nicklasson suffered from bipolar disorder and lived on and off in boys' homes for his petty crimes and institutions for his mental illness.

The car soon broke down again. Drummond, a 47-year-old Excelsior Springs, Mo., man who was a technical support supervisor for AT&T, saw the three men and their stranded car. He decided to stop and help. The men loaded their stolen goods in the trunk of Drummond's Dodge Intrepid. Then Nicklasson put a gun to his head and told him to drive west. Along the way, there was some debate between Nicklasson and Skillicorn about what to do with Drummond. Ultimately, they ordered him off the highway and to a secluded area in Lafayette County in western Missouri. In the 2009 interview, Nicklasson recalled how he left the other two behind and walked Drummond to a wooded area. He said he had intended to tie him up to buy time for the trio to get away. He changed his mind, ordering Drummond to kneel and cross his legs. Then he shot him twice in the head. "I'm laughing, pacing," Nicklasson said, recalling the moment. "I started losing it. I wouldn't want this out, but I felt a euphoria. I finally got back for all the beatings I took" as a child.

Nicklasson and Skillicorn stole Drummond's car and drove to Arizona. When the vehicle broke down in the desert, they approached the home of Joseph and Charlene Babcock. Nicklasson killed Joseph Babcock after the man drove them back to their vehicle. Charlene Babcock was killed at the couple's home. Both Nicklasson and Skillicorn were sentenced to life in prison for the Arizona killings and also sentenced to death in Missouri for Drummond's death. Skillicorn was executed in 2009 even though Nicklasson took sole responsibility for killing Drummond. DeGraffenreid pleaded guilty to second-degree murder and did not receive a death sentence.

Nicklasson's execution was originally scheduled for 12:01 a.m. Wednesday. But an appeals court panel granted a stay of execution Monday, citing concerns about his counsel at trial and sentencing in 1996. When the full appeals court refused to take up the case Tuesday, Missouri Attorney General Chris Koster appealed to the U.S. Supreme Court. It did not return its 5-4 decision to vacate the stay until 10:07 p.m. Wednesday, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting. Gov. Jay Nixon refused to grant clemency. Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments. The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy — the Missouri Department of Corrections declines to say who makes the drug, or where.

ReutersNews

"Missouri executes man for killing good Samaritan motorist in 1994," by Carey Gillam and Eric M. Johnson. (Thu Dec 12, 2013 1:50am EST)

(Reuters) - Missouri on Wednesday executed a man convicted of killing a motorist who had stopped on a highway to help him and two others whose car had broken down in 1994. Allen Nicklasson, 41, was pronounced dead at 10:52 p.m. Central Time at a state prison in Missouri, a spokesman for the Missouri Department of Corrections said. Nicklasson was found guilty of murdering motorist Richard Drummond, an AT&T supervisor who stopped on a highway to help Nicklasson and two others whose car had broken down. The trio had stolen guns and ammunition from a home before their vehicle broke down. When Drummond stopped to offer them a ride, they abducted him, took him to a wooded area and shot him in the head, according to court records.

Nicklasson, who made no final statement, prayed with a prison chaplain for about two or three minutes before being given a lethal injection at a jail in Bonne Terre, roughly 60 miles southwest of St. Louis, said Missouri Department of Corrections spokesman Mike O'Connell. Nicklasson ate a final meal of pizza and orange juice on Tuesday at about 4 p.m. He ate regular prison meals on Wednesday. "He was calm, very collected throughout the process this evening," O'Connell said. The U.S. Supreme Court on Wednesday evening lifted a last-minute stay of execution for the Missouri man, clearing the way for the state to put him to death.

Nicklasson was scheduled to be executed early on Wednesday, but an Eighth Circuit U.S. Court of Appeals panel issued a stay to hear further arguments, including whether he had ineffective legal counsel during his trial and earlier appeals. Missouri's attorney general appealed that decision to the Supreme Court, saying Nicklasson had numerous unsuccessful appeals over the years. The nation's highest court ordered the stay vacated on Wednesday night, according to a court official. One of the men in Nicklasson's trio, Dennis Skillicorn, was executed in 2009. The third person, Tim DeGraffenreid, who was 17 at the time, pleaded guilty to second-degree murder and received a reduced sentence. Nicklasson and Skillicorn were also convicted of killing an Arizona couple while on the run after Drummond's death.

Missouri Governor Jay Nixon had halted Nicklasson's October 23 execution due to criticism over the U.S. state's planned use of propofol, an anesthetic widely used in medical procedures. The case was one of many in a national debate over what drugs can or should be used for executions, as opponents of capital punishment pressure pharmaceutical companies to cut off supplies of drugs for executions. Missouri is one of many U.S. states that have been seeking out execution drugs mixed in compounding pharmacies now that a growing number of manufacturers refuse to allow their drugs to be used for capital punishment. The practice is controversial because compounded drugs are not approved by the U.S. Food and Drug Administration. Missouri in November also used a compounded pentobarbital, a short-acting barbiturate, to execute serial killer Joseph Paul Franklin.

(Reporting by Mary Wisniewski and Carey Gillam and Eric M. Johnson; Editing by Paul Simao and Philip Barbara)

MissouriDeathRow.Com

Inmate: Nicklasson, Allen
Date of Birth: 7/25/72
Received: 6/28/96
County: Lafayette
Executed: 12/12/13

State of Missouri v. Allen L. Nicklasson
967 S.W. 2d 596 (Mo.Banc 1998)

Case Facts: On Aug. 23, 1994, Allen Nicklasson, Dennis Skillicom 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 l-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, Aug. 24, 1994, Nicklasson, Skillicorn and DeGraffenreid and their car had made 17 miles of 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 4-5 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. DeGraffenreid 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 then continued west on 1-70 in Drummond’s car. They stopped at Joe Snell’s house in Blue Springs. Kelly McEntee, who had dated DeGraffenreid, came to Snell’s house, looking for DeGraffenreid. She knocked on the door. Nicklasson answered, then came outside and 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, DeGraffenreid and Skillicorn left Snell’s and went to Annie Wyatt’s house. Nicktasson told Wyatt that he had killed someone in the woods and described the murder. After a planning session at a local restaurant, Nicktasson and Skillicom 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 Metvin 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.

The jury found four aggravating circumstances supporting imposition of capital punishment; 1.whether the defendant was convicted of assault in the second degree on April 19, 1990, in the Circuit Court of Jackson County, Missouri; 2.whether the defendant was convicted of offering to commit violence to an officer on March 2. 1993 in the Circuit Court of Randolph County, Missouri; 3.whether the murder of Richard Drummond was committed while the defendant was engaged in the perpetration of kidnapping or while the defendant was knowingly aiding Dennis Skillicorn and/or Timothy DeGraffenreid in the perpetration of kidnapping; and’ 4.whether the murder of Richard Drummond was committed while the defendant was engaged in the perpetration of robbery.

Case facts above updated on 12/31/13.

Statement by Governor Nixon:

Richard Drummond’s act of kindness in stopping to help the occupants of a broken-down car on Interstate 70 in 1994 was repaid with an act of brutal and callous violence. For taking the life of this Good Samaritan, both Alien Nicklasson and Dennis Skillicorn were sentenced to die by Missouri juries, decisions that were upheld by the courts. Tonight, the second of these punishments was carried out with the execution of Alien Nicklasson. I ask that Missourians remember Richard Drummond at this time, and keep his family in your thoughts and prayers.

Legal Chronology

1994
August 24 – Allen Nicklasson and his compatriot Dennis Skillicorn kill Richard Drummond by shooting him twice in the head.
October 5 – Nicklasson is arrested by officials from the San Diego, California Police Department.
November 15 – Nicklasson is charged by information with first degree murder.

1996
April 22 – Jury trial begins.
May 2 – Jury returns verdict of guilty of murder in the first degree.
May 4 – Jury returns death sentence as punishment for first degree murder conviction.
June 28 – The Lafayette County Circuit Court sentences Nicklasson to death for murder conviction.
July 8 – Nicklasson files a notice of appeal.

1998
February 24 – The Missouri Supreme Court affirms conviction and sentence. State v. Nicklasson, 967 S.W. 2d 596 (Mo. banc 1998)
June 22 – Nicklasson files a Rule 29.15 motion for post-conviction relief in the Lafayette County Circuit Court.
November 30 – The U.S. Supreme Court denies certiorari review of the direct appeal. Nicklasson v. Missouri, 525 U.S. 1021 (1998)

2002
April 15 – The circuit court denies post-conviction relief

2003
April 15 – The Missouri Supreme Court affirms the denial of Rule 29.15 relief. Nicklasson v. State, 105 S.W. 3d 482 (Mo. band 2003)

2004
September 30 – Nicklasson files petition for writ of habeas corpus in the U.S. District Court for the Western District of Missouri.

2005
April 26 – The district court denies the petition for writ of habeas corpus in an unpublished order.

2007
June 21 – The court of appeals affirms the denial of habeas relief. Nicklasson v. Roper, 491 F.3d 830 (8th Cir. 2007)

2008
April 21 – The United State Supreme Court denies certiorari review. Nicklasson v. Roper, 128 S.Ct. 2052 (2008)

(This entry was posted on December 9, 2008) P>

Missouri.Net

Statements from Governor Nixon, Attorney General Koster on Nicklasson execution
December 12, 2013 By Mike Lear

Governor Jay Nixon issued this statement following the execution by the State of Missouri of convicted murderer Allen Nicklasson for the 1994 murder of businessman Richard Drummond: “Richard Drummond’s act of kindness in stopping to help the occupants of a broken down car on Interstate-70 was repaid with an act of brutal and callous violence. For taking the life of this Good Samaritan, both Allen Nicklasson and Dennis Skillicorn were sentenced to die by Missouri juries, decisions that were upheld by the courts. Tonight the second of these punishments was carried out with the execution of Allen Nicklasson. “I ask that Missourians remember Richard Drummond at this time, and keep his family in your thoughts and prayers.”

Attorney General Chris Koster, after announcing that the U.S. Supreme Court had vacated the stay of Nicklasson’s execution, issued this statement: “The highest court in the nation has removed the last restriction to carrying out the lawfully imposed punishment of Allen Nicklasson,” Koster said. “While the sentence carried out this evening cannot lessen the loss for Mr. Drummond’s family, it nonetheless will give them the knowledge that justice has been done. My thoughts and prayers tonight are with the family and friends of Mr. Drummond.”

Waynesville Daily Guide

"Missouri executes man in 1994 good Samaritan death," by Jim Salter. (AP Posted Dec. 12, 2013 @ 11:16 am)

BONNE TERRE, Mo. (AP) — Missouri executed Allen Nicklasson on Wednesday night for killing a good Samaritan who stopped to help him and his friends after their car stalled on Interstate 70 in 1994. It was the state's second execution in three weeks. Nicklasson, 41, was pronounced dead at 10:52 p.m. Wednesday, eight minutes after the process began. His eyes remained closed throughout and he showed little reaction to the drug, only briefly breathing heavily about 2 minutes into the process. He offered no final words. Missouri Department of Public Safety spokesman Mike O'Connell said Nicklasson prayed briefly with the prison chaplain about 20 minutes before the execution. No one from his family or the victim's family attended.

An appeals court panel had granted a stay of execution for Nicklasson on Monday, citing concerns about his counsel at trial and sentencing in 1996. That stay was taken up to the U.S. Supreme Court, which did not return its 5-4 decision to vacate the stay until late Wednesday night. Gov. Jay Nixon refused to grant clemency, and Nicklasson was executed nearly 23 hours after he was originally scheduled to die.

Nicklasson declined interview requests this week. But in a 2009 interview with The Associated Press he spoke of a childhood scarred by abuse and mental illness. He recalled watching his mother shoot up heroin. She fed him Alpo dog food for dinner, he said, and once made him fight a Doberman for money. Nicklasson was often removed from home and spent part of his childhood in mental institutions and homes for boys. He became addicted to drugs.

He met convicted killer Dennis Skillicorn in 1994 at a drug rehab center in Kansas City. The men, along with Tim DeGraffenreid, drove to St. Louis to buy drugs in August that year. On the way back, their 1983 Chevrolet Caprice broke down near Kingdom City, Mo. They dropped the car off with a mechanic and burglarized a home, stealing money and drugs. The next day, despite mechanics' warnings that the car wouldn't last, they got back on I-70 where it broke down again. Drummond, 47, who was a technical support supervisor for AT&T, spotted the stranded motorists and stopped to help. The men put a gun to his head and ordered him to drive his Dodge Intrepid west.

About 60 miles later, in Lafayette County, the men ordered Drummond off the road to a secluded area. Nicklasson recalled that he left Skillicorn and DeGraffenreid behind and walked Drummond to a field. He said he had intended to tie Drummond up to buy time for the trio to get away. Instead, he ordered Drummond to kneel and cross his legs. He shot him twice in the head. Drummond's remains were found eight days later. "I'm laughing, pacing," Nicklasson said, recalling the moment. "I started losing it. I wouldn't want this out, but I felt a euphoria. I finally got back for all the beatings I took" as a child.

Nicklasson and Skillicorn drove Drummond's car to Arizona. When the vehicle broke down in the desert, they approached the home of Joseph and Charlene Babcock. Nicklasson killed Joseph Babcock after the man drove them back to their vehicle. Charlene Babcock was killed at the couple's home. Nicklasson and Skillicorn were sentenced to life in prison for the Arizona killings and also sentenced to death in Missouri for Drummond's death. Skillicorn was executed in 2009. DeGraffenreid pleaded guilty to second-degree murder and did not receive a death sentence.

Nikklasson's execution was the state's second to use a single drug, pentobarbital. Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments. The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy — the Missouri Department of Corrections declines to say who makes the drug, or where. Racist serial killer Joseph Paul Franklin was executed Nov. 20. Before that, Missouri had not performed an execution in nearly three years.

The Guardian

"Allen Nicklasson executed in Missouri as state continues single-drug method." (Associated Press 12 December 2013 09.24 EST)

Allen Nicklasson once recalled the "euphoria" he felt after fatally shooting a kindly businessman who stopped to help when he saw Nicklasson's car stalled on Interstate 70 near Kingdom City, Missouri, in 1994. Late Wednesday night, Nicklasson was put to death for Richard Drummond's killing – nearly 23 hours after he was originally scheduled to die. It was the second execution in Missouri in three weeks after a nearly three-year hiatus. Racist serial killer Joseph Paul Franklin was executed 20 November. The executions also were the first since Missouri switched from a three-drug protocol to use of a single drug, pentobarbital.

Nicklasson, 41, was pronounced dead at 10.52pm Wednesday, eight minutes after the process began. His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about two minutes into the process. He offered no final words. Missouri department of public safety spokesman Mike O'Connell said Nicklasson prayed briefly with the prison chaplain about 20 minutes before the execution. No one from his family or the victim's family attended.

The execution was the end of a life troubled almost from the start. Nicklasson grew up in Kansas City in a fatherless home. His mother was a mentally ill stripper who brought home an assortment of men, many of whom abused her son. Nicklasson died bearing the scar from where one of the men burned him. Nicklasson declined interviews in the days leading up to his execution. But in a 2009 interview with the Associated Press, he recalled the trauma of his childhood – eating Alpo dog food for dinner, watching his mother shoot up heroin. She once made him fight a Doberman for money, he recalled. Then, there was the constant torrent of abuse from his mother's male friends. Nicklasson suffered from bipolar disorder and lived on and off in boys' homes for his petty crimes and institutions for his mental illness.

The car soon broke down again. Drummond, a 47-year-old Excelsior Springs, Missouri, man who was a technical support supervisor for AT&T, saw the three men and their stranded car. He decided to stop and help. The men loaded their stolen goods in the trunk of Drummond's Dodge Intrepid. Then Nicklasson put a gun to his head and told him to drive west. Along the way, there was some debate between Nicklasson and Skillicorn about what to do with Drummond. Ultimately, they ordered him off the highway and to a secluded area in Lafayette County in western Missouri. In the 2009 interview, Nicklasson recalled how he left the other two behind and walked Drummond to a wooded area. He said he had intended to tie him up to buy time for the trio to get away. He changed his mind, ordering Drummond to kneel and cross his legs. Then he shot him twice in the head. "I'm laughing, pacing," Nicklasson said, recalling the moment. "I started losing it. I wouldn't want this out, but I felt a euphoria. I finally got back for all the beatings I took" as a child.

Nicklasson and Skillicorn stole Drummond's car and drove to Arizona. When the vehicle broke down in the desert, they approached the home of Joseph and Charlene Babcock. Nicklasson killed Joseph Babcock after the man drove them back to their vehicle. Charlene Babcock was killed at the couple's home. Both Nicklasson and Skillicorn were sentenced to life in prison for the Arizona killings and also sentenced to death in Missouri for Drummond's death. Skillicorn was executed in 2009 even though Nicklasson took sole responsibility for killing Drummond. DeGraffenreid pleaded guilty to second-degree murder and did not receive a death sentence.

Nicklasson's execution was originally scheduled for 12.01am Wednesday. But an appeals court panel granted a stay of execution Monday, citing concerns about his counsel at trial and sentencing in 1996. When the full appeals court refused to take up the case Tuesday, Missouri attorney general Chris Koster appealed to the US supreme court. It did not return its 5-4 decision to vacate the stay until 10.07pm Wednesday, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting. Governor Jay Nixon refused to grant clemency.

Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments. The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy – the Missouri department of corrections declines to say who makes the drug, or where.

Kansas City Star

"Missouri executes Good Samaritan killer Allen Nicklasson," by Jim Salter. (AP December 11, 2013)

By his 20s, Nicklasson was homeless and a drug addict. While in rehab in 1994, he crossed paths with Dennis Skillicorn, who had been recently released from prison following a second-degree murder conviction for killing a man during a robbery. The two and a third man, Tim DeGraffenreid, decided in August 1994 to make the trip from Kansas City across I-70 to St. Louis to buy drugs. On the way back, their rundown 1983 Chevrolet Caprice started sputtering. It broke down near Kingdom City, about 100 miles west of St. Louis, and they took it to the shop. They used the down time to burglarize a home, stealing money and guns. Though warned the car was unfixable, the men got back on the road. The car soon broke down again. Drummond, a 47-year-old Excelsior Springs, Mo., man who was a technical support supervisor for AT&T, saw the three men and their stranded car. He decided to stop and help. The men loaded their stolen goods in the trunk of Drummond's Dodge Intrepid. Then Nicklasson put a gun to his head and told him to drive west. Along the way, there was some debate between Nicklasson and Skillicorn about what to do with Drummond. Ultimately, they ordered him off the highway and to a secluded area in Lafayette County in western Missouri.

In the 2009 interview, Nicklasson recalled how he left the other two behind and walked Drummond to a wooded area. He said he had intended to tie him up to buy time for the trio to get away. He changed his mind, ordering Drummond to kneel and cross his legs. Then he shot him twice in the head. "I'm laughing, pacing," Nicklasson said, recalling the moment. "I started losing it. I wouldn't want this out, but I felt a euphoria. I finally got back for all the beatings I took" as a child.

Nicklasson and Skillicorn stole Drummond's car and drove to Arizona. When the vehicle broke down in the desert, they approached the home of Joseph and Charlene Babcock. Nicklasson killed Joseph Babcock after the man drove them back to their vehicle. Charlene Babcock was killed at the couple's home. Both Nicklasson and Skillicorn were sentenced to life in prison for the Arizona killings and also sentenced to death in Missouri for Drummond's death. Skillicorn was executed in 2009 even though Nicklasson took sole responsibility for killing Drummond. DeGraffenreid pleaded guilty to second-degree murder and did not receive a death sentence.

Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments. The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy — the Missouri Department of Corrections declines to say who makes the drug, or where.

ProDeathPenalty.Com

On 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. Drummond was a technical support supervisor. 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." 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. Nicklasson and his pals wanted to go back toward Kansas City. 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."

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 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 Kelly 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. When the car became stuck in the sandbar, another good Samaritan, Joseph Babcock, 47, tried to help. Nicklasson murdered him and his wife, Charlene, 38. Nicklasson and Skillicorn were convicted of first-degree murder. Skillicorn was executed by lethal injection in Missouri on May 20, 2009. DeGraffenreid, who was 17 when the crime took place, served time for second-degree murder.

Ozarks First

"UPDATE: Missouri Executes Allen Nicklasson." (12/12/2013 05:42 AM)

BONNE TERRE, Mo. -- The state of Missouri has carried out the execution of a man convicted of the murder of an Excelsior Springs businessman that had stopped to help him and two friends when their car stalled on Interstate 70 in 1994. Allen Nicklasson, 41, was pronounced dead at 10:54 p.m. Wednesday, just over an hour before the warrant for his death would have expired. It was the second lethal injection in Missouri in three weeks.

Officials at the Eastern Reception, Diagnostic and Correctional Center began the execution process at 10:05. 5 grams of pentobarbital was injected at 10:44. Nicklasson appeared to be asleep throughout the process. Approximately two minutes after the injection he appeared to gasp slightly and take several deep breaths, before breathing stopped at about two minutes later. He was described by state officials as being cooperative and very calm throughout the process.

Nicklasson was sentenced to death in 1996 for the murder of Richard Drummond, whom Nicklasson and two other men forced at gunpoint to drive from east of Kingdom City where he found them in a stalled car, to a county road in Lafayette county. Nicklasson took Drummond into a field, told him to say his prayers and then shot him twice in the head. One of the other men in the car that day, Dennis Skillicorn, was executed in 2009 for his role in the crime, though Nicklasson had lobbied for his sentence to be reduced saying he had acted alone in the murder. The third man, Tim DeGraffenreid, led authorities to the body and pled guilty to second-degree murder. He is serving a life sentence in prison in another state. Nicklasson and Skillicorn also killed a couple in Arizona who offered them help when their car became stuck in the desert there. They were sentenced to life in prison in Arizona. Nicklasson had been scheduled to be executed on the morning of October 23 in what was to have been the state’s first use of the anesthetic propofol as an execution drug. His execution was delayed amid controversy about the use of that drug.

Missouri Department of Public Safety Spokesman Mike O’Connell says Nicklasson made no final statement and had requested that his body be cremated and designated a person to receive his ashes. He was not given a sedative before the procedure, but did pray with the prison chaplain for 2 or 3 minutes about 20 minutes prior to his execution. The only witnesses to the execution were two members of the media, three private citizens and Department of Corrections officials. The execution had been scheduled for 12:01 a.m. Wednesday but was delayed since Tuesday night as the U.S. Supreme Court considered a stay of execution placed by an appeals court on Monday over concerns about his counsel in 1996. The Court returned its decision to vacate the stay late Wednesday night and Attorney General Chris Koster informed the Department of Corrections at 10:43 p.m. that there were “no legal impediments” to the execution.

Governor Jay Nixon had earlier denied a petition for clemency and at 10:44 told prison officials there was no reason not to proceed with the process, and the injection began less than a minute later. Three weeks ago Missouri carried out the execution of white supremacist Joseph Paul Franklin for murdering a man outside a St. Louis synagogue. His was the first execution to use Missouri’s single drug lethal injection protocol utilizing pentobarbital. Franklin’s execution was delayed more than 6 hours by legal proceedings. Nicklasson’s execution was delayed nearly 23.

Attorney General Chris Koster, after announcing that the U.S. Supreme Court had vacated the stay of Nicklasson’s execution, issued this statement:“The highest court in the nation has removed the last restriction to carrying out the lawfully imposed punishment of Allen Nicklasson,” Koster said. “While the sentence carried out this evening cannot lessen the loss for Mr. Drummond’s family, it nonetheless will give them the knowledge that justice has been done. My thoughts and prayers tonight are with the family and friends of Mr. Drummond.”

Missourians to Abolish the Death Penalty

Missourians for Alternatives to the Death Penalty

State v. Nicklasson, 967 S.W.2d 596 (Mo. 1998). (Direct Appeal)

PROCEDURAL POSTURE: Defendant challenged the decision of the Circuit Court of Lafayette County (Missouri), which convicted him of first degree murder and imposed the death sentence.

OVERVIEW: Defendant was convicted of first-degree murder and sentenced to death. The court affirmed the judgment of guilt and the sentence of death. The court found no error in the trial court denying to accept defendant's guilty plea at the arraignment because state still had time to decide whether to seek the death penalty. The court rejected defendant's contention that it was error to admit his confession as defendant received his Miranda warnings, nothing in the record indicated defendant gave a clear desire to assert his right to remain silent, and encouragement to cooperate did not render his confession involuntary. The court also rejected his voir dire challenges as defendant did not claim any member of the venire who ultimately served on the jury was biased and therefore did not meet his burden of showing a real probability that he was thereby prejudiced. Finally, the court examined the record and found that the imposition of the sentence of death was not due to the influence of passion, prejudice, or any other arbitrary factor.

OUTCOME: The court affirmed the judgment of guilt and the sentence of death. Defendant's voir dire challenges and evidentiary challenges were denied and the sentence of death was not imposed due to the influence of passion, prejudice, or other arbitrary factor.

OPINION BY: EDWARD D. ROBERTSON, JR.

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.

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

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 ofDrummond'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 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 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, 27 L. Ed. 2d 162, 91 S. Ct. 160 (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 possibility of a death sentence. This is because the state had not affirmatively waived the death penalty as section 565.005.1(1) requires. We doubt Nicklasson seeks this result. In any event, the trial court did not err in refusing the proferred guilty plea. The point is denied.

III. Trial Judge Recusal

Nicklasson asserts that the trial judge harbored bias both against him and in favor of the state and that the trial judge's refusal to recuse himself violated his right to due process. His claim is based on the trial court's rulings, statements and actions in judicial proceedings directly related to Nicklasson's case. Usually, questions concerning a judge's qualification to hear a case are not constitutional questions; they are, instead, questions answered by common law, statute or the code of judicial conduct. Bracy v. Gramley, 520 U.S. 899, 117 S. Ct. 1793, 1797, 138 L. Ed. 2d 97 (1997). In Missouri, recusal of a judge is necessary "if a reasonable person would find an appearance of impropriety . . . and doubt the impartiality of the court." State v. Kinder, 942 S.W.2d 313, 321 (Mo. banc 1996), cert. denied, 118 S. Ct. 149, 139 L. Ed. 2d 95 (1997). A disqualifying bias and prejudice is one with an extrajudicial source that results in the judge forming an opinion on the merits based on something other than what the judge has learned from participation in the case. State v. Hunter, 840 S.W.2d 850, 866 (Mo. banc 1992), cert. denied, 509 U.S. 926, 125 L. Ed. 2d 732, 113 S. Ct. 3047 (1993).

Nicklasson finds bias in the trial court's decisions: not to allow attorney participation in death-qualification voir dire; refusing to excuse for cause a venireperson who did not ultimately serve on the jury; to refer to some of the defense expert testimony as "junk science" (outside the presence of the jury); to express criticism of a member of the defense team; to comment that one defense witness's testimony was "refreshing" and to state during the questioning of another defense witness "let's get on to something that's going to assist this jury in making a decision" after overruling an objection by the state; and to "ridicule" penalty-phase witnesses.

We have reviewed each of these assertions and conclude, noting that several are not supported by the record, that none rises to the level of bias or prejudice toward either party arising from an extrajudicial source. Further, none of Nicklasson's claims remotely support a contention that the trial court's conduct in this case affected the jury in its fact determinations or sentence recommendation. The point is denied.

Alleged Error in Admitting Confession

Nicklasson claims trial court error in admitting his confession. His argument in support of this position is twofold: First, he claims he invoked his right to counsel and that it was ignored; second, he claims that he was improperly induced to confess with promises of leniency.

Alleged Request for Counsel

The Fifth Amendment's prohibition against self incrimination provides an accused the right to counsel during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 478, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Once an accused requests counsel, questioning must cease until counsel has been made available, unless the accused initiates further communication with police. Edwards v. Arizona, 451 U.S. 477, 485-486, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). This rule applies only where the accused gives "a clear, consistent expression of a desire to remain silent" in order to invoke his rights adequately and cut off questioning. United States v. Thompson, 866 F.2d 268, 272 (8th Cir. 1989).

Nicklasson received warnings in compliance with the requirements of Miranda. The record shows that Nicklasson asked if he could stop answering questions at any time and ask for an attorney. He was assured that he could. Nicklasson then signed a waiver and voluntarily submitted to questioning without requesting an attorney's presence. Nicklasson claims his question was an "ambiguous request" for an attorney. We disagree. It was a question seeking clarification of his rights as read to him. He received the requested clarification. Nothing in the record indicates that Nicklasson ever gave a "clear, consistent expression of a desire" to assert his Fifth Amendment rights and remain silent.

Alleged Promise of Leniency

A confession extracted through a promise of leniency is inadmissible. State v. Chandler, 605 S.W.2d 100, 116 (Mo. banc 1980). However, we have reviewed the comments of Agent McOmber and find that they were, at most, encouragement to cooperate. McOmber told Nicklasson that he was interested in the truth, as were the courts, and that the courts were interested in whether suspects showed remorse or were cooperative. McOmber's statements contain no explicit or implicit promise of possible leniency. Encouragement to cooperate is far from a promise of leniency and does not, as a matter of law, render a confession involuntary. State v. Simmons, 944 S.W.2d 165, 173 (Mo. banc 1997); State v. Klueg, 781 S.W.2d 133, 136 (Mo. App. 1989); State v. Wilson, 755 S.W.2d 707, 709 (Mo. App. 1988); State v. Dixon, 655 S.W.2d 547, 556 (Mo. App. 1983), cert. denied, 464 U.S. 1072, 79 L. Ed. 2d 219, 104 S. Ct. 982 (1984), overruled on other grounds, State v. Carson, 941 S.W.2d 518 (Mo. banc 1997); Bannister v. Armontrout, 4 F.3d 1434, 1440 (8th Cir. 1993). The points are denied.

IV. Voir Dire
A. Limited Voir Dire/Judge-Conducted Death Qualification

Nicklasson claims constitutional error from the trial court's limitation of his general voir dire and the solely-by-judge-conducted death qualification of the jury. "In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial by an impartial jury." U.S. CONST. AMEND VI (1791). "In [all] criminal prosecutions the accused shall have the right to . . . a speedy public trial by an impartial jury of the county." MO. CONST. ART. I, SEC. 18(A). The United States Constitution requires only that the jury finally seated be impartial. Ross v. Oklahoma, 487 U.S. 81, 88, 101 L. Ed. 2d 80, 108 S. Ct. 2273 (1988). Likewise, the state constitution requires only that the jury actually impaneled be impartial. Before addressing his claims, we note that Nicklasson does not assert in his brief before this Court that the jury which served to convict him of first degree murder was in any way impartial or unable to follow the law.

1. Voir Dire Introductory Comments

Nicklasson claims that the trial court misled and confused the members of the venire in its introductory comments to each panel of the venire prior to death qualification. 1 Nicklasson alleges that the remarks were improper because: the instructions did not provide a definition of murder in the first degree; did not offer a meaningful definition of mitigating circumstances; 2 omitted descriptions of important steps of the process of jury consideration of punishment in the penalty phase of the trial; indicated that Nicklasson had to present mitigating evidence in order for the jury to consider a sentence less than death; and indicated that the defendant could present evidence comparing his crime to other capital cases and himself to other capital defendants.

1 The court's introductory comments to each venire panel, with minor variations, were as follows:

Ladies and Gentlemen, in this case, Allen Nicklasson is charged with first degree murder. As in all first degree murder cases one possible penalty is the death penalty. Because of that possibility it is necessary that you be asked certain questions about your ability to consider the full range of punishment. The questions you will be asked are asked in every case of first degree murder. The law requires that such questions be asked of you. The inquiry has no relation whatsoever to whether or not he is guilty or not guilty of the offenses charged. As he sits before you he is presumed to be innocent. The State must prove him guilty to you beyond a reasonable doubt before you can find him guilty. Since we will only have the opportunity to question you regarding the death penalty at this stage of the trial, before the State produces any evidence, I must caution you that you shouldn't conclude that just because you're asked about a possible penalty it is presumed he is guilty. In fact, the law presumes him to be not guilty. It is a part of the jury selection process that occurs in every such case. A trial on the charge of murder first degree is divided into two stages. In the first stage of the trial the jury will decide whether the defendant is guilty beyond a reasonable doubt of murder in the first degree, or whether he is guilty of a lesser degree of homicide that is supported by the evidence, or whether he is not guilty of any offense.

If the defendant is found guilty of murder in the first degree, there will be second stage of trial to determine the punishment to be imposed. The punishment prescribed by law for murder in the first degree is either death or imprisonment for life without eligibility for probation or parole. In determining the punishment to be assessed the jury must first unanimously determine whether one or more aggravating circumstances exist, and whether such circumstances warrant the imposition of the death penalty. The jurors must individually decide whether mitigating circumstances exist which outweigh the aggravating circumstances and then decide whether or not, under all the circumstances, to assess and declare punishment at death. The Court at that time will instruct you on the applicable law.

You're going to be instructed on aggravating and mitigating circumstances. Aggravating circumstances are reasons for you to consider the death penalty as an appropriate punishment. Mitigating circumstances are reasons for you to consider life without parole as an appropriate punishment. If you find the defendant guilty of Murder in the First Degree -- that is the intentional killing of another after deliberation -- you will be asked to decide the penalty to be imposed in this case. The potential penalties for Murder in the First Degree are life imprisonment without the possibility of probation or parole and death.

Under Missouri law you must make several decisions before you are asked to consider whether or not to impose the death penalty. First, you must decide whether the defendant is guilty of Murder in the First Degree. Second, you must decide whether one or more statutory aggravating circumstances apply in this case. Statutory aggravating circumstances are a list of potential facts created by the General Assembly that apply to some but not all cases of Murder in the First Degree. If the jury unanimously finds that the evidence in aggravation of punishment warrants the death penalty, this Court will instruct the jury that each juror must consider all of the evidence in mitigation of punishment. Evidence in mitigation of punishment is evidence tending to show that this homicide is not as serious as other homicides, or that the character of this defendant is not as bad as others who have committed Murder in the First Degree, or any other evidence justifying a sentence of life without the possibility of parole. The Court will further instruct you that each juror must weigh the evidence independently, and if a juror finds that the evidence in mitigation of punishment outweighs the evidence in aggravation of punishment, the juror must vote to impose a sentence of life without the possibility of parole.

The defendant has the option of presenting evidence in mitigation of punishment, but is never required to present any evidence. If the defendant presents such evidence, you will listen to such evidence and consider such evidence during your deliberation. If the jury has unanimously found that at least one statutory aggravating circumstance applies to this case and that the evidence in aggravation of punishment warrants the imposition of the death penalty, and if a juror has found that the evidence in mitigation of punishment does not outweigh the evidence in aggravation of punishment, this Court will instruct the jury that such a juror must then decide whether to vote for the imposition of a sentence of death or for the imposition of a sentence of life without the possibility of parole. The Court will further instruct the jury that before the jury can return a verdict of death such a verdict must be the unanimous decision of the jury. The Court will further instruct the jury that the State has the burden of proving beyond a reasonable doubt that the evidence in aggravation of punishment warrants the imposition of the death penalty. If the jury is unable to unanimously find that the State has proven at least one statutory aggravating circumstance beyond a reasonable doubt, the Court will instruct you that you must impose the sentence of life without the possibility of parole. (Emphasis added.)

2 There is no constitutional requirement that the trial court provide an instruction on mitigating circumstances, even in the penalty phase. Buchanan v. Angelone, 118 S. Ct. 757, 139 L. Ed. 2d 702, 66 U.S.L.W. 4075 (U.S. 1998).

Nicklasson's claims are without merit. First, the quoted portions of the trial court's comments refute most of his assertions of error based on omission. Second, Nicklasson's brief fails to favor the Court with legal argument or authority tying his generalized assertions of error to specific prejudice. Absent such argument, there is nothing for the Court to review. State v. Isa, 850 S.W.2d 876, 900 (Mo. banc 1993). Finally, assuming arguendo, that the trial court misspoke in some way during its introductory presentation to the venire, the jury received proper instructions during the guilt and penalty phases of the trial correcting the trial court's earlier error before deliberations began. State v. Gray, 887 S.W.2d 369, 379 (Mo. banc 1994), cert. denied, 514 U.S. 1042, 115 S. Ct. 1414, 131 L. Ed. 2d 299 (1995). The points are denied.

2. General Voir Dire

Nicklasson claims the trial court erred in failing to allow the defense adequately to question the venire panels regarding the law and evidence the jury might hear on the issue of diminished capacity and in refusing to allow questioning of the potential jurors about the evidence of unadjudicated other crimes that the court had ruled were admissible in the penalty phase only.

A few broad comments regarding voir dire are in order first. The purpose of voir dire is to determine which persons harbor bias or prejudice against either party which would make them unfit to serve as jurors. State v. Antwine, 743 S.W.2d 51, 60 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 100 L. Ed. 2d 217, 108 S. Ct. 1755 (1988). "The examination of jurors as to their qualifications is conducted under the supervision of the trial court and the nature and extent of the questions counsel may ask are discretionary with that court." State v. Smith, 649 S.W.2d 417, 428 (Mo. banc), cert. denied, Smith v. Missouri, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (1983). A defendant has a right, through the process of voir dire, to discover bias or prejudice on the part of prospective jurors. This is a right to participate in voir dire, not to dictate how voir dire is conducted. The trial court is vested with wide discretion in the conduct of voir dire. State v. Ramsey, 864 S.W.2d 320, 335 (Mo. banc 1993), cert. denied, 511 U.S. 1078, 114 S. Ct. 1664, 128 L. Ed. 2d 380 (1994). Id. The nature and extent of questioning on voir dire is within the discretion of the trial judge. We review the trial court's actions for abuse of discretion. Where appellant claims the trial court abused its discretion, appellant has the burden of showing "a real probability that he was thereby prejudiced." State v. Gray, 887 S.W.2d at 382.

In support of his argument that he had a right to probe the venire more fully on diminished capacity and unadjudicated crimes, Nicklasson seizes language from State v. Young, 844 S.W.2d 541, 547 (Mo. App. 1992), and State v. Finch, 746 S.W.2d 607, 613 (Mo. App. 1988). In Young, the court rebuffed a claim that the trial court had permitted too-broad voir dire by the state. The court said that "counsel is afforded much latitude in probing the venire panel to determine preconceived prejudices which would prevent them from following the court's instructions." Young, 844 S.W.2d at 547. In Finch, the court found reversible error in the trial court's decision to limit inquiry into whether a potential juror would automatically believe a person who claimed to have been raped. The court said that "it is the rule in this state that a liberal latitude is allowed in the examination of the jurors on voir dire." The court also wrote, "Litigants have the right, through the process of voir dire, to discover bias or prejudice on the part of prospective jurors and they should be allowed wide latitude in the search for open minded jurors." Finch, 746 S.W.2d at 613.

Young and Finch cannot be read to permit the unfettered voir dire for which Nicklasson argues. Reading further in Young, we discover reference to State v. White, 699 S.W.2d 19 (Mo. App. 1985). White says: No fixed and inflexible rule may be laid down which may in all cases determine the extent to which counsel may go in the examination of jurors upon voir dire. Such examination is conducted under the supervision of the trial court, and in such matters the court necessarily has considerable discretion. White, 699 S.W.2d at 21, citing State v. Crockett, 419 S.W.2d 22 (Mo. 1967). We are back where we began, even giving Finch and Young their full due. The test of the adequacy of voir dire is whether the process permits the parties to discover bias, prejudice or some other form of impartiality on the part of potential jurors. The trial court abuses its discretion and reversal is required only if the voir dire permitted does not allow the discovery of bias, prejudice or impartiality in potential jurors.

c. Diminished Capacity

Nicklasson claims that the trial court improperly restricted his inquiry concerning the venire panel's ability to follow an instruction regarding diminished capacity. The record supports his claim that he was not allowed to probe each juror as to every facet of the diminished capacity instruction. The record also shows that the trial court permitted Nicklasson's counsel to read MAI-CR3d 308.03 relating to diminished capacity to the venire and ask if the potential jurors could follow it. Two jurors had questions about the instruction. Nicklasson's counsel explained the instruction and probed those two jurors' understanding of it. This voir dire produced no indications that any venireperson would be unable to follow the instruction or consider a diminished capacity defense.

d. Unadjudicated Crimes

Nicklasson also claims that the trial court improperly barred him from questioning the venire about the effect of evidence of two other homicides Nicklasson admitted to committing while in Arizona would have on them. The trial court precluded this line of questioning because it improperly sought a commitment from the venire, it was "blatantly prejudicial" and the court could not "conceive of any evidence of [the Arizona homicides] that [would] get in front of this jury in the [guilt] phase." In fact, the jury did not hear evidence of the other homicides in guilt phase other than a brief reference to an "unspecified weapons offense." We find no abuse of discretion in the trial court's decision to pretermit questioning in this area during voir dire.

3. Death Qualification

Nicklasson's primary challenge to the voir dire focuses on the trial court's procedure for death qualification of the venire. He contends that the trial court violated his constitutional rights by prohibiting Nicklasson from asking questions during the death qualification portions of the voir dire. (The trial court imposed the same limitation on the state's counsel.) Specifically, Nicklasson asserts that the death qualification portion of the voir dire violated his rights to due process, U.S. CONST. AMENDS. V & XIV and MO. CONST. ART. I, SEC. 10; to an impartial jury and effective assistance of counsel, U.S. CONST. AMENDS. VI & XIV and MO. CONST. ART. I, SEC. 18(A); and to be free from cruel and unusual punishment, U.S. CONST AMENDS. VIII & XIV and MO. CONST. ART. I, SEC. 21.

The trial court conducted the entire death penalty qualification portion of the voir dire, asking these ten questions of every potential juror: 1) Could you after a fair and impartial consideration of all the evidence in the case, the Court's instructions, and the argument of counsel, decide whether the defendant is guilty beyond a reasonable doubt of Murder in the First Degree or whether he is guilty of a lesser degree of homicide, or whether he is not guilty? 2) Could you follow the Court's instructions and consider the evidence of aggravating circumstances? 3) Could you follow the Court's instructions and consider the evidence of mitigating circumstances? 4) Could you follow the Court's instructions and consider the evidence of mitigating circumstances and individually decide that the mitigating circumstances outweigh the aggravating circumstances? 5) Could you follow the Court's instructions, consider the aggravating circumstances and the mitigating circumstances, and unanimously decide with your other jurors that the aggravating circumstances outweigh the mitigating circumstances? 6) Could you follow the Court's instructions, and after considering all the evidence in the case, and after considering both aggravating and mitigating circumstances, consider the imposition of the death penalty? 7) Could you follow the Court's instructions, and after considering all the evidence in the case and after considering both aggravating and mitigating circumstances, consider the imposition of life without probation or parole/death penalty? 8) Would you after having found the defendant guilty beyond a reasonable doubt of Murder in the First Degree automatically vote for imposition of the death penalty? 9) Would you after having found the defendant guilty beyond a reasonable doubt of Murder in the First Degree automatically vote for imposition of the sentence of life without probation or parole? 10) Would you after having found the defendant guilty beyond a reasonable doubt of Murder in the First Degree follow the Court's instructions and consider both the imposition of the death penalty or the imposition of the sentence of life without probation or parole?

A reading of the United States Supreme Court's decisions interpreting the constitutional requirements for voir dire in capital cases reveal these broad principles applicable in this case: that the constitution requires that a defendant be afforded an impartial jury, AMEND. VI; that "certain" inquiries are required to "effectuate constitutional protections," Morgan v. Illinois, 504 U.S. 719, 730, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992); that the purpose of these inquiries is to permit the trial court and the parties to determine those members of the venire that harbor bias such that they cannot be impartial, Rosales-Lopez v. United States, 451 U.S. 182, 188, 68 L. Ed. 2d 22, 101 S. Ct. 1629 (1981); and that the party wishing to exclude a juror must "demonstrate, through questioning, that the potential juror lacks impartiality." Wainwright v. Witt, 469 U.S. 412, 423, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985).

In a state in which jurors make a sentencing recommendation in capital cases, a potential juror is not "impartial" if the juror will automatically vote for the imposition of the death penalty without regard to evidence or legal instructions, Witherspoon v. Illinois, 391 U.S. 510, 522, n. 21, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), or if the potential jurors' views would "prevent or substantially impair the performance of their duties in accordance with their instructions or their oaths," Witt, 469 U.S. at 424, n. 5. Thus, in cases that do not have a potential for racial bias, Ham v. South Carolina, 409 U.S. 524, 526-7, 35 L. Ed. 2d 46, 93 S. Ct. 848 (1973), the "certain" inquiries to which Morgan refers are two-fold: First, the Witherspoon question, designed to assure the defendant that the jury is not "organized to return a verdict of death," 391 U.S. at 521, and second, the complementary Witt question, designed to permit the state to test whether a venireperson's aversion to the death penalty would result in an automatic vote for a sentence of life without parole. Together these questions are designed to produce "a jury that could impartially decide all of the issues in [a capital] case." Lockhart v. McCree, 476 U.S. 162, 180, 90 L. Ed. 2d 137, 106 S. Ct. 1758 (1986).

We read the cases, particularly Morgan, to hold that the absence of the Witherspoon inquiry is tantamount to a denial of fundamental fairness in a capital trial. For this reason, Morgan speaks of "a right to make inquiry" in the defendant, the purpose of which is to permit the defendant "to exercise intelligently his complementary challenge for cause against those biased persons on the venire who as jurors would unwaveringly impose death after a finding of guilt." 504 U.S. at 733. This intelligent exercise of challenges for cause depends on a voir dire that permits the defendant to meet his (or her) burden of demonstrating that a potential juror lacks impartiality.

It is the sufficiency of the inquiry permitted on voir dire that Morgan sanctifies, not the person actually asking the questions. For this reason, we reject Nicklasson's claim that defense counsel must conduct the death-qualification voir dire for it to be constitutional. The Supreme Court's interpretation of the constitution is fully satisfied if the trial court asks the appropriate questions and permits the level of inquiry the cases suggest. This is so despite our preference for attorney questioning in voir dire. The constitution is both deaf and blind as to its preference regarding who actually asks the questions in voir dire. All that matters is that the constitutional waterfront is covered -- that sufficient inquiry by someone is permitted to ferret out bias, prejudice and impartiality in potential jurors.

Was voir dire in this case sufficient? In Morgan, a divided Supreme Court held that general fairness and follow-the-law questions did not permit sufficient inquiry to assure either party an impartial jury. 3

3 In Morgan, the trial court asked each venire: "Whether any member had moral or religious principles so strong that he or she could not impose the death penalty 'regardless of the facts.'" The trial court also asked all individual venirepersons "Would you automatically vote against the death penalty no matter what the facts of the case were?" The trial court asked some, but not all venirepersons: "Would you follow my instructions on the law even though you may not agree?" And the trial court asked all venirepersons either: "Do you now of any reason why you cannot be fair and impartial?" or "Do you feel you can give both sides a fair trial?" Although requested by the defendant, the trial court refused to ask, "If you found Derrick Morgan guilty, would you impose the death penalty no matter what the facts are?" Morgan, 504 U.S. at 722-724.

Witherspoon and its succeeding cases would be in large measure superfluous were this Court convinced that such general inquiries could detect those jurors with views preventing or substantially impairing their duties in accordance with their instructions and oath. . . . Any juror who would impose the death penalty regardless of the facts cannot follow the dictates of the law. [citation omitted]. It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so. A defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception. . . . Petitioner was entitled, upon his request, to inquiry discerning those jurors who, even prior to the State's case in chief, had predetermined the terminating issue in his trial, that being whether to impose the death penalty. Morgan, 504 U.S. at 734-6.

The voir dire in this case did not suffer from the deficiencies found in the Morgan voir dire. The trial court specifically asked the automatic-sentence question from both sides. In addition, the trial court inquired whether a potential juror could consider both punishments as well as both mitigating and aggravating circumstances. The voir dire in this case satisfied the sufficiency-of-inquiry requirements imposed by Witherspoon-Witt-Morgan.

If the voir dire is constitutionally sufficient, the final decisions as to which members of the venire are not impartial lies within the sound discretion of the trial court. Voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." Morgan, 504 U.S. at 729, quoting Ristaino v. Ross, 424 U.S. 589, 594, 47 L. Ed. 2d 258, 96 S. Ct. 1017 (1976), quoting Connors v. United States, 158 U.S. 408, 413, 39 L. Ed. 1033, 15 S. Ct. 951 (1895). "A trial court's findings of juror impartiality may 'be overturned only for "manifest injustice."'" Mu'Min v. Virginia, 500 U.S. 415, 428, 114 L. Ed. 2d 493, 111 S. Ct. 1899 (1991), quoting Patton v. Yount, 467 U.S. 1025, 1031, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984), quoting Irvin v. Dowd , 366 U.S. 717, 723, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961).

Nicklasson moved to disqualify several venirepersons for cause. Though most of his motions to strike for cause were sustained, the trial court overruled several. In each instance when it overruled a motion to strike for cause, the trial court explained its reasoning. Again, giving the trial judge -- who saw and heard each potential member of the jury -- the appropriate measure of deference, we can not find error in the trial court's failure to strike the venirepersons for cause. Wainwright v. Witt, 469 U.S. at 426. Moreover, under section 494.480.4, RSMo, denials of challenges for cause -- even if erroneous -- are not a basis for reversal of a conviction or for granting a new trial where such venirepersons do not actually sit on the jury, that determines guilt and/or recommends punishment. The test under the statute and the constitution is whether the jury actually seated was impartial. Ross v. Oklahoma, 487 U.S. 81, 88, 101 L. Ed. 2d 80, 108 S. Ct. 2273 (1988). Therefore, we individually address Nicklasson's claims of erroneous failure to strike for cause only as to jurors Poletsky, Hutton, and Sorensen, who actually served on Nicklasson's jury.

Nicklasson claims that juror Mildred Poletsky hesitated when she answered the court's death-qualification questions, that she asked the court to repeat a question, that she allegedly answered some questions in a stronger manner than others and that the trial court abused its discretion in denying his motion to strike her for cause. The trial court said that it "was persuaded from viewing the demeanor of Ms. Poletsky, seeing her responses to the questions that she'll listen to the evidence and the exhibits, and she'll render a fair and impartial verdict based on those things alone and will follow the Court's instructions and consider the full range of punishment." Nicklasson claims that the trial court abused its discretion when it overruled his motion to strike juror Nancy Hutton for cause because she hesitated when she answered the court's death-qualification questions. The trial court said that it "was persuaded that Ms. Hutton will consider the evidence, the exhibits, and the arguments of counsel, and the Court's instructions and consider the full range of punishment and render a fair and impartial verdict based on that. So the request for strike for cause . . . will be denied."

Nicklasson moved to strike juror Joann Sorensen for cause because Sorensen's husband knew the victim in this case, she may have seen some pre-trial publicity about the case and she alleged hardship due to her daughter's upcoming confirmation. Nicklasson claims that the trial court abused its discretion in failing to sustain his motion. The record shows that Ms. Sorensen answered the court's death-qualification questions consistently and conscientiously. The day after she was first questioned as a member of the venire, she brought to the court's attention that her husband knew the victim. She told the court that she did not remember whether she had read anything about the case, that she could disregard it if she remembered anything and that the connection between her husband and the victim would not affect her ability to be fair and impartial. The court was "persuaded she could listen to the testimony, see the exhibits, listen to the Court's instructions and render a fair and impartial verdict based on that alone."

Nicklasson has the burden of showing "a real probability that he was thereby prejudiced." State v. Gray, 887 S.W.2d at 382. Since he does not claim that any member of the venire who ultimately served on the jury was biased, Nicklasson does not meet his burden of showing "a real probability that he was thereby prejudiced." Id. We find no manifest injustice or abuse of discretion in the trial court's decision with regard to these jurors. The point is denied.

V. Alleged Batson Violations

Nicklasson claims that the court erred in allowing the state to strike, peremptorily, two African-American jurors and one female juror based on gender, in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 127-29, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994). Batson challenge is a three-step process. First, defendant raises a challenge to the state's peremptory strikes based on race or gender and identifies the cognizable group to which the venirepersons belong. State v. Parker, 836 S.W.2d 930, 939-40 (Mo. banc), cert. denied, 506 U.S. 1014, 113 S. Ct. 636, 121 L. Ed. 2d 566 (1992). The state must then provide a reasonably specific and clear, race-neutral explanation for the strike. Once the state provides an acceptable reason, the burden shifts to the defendant to show that the state's reasons are pretextual and that the strikes are actually racially motivated.

A prosecutor's explanation, if reasonably specific, clear and race-neutral, will be sufficient to uphold a strike unless there is an inherently discriminatory intent in the explanation. State v. Weaver, 912 S.W.2d 499, 509 (Mo. banc 1995), cert. denied, Weaver v. State, 117 S. Ct. 153, 136 L. Ed. 2d 98 (1996). The chief consideration is how plausible the prosecutor's explanations are in light of the totality of the facts and circumstances. Parker, 836 S.W.2d at 939. Any facts or circumstances that detract from or lend credence to the prosecutor's proffered explanations are relevant. Id. In evaluating the reasons for a strike, the trial court may take into account many factors including the demeanor of the prosecutor, the existence of similarly-situated white or male jurors not stricken by the prosecution and objective factors that would cause the state to discriminate on the basis of race. Id. The existence of similarly-situated white or male jurors is probative of pretext, but it is not dispositive. Id. This Court will set aside the trial court's finding only if it is clearly erroneous. Id.

In defense of its decision to use a peremptory challenge to venireperson Ms. Yokley, the state explained: During the Court's death qualification about whether or not you could consider death penalty, life, automatic death, automatic life, Ms. Yokley's response was that while she could . . . consider both that she would probably return a sentence of life without parole. She was one of the few that went that far to show favoritism towards one or other personalities during that qualification process [sic]. The fact that Ms. Yokley answered that she would "probably" impose a life sentence is sufficiently neutral reason for exercising a peremptory strike to withstand a Batson challenge.

Nicklasson argues that the state did not challenge venireperson Floyd -- a white person -- who also answered that she "believed" she would impose life. Nicklasson claims this fact supports his argument that the state challenged Ms. Yokley on account of her race. That the state did not challenge Ms. Floyd does not necessarily show that a Batson violation has occurred. The state is entitled to make judgments about the strength of a particular venireperson's commitment to the life-without-parole option, vis-a-vis, that of another venireperson whose words do not convey the same conviction. Here the trial judge stated: The Court has had an opportunity to review the strikes made by both sides. The Court is persuaded that the strike was not made for any reason set out in Batson v. Kentucky or any of the other cases . . . . And the Court is persuaded that it is race neutral. We discover no clear error in the trial court's decision.

In defense of its peremptory challenge to venireperson Karen McNeil, the prosecutor stated: The record will . . . reflect that she works for the Illinois Department of Family Services, has extensive contact with people involved in child abuse. We just didn't want her to bring up her experiences in the jury room. Nicklasson argues that juror Lynn Stark, a white person, was similarly situated to Ms. McNeil, and that a Batson violation occurred because the state peremptorily challenged Ms. McNeil and not Ms. Stark.

Employment is a valid, race-neutral reason for exercising a peremptory strike. State v. Gray, 887 S.W.2d at 384-385; State v. Smulls, 935 S.W.2d 9, 15-16 (Mo. banc 1996), cert. denied, 117 S. Ct. 2415, 138 L. Ed. 2d 180 (1997). A clinical nurse, Ms. Stark, specialized in child psychology; Ms. McNeil investigated child abuse cases. The two jobs are different. Focusing on the most superficial distinctions, one deals with the physical and familial aspects of a child's life and attempts to stop or prevent abuse. The other confronts the psychological and clinical aspects of child abuse and attempts rehabilitation of the mind and spirit after abuse has occurred. The trial court was "persuaded that there are quantum differences between the two jobs, and [the court does not] believe there [is] any racial motivation in the challenge." As with race, the United States Supreme Court has prohibited the use of peremptory challenges solely on the basis of a venireperson's gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 127-29. The prosecution struck venireperson Teri Martin because, Nicklasson claims, Martin is a woman.

In defense of exercising a preemptory challenge to strike venireperson Teri Martin, the prosecutor noted: Ms. Martin was one of the last people we struck. We were having a hard time finding people to strike. With Ms. Martin, basically the reason we ended up striking her is because she didn't say anything during the two days of general voir dire, and we had no idea of her position on anything. The state's reason for striking Ms. Martin -- failure to participate actively in voir dire -- is gender-neutral on its face. The court did not clearly err in upholding the state's peremptory strike against Nicklasson's J.E.B. challenge. The points are denied.

VI. Alleged Erroneous Excusals for Cause

Nicklasson claims the trial court erred in excusing jurors Fleece and Wozniak for cause after the members of the jury had been chosen.

A. Juror Fleece

First, we note that Nicklasson tried to strike Ms. Fleece for cause, a motion the trial court overruled. Now, he assigns error to the trial court's decision to dismiss her as a juror because she began crying hysterically immediately after the list of jurors was read. The trial court called counsel to the bench to discuss dismissing her after she began crying. The court stated: Ms. Fleece is having a nervous breakdown in front of us. . . . No one else is being as emotional as she is. She's being incapable of considering, what I see here. Section 494.485, RSMo 1994, permits the trial court to replace jurors who "become or are found to be unable or disqualified to perform their duties." Given Ms. Fleece's inappropriate emotional response to news of her jury service, we find no abuse of discretion by the trial court's decision that she was unable to perform her duties as a juror and in replacing her with an alternate.

B. Juror Wozniak

Ms. Wozniak was originally selected as an alternate juror. She took Ms. Fleece's place after Ms. Fleece's excusal. The trial court received a note from Ms. Wozniak's doctor, Dr. Craig Boyd, indicating that Ms. Wozniak, who was pregnant, was subject to pre-term labor and that her doctor believed health considerations counseled against jury service. The trial court later received a call from Wozniak's husband -- also a doctor -- restating what Dr. Boyd had written. The trial court asked Ms. Wozniak whether she could sit on the jury. She replied: I honestly don't think that I can sit here for the next 14 days. It's uncomfortable to sit here hour after hour. I have very bad veins. And I didn't mention this in my questionnaire. I really didn't think it pertinent at the time when you're called for jury duty. And it's just 99 percent of the population who gets called for jury duty and doesn't probably get called for this kind of duty. And that's probably why I didn't bring that up before. But do I think I can sit here for 14 days comfortably and be able to concentrate? I doubt it. Given the pre-term labor susceptibility, vein problems, and inability to concentrate reported by Ms. Wozniak and her doctor, we find no abuse of discretion in the trial court's decision to excuse her. SECTION 494.485, RSMO 1994. The points are denied.

VII. Alleged Improper Argument
A. Guilt Phase

Nicklasson asserts that the trial court erred in allowing the state to make three guilt-phase arguments. The first argument did not raise an objection from Nicklasson's counsel and Nicklasson now seeks plain-error review. RULE 30.20. Read in context, these complained-of statements do not provide substantial grounds for believing that a manifest injustice or miscarriage of justice has resulted. We decline to review for plain error. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, 516 U.S. 1031, 116 S. Ct. 679, 133 L. Ed. 2d 527 (1995).

Next, Nicklasson complains of the prosecutor's statement: He's seen hundreds of mental health practitioners, not just Dr. Gowdy. Not just the two individuals they hired. He's seen every type of person throughout his life who could treat him. And then, they've tried medications; different diagnoses. And at the end of all the times he's at each location, if you concentrate and focus on the discharge diagnosis at that time--not on all the different ones he had at discharge -- each time, he's better than he was before. Nicklasson's objected and now claims these statements were false. While the record does not support the large number ("hundreds") of mental health practitioners to which the argument refers, the record does support the substance of the treatment aspects of the statement. Doctors Churchill, Fossey-Bisaha and Hampton all testified to times where Nicklasson's mental health condition improved just as the prosecutor stated. It is permissible to argue facts in evidence. Moreover, the trial court has broad discretion in determining the scope of arguments and counsel is afforded wide latitude in summation. State v. Twenter, 818 S.W.2d 628, 634 (Mo. banc 1991). Unless there is an abuse of discretion that prejudices the defendant, this Court will not disturb the trial court's rulings on matters involving closing argument. State v. Mahurin, 799 S.W.2d 840, 844 (Mo. banc. 1990), cert. denied, 502 U.S. 825, 116 L. Ed. 2d 62, 112 S. Ct. 90 (1991).

Last, Nicklasson argues that the prosecutor impermissibly lodged an attack against defense counsel by suggesting that the defense was fabricated. The complained of statements were: [The] counsel for the defendant are quite good. . . . [The defense team] has defended the defendant; presented this defense to you. Nicklasson's claim that these words suggest fabrication by the defense. This interpretation of the language used is not supported by the meaning normally associated with those words. The points are denied.

VIII. Evidentiary Issues
A. Guilt Phase
1. Separate Crimes Evidence

Nicklasson challenges the trial court's action in admitting evidence of the burglary of the Smith home, an assault, and "unspecified weapons offenses" from other states in the guilt phase. "Evidence of uncharged crimes that are independent of and logically relevant to a fact issue in the case may be admissible if the probative value outweighs the prejudice." State v. Gray, 887 S.W.2d at 386. This Court faced, and rejected, the issues raised by Nicklasson previously in Skillicorn. There, the majority held that when evidence of other crimes shows the sequence of events surrounding the charged crime, the evidence is admissible provided it has some legitimate tendency to prove that the accused committed the crime for which he is being tried and is more probative than prejudicial. Skillicorn, 944 S.W.2d at 887. There is no reason to depart from the majority's position in Skillicorn. The point is denied.

2. Diminished Capacity

Nicklasson claims that rulings of the trial court effectively prevented him from presenting a diminished capacity defense.

a. 266 Exhibits Nicklasson argues that the trial court erred in failing to submit to the jury 266 exhibits that Nicklasson insists qualified under the business record exception to the hearsay rule. Because Nicklasson does not provide specific argument for each of the 266 exhibits, he waives any claim of error as to those exhibits for which he provides no specific argument. State v. Isa, 850 S.W.2d at 900. As to those for which Nicklasson provides argument, many of the records contained hearsay. Even if a document falls under the business record exception, the document is inadmissible if the underlying statement it contains is inadmissible hearsay. State v. Sutherland, 939 S.W.2d 373 (Mo. banc), cert. denied, 118 S. Ct. 186, 139 L. Ed. 2d 125 (1997). The trial court did not err in refusing to admit these documents. Thirty-two of the exhibits related to Nicklasson's mother and were cumulative of evidence before the jury already. See discussion, infra, Section IX, B, 2, "265 Exhibits." Other exhibits related to Nicklasson. However, they related to conditions and events already in evidence. As such, they were cumulative. No error resulted from the trial court's decision barring these exhibits. 4

4 In fact, after reviewing the exhibits, Nicklasson was likely aided by the omission of many of them.

From a prison superintendent, while Nicklasson was serving a sentence prior to this crime, the jury would have learned that "he killed his father, attempted to kill his step-father, and is presently serving time for the assault of a correctional officer. Unfortunately for the citizens of this State, his maximum release date is December 6, 1993. . . . This man without a doubt will kill someone when released." From a psychiatric evaluation, the jury would have discovered that "he was . . . able to identify the extent of his anger and potential for violence. . . . [Nicklasson] expressed a great deal of apprehension about the future and a fear that his ability to function in the free world may lead to further criminal behavior and potential for violence towards himself as well as others. He was however rational. . . ." From another psychiatric evaluation, the jury would have read that "[Nicklasson] reports enjoying intimidating the weaker inmates."

Simpson Testimony

Nicklasson claims that the trial court erred in precluding David Simpson's testimony. Nicklasson claims that Mr. Simpson's testimony would have provided evidence directly contradicting the state's inference that Nicklasson was better each time he left a facility. The jury heard ample evidence of Nicklasson's long-standing mental problems. The defense wanted to show, through Mr. Simpson's testimony, that Mr. Simpson thought Nicklasson needed long-term treatment in a structured setting. As such, his testimony would not show that Nicklasson had not made improvements in his treatments, only that further improvement was needed. The evidence already before the jury had made this point.

Bailey and Henry Testimony

Nicklasson assigns error to the trial court's refusal to let defense counsel, Bailey and Henry, testify that they made "constant efforts to keep [Nicklasson] composed during the trial because of their fear that he would erupt in the courtroom." The defense sought to offer this testimony after the state asked Dr. Robert Geffner on cross-examination: Q: It's my understanding that that makes it more likely that that defendant is going to go off; is that right? A: If he perceives it as stressful and his stress level goes high, that is accurate. Q: Well, do you think sitting in a courtroom on trial for capital murder is a stressful situation? Nicklasson characterizes the purpose of this question as showing that Nicklasson did not suffer from a mental disease or defect because he did not "act out" during the trial. The trial court sustained a defense objection to this question and denied defense request for a cautionary instruction and for a mistrial. Because the trial court observes the testimony and its impact, appellate review of remedial action to correct improper questioning is for abuse of discretion. State v. Parker, 886 S.W.2d 908, 922 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S. Ct. 1827, 131 L. Ed. 2d 748 (1995); State v. Feltrop, 803 S.W.2d 1, 9 (Mo. banc), cert. denied, 501 U.S. 1262, 115 L. Ed. 2d 1081, 111 S. Ct. 2918 (1991). Giving the trial court the benefit of its superior position to weigh the impact of this question, we cannot say that the trial court erred in sustaining the objection and in refusing to give a limiting instruction or declare a mistrial or in refusing to permit Nicklasson's counsel to testify as to their efforts to keep Nicklasson from acting out at trial.

Ability to Deliberate

Nicklasson alleges that he was improperly precluded from presenting testimony from Drs. Geffner and Logan regarding his ability to deliberate. The trial court properly excluded this evidence. Both doctors based their opinion -- that his ability to deliberate was impaired -- on Nicklasson's voluntary substance abuse. Introduction of a voluntary drugged state to negate a culpable mental state is prohibited. SECTION 562.076.3, RSMO 1994; State v. Roberts, 948 S.W.2d 577, 588 (Mo. banc 1997). A jury may not consider voluntary intoxication on the issue of a defendant's mental state.

3. Other Evidentiary Issues
State's Exhibits P4 and P7

Nicklasson claims that the trial court erred in admitting exhibits P4 and P7, Drummond's AT&T pocket knife and key chain, over his objections. He claims that the state failed to lay a proper foundation to show chain of custody of those items. The trial court heard testimony about the normal protocol when bodies arrive for autopsy: Michael Phillips, an assistant at the Fountain Mortuary, where the autopsy was performed, testified that he assists in unclothing the bodies, goes through the pockets and gives any contents to law enforcement authorities. Trooper Oberweather, of the Missouri State Highway Patrol, testified that he received the knife and keychain from Mr. Phillips. Mr. Drummond's wife testified that the key chain and knife were similar to those her husband carried and that their house key was on the key chain. The sufficiency of the evidence to support a finding of a valid chain of custody is within the sound discretion of the trial court. State v. Murray, 630 S.W.2d 577, 581 (Mo. banc 1982). The trial court did not abuse its discretion in admitting the knife and key chain.

Alleged Improper Remarks to the Jury

Nicklasson claims that the trial court made remarks to the jury that diminished the jurors' sense of responsibility, thereby misleading the jury about its role. The challenged comments were: You judge the facts. I'm judge of the law. And when we walk away from here, we're going to say the right thing is done. You'll do that, we'll have absolutely no problem. And then they can do whatever they have to do with the rest of the system, and let me assure you this is the beginning of the system. I have no preconceptions about that. And that's the way it should be. Because, as you've seen, I make decisions in the snap of a finger, and it's hopefully because in the last 30 years I've learned how to snap that finger, but there are other people that are going to be able to look at all this because [the court reporter] is doing her job. She's not just sitting here playing a game. But the job right now is your job and my job. We do everything right. We can feel good about it no matter what happens later.

Nicklasson compares these statements to those condemned in Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). In Caldwell, the Court reversed a conviction because the trial court told members of the jury that their decision was not "the final decision," Caldwell, 472 U.S. at 342, and that "the decision you render is automatically reviewable by the Supreme Court." The trial judge's comments, in his pre-trial statement to the jury explaining what they would be doing for the next several weeks, do not lessen the jurors' sense of responsibility. Instead, the trial court suggested that the jurors bore a grave responsibility and that they should focus on fulfilling that responsibility without regard to considerations of events that might follow. This is not a Caldwell violation.

Arthur McOmber's Testimony

Nicklasson argues that testimony from FBI Special Agent Arthur McOmber was improperly admitted. Nicklasson asserts in his brief to this Court that this exchange was "both improper and highly prejudicial," but he cites no authority and presents no argument to support those broad conclusions. His argument is waived. State v. Isa, 850 S.W.2d at 900.

B. Penalty Phase
1. Other Crimes Evidence

Nicklasson alleges that the trial court erred in admitting other crimes evidence during penalty phase. This evidence showed that Nicklasson had discharged a firearm in California, committed serious assaults and had admitted to two additional murders in Arizona. Separate punishment phases exist in capital cases to permit the presentation of a wide range of evidence about the defendant's past character and conduct, while avoiding the possibility of placing prejudicial or irrelevant evidence in front of the jury before the determination of guilt or innocence. Gregg v. Georgia, 428 U.S. 153, 190, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). The sentence-recommender should generally hear any evidence that aids it in making an individualized determination of an appropriate punishment. State v. Kreutzer, 928 S.W.2d 854, 874 (Mo. banc 1996), cert. denied, Kreutzer v. Missouri, 117 S. Ct. 752, 136 L. Ed. 2d 689 (1997). This evidence includes evidence of separate crimes. State v. Wise, 879 S.W.2d 494, 520 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 130 L. Ed. 2d 656, 115 S. Ct. 757 (1995); State v. Jones, 749 S.W.2d 356, 364 (Mo. banc), cert. denied, 488 U.S. 871, 109 S. Ct. 186, 102 L. Ed. 2d 155 (1988).

2. Mitigating Evidence

Nicklasson claims that the trial court improperly prevented him from presenting the following penalty-phase evidence: two-hundred-sixty-five exhibits; evidence about Nicklasson's mother; evidence regarding abandonment by Nicklasson's father; evidence of Nicklasson's mother's sterilization; evidence that Nicklasson was willing to plead guilty to first-degree murder; a display to the jury of Nicklasson's hand; a photograph of Nicklasson drinking beer with his father; that Skillicorn was the "brains" of the group; testimony of an art therapist; and evidence that his relatives would visit him in prison. The trial court has broad discretion in determining whether evidence offered during the penalty phase of a capital case is admitted. State v. Leisure, 749 S.W.2d 366, 379 (Mo. banc 1988), cert. denied, 506 U.S. 923, 121 L. Ed. 2d 259, 113 S. Ct. 343 (1992). A court may exclude, as irrelevant, any evidence not bearing on the defendant's character, prior record, or the circumstances of his offense. Lockett v. Ohio, 438 U.S. 586, 604, n. 12, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). Absent clear abuse of discretion, an appellate court will not interfere with the trial court's ruling on admission or exclusion of evidence. State v. Heinz, 607 S.W.2d 873, 877 (Mo. App. 1980); State v. Radford, 646 S.W.2d 366, 367 (Mo. App. 1982); State v. Kalna , 595 S.W.2d 299, 300 (Mo. App. 1979). It is not an abuse of discretion for the trial court to limit cumulative evidence. State v. Heinz, 607 S.W.2d at 877; State v. Radford, 646 S.W.2d at 367; State v. Kalna, 595 S.W.2d at 300.

Testimony of an Art Therapist Nicklasson argues that he should have been permitted to present testimony from art therapist, Julie Ball, who would interpret drawings made by the defendant to show his "enormous emotional problems." The jury heard the testimony of four doctors -- Churchill, Logan, Geffner and Flemming -- regarding various mental illnesses from which Nicklasson allegedly suffered. The trial court concluded that further evidence of Nicklasson's mental condition would have been cumulative.

Evidence that Nicklasson's Relatives Would Visit Him in Prison

Nicklasson claims that the trial court erroneously prohibited Nicklasson from presenting testimony that his relatives would visit him in prison if he was given a life sentence. The record shows that the jury heard Nicklasson's aunt say: Q. Ms. Novak, do you still care for Allen? A. Yes, I do. Q. Now that you know where Allen is, will you keep in contact with him if he's allowed to live? A. Yes, I will. Q. Will you visit him in prison? A. Yes, I will. The state objected, based on relevancy. The trial court sustained the objection. That a convicted murder's relatives care about him is not relevant to the punishment question.

Display to the Jury of Nicklasson's Hand

Nicklasson claims that the trial court erred in refusing to allow him to display his hand to the jury. The jury heard the testimony of several witnesses that Nicklasson chewed and mutilated his hand when he was a child and continued to do so as an adult. These witnesses described Nicklasson's hand variously as callused on the knuckle where he chewed and as a continuous open wound produced by his self-mutilation. A display of the hand to the jury would only have reiterated what these witnesses had already said. Assuming, arguendo, that it was error for the trial court to refuse Nicklasson's request, the error was not prejudicial.

Mother's Sterilization

The evidence of Nicklasson's mother's sterilization was irrelevant to questions of Nicklasson's character, record or the circumstances of his offense. Lockett, 438 U.S. at 604, n. 12. Nonetheless, it was presented to the jury through the testimony of defense witness Novak: Q: At some point did you and your mother go to a lawyer to see to it that [Nicklasson's mother] couldn't have any more children? A: Yes, I did. Q: And why did you do that? A: Because the men -- [Nicklasson's mother's] mental capacity was not up to taking care of a child. She had already abandoned one, abused the child, and now she was pregnant with another child. * * * Q: And was there, in fact, an order forcing that she be sterilized upon the birth of Mr. Nicklasson? A: Yes, there was. The jury also heard considerable evidence, from a number of sources, that Nicklasson's mother was unfit to parent.

Photograph of Nicklasson Drinking Beer with his Father

The photo in question was apparently a picture of Nicklasson, at age 5 or 6, holding a beer can next to the man he believed to be his father. Nicklasson contends that the photo was relevant to show his exposure to alcohol at an early age and the disparity in size between him and his "father" -- who allegedly physically abused him. The jury had before it ample evidence of Nicklasson's life of substance abuse. The picture indicates only that Nicklasson held a beer can and would have added but a straw to a considerable evidentiary hay stack of proof of substance abuse. Nicklasson also claims that the photo shows the disparity in size between Nicklasson and his father and that this highlighted the brutality of the abuse he suffered as a child. There was ample evidence before the jury that Nicklasson was horribly abused as a child. The jury heard that someone, likely his father or a boyfriend of this mother, had broken his knuckles with pliers when Nicklasson was a small child. The jury also heard evidence of the father's size. The trial court did not err in refusing to admit the cumulative evidence of the photo.

265 Exhibits

Nicklasson provides specific argument for only five of the two-hundred-sixty-five exhibits which he claims should have been admitted. Therefore, any claims to error regarding the other two hundred sixty exhibits are waived. State v. Isa, 850 S.W.2d at 900. Exhibit 216 offered evidence about Nicklasson's mother, not Nicklasson. Sentencer-recommenders in a death penalty case are required to consider, as mitigating factors, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence less than death. Lockett v. Ohio, 438 U.S. at. 604, n. 12. As this exhibit dealt with Nicklasson's mother's mental instability, ample evidence of which had already made its way to the jury, it was not an abuse of discretion for the trial court to deny its relevance. Nicklasson claims that exhibits 239 and 249 would have shown that he was admitted to the hospital for beatings suffered at the hands of his mother's boyfriend. This evidence would have been duplicative of the testimony that was admitted. In addition, and as previously indicated, the jury had heard evidence of the horrible abuse Nicklasson suffered as a child. The trial court did not err in refusing to admit this cumulative evidence. Exhibit 292 stated that Nicklasson had a "symbiotic relationship" with his mother. Dr. Churchill, the author of exhibit 292, testified orally to this conclusion. The exhibit added nothing to the evidence already before the jury. Nicklasson argues that the trial court should have admitted exhibit 272, which indicated that he was diagnosed with "organic brain symptoms." Given the testimony by Dr. Geffner that Nicklasson suffered from "mild brain impairment," we find that no prejudice could have resulted from the failure to admit this exhibit.

Evidence about Nicklasson's Mother

Nicklasson argues that he was precluded from presenting a wealth of information about his mother as mitigating evidence. The record reveals otherwise. The jury heard several witnesses testify about Nicklasson's mother's childhood injuries; her ridicule by classmates; her animosity toward her mother; her lying; her time in a mental hospital; her aggression; her physical attacks on her own mother and her husband; her intimate exploits; her happiness when her mother was dying; her filthy home; her abuse of Nicklasson, and other negative testimony. None of this evidence bore a direct relevance to Nicklasson's own character, previous criminal record, or the circumstances of the crime. Lockett, 438 U.S. at 604, n. 12. The trial court did not err in refusing to admit additional, irrelevant evidence.

Evidence of Nicklasson's Willingness to Plead Guilty to First-Degree Murder

Nicklasson argues that he should have been able to present evidence regarding his willingness to plead guilty in exchange for a life sentence without parole, a willingness he claims to have had before, up to and throughout his trial. The record does not support his assertion that he was willing to plead guilty when the death penalty remained an option. The point is denied.

Evidence that Skillicorn was the "Brains" of the Group

Nicklasson asserts that, since the state argued -- in the closing argument of Dennis Skillicorn's trial -- that Skillicorn was the "brains" of the group, he should have been able to present to the jury a portion of the transcript from that trial. The portion of the transcript which Nicklasson sought to present was from closing argument in the Skillicorn case. As such it was not evidence. Moreover, there is no rule requiring the state to argue mirror-image theories in the separate prosecutions of co-perpetrators. State v. Fondren, 810 S.W.2d 685, 689 (Mo. App. 1991); State v. Nunley, 923 S.W.2d 911, 925 (Mo. banc 1996), cert. denied, 117 S. Ct. 772, 136 L. Ed. 2d 717 (1997).

Evidence of Abandonment by Father

Nicklasson claims he was precluded from introducing evidence that his father abandoned him at an early age. However, evidence of Nicklasson's father's abandonment -- though as the trial court indicated, it "bordered on nonrelevancy" -- was presented: Q: Let me ask you this, Ms. Novak, do you know if Mr. Nicklasson [defendant's father] ever appeared in Mr. Nicklasson's [defendant's] life again? A: No, he never did. These points are denied.

IX. Proportionality Review

Section 565.035.3, RSMo 1994, requires that this Court determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in subsection 2 of section 565.032 and any other circumstance found; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence and the defendant. Nicklasson does not argue that his sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, nor does he assert that the evidence did not support the finding of the statutory aggravating circumstances. Nonetheless, we undertake our statutory duty.

We have examined the record and do not find that the imposition of the sentence of death was due to the influence of passion, prejudice, or any other arbitrary factor.

The statutory aggravating circumstances submitted by the trial court and found by the jury were: One, whether the defendant was convicted of assault in the second degree on April 19th, 1990, in the Circuit Court of Jackson County, Missouri; Two, whether the defendant was convicted of offering to commit violence to an officer on March 2nd, 1993 in the Circuit Court of Randolph County, Missouri; Three, whether the murder of Richard Drummond was committed while the defendant was engaged in the perpetration of kidnapping or while the defendant was knowingly aiding Dennis Skillicorn and/or Timothy Degraffenreid in the perpetration of kidnapping; or Four, whether the murder of Richard Drummond was committed while the defendant was engaged in the perpetration of robbery. The jury found that the state proved all four of these aggravating circumstances. The record fully supports that conclusion. Further, Nicklasson does not argue that the evidence did not support the finding of these statutory aggravating circumstances.

In determining whether the death sentence in this case is proportionate, we consider similar cases where the death sentence was imposed. This Court has upheld sentences of death where the defendant commits an execution-style shooting of a defenseless victim. State v. Whitfield, 939 S.W.2d 361 (Mo. banc), cert. denied, 118 S. Ct. 97, 139 L. Ed. 2d 52 (1997); State v. Murray, 744 S.W.2d 762 (Mo. banc), cert. denied, 488 U.S. 871, 102 L. Ed. 2d 150, 109 S. Ct. 181 (1988); State v. Foster, 700 S.W.2d 440 (Mo. banc 1985), cert. denied, 476 U.S. 1178, 90 L. Ed. 2d 993, 106 S. Ct. 2907 (1986). The fact that Nicklasson has committed several prior serious assaultive offenses, including two other homicides, adds further support for the imposition of the death penalty. Cf. Foster, 700 S.W.2d at 440; State v. Chambers, 714 S.W.2d 527 (Mo. banc 1986). Nicklasson's punishment is not excessive or disproportionate in light of the crime and the strength of the evidence against him.

Nicklasson raised several other points. We have reviewed each of them and determine that they have been previously and recently decided by this Court adversely to Nicklasson's position. In addition, several other points not individually addressed are facially without merit Discussion of these points would serve no purpose but to unduly burden the pages of the Southwestern Reporter. As these claims have no precedential value, they are denied without further discussion. RULE 30.25(B).

XI.

The judgment of guilt and the sentence of death are affirmed.

JUDGE PRICE, LIMBAUGH AND HOLSTEIN, JJ.,CONCUR; COVINGTON, J., CONCURS IN PART AND DISSENTS IN PART IN SEPARATE OPINION FILED; BENTON, C.J., AND WHITE, J., CONCUR IN OPINION OF COVINGTON, J.

OPINION CONCURRING IN PART AND DISSENTING IN PART

I concur in the majority opinion with respect to the guilt phase issues, but would reverse and remand for a new penalty phase trial on the basis of the death qualification of the venire. In Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), the United States Supreme Court held that defendants who are subject to imposition of the death penalty have a constitutional right to a voir dire of the jury that is sufficient to allow the defendant to exercise intelligently his challenge for cause against those venirepersons biased about the death penalty. Id. at 729-34. "Part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Id. at 729. If a voir dire is conducted in a manner that prevents a defendant from adequately identifying a biased juror, then his sentence of death cannot stand because there is no assurance that his sentence was imposed by a jury impaneled according to the dictates of the Constitution. Id. at 739.

The sufficiency of the voir dire in identifying venirepersons who are not impartial must be measured by the definition of impartiality. A juror is not impartial if the juror's views about capital punishment prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and the juror's oath. Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985). It follows that a juror whose views about the death penalty would prevent or substantially impair the juror from considering both death and life without parole according to the instructions is not impartial. Consequently, if a death-qualification voir dire does not allow the defendant an opportunity to identify such jurors adequately, then the defendant's constitutional right to an impartial jury has been violated.

This Court has emphasized repeatedly the importance of a thorough death-qualification voir dire. "In a capital murder case, inquiry into the venire members' views about the death penalty is of critical importance to the state, the defendant and the court. It is the duty of all concerned to investigate those views thoroughly in order to assemble the most qualified jury." State v. Antwine, 743 S.W.2d 51, 60 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 100 L. Ed. 2d 217, 108 S. Ct. 1755 (1988). In State v. McMillin, 783 S.W.2d 82 (Mo. banc), cert. denied, 498 U.S. 881, 111 S. Ct. 225, 112 L. Ed. 2d 179 (1990), this Court stated unequivocally, "Death qualification voir dire necessarily requires deep probing as to opinions held,' including exploration of whether the venirepersons can consider the full range of punishment under the facts alleged in the case before them." 783 S.W.2d at 91 (quoting State v. Leisure, 749 S.W.2d 366, 373 (Mo. banc 1988)).

The United States Supreme Court has provided further guidance in determining when a death-qualification voir dire is sufficiently thorough so as to allow a defendant to identify potential jurors biased about the death penalty. In Wainwright, the Court noted the elementary proposition that "it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality." Wainwright, 469 U.S. at 423 (emphasis added). In discussing the manner in which such questioning can reveal juror bias, the Court stated that "determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism." Id. at 424. The Court expounded upon the adequacy of voir dire in Morgan v. Illinois, 504 U.S. at 721-736. In Morgan, the Court determined that general fairness and "follow the law" questions were insufficient to satisfy the defendant's right to an adequate voir dire. Id. at 734-36. The Court explained that its cases establishing a right to an impartial jury "would be in large measure superfluous were this Court convinced that such general inquiries could detect those jurors with views preventing or substantially impairing their duties in accordance with their instructions and oath." Id. at 734-35. Because the Court found that "it may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so," it concluded that the defendant should have been allowed to ask an additional question of the venire probing the specific concern of whether a venirepersons' views about the death penalty would prevent or substantial impair their ability to follow the court's death penalty instructions. Id. at 735-36. The trial court's refusal to allow such a question led the Court to reverse the sentence of death. Id. at 739.

The voir dire in the present case consisted entirely of one set of ten questions asked by the judge with no participation by the attorneys. Not one question was asked directly about the venirepersons' views about capital punishment and how those views might affect their ability to follow the law. Even in the abstract nature of the questions posed, venirepersons were asked only whether they would vote for the death penalty automatically and whether they would consider life without parole. No juror was asked whether the juror's ability to consider or vote for life without parole would be substantially impaired. Finally, and perhaps most significantly in view of the limited questions asked, no follow-up questions were allowed.

It is evident that because of the limited voir dire conducted, the failure to allow any follow-up questions prevented appellant from adequately identifying jurors whose views about the deathpenalty would prevent or substantially impair their ability to consider life without parole. The questioning was conducted in the manner of a catechism, a type of questioning specifically said to be inadequate by the United States Supreme Court. See Wainwright, 469 U.S. at 424. The venirepersons were asked whether they could follow the law, but they were never asked whether they could do so considering their views about the death penalty. As in Morgan, therefore, the voir dire left unprobed the specific question of whether a potential juror's views about the death penalty would interfere with the juror's ability to follow the law. See Morgan, 504 U.S. at 735. Further, although the voir dire did touch upon the Witherspoon inquiry as to whether the potential jurors' views would cause them to vote for the death penalty automatically, the voir dire was devoid of the requisite Wainwrightinquiry as to whether the venirepersons views would substantially impair their ability to consider or impose life without parole.

In addition, the record shows that the nature of the voir dire stifled responses and created confusion. When a potential juror complained that the questions were confusing, no clarification or explanation was given. The confusion created by the voir dire is exemplified by the fact that at least fourteen venirepersons responded both that they would automatically vote for life without parole and that they would automatically vote for death. Considering these shortcomings in the questions posed to the venirepersons, allowing appellant to ask follow-up questions would have been necessary to provide him an opportunity to identify adequately those venirepersons biased about the death penalty.

Because the voir dire as a whole was insufficient to allow appellant the opportunity to identify adequately those venirepersons whose views about the death penalty would prevent or substantially impair their ability to follow the court's instructions regarding the death penalty, I would reverse the sentence of death and remand for a new penalty phase trial. Ann K. Covington, Judge

State v. Skillicorn, 944 S.W.2d 877 (Mo. 1997). (ACCOMPLICE DIRECT APPEAL)

PROCEDURAL POSTURE: Defendant was convicted by the Circuit Court of Lafayette County (Missouri) of first degree murder pursuant to Mo. Rev. Stat. § 65.020 (1994), and appealed, alleging 24 separate points of trial court error.

OVERVIEW: Defendant and another took hostage a victim who had offered roadside assistance. Defendant's cohort took the victim into a field and murdered him while defendant remained in the victim's car. Defendant appealed his conviction for first degree murder, alleging numerous errors. The court held that (1) photographs and video evidence of the victim's body was properly admitted, (2) evidence of crimes committed by defendant after the victim's murder was admissible because it was a continuation of the sequence of events that presented a coherent picture of defendant's crime, (3) defendant failed to preserve his challenge to the admission of a portion of his confession and further failed to show that its admission was plain error, (4) defendant failed to show that his confession was involuntary, because there was no evidence of coercion prior to or during the recorded statement (5) defendant failed to show how the testimony of an expert was so prejudicial that it deprived him of a fair trial, and (6) the evidence was sufficient to warrant the jury's finding of guilt beyond a reasonable doubt in defendant's deliberation of, and aiding a codefendant in, the murder of the victim.

OUTCOME: The judgment was affirmed.

Nicklasson v. State, 105 S.W.3d 482 (Mo. 2003). (PCR)

PROCEDURAL POSTURE: Appellant inmate challenged a decision from the Circuit Court of Lafayette County (Missouri), which denied his petition for postconviction relief under Mo. Sup. Ct. R. 29.15.

OVERVIEW: The inmate was convicted and sentenced to death for an execution style murder. After his conviction was affirmed on appeal, he filed a motion for relief under Mo. Sup. Ct. R. 29.15. Specifically, the inmate argued that he received ineffective assistance of counsel at the trial level and on appeal. After the petition was denied, the inmate sought review. In affirming, the court determined that the failure to object to the prosecutor's closing argument did not amount to ineffective assistance of counsel. The prosecutor's statement regarding the inmate's diminished capacity defense did not amount to a misstatement of the law. The existence of a mental disease or defect did not alone suffice to diminish the inmate's criminal responsibility. The jury was still required to determine whether the disease or defect prevented the inmate from forming the requisite mental state. Moreover, the failure to challenge the trial court's decision to use restraints did not amount to ineffective assistance of counsel. The trial court had the discretion to use the restraints, based on the inmate's prior history of violence against prison officials.

OUTCOME: The judgment of the trial court was affirmed.

OPINION BY: Stephen N. Limbaugh, Jr.

Appellant Allen L. Nicklasson was convicted and sentenced to death for the execution style murder of Richard Drummond on August 24, 1994. This Court affirmed the conviction and imposition of capital punishment in State v. Nicklasson, 967 S.W.2d 596 (Mo. banc 1998), and the facts of the case are recited in full in that opinion. In the Rule 29.15 motion that is the subject of this appeal, Nicklasson alleged two claims of ineffective assistance of counsel, one at the trial level and one on direct appeal. The motion court denied relief, and Nicklasson appeals. Because this case involves the death penalty, this Court has jurisdiction. MO. CONST. art. V, sec. 10; order of June 16, 1988. The judgment is affirmed.

To establish ineffective assistance of counsel, 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 he was thereby prejudiced. Bucklew v. State, 38 S.W.3d 395, 397 (Mo. banc 2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). To prove prejudice, the movant must show "'a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different.'" Lyons v. State, 39 S.W.3d 32, 36 (Mo. banc 2001) (quoting Strickland, 466 U.S. at 687). The movant bears the burden of proving grounds for relief by a preponderance of the evidence. State v. Kreutzer, 928 S.W.2d 854, 877 (Mo. banc 1996); Rule 29.15(i).

In reviewing the motion court's denial of a claim of ineffective assistance, this Court is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Lyons, 39 S.W.3d at 36. Findings of fact and conclusions of law will be deemed clearly erroneous only if, after a review of the entire record, the Court is left with the definite and firm impression that a mistake has been made. Id.

In his first point, Nicklasson alleges that trial counsel was constitutionally ineffective for failing to object to the prosecution's closing argument, which Nicklasson contends constituted a misstatement of the law that undermined his diminished capacity defense. The defense theory presented at trial was that, due to a mental disease or defect, Nicklasson was incapable of acting with deliberation -- the requisite mental state -- on the date of the offense. In support of this theory, Nicklasson offered the testimony of a psychiatrist and a psychologist, both of whom averred that appellant suffered from post- traumatic stress disorder and borderline personality disorder -- two conditions that they classified as mental diseases or defects as defined under section 552.010, RSMo 1994. The State presented rebuttal testimony from a psychologist appointed by the court who testified that Nicklasson did not suffer from a mental disease or defect, but from anti-social personality disorder.

In his guilt-phase closing argument, the prosecutor made the following comments concerning the significance of Nicklasson's mental conditions: You've heard testimony from a number of psychologists, a couple who have been hired to [the] defense, with one who had been appointed by the Court. And there's no doubt in anybody's mind that there is a personality disorder here. Whether that rises to the level of mental disease or defect doesn't matter, given the evidence that's before you. It's clear it wasn't affecting him then.

Counsel did not object to these statements. This failure, according to Nicklasson, was ineffective assistance because the prosecutor misstated the law by informing the jury that the fact that Nicklasson was suffering from a mental disorder "doesn't matter," when under section 552.015.2(8), evidence of a mental disorder is relevant to determine deliberation. After conducting an evidentiary hearing on the issue, the motion court determined that the argument presented was not a misstatement of the law, but a "reasonable interpretation of the law of diminished capacity." This Court agrees. When the challenged statements are considered in context, it is clear that the prosecutor's seeming disregard for Nicklasson's evidence of mental instability was not at all inconsistent with the law of diminished capacity. In order to prevail on a diminished capacity defense, a defendant must introduce evidence that he or she suffered from a mental disease or defect, State v. Erwin, 848 S.W.2d 476, 480 (Mo. banc 1993), and in this respect, evidence of a mental disease or defect does indeed "matter." But, the existence of a mental disease of defect will not alone suffice to diminish the defendant's criminal responsibility. See State v. Foerstel, 674 S.W.2d 583, 592 (Mo. App. 1984) ("Under [the] defense [of diminished capacity], a finding of mental disease or defect would permit the jury to conclude that appellant was unable to form the necessary specific or general intent and to thereby acquit him of the offense charged . . .") (emphasis added). The jury must still determine, considering all the evidence, whether that mental disease or defect prevented the defendant from forming the requisite mental state at the time of the offense. The challenged statement represents nothing more than an acknowledgment of this fact, and a commentary on the strength of the deliberation evidence submitted at trial. 1

1 The deliberation evidence presented at trial included evidence that Nicklasson 1) took the victim to a secluded area, 2) told the victim to say his prayers prior to shooting him, 3) attempted to flee the jurisdiction after the murder, and 4) attempted to dispose of the murder weapon.

Appellant overlooks the clear import of the prosecutor's statements. The prosecutor stated: "Whether [appellant's personality disorder] rises to the level of mental disease or defect doesn't matter, given the evidence that's before you." By this statement, the prosecutor was not misdirecting the jury, but simply commenting that the evidence of mental disease or defect is not necessarily determinative. In fact, to hold that the prosecutor's statements constituted an erroneous statement of law would be tantamount to holding that, once the jury determines the existence of a mental disease or defect, the defendant would be entitled to a verdict of acquittal. As the diminished capacity instruction itself indicates, this is simply not the case. Under MAI-CR3d 308.03, the jury must consider all evidence -- not just evidence that the defendant suffered from a mental disease or defect -- in determining whether the accused acted with the requisite intent. 2 See also State v. Bell, 798 S.W.2d 481, 487 (Mo. App. 1990) ("The fact that the only psychiatric testimony in this case was to the effect that the defendant did not knowingly cause serious physical injury [due to a mental defect] does not mean that the jury must reject a reasonable inference from his actions that the defendant acted knowingly.") Considered in context, the prosecutor's arguments, although inartfully phrased, merely advised the jury that in accordance with the diminished capacity instruction, evidence suggesting that appellant suffered from a mental disease or defect is just one consideration that must be taken into account in determining whether Nicklasson acted with the requisite state of mind. While clearer phrasing should be utilized in the future, because in context the prosecutor's comments did not constitute a misstatement of the law or mislead the jury, Nicklasson's first claim of error must fail. Any objection lodged by trial counsel would not have been well-taken, and counsel cannot be ineffective for failing to raise a non-meritorious objection. State v. Clay, 975 S.W.2d 121, 135 (Mo. banc 1998).

2 The diminished capacity instruction submitted in this case was modeled after MAI 308.03, which provides in pertinent part: If, after considering all the evidence, including evidence that the defendant did or did not have a mental disease or defect, you have a reasonable doubt as to whether [Insert language as to the defendant having the culpable mental state . . .], you must find the defendant not guilty of [name of offense] as submitted in Instruction No. ___. In his next point, Nicklasson alleges that appellate counsel was ineffective for failing to challenge on direct appeal his court-ordered physical restraint during trial. Throughout the course of the trial and over defense objections, Nicklasson's legs were shackled and sheets of brown paper were used to conceal the restraints from the jury. Nicklasson argues that the leg restraints could be heard throughout the courtroom, and that the attempted concealment only drew attention to the shackling. The motion court denied Nicklasson's claim without conducting an evidentiary hearing, finding, inter alia, that Nicklasson would not have been able to succeed on appeal because there was no evidence in the trial record indicating that any juror was aware of the shackling.

On the record presented, Nicklasson can show neither entitlement to an evidentiary hearing nor grounds warranting reversal of his conviction. The motion court is under no duty to conduct an evidentiary hearing where, as here, the motion, files and records of the case conclusively show that the movant is not entitled to relief on the underlying claim of error. Maynard v. State, 57 S.W.3d 865, 87 S.W.3d 865, 866 (Mo. banc 2002); Rule 29.15(h). Furthermore, to prevail on a claim of ineffective assistance of appellate counsel, the movant must establish that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it and that the claimed error would have required reversal on appeal. Hall v. State, 16 S.W.3d 582, 587 (Mo. banc 2000). In this case, not only would the alleged error not have required reversal on appeal, it was not error at all. Though Nicklasson argues that the use of restraints unconstitutionally deprived him of the presumption of innocence, the record is devoid of any evidence that would support his claim. In the interest of maintaining courtroom safety, the trial court has considerable discretion to impose measures necessary to maintain order in the courtroom, and this discretion includes the use of physical restraints. State v. Armentrout, 8 S.W.3d 99, 108 (Mo. banc 1999). Absent an abuse of this discretion, the trial court's judgment will not be disturbed on appeal. See State v. Kinder, 942 S.W.2d 313, 330 (Mo. banc 1996). Moreover, the trial court will be found to have abused its discretion only if the imposition of restraints "offends the logic of the circumstances or is arbitrary and unreasonable." State v. Fisher, 45 S.W.3d 512, 514 (Mo. App. 2001). Factors relevant in determining the reasonableness of physical restraints include the accused's prior misconduct or threats of misconduct, the accused's history of violent offenses, and the nature of the offense charged. Armentrout, 8 S.W.3d at 108; State v. Guinan, 732 S.W.2d 174, 176 (Mo. banc 1987); Fisher, 45 S.W.3d at 515; State v. Olney, 954 S.W.2d 698, 701 (Mo. App. 1997).

In the case at hand, Nicklasson was charged with first degree murder, which was part of a multi-state crime spree in which he admittedly committed two murders in Arizona and indiscriminately fired shots in a strip mall in California. Furthermore, on at least two separate occasions, Nicklasson had attacked security personnel while in the custody of state authorities. The first incident, which involved an assault of a security guard at the Moberly Correctional Center, resulted in a conviction for assault in the second degree. In the second incident, which occurred while he was awaiting trial for this offense, Nicklasson assaulted security personnel at the Clay County jail.

Given this pervasive and undisputed history of violence, and in particular, the disruptive and violent behavior while in custody, the trial court did not abuse his discretion by imposing physical restraints in this case. Moreover, because the record conclusively refutes his claim, Nicklasson is not entitled to an evidentiary hearing, and counsel was not ineffective for failing to bring this claim to the attention of the appellate court.

This Court concludes that the motion court did not err in denying Nicklasson's claim for post-conviction relief, as neither trial nor appellate counsel rendered ineffective assistance by failing to raise non-meritorious claims. The judgment is affirmed. Stephen N. Limbaugh, Jr., Chief Justice All concur.

Nicklasson v. Roper, 491 F.3d 830 (8th Cir. Mo. 2007). (Federal Habeas)

PROCEDURAL POSTURE: Petitioner inmate was found guilty by a jury in a Missouri state court of first-degree murder and was sentenced to death. The United States District Court for the Western District of Missouri denied the inmate's petition for a writ of habeas corpus. The inmate appealed.

OVERVIEW: Regarding the death penalty voir dire, the instant court found that by failing to recognize the need for additional death qualification voir dire questioning in the face of contradictory responses by sixteen potential jurors, the state court may have overlooked essential demands of fairness, thereby misapplying clearly established federal law. However, the instant court was unable to say that the state court's application of clearly established federal law, even if erroneous, was objectively unreasonable. The instant court reasoned that the state court repeatedly justified its position by citing deference to the trial court's judgment because the trial court observed the jurors directly. Regarding the alleged Batson violations, the instant court found that the inmate failed to demonstrate that the state court unreasonably applied clearly established federal law when it concluded that one potential juror's exclusion was not motivated by race. The instant court reasoned that it was entirely reasonable trial strategy for a prosecutor to excuse a juror whose responses suggested that they may be more committed to the imposition of life in prison than others.

OUTCOME: The judgment was affirmed.

WOLLMAN, Circuit Judge.

Allen Nicklasson was found guilty by a jury in a Missouri state court of first-degree murder and was sentenced to death. He appeals from the district court's 1 judgment denying his petition for a writ of habeas corpus. We affirm.

1 The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.

For a complete recitation of the facts giving rise to this case, see State v. Nicklasson, 967 S.W.2d 596 (Mo. 1998). The facts relevant to this appeal are as follows. On August 23, 1994, Allen Nicklasson, Dennis Skillicorn, and Tim DeGaffenreid decided to return to Kansas City after a trip east to obtain drugs. Their vehicle broke down a number of times along I-70. After one such breakdown, they burglarized a home and stole four guns, ammunition, a skinning knife, money, a pillow case, some change, and a cracker box. They stashed the stolen property in the bushes, called a tow truck, and used the change-filled cracker box to pay a mechanic to restart the car. Once the car was restarted, they returned to recover the stolen property, at which point the car broke down once again.

Richard Drummond saw the three stranded men and offered to take them to a telephone. Accepting the offer, they transferred the stolen property from their car to the trunk of Drummond's vehicle, keeping a .22 caliber handgun and a shotgun with them when they entered Drummond's vehicle. Nicklasson then sat behind Drummond, pressed the pistol against the back of Drummond's head, and said, "[y]ou're going to take us to where we want to go." As they proceeded towards Kansas City, the three decided to kill Drummond and they had him drive to a secluded area off a county road. After ordering Drummond to stop and exit the car, Nicklasson walked him into the woods, ordered him to kneel, told him to say his prayers, and shot him in the head twice. Drummond's body was found eight days later. Nicklasson and Skillicorn were later arrested while hitchhiking in California. 2

2 For an account of Skillicorn's prosecution for this crime, see Skillicorn v. Luebbers, 475 F.3d 965 (8th Cir. 2007).

Following the imposition of his sentence, Nicklasson appealed his conviction to the Supreme Court of Missouri, arguing, inter alia, that the trial court had erred by (1) conducting a confusing and inadequate death qualification voir dire without defense participation, (2) prohibiting the defense from conducting follow-up voir dire after asking the jury about their ability to follow Missouri's diminished capacity instruction, (3) barring any voir dire of jurors concerning their potential reaction to the introduction of evidence of Nicklasson's involvement in two other Good Samaritan murders, and (4) finding that the prosecution did not commit a racially-motivated Batson violation for striking two black jurors. A divided court held that the voir dire was constitutionally sufficient and found no error in the trial court's determination that the jury strikes were for legitimate reasons. Nicklasson, 967 S.W.2d at 609-14. Nicklasson's motion for post-conviction relief was also denied. Nicklasson v. State, 105 S.W.3d 482 (Mo. 2003). He then petitioned for a writ of habeas corpus in federal district court. Following the district court's denial of the petition, we granted a certificate of appealability on the above-mentioned issues.

II. The AEDPA Standard

Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), 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 proceeding. " 28 U.S.C. § 2254(d). AEDPA limits the scope of federal review "in order to effect the intent of Congress to expedite habeas proceedings with appropriate deference to state court determinations." Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir. 2000) (citing Williams v. Taylor, 529 U.S. 362, 402-03, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)). AEDPA "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams, 529 U.S. at 412.

A state court decision is "contrary to" clearly established federal law if it reaches a conclusion opposite to one reached by the Supreme Court on a question of law or decides the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts. Id. at 405. A state court decision involves an "unreasonable application" of clearly established federal law if, in the federal court's independent judgment "the relevant state-court decision [not only] applied clearly established federal law erroneously or incorrectly[,but also did so] . . . unreasonabl[y]." Id. at 410-11. AEDPA requires federal courts to presume that state court factual findings are correct, and it places the burden on Nicklasson to rebut that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III. Death Qualification Voir Dire
1. Trial Court's Procedure

At the beginning of voir dire, the trial court made introductory remarks. It recounted, inter alia, a jury instruction concerning the elements of first-degree murder; it described the general decision-making process necessary to determine whether, if guilty, Nicklasson would receive a death or life imprisonment sentence; it discussed the role of mitigating and aggravating circumstances in the process; and it concluded by explaining the state's burden of proof. Following this introduction, the trial court asked potential jurors whether they could both follow the court's instructions and (1) decide if the defendant was guilty or not guilty of murder in the first degree or of a lesser degree of homicide, (2) consider evidence of aggravating circumstances, (3) consider evidence of mitigating circumstances, (4) decide if the mitigating circumstances outweigh the aggravating circumstances, (5) unanimously decide with the other jurors that the aggravating circumstances outweigh the mitigating circumstances, (6) consider the imposition of the death penalty, and (7) consider the imposition of life without probation or parole.

With respect to death qualification, the court asked three additional questions of the venire panel: (1) whether they would automatically vote for the death penalty, (2) whether they would automatically vote for life without probation or parole, and (3) whether they would be able to follow the court's instructions and consider both the imposition of the death penalty or the imposition of life without probation or parole. Sixteen venirepersons responded that they would both automatically impose the death penalty and would automatically impose life imprisonment if they convicted the defendant of first-degree murder. Despite this contradiction, the court refused to ask additional death qualification questions or allow counsel to do so.

2. Analysis
A. The Sufficiency of the Death Penalty Voir Dire

Nicklasson's case is not materially indistinguishable from any decided by the SupremeCourt. Nicklasson therefore argues that the issues presented represent an unreasonable application of clearly established federal law set forth in Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992), Rosales-Lopez v. United States, 451 U.S. 182, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981) (plurality opinion), and Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). Nicklasson, 967 S.W.2d at 610.

i. The Clearly Established Federal Law

The Supreme Court has indicated that the Constitution demands that the defendant be afforded an impartial jury. Morgan, 504 U.S. at 729-30. "[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Morgan, 504 U.S. at 729 (citing Dennis v. United States, 339 U.S. 162, 171-72, 70 S. Ct. 519, 94 L. Ed. 734 (1950)). Without an adequate voir dire, a trial judge's responsibility to "remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled . . . [and] the defendant's right to exercise peremptory challenges where provided by statute or rule [is impaired] . . . ." Rosales-Lopez, 451 U.S. at 188 (citations omitted).

The conduct of voir dire is generally left to the trial court's sound discretion, Morgan, 504 U.S. at 729. Indeed, "the trial judge retains discretion as to the form and number of questions on the subject. . . ." Turner v. Murray, 476 U.S. 28, 37, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986) (plurality opinion) (citing Ham v. South Carolina, 409 U.S. 524, 527, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973)). Whether a trial court is constitutionally compelled to ask certain questions or has unduly restricted questioning by counsel is dictated by the essential demands of fairness. Morgan, 504 U.S. at 730 (citing Aldridge v. United States, 283 U.S. 308, 310, 51 S. Ct. 470, 75 L. Ed. 1054 (1931)). Indeed, "[t]o be constitutionally compelled . . . it is not enough that such questions might be helpful. Rather, the trial court's failure to ask these questions must render the defendant's trial fundamentally unfair." Id. at 730 n.5 (second alteration in original) (quoting Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991)).

For this reason, "we have not hesitated, particularly in capital cases, to find that certain inquiries must be made to effectuate constitutional protections." 3 Morgan, 504 U.S. at 730. To otherwise allow a death qualification voir dire in the absence of such inquiries leads to doubt as to whether the "petitioner was sentenced to death by a jury empaneled in compliance with the Fourteenth Amendment . . . ." Morgan, 504 U.S. at 739 (citing Turner, 476 U.S. at 36-37). The Supreme Court has, therefore, mandated questions that probe into whether potential jurors maintain views that "'prevent or substantially impair the performance of [their] duties as . . . juror[s] in accordance with [their] instructions and . . . oath.'" Witt, 469 U.S. at 433 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1985)). In particular, the state must be allowed inquiries probing the extent to which potential jurors' opposition to the death penalty impacts their impartiality. Lockhart v. McCree, 476 U.S. 162, 170 n.7, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986); see also Witt, 469 U.S. at 424 n.5. Conversely, the defendant must be allowed inquiries into whether potential jurors so strongly favor the death penalty that it affects their ability to follow the dictates of the law. Morgan, 504 U.S. at 735 (citing Turner, 476 U.S. at 34-35); see also Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) (requiring questions meant to assure the defendant that the jury is not "organized to return a verdict of death").

3 The party wishing to exclude a juror must "demonstrate, through questioning, that the potential juror lacks impartiality." Witt, 469 U.S. at 423.

ii. The Reasonableness of Missouri's Application of Clearly Established Federal Law

The Missouri Supreme Court acknowledged that the Supreme Court mandated the Witherspoon and Witt death qualification voir dire questions and noted that such questions had been asked. Nicklasson, 967 S.W.2d at 611. It further recognized that [t]he test of the adequacy of voir dire is whether the process permits the parties to discover bias, prejudice or some other form of impartiality on the part of potential jurors. The trial court abuses its discretion and reversal is required only if the voir dire permitted does not allow the discovery of bias, prejudice or impartiality in potential jurors. Id. at 609. We take no issue with this enunciation of the federal principle. In applying the principle, however, the Missouri Supreme Court effectively concluded that because Nicklasson's voir dire included questions that were mandated by the Supreme Court and deemed relevant to the discovery of impermissible juror bias, the trial court's questioning was constitutionally sufficient per se. Id. at 611.

By failing to recognize the need for additional death qualification voir dire questioning in the face of contradictory responses by sixteen potential jurors, the Missouri Supreme Court may have overlooked essential demands of fairness, thereby misapplying clearly established federal law. Were we reviewing this case on direct appeal, we might have come to a different conclusion. 4 As previously stated, however, "even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 793, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001).

4 We have noted that a trial judge's discretion in conducting voir dire is "not without limits." Harold v. Corwin, 846 F.2d 1148, 1150 (8th Cir. 1988). Further, we observed that [t]he court, in the realization that the purpose of the voir direis to afford the parties a trial by a qualified, unbiased, and impartial jury, should at all times be on guard in its questioning in order to assist counsel in the exercise of his or her preemptory [sic] challenges and challenges for cause to eliminate those persons with an interest or bias. Id. at 1150; see also United States v. Spaar, 748 F.2d 1249, 1253 (8th Cir. 1984) ("the central inquiry is whether the judge's overall examination, coupled with his charge to the jury, adequately protects the defendant from prejudice").

We are unable to say that the Missouri Supreme Court's application of clearly established federal law, even if erroneous, is objectively unreasonable for the following reasons: First, the Supreme Court observed in Yarborough v. Alvarado, 541 U.S. 652, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004), that the more general the rule of decision, the more leeway courts have under the "unreasonable application" prong of § 2254(d)(1) to reach outcomes in case-by-case determinations. Id. at 664. Because determinations of whether specific voir dire questions are mandated hinge on the "essential demands of fairness," Morgan, 504 U.S. at 730, itself an indeterminate rule of decision, we extend to the Missouri courts a wide range of latitude in determining where to draw the relevant lines associated with that principle.

Second, the Missouri Supreme Court repeatedly justified its position by citing deference to the trial court's judgment because the trial court observed the jurors directly. See Nicklasson, 967 S.W.2d at 612. This is not an unreasonable position in light of Supreme Court precedent regarding the detection of juror bias. See Uttecht v. Brown, 127 S. Ct. 2218, 167 L. Ed. 2d 1014, 2007 WL 1582998, at *6 (2007). Reflective of the need for, and appropriate extent of deference, the Supreme Court has notably held that "when there is ambiguity in the prospective juror's statements, 'the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] demeanor, [is] entitled to resolve it in favor of [a party].'" Brown, 127 S. Ct. 2218, 2007 WL 1582998, at *4 (last alteration added) (quoting Witt, 469 U.S. at 434). 5 This is because the deeply rooted nature of juror bias often precludes discovering it through general fairness and "follow the law" type questions. Morgan, 504 U.S. at 734-36; Witt, 469 U.S. at 424 ("determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism"). The Supreme Court has acknowledged that voir dire transcripts reviewed on appeal may not reveal subtle indications of bias otherwise detectable, even on a subconscious level, by the trial judge: [M]any veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law . . . . [T]his is why deference must be paid to the trial judge who sees and hears the juror. Witt, 469 U.S. at 424-26; see also Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976); Brown, 127 S. Ct. 2218, 2007 WL 1582998, at *6 (June 4, 2007) ("Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors."). Accordingly, the Missouri Supreme Court acted reasonably and consistently with respect to Supreme Court doctrine by deferring to the judgment of the trial court judge that no further death qualification questioning was necessary. 6

5 Particularly relevant to our analysis is the Supreme Court's reminder that, when reviewing habeas petitions raising claims of Witherspoon-Witt error, we "owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror." Uttecht v. Brown, 127 S. Ct. 2218, 2007 WL 1582998, at *14 (June 4, 2007).

6 We note that despite the arguably erroneous statements made in introductory remarks preceding the death qualification questions, nothing about the death qualification questions themselves appears confusing or unusual. Accordingly, the trial judge's observations may well have led him to interpret the conflicting responses to be, in context, indicative of moral uncertainty and not of confusion.

Third, the Missouri Supreme Court's extension of deference conformed to a principled and reasonable analytical framework. Though its decision accords a broad degree of deference to the trial judge's judgment, the court accorded that deference only after satisfying itself that the mandatory Witherspoon and Witt questions had been asked. 7 In fact, Nicklasson does not dispute that the judge asked questions specifically aimed at exposing death penalty bias. By recognizing the need that these questions be asked, the Missouri Supreme Court guaranteed that at least some information could be elicited from every potential juror - through verbal and nonverbal responses - from which the trial judge could form impressions. 8 Furthermore, as indicated above, outside of constitutionally mandated question topics, "the trial judge retains discretion as to the form and number of questions on the subject . . . ." Turner, 476 U.S. at 37.

7 Nicklasson contends that the questions suffered from infirmities because they consisted of "follow the law" questions and outmoded "automatic" penalty questions. Contrary to Nicklasson's contention, the trial court did not rely exclusively on "follow the law" questions. The questions relating to the automatic sentencing of life and death did not mention adherence to the law at all. Additionally, although the Supreme Court has dispensed with references to "automatic" decision making for purposes of articulating the standard against which potential jurors are to be considered for cause-based exclusion, Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (replacing the prior standard), it is not impermissible to phrase the question itself in "automatic" sentencing terms. See Morgan, 504 U.S. at 729 (noting that a juror who would automatically impose the death penalty would fail to qualify as impartial even under the new standard).

For this reason, we find Nicklasson's citation of Turner v. Murray, 476 U.S. 28, 32, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986), of limited relevance. In Turner, the Supreme Court reversed a ruling that a defendant was not entitled to have potential jurors questioned on issues of racial prejudice. Id. at 33. The issue before us here, however, is not whether Nicklasson was entitled to have jurors asked their views on the death penalty, but whether the questions asked on the subject were constitutionally sufficient in light of an arguable showing of juror confusion.

Fourth, the Missouri Supreme Court supported its position by noting that the Supreme Court has held that "removal for cause of 'Witherspoon-excludables' serves the State's entirely proper interest in obtaining a single jury that could impartially decide all of the issues in . . . [the] case." McCree, 476 U.S. at 180. Although the citation to McCree may have been taken out of context and read in an unintended way, 9 we cannot say that the Missouri Supreme Court's interpretation of thequotation was unreasonably strained. The quotation could indeed be read to support the contention that sufficient information may be gleaned from answers to a Witherspoon - type question to warrant excluding biased jurors. We have not been made aware of any Supreme Court case holding that a trial judge in a case such as this may not rely on proven questions but must ask follow-up questions. 10

9 The Supreme Court was addressing whether exclusions for death qualification reasons generate imbalanced juries, not voir dire adequacy. Lockhart v. McCree, 476 U.S. 162, 166-68, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986).

10 Nicklasson seems to suggest that because determinations of "juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism," Witt, 469 U.S. at 424, the Supreme Court demands some amount of responsive exchange between the questioner and the venire panel. Contrary to this contention, the quotation when read in its full context was meant to convey the Supreme Court's opinion that the stated responses to questioning, taken alone, will not always expose all impermissible bias. Id. at 424-26; Brown, 127 S. Ct. 2218, 2007 WL 1582998, at 4.

Accordingly, even had the Missouri courts misapplied clearly established federal law pertaining to death penalty qualification voir dire, we are unable to grant habeas relief because Nicklasson has not shown that the misapplication was objectively unreasonable. The Missouri Supreme Court reasonably concluded that the questions asked were sufficiently specific to adequately probe the possibility of prejudice by the trial judge in whom much discretion is vested.

B. The Jury Instructions Given to Venire Panels

Nicklasson asserts that the trial court, in its instructions preceding voir dire questioning, erred by omitting the "knowledge" element of first-degree murder, by offering a very general definition of "mitigating circumstances," by later asking jurors if they could follow the law after telling the jurors that the law they must follow would be described in full in final jury instructions, and by erroneously describing evidence in mitigation of punishment as evidence that would make "this homicide . . . not as serious as other homicides or that [would make] the character of the defendant . . . not as bad as others who have committed murder in the First Degree . . . ." We need not address these points, however, because the Missouri Supreme Court concluded that these claims were procedurally barred. 11

11 [These] claims are without merit. First, the [trial court's comments] refute most of [Nicklasson's] assertions of error based on omission. Second, Nicklasson's brief fails to favor the Court with legal argument or authority tying his generalized assertions of error to specific prejudice. Absent such argument, there is nothing for the Court to review. . . . Finally, assuming arguendo, that the trial court misspoke in some way during its introductory presentation to the venire, the jury received proper instructions during the guilt and penalty phases of the trial correcting the trial court's earlier error before deliberations began . . . . The points are denied. Nicklasson, 967 S.W.2d at 608 (emphasis added).

"[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989) (quotation omitted). Here, the Missouri Supreme Court clearly and expressly stated that these claims lacked merit because Nicklasson offered "nothing for the Court to review." Nicklasson, 967 S.W.2d at 608. That the Missouri Supreme Court also addressed the merits in the alternative is of no relevance. Harris, 489 U.S. at 264 n.10 (noting that a state court may address the merits in an alternative holding without fear of federal habeas review when the state court explicitly invokes a state procedural bar as a separate basis for decision). Accordingly, we review a federal habeas petitioner's constitutional claims that were defaulted in state court under the cause and prejudice standard. Murray v. Carrier, 477 U.S. 478, 485-86, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). As Nicklasson does not now present any argument relating to cause and prejudice, he is precluded from obtaining habeas relief on these grounds.

C. Diminished Capacity Voir Dire

Nicklasson was allowed to recite Missouri's diminished capacity instruction and ask the venire panel whether they could follow it, but he was not allowed to ask whether any jurors had preconceived notions about mental health or psychology that amounted to a disqualifying bias against the acceptance of related testimony. Nicklasson contends that because a diminished capacity defense necessarily requires reliance on such testimony, this restriction violated his respective rights to due process, a fair trial by an impartial jury, effective assistance of counsel, and freedom from cruel and unusual punishment.

Although clearly established federal law does in some instances require inquiries into certain biases such as race, Ham, 409 U.S. at 527, a bias against psychological testimony is not among them. Cf. Ross, 424 U.S. at 594-95 (observing that "the State's obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant"). Because the conduct of voir dire is generally left to the trial court's sound discretion, Morgan, 504 U.S. at 729, Nicklasson had no entitlement to the questions. Furthermore, we see no reason to conclude that the Missouri courts misapplied clearly established federal law and disregarded essential demands of fairness, because Nicklasson was allowed to (1) read to the venire the Missouri Approved Instruction on diminished capacity, (2) answer any questions potential jurors asked relating to the instruction, and (3) ask members of the venire if they could follow the instruction. This voir dire process produced no indication that any venireperson would be unable to adequately consider the diminished capacity defense. The Missouri Supreme Court's deference to the trial judge's conclusion that this process produced no indication that any venireperson would be unable to fully consider and follow the diminished capacity defense was reasonable and is entitled to deference. 28 U.S.C. § 2254(d).

D. Unadjudicated Crimes Voir Dire

Finally, Nicklasson contends that the Missouri courts violated clearly established federal law by barring defense counsel from questioning the jury as to whether information pertaining to additional homicides in Arizona would substantially impair their ability to follow the law in the penalty phase. Nicklasson reasons that in light of evidence supporting his involvement in additional murders, some jurors might be incapable of fully considering all of the mitigating sentencing factors and might be so blinded by their biases that they could not consider life imprisonment.

This claim is lacking in merit because it mischaracterizes the trial court record. Nowhere in the record does Nicklasson's counsel request the questions Nicklasson now claims were disallowed; nor have we been able to identify an instance in which the trial judge had stated that he would not allow such questions even were they desired. 12 Instead, read in context, the cited portion of the transcript only describes defense counsel's request of leave to ask potential jurors whether, given the indirect evidence of additional murders likely to be presented in the guilt phase of the trial, they would be able to put aside that evidence when considering Nicklasson's guilt for Drummond's murder. 13 The trial judge disallowed questioning on that guilt-phase topic. The Missouri Supreme Court found no abuse of discretion. As the requested question was not crafted or intended to detect impermissible juror sentencing bias, we cannot grant habeas relief on this basis.

12 In the pre-trial transcript, there is a mention by Nicklasson's counsel of a previous off-the-record chambers discussion between himself and the judge concerning the judge's not wanting further questioning relating to punishment. This represents the only reference to any prohibition against questions in the penalty stage. A trial court's decision will not be found to be constitutionally erroneous in the absence of a record that clearly reflects that decision.

13 The defense began by saying that [t]here will be evidence in this case that two or more people were killed in Arizona . . . . This evidence wouldn't be admitted in its entirety until the second half of the trial if we get that far, but there will be indirect reference to these Arizona murders throughout the first part of the trial. I need to ask you a question about the effect of knowing that Mr. Nicklasson will be responsible for two other deaths in Arizona . . . . How many of you are concerned about your ability to put aside evidence of two additional murders when in this first part of the trial you are being asked only to return Allen's mental state at the time of the shooting? Although not a model of clarity, the wording of the question itself and the discussion between defense counsel and the trial judge before and after the above-quoted language leaves us with no doubt that the desired question pertained only to the guilt phase of the trial.

IV. Alleged Batson Violations

Finally, Nicklasson argues that the prosecutor's peremptory challenges of Katy Yokley and Karen McNeil, both African-Americans, were racially motivated and violated Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The trial court found that the prosecutor was not improperly motivated. The Missouri Supreme Court affirmed. Alleged Batson violations are considered in a three-step process. First, the opponent of a peremptory challenge must make a prima facie case of racial discrimination. Second, the proponent of the strike must tender a race-neutral explanation. Finally, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995) (per curiam) (citing Hernandez v. New York, 500 U.S. 352, 358-59, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (plurality opinion)). In federal habeas review, the factual findings of state courts - which include findings relating to the genuineness of the prosecutor's peremptory challenge motive - "are presumed to be correct, and may be set aside, absent procedural error, . . . only if they are not fairly supported by the record." Purkett, 514 U.S. at 769 (quotation marks and citation omitted); see also 28 U.S.C. § 2254(e).

Nicklasson has failed to meet his burden, and the record supports the trial court's finding of a race-neutral motivation. Nicklasson contends that the prosecutor's proffered reasons for striking two black panelists "applies just as well to . . . otherwise-similar nonblack[s] who [are] permitted to serve." Miller-El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005). The state argues that there were relevant differences between the white and black potential jurors. In response, Nicklasson points out that the differences are minor and that to impose a per se rule requiring identically situated prospective jurors as a prerequisite to a finding of a Batson violation would leave Batson inoperable. Id. at 247 n.6. Nevertheless, although Miller-El does bar such a per se rule, it also provides that the credibility of the reasons given by the may be measured by "'how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.'" Id. at 247 (quoting Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003)). This approach accounts for the nature and extent of the differences.

Yokley was purportedly excused because, in response to a death qualification voir dire question asking whether she would automatically impose a life sentence if the defendant was convicted of first-degree murder, she responded "probably." A Caucasian venireperson, Janice Floyd, responded to the same question with "I believe so" and was not excused. Although Floyd provided a similar response to the death qualification voir dire question, the particular responses were central to the prosecution's determination of whether, and to what extent, prospective jurors might be committed to imposing life imprisonment over the death penalty. We agree with the Missouri Supreme Court's observation that "[t]he state is entitled to make judgments about the strength of a particular venireperson's commitment to the life-without-parole option, vis-a-vis, that of another venireperson whose words do not convey the same conviction." Nicklasson, 967 S.W.2d at 613-14. It is an entirely reasonable trial strategy for a prosecutor to excuse a juror whose responses suggest that they may be more committed to the imposition of life in prison than others.

It is reasonable to contend that a potential juror answering "probably" would be more committed to a position than one answering "I believe so." "Probably" presents a predictive assessment cloaked in the objective garb of statistical language, whereas "I believe so" reflects a naked, subjective impression. Generally, objective or quantifiable evidence is more persuasive and comprehensible than subjective or qualitative evidence. The responses differ in their emphasis. This is a subtle distinction perhaps, but it has a direct bearing on a legitimate, reasonable, non-race-based trial strategy. Furthermore, as previously discussed, the trial court judge restricted death-qualification voir dire and asked those questions himself. In light of these restrictions, even minor differences between each potential juror's response take on added significance; such differences are all the parties have to inform their peremptory challenge decisions.

Nicklasson's reliance on Miller-El does not bolster his argument because the Supreme Court's finding of a Batson violation did not hinge entirely on the closeness of the excluded black juror's testimony to that of the white, but on the "totality of the relevant facts" pertaining to the prosecutor's conduct during the defendant's trial. 14 Miller-El, 545 U.S. at 239. Nicklasson does not offer similarly compelling "totality of the record" evidence and instead relies entirely upon allegedly inconsistent treatment of jurors who gave similar responses. 15 Although the inconsistent application of a prosecutor's peremptory challenge rationale between similarly situated white and black jurors constitutes evidence of purposeful discrimination, see id. at 241, there is not, nor should there be, a per se rule stating that the presence of such evidence alone must always constitute "clear and convincing" evidence sufficient to satisfy Nicklasson's burden no matter its strength. Accordingly, Nicklasson has failed to demonstrate that the Missouri Supreme Court unreasonably applied clearly established federal law when it concluded that Yokley's exclusion was not motivated by race.

14 The Court noted that the prosecutor excluded 91 of eligible black venire panelists, mischaracterized a black venireperson's testimony in such a way as to make that testimony appear objectionable and different from that of a white venireperson when, in fact, the black venireperson's responses should have made the individual an ideal jurist for the prosecution, failed to ask follow-up voir dire questions to clarify claimed distinctions of import, and exhibited a pattern and practice of manipulating Texas voir dire panelist dismissal rules to effectuate the automatic dismissal of black venirepersons. Miller-El, 545 U.S. at 240-66.

15 Unlike the situation in Miller-El, the parties here were not permitted to ask follow-up death qualification questions, thereby increasing the significance of even minor differences in responses. Additionally, the state's proffered rationale as applied to the potential juror's testimony in Miller-El was clearly a mischaracterization, Miller-El, 545 U.S. at 244, but not so here. The prosecution in Miller-El struck an otherwise ideal juror for the prosecution, id. at 247; here, the prosecution struck a juror whose statements, no matter how characterized, would be considered strategically unfavorable to a prosecutor seeking the death penalty. Finally, there is no evidence here of a pattern and practice of rule manipulation to avoid empaneling black jurors.

The prosecution also struck Karen McNeil, a child protection investigator for the Illinois Division of Family Services, who is black. The prosecution claimed it struck her to avoid her relating her work-related experiences in the jury room. Nicklasson argues that the proffered reason was pretextual because venireperson Stark, a white clinical nurse specialist in child psychology, was not struck and might similarly share stories of child abuse. The trial court was persuaded that there "are quantum differences between the two jobs" and did not believe the strike was racially motivated. The Missouri Supreme Court elaborated on these differences, noting that family services investigators deal with "physical and familial aspects of a child's life and attempts to stop or prevent abuse" while a clinical nurse specialist in child psychology "attempts rehabilitation of the mind and spirit after abuse has occurred." Nicklasson, 967 S.W.2d at 614. These findings are entitled to deference under §§ 2254(d) and (e), and we agree with the Missouri courts that the experiences associated with the two jobs are sufficiently different as to justify the prosecutor's use of a peremptory challenge on McNeil but not on Stark. See United States v. Pherigo, 327 F.3d 690, 696 (8th Cir. 2003) (noting that employment is a valid race-neutral reason for exercising a peremptory challenge); United States v. Johnson, 905 F.2d 222, 222 (8th Cir. 1990).

The judgment is affirmed.


Since 1976	Date of Execution	State	Method	Murderer (Race/Sex/Age at Murder-Execution)	Date of Birth	Victim(s) (Race/Sex/Age at Murder)	Date of Murder	Method of Murder	Relationship to Murderer	Date of Sentence
1358 (38)	12-11-13	MO	Lethal Injection	Allen L. Nicklasson W / M / 22 - 41	07-25-72	Richard Drummond W / M / 47	08-24-94	.22 Handgun	None	06-28-96