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

They drove back toward the site of the robbery and the car stalled again. Between 4 and 5 p.m., Richard Drummond, a technical support supervisor for AT & T saw the stranded motorists and offered to take them to use a phone. He was driving a white company car.

Skillicorn and Nicklasson were both armed. They loaded the booty from the Smith burglary into the trunk of Drummond’s car. While Nicklasson held a gun to Drummond’s head, Skillicorn asked Drummond questions in order to calm him down, including whether Drummond’s "old lady" was going to miss him. As Drummond drove east, Skillicorn "got to thinking...if we let this guy off, he’s got this car phone." So they disabled the car phone. Skillicorn stated that he later determined they would have to "lose" Drummond in the woods. At some point during this time, Nicklasson and Skillicorn discussed what they should do with Drummond. Skillicorn, in his sworn statement, claimed that Nicklasson said "he was going to, you know, do something to this guy. I tell him -you know, now, we’re trying to talk on the pretenses that-that, uh, this guy in the front seat don’t hear us too. Right? Right. ‘Cause, uh, I didn’t want him panicking."

They directed Drummond to exit I-70 at the Highway T exit. They proceeded four miles on to County Road 202 to a secluded area where they ordered Drummond to stop his vehicle. As Nicklasson prepared to take Drummond through a field toward a wooded area, Skillicorn demanded Drummond’s wallet. Knowing Nicklasson had no rope or other means by which to restrain Drummond and that Nicklasson carried a loaded .22 caliber pistol, Skillicorn watched as Nicklasson lead Drummond toward a wooded area. There, Nicklasson shot Drummond twice in the head. Skillicorn acknowledged hearing two shots from the woods and that Nicklasson returned having "already done what he had to do." Drummond’s remains were found eight days later.

St. Louis Post-Dispatch

"Legal challenges over, Missouri plans to resume executions next week," by Jeremy Kohler. (05/15/2009)

BONNE TERRE, Mo. —After more than three years of wrangling over how Missouri's executioners should deliver the lethal injection — and who is qualified to do it — the state is gearing up for the death penalty again. With questions about the state's method of capital punishment settled, the debate has shifted to whether the first man in line should be spared.

Dennis Skillicorn, 49, is scheduled to die at 12:01 a.m. Wednesday for a role in the 1994 murder of Richard Drummond. With appeals running out, Skillicorn's last hope may be Gov. Jay Nixon, who holds the power to convert the death sentence to life in prison.

In an interview Tuesday at the prison in Bonne Terre, Skillicorn insisted that he did not kill Drummond. He said that his death would cause suffering for his wife and that society would benefit from letting him live. Many agree. Supporters and even a prominent legislator are asking Nixon to spare him. Some prison workers and volunteers plan a demonstration for him Monday in Jefferson City. They say there is substantial doubt that Skillicorn was responsible for the murder — and that he has transformed into a force for good. But Skillicorn has been implicated in four murders over time, leading others to insist his recent deeds don't matter.

State Rep. Bob Nance, a Republican from Excelsior Springs, Mo., Drummond's hometown, said Skillicorn is a career killer and represents the very reason Missouri has a death penalty. "He may or may not have pulled the trigger, but he certainly could have stopped what was happening," Nance said in an interview. "It's very easy to repent after we're caught."

Skillicorn runs one program to help strengthen prisoners' families and another to care for sick and dying inmates. He edits a national magazine, Compassion, that has awarded scholarships for relatives of crime victims. One prison guard calls him a "calming influence." A chaplain said Skillicorn made prison safer and said taking his life would be "counterproductive."

Skillicorn's lawyer has argued, unsuccessfully, in federal court that Nixon, as the former Missouri attorney general, could be biased against clemency. A spokesman for the governor said he would be thorough and fair.

Earlier this week, state Rep. Bill Deeken, R-Jefferson City, asked that the death penalty be put on hold for two years while a commission studies whether it is administered fairly and properly. That measure failed 95-64. Majority Leader Steve Tilley, R-Perryville, urged Nixon to grant clemency, saying there was "reasonable doubt" about Skillicorn's role in Drummond's slaying.

But before the Drummond killing, Skillicorn was already on parole for murder. In that case, in 1980, his partner in a burglary killed the occupant of a home. Skillicorn did more than 13 years in prison.

On the night of Aug. 24, 1994, he was with Allen Nicklasson and Tim DeGraffenreid, on their way to buy drugs. Their car stalled, and Drummond, 47, an AT&T supervisor, stopped along Interstate 70 near Kingdom City to help. The trio kidnapped him. On a rural highway in Lafayette County, Nicklasson walked Drummond to a field and shot him twice in the head. Nicklasson also got a death sentence. DeGraffenreid, then 17, is serving life in prison. Although DeGraffenreid told authorities that Skillicorn ordered the killing, Nicklasson has maintained for years that he acted alone.

Skillicorn said this week that he "had no idea Nicklasson was going to kill" Drummond and said Nicklasson told him "that he had no idea that he was going to kill him" until the moment he did. "I victimized Mr. Drummond in a cruel, heartless way," Skillicorn said. "Do I deserve to be punished for that? Yes I do." But not with his own death. "We shouldn't kill people to show people that killing people is wrong."

Skillicorn and Nicklasson fled to Arizona, where their car got stuck in sand. Another good Samaritan, Joseph Babcock, 47, tried to help. Nicklasson murdered him and his wife, Charlene, 38. After the men's capture, Skillicorn told investigators that Nicklasson had killed yet another woman while they were on the lam in Mexico. But no homicide there was ever confirmed. Skillicorn said last week he had made it up when he was on drugs. Skillicorn admits he has been a drug addict and thief but insisted he was never a direct participant in any of the slayings. He said, "I would never kill anybody."

Former Lafayette County Prosecuting Attorney Page Bellamy challenges Skillicorn's claim to be a follower, pointing to DeGraffenreid's statement that the men decided together to murder Drummond. Bellamy is now a lawyer in Attorney General Chris Koster's office, which declined to comment.

The most recent inmate put to death in Missouri was Marlin Gray, in October 2005. The next year, a federal judge halted the state's executions after the surgeon in charge testified that he was dyslexic, sometimes confused numbers and did not follow written procedures. A Post-Dispatch investigation revealed that the doctor also had faced disciplinary issues and multiple malpractice lawsuits and made false statements in court.

Prison officials satisfied the judge by writing a five-page execution manual. A pharmacist will prepare the lethal chemicals and an anesthesiologist will supervise — measures that exceeded the judge's requirements. The U.S. Supreme Court ruled last year that the lethal injection procedure used in Kentucky is not cruel and unusual punishment. It cleared the way for 36 other states, including Missouri, which use the same drug sequence.

Illinois theoretically uses it too, but former Gov. George Ryan commuted all death sentences in 2000 over concerns about wrongful convictions. The freeze he put on executions still applies to those sent to death row since. Nationally, the trend has been away from capital punishment. In 2007, New Jersey became the first state to ban executions since the U.S. Supreme Court reinstated the death penalty in 1972. Gov. Jon Corzine said it didn't mesh with "evolving standards of decency." Eight other states have considered ending the death penalty this year, some motivated by economy.

Skillicorn said he does not hold much hope of being spared. He said he worries about how his death would affect his wife, Paula Barr, a staff writer for the newspaper the Daily Journal in Park Hills, Mo. He was an inmate when he met Barr, then a reporter for the Kansas City Star; they married in 1997. He saidat he doesn't want her there but that she told him she didn't want him to be alone.

On his last day, he can visit with her until 7 p.m. After a final meal, he will meet with spiritual advisers at 11. Before midnight, he is to be strapped to a table and hooked to an intravenous tube, through which 5 grams of thiopental, a heavy barbiturate, will be injected. Under new procedures, the executioners will wait three minutes to make sure he is unconscious, then inject a second drug to paralyze him and a third to stop his heart.

Kansas City Star

"Missouri carries out first execution in 4 years," by Jim salter. (Associated Press Posted on Tue, May. 19, 2009)

Missouri early Wednesday executed a man who killed a good Samaritan who had stopped on the road to help him, ending a nearly four-year period without an execution in the state. Texas, meanwhile, executed its 15th prisoner this year.

Dennis Skillicorn, 49, received an injection at 12:23 a.m. at the prison in Bonne Terre and died 11 minutes later. It was the first execution in Missouri since Marlin Gray was put to death in October 2005.

As part of a lengthy final statement, Skillicorn apologized to the family of the victim, Richard Drummond, saying that "for the last 15 years I've lived with the remorse of my actions."

Executions in Missouri had been on hold shortly after Gray's death as the courts decided whether lethal injection in general, and the state's three-drug method in particular, violated constitutional protections against cruel and unusual punishment. Some argued that if the initial anesthetic doesn't take hold, a third drug that stops the heart can cause excruciating pain. But the inmate would not be able to communicate the pain because of a second drug that paralyzes him. Last year, the U.S. Supreme Court upheld lethal injection, and a federal judge ruled in favor of Missouri's execution method, opening the way for executions to begin again.

Skillicorn mouthed words to his wife and two spiritual advisers as the first drug was administered to him. Soon, he appeared unconscious.

As part of a new protocol, curtains in witness viewing areas were then closed for about two minutes while medical staff checked to make sure that Skillicorn was unconscious and that the catheters were working properly. Once confirmed, the next two drugs were administered, and he was pronounced dead a short time later.

In 1994, a car carrying Skillicorn, Allen Nicklasson and Tim DeGraffenreid stalled along Interstate 70 north of Fulton in Callaway County. Drummond, from the northwestern Missouri town of Excelsior Springs, stopped to help, but was forced at gunpoint to drive the men toward Kansas City. On the way, the men stopped in a rural area, and Nicklasson shot Drummond in the back of the head. Nicklasson and Skillicorn were convicted of first-degree murder. Nicklasson is also on death row. DeGraffenreid, who was 17 when the crime took place, served time for second-degree murder.

Supporters wanted Skillicorn's sentence commuted to life in prison, calling him a role model for other inmates. But in denying a clemency request Tuesday, Gov. Jay Nixon noted that Skillicorn was on parole for another murder at the time Drummond was kidnapped, robbed and killed. Nixon also noted that Skillicorn was convicted of two subsequent murders in Arizona just days after Drummond was killed.

ProDeathPenalty.Com

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

The trio then drove the car back east toward the site of their earlier robbery. They stalled again on the south outer road east of Kingdom City. Between 4 and 5 p.m., Richard Drummond, a technical support supervisor for AT&T, saw the stranded motorists, stopped, and offered to take them to use a phone. He was driving a white 1994 Dodge Intrepid, a company car. Skillicorn and Nicklasson were both armed. They loaded the booty from the Smith burglary into the trunk of Drummond’s car. While Nicklasson held a gun to Drummond’s head, Skillicorn asked Drummond, a married father of three, some questions in order to calm him down, including whether Drummond’s "old lady" was going to miss him. As Drummond drove east, Skillicorn "got to thinking...if we let this guy off, he’s got this car phone." So they disabled the car phone. Skillicorn stated that he later determined they would have to "lose" Drummond in the woods.

At some point during this time, Nicklasson and Skillicorn discussed what they should do with Drummond. Skillicorn, in his sworn statement, claimed that Nicklasson said "he was going to, you know, do something to this guy. I tell him - you know, now, we’re trying to talk on the pretenses that-that, uh, this guy in the front seat don’t hear us too. Right? Right. ‘Cause, uh, I didn’t want him panicking." They directed Drummond to exit I-70 at the Highway T exit just east of Higginsville. They proceeded four miles on to County Road 202 to a secluded area where they ordered Drummond to stop his vehicle. As Nicklasson prepared to take Drummond through a field toward a wooded area, Skillicorn demanded Drummond’s wallet. Knowing Nicklasson had no rope or other means by which to restrain Richard Drummond and that Nicklasson carried a loaded .22 caliber pistol, Skillicorn watched as Nicklasson lead Richard toward a wooded area. There, Nicklasson told Richard to say a prayer and shot him twice in the head. Skillicorn acknowledged hearing two shots from the woods and that Nicklasson returned having "already done what he had to do." Drummond’s remains were found eight days later.

Following this murder, Skillicorn and Nicklasson dropped DeGraffenreid off in Blue Springs, Missouri, and then fled the state. They committed a string of house burglaries along the way, and attempted to steal a woman's purse at a grocery store in California. The jury heard audiotape of Skillicorn's confession to the FBI in San Diego, in which he recounted the following crimes. Three days after Richard Drummond's murder, the car they stole from him became stuck in the sand near Kingman, Arizona. The two men approached the house of Joseph Babcock, 47, and Charlene Babcock, 38. As in the case of RIchard Drummond's murder, Mr. and Mrs. Babcock offered assistance to Skillicorn and Nicklasson and they were murdered. After Joseph Babcock attempted unsuccessfully to pull Richard Drummond's company car out of the sand, Nicklasson shot and killed him. Skillicorn and Nicklasson then returned to the Babcock home in Joseph Babcock's truck, where Nicklasson killed Charlene Babcock in a similar fashion. Nicklasson and Skillicorn then absconded across California, stealing a purse from a woman in a supermarket and committing armed robbery along the way. Later, while in Mexico, Skillicorn pulled his handgun on a woman operating a diner where the two men were eating. Unfortunately, the woman did not understand Skillicorn's demands for money. Nicklasson then shot and killed the woman.

Eventually returning to the United States, both were arrested in San Diego after the police picked them up on successive days as hitchhikers. Following his arrest in San Diego, Nicklasson gave a confession to the FBI. Nicklasson admitted that he marched Drummond into the woods at gunpoint. Nicklasson alleged in this statement that he had a rope in his pocket to tie Drummond up, but he "snapped" and instead decided to shoot him, somewhat on an impulsive whim. Nicklasson also described the Arizona murders and numerous robberies the two committed while on the lam, and how he had killed his own abusive father at age nine. Skillicorn also was involved in the murder of Paul J. Hines outside a truck stop in Elko, Nevada. Skillicorn also discussed with police the murder of the woman in Mexico, but this case has not resulted in charges.

Additionally, in 1980, Skillicorn had been convicted of second degree murder in the death of Wendell Howell. He served 13 years for that killing and was on parole.

Columbia Missourian

"UPDATE: Missouri executes Dennis Skillicorn," by Jim Salter. (Associated Press Wednesday, May 20, 2009 | 3:58 a.m. CDT)

BONNE TERRE — Missouri early Wednesday executed a man who killed a good Samaritan who had stopped on the road to help him, ending a nearly four-year period without an execution in the state. Texas, meanwhile, executed its 15th prisoner this year. Dennis Skillicorn, 49, received an injection at 12:23 a.m. at the prison in Bonne Terre and died 11 minutes later. It was the first execution in Missouri since Marlin Gray was put to death in October 2005.

As part of a lengthy final statement, Skillicorn apologized to the family of the victim, Richard Drummond, saying that "for the last 15 years I've lived with the remorse of my actions."

Executions in Missouri had been on hold shortly after Gray's death as the courts decided whether lethal injection in general, and the state's three-drug method in particular, violated constitutional protections against cruel and unusual punishment. Some argued that if the initial anesthetic doesn't take hold, a third drug that stops the heart can cause excruciating pain. But the inmate would not be able to communicate the pain because of a second drug that paralyzes him. Last year, the U.S. Supreme Court upheld lethal injection, and a federal judge ruled in favor of Missouri's execution method, opening the way for executions to begin again.

Skillicorn mouthed words to his wife and two spiritual advisers as the first drug was administered to him. Soon, he appeared unconscious. As part of a new protocol, curtains in witness viewing areas were then closed for about two minutes while medical staff checked to make sure that Skillicorn was unconscious and that the catheters were working properly. Once confirmed, the next two drugs were administered, and he was pronounced dead a short time later.

In 1994, a car carrying Skillicorn, Allen Nicklasson and Tim DeGraffenreid stalled along Interstate 70 north of Fulton in Callaway County. Drummond, from the northwestern Missouri town of Excelsior Springs, stopped to help, but was forced at gunpoint to drive the men toward Kansas City. On the way, the men stopped in a rural area, and Nicklasson shot Drummond in the back of the head.

Nicklasson and Skillicorn were convicted of first-degree murder. Nicklasson is also on death row. DeGraffenreid, who was 17 when the crime took place, served time for second-degree murder.

Supporters wanted Skillicorn's sentence commuted to life in prison, calling him a role model for other inmates. But in denying a clemency request Tuesday, Gov. Jay Nixon noted that Skillicorn was on parole for another murder at the time Drummond was kidnapped, robbed and killed. Nixon also noted that Skillicorn was convicted of two subsequent murders in Arizona just days after Drummond was killed.

Missouri.Net

"Skillicorn executed early this morning at Bonne Terre," by Bob Priddy. (Wednesday, May 20, 2009, 5:47 AM)

Murderer Dennis Skillicorn went to his death this morning with an apology and with faith.

In his final statement, Skillicorn said he had lived every day for the last 15 years with remorse for his murder of Richard Drummond, who had stopped to offer a ride to Skillicorn and two others when their car broke down. Skillicorn lost his last appeal to the State Supreme Court just moments before he was taken to the death chamber. He was pronounced dead at 12:34 this morning.

Skillicorn was implicated in five murders, but he said in his last statement that God and a good woman had changed his life. His statement was read by Corrections Department spokesman Jacqueline LaPine.

"The sorrow, despair and regrets of my life would most certainly have consumed me if not for the grace and mercy of a loving and living God who saved me," Skillicorn wrote in a final statement read to reporters by Department of Corrections' spokesman Jacqueline LaPine. "As a husband, I've been overjoyed to know the love of a woman unlike any I've ever known. She shall forever be by soul mate and I hers."

While in prison, Skillicorn married Paula Barr, a reporter for the Kansas City Star who covered his trial as a crime reporter. She no longer works for the Star. They were married in 1997 at the Potosi prison, where Skillicorn was housed until being moved to Bonne Terre for the execution.

Attorneys for Skillicorn kept up the legal battle until the very end. The State Supreme Court turned aside half-a-dozen appeals for stays of execution in the final day, the last one shortly before midnight. That delayed the execution for about half an hour.

Governor Nixon denied a clemency request earlier in the evening after receiving a final briefing from his counsel. "After careful deliberation, I have denied this petition," Nixon said in a written statement. "After more than a decade of legal challenges, both the conviction and the death sentence of Dennis Skillicorn have held up under extensive judicial review by the state and federal courts. "

Nixon noted in his statement that the two murders for which Dennis Skillicorn was convicted in Missouri are not his only murder convictions. He also received life sentences after pleading guilty to murdering an Arizona couple in 1994, a few days after the Drummond murder. "These factors were taken into consideration in the clemency process and played a significant role in my decision," Nixon stated.

Supporters of a commutation for Skillicorn noted his many good works while in prison, but it was a decision made on August24th of 1994 that cost Skillicorn his life. Skillicorn, along with Allen Nicklasson and Tim DeGraffenreid had been driving back to Kansas City the day before after a road trip to buy drugs when their car broke down on I-70. They tried to have it repaired, but it broke down again the next day.

Richard Drummond, a 47-year-old supervisor from AT&T, stopped to offer the three a ride, not knowing the three were armed after burglarizing a nearby house. Nicklasson held a 22-caliber pistol to Drummond's head and ordered him to drive to a secluded area in Lafayette County where Nicklasson took Drummond into the woods and killed him.

Skillicorn and Nicklasson dropped DeGraffenreid off in Blue Springs and kept driving Drummond's car until it got stuck in the Arizona desert. They walked to a nearby home where Joe Babcock offered to pull them out of the sand. As Babcock was trying to scoop sand from the car's tires, Nicklasson killed him. They then went back to the house and killed his wife, Charlene, and took the Babcock's vehicle.

DeGraffenreid by then had been arrested and led police to Drummond's body. Skillicorn and Nicklasson were caught in the San Diego, California area six weeks after Drummond's death.

DeGraffenreid pleaded guilty to second degree murder and is in prison for life. Nicklasson and Skillicorn were tried separately. Both got death. Nicklasson is still awaiting execution.

Skillicorn had been involved in an earlier murder. In 1979, he and two other young men burglarized a Kansas City home. One of the others used a shotgun to kill an 81-year-old man. Skillicorn, then 20, was convicted of second-degree murder and was sentenced to 35 years in prison. He was paroled in 1992.

Skillicorn supporters say the man who died was not the same man who was involved in the killings. They pointed to his work caring for sick and dying inmates, or his work in a program helping families of inmates. One person says he has made prison safer. Another has called him a "calming influence" in the prison. He was the editor of COMPASSION magazine which is sent to death row inmates and to about 4,500 other readers. Money from subscriptions has funded scholarships for children who have lost parents to violent crime.

This was Missouri's first execution since October, 2005, when the state put Marlin Gray to death, the fifth inmate executed that year. In February, 2006, the state came within hours of executing Michael Taylor for the murder of a Kansas City school girl. His case was added the list of others that challenged the three-drug protocol used for executions. Courts have since upheld the system used in Missouri. Taylor remains under a death sentence. No new execution date has been set for him.

Missourians to Abolish the Death Penalty

Missouri Catholic Conference

"Religious, Civic Leaders Submit Clemency Application for Dennis Skillicorn."
August 12, 2008

JEFFERSON CITY, MO –Civic and religious leaders from across the state submitted a clemency application today to Governor Blunt for Dennis Skillicorn who is scheduled to be executed by the state of Missouri on August 27, 2008. Citing that society and public safety would be better served if he were allowed to continue his worthwhile prison ministries, the signatories requested that Mr. Skillicorn’s death sentence be commuted to life in prison without parole.

Mr. Skillicorn is deeply remorseful for his part in the crimes leading up to the murder of Richard Drummond in 1994. He has spent the past decade in prison working for restorative justice and trying to make amends for his criminal behavior.

Since his arrest in 1994, Mr. Skillicorn has dedicated his life to God and has been involved in numerous worthwhile activities in prison, including the editor of Compassion, a national publication authored by death row inmates and dedicated to victim outreach. The magazine has raised over $34,000 in scholarships that have been given to family members of murdered victims.

Mr. Skillicorn has created and edited a book aimed at helping troubled youth make good choices and change their lives. The book has been provided free to juvenile detention centers across the country. Mr. Skillicorn was a founder of 4-H LIFE at Potosi Correctional Center, a family-strengthening program that fosters positive interaction between children and their incarcerated parents. Mr. Skillicorn chairs the prison’s hospice’s program that cares for terminally ill offenders.

Mr. Skillicorn has been a full time employee of Set Free Ministries that ministers to thousands of prisoners in Missouri and Illinois helping offenders find the healing power of God’s love. Mr. Skillicorn also began an annual charity carnival at the prison, the proceeds of which go to charitable community organizations.

The application states that, “Mr. Skillicorn has turned his life around, becoming a model of rehabilitation and service to others. He is a model prisoner who is a positive influence on other inmates and the prison environment…Dennis Skillicorn is not the same person who was arrested fourteen years ago. He is no longer a threat to public safety. His execution would be senseless. Society and public safety would be better served if he were allowed to continue his worthwhile ministries in prison.”

The clemency application was submitted in the name of Most Rev. John R. Gaydos, Bishop of the Diocese of Jefferson City; Most Rev. Robert Finn, Bishop of the Diocese of Kansas City-St. Joseph; Most Rev. James V. Johnston, Bishop of the Diocese of Springfield-Cape Girardeau; Most Rev. Robert Hermann, Archdiocesan Administrator of the Archdiocese of St. Louis; Bishop Gerald Mansholt, Bishop Central States, Synod, Evangelical Lutheran Church in America; Rt. Rev. George Wayne Smith, Episcopal Diocese of Missouri; Rev. Carolyn Schrock, Church of the Brethren, MO/AR; Jim Hill, Executive Director, Baptist General Convention of Missouri; Dominican Sisters, Sparkhill, New York; St. Louis Religious Society of Friends, (Quakers); Institute for Peace and Justice.

State v. Skillicorn, 635 S.W.2d 82 (Mo. 1982) (Prior Murder Direct Appeal).

Defendant was convicted before the Circuit Court, Jackson County, Forest W. Hanna, J., of murder in the second degree, and he appealed. The Court of Appeals, Nugent, P. J., held that evidence of defendant's abandonment of criminal enterprise was so minimal as not to support submission of affirmative defense of abandonment to jury. Affirmed.

NUGENT, Presiding Judge.

On December 2, 1979, Skillicorn and two friends, James Betts and Elias Frank Brooks, Jr., met around noon. After drinking beer they decided to commit a burglary at some undetermined place “in the country”. The three stopped at Wendell Howell's house, near Levasy, Missouri, where Skillicorn knocked on the door. He returned to the car and reported that someone was in the house. They left the house but returned after deciding to “cowboy” or rush into the house anyway. Betts had a sawed-off shotgun and Skillicorn had a handgun.

Betts held his gun on Mr. Howell while Brooks and Skillicorn ransacked the house. Betts then told his accomplices that he was going to have to kill Mr. Howell. At Betts' direction, they waited in the car until they heard the fatal gunshot and then returned to the house. A grand jury indicted Skillicorn for the capital murder of Wendell Howell.

At the trial Brooks, who received a twenty-year sentence upon his guilty plea to murder in the second degree, testified for the state. He said that both Betts and Skillicorn took their guns into the Howell house. According to Brooks, he objected to Betts' statement that Betts would have to kill Mr. Howell, but he believed that Skillicorn said nothing. After the shooting, Betts returned to the car and told Brooks and Skillicorn to go back into the house to see if Mr. Howell was dead. Although Skillicorn went inside the house again, Brooks did not.

On cross-examination Brooks stated that he did not try to take the gun from Betts because Brooks was afraid that Betts would shoot Brooks and Skillicorn. A television set, cash, and beer and chicken from the refrigerator were taken from the residence.

Skillicorn, the only defense witness, stated that although the three men had “done some burglaries together”, they had not used guns before this time. He said that the handgun, as well as the sawed-off shotgun, belonged to Betts. He denied that he carried it into the Howell house. He gave the following explanation of the events leading to the killing:

Well, I had brought the stuff down from upstairs and I set it down right there where they were at, and Betts was eating a piece of chicken. He told me to-“ We're going to have to kill this man.” He was talking to me and Frank both when he stated that, “We're going to have to kill this man because he can identify all three of us.” Well, Frank told him he couldn't do it because he didn't have the heart, wanted no part of it, and so he just told us at that time, both of us, just to get out of the house, just to get out of the house. And that's what we done. Frank went out of the house first. I followed. I had to pick up the things I brought downstairs, and I followed him out of the house.

Skillicorn further testified that he didn't try to take the shotgun from Betts “(b)ecause I had it in my head that the man would have shot me. I was positive of that.” Skillicorn admitted that he returned to the house on Betts' orders to see if Mr. Howell was dead. He took beer from the kitchen table on his way back to the car.

The trial court submitted instructions on capital murder, murder in the second degree and manslaughter. In addition, the court without comment or objection from defendant gave withdrawal Instruction No. 11 (MAI-CR 2.16):

If you find and believe from the evidence beyond a reasonable doubt that the defendant engaged in the conduct submitted in Instruction No. 6, or No. 7, or No. 8, and If you further find that it is more probably true than not true that before the commission of the offenses of capital murder, or murder in the second degree, or manslaughter as submitted in Instruction No. 6, or No. 7, or No. 8, the defendant abandoned his purpose to promote the commission of that offense and gave timely warning to law enforcement officers or otherwise made proper effort to prevent the commission of the offense, you must find the defendant not guilty of that offense.

The jury returned a verdict of guilty of murder in the second degree. Defendant's motion for a new trial contained no reference to Instruction No. 11 or the submission of the abandonment defense.

On appeal Skillicorn contends that the trial court committed plain error in giving the withdrawal instruction because this instruction unconstitutionally shifted the burden of proof to the defendant and, therefore, violated the due process clause of the United States Constitution.

MAI-CR 2.16 refers to the Notes on Use under MAI-CR 2.12 which provide that the affirmative defense of abandonment must be submitted whether requested or not if evidence to support the defense was adduced. Apparently the trial judge believed that defendant's testimony was sufficient to require the court to give that instruction. Following the lead of State v. O'Neal, 618 S.W.2d 31, 36-37, decided by the Supreme Court on June 8, 1981, almost ten months after this defendant's trial, we hold that the evidence of abandonment in this case was so minimal as not to support the submission of that defense to the jury.

In State v. O'Neal the appellant contended that error occurred when the trial court failed and refused to instruct the jury on the affirmative defense of abandonment and withdrawal as set forth in s 562.041 (entitled “Responsibility for the conduct of another”), subsection 2, R.S.Mo. 1978, which provides in part as follows:

However, a person is not so responsible if: .... (3) Before the commission of the offense he abandons his purpose and gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.

In O'Neal, as in the instant case, the only evidentiary support for an instruction on abandonment of the murder which resulted from a burglary was the testimony of the defendant. O'Neal asserted that when his accomplice, Boggs, suggested that the victim should be killed, O'Neal replied that he wanted nothing more to do with “the burglary or the robbery or the killing or any part of it”. O'Neal then “just turned and walked off, thinking maybe he'd follow and maybe think before killing the old man”. He didn't try to stop Boggs because “I was afraid maybe he might shoot me ....”

The Supreme Court held at 37 that since O'Neal made no attempt to warn law enforcement officials of his intent to abandon the burglaries or the shooting, the evidence would have had to permit a jury to find that he “otherwise (made) proper effort to prevent the commission of the offense”. Noting that “(a) person who encourages the commission of an unlawful act cannot escape responsibility by quietly withdrawing from the scene”, the court relied on State v. Forsha, 190 Mo. 296, 88 S.W. 746, 757 (1905), which held that:

We are unwilling to sanction as the law of this state that a defendant can first, by words and actions, put in operation a difficulty, or aid and abet in the commencement of it, and, after having by his course of conduct brought the principal actors into a deadly contest, ... then flee from the scene of the struggle and thereby relieve himself absolutely from the results of such fatal difficulty.

Although the Supreme Court did not declare what would constitute “proper effort to prevent the commission of the offense”, it held “as a matter of law, that the belated expression of nonapproval of Boggs' proposed action, and then turning and walking away did not constitute the ‘proper effort’ contemplated by s 562.041”. Therefore, the court concluded that the trial court was correct in refusing to give the jury an instruction on abandonment and withdrawal.

In the instant case, defendant Skillicorn did even less than did O'Neal to withdraw from and abandon the criminal activity. Skillicorn's evidence showed no intent to abandon his purpose of cooperating with Betts in either the burglary or the shooting. Accordingly, we hold that as a matter of law the trial court was not obliged to give the abandonment instruction. We need not reach the question of the constitutionality of the shifting burden of proof in the instruction because Skillicorn, as a matter of law, did not abandon and no shifting of the burden could have occurred.

Moreover, neither Rule 84.13(c) nor 29.12 is invoked. We find that no “manifest injustice” or “miscarriage of justice” resulted from Skillicorn's being given more than he was entitled to have under the law. State v. Scott, 534 S.W.2d 537, 540 (Mo.App.1976).

For the foregoing reasons, we affirm the judgment of the trial court. All concur.

State v. Skillicorn, 944 S.W.2d 877 (Mo. 1997) (Direct Appeal).

Defendant was convicted before the Circuit Court, Lafayette County, Robert H. Ravenhill, J., of first-degree murder, and was sentenced to death. On appeal, the Supreme Court, Price, J., held that: (1) statement made by accomplice to FBI agent was properly excluded as hearsay; (2) evidence of uncharged assault in which defendant and his accomplices threatened victim's life with the same guns used in perpetration of murder just hours earlier was relevant and admissible to show that defendant aided or encouraged shooter in causing death of murder victim and did so after deliberation; (3) evidence was sufficient to sustain conviction based on accessory liability, despite defendant's contention that he thought that shooter was only going to tie victim up and leave him in the woods, and thus evidence did not prove element of deliberation; (4) trial court was well within its discretion to exclude testimony of doctor offered by defense during penalty phase regarding psychiatric examination of defendant, as sanction for defense counsel's refusal to permit prosecutor to examine doctor's file; and (5)death sentence was not disproportionate to sentences imposed in other cases. Affirmed. Robertson, J., filed opinion concurring in part and concurring in result in part in which Benton, J., concurred. Covington, J., filed dissenting opinion.

PRICE, Judge.

A jury convicted Dennis Skillicorn of first degree murder pursuant to Section 565.020, RSMo 1994,FN1 for his part in the murder of Richard Drummond on August 24, 1994. The trial court imposed a sentence of death. We have exclusive jurisdiction over the appeal. Mo. Const. art. V, Section 3. The judgment is affirmed.

FN1. The statute provides: 1. A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter. 2. Murder in the first degree is a class A felony, and the punishment shall be either death or imprisonment for life without eligibility for probation or parole, or release except by act of the governor; except that, if a person has not reached his sixteenth birthday at the time of the commission of the crime, the punishment shall be imprisonment for life without eligibility for probation or parole, or release except by act of the governor.

I. Facts

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

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

Skillicorn and Nicklasson were both armed. They loaded the booty from the Smith burglary into the trunk of Drummond's car. While Nicklasson held a gun to Drummond's head, Skillicorn asked Drummond questions in order to calm him down, including whether Drummond's “old lady” was going to miss him. As Drummond drove east, Skillicorn “got to thinking ... if we let this guy off, he's got this car phone.” So they disabled the car phone. Skillicorn stated that he later determined they would have to “lose” Drummond in the woods. At some point during this time, Nicklasson and Skillicorn discussed what they should do with Drummond. Skillicorn, in his sworn statement, claimed that Nicklasson said “he was going to, you know, do something to this guy. I tell him-you know, now, we're trying to talk on the pretenses that-that, uh, this guy in the front seat don't hear us too. Right? Right. ‘Cause, uh, I didn't want him panicking.”

They directed Drummond to exit I-70 at the Highway T exit just east of Higginsville. They proceeded four miles onto County Road 202 to a secluded area where they ordered Drummond to stop his vehicle. As Nicklasson prepared to take Drummond through a field toward a wooded area, Skillicorn demanded Drummond's wallet. Knowing Nicklasson had no rope or other means by which to restrain Mr. Drummond and that Nicklasson carried a loaded .22 caliber pistol, Skillicorn watched as Nicklasson lead Mr. Drummond toward a wooded area. There, Nicklasson shot Mr. Drummond twice in the head. Skillicorn acknowledged hearing two shots from the woods and that Nicklasson returned having “already done what he had to do.” Drummond's remains were found eight days later.

II.
A. Issues on Appeal

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

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

* * *

VI. Penalty Phase
A. Dr. Spiridigliozzi's Testimony

Skillicorn asserts that the trial court erred in excluding the testimony of Dr. John Spiridigliozzi offered during the penalty phase. Spiridigliozzi carried a file pertaining to Skillicorn with him to the stand. The state sought to review the file, claiming that the evidence was discoverable and had not been disclosed in response to a proper request made pursuant to Rule 25.05(A)(1). Skillicorn's counsel claimed the attorney-client privilege, the physician-patient privilege, and that the file was work product. The court ordered Skillicorn's attorney to turn over the file so that the prosecutor could review the documents briefly before testimony of Dr. Spiridigliozzi was received in open court. Skillicorn's attorney refused, attempting to physically block the passage of the file from Spiridigliozzi to the prosecutor. The court issued an ultimatum to Skillicorn's attorney: surrender the file, or have Dr. Spiridigliozzi's testimony excluded. Skillicorn's attorney was recalcitrant, continuing to refuse to hand over the file. The court dismissed Dr. Spiridigliozzi as a witness after the defense made its offer of proof.FN5

FN5. All of these events occurred in the trial judge's chambers, out of the hearing of the jury.

Regardless of whether the file should have been turned over prior to trial pursuant to the state's discovery request, once Dr. Spiridigliozzi sought to testify concerning Skillicorn's mental condition, it was appropriate for the trial court to order the file to be turned over. Placing Skillicorn's mental condition in issue waived the privilege accorded by Section 491.060, RSMo. That section provides:

The following persons shall be incompetent to testify: * * * * * * (5) A physician licensed under chapter 334, RSMo, a licensed psychologist or a dentist licensed under chapter 332, RSMo, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe and provide treatment for such patient as a physician, psychologist or dentist.

“The physician-patient privilege has no constitutional underpinning and is statutory in origin.” State v. Ward, 745 S.W.2d 666 (Mo. banc 1988). “The physician-patient privilege and the attorney-client privilege are to be used for preserving legitimate confidential communications, not for suppressing the truth after the privileged one lets the bars down.” State v. Carter, 641 S.W.2d 54, 59 (Mo. banc 1982), cert. denied, 461 U.S. 932, 103 S.Ct. 2096, 77 L.Ed.2d 305 (1983). “It is well settled that when a party once places the question of his mental condition in issue he thereby waives the physician-patient privilege to exclude testimony of any doctors who have examined him for that purpose.” Id. at 57. “This waiver, sometimes called the ‘patient-litigant’ waiver, has been recognized in many jurisdictions.” Brandt v. Medical Defense Associates, 856 S.W.2d 667, 671 (Mo.banc 1993).

Such a waiver is a full waiver.

There are at least two reasons for this guiding principle that a waiver is a full waiver. First, the medical privilege only covers matters that are confidential. Once there is a disclosure of the information in any form, it is no longer confidential and therefore no longer privileged. Second, and even more important, the Missouri courts have made it abidingly clear that a patient should not be allowed to use the medical privilege strategically to exclude unfavorable evidence while at the same time admitting favorable evidence. We have referred to this prohibited practice as “permitting the plaintiff to use the privilege both as ‘a shield and a dagger at one and the same time’ (which we do not believe the legislature intended)....” Id. at 672 (citations omitted). Once Dr. Spiridigliozzi sought to testify concerning his examination of the defendant, any information compiled by Dr. Spiridigliozzi pertaining to his examination of Skillicorn was no longer privileged.

Nor could the work product doctrine insulate Dr. Spiridigliozzi's notes from disclosure and use at trial. “Work product consists of ‘opinions, theories or conclusions of defendant's attorney ... [and] communications between defendant and his attorney.’ ” Carter, 641 S.W.2d at 59 (citations omitted). Dr. Spiridigliozzi's notes were not an opinion, theory or conclusion of defendant's counsel or a communication by defendant to his attorney, and therefore were not the work product of the attorney. Hired on a one-time basis to give defendant a psychiatric examination and prepare an objective report on defendant's mental condition, Dr. Spiridigliozzi acted in the capacity of an independent contractor, not as an agent of defense counsel in any real sense of the word, and not as a member of defense counsel's legal or investigative staff.

Regardless of what took place before the trial, the court properly found that the file held by Dr. Spiridigliozzi was discoverable because no privilege existed as to those materials. Thus, the court properly ordered the defense to permit the prosecutor to examine the file. Defense counsel's refusal to hand over the file was a “[w]ilful violation by counsel of ... an order issued pursuant” to an applicable discovery rule, and the court was well within its discretion to exclude testimony evidence relating to the file. Rule 25.16. Point Two is denied.

B. Unconstitutionality of Missouri's Proportionality Review

Skillicorn claims his rights to due process and to effective assistance of counsel are violated by Missouri's proportionality review scheme. Essentially, he argues that the review scheme is arbitrary and that such arbitrariness both violates the Due Process Clause and forecloses effective assistance of counsel. These claims were not preserved in his motion for new trial and are reviewed for plain error, only. Rule 30.20.

The right to effective assistance of counsel refers to the defendant's right to an attorney whose skill, care, and diligence comports with that of a reasonably competent attorney. State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994). To gain relief on an ineffective assistance of counsel claim, a defendant must show his counsel failed to meet this standard and that he was prejudiced thereby; i.e., there is a “reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” State v. Shurn, supra at 468. Skillicorn appears to claim that the purported arbitrariness of Missouri's proportionality scheme precluded his counsel from effectively representing him. Because the right to effective assistance of counsel is objectively determined by the counsel's performance under the law as it exists, his counsel cannot have been ineffective merely because the law on a particular issue is ambiguous, complicated, or even arbitrary.

Moreover, this Court has repeatedly rejected Skillicorn's due process argument, State v. Weaver, 912 S.W.2d 499, 522 (Mo. banc 1995), cert. denied, 519 U.S. 856, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996); State v. Shurn, 866 S.W.2d 447, 468 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994); State v. Ramsey, 864 S.W.2d 320, 328 (Mo. banc 1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994), as have the federal courts. Byrd v. Delo, 942 F.2d 1226 (8th Cir.1991). Point Twenty One is denied.

C. Section 565.035 Independent Review of Death Sentence

Pursuant to Section 565.035, RSMo, this court independently reviews the sentence of death to determine whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the evidence supports the jury's finding of statutory aggravating circumstances under Section 565.032; and whether the sentence of death was excessive or disproportionate to the penalty imposed in similar cases. Skillicorn challenges his sentence only upon disproportionality.

The Court finds that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor and that the evidence did support the jury's finding of statutory aggravating circumstances. The trial court entered the sentence, on recommendation of the jury, after hearing argument by the defense and state concerning the appropriateness of the death penalty. The record reflects the court's deliberate and unimpassioned sentencing of Skillicorn.

The evidence supports the jury's finding of statutory aggravating circumstances pursuant to Section 565.032, RSMo. The jury found the following aggravating circumstances: 1) Skillicorn was convicted on September 19, 1980 of murder in the second degree; 2) the murder of Mr. Drummond was committed while Skillicorn was engaged in the perpetration of kidnapping and while Skillicorn was knowingly aiding Nicklasson and DeGraffenreid in the perpetration of kidnapping; and 3) the murder of Mr. Drummond was committed while Skillicorn was engaged in the perpetration of robbery. See Sections 565.032.2(1), RSMo 1994 and 565.032.2(11), RSMo 1994. The evidence supports these findings.

Finally, Skillicorn's sentence is not disproportionate to sentences imposed in other cases, in light of the crime and the strength of the evidence against him. Skillicorn and Nicklasson took Mr. Drummond, a man Skillicorn, himself, designated a “good Samaritan,” at gunpoint, to a secluded place and murdered him merely because he might cause them the inconvenience of having to elude the police if he reached a telephone too quickly. Murder to avoid inconvenience to the murderer exhibits a lack of respect for human life that has been held to warrant the harshest penalty. See State v. Gray, 887 S.W.2d 369, 389 (Mo. banc 1994), cert. denied, 514 U.S. 1082, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995); State v. Parker, 886 S.W.2d 908, 934 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995). Moreover, Skillicorn's crimes graduated in severity from burglary to kidnapping and eventually to murdering Mr. Drummond. State v. Betts, 646 S.W.2d 94 (Mo. banc 1983). The sentence is not disproportionate. The nature of the crime and the strength of the evidence support the sentence of death. Point Twenty Two is denied.

VII. Conclusion

The judgment is affirmed. HOLSTEIN, C.J., and LIMBAUGH and WHITE, JJ., concur. ROBERTSON, J., concurs in part and concurs in result in part in separate opinion filed. BENTON, J., concurs in opinion of ROBERTSON, J. COVINGTON, J., dissents in separate opinion filed.

ROBERTSON, Judge, concurring in part and concurring in result.

I concur in the holding of the principal opinion affirming the conviction and death sentence and the overruling of the appellant's Rule 29.15 motion. I do not agree, however, with the analysis the principal opinion employs to conclude that the trial court did not err in its decision to admit evidence of the appellant's uncharged assault on Keri McEntee. Nor do I agree with the conclusion Judge Covington reaches in her dissent that a new trial is warranted because the trial court admitted this evidence. Therefore, I must write separately, if briefly, to express my understanding of the proper analysis of this evidence.

In her dissent, Judge Covington correctly states the legal analysis of the uncharged-bad-acts evidence. I need not repeat her effort, beyond agreeing with her that the principal opinion fails to justify its conclusion on the McEntee assault under the precedent this Court has consistently followed. State v. Bernard, 849 S.W.2d 10 (Mo. banc 1993); State v. Sladek, 835 S.W.2d 308 (Mo. banc 1992); State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1954).

I do not agree, however, with Judge Covington's conclusion that the erroneous admission of evidence of the McEntee assault requires reversal of the conviction in this case. That the evidence of uncharged bad acts is error is the product of an analysis that weighs the logical relevance of evidence (the evidence tends to make the existence of material fact more or less probable) against its legal relevance (the cost of the evidence in terms of its potential for prejudice to the defendant or confusing the jury). See Sladek, 835 S.W.2d at 314 (Thomas, J., concurring). The word “prejudice” does not carry the same meaning in every context. Prejudice that requires a conclusion that the trial court erred in admitting a particular kind of evidence is not the same kind of prejudice that requires reversal of the results of a trial.

Trial court error that requires reversal exists if the error more-likely-than-not prejudices the entire proceeding against the appellant. I would style this kind of prejudice “outcome-determinative trial prejudice.” Outcome-determinative trial prejudice exists where there is a reasonable probability that the jury would have reached a different conclusion had the error not occurred.

It does not follow, therefore, as Judge Covington seems to imply, that the prejudice that is part of the analysis in determining whether a trial court erred in admitting particular evidence is also per se outcome-determinative trial prejudice. Such a conclusion seems the product of a microscopic examination of one part of the evidence presented at a trial while ignoring the totality of the other evidence against the defendant.

The outcome-determinative-trial-prejudice analysis that I think the law requires asks an appellate court to balance the totality of the evidence the jury properly heard against the evidence it improperly heard. In this case, that balance decisively supports the principal opinion's affirmance of the conviction. The evidence of the multitude of Skillicorn's other sins, properly admitted under the Bernard-Sladek-Reese standard, makes Skillicorn's participation in the McEntee assault seem a minor irritant in the comparison. I have no hesitancy in concluding that Skillicorn suffered no outcome-determinative trial prejudice even though the trial court erred in admitting this evidence.

COVINGTON, Judge, dissenting.

I respectfully dissent on the issue of the admissibility of the crimes that Skillicorn committed after Drummond's murder, section III.D of the Court's opinion. The law on admissibility of uncharged misconduct is well settled. The first exhaustive discussion in recent times is contained in State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1954). In Reese, the defendant and his companion committed within a two hour time frame a murder during the course of a holdup of a hotel, then an attempted holdup of a liquor store. The state sought to sustain the propriety of showing defendant's commission of the separate, independent, and subsequent crime solely on the theory that such evidence was admissible to prove the identity of the defendant as the perpetrator of the murder for which he was then on trial. The state argued that inasmuch as bullets found at the hotel were identified as having come from the gun that was in the defendant's possession at the later liquor store holdup, and that a bullet from this type of gun killed the victim at the hotel, defendant's possession of the gun at the subsequent holdup linked him with the murder of the victim at the hotel. Id., 274 S.W.2d at 306-07.

This Court recited the well established general rule that proof of the commission of separate and distinct crimes is not admissible unless the proof has some legitimate tendency directly to establish the defendant's guilt of the charge for which he is on trial. Id., 274 S.W.2d at 307. Evidence of other crimes, when not properly related to the cause on trial, violates the defendant's right to be tried for the offense for which he has been indicted. Id. The concern is that a jury will convict the defendant for being a bad person instead of finding him guilty because he committed the specific crime for which he is being tried. State v. Sladek, 835 S.W.2d 308, 314 (Mo. banc 1992) (Thomas, J., concurring).

The Reese Court then laid out the well-settled exceptions to the general rule of exclusion. As has been most recently restated in State v. Bernard, generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial; or (6) a signature modus operandi. 849 S.W.2d at 13, 17 (Mo. banc 1993).

Reese, Bernard, and Sladek fully explain the test of whether evidence of other distinct crimes falls within any of these exceptions. Whether the requisite degree of legal relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a “legally spurious presumption of guilt” in the minds of the jurors. Reese, 274 S.W.2d at 307. As a consequence, if the Court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt and the evidence should be rejected. Id.

The Court in the present case disregards the teachings of Reese, Bernard, and Sladek. Evidence of the assault on McEntee does not tend to establish motive, intent, the absence of mistake or accident, or a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. Nor does the evidence go to prove the identity of the person charged with the commission of the crime on trial. The majority attempts to argue, in a highly speculative fashion, that the details of the assault on Keri McEntee are probative on the issue of deliberation of the murder of Drummond. It is difficult to imagine, and the majority does not adequately explain, how deliberation can be demonstrated by the separate assault on McEntee, a separate and distinct crime occurring several hours after the murder. To say that obtaining firearms from the trunk of Drummond's car and holding them to McEntee's head are relevant to the element of deliberation of the murder of Drummond strains credulity. If the offense against McEntee fits within the “sequence of events surrounding the offense charged,” then, what evidence does not? The evidence is not logically relevant. In my view, therefore, the evidence is without probative value.

Even if one assumes, arguendo, that the evidence in dispute has probative value, it is tenuous at best and is far outweighed by the prejudicial effect of the evidence. As the majority opinion reflects, deliberation is the central issue in the case. The state's theory of Skillicorn's liability for first degree murder rests upon Skillicorn's guilt as an accomplice to Allen Nicklasson. Skillicorn challenged his liability for first degree murder on the basis of an inadequate showing of deliberation throughout the proceedings. Skillicorn contended that he believed Nicklasson was going to take Mr. Drummond into the woods and somehow restrain him there and that Nicklasson's murder of Drummond was a complete surprise to him. Admission of the challenged evidence, that Skillicorn and Nicklasson threatened McEntee's life “only a few hours” after the murder took place, very likely may have caused the jury to find that, if Skillicorn committed the offense against McEntee, he committed the offense against Mr. Drummond.

In sum, the evidence is neither logically or legally relevant, and its admission constitutes reversible error.

Skillicorn v. State, 22 S.W.3d 678 (Mo. 2000) (PCR).

Movant sought post-conviction relief from his conviction and death sentence for first-degree capital murder, which were affirmed on direct appeal, 944 S.W.2d 877. The Circuit Court, LaFayette County, Robert H. Ravenhill, J., denied motion. Movant appealed. The Supreme Court, Wolff, J., held that: (1) movant did not overcome presumption that defense counsel's failure to introduce in the penalty phase evidence of his good behavior while he was receiving chemical dependency treatment was sound trial strategy; (2) movant did not overcome presumption that defense counsel's failure to introduce expert testimony that he had a difficult childhood and that he was a follower was sound trial strategy; (3) accomplice's statement to his girlfriend that he and defendant had no plan to kill victim was not admissible over hearsay objection as an admission against accomplice's penal interest; (4) trial counsel's failure to preserve co-defendant's mental health records for review by the Supreme Court did not prejudice defendant, and thus did not amount to ineffective assistance; and (5) defendant had notice of state's intention to introduce evidence of his unadjudicated bad acts, and thus, such evidence was admissible in penalty phase to assist jury. Affirmed.

MICHAEL A. WOLFF, Judge.

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

Factual Background and History
(For a fuller account of the facts, see Skillicorn, 944 S.W.2d at 882-83.)

In January 1996, a jury found Skillicorn guilty of first-degree murder for his role in *681 the execution-style killing of Richard Drummond on August 24, 1994. The jury recommended the death penalty. On March 18, 1996, the court sentenced Skillicorn to death for his role in the murder. Pursuant to Rule 29.15, Skillicorn timely filed a pro se motion for post-conviction relief. After the motion court appointed counsel for Skillicorn, an amended motion was filed. The court held an evidentiary hearing, including live and deposition testimony. On June 21, 1999, the motion court issued its findings of fact and conclusions of law overruling Skillicorn's motion. This appeal followed.

Skillicorn's Claims

Skillicorn raises eight points on appeal.

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

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

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

(4) Skillicorn claims he was prejudiced by trial counsel's failure to obtain hearsay evidence from a co-defendant's girlfriend that he claims would have been admissible under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and that such evidence would have provided mitigating facts on the issue of deliberation.

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

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

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

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

* **

For his penultimate point, Skillicorn argues that his appellate counsel was ineffective for failing to raise the issue of his unadjudicated bad acts on appeal while at the same time pursuing weaker claims consistently rejected by this Court even though the unadjudicated bad acts issue was preserved for appeal. Skillicorn asserts that this issue was perfected by counsel's objection and its inclusion in his motion for new trial. Appellate counsel, however, did not raise the claim on appeal, as she believed the evidence to be admissible.

Skillicorn's claim relates to the evidence of the various crimes that he and Nicklasson committed as they fled Kansas City to the southwest. It included the murders of Joseph and Charlene Babcock in Arizona, an attempted purse snatching in California, and the murder of a woman in a diner in Mexico. The motion court determined that the evidence was properly admissible and that counsel was not ineffective for raising a meritless claim to this Court on direct appeal. We agree with the motion court.

The decision to admit evidence of unadjudicated bad acts during the penalty phase rests within the sound discretion of the trial court. State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999). Such material is of assistance to the jury when the jury must assess the punishment of the defendant. Id. This discretion is not unfettered, as the state must reveal to the defendant the aggravating circumstances that it intends to submit to the jury for consideration. State v. Debler, 856 S.W.2d 641, 657 (Mo. banc 1993). In Debler, this Court found that the state had to give notice to the defendant by the instruction conference prior to the penalty phase as to which aggravating circumstances it intended to submit to the jury. Id.

Here, Skillicorn had abundant notice of the aggravating factors. The evidence detailing*690 Skillicorn's unadjudicated bad acts came from Skillicorn's own confession to Special Agent McOmber of the FBI. As to the statutory aggravating circumstances, they were first disclosed in November of 1994. The state, in response to discovery requests, indicated that it planned to call witnesses from both Arizona and California regarding these unadjudicated crimes as far back as July of 1995. Perhaps most tellingly, the defense filed a motion in limine to keep these unadjudicated bad acts out of the trial completely on January 18, 1996. In its response filed four days later, the state noted that “this evidence, however, is clearly relevant in the penalty phase.”

After the jury returned its guilty verdict against Skillicorn, the trial court held a conference with all parties in chambers. At the conference, the state discussed all of the aggravating circumstances including the unadjudicated bad acts. Defendant objected to all aggravating evidence but the objection was overruled. After returning to open court, the trial court then read the first instructions to the jury in the penalty phase. Since this evidence was helpful to the jurors in making their determination, and the defendant had notice of it, the evidence was properly before the jury. Winfield, 5 S.W.3d at 515; Debler, 856 S.W.2d at 657.

Appellate counsel acted properly and made a reasonable, strategic decision in not presenting this claim on appeal. Skillicorn cannot overcome this presumption. Hall, 982 S.W.2d at 680. The motion court's findings of fact and conclusions of law are not clearly erroneous. Id.

(8) The Motion Court Erred by Adopting the State's Findings of Fact and Conclusions of Law

In his eighth and final point on appeal, Skillicorn argues that the motion court clearly erred when it adopted, in an almost verbatim fashion, the findings of fact and conclusions of law written and presented to it by the state, and that this action violated his constitutional rights to due process. The state suggests that Skillicorn is procedurally barred from seeking review of this issue because he did not raise it in his motion to reconsider filed with the motion court after the issuance of its findings of fact and conclusions of law and, thus, Skillicorn failed to raise this constitutional question at the earliest point possible. Kenley, 952 S.W.2d at 260. A “motion” under Rule 75.01 is unnecessary to preserve the alleged error for appellate review in postconviction cases.

Rule 29.15 is subject to Missouri's rules of civil procedure. Rule 29.15(a). The post-conviction court sits without a jury; as such, a party need not file a motion for new trial to preserve error. Rule 73,01(d). FN8 Nor does Rule 75.01 impose such a requirement on movants as it does not provide for the filing of a motion.FN9 Skillicorn's claim is not barred. This being said, we find no reversible error presented by Skillicorn in his claim.

FN8. In contrast, to preserve error in a jury-tried case, allegations of error must be included in a motion for new trial. Rule 78.07(a)(1). FN9. Rule 75.01 merely states that the trial court retains jurisdiction over the judgment “during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time.”

Skillicorn points out that, with the exception of some procedural information added by the motion court, the court's findings of fact and conclusions of law are essentially the same as the state's proposed findings of fact and conclusions of law offered to the motion court. This has become a common practice in Missouri courtrooms and raises no constitutional problems so long as the court, after independent reflection, concurs with the contents of the proposed findings and conclusions. Kenley, 952 S.W.2d at 261. Still, to be valid, the proposed findings of fact and conclusions of law must be supported by the evidence. Id. Though drafted by another, this process makes the findings of fact and conclusions of law those of the court. Id.

In the present case, the evidence clearly supports the findings of fact and conclusions of law made by the motion court. As noted above in section (5), the motion court did misstate this Court's holding in Skillicorn's direct appeal. Even so, we determined that counsel was not ineffective and that Skillicorn was in no way prejudiced. As a whole, the findings of fact and conclusions of law are accurate, both legally and factually. In no way do they violate any constitutional due process rights guaranteed to Skillicorn.

Conclusion

For all of the above reasons, we conclude that the motion court did not clearly err in making its findings of fact and conclusions of law. Skillicorn is unable to demonstrate that his counsel, either at the trial or appellate level, was ineffective, nor can he demonstrate any prejudice against him. Hall, 982 S.W.2d at 680. The judgment of the motion court is affirmed. All concur.

Skillicorn v. Luebbers, 475 F.3d 965 (8th Cir. 2007) (Habeas).

Background: Following affirmance of his first-degree murder conviction and death sentence on direct appeal, 944 S.W.2d 877, and denial of post conviction relief, 944 S.W.2d 877, petitioner sought writ of habeas corpus. The United States District Court for the Western District of Missouri, Nanette K. Laughrey, J., denied relief, and petitioner appealed.

Holdings: The Court of Appeals, Beam, Circuit Judge, held that: (1) state court did not unreasonably apply state law permitting defendant to introduce certain hearsay statements by unavailable witness by excluding accomplice's confession; (2) exclusion under state evidentiary and discovery rules of expert's proffered testimony regarding defendant's mental functioning did not violate due process; (3) counsel did not perform deficiently in refusing to turn over expert's file, resulting in exclusion of expert's testimony; (4) counsel did not perform deficiently in failing to present additional character evidence during penalty phase of capital murder trial; (5) petitioner did not show cause for procedural default on Brady claim; and (6) state court did not unreasonably apply federal law in finding evidence sufficient to support conviction. Affirmed.

BEAM, Circuit Judge.

Dennis Skillicorn was convicted in Missouri state court of first-degree murder and sentenced to death. The district court FN1 denied Skillicorn's petition for habeas corpus pursuant to 28 U.S.C. § 2254, but granted a certificate of appealability on eight issues. We affirm the district court.

FN1. The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri.

I. BACKGROUND

In late August 1994, Skillicorn, Allen Nicklasson, and Tim DeGraffenreid headed east from Kansas City to obtain illegal drugs. On August 23, 1994, the 1983 Chevrolet Caprice in which they were traveling broke down on I-70. They refused a state trooper's offer of help. When the three had progressed only a few more miles the following day, they decided to burglarize a home in the vicinity. They stole guns and money, using the stolen money to pay for a tow to nearby Kingdom City, Missouri. A garage in Kingdom City was unable to fully repair the car's mechanical problems. The trio then drove the car back east toward the site of their earlier robbery. The car stalled again just outside of Kingdom City. Richard Drummond was driving by and saw the stranded motorists. Unfortunately for Drummond, he stopped and offered to take them to use a phone.

The three loaded the loot from the earlier burglary into the trunk of Drummond's car, and got in, with DeGraffenreid in the front, and Skillicorn and Nicklasson in the back. Nicklasson pulled a gun on Drummond, forcing him to drive them at gunpoint. According to Skillicorn's statement to the FBI, as Nicklasson held a gun to Drummond's head, Skillicorn asked Drummond questions ostensibly in order to calm him down, but included in the questioning whether Drummond's “old lady” would miss him. As Drummond drove east, Skillicorn “got to thinking ... if we let this guy off, he's got this car phone.” Skillicorn told Drummond that they would have to disable the car phone, and take Drummond “out in the woods somewhere on one of these side roads” and “lose” him. At some point during this time, Nicklasson and Skillicorn discussed what they should do with Drummond. Skillicorn claimed that Nicklasson told him that Nicklasson was going have to “do something to this guy. I tell him-you know, now, we're trying to talk on the pretenses that-that, uh, this guy in the front seat don't hear us too. Right? Right. ‘Cause, uh, I didn't want him panicking.”

They ultimately directed Drummond to a secluded area off an I-70 exit just east of Higginsville, Missouri. As Nicklasson prepared to walk Drummond through a field toward a wooded area, Skillicorn demanded Drummond's wallet. Knowing that Nicklasson carried a loaded .22 caliber pistol, Skillicorn watched as Nicklasson led Drummond into the wooded area. There, Nicklasson shot Drummond twice in the head. Skillicorn acknowledged hearing two shots from the woods and that Nicklasson returned and stated that he had “done what he had to do.” Drummond's remains were found eight days later.

Following this murder, Skillicorn and Nicklasson dropped DeGraffenreid off in Blue Springs, Missouri, and then fled the state. While on the run, in Arizona, Nicklasson shot and killed a man under circumstances similar to the Drummond murder-the man tried to help them retrieve their car from where it was stuck in the sand. After killing this good Samaritan, the two went back to his house and Nicklasson killed the man's wife as well. Nicklasson and Skillicorn then absconded across California, stealing a purse from a woman in a supermarket and committing armed robbery along the way. They eventually made it to Mexico, where, according to Skillicorn, Nicklasson killed a waitress at a diner. Eventually the two returned to the United States, and both were arrested in San Diego after the police picked them up on successive days as hitchhikers.

Following his arrest in San Diego, Nicklasson gave a confession to the FBI. Nicklasson admitted that he marched Drummond into the woods at gunpoint. Nicklasson alleged in this statement that he had a rope in his pocket to tie Drummond up, but he “snapped” and instead decided to shoot him, somewhat on an impulsive whim. Nicklasson also described the Arizona murders and numerous robberies the two committed while on the lam, and how he had killed his own abusive father at age nine.

Skillicorn also gave a sworn statement to the FBI admitting his involvement in the Drummond murder and giving some of the details about Drummond's final drive, recounted above. In his statement, Skillicorn told the FBI that he knew Nicklasson did not have a rope in his pocket as he led Drummond into the woods. Skillicorn also recounted the Arizona murders, the burglaries and armed robberies committed on the journey, and described how Nicklasson had killed the waitress in Mexico. Skillicorn was charged by the state of Missouri with first-degree murder on an accomplice theory. He proceeded to trial primarily on the theory that he did not possess the requisite culpable state of mind-deliberation-to be convicted of first-degree murder.

Prior to Skillicorn's trial, the defense filed a motion to admit the statement of Nicklasson (who was unavailable as a witness due to his invocation of his Fifth Amendment rights). Skillicorn wanted to introduce this evidence-through the testimony of the FBI agent who interviewed both Skillicorn and Nicklasson in San Diego-to help prove that he did not know Nicklasson was going to kill Drummond. Skillicorn argued that the statement was admissible because it was a statement against Nicklasson's penal interest that was exculpatory of Skillicorn. The trial court ruled pretrial that the hearsay statement was not admissible, but noted that he might reconsider the issue when the agent testified during the state's case-in-chief. During the guilt phase FN2 of the trial, the jury did not hear any portion of Nicklasson's statement.

FN2. During the penalty phase, the jury did hear portions (including the “snapped” comment) of Nicklasson's statement, as one of Skillicorn's attorney's read parts of the FBI agent's testimony into the record.

During the penalty phase of trial, the defense sought to introduce the testimony of a psychiatrist, Dr. Spiridigliozzi. Spiridigliozzi had examined Skillicorn and was prepared to testify that Skillicorn had a lower IQ, and that his dependent personality made him a “follower.” Spiridigliozzi brought Skillicorn's file with him to the witness stand when he was called to testify. The prosecutor objected because he had not been supplied with the file, even though he had requested all relevant discovery materials. After a lengthy in-chambers exchange between the court and counsel for both parties, the trial court ordered the defense to turn the file over, or risk exclusion of the witness, and Skillicorn's attorney chose the latter option.

Skillicorn was convicted of first-degree murder by the jury. The same jury recommended a death sentence following the penalty phase of trial. On March 18, 1996, the trial court sentenced Skillicorn to death.

State Court Adjudication

On direct appeal, the Missouri Supreme Court found that Skillicorn's federal due process rights were not violated by exclusion of Nicklasson's statement, and applied Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), in conducting this analysis. The court held that because the statement did not have considerable assurances of reliability, its admission was not required under Chambers. State v. Skillicorn, 944 S.W.2d 877, 884-85 (Mo.1997) ( Skillicorn I ). The court deemed the statement not reliable because in it, Nicklasson sought to exonerate himself of the mental state required for first-degree murder and because the statement was uncorroborated by evidence. Id. at 885. With regard to the absence of the expert testimony and the refusal of defense counsel to turn over the file, the Missouri Supreme Court found that Skillicorn waived any physician-patient privilege by putting his mental condition at issue during the penalty phase. The court also found that the file was not attorney work product. Id. at 897-98.

Skillicorn then petitioned the trial court for postconviction relief, raising several claims of ineffective assistance of counsel. The trial court rejected these claims, and the Missouri Supreme Court affirmed. Skillicorn v. State, 22 S.W.3d 678, 682-90 (Mo.2000) ( Skillicorn II ). Skillicorn then filed the current petition for habeas corpus relief under 28 U.S.C. § 2254. The district court denied the petition, but granted a certificate of appealability on eight claims.

II. DISCUSSION

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.” 28 U.S.C. § 2254(d). Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), a “federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). We address each issue from the certificate in turn.

A. Exclusion of Nicklasson's Confession

Skillicorn argues the Missouri Supreme Court unreasonably applied Chambers in rejecting his claim that the trial judge inappropriately excluded the Nicklasson's confession to an FBI agent, violating his due process rights to a fair trial. The district court concluded that the Missouri Supreme Court did not unreasonably apply Chambers. In Chambers, the Supreme Court held that a defendant has a constitutional right to proffer exonerating statements, that would otherwise be hearsay, if they were made under circumstances providing “considerable assurance of their reliability.” 410 U.S. at 300, 93 S.Ct. 1038. One of those indicia is that the statement is truly against the penal interest of the speaker. Id. at 301, 93 S.Ct. 1038. The district court agreed with the Missouri Supreme Court that Nicklasson's statement was not against his penal interest because he was arguably attempting to minimize his deliberation by saying that he had a rope, but killed Drummond only after “snapp[ing].” Therefore, the statement was not “unquestionably against interest.” Id. We agree with the district court's analysis that the statement was not unquestionably against Nicklasson's interest.

Furthermore, we note that the statement lacked corroboration. In it, Nicklasson said that he had a rope in his back pocket. But in Skillicorn's statement, he said that he knew Nicklasson did not have a rope with which Drummond could have been tied instead of being killed. In fact, besides Nicklasson's statement, there was no other evidence of a rope, unlike the Chambers statement which was corroborated by numerous pieces of evidence. Id. at 300, 93 S.Ct. 1038. Finally, the Chambers statement was “made spontaneously to a close acquaintance shortly after the murder had occurred.” Id. That clearly was not the case with Nicklasson's statement. Nicklasson's statement was made to an FBI agent several weeks after the murder. We do not mean to suggest that Mirandized statements to authorities are inherently unreliable. We simply note that the statement was made under far different circumstances than the Chambers statement. The Chambers Court intimated that a spontaneous utterance to a close friend would normally be considered reliable. Id. By the time Nicklasson gave a statement to the FBI, he had committed numerous other murders and armed robberies. He may have been motivated to paint the most flattering portrait of himself as possible to the authorities. It is also possible that the statement was reliable because, at that point, Nicklasson's case was beyond hope, and he had no motivation to do anything but come clean. At any rate, however, we find that the Missouri Supreme Court's adjudication of this issue was not unreasonable.

Skillicorn argues that the Missouri court wrongly decided that no statement is ever admissible unless it falls into one (or all) of the three categories delineated by Chambers, and that this is contrary to later Supreme Court decisions interpreting Chambers. However, the later cases cited by Skillicorn are distinguishable. In Crane v. Kentucky, 476 U.S. 683, 688-90, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), the Court's key holding was that if a confession is admitted, the circumstances of how it was obtained are admissible. In Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam), the Court held that a codefendant's confession was admissible at the penalty phase of a murder trial. The Court deemed the statement reliable, among other reasons, because it was made spontaneously to a close friend, it was against the speaker's penal interest and corroborated by other evidence, and the defendant had no ulterior motive to make the statement. Id. at 97, 99 S.Ct. 2150. As we have noted, this is distinguishable from the situation with Nicklasson's statement.

Nor is Skillicorn's characterization of the Missouri Supreme Court's opinion accurate. The Missouri court did not so closely circumscribe the conditions under which an accomplice's statement might be admissible. The court merely noted that Chambers had set forth three tests of reliability, and that none of those “indicators of reliability delineated in Chambers ” were present in Skillicorn's case. Skillicorn I, 944 S.W.2d at 885. After discussing the circumstances in which Nicklasson's statement was made to the FBI and the content of the statement, the court held that there were not considerable assurances of the statement's reliability. Id. Far from unreasonably applying Chambers, the Missouri court appears to have correctly applied it.

Finally, Skillicorn argues that his due process rights were violated with regard to Nicklasson's statement because the same statement that was deemed unreliable in Skillicorn's trial, was successfully used by the government to convict Nicklasson of first-degree murder in his own trial. We disagree. Nicklasson's statement was hearsay in Skillicorn's trial. In Nicklasson's trial, it was an admission, and therefore not hearsay. State v. Case, 140 S.W.3d 80, 85 (Mo.Ct.App.2004). Because the statement was of a completely different character in the two proceedings, Skillicorn's due process argument fails.

Chambers is the controlling Supreme Court precedent on this issue, and the Missouri Supreme Court did not apply it unreasonably to the facts of Skillicorn's case in determining that the statement was not reliable. Therefore, that court correctly dispatched its duty under 28 U.S.C. § 2254(d). Skillicorn's argument is without merit.

B. Exclusion of Skillicorn's Expert Witness

Skillicorn next argues that the trial court erred in excluding his expert's proffered testimony during the penalty phase. The Missouri Supreme Court found that Skillicorn waived any physician-patient privilege by placing his mental condition at issue during the penalty phase. The court also found that the file was not attorney work product. Skillicorn I, 944 S.W.2d at 897-98. Thus, the files and notes the doctor sought to rely upon to testify should have been disclosed to the government prior to trial. Though raised by Skillicorn, the Missouri court did not adjudicate a federal due process FN3 claim with regard to this issue. Accordingly, our standard of review is less deferential. See Taylor v. Bowersox, 329 F.3d 963, 967-68 (8th Cir.2003) (holding that when there is no state court adjudication of a claim, we do not apply the AEDPA's deferential standard of review but review the district court's factual determinations for clear error and its legal conclusions de novo).

FN3. To the extent Skillicorn attempts to raise an equal protection claim, it was not presented to the state courts. Thus, it is unexhausted and at this point, procedurally defaulted because there is no remaining state remedy. Interiano v. Dormire, 471 F.3d 854, 856 (8th Cir.2006). Therefore, we do not consider the equal protection claim, though we strongly doubt that it would have succeeded.

The exclusion of a witness based on state evidentiary rules results in the denial of due process only if there was an impropriety so egregious that it made the entire proceeding fundamentally unfair. Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir.1995). To meet this burden, a habeas petitioner must show that “absent the alleged impropriety the verdict probably would have been different.” Id. (quotation omitted). In the context of this penalty-phase argument, Skillicorn must demonstrate that the jury probably would not have recommended the death penalty had it heard Dr. Spiridigliozzi's testimony. Skillicorn cannot clear this high hurdle.

In support of his argument that there was impropriety at trial, Skillicorn asserts that the trial court wrongly found that his trial counsel had committed a discovery violation with regard to the expert's file. He further contends that the Missouri Supreme Court applied arbitrary and mechanistic rules to deny him the right to present evidence. A review of the record indicates that the trial court believed that Skillicorn's counsel had displayed willful blindness with regard to his expert-counsel did not ask for a copy of the doctor's post-examination reports or conclusions concerning Skillicorn so that counsel would not have to turn over such documents during discovery. Trial counsel's counter-argument was that he had disclosed Spiridigliozzi as a witness, and if the government wanted to know what he was going to say, it could have taken Spiridigliozzi's deposition.

We find that the Missouri Supreme Court did not improperly apply its evidentiary rules in upholding the trial court's decision to exclude this evidence. Despite Skillicorn's arguments to the contrary, the Missouri Supreme Court applied rather ordinary rules of discovery and evidence in finding that the trial court acted appropriately in excluding this evidence. As a named expert, the materials he planned to rely upon in testifying were certainly discoverable. State v. Thompson, 985 S.W.2d 779, 786 (Mo.1999). And because the defense placed Skillicorn's mental state at issue during the penalty phase of trial, any physician-patient privilege that might protect the file was waived. Id.

After reviewing the record, including the lengthy exchange in chambers between the court, counsel, and Dr. Spiridigliozzi, we are left with the same impression as the trial court-trial counsel attempted to use the file as both a shield and a sword. Counsel claimed that he had no knowledge of or control over the file and therefore was not required to produce it during discovery. But during the exchange in chambers, when the court asked Dr. Spiridigliozzi himself to turn over the file, counsel exerted control over the file by refusing to allow the doctor to do so. The trial court's exclusion of the witness under these circumstances does not seem arbitrary or mechanistic-to the contrary, it seems a fair exercise of its discretion. See, e.g., State v. Tripp, 168 S.W.3d 667, 673 (Mo.Ct.App.2005) (“The decision of whether or not to suppress evidence as a sanction for noncompliance with discovery rests within the trial court's discretion.”). We see no error of constitutional magnitude in the Missouri courts' handling of this matter. Skillicorn's due process argument is denied.

C. Ineffective Assistance of Counsel

Skillicorn alleges that his Sixth Amendment rights were violated by several instances of ineffective assistance of trial counsel. The Missouri Supreme Court adjudicated these claims in the postconviction appeal in Skillicorn II. A claim of ineffective assistance of counsel requires proof that defense counsel's representation fell below an objective standard of reasonableness and thereby prejudiced the defendant's case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail, Skillicorn must do more than “show that he would have satisfied Strickland's test if his claim were being analyzed [in state court] in the first instance.” Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Under AEDPA, he must establish that the state court “applied Strickland to the facts of his case in an objectively unreasonable manner.” Id. at 699, 104 S.Ct. 2052.

1. Annie Wyatt's Testimony

Skillicorn argues the Missouri Supreme Court erred in disposing of his ineffective assistance claim regarding counsel's failure to elicit specific testimony from Annie Wyatt. Wyatt was Nicklasson's girlfriend, and allegedly would have testified that Nicklasson told her that they did not plan to kill Drummond, and that Skillicorn remained in the car during the shooting. Wyatt testified for the prosecution during trial. In Skillicorn II, the Missouri Supreme Court found that since the testimony would have been inadmissible hearsay, counsel was not ineffective. 22 S.W.3d at 686-87. Furthermore, the district court noted that Wyatt testified at the postconviction hearing that her boyfriend did not make a statement to her. Skillicorn v. Missouri, No. CV 197-240CC, PCR Tr. at 128-29 (July 7, 1998).FN4 Accordingly, the district court found that counsel was not ineffective for failing to elicit evidence that the witness did not possess.

FN4. The Missouri Supreme Court appears to have made a finding to the contrary-that Wyatt said Nicklasson did make such a statement to her. 22 S.W.3d at 686. Though state court factual findings are entitled to a presumption of correctness, 28 U.S.C. § 2254(e)(1), we find the presumption rebutted by clear and convincing evidence here, based on the transcript of the postconviction proceedings.

The Missouri Supreme Court did not unreasonably apply Strickland regarding this issue.FN5 First, we take no issue with the Missouri court's application and interpretation of its evidentiary rules. See Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.1994) (“A federal court may not re-examine a state court's interpretation and application of state law.”). Wyatt would not have been allowed to testify about Nicklasson's hearsay statements to her. Consequently, counsel is not ineffective for failing to call a witness who would have been unable to testify regarding the pertinent information. And, counsel is certainly not ineffective for failing to ask a witness to testify about things that did not occur. This argument is without merit.

FN5. Skillicorn argues that the Missouri Supreme Court sidestepped the usual Strickland analysis when reviewing this claim. We disagree. The court had initially set out the Strickland standard at the beginning of its analysis in a section called “Our Standard of Review,” 22 S.W.3d at 681, and then referred to the legal principles (without necessarily citing Strickland ) while disposing of the various claims. This is not sidestepping the Strickland standard. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (holding that a state court's decision was not infirm under AEDPA simply because it did not cite Supreme Court precedent, so long as neither the reasoning nor the result of the state court opinion contradicted such precedent).

2. Failure to Develop Mitigating Evidence

Skillicorn next argues the Missouri Supreme Court unreasonably applied Strickland to his ineffective assistance claim regarding counsel's failure to develop more mitigating evidence of his background and social history for the penalty phase of trial. Primarily he argues that counsel should have called an expert to testify about Skillicorn's substance abuse, childhood and family background-how each of these things contributed to Skillicorn becoming a compliant follower of sociopaths.

The Missouri Supreme Court rejected this claim. The court noted that counsel did intend to present such testimony, and in fact Spiridigliozzi initially took the stand, but the discovery dispute about his file, discussed previously, prevented him from testifying. Skillicorn II, 22 S.W.3d at 684 n. 7. Furthermore, the court found that the proposed evidence was either already in front of the jury through other witnesses, or was unpersuasive. Accordingly, counsel was not ineffective for failing to present such evidence. Id. at 685-86.

The Missouri court did not unreasonably apply Strickland with regard to the mitigating evidence. The district court found that Strickland's performance prong was satisfied with regard to this claim but denied relief because Skillicorn could not establish prejudice. The court found that there was no reasonable probability that the outcome of the sentencing would have been different had the evidence been presented, because the mitigating “childhood” evidence was not particularly egregious, and evidence of his drug and alcohol problems would not have swayed the jury not to impose the death penalty.

We do not necessarily agree with the district court that the performance prong was satisfied in this case. The record reflects that trial counsel put on mitigating evidence regarding Skillicorn's childhood through the testimony of his sister. There was no evidence that Skillicorn suffered child abuse. His mother died of cancer when he was eight, and, according to his sister, his father had some difficulties as a result of that traumatic event. She also testified that Skillicorn was not a violent person. A worker from the Clay County Detention Center testified that Skillicorn was a good, non-violent prisoner. Counsel attempted to present expert testimony about Skillicorn's low IQ and his tendency to be a “follower,” but was thwarted at the eleventh hour due to the expert's unexpected possession of previously undisclosed documents. Apparently there was significant damning evidence in Spiridigliozzi's file that trial counsel did not want to turn over to the prosecution. In light of that, counsel did not make an unreasonable decision by not allowing the expert to testify. Presumably any other expert that counsel could have employed would have had the same difficulty. This is far from a situation where counsel ignored reams of traumatic childhood abuse and other similar experiences. E.g., Williams v. Taylor, 529 U.S. at 395-96, 120 S.Ct. 1495; Wiggins v. Smith, 539 U.S. 510, 525-27, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Accordingly, we do not think counsel's performance was constitutionally deficient.

Further, given the other evidence, such as Skillicorn's past conviction for second-degree murder, and the spate of crimes he and Nicklasson committed while on the run, any mitigating testimony likely would have been outweighed even if presented. We do not think more testimony about his childhood and battles with alcohol and drugs would have saved Skillicorn from receiving a sentence of death. See Garcia v. Bertsch, 470 F.3d 748, 757 (8th Cir.2006) (holding that “friends and family” mitigating evidence would not have resulted in a more lenient sentence in light of aggravating circumstances). Accordingly, Skillicorn could not establish Strickland's prejudice prong in this case. The Missouri Supreme Court's resolution of this issue was not objectively unreasonable, and this claim is without merit.

3. Failure to Put on Good Character Evidence

Skillicorn argues the Missouri Supreme Court unreasonably applied Strickland to his ineffective assistance claim that counsel wrongly did not put on penalty-phase evidence about Skillicorn's good behavior while he was in a drug treatment center, and while he was at county jail awaiting trial. Trial counsel investigated the potential witnesses from the drug treatment center, but apparently did not believe that their testimony would be terribly helpful. As noted in the previous section, trial counsel did present evidence about Skillicorn's time in the county jail. The Missouri Supreme Court held that the proposed evidence added little to the mitigating evidence actually presented. Skillicorn II, 22 S.W.3d at 683. The court also concluded that the volume of aggravating evidence against Skillicorn (including three murders perpetrated by Skillicorn and Nicklasson while on the lam for the Missouri murder) precluded Skillicorn from establishing Strickland prejudice due to counsel's alleged error in omitting this evidence. Id. at 683-84, 104 S.Ct. 2052.

This was not an unreasonable application of Strickland. This claim is closely related to the previous ineffective assistance claim, and failed in the Missouri courts for a similar reason-counsel did put on mitigating evidence, Skillicorn just claims that it was not enough. Skillicorn argues that Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), held that trial counsel has a professional obligation to present all relevant mitigation evidence. That blanket statement overstates these holdings. The holdings in both cases revolved around the issue of whether certain mitigating evidence was admissible. Skipper, 476 U.S. at 4-6, 106 S.Ct. 1669; Lockett, 438 U.S. at 604, 98 S.Ct. 2954. This ineffective assistance claim is without merit.

4. Closing Argument

Skillicorn argues the Missouri Supreme Court unreasonably applied Strickland to his ineffective assistance claim that counsel erred by not addressing the “rope” issue in closing argument: in his confession to police, Skillicorn said that he “knew” Nicklasson did not have a rope when he walked with Drummond into the woods to get rid of him. He later found out that Nicklasson allegedly said he did have a rope. So Skillicorn's theory of defense at trial was that he thought Nicklasson was going to tie Drummond up, rather than shoot him. But immediately prior to trial, Nicklasson's confession was deemed inadmissible, while the jury heard Skillicorn's confession. Consequently, Skillicorn's counsel was left in a difficult position with his theory of the case and the evidence he could present.

The Missouri Supreme Court found that counsel was not ineffective simply because he could not explain away the glaring inconsistencies in Skillicorn's case. Id. at 689, 104 S.Ct. 2052. Rather than draw attention to the problem by talking about it during closing, counsel attempted to minimize it. The Missouri court found that this was appropriate trial strategy, and counsel's conduct did not run afoul of the Strickland standard. Id.

We agree that this application of Strickland is reasonable. The record supports the notion that counsel made the decisions he did for strategic reasons. Clearly counsel was left in a bad position when Nicklasson's confession was deemed inadmissible. But this position was not counsel's fault as much as the fault of the unfortunate facts of this murder case. This claim is without merit.

D. Mexico Murder

Skillicorn's next claim is that the trial court erred in allowing the state, during the penalty phase, to present evidence of his involvement in the murder at the Mexican diner. The evidence came in through the use of his pre-trial statement to authorities. He contends that habeas corpus counsel later found out that the authorities could not find corroborating evidence of this murder. Accordingly, the state's failure to disclose this fact to him violated his right to exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and also his Eighth Amendment rights because the jury possibly sentenced him to death based upon his involvement in a “murder that never occurred.”

Skillicorn concedes that this claim was not presented to the state courts, and the district court determined that this claim was procedurally barred. Claims that have not been presented to the state courts, and for which there are no remaining state remedies, are procedurally defaulted. Interiano v. Dormire, 471 F.3d 854, 856 (8th Cir.2006). Unless a habeas petitioner shows cause and prejudice or that he is actually innocent of the charges, a court may not reach the merits of procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 492, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

Skillicorn asserts as cause the fact that the government failed to disclose to him that it was not able to find evidence of the Mexico murder. The district court found that this was not an adequate “cause” for the default, because Skillicorn knew at trial whether or not he had participated in the Mexico murder. Nor was Skillicorn prejudiced because the jury heard about several other crimes Skillicorn participated in while running from authorities, in addition to the Mexico murder. We agree with the district court's analysis of this issue. Skillicorn cannot establish cause or actual prejudice as contemplated by Murray v. Carrier, and this claim is procedurally barred.

Moreover, we agree with the government that if the claim were adjudicated on the merits, it would fail. The jury heard evidence about the murder in Mexico through Skillicorn's own statement regarding his involvement. We fail to see how the fact that the government did not find evidence of a murder, committed at a diner in rural Mexico, is in any way relevant to whether Skillicorn's own admissions about the murder were admissible at trial. This claim is without merit.

E. Sufficiency

Finally, Skillicorn argues the Missouri Supreme Court unreasonably applied Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in finding that the evidence was sufficient to support his conviction and sentence. In assessing the Missouri court's determination of whether there was sufficient evidence to support Skillicorn's conviction and death sentence, the scope of our review is extremely limited. Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir.2003). We must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. This standard recognizes that it is the province of the fact-finder, not this court, “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.

The Missouri Supreme Court quoted from the portions of Skillicorn's statement regarding the conversations in the car, both with Drummond, and behind his back with Nicklasson. The court found that based on this evidence, the jury could infer that Nicklasson and Skillicorn were furtively discussing Drummond's murder in the back seat; that Skillicorn knew Nicklasson was going to shoot Drummond because he did not have a rope; and that he knew all along that Nicklasson was going to shoot Drummond because he stated that Nicklasson returned from the woods after doing “what he had to do.” Skillicorn I, 944 S.W.2d at 895. Accordingly, the court denied Skillicorn's sufficiency challenge to the guilty verdict. Id.

With regard to the sentence, the court noted that the jury had found the following three statutory aggravating factors: Skillicorn's previous conviction for second degree murder, Drummond's murder was committed in conjunction with his kidnaping, and in conjunction with robbery. The court noted that the evidence supported these findings. Id. at 899. The court also found that the sentence was not disproportionate to sentences imposed in other cases, noting that Drummond was killed for the convenience of his murderers, and that Skillicorn's crimes graduated in severity from burglary, to kidnaping and eventually murder. The court accordingly denied the challenge to the sentence. Id. at 898-99.

We think all of the foregoing amply demonstrates the sufficiency of the evidence, and the Missouri courts did not unreasonably apply the Jackson v. Virginia standard.FN6 Skillicorn argues there was inadequate evidence of his deliberation, required for first-degree murder. But Skillicorn admits that he knew Nicklasson was going to take Drummond into the woods, at gunpoint, and “lose” him, that he did not want Drummond, who was driving the car, to panic by hearing the trio's plans for him, and finally, that he knew Nicklasson did not really have a rope to “tie up” Drummond instead of shooting him. This is enough evidence for a rational jury to infer that Skillicorn deliberated while Drummond drove the car, and then walked to a wooded area that would become his eventual grave. The Missouri Supreme Court did not unreasonably apply the Jackson v. Virginia standard in disposing of this claim.

FN6. The Missouri Supreme Court did not actually cite Jackson v. Virginia, but did use the appropriate legal standard in reviewing the claim. Packer, 537 U.S. at 8, 123 S.Ct. 362.

Regarding the sentence, the jury's decision to recommend the death penalty is supported by sufficient evidence in these circumstances. Skillicorn cannot seriously challenge that he had the requisite mental state to make him eligible for the death penalty under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

III. CONCLUSION

We affirm the judgment of the district court denying Skillicorn's petition for habeas corpus.