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State v. Nicklasson, 967 S.W.2d 596 (Mo., 1998)- 1 -
Page 596967 S.W.2d 596STATE of Missouri, Respondent,v.Allen L. NICKLASSON, Appellant.No. 79163.Supreme Court of Missouri,En Banc.Feb. 24, 1998.As Modified on Denial of RehearingMarch 24, 1998.Page 602
John Bailey, Mesa, Ariz., Patrick J.Berrigan, Kansas City, for appellant.Page 603Jeremiah W. (Jay) Nixon, Atty. Gen.,Cheryl A. Caponegro, Asst. Atty. Gen.,Jefferson City, for respondent.ROBERTSON, Judge.Allen Nicklasson took Richard Drummond,a Good Samaritan who had given Nicklassonand his friends a lift when their car broke down,to a secluded spot, told Drummond to kneel,suggested that he say his prayers and shotDrummond twice in the head at point-blank range with a pistol. A jury convicted Nicklassonof first degree murder. The jury alsorecommended the death sentence, which the trialcourt imposed. Nicklasson appeals. We have jurisdiction. MO. CONST. ART. V, SEC. 3 .The judgment is affirmed.I.This is a companion case to State v.Skillicorn, 944 S.W.2d 877 (Mo. banc), cert.denied, --- U.S. ----, 118 S.Ct. 568, 139 L.Ed.2d407 (1997).August 23, 1994, Allen Nicklasson, DennisSkillicorn and Tim DeGraffenreid decided toreturn to Kansas City after a trip east alongInterstate 70 to obtain drugs. They drove a 1983Chevrolet Caprice. It broke down near thewestbound Danville exit on I-70. SergeantAhern and Trooper Morrison of the MissouriState Highway Patrol came upon the disabledauto, helped push the car to the side of the roadand left the men. The troopers last saw the trioas they walked toward a pay phone.By the next morning, August 24, 1994, Nicklasson, Skillicorn and Degraffenreid andtheir car had made 17 miles' progress further west. Near Kingdom City the Caprice brokedown again. In an effort to find jumper cables,the three approached a Missouri Highway andTransportation Department employee working inthe median of the interstate. He could not assistthem. They spotted Merlin Smith's nearby home,decided to burglarize it, and took four guns,ammunition, a skinning knife, money, a pillowcase, some change and a cracker box. Theystashed most of the stolen property in the bushes, then called for a tow truck to take their car to Roger Redmond's garage. Redmond'smechanic found major problems with the car butwas able to restart it. The men paid Redmondwith a cracker box full of change and left in thecar. Nicklasson and his cohorts decided to tryand make it back to Kansas City in their ailingvehicle. First, however, the three men coaxedthe car back toward Smith's house to recover thestolen goods they had previously hidden in the bushes alongside the road. The car gave outagain, this time on the south outer road, east of Kingdom City.
 
State v. Nicklasson, 967 S.W.2d 596 (Mo., 1998)- 2 -
Between 4:00 and 5:00 p.m., RichardDrummond saw the stranded Nicklasson,Skillicorn and Degraffenreid, stopped, andoffered to take them to a telephone. Theyaccepted. Drummond drove a white, 1994Dodge Intrepid that belonged to AT & T, hisemployer. Nicklasson told Drummond to back up the Intrepid to the Caprice. Nicklasson andhis friends loaded the stolen property fromSmith's home into the trunk of Drummond's car,keeping a .22 caliber handgun and a shotgunwith them when they got into Drummond's car. Nicklasson and Skillicorn sat in the back seat.Degraffenried sat in the front, passenger seat.When Drummond took his place in thedriver's seat, Nicklasson put the pistol to the back of Drummond's head and said, "You'regoing to take us to where we want to go." Nicklasson and his pals wanted to go back toward Kansas City. Along the way, theydecided to kill Drummond. East of Higginsville,they told Drummond to take the Highway T exit.Four miles north of the interstate they turnedonto County Road 202. Finding a secluded area, Nicklasson ordered Drummond to stop the car.Skillicorn took Drummond's wallet. Nicklassonwalked Drummond into the woods, orderedDrummond to kneel, told him to say his prayers,and shot him in the head twice. Drummond's badly decomposed body was found andidentified eight days later. Nicklasson, Skillicorn and Degraffenreidcontinued west on I-70 in Drummond's car.They stopped at Joe Snell's house in BlueSprings. Kelly McEntee, who had datedDegraffenried, came to Snell's house, lookingfor Degraffenreid. She knocked on the door. Nicklasson answered, then came outside andPage 604said, "Don't nobody touch my car," referring toDrummond's car. With that Nicklasson went tothe trunk of the Intrepid and removed a shotgunto assist him in assuring those watching that hedid not want them to touch the car. He put theshotgun to McEntee's head and announced thathe would kill her. He did not kill her, apparentlysatisfied that he had made his point after he hither in the face.Sometime later, Nicklasson, Degraffenriedand Skillicorn left Snell's and went to AnnieWyatt's house. Nicklasson told Wyatt that hehad killed someone in the woods and describedthe murder. After a planning session at a localrestaurant, Nicklasson and Skillicorn decided todrive to Arizona. Degraffenreid stayed behind.Authorities arrested the two in California, wherethey were hitchhiking. Arizona authorities foundthe Intrepid stuck in a sandbar. It contained aletter Nicklasson had written and some of Richard Drummond's and Melvin Smith's property. Authorities also found shell casingsnear the Intrepid that matched those recovered atthe Smith burglary scene and the Drummondmurder scene.For obvious reasons, Nicklasson does notchallenge the sufficiency of the evidence tosupport his conviction.II.Rejecting Guilty Plea Nicklasson assigns error to the trial court'sdecision to reject his attempted guilty plea at hisarraignment. The trial court refused the proffered plea.These additional facts assist inunderstanding this issue: The state charged Nicklasson with first degree murder onSeptember 1, 1994. On November 10, 1994, theassociate division of the Circuit Court of Lafayette County conducted a preliminaryhearing the result of which was a decision to bind Nicklasson over to the circuit division of the court on the charge of first degree murder.On November 15, 1994, the state filed aninformation charging Nicklasson with firstdegree murder and, on November 21, the trialcourt arraigned Nicklasson on the first degreemurder charge. The state had not yet filed anotice of aggravating circumstances. Realizingthis, and believing that a guilty plea entered
 
State v. Nicklasson, 967 S.W.2d 596 (Mo., 1998)- 3 -
 prior to the filing of aggravating circumstanceswould avoid the possibility of a death sentence, Nicklasson tried to pretermit the process andsecure a life sentence without possibility of  parole by pleading guilty at the arraignment. Thetrial court refused to accept the guilty plea,indicating that the state still had time to decidewhether it would seek the death penalty under section 565.005.1(1), RSMo 1994. That statute permits the state to file a list of aggravatingcircumstances within a "reasonable time beforethe commencement of the first stage of any trialof murder in the first degree at which the death penalty is not waived." (Emphasis added.) Thestate filed notice of aggravating circumstanceson November 29, 1994. Nicklasson's trial didnot begin until April 22, 1996.The state filed its notice of aggravatingcircumstances within a reasonable time prior tothe commencement of trial. Nevertheless, Nicklasson claims that he has a constitutionalright to plead guilty at any stage of the proceedings. Reduced to its convoluted essence, Nicklasson asserts: that Missouri recognizes theright to plead guilty; that once such a right isrecognized, it must be administered inaccordance with due process; that the trialcourt's refusal to accept the proffered plea at thearraignment violated due process; and that Nicklasson has a right to a remand in this case to plead guilty under the circumstances that existedon November 21, 1994. Nicklasson cites noauthority directly supporting his argument. Nicklasson's argument is incorrect for tworeasons. First, due process does not require thetrial court to accept a guilty plea in a case thatcarries the potential for the death penalty untilsuch time as the state has determined both thecrime with which the defendant is charged andthe extent of the punishment the state will seek.Indeed, section 565.005.1(1) requires anaffirmative act by the state to waive the death penalty. Thus, the statutory presumption is thatwhere first degree murder is charged, thePage 605death penalty is an option until that punishmentis affirmatively waived by the state.Of course, due process requires the state tomake its punishment decision within areasonable time prior to trial to give thedefendant notice of the charges and aggravatingcircumstances against which he must prepare adefense. The eighty-two days the state took fromfiling the initial charge to filing its list of aggravating circumstances did not violate due process. This is because the trial did not occur until eighteen months after Nicklasson receivednotice of the state's list of aggravatingcircumstances. For these reasons, we believe thestatement in North Carolina v. Alford, 400 U.S.25, 38, n. 11, 91 S.Ct. 160, 167-68, n. 11, 27L.Ed.2d 162 (1970), that "[a] criminal defendantdoes not have an absolute right under theConstitution to have his guilty plea accepted bythe court" extends to a case in which the statehas not made a final decision to seek or waivethe death penalty when the defendant attempts toenter a guilty plea.Second, and more important, Nicklassonmisreads section 565.005.1(1). As previouslystated, section 565.005.1(1) requires anaffirmative act by the state waiving the death penalty. Were we to remand this case to permit Nicklasson to plead guilty as things stood on November 21, 1994, the guilty plea wouldoperate as Nicklasson's waiver of notice of aggravating circumstances and a willingness toaccept the possibility of a death sentence. This is because the state had not affirmatively waivedthe death penalty as section 565.005.1(1)requires. We doubt Nicklasson seeks this result.In any event, the trial court did not err inrefusing the profferred guilty plea.The point is denied.III.Trial Judge Recusal Nicklasson asserts that the trial judgeharbored bias both against him and in favor of the state and that the trial judge's refusal torecuse himself violated his right to due process.

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