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United States Court of Appeals
For the Eighth Circuit

Missouri carries out 2nd execution in 3 weeks

Allen Nicklasson put to death for killing kindly businessman near Kingdom City

By Jim Salter - Associated Press

December 12, 2013

BONNE TERRE, Mo. (AP) — Allen Nicklasson once recalled the "euphoria" he felt after fatally shooting a kindly businessman who stopped to help when he saw Nicklasson's car stalled on Interstate 70 near Kingdom City, Mo., in 1994.

Late Wednesday night, Nicklasson was put to death for Richard Drummond's killing — nearly 23 hours after he was originally scheduled to die. It was the second execution in Missouri in three weeks after a nearly three-year hiatus. Racist serial killer Joseph Paul Franklin was executed Nov. 20.

The executions also were the first since Missouri switched from a three-drug protocol to use of a single drug, pentobarbital.

Nicklasson, 41, was pronounced dead at 10:52 p.m. Wednesday, eight minutes after the process began. His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about 2 minutes into the process. He offered no final words.

Missouri Department of Public Safety spokesman Mike O'Connell said Nicklasson prayed briefly with the prison chaplain about 20 minutes before the execution. No one from his family or the victim's family attended.

The execution was the end of a life troubled almost from the start. Nicklasson grew up in Kansas City, Mo., in a fatherless home. His mother was a mentally ill stripper who brought home an assortment of men, many of whom abused her son. Nicklasson died bearing the scar from where one of the men burned him.

Nicklasson declined interviews in the days leading up to his execution. But in a 2009 interview with The Associated Press, he recalled the trauma of his childhood — eating Alpo dog food for dinner, watching his mother shoot up heroin. She once made him fight a Doberman for money, he recalled. Then, there was the constant torrent of abuse from his mother's male friends.

Nicklasson suffered from bipolar disorder and lived on and off in boys' homes for his petty crimes and institutions for his mental illness.

By his 20s, Nicklasson was homeless and a drug addict. While in rehab in 1994, he crossed paths with Dennis Skillicorn, who had been recently released from prison following a second-degree murder conviction for killing a man during a robbery.

The two and a third man, Tim DeGraffenreid, decided in August 1994 to make the trip from Kansas City across I-70 to St. Louis to buy drugs. On the way back, their rundown 1983 Chevrolet Caprice started sputtering. It broke down near Kingdom City, about 100 miles west of St. Louis, and they took it to the shop.

They used the down time to burglarize a home, stealing money and guns. Though warned the car was unfixable, the men got back on the road.

The car soon broke down again. Drummond, a 47-year-old Excelsior Springs, Mo., man who was a technical support supervisor for AT&T, saw the three men and their stranded car. He decided to stop and help.

The men loaded their stolen goods in the trunk of Drummond's Dodge Intrepid. Then Nicklasson put a gun to his head and told him to drive west.

Along the way, there was some debate between Nicklasson and Skillicorn about what to do with Drummond. Ultimately, they ordered him off the highway and to a secluded area in Lafayette County in western Missouri.

In the 2009 interview, Nicklasson recalled how he left the other two behind and walked Drummond to a wooded area. He said he had intended to tie him up to buy time for the trio to get away.

He changed his mind, ordering Drummond to kneel and cross his legs. Then he shot him twice in the head.

"I'm laughing, pacing," Nicklasson said, recalling the moment. "I started losing it. I wouldn't want this out, but I felt a euphoria. I finally got back for all the beatings I took" as a child.

Nicklasson and Skillicorn stole Drummond's car and drove to Arizona. When the vehicle broke down in the desert, they approached the home of Joseph and Charlene Babcock. Nicklasson killed Joseph Babcock after the man drove them back to their vehicle. Charlene Babcock was killed at the couple's home.

Both Nicklasson and Skillicorn were sentenced to life in prison for the Arizona killings and also sentenced to death in Missouri for Drummond's death. Skillicorn was executed in 2009 even though Nicklasson took sole responsibility for killing Drummond.

DeGraffenreid pleaded guilty to second-degree murder and did not receive a death sentence.

Nicklasson's execution was originally scheduled for 12:01 a.m. Wednesday. But an appeals court panel granted a stay of execution Monday, citing concerns about his counsel at trial and sentencing in 1996.

When the full appeals court refused to take up the case Tuesday, Missouri Attorney General Chris Koster appealed to the U.S. Supreme Court.

It did not return its 5-4 decision to vacate the stay until 10:07 p.m. Wednesday, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting. Gov. Jay Nixon refused to grant clemency.

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

Missouri man who killed a Good Samaritan executed after a last meal of pizza and gummy bears

• Allen Nicklasson killed a man in 1994 who stopped to help him and his friends after their car stalled

• He was pronounced dead at 10:52 p.m. on Wednesday, eight minutes after the execution process began

• As a child his drug addict mom fed him Alpo dog food and once made him fight a Doberman for money

By Associated Press Reporter -  Dailymail.com

December 12, 2013

Missouri executed Allen Nicklasson on Wednesday night for killing a Good Samaritan who stopped to help him and his friends after their car stalled on Interstate 70 in 1994. It was the state's second execution in three weeks.

Nicklasson, 41, was pronounced dead at 10:52 p.m. on Wednesday, eight minutes after the process began.

His eyes remained closed throughout and he showed little reaction to the drug, only briefly breathing heavily about two minutes into the process. He offered no final words.

Missouri Department of Public Safety spokesman Mike O'Connell said Nicklasson prayed briefly with the prison chaplain about 20 minutes before the execution. No one from his family or the victim's family attended.

His last meal was meat pizza, orange juice, gummy bears and M&Ms.

An appeals court panel had granted a stay of execution for Nicklasson on Monday, citing concerns about his counsel at trial and sentencing in 1996. That stay was taken up to the U.S. Supreme Court, which did not return its 5-4 decision to vacate the stay until late Wednesday night.

Gov. Jay Nixon refused to grant clemency, and Nicklasson was executed nearly 23 hours after he was originally scheduled to die.

Nicklasson declined interview requests this week. But in a 2009 interview he spoke of a childhood scarred by abuse and mental illness. He recalled watching his mother shoot up heroin. She fed him Alpo dog food for dinner, he said, and once made him fight a Doberman for money.

Nicklasson was often removed from home and spent part of his childhood in mental institutions and homes for boys. He became addicted to drugs.

He met convicted killer Dennis Skillicorn in 1994 at a drug rehab center in Kansas City. The men, along with Tim DeGraffenreid, drove to St. Louis to buy drugs in August that year.

On the way back, their 1983 Chevrolet Caprice broke down near Kingdom City, Mo. They dropped the car off with a mechanic and burglarized a home, stealing money and drugs.

The next day, despite mechanics' warnings that the car wouldn't last, they got back on I-70 where it broke down again.

Drummond, 47, who was a technical support supervisor for AT&T, spotted the stranded motorists and stopped to help. The men put a gun to his head and ordered him to drive his Dodge Intrepid west.

About 60 miles later, in Lafayette County, the men ordered Drummond off the road to a secluded area. Nicklasson recalled that he left Skillicorn and DeGraffenreid behind and walked Drummond to a field. He said he had intended to tie Drummond up to buy time for the trio to get away.

Instead, he ordered Drummond to kneel and cross his legs. He shot him twice in the head.

Drummond's remains were found eight days later.

‘I'm laughing, pacing,’ Nicklasson said, recalling the moment. ‘I started losing it. I wouldn't want this out, but I felt a euphoria. I finally got back for all the beatings I took’ as a child.

Nicklasson and Skillicorn drove Drummond's car to Arizona. When the vehicle broke down in the desert, they approached the home of Joseph and Charlene Babcock.

Nicklasson killed Joseph Babcock after the man drove them back to their vehicle. Charlene Babcock was killed at the couple's home.

Nicklasson and Skillicorn were sentenced to life in prison for the Arizona killings and also sentenced to death in Missouri for Drummond's death. Skillicorn was executed in 2009.

DeGraffenreid pleaded guilty to second-degree murder and did not receive a death sentence.

Nikklasson's execution was the state's second to use a single drug, pentobarbital.

Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments.

The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy - the Missouri Department of Corrections declines to say who makes the drug, or where.

Racist serial killer Joseph Paul Franklin was executed Nov. 20. Before that, Missouri had not performed an execution in nearly three years.

State of Missouri v. Allen L. Nicklasson

967 S.W. 2d 596 (Mo.Banc)

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.

Reporter's Notebook: Statement of Allen Nicklasson

By Nadia Pflaum

Wednesday, May. 13 2009

Allen Nicklasson, the other half of the Good Samaritan Killers, was troubled from an early age. Dennis Skillicorn's lawyer, Jenny Merrigan, describes him as "fascinating," and "truly mentally ill."

Merrigan told me that at age four, he stabbed a man he saw raping his mother, who worked as a prostitute and kept Nicklasson in a closet while meeting johns. At age nine, he attacked his stepfather, who pressed charges. Nicklasson moved from juvenile incarceration to regular prison, and at his last parole hearing, he begged the board not to let him out. The prison shrink seconded this, but he was granted parole anyway, and it was soon after that he met Skillicorn at the Salvation Army in Kansas City.

Nicklasson can't function in society, he told Merrigan when he met with her at Potosi. She asked him to write a statement to be included in Skillicorn's clemency petition. Nicklasson's statement follows:

491 F.3d 830

Allen L. Nicklasson, Appellant,
v.
Don Roper, Warden, Potosi Correctional Center, Appellee

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2007
Filed: June 21, 2007

Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Allen Nicklasson was found guilty by a jury in a Missouri state court of first-degree murder and was sentenced to death. He appeals from the district court's¹ judgment denying his petition for a writ of habeas corpus. We affirm.

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

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

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

Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), we may not grant a writ of habeas corpus with respect to any issue decided by the Missouri state courts unless the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). AEDPA limits the scope of federal review "in order to effect the intent of Congress to expedite habeas proceedings with appropriate deference to state court determinations." Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000) (citing Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). AEDPA "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams, 529 U.S. at 412, 120 S.Ct. 1495.

A state court decision is "contrary to" clearly established federal law if it reaches a conclusion opposite to one reached by the Supreme Court on a question of law or decides the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts. Id. at 405, 120 S.Ct. 1495. A state court decision involves an "unreasonable application" of clearly established federal law if, in the federal court's independent judgment "the relevant state-court decision [not only] applied clearly established federal law erroneously or incorrectly[, but also did so] . . . unreasonabl[y]." Id. at 410-11, 120 S.Ct. 1495. AEDPA requires federal courts to presume that state court factual findings are correct, and it places the burden on Nicklasson to rebut that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

At the beginning of voir dire, the trial court made introductory remarks. It recounted, inter alia, a jury instruction concerning the elements of first-degree murder; it described the general decision-making process necessary to determine whether, if guilty, Nicklasson would receive a death or life imprisonment sentence; it discussed the role of mitigating and aggravating circumstances in the process; and it concluded by explaining the state's burden of proof.

Following this introduction, the trial court asked potential jurors whether they could both follow the court's instructions and (1) decide if the defendant was guilty or not guilty of murder in the first degree or of a lesser degree of homicide, (2) consider evidence of aggravating circumstances, (3) consider evidence of mitigating circumstances, (4) decide if the mitigating circumstances outweigh the aggravating circumstances, (5) unanimously decide with the other jurors that the aggravating circumstances outweigh the mitigating circumstances, (6) consider the imposition of the death penalty, and (7) consider the imposition of life without probation or parole.

With respect to death qualification, the court asked three additional questions of the venire panel: (1) whether they would automatically vote for the death penalty, (2) whether they would automatically vote for life without probation or parole, and (3) whether they would be able to follow the court's instructions and consider both the imposition of the death penalty or the imposition of life without probation or parole.

Sixteen venirepersons responded that they would both automatically impose the death penalty and would automatically impose life imprisonment if they convicted the defendant of first-degree murder. Despite this contradiction, the court refused to ask additional death qualification questions or allow counsel to do so.

A. The Sufficiency of the Death Penalty Voir Dire

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

i. The Clearly Established Federal Law

The Supreme Court has indicated that the Constitution demands that the defendant be afforded an impartial jury. Morgan, 504 U.S. at 729-30, 112 S.Ct. 2222. "[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Morgan, 504 U.S. at 729, 112 S.Ct. 2222 (citing Dennis v. United States, 339 U.S. 162, 171-72, 70 S.Ct. 519, 94 L.Ed. 734 (1950)). Without an adequate voir dire, a trial judge's responsibility to "remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled . . . [and] the defendant's right to exercise peremptory challenges where provided by statute or rule [is impaired]...." Rosales-Lopez, 451 U.S. at 188, 101 S.Ct. 1629 (citations omitted).

The conduct of voir dire is generally left to the trial court's sound discretion, Morgan, 504 U.S. at 729, 112 S.Ct. 2222. Indeed, "the trial judge retains discretion as to the form and number of questions on the subject. . . ." Turner v. Murray, 476 U.S. 28, 37, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) (plurality opinion) (citing Ham v. South Carolina, 409 U.S. 524, 527, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973)). Whether a trial court is constitutionally compelled to ask certain questions or has unduly restricted questioning by counsel is dictated by the essential demands of fairness. Morgan, 504 U.S. at 730, 112 S.Ct. 2222 (citing Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931)). Indeed, "[t]o be constitutionally compelled . . . it is not enough that such questions might be helpful. Rather, the trial court's failure to ask these questions must render the defendant's trial fundamentally unfair." Id. at 730 n. 5, 112 S.Ct. 2222 (second alteration in original) (quoting Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991)).

For this reason, "we have not hesitated, particularly in capital cases, to find that certain inquiries must be made to effectuate constitutional protections."³ Morgan, 504 U.S. at 730, 112 S.Ct. 2222. To otherwise allow a death qualification voir dire in the absence of such inquiries leads to doubt as to whether the "petitioner was sentenced to death by a jury empaneled in compliance with the Fourteenth Amendment. . . ." Morgan, 504 U.S. at 739, 112 S.Ct. 2222 (citing Turner, 476 U.S. at 36-37, 106 S.Ct. 1683). The Supreme Court has, therefore, mandated questions that probe into whether potential jurors maintain views that "`prevent or substantially impair the performance of [their] duties as . . . juror[s] in accordance with [their] instructions and . . . oath.'" Witt, 469 U.S. at 433, 105 S.Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). In particular, the state must be allowed inquiries probing the extent to which potential jurors' opposition to the death penalty impacts their impartiality. Lockhart v. McCree, 476 U.S. 162, 170 n. 7, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); see also Witt, 469 U.S. at 424 n. 5, 105 S.Ct. 844. Conversely, the defendant must be allowed inquiries into whether potential jurors so strongly favor the death penalty that it affects their ability to follow the dictates of the law. Morgan, 504 U.S. at 735, 112 S.Ct. 2222 (citing Turner, 476 U.S. at 34-35, 106 S.Ct. 1683); see also Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (requiring questions meant to assure the defendant that the jury is not "organized to return a verdict of death").

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

The Missouri Supreme Court acknowledged that the Supreme Court mandated the Witherspoon and Witt death qualification voir dire questions and noted that such questions had been asked. Nicklasson, 967 S.W.2d at 611. It further recognized that

[t]he test of the adequacy of voir dire is whether the process permits the parties to discover bias, prejudice or some other form of impartiality on the part of potential jurors. The trial court abuses its discretion and reversal is required only if the voir dire permitted does not allow the discovery of bias, prejudice or impartiality in potential jurors.

Id. at 609. We take no issue with this enunciation of the federal principle. In applying the principle, however, the Missouri Supreme Court effectively concluded that because Nicklasson's voir dire included questions that were mandated by the Supreme Court and deemed relevant to the discovery of impermissible juror bias, the trial court's questioning was constitutionally sufficient per se. Id. at 611.

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

We are unable to say that the Missouri Supreme Court's application of clearly established federal law, even if erroneous, is objectively unreasonable for the following reasons:

First, the Supreme Court observed in Yarborough v. Alvarado, 541 U.S. 652, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004), that the more general the rule of decision, the more leeway courts have under the "unreasonable application" prong of § 2254(d)(1) to reach outcomes in case-by-case determinations. Id. at 664, 124 S.Ct. 2140. Because determinations of whether specific voir dire questions are mandated hinge on the "essential demands of fairness," Morgan, 504 U.S. at 730, 112 S.Ct. 2222, itself an indeterminate rule of decision, we extend to the Missouri courts a wide range of latitude in determining where to draw the relevant lines associated with that principle.

Second, the Missouri Supreme Court repeatedly justified its position by citing deference to the trial court's judgment because the trial court observed the jurors directly. See Nicklasson, 967 S.W.2d at 612. This is not an unreasonable position in light of Supreme Court precedent regarding the detection of juror bias. See Uttecht v. Brown, ___ U.S. ___, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007). Reflective of the need for, and appropriate extent of deference, the Supreme Court has notably held that "when there is ambiguity in the prospective juror's statements, `the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] demeanor, [is] entitled to resolve it in favor of [a party].'" Brown, 127 S.Ct. at 2223 (last alteration added) (quoting Witt, 469 U.S. at 434, 105 S.Ct. 844).⁵ This is because the deeply rooted nature of juror bias often precludes discovering it through general fairness and "follow the law" type questions. Morgan, 504 U.S. at 734-36, 112 S.Ct. 2222; Witt, 469 U.S. at 424, 105 S.Ct. 844 ("determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism"). The Supreme Court has acknowledged that voir dire transcripts reviewed on appeal may not reveal subtle indications of bias otherwise detectable, even on a subconscious level, by the trial judge:

[M]any veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. . . . [T]his is why deference must be paid to the trial judge who sees and hears the juror.

Witt, 469 U.S. at 424-26, 105 S.Ct. 844; see also Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Brown, 127 S.Ct. at 2224 (2007) ("Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors."). Accordingly, the Missouri Supreme Court acted reasonably and consistently with respect to Supreme Court doctrine by deferring to the judgment of the trial court judge that no further death qualification questioning was necessary.⁶

Third, the Missouri Supreme Court's extension of deference conformed to a principled and reasonable analytical framework. Though its decision accords a broad degree of deference to the trial judge's judgment, the court accorded that deference only after satisfying itself that the mandatory Witherspoon and Witt questions had been asked.⁷ In fact, Nicklasson does not dispute that the judge asked questions specifically aimed at exposing death penalty bias. By recognizing the need that these questions be asked, the Missouri Supreme Court guaranteed that at least some information could be elicited from every potential juror—through verbal and nonverbal responses—from which the trial judge could form impressions.⁸ Furthermore, as indicated above, outside of constitutionally mandated question topics, "the trial judge retains discretion as to the form and number of questions on the subject. . . ." Turner, 476 U.S. at 37, 106 S.Ct. 1683.

Fourth, the Missouri Supreme Court supported its position by noting that the Supreme Court has held that "removal for cause of `Witherspoon-excludables' serves the State's entirely proper interest in obtaining a single jury that could impartially decide all of the issues in . . . [the] case." McCree, 476 U.S. at 180, 106 S.Ct. 1758. Although the citation to McCree may have been taken out of context and read in an unintended way,⁹ we cannot say that the Missouri Supreme Court's interpretation of the quotation was unreasonably strained. The quotation could indeed be read to support the contention that sufficient information may be gleaned from answers to a Witherspoon-type question to warrant excluding biased jurors. We have not been made aware of any Supreme Court case holding that a trial judge in a case such as this may not rely on proven questions but must ask follow-up questions.¹⁰

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

B. The Jury Instructions Given to Venire Panels

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

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

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

Although clearly established federal law does in some instances require inquiries into certain biases such as race, Ham, 409 U.S. at 527, 93 S.Ct. 848, a bias against psychological testimony is not among them. Cf. Ross, 424 U.S. at 594-95, 96 S.Ct. 1017 (observing that "the State's obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant"). Because the conduct of voir dire is generally left to the trial court's sound discretion, Morgan, 504 U.S. at 729, 112 S.Ct. 2222, Nicklasson had no entitlement to the questions. Furthermore, we see no reason to conclude that the Missouri courts misapplied clearly established federal law and disregarded essential demands of fairness, because Nicklasson was allowed to (1) read to the venire the Missouri Approved Instruction on diminished capacity, (2) answer any questions potential jurors asked relating to the instruction, and (3) ask members of the venire if they could follow the instruction. This voir dire process produced no indication that any venireperson would be unable to adequately consider the diminished capacity defense. The Missouri Supreme Court's deference to the trial judge's conclusion that this process produced no indication that any venireperson would be unable to fully consider and follow the diminished capacity defense was reasonable and is entitled to deference. 28 U.S.C. § 2254(d).

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

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

Finally, Nicklasson argues that the prosecutor's peremptory challenges of Katy Yokley and Karen McNeil, both African-Americans, were racially motivated and violated Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court found that the prosecutor was not improperly motivated. The Missouri Supreme Court affirmed.

Alleged Batson violations are considered in a three-step process. First, the opponent of a peremptory challenge must make a prima facie case of racial discrimination. Second, the proponent of the strike must tender a race-neutral explanation. Finally, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (citing Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)). In federal habeas review, the factual findings of state courts—which include findings relating to the genuineness of the prosecutor's peremptory challenge motive—"are presumed to be correct, and may be set aside, absent procedural error, . . . only if they are not fairly supported by the record." Purkett, 514 U.S. at 769, 115 S.Ct. 1769 (quotation marks and citation omitted); see also 28 U.S.C. § 2254(e).

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

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

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

Nicklasson's reliance on Miller-El does not bolster his argument because the Supreme Court's finding of a Batson violation did not hinge entirely on the closeness of the excluded black juror's testimony to that of the white, but on the "totality of the relevant facts" pertaining to the prosecutor's conduct during the defendant's trial.¹⁴ Miller-El, 545 U.S. at 239, 125 S.Ct. 2317. Nicklasson does not offer similarly compelling "totality of the record" evidence and instead relies entirely upon allegedly inconsistent treatment of jurors who gave similar responses.¹⁵ Although the inconsistent application of a prosecutor's peremptory challenge rationale between similarly situated white and black jurors constitutes evidence of purposeful discrimination, see id. at 241, 125 S.Ct. 2317, there is not, nor should there be, a per se rule stating that the presence of such evidence alone must always constitute "clear and convincing" evidence sufficient to satisfy Nicklasson's burden no matter its strength. Accordingly, Nicklasson has failed to demonstrate that the Missouri Supreme Court unreasonably applied clearly established federal law when it concluded that Yokley's exclusion was not motivated by race.

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

The judgment is affirmed.

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