*1 DRISCOLL, Appellant, Robert Missouri, Respondent.
STATE
No. 70717. Missouri,
Supreme Court of
En Banc.
Jan. 1989. Rehearing
As Modified Denial
March
g *2 Wolfram, Craig Asst. De-
Robert
Public
fender,
Charles,
appellant.
St.
Webster,
Gen.,
Atty.
L.
Eliza-
William
Gen.,
Atty.
Ziegler,
Levin
Asst.
Jeffer-
beth
City,
respondent.
son
PARRISH, Special Judge.
E.
JOHN
charged and convict
Robert Driscoll was
ed of
murder
sentenced
on di
The conviction was affirmed
death.
Driscoll,
appeal.
711 S.W.2d
rect
1986),
denied,
U.S.
cert.
(1986).
329,
Driscoll was convicted
Jackson,
officer
of Tom
a correctional
der
Training
for Men. Offi-
Missouri
Center
during a riot at
cer
was stabbed
Jackson
facility.
he
inef-
Driscoll contends that
received
criminal
assistance of counsel
his
fective
nine
appeal.
its
He asserts
trial and
claims
grounds whereby he
holding
his trial counsel
erred
court
guaran-
the effective assistance
provided
Amend-
by the Sixth and Fourteenth
teed
asserts that
ments.1 Driscoll further
process
law
right
to due
was denied
Amendment
of the Fourteenth
violation
failed
control
the trial court
because
U.S. Constitution.
are
Amendments to the
All
herein
Amendments
referenced
certain
Driscoll’s first assertion of ineffec
at the criminal trial.
tive assistance of counsel relates to testi
mony by
witnesses,
one of the state’s
fo
Our
review the actions of the
serologist,
rensic
Dr. Kwei Lee Su.
is limited to a determination of
whether that
findings,
conclusions
Trial
was that Driscoll had
judgment
are
erroneous. Rule
used a knife to stab Officer Jackson.2 The
27.26(j);
Sanders v.
knife recovered from Driscoll
inwas
evi-
*3
(Mo.
1987);
State,
857
banc
Futrell v.
667 dence. It had
analyzed
been
for blood resi-
404,
(Mo.
1984).
405
banc
by
due
Dr. Su.
In reviewing the determinations of the
Testimony at trial was that Driscoll had
respect
court with
to Driscoll’s
chest,
stabbed Jackson several times in the
claims of
counsel,
ineffective assistance of
and, subsequently, had stabbed another
(1)
the focus is on
performance,
counsel’s
officer,
corrections
Maupin,
Harold
and, (2)
performance
deficient,
if that
is
shoulder.
prejudice
whether
resulted from counsel’s
Jackson
type
Maupin
had
O blood.
had
duty.
breach
Washing
Strickland v.
type A blood.
ton,
668, 687, 104
2052, 2064,
466 U.S.
S.Ct.
Lee
Kwei
Su testified at trial that
(1983);
It is within
parameters
these
appellant
contentions
are con-
At the evidentiary hearing
appellant’s
on
sidered.
motion,
27.26
Dr. Su testified that two tests
complete
2. For a more
following question
recital of the facts in the
3. The
and answer were
case,
Driscoll,
given:
criminal
see State v.
asked and
Roberts,
and State v.
presence
Q.
were on the knife recovered Other included they who test, witnesses testified that saw Dris- first the Thread from Driscoll. The Jackson; coll stab Officer evidence that method, antigen determination. was for Officer Jackson’s blood was found on cloth- method, second, the Lattes ing which Driscoll discarded his cell af- antibody determination. and, incriminating stabbing; ter state- masking Dr. effect Su testified that the ments Driscoll. precludes discovery the presence findings and conclu- type A type 0 blood when blood respect to counsel’s sions with cross- test, antigen present applies of Dr. Su were not examination method, Thread not to the Lattes test. She erroneous. report distinguish her testified that did Driscoll next asserts that performed. the two The re- between tests challenging counsel was ineffective for port type did indicate that blood was Juror Helen Harris cause. present the knife. *4 Prospective jurors advised that were as a counsel was called drinking there be evidence of evidentiary hearing the on the witness at at the time Officer Jack- intoxication when 27.26 was the motion. His that killed. son was he blood information had at trial was that by dire, on the knife used Driscoll was not the During expressed voir Juror Harris type give same blood as that of Officer Jackson could fair doubts about whether she and, involving at the time of he was not aware consideration to issues drunken- ness. Mrs. advised the court that the existence of scientific evidence that Harris of daughter killed of an argu- her as result “masking the was would have rebutted she was automobile accident by ment” made counsel for the state. by operated an that was struck automobile Appellant representation asserts that his by a drunk driver. his trial coun- was deficient that an- Following a series of develop failed to scientific evidence sel expressed the swers in which Juror Harris Officer blood show that Jackson’s was of her grief experienced she had result preju- the knife. He claims that he was on daughter’s she was death and stated that that, presence for the diced the reason had give unsure she “could about whether on the knife in of Officer Jackson’s blood an drunken- fair trial to individual where precluded, the result of Dris- evidence been following ques- might alleged,” ness the likely different. coll’s trial would have been exchanged be- tions were and answers although found that court attorney prosecuting and Mrs. tween the Driscoll’s trial counsel did not cross-exam- Harris: antibody regarding Kwei Lee Su ine [prosecutor]: Remem- MR. FINNICAL knife, performed on the the cross-ex- test talking all about how ber when we were did make known to the amination compartmentalize mind? Can we our antigen test did not fact that the disclose you with you experience that put knife. blood on the Officer Jackson’s your one— alcohol and the loved compart- put little you found that can that that court further only on the ment and decide case there was no evidence that state with- you that hear and the law facts performed on held the results of tests gives you? Judge instructions that reached the knife. conclusion I think court that Driscoll was VENIREPERSON HARRIS: was gives I Judge me—I believe can prejudiced by trial counsel’s failure what the you my I’ll antibody you. tell regarding the be honest present evidence feelings. honest and, “in of all test view evidence unlikely that Do think presented Okay. you at trial it is testimo- MR. FINNICAL: antibody experience that regarding you put deep test would have ny can your in the comer of mind? you trial." had over affected the outcome But, you VENIREPERSON HARRIS: fair assessment [Citations omitted.] see, I’m awful for it. bitter attorney performance requires I My every
MR. FINNICAL: understand. effort be made eliminate the question just need is—we kind of wheth- distorting hindsight, effects of recon- you er think can do not? it or struct the circumstances counsel’s proba- VENIREPERSON HARRIS: conduct, challenged and to evaluate bly can. perspective conduct from counsel’s at the MR. you. FINNICAL: Thank time. challenge Trial counsel made no do not find We
cause as to Mrs. Harris. She selected concluding erred in failure chal- juror as a the criminal case. lenge Juror Harris for cause was not defi- evidentiary hearing appellant’s At the performance cient by Driscoll’s trial coun- motion, 27.26 Driscoll’s trial testi- sel. The conscious decision which the trial fied believed Mrs. Harris had been counsel reached was pre- reasonable within responses ques- rehabilitated her vailing professional norms under cir- tions asked Mr. Finnical. He further cumstances the case. present testified that he had intended next claims that he denied guards evidence that were there who were effective assistance of counsel rea- responsible bringing liquor into the son that his trial counsel failed to prison this had been an element in certain statements the riot which occasioned Officer Jackson’s process.” the “capital sentencing He as- expressed death. Driscoll’s trial counsel *5 prosecutor, dire, the serts that voir opinion the having further that he believed in his opening closing statement and in his jury someone on the opposed who was to argument, might made incorrect alcohol statements work his client’s advan- tage. then, He alternatively, stated that the law. decision to leave the He as- was, Harris jury part, Mrs. on the in serts even if those statements were strategy. correct, they jury’s lessened sense of responsibility making to im- decision hearing The court found that: pose penalty. the death Driscoll asserts [Tjrial made counsel a deliberate deci- that had the statements about which sion leave Juror Helen Harris on the made, complains not been there exists a panel,
jury despite her views con- alcohol, probability penal- sumption of reasonable death anticipa- due to the guard ty ted evidence by that a certain would not have been assessed guards may brought have jury. alcohol into prison, and counsel such believed evi- appel The statements about
dence would
which
be viewed
Juror Harris
defendant;....
complains
as favorable
lant
to the
referred
the relative roles
judge
jury
impo
the trial
We do not find the
penalty.
prosecutor
sition of the death
The
finding to
clearly
erroneous. Trial
arguments
made statements and
that the
is
strategy
not a
basis
attack on the
jury’s imposition
penalty,
of the death
as
competency
issue of
of counsel. Brown v.
punishment
case,
in this
recom
State,
690,
495
(Mo.App.1973).
694
judge
permit
mendation to the
which
Strickland,
689,
As noted
466
U.S.
judge
104
consider
penalty
S.Ct.
2065:
the death
one
sentencing
of two
alternatives. The
It is all too tempting for a defendant to
prosecutor suggested
jurors
to the
second-guess counsel’s assistance after
they
but,
vote,
each had an individual
sentence,
conviction or adverse
and it is
Judge
also had a
He
vote.
advised
easy
court,
all too
examining
coun-
that,
sel’s defense
it
order for Driscoll to receive
proved
after
has
unsuc-
cessful,
penalty,
particular
conclude that a
act
“It takes
The
thirteen.”
or omission of
prosecutor
up
was unreasonable.
summed
these statements
as,
points
Driscoll now rais
saying
I’m
the final deci-
which
“What
respect
prosecutor’s
to the
state
es with
Judge.”
up
sion is
to the
arguments
jury’s
that a
verdict
ments and
that the state
court found
assessing the death
is a “recom
prosecu
made
ments and
Judge
to the
and that
mendation”
regard
were not violative of
tor
Judge has a “thirteenth vote” were raised
right
process and
to due
adversely to
and determined
Driscoll
Driscoll’s trial counsel’s failure to
his criminal conviction.
appeal
direct
from
constitute ineffective assistance of
did not
holding
Driscoll’s con
in Driscoll that
counsel. The
court concluded that
plain
“to
error of
tentions failed
reveal
argument
by the
statements
re
degree
if left uncorrected would
conduct of the
did not constitute
prosecutor
injustice or a miscar
sult in either manifest
Mississippi,
type prohibited by
Caldwell
justice” is
Even
riage of
determinative.
320, 105
S.Ct.
86 L.Ed.2d
U.S.
performance
said to
trial counsel’s
(1985).
hearing court further found
objecting
in not
have been deficient
underly
appeal of his
that Driscoll’s direct
Driscoll now com
remarks about which
determined
ing criminal case addressed and
ap
holding in Driscoll’s direct
plains, the
those
Appellant asserts that
these issues.
that such
peal suffices as a determination
findings
by the
and conclusions
deprive Driscoll of a fair
conduct did not
court were in error.
result
is reliable.”
“a trial whose
Washington, 466 U.S. at
Strickland
findings
hearing court’s
and conclu-
Appellant is not entitled
Appellant exception- contends rare shown the existence of and prosecutor placed repeatedly “incompetent al circumstances which would entitle this evidence, and in- arguments, inadmissible issue to receive further consideration. Well, E.g., exchanges Q. appel- first I’m it sur- series of the Prosecutor. Would which prise you lant sets out in his brief is: to learn such an never that event Now, place? Q. took that the believe indicated exchanges prosecutor in prose- other and statements were this case to threatened Rugg personal your testimony? similar and similar cute Eddie that format contained —is points Yes. A. of reference. State, Raspberry v. nor Mobley Dixon S.W.2d 862-63 involved a death (Mo.App.1981); 27.26(b)(3). point penalty Rule case which utilized a bifurcated proceeding guilt is denied. punishment for its and phases. complains next Driscoll that he capital in Antwine was a murder case denied effective
was
assistance
counsel
aggravating
one of the
circumstanc-
object
his trial counsel did not
to
because
presented
jury
punishment
es
to
in its
punish
prosecutor's argument,
in the
phase
that
was
the defendant committed
phase
capital
ment
of Driscoll’s
murder
place
in
murder
a
of lawful confinement.
trial,
than
that a sentence other
death
argument
jury
made
similar
was
to the
prison
could lead
danger
per
to future
to
Antwine as was made Driscoll’s crimi-
in
in
sonnel where Driscoll
be confined.
trial, viz.,
nal
that if the death
were.
complains
He also
that the trial court de
danger
pose
not
a
imposed,
him
Antwine would
process
failing
nied
due
of law
person-
to other inmates and correctional
prevent
prosecutor
control the
so as to
that
nel. As in
criminal
that
Driscoll’s
being
argument
jury.
from
made to the
argument
during
punishment
was
made
argued
prosecutor
phase,
guilty
after
verdict
appropriate
penalty was an
verdict for the
Antwine,
In
murder had been returned.
murder
jury
reach
Driscoll’s
trial.
objection
argument
an
made
was
asked what was
be done
held,
and
a mat-
overruled. This Court
jury’s punishment
with Driscoll if the
issue,
impression
ter of first
as to that
imprisonment
probation
pa-
life
without
aggravating
when the
circumstance
years.
for fifty
jury
role
He asked the
murder committed
an inmate
a lawful
guards
protected
how
were to be
place
present,
of confinement is
“a
Driscoll
characterized
as someone “who
may properly
whether
incarcer-
consider
an
people
live outside and
butchers
can’t
—who
place
likely
ated criminal defendant is
can’t live inside.”
personnel
other
the lives of corrections
not
Driscoll’s trial counsel did
prisoners
risk if a sentence other than
prosecutor’s closing
state-
Antwine,
imposed.”
death is
743 S.W.2d
ment.
at 71.
against
court found
Driscoll
cannot
found
point finding
prosecutor’s
on this
failing
to make nonmerito-
ineffective
argument
general plea
en-
law
State,
v.
Bannister
objection.
rious
impress
forcement and was
v.
Shaw
(Mo.App.1987);
upon
jury.
seriousness of the case
(Mo.App.1985).
upon
holdings
Driscoll relies
in other
not
The trial court’s determination was
may
although
the State
criminal cases
The circumstances
clearly erroneous.
argue
penalty should be im-
that a severe
akin to those
Driscoll’s criminal trial were
acts,
posed to deter others from criminal
circumstances,
Antwine. Under
those
may
argue
that a severe
the State
process of law
due
Driscoll was
denied
necessary
punishment is
to deter
defen-
permitting
prosecutor to
committing
on trial from
other crimes
dant
argument
closing
about which
make
Raspberry,
State
He cites
future.
complains.
Driscoll now
(Mo.1970),
proposi-
During the evidentiary prior on Dris- statements were motion, coll’s 27.26 his trial counsel was “minor inconsistent.” officers, 7. The Jackson, court found that: which was Officer had been Robinson attempt [trial stuck." Neither attempt did did Robinson to im- counsel] im- peach Vogelpohl prior peach Vogelpohl with a statement made to another earlier statement Mark Shriver Vogelpohl [sic] where in [sic] said made Mr. Wilkinson that "said movant had movant something [Driscoll] had stated guards.” "one of about took out one of the *9 was McIntosh and to certain trial of hearing court’s determination Rugg. witness Edward the record from not erroneous. supports evidentiary hearing Driscoll contends his trial counsel interpretations of “took the words challenged have Juror McIntosh for should meanings, Using and “stuck/’ those out” upon given answers cause based showing Vogelpohl no there was dire. Driscoll contends that Juror voir prior statements which inconsistent gave responses McIntosh trial counsel could have used
Driscoll’s posed indicating on “that she voir dire impeach Vogelpohl’s testimony at trial. automatically recommend the death would guilty in in finding counsel was not deficient of a of event failing attempt impeach Vogelpohl’s murder.” testimony by prior means of inconsistent trial, during dire, At Driscoll’s voir showing no statements. There was general question counsel asked a Vogelpohl prior had made inconsistent response from panel which invoked statements. exchange following Juror McIntosh. occurred: point appeal, For his on final MR. ROBINSON [trial counsel]: counsel for asserts ineffective assistance of thing [prose- that Mr. Finnical Another error, object to certain trial as- “failure first you did tell is cutor] trial, error in a motion sert said for new trial, possible you it is stage grounds appeal....” present said although my could client find— in paragraphs He then various references Murder, charged Capital you if do contending his Rule 27.26 motion that those guilty Capital Mur- not find that he’s presented to the trial court issues were not der, you guilty him of a lesser could find motion new trial or to this Court crime. he appeal. direct He asserts that on the you willing, Are to consider a lesser points or that was denied review of those Manslaughter crime Murder or they “only plain received error review.” Manslaugh- only support Murder or facts complaints final made Driscoll’s Capital Murder? ter previously include point matters addressed Mrs. McIntosh? issues opinion. in this Driscoll includes the I McINTOSH: VENIREPERSON respect to Juror previously discussed with think would. Harris; jury made to the think say you You MR. ROBINSON: regarding capital sen- badger you, I don’t want to you would. tencing process responsibil- and the relative hesitating? why you but are court; content ities of the and the Well McINTOSH: VENIREPERSON prosecutor during questions by crime, then he should if he committed the objections posed by prosecu- forms If penalty. the death punished with closing prosecutor’s some tor and didn’t, that’s another situation. he then and, argument by prose- argument; if the ROBINSON: But what MR. punishment than impose cutor that other prove that he committed doesn’t State present future risk to others death would Murder, might he have—the but Capital prison system. within the prove able to might only be previously These issues were discussed crime. a lesser committed adversely to determined Driscoll. Such McINTOSH: VENIREPERSON what? refer point on does Driscoll’s final Degree Second MR. ROBINSON: presented to two areas not otherwise facts If Manslaughter. appeal. He contends Murder — crime, only support a lesser finding in not assistance erred ineffective Capital Murder? guilty on still vote for failing to of counsel trial counsel All McINTOSH: trial issues VENIREPERSON and raise the motion new right. No—no. relating inquiry on voir of Juror dire
15 exchange of this which effective assistance of counsel not chal- following complains lenging Driscoll now are the Juror McIntosh cause is not “Well, responses. if clearly he committed erroneous. crime, punished then he should be Driscoll also that he asserts was didn’t, penalty. he that’s death If then denied effective assistance counsel be complains Driscoll another situation.” timely his trial counsel object cause did challenge for cause made to no was then of witness Edward certain McIntosh.
Juror Rugg. when court concluded that at Rugg was an inmate responses Missouri McIntosh’s are considered Juror Training Center for Men the tíme of the responses gave context of other she dire, riot. voir showing there was no indiscriminately impose she Rugg testified that saw Driscoll stab penalty that she nor would be unable interrogated Jackson. Officer He was to follow the instructions of the court nor following stabbing. two occasions penalties unable than to consider other Rugg investigators had told at the correc- if the penalty the death defendant tion center that he Driscoll saw stab Offi- criminal case was convicted of mur- Rugg cer asked Jackson. was what he told der. investigators ques- the second time he was on voir dire exchange quot- Prior to the responded: He tioned. above, inquiries
ed other had been [Rugg] I Virtually thing A. the same penalty. about the death they told them first time when called They me the second time. back During specif- inquiry prosecutor, they trying tell me that didn’t questions believe ic were directed to McIn- Mrs. my story. But when told them the stating tosh. After proof burden of thing again then they same when beyond criminal cases to be a reasonable time, brought they me back the second inquiring panel doubt and whether they they then said believed me because members understood that the burden same had talked with Mr. Driscoll and he had proof applied in cases in which the death confessed to it. penalty possible punishment, is a Juror “Now, McIntosh was asked: what do prosecutor began asking a further think of penalty?” the death question which in- counsel replied: Mrs. terrupted object Rugg’s response McIntosh “I think it’s justified, given.” it hearsay should be and to ask it be stricken. The trial court overruled motion and
The record from Driscoll’s criminal
request
saying
denied
to strike
trial does not establish that
question had been asked
answered and
challenge
entitled to have a
for cause sus
passed
objection.
that time
tained as to Juror McIntosh if
a chal
such
lenge had
v.
made. Compare
been
Driscoll contends the failure of his trial
Johns,
253,
679 S.W.2d
263-65
timely object
denied him
effec
denied,
1984),
cert.
1034, 105
470 U.S.
S.Ct.
tive assistance
counsel. The
1413,
(1985).
Considering all Juror re- McIntosh’s and that failure to “did not rise sponses and, most, addressing proportions” the death to constitutional applicability, and its the conclusion was trial error which cannot be raised in relief, the trial proceedings postconviction citing court that Driscoll’s trial coun- State, sel was (Mo. not deficient so as to deny Driscoll Hudson S.W.2d very the defense was Joiner App.1980), and a case which difficult. (Mo.App.1981). re- court’s conclusion with erroneous. spect to this issue is
Lastly, Driscoll asserts that he did of counsel
not receive effective assistance complains at appeal. Driscoll appeal failed
torney handled his direct who presented by post-trial to raise issues PHILLIPS, T. In re Arnold motion for new trial. Jr., Respondent. evidentiary hearing, attorney who At No. 67799. appeal testified that she handled the direct eval- pursue elected to the issues which she Missouri, Supreme Court being meritorious.8 The uated as En Banc. matter of court found that action was a Feb. 1989. “strategic attorney. choice” case, including re- of this Our review transcript this of the filed with Court
view appeal, does not show
in Driscoll’s direct of counsel on
denial of effective assistance appeal of Driscoll’s criminal case.
the direct judgment
affirmed.
BILLINGS, C.J., WELLIVER, HIGGINS, JJ., concur.
RENDLEN and
BLACKMAR, J., separate concurs in
opinion filed.
DONNELLY, J., January retired
1989.
ROBERTSON, J., sitting.
COVINGTON, J., participating of the Court not a member
because submitted.
when the cause was
BLACKMAR, concurring. Judge, Judge Parrish
The Court is indebted to I concur. opinion, his fine weight opinion gives more principal holding to the on initial
than would objectionable possibly the effect of
argument. My examination of the trial me, however, persuades
transcript handling ineffective in his
counsel was not permit as the issue to be reviewed was made as to this issue at record appeal. evidentiary hearing on the Ride 27.26 motion so