711 S.W.2d 512 (Mo. 1986), 66852, State v. Driscoll

Docket Nº:66852.
Citation:711 S.W.2d 512
Party Name:STATE of Missouri, Respondent, v. Robert DRISCOLL, a/k/a Albert Eugene Johnson, Appellant.
Case Date:June 17, 1986
Court:Supreme Court of Missouri

Page 512

711 S.W.2d 512 (Mo. 1986)

STATE of Missouri, Respondent,


Robert DRISCOLL, a/k/a Albert Eugene Johnson, Appellant.

No. 66852.

Supreme Court of Missouri, En Banc.

June 17, 1986

Rehearing Denied July 15, 1986.

Page 513

C.J. Larkin, Office of the State Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.


Defendant Robert Driscoll 1 was convicted by a jury of capital murder, § 565.001, RSMo 1978 (repealed effective October 1, 1984), for the stabbing death of Thomas Jackson, a correctional officer assigned to the Missouri Training Center for Men in Moberly, Missouri. We have exclusive appellate jurisdiction of this criminal case because defendant has been sentenced to death. See Mo.Const. art. V, § 3.

In fixing death as the appropriate punishment, the jury found as a basis for the imposition of capital punishment the following statutory aggravating circumstances: (1) defendant had a substantial history of

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prior assaultive criminal convictions [§ 565.012.2(1) ] (repealed effective October 1, 1984); (2) the victim was a corrections employee engaged in the performance of his official duty [§ 565.012.2(8)]; and, (3) the defendant was in the lawful custody of a place of confinement [§ 565.012.2(9) ]. In connection with defendant's criminal history, the State introduced evidence documenting that defendant had seven prior felony convictions and an established reputation for violence.

Along with defendant Driscoll, two other Moberly inmates, Rodney Carr and Roy Roberts, were charged and separately convicted of capital murder in connection with the stabbing death of Officer Jackson. This Court recently affirmed the capital murder conviction of Roy Roberts for his role in the murder of Officer Jackson. See State v. Roberts, 709 S.W.2d 857 (Mo. banc 1986). The fundamental facts and circumstances surrounding the murder of Officer Jackson are set forth in detail in Roberts. We direct the reader to Roberts for a complete explication of the factual history of Officer Jackson's death. The additional facts we set forth are those which are uniquely relevant to the circumstances of defendant's role in the murder of Officer Jackson--which occurred during a brief melee involving prisoners and correctional officers in the B Wing at the Moberly facility on July 3, 1983.

After Officer Jackson had been physically overcome and pinned against a partition by Roy Roberts, a 300 pound inmate, defendant, using a homemade knife that he had already assembled and had concealed in the back of his pants, thrust the instrument of death three times into Officer Jackson's chest. Two of defendant's fatal thrusts penetrated the victim's heart and lungs. As defendant, Roberts, and Carr were murdering Officer Jackson, the victim's co-workers desperately tried to bring Officer Jackson to safety, but other inmates stalled the rescuing guards' efforts. In the course of the efforts of fellow guards to rescue Officer Jackson, defendant managed to stab Officer Harold Maupin in the shoulder.

While the disturbance continued and additional guards sought to restrain the prisoners and restore order, defendant returned to his cell and changed his clothes, which by that time had become stained with the blood of his victims. 2 As order was being reestablished and inmates began to flee to their cells, defendant told his cell mate, Jimmy Jenkins, "I killed the freak." And he also sought further recognition for his actions from another inmate, Joe Vogelpohl, by inquiring of Vogelpohl, "[d]id I take him out JoJo or did I take him out?" Furthermore, the following day defendant made an inculpatory statement to Highway Patrol and prison investigators. The wounds that were inflicted upon the victim by defendant were determined to have caused Officer Jackson's death.

At the outset, we initially note defendant does not question the sufficiency of the evidence to sustain his conviction.

Defendant's first two assignments of trial error concern allegedly improper and prejudicial statements made by the prosecutor to the jury throughout the trial. First, defendant contends that the prosecutor improperly conveyed to the jury the notion that it is the trial judge and not the jury who bears the ultimate responsibility for the final imposition of sentence. 3 Second,

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defendant maintains that certain remarks by the prosecutor served to dilute defendant's right to be presumed innocent and actually caused the burden of proof to shift to the defendant. 4

Before proceeding to an examination of defendant's first two points it should be observed that defendant seeks review of them under the plain error doctrine because of his failure to object or preserve the points in his motion for new trial. Under this standard of review...

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