Driscoll v. State, 70717

• Decision Date: 17 January 1989
• Docket Number: No. 70717,70717
• Citation: 767 S.W.2d 5
• Parties: Robert DRISCOLL, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 5

767 S.W.2d 5

Robert DRISCOLL, Appellant, v. STATE of Missouri, Respondent.

No. 70717.

Supreme Court of Missouri,

En Banc.

Jan. 17, 1989.

As Modified on Denial of Rehearing March 14, 1989.

Robert Craig Wolfrum, Asst. Public Defender, St. Charles, for appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

JOHN E. PARRISH, Special Judge.

Robert Driscoll was charged and convicted of capital murder and sentenced to death. The conviction was affirmed on direct appeal. State v. Driscoll, 711 S.W.2d 512 (Mo. banc 1986), cert. denied, 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986). This is an appeal of his Rule 27.26 motion for post-conviction relief from that conviction and sentence. The hearing court denied relief. We affirm.

Driscoll was convicted of the capital murder of Tom Jackson, a correctional officer at Missouri Training Center for Men. Officer Jackson was stabbed during a riot at that facility.

Driscoll contends that he received ineffective assistance of counsel in his criminal trial and its appeal. He asserts nine grounds whereby he claims the hearing court erred in holding that his trial counsel provided the effective assistance guaranteed by the Sixth and Fourteenth Amendments. ¹ Driscoll further asserts that he was denied his right to due process of law in violation of the Fourteenth Amendment because the trial court failed to control certain arguments made by the prosecutor at the criminal trial.

Our review of the actions of the hearing court is limited to a determination of whether that court's findings, conclusions and judgment are clearly erroneous. Rule 27.26(j); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984).

In reviewing the determinations of the hearing court with respect to Driscoll's claims of ineffective assistance of counsel, the focus is on (1) counsel's performance, and, (2) if that performance is deficient, whether prejudice resulted from counsel's breach of duty. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1983); Sanders v. State, Id. at 857-58.

Counsel's performance is assessed by determining if counsel acted "reasonably within prevailing professional norms under all circumstances." See Sanders at 858. "Reasonably effective assistance may be defined as 'the skill and diligence that a reasonably competent attorney would exercise under similar circumstances.' " Sanders at 858, quoting Thomas v. Lockhart, 738 F.2d 304, 307 (8th Cir.1984), quoted in Kellogg v. Scurr, 741 F.2d 1099, 1100 (8th Cir.1984). (Emphasis in Sanders.)

Appellant bears the burden of proving his grounds for relief by a preponderance of evidence. Rule 27.26(f). That burden, with respect to an allegation of ineffective assistance of counsel, has been characterized as being "heavy" to bear. Stevens v. State, 560 S.W.2d 599 (Mo.App.1978); Pickens v. State, 549 S.W.2d 910 (Mo.App.1977); Lahmann v. State, 509 S.W.2d 791 (Mo.App.1974).

It is within these parameters that the contentions by this appellant are considered.

Driscoll's first assertion of ineffective assistance of counsel relates to testimony by one of the state's witnesses, forensic serologist, Dr. Kwei Lee Su.

Trial testimony was that Driscoll had used a knife to stab Officer Jackson. ² The knife recovered from Driscoll was in evidence. It had been analyzed for blood residue by Dr. Su.

Testimony at trial was that Driscoll had stabbed Jackson several times in the chest, and, subsequently, had stabbed another corrections officer, Harold Maupin, in the shoulder.

Jackson had type O blood. Maupin had type A blood.

Kwei Lee Su testified at trial that the knife recovered from Driscoll had type A blood on it, but did not have any traces of type O blood at the time it was analyzed at the Missouri State Highway Patrol laboratory. In response to questions by the prosecutor, Su testified that she had performed an antigen test which disclosed type A blood on the knife. She was asked what results would occur from the antigen test if both types A and O blood were present. Dr. Su explained that the type A blood would be revealed but the type O blood would not be revealed. ³

No inquiry was made by either the prosecutor or defense counsel as to whether other tests were performed which would have shown the presence of type O blood even though type A blood was present.

The state, in its closing argument, argued that the fact that the analysis of the blood on Driscoll's knife did not show any type O blood present was meaningless because there was type A blood present and, by the antigent test, if types A and O are mixed, only type A is revealed.

At the evidentiary hearing on appellant's 27.26 motion, Dr. Su testified that two tests were performed on the knife recovered from Driscoll. The first test, the Thread method, was for antigen determination. The second, the Lattes method, was for antibody determination.

Dr. Su testified that the masking effect which precludes discovery of the presence of type O blood when type A blood is present applies to the antigen test, or Thread method, not to the Lattes test. She testified that her report did not distinguish between the two tests performed. The report did indicate that type A blood was present on the knife.

Driscoll's trial counsel was called as a witness at the evidentiary hearing on the 27.26 motion. His testimony was that the information he had at trial was that blood on the knife used by Driscoll was not the same blood type as that of Officer Jackson and, at the time of trial, he was not aware of the existence of scientific evidence that would have rebutted the "masking argument" made by counsel for the state.

Appellant asserts that his representation at trial was deficient in that his trial counsel failed to develop scientific evidence to show that Officer Jackson's blood was not on the knife. He claims that he was prejudiced for the reason that, had the presence of Officer Jackson's blood on the knife in evidence been precluded, the result of Driscoll's trial would likely have been different.

The hearing court found that although Driscoll's trial counsel did not cross-examine Kwei Lee Su regarding the antibody test performed on the knife, the cross-examination did make known to the jury the fact that the antigen test did not disclose Officer Jackson's blood on the knife.

The hearing court further found that there was no evidence that the state withheld the results of any tests performed on the knife. The conclusion reached by the hearing court was that Driscoll was not prejudiced by trial counsel's failure to present evidence regarding the antibody test and, "in view of all of the evidence presented at trial it is unlikely that testimony regarding the antibody test would have affected the outcome of the trial."

Other evidence at trial included two eyewitnesses who testified that they saw Driscoll stab Officer Jackson; evidence that Officer Jackson's blood was found on clothing which Driscoll discarded in his cell after the stabbing; and, incriminating statements by Driscoll.

The hearing court's findings and conclusions with respect to trial counsel's cross-examination of Dr. Su were not clearly erroneous.

Driscoll next asserts that his trial counsel was ineffective for not challenging Juror Helen Harris for cause.

Prospective jurors were advised that there would be evidence of drinking and intoxication at the time when Officer Jackson was killed.

During voir dire, Juror Harris expressed doubts about whether she could give fair consideration to issues involving drunkenness. Mrs. Harris advised the court that her daughter was killed as a result of an automobile accident in which she was struck by an automobile that was operated by a drunk driver.

Following a series of questions and answers in which Juror Harris expressed the grief she had experienced as a result of her daughter's death and stated that she was unsure about whether she "could give a fair trial to an individual where drunkenness might be alleged," the following questions and answers were exchanged between the prosecuting attorney and Mrs. Harris:

MR. FINNICAL [prosecutor]: Remember when we were all talking about how we compartmentalize our mind? Can you put the experience that you had with alcohol and the death of your loved one--can you put that in that little compartment and decide this case only on the facts that you hear and the law in the instructions that the Judge gives you?

VENIREPERSON HARRIS: I think what the Judge gives me--I believe I can be honest with you. I'll tell you my honest feelings.

MR. FINNICAL: Okay. Do you think you can put that deep experience that you had over in the corner of your mind?

VENIREPERSON HARRIS: But, you see, I'm awful bitter for it.

MR. FINNICAL: I understand. My question is--we just kind of need whether you think you can do it or not?

VENIREPERSON HARRIS: I probably can.

MR. FINNICAL: Thank you.

Trial counsel made no challenge for cause as to Mrs. Harris. She was selected as a juror in the criminal case.

At the evidentiary hearing on appellant's 27.26 motion, Driscoll's trial counsel testified that he believed Mrs. Harris had been rehabilitated by her responses to the questions asked by Mr. Finnical. He further testified that he had intended to present evidence that there were guards who were responsible for bringing liquor into the prison and that this had been an element in the riot which occasioned Officer Jackson's death. Driscoll's trial counsel expressed the further opinion that he believed having someone on the jury who was opposed to alcohol might work to his client's advantage. He stated that the decision to leave Mrs. Harris on the jury was, in part, trial strategy.

The hearing court found that:

[T]rial counsel made a deliberate decision to leave Juror Helen Harris on the jury panel, despite her views...