No. 94-2993

 

Robert Driscoll, *

*

 Appellee, *

*

v. *

*

Paul Delo, *

Appellant. *

*

 Appeals from the United States

 District Court for the

 Eastern District of Missouri.

 

No. 94-3266

 

Robert Driscoll, *

*

Appellant, *

*

v. *

*

Paul Delo, *

*

 Appellee. *

 

Submitted: September 11, 1995

 Filed: December 4, 1995

 

Before HANSEN, HEANEY, and MURPHY, Circuit Judges.

 

HEANEY, Circuit Judge.
 Two other inmates, Rodney Carr and Roy Roberts, were also

1

charged and separately convicted of capital murder in connection

with the stabbing death of Officer Jackson. Roberts was sentenced

to death for his role in restraining officer Jackson while he was

fatally stabbed. State v. Roberts, 709 S.W.2d 857 (Mo.), cert.

denied, 479 U.S. 946 (1986). Carr was sentenced to life in prison

without consideration of parole for fifty years. State v. Carr,

708 S.W.2d 313 (Mo. Ct. App. 1986). 

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The State of Missouri appeals and petitioner Robert Driscoll, a/k/a

Albert Eugene Johnson, cross-appeals from the district court's order

granting Driscoll's 28 U.S.C. § 2254 petition for writ of habeas corpus.

For the reasons stated below, we agree that a writ of habeas corpus should

issue on three independent bases: 

(1) Driscoll was denied the effective counsel guaranteed by the Sixth

Amendment because his lawyer allowed the jury to retire with the factually

inaccurate impression that the victim's blood was possibly on Driscoll's

knife; (2) his trial counsel was also ineffective for failing to impeach

a state eyewitness using his prior inconsistent statements; and (3)

Driscoll's sentence violates the Eighth Amendment because the prosecutor

made repeated statements to the jury that diminished the jury's sense of

responsibility for its sentence of death.

I. PROCEDURAL BACKGROUND

Driscoll is a state prisoner currently incarcerated at the Potosi

Correctional Center in Mineral Point, Missouri. On December 5, 1984, a

jury found Driscoll guilty of capital murder in violation of Mo. Rev. Stat.

§ 565.001 (1978) (repealed effective October 1, 1984) in connection with

the stabbing death of a corrections officer, Thomas Jackson, during a

prison disturbance. On December 6, 1984, the jury recommended that

1

Driscoll be sentenced to death; thereafter, on February 7, 1985, the state

court sentenced him to death by lethal gas. The Missouri State Supreme

Court affirmed Driscoll's conviction and sentence on direct appeal. State

v. Driscoll, 711 S.W.2d 512 (Mo.), cert. denied, 479
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U.S. 922 (1986). Driscoll subsequently filed a motion for post-conviction

relief in state court pursuant to Missouri Supreme Court Rule 27.26

(repealed effective January 1, 1988), which the trial court denied after

an evidentiary hearing. The Missouri Supreme Court affirmed the denial of

the motion. Driscoll v. State, 767 S.W.2d 5 (Mo.), cert. denied, 493 U.S.

874 (1989). 

On October 6, 1989, Driscoll filed this petition for writ of habeas

corpus in the United States District Court for the Eastern District of

Missouri. The court appointed counsel to assist Driscoll and on October

22, 1990, Driscoll filed an amended petition asserting the following

general claims for relief: (1) he was denied effective assistance of

counsel in violation of the Sixth Amendment because of multiple alleged

errors on the part of his trial counsel; (2) he was denied due process of

law in violation of the Fifth Amendment as a result of multiple trial court

errors; (3) Driscoll's grand and petit jury pools did not represent fair

cross sections of the community in violation of due process; (4) the

Missouri death penalty statute is unconstitutional because it affords the

prosecuting attorney unbridled discretion to seek the death penalty in a

discriminatory manner; and (5) numerous other claims under the First,

Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments.

The district court referred all pretrial matters to the magistrate

judge. After conducting a de novo review of the record, including

consideration of the parties' objections to the magistrate judge's report

and recommendation, the district court adopted the report of the magistrate

judge and granted Driscoll's habeas corpus petition on July 8, 1994.

The district court found seven distinct bases on which it granted

petitioner habeas corpus relief: four instances of ineffective assistance

of counsel and three instances of due
 The district court either dismissed or rejected the rest of 2

Driscoll's claims. Many claims in Driscoll's petition had been

extinguished due to procedural default unexcused for cause. The

district court denied the remainder of his claims on their merits.

After carefully reviewing the full record on appeal, we affirm the

district court's judgment with respect to these claims. In so

doing, we thereby reject the claims raised by Driscoll in his

cross-appeal.

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process violations. The court determined that Driscoll received

2

ineffective assistance of counsel because his trial counsel (1) did not

adequately prepare for the introduction of blood identification evidence

at trial and failed to adequately cross-examine the state's serology expert

on the crucial issue of blood identification testing methodology, (2)

failed to adequately cross-examine a state eyewitness regarding prior

inconsistent statements, (3) failed to object to repeated statements by the

prosecutor to the jury that minimized the jury's sense of responsibility

in recommending a sentence of death, and (4) did not request a jury

instruction on the lesser-included offense of second degree felony murder.

In addition, the court determined that a writ of habeas corpus was

warranted because Driscoll's trial was tainted by the following due process

violations: (1) the court's failure to curtail, sua sponte, the

prosecutor's repeated statements to the jury that minimized the jury's

sense of responsibility for recommending a sentence of death; (2) the

court's failure to instruct the jury, sua sponte, on the lesser-included

offense of second degree felony murder; and (3) allowing the state to offer

improper rebuttal testimony. 

We will consider each of these grounds in turn after a recitation of

the factual background necessary to reach our determination.
 Later, after quieting the ensuing disturbance, investigators 3

retrieved at least thirteen similar homemade knives from the wing.

Authorities were still discovering knives possibly associated with

the July 3, 1983 incident as late as the weeks immediately

preceding Driscoll's trial. Officer Darnell testified that he

discovered fifteen to twenty knives and other weapons during the

shakedown of the cells after the disturbance. He further testified

that three of the knives appeared to have blood on them. A total

of fourteen knives (and other types of weapons) were submitted to

the forensic laboratory for testing. Of those, only the knife

connected to Driscoll tested positive for blood. Therefore, either

Darnell made a mistake in his recollection or one or more of the

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II. FACTUAL BACKGROUND

Driscoll was convicted of capital murder and sentenced to death for

his role in the stabbing death of Officer Tom Jackson at the Missouri

Training Center for Men (MTCM) in Moberly, Missouri on July 3, 1983.

Driscoll was one of the 459 prisoners housed in Unit 2, an X-shaped

building consisting of four cell wings (designated "A" through "D")

branching from a central rotunda where guards monitored security from a

circular desk called the control center. Reinforced glass doors secured

the rotunda from the housing wings and provided the only entrance to and

from each cell wing. Because MTCM is a medium-security institution, each

inmate is permitted to keep a key to his cell and can generally move freely

within his wing.

Beginning during the day of July 3, 1983 and continuing into the

night, inmates in Unit 2B were drinking homemade alcohol and smuggled,

store-bought whisky. The center of this activity, cell 2B-410, housed

Driscoll and his cellmate, Jimmie Jenkins. Officer Jackson was one of

three guards assigned to monitor security in Unit 2 that night. By

regulation, Jackson was unarmed. By nighttime, Jenkins had become

exceedingly disruptive. At approximately 9:45 p.m., Officer Jackson

entered Unit 2B to remove Jenkins from the wing. Jenkins refused to comply

with Jackson's instructions to follow him out of the wing. Officer Jackson

returned to the control center and requested help. While Officer Jackson

waited for assistance, Driscoll assembled a homemade knife from parts he

had collected and hidden in his cell.3
bloody knives were lost.

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Officer Jackson and two additional guards returned to the housing

unit to remove Jenkins. The two other guards escorted Jenkins from the

wing to the control center--one guard on each side of the prisoner--while

Jackson trailed some distance behind. At that point, a group of twenty to

thirty inmates from the wing, including Driscoll, charged the guards. The

two guards escorting Jenkins made it to the rotunda where more guards were

assembling to help control the situation; a crowd of prisoners, however,

stopped Officer Jackson several feet short of the door. Jackson was

restrained, beaten, and stabbed four times. At trial, the state advanced

the theory that Driscoll stabbed Jackson three times, fatally penetrating

his heart and lungs, and then stabbed another officer, Harold Maupin, in

the shoulder as Maupin tried to rescue Jackson.

 

For a brief period, uncontrolled fighting between prisoners and

guards raged both in the control center and just outside. After several

thwarted attempts to rescue Jackson, guards successfully pulled him through

the door into the rotunda. Jackson's shirt was covered in blood. The

guards managed to control the worst of the fighting within a few minutes.

Reinforcement guards herded inmates back to their cells by firing sixty to

eighty shotgun blasts into the floor and ceiling of the housing wings. At

some point, Driscoll returned to his cell and changed his clothes. 

At the end of the fighting, Officer Jackson was dead and five other

guards had been stabbed or otherwise injured. At least thirty inmates

required treatment for their injuries; one prisoner was seriously wounded

by a shotgun pellet. At trial, Driscoll
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presented substantial evidence that during the night of July 3rd and into

the following day guards subjected the inmates of Unit 2B to brutal

beatings in response to the incident. Driscoll's injuries, for example,

required him to spend forty days in the prison hospital. 

On July 4, 1983, just prior to his transfer to the Missouri State

Penitentiary in Jefferson City, Missouri, Driscoll made an incriminating

statement to investigating officers from MTCM and the Highway Patrol. In

the statement, Driscoll admits that he "stabbed at" an officer after he was

hit by someone. He stated that he did not know at which officer he stabbed

or if he stabbed at the officer more than once. The trial court admitted

the statement into evidence over Driscoll's objection that it was coerced

and involuntary. Other evidence against Driscoll included the eyewitness

testimony of two inmates and incriminating statements Driscoll reportedly

made to other inmates right after the fighting. Three guards testifying

for the prosecution, however, identified another inmate, Rodney Carr, as

the person they saw stab Officer Jackson. No guard saw Driscoll stab

Jackson.

III. DISCUSSION

A. Ineffective Assistance of Counsel: Defense Handling of

Serology Evidence

The Sixth Amendment guarantees a criminal defendant charged with a

serious crime the right not merely to counsel, but to the effective

assistance of counsel. United States v. Cronic, 466 U.S. 648, 654 (1984).

Any other interpretation of that right would permit a serious risk of

injustice to infect criminal trials. Cuyler v. Sullivan, 446 U.S. 335, 343

(1980). "Absent competent counsel, ready and able to subject the

prosecution's case to the 'crucible of meaningful adversarial testing,'

there can be no guarantee that the adversarial system will function

properly to
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produce just and reliable results." Lockhart v. Fretwell, 113 S. Ct. 838,

847 (1993) (Stevens, J., dissenting) (quoting United States v. Cronic, 466

U.S. 648, 654 (1984)).

The United States Supreme Court set out the standard for our review

of claims of ineffective assistance of counsel in Strickland v. Washington,

466 U.S. 668 (1984). The analysis is twofold:

First, the defendant must show that counsel's performance

was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the

"counsel" guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This

requires showing that counsel's errors were so serious as

to deprive the defendant of a fair trial, a trial whose

result is reliable.

Strickland, 466 U.S. at 687. 

With respect to the performance aspect of the test, the defendant

must demonstrate that counsel's representation fell below an objective

standard of reasonableness under prevailing professional norms. Id. at

688. Our review of counsel's performance must be highly deferential; we

indulge a strong presumption that counsel's conduct falls within the wide

range of professionally reasonable assistance and sound trial strategy.

Id. at 689. For that reason, 

strategic choices made after a thorough investigation of

law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after a less

than complete investigation are reasonable precisely to

the extent that reasonable professional judgments support

the limitations on investigation.

Id. at 690. Moreover, as instructed by the Supreme Court, we must "make

every effort to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged
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conduct, and to evaluate the conduct from counsel's perspective at the time

[of trial]." Id. at 689.

Professionally unreasonable trial errors, however, do not satisfy the

burden of proving ineffectiveness absent a showing of prejudice to the

defendant. We will set aside the judgment of conviction only when the

defendant demonstrates that there is a reasonable probability that, but for

counsel's unprofessional conduct, the result of the proceeding would have

been different. Id. at 694. In other words, a defendant who challenges

his or her conviction is prejudiced by counsel's unprofessional conduct

when "there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt." Id. at

695. In determining prejudice, we consider all the evidence presented to

the jury; we are mindful that some trial errors will have had a pervasive

effect on the inferences to be drawn from the evidence, altering the entire

evidentiary picture, whereas other errors will have produced only a

trivial, isolated effect. Id. at 695-96.

The question of whether Driscoll's Sixth Amendment rights were

violated because he received ineffective assistance of counsel is a legal

one subject to our de novo review. Starr v. Lockhart, 23 F.3d 1280, 1284

(8th Cir. 1994). The state court's underlying factual findings related to

counsel's performance and prejudice to the defendant are entitled to the

presumption of correctness as set forth in 28 U.S.C. § 2254(d). Miller v.

Fenton, 474 U.S. 104, 112 (1985). 

The district court granted Driscoll habeas corpus relief and ordered

that he receive a new trial because his counsel was ineffective in allowing

the jury to retire with the factually inaccurate impression that the

victim's blood could have been present on Driscoll's knife. On appeal, the

state argues that Driscoll failed to establish that defense counsel's

handling of the
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serology evidence either constituted unreasonable performance or caused

Driscoll prejudice. The state contends that the district court did not

engage in the required two-part Strickland analysis; specifically, that

the court failed to consider whether the asserted errors by counsel

prejudiced the defendant. While we acknowledge the shortcomings of the

district court's consideration of prejudice, we reject the state's basic

argument after engaging in the full, two-part Strickland review de novo.

Kwei Lee Su, Ph.D., Chief Forensic Serologist with the Missouri

Highway Patrol Crime Laboratory, testified for the state at Driscoll's

trial. Dr. Su conducted all the serological examinations on the state's

evidence, which included a homemade knife belonging to Driscoll, thirteen

additional homemade knives discovered during the investigation of the riot,

the clothes worn by Officer Jackson at the time he was killed, and the

clothes worn by various inmates, including Driscoll, on the night of the

riot. 

Before trial, the state provided Driscoll's lawyer with a three-page

laboratory report that summarized the latent fingerprint, serological, and

chemical examinations performed on the state's evidence. The first page

of the report lists the specimens submitted to the laboratory for

examination. The second page provides a brief, narrative summary of the

results. The final page of the report contains a more comprehensive table

that summarizes the results of the serology tests performed on the state's

evidence. According to the laboratory report, the blood found on

Driscoll's clothing--type O--matched Officer Jackson's blood type. All of

the homemade knives except for Driscoll's tested negative for blood traces.

The blood traces found on Driscoll's knife were of type A--the same blood

type of Officer Maupin, but not of the victim, Officer Jackson. The table

also indicates that Jackson's dress boots tested positive for both "A & O"

type blood.
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At trial, the state advanced two alternative theories to explain the

lack of the victim's blood on the alleged murder weapon: either that the

type O blood on Driscoll's knife got wiped off when Driscoll subsequently

stabbed Officer Maupin or that type O blood was present on the knife, but

"masked" from detection because of the additional presence of type A blood.

With respect to the masking theory, Dr. Su testified that blood can

be type A, type B, type AB, or type O. Using a "thread" or "antigen" test,

Dr. Su explained, a reagent called anti-A is added to the blood and

agglutination (clumping) occurs if the blood is type A. Similar reagents

signal the presence of type B and of type AB. Using this methodology,

however, the presence of type O blood is signaled only by the absence of

a reaction to anti-A and anti-B reagents. Thus, when type A blood and type

O blood are mixed, the antigen test will not reveal the presence of the

type O blood because the agglutination showing type A will occur. Dr. Su

testified that with the antigen test type A blood "masks" the presence of

type O blood. 

Neither the prosecution nor the defense on cross-examination ever

asked Dr. Su whether she used any other blood identification methods or

whether she could have employed any other tests to establish with certainty

the presence or absence of type O blood on Driscoll's knife. Driscoll's

trial counsel asked Dr. Su only two questions on cross-examination:

whether the only thing Dr. Su could say with any degree of medical

certainty was that Driscoll's knife had blood type A on it and whether

"anything else would just be speculation." Dr. Su answered affirmatively

to both. 

In fact, Dr. Su had performed another test on the knife, called the

"lattes" antibody test. Like the thread test, the lattes test can

determine the presence of each type of blood; unlike the thread test,

however, no masking can occur with the lattes test. Using the lattes test,

Dr. Su discovered no type O
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blood on Driscoll's knife. The jury was never informed that the lattes

test was performed or that no type O blood was on the knife. At Driscoll's

Rule 27.26 state post-conviction hearing, Dr. Su was asked: "If you had

been asked at trial regarding the antibody test, you could have testified

that there was no O blood on the knife," to which she answered "yes." Hr'g

Tr. at 32. She was also asked whether, if asked at trial, she could have

testified that there had not been type O blood on the knife "at some time."

Dr. Su responded: "It was not detected if it was there." Id.

In addition, at the Rule 27.26 hearing, Driscoll's trial lawyer

testified that he did not interview Dr. Su prior to the time she gave her

testimony. He admitted that he did not take any steps to adequately inform

himself about the specific serology tests performed or the conclusions one

could logically draw from the laboratory results. The record indicates

that trial counsel simply reviewed the three-page summary of the serology

evidence, noted that the tests did not demonstrate the existence of the

victim's blood on Driscoll's knife, and "didn't see how it was going to

hurt [him]." Hr'g Tr. at 91. He testified later that at the time of trial

he was not aware of any scientific evidence that could have rebutted the

state's serology evidence.

The combination of the prosecution's presentation of serology

evidence and the defense's total lack of rebuttal left the jury with the

impression that Driscoll's knife likely had been exposed to both type A

blood and type O blood. In its closing argument, the state made much of

the masking theory, turning unfavorable serology evidence into neutral

evidence at worst:

The issue of the knife on the blood [sic] doesn't really

prove anything. What it is is a neutral issue. . . .

[W]hen you mix O and A together . . . it's going to react

with the A part in the smudge and it's going to tell you

that there is A there, but the O is undetectable.
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And in this situation, what we have is we have this magic

combination. Tom Jackson had O-type blood. Harold

Maupin had A-type blood. . . . [Y]ou're going to get the

A-type reaction. 

Now, I think, as you analyze the blood on the knife,

you're going to understand that the blood on the knife is

a neutral issue. Obviously the defense is going to

make--you know--big work of that. But that's not

significant at all. Chemically--the manner in which they

test antigens in the A-type blood, it explains why you

can't detect whether O is present when A and O are mixed.

. . . .

Also, the other reason why is the in and out. The

stabbing [Jackson] in the chest, the pulling it out and

the stabbing [Maupin] in the arm. Because it's a

chemical fact of life. If you mix O and A together, you

drop the dropper of stuff on it, and the presence of A

mixed with O will cause a reaction under the microscope,

which leads you to the logical conclusion that A is

present. Now, that's just the way God made us.

Trial Tr. at 1929-30. In his closing argument, Driscoll's counsel merely

reminded the jury that he had elicited the statement from Dr. Su on crossexamination that the only thing beyond speculation was that blood type A

was on Driscoll's knife. He then deduced that the prosecutor "didn't get

all the evidence out of her he wanted" because the state later brought

another witness, Chief of Police James Simmerman, who essentially testified

to the same possibility of wiping that Dr. Su did.

The questions now before us are (1) whether defense counsel's

performance in failing to investigate and to adequately cross-examine Dr.

Su about the serology tests performed on the state's evidence fell below

an objectively reasonable standard of representation; and (2) if so,

whether Driscoll was prejudiced by these failures. We answer both

questions in the affirmative.

Although our scrutiny of defense counsel's performance is deferential

and we presume his conduct to fall within the wide
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range of competence demanded of attorneys under like circumstances,

Strickland, 466 U.S. at 687-89, "when the appellant shows that defense

counsel 'failed to exercise the customary skills and diligence that a

reasonably competent attorney would exhibit under similar circumstances,'

that presumption must fail." Starr v. Lockhart, 23 F.3d 1280, 1884 (8th

Cir. 1994) (quoting Hayes v. Lockhardt, 766 F.2d 1247, 1251 (8th Cir.),

cert. denied, 474 U.S. 922 (1985)), cert. denied, 115 S. Ct. 494 (1994).

Driscoll faced a charge of capital murder and the possibility of the death

sentence if convicted. Whether or not the alleged murder weapon--which was

unquestionably linked to the defendant--had blood matching the victim's

constituted an issue of the utmost importance. Under these circumstances,

a reasonable defense lawyer would take some measures to understand the

laboratory tests performed and the inferences that one could logically draw

from the results. At the very least, any reasonable attorney under the

circumstances would study the state's laboratory report with sufficient

care so that if the prosecution advanced a theory at trial that was at odds

with the serology evidence, the defense would be in a position to expose

it on cross-examination. 

Here, the state explained the lack of the victim's blood on the

defendant's knife by telling the jury, in essence, that although both type

A and type O blood were on the knife, the serology test could only detect

type A. In fact, another test had been performed that conclusively

disproved that theory. A reasonable defense lawyer would have been alerted

to the possibility of conclusively detecting both A and O on the same item

of evidence by the laboratory report itself. Whereas the report indicates

that only type A was found on Driscoll's knife and that only type O was

found on Jackson's clothes and on Driscoll's pants, the report indicates

that both type A and type O blood were
 We also note that with respect to some of the items of

4

evidence the blood detection and typing table indicates "IC,"

meaning inconclusive, under the column indicating the blood type.

Thus, the logical inference is that where a specific blood type (or

types) was determined, it had been determined conclusively.

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detected on Jackson's dress boots. Considering the circumstances as a

4

whole, defense counsel's failures to prepare for the introduction of the

serology evidence, to subject the state's theories to the rigors of

adversarial testing, and to prevent the jury from retiring with an

inaccurate impression that the victim's blood might have been present on

the defendant's knife fall short of reasonableness under the prevailing

professional norms.

Applying the second prong of the Strickland analysis, we conclude

that the inadequate performance of his lawyer prejudiced Driscoll. There

is a reasonable probability that, absent these errors, the jury would have

found reasonable doubt with respect to Driscoll's guilt. In addition to

the serology evidence in question, the state's case against Driscoll rested

primarily on the presence of the victim's blood on Driscoll's pants, the

suspect eyewitness testimony of prisoners involved in the riot, and the

incriminating statement Driscoll gave to investigators in which he admitted

"stabbing at an officer." Given that the trial evidence established that

Driscoll stabbed Officer Maupin--who has blood type A--and that the guards

who actually saw an inmate stab officer Jackson identified Carr as the

assailant, we cannot say that had the jury been made aware that the

victim's blood was conclusively absent from Driscoll's knife it still would

have found him guilty of Jackson's murder. Thus, we agree with the

district court that defense counsel was ineffective.
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B. Ineffective Assistance of Counsel: Failure to Impeach

State's Eyewitness with Prior Inconsistent Statements

The district court also found that Driscoll's trial counsel provided

ineffective assistance by failing to impeach the testimony of one of the

state's witnesses using evidence of prior inconsistent statements. We

agree with the district court's decision.

At Driscoll's trial, the state offered the eyewitness testimony of

two inmates, Joseph Vogelpohl and Edward Ruegg. First, Vogelpohl took the

stand and told the jury that he saw Driscoll stab Officer Jackson in the

upper left part of his chest. Trial Tr. at 909. Vogelpohl also testified

that after witnessing Driscoll stab Jackson, he returned to Driscoll's cell

to continue watching television as he had been before the disturbance

began. According to Vogelpohl, Driscoll returned to his cell a while later

and, before changing his clothes, said to Vogelpohl: "Did I take him out,

JoJo, or did I take him out." Trial Tr. at 922. On cross-examination,

Driscoll's lawyer questioned Vogelpohl about his prior convictions, Trial

Tr. at 926-27, about his intoxication level on the night in question, Trial

Tr. at 945-46, about the beatings he and other inmates received from

corrections officers after the riot, Trial Tr. at 935-38, and about whether

he had discussed the case with other inmates, Trial Tr. at 931-33.

Driscoll's lawyer also raised some question as to whether Vogelpohl also

possessed a knife. Trial Tr. at 948-52. 

In his petition, Driscoll asserts that his counsel was ineffective,

however, because he failed to impeach Vogelpohl's testimony with evidence

that Vogelpohl had made prior inconsistent statements to investigators.

Shortly after the incident at MTCM, Vogelpohl had given a statement to two

investigating officers. According to one of the officer's notes, Vogelpohl

told them that when Driscoll returned to his cell he told Vogelpohl that

one of
 On appeal, the state argues that we are bound, under 28

5

U.S.C. § 2254(d), by the Missouri Supreme Court's factual

determination that Vogelpohl's prior statements were consistent

with his trial testimony. See Driscoll v. State, 767 S.W.2d 5, 14

(Mo.), cert. denied, 493 U.S. 874 (1989). We note that the

Missouri Supreme Court merely concluded that the trial court did

not commit plain error by determining that the statements were not

directly inconsistent with Vogelpohl's trial testimony. Assuming

that the consistency of Vogelpohl's statements constitutes a

factual finding, it is unprotected by the presumption of

correctness because it is not fairly supported by the record. 28

U.S.C. § 2254(d)(8).

 At Driscoll's Rule 27.26 hearing in state court, his trial

6

counsel explained: "[Vogelpohl] was about as hostile as a witness

could be. He was the State's witness and he was completely

uncooperative and fairly well, what I would assume, was coached as

to what he was going to say." Hr'g Tr. at 61. With respect to

Vogelpohl's prior inconsistent statements, trial counsel gave the

following answers to questions:

Q: Okay. Now, you were asked about these

statements of Mr. Vogelpohl to both [Investigator]

Schreiber and [Investigator] Wilkinson. If Mr.

Schreiber testified that Vogelpohl -- Vogelpohl

said to Schreiber that Mr. Driscoll had said to

him, quote, "One of the officers, which was Officer

Jackson, had been stuck," end quote. And then

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the officers "had been stuck." Hr'g Tr. at 21. Shortly thereafter,

Vogelpohl had given a second statement to a different investigator.

According to that investigator's interpretation of Vogelpohl's statement,

Driscoll told Vogelpohl "that [Driscoll] or someone took out a guard."

Hr'g Tr. at 47. In his statements prior to trial, Vogelpohl did not say

that Driscoll admitted to stabbing Officer Jackson, much less that

Vogelpohl witnessed Driscoll stab Jackson.

Driscoll's lawyer, who knew about Vogelpohl's statements to

investigators, never questioned him about the inconsistencies between those

prior statements and his testimony at trial. In fact, counsel never made 5

the jury aware of Vogelpohl's prior statements. Driscoll's trial counsel

subsequently testified that this omission was not a matter of trial

strategy. Moreover, we 6
Vogelpohl testified at trial that Mr. Driscoll

had said to him, "Did I take him out, JoJo, or did I take him out."

Do you agree that those two statements can be construed as being

inconsistent?

. . . .

A: Okay. Yes, that's inconsistent.

. . . .

Q: Okay. Would it have been consistent with

your trial strategy to bring up that statement of--

-

A: Yes, it would have.

Q: Was there any matter of trial strategy

involved in not bringing up that prior inconsistent

statement to Mr. Schreiber?

A: No, there was not.

Hr'g Tr. at 77-78.

-18-

conclude that there is no objectively reasonable basis on which competent

defense counsel could justify a decision not to impeach a state's

eyewitness whose testimony, as the district court points out, took on such

remarkable detail and clarity over time.

The question, therefore, becomes whether Driscoll was prejudiced by

his counsel's deficient performance. The state offered the testimony of

another witness, Edward Ruegg, who, like Driscoll, admitted to taking part

in the fighting that night. Ruegg testified that he saw Driscoll stab

Officer Jackson three or four times and that he saw the knife penetrate

Jackson's chest once. Trial Tr. at 1042-43. On cross-examination, Ruegg

testified that he was badly beaten during and after the riot and that he

was afraid for his life when he gave a statement to investigators. Ruegg

admitted: 

. . . I told [the investigators] anything they wanted to

hear--I just wanted to tell them something. So they--I

mean, virtually I told them anything they wanted to hear
 Besides Vogelpohl and Ruegg, the only inmate to actively

7

implicate Driscoll in Jackson's murder was Jimmie Jenkins,

Driscoll's cellmate and the person whose removal from the wing

provoked the disturbance. Although he did not claim to have

witnessed the stabbing, Jenkins testified that Driscoll ran up to

him immediately after the fighting and said, "I killed the freak."

On cross-examination, defense counsel impeached Jenkins--in the

very way he failed to impeach Vogelpohl--by eliciting from him the

fact that in two prior statements Jenkins gave investigators

immediately following the riot, he never mentioned Driscoll's

supposed statement to him. 

-19-

just so they would leave me alone and because I knew I

had to go back to population with regular inmates.

Trial Tr. at 1058-59. Driscoll later presented the testimony of another

inmate who said that Ruegg admitted to him that he did not see who stabbed

Jackson. Trial Tr. at 1593 (Lassen testimony). 

As the Supreme Court recognized in Strickland, "[s]ome errors will

have had a pervasive effect on the inferences to be drawn from the

evidence, altering the entire evidentiary picture . . . ." Strickland, 444

U.S. at 695-96. Vogelpohl testified before Ruegg did. The apparent

strength of Vogelpohl's claim to have seen the same events that Ruegg later

testified to seeing must have offset, in the minds of the jurors, Ruegg's

admission that he was scared enough to say anything that he thought the

investigators wanted to hear. We agree with the district court that

7

counsel's failure to impeach Vogelpohl was a breach with so much potential

to infect other evidence that, without it, there is a reasonable

probability that the jury would find reasonable doubt of Driscoll's guilt.

Therefore, his trial counsel's omission amounted to a deprivation of

Driscoll's Sixth Amendment right to counsel. 

C. Prosecutor's Misleading Statements to the Jury Regarding

Its Sentencing Responsibility

1. Eighth Amendment
-20-

The district court accepted Driscoll's claim that the trial court

denied Driscoll his Fifth Amendment right to due process of law because it

failed, sua sponte, to curtail the repeated efforts by the prosecution to

minimize the jury's sense of responsibility for sentencing Driscoll to

death. We need not decide whether the district court correctly determined

that the trial court's failure to admonish the prosecutor violated

Driscoll's due process rights. Rupp v. Omaha Indian Tribe, 45 F.3d 1241,

1244 (8th Cir. 1995) ("We may affirm the judgment of the district court on

any ground supported by the record, even if the district court did not rely

on it.") (citing Monterey Dev. v. Lawyer's Title Ins., 4 F.3d 605, 608 (8th

Cir. 1993). Instead, we conclude that Driscoll was sentenced to death in

violation the Eighth Amendment because the sentencing jury was misled by

the prosecutor to believe that the ultimate responsibility for its decision

rested elsewhere. 

Throughout the trial, the prosecution made statements to the jury

that were calculated to diminish the degree of responsibility the jury

would feel in recommending a sentence of death. The prosecutor repeatedly

referred to the judge as the "thirteenth juror" and explained that the

jury's sentence of death would be a mere recommendation to the judge; in

his most egregious statements, the prosecutor announced that "juries do not

sentence people to death in Missouri," and, at one point, even told jurors

it did not matter whether they returned a recommendation for the death

penalty
 The following references, although certainly not exhaustive, 8

provide a representative sample of the prosecutor's remarks:

Now, is there any question about the fact that a

jury who returns a verdict of a recommendation of

death, that it's only a recommendation to the

Court, who later sentences the defendant? Does

everybody understand that? Okay. Because juries

don't sentence people to death in Missouri. Trial

Tr. at 540 (voir dire) (emphasis added).

. . . .

Now, lest you get another misconception--you're not

the only ones voting as jurors. The Judge has a

vote. It's really thirteen votes. But the Judge's

vote is a veto vote. It doesn't matter whether you

return a recommendation for the death penalty. The

judge can overrule you and still give the defendant

fifty years in prison without parole--after looking

more in the defendant's background, et cetera--and

those kinds of things. Trial Tr. at 555 (voir

dire) (emphasis added).

. . . .

Well, I'll tell you. What's going to happen to

Bobby Driscoll is it's going to depend on what the

judge does. And it's--in a way, it's certainly

going to depend on what you do. Trial Tr. at 2103

(closing argument).

. . . .

But when you've returned a verdict of--say a

recommendation of death, you each have an

individual vote. But also, the judge has a vote.

Do you understand that? In other words, it takes

thirteen. Trial Tr. at 481 (voir dire).

. . . . 

The recommendation which you will make will be no

more than a recommendation so that the Judge can

consider when he is determining in his mind whether

or not to sentence Driscoll to death--he'll have

-21-

because the judge can simply overrule their decision. Driscoll's 8
that option. Trial Tr. at 2004 (closing argument).

. . . .

And you understand when I say "imposing" [the death

penalty], what you're doing is recommending to

Judge Long

to consider it? Trial Tr. at 580 (voir dire).

 Driscoll's trial commenced in state court on November 26,

9

1984; the court sentenced him to death on February 7, 1985. The

Supreme Court granted certiorari in Caldwell on October 9, 1984,

just before Driscoll's trial began. 469 U.S. 879 (1984). The

Court decided Caldwell, however, on June 11, 1985, more than four

months before Driscoll's case became final on October 20, 1986 when

the Supreme Court denied Driscoll's petition for certiorari,

Driscoll v. Missouri. 479 U.S. 922 (1986).

-22-

counsel never objected to any of these statements at trial.

Our analysis is controlled by Caldwell v. Mississippi, 472 U.S. 320,

239 (1985), in which the Supreme Court held it constitutionally

impermissible to rest a death sentence on a determination made by a jury

that has been led to believe that the responsibility for determining the

appropriateness of the death sentence rests elsewhere. The Court decided

Caldwell on June 11, 1985, before Driscoll's conviction became final.9

Driscoll is thus entitled to the benefit of the Supreme Court's decision.

Cf. Sawyer v. Smith, 497 U.S. 227 (1990) (holding that Caldwell announced

a new rule as defined by Teague v. Lane, 489 U.S. 288 (1989)). Driscoll

raised his substantive claim under Caldwell in the Missouri Supreme Court

on both direct and collateral appeal, and the state court fully considered

these claims on their merits. State v. Driscoll, 711 S.W.2d 512, 515-16

(Mo.), cert. denied, 479 U.S. 922 (1986) (direct appeal); Driscoll v.

State, 767 S.W.2d 5, 9-10 (Mo.), cert. denied, 493 U.S. 874 (1989)

(collateral appeal). Under 28 U.S.C. § 2254, however, we are not bound by

the Missouri court's interpretation of the United States Constitution. 

In Caldwell, the prosecutor minimized the importance of the jury's

sentencing decision by telling the jury that the sentence it imposed would

be reviewed for correctness on appeal. The Court concluded that the
-23-

prosecutor's statements were impermissible because they gave the jury the

false sense that the responsibility
-24-

for sentencing the defendant to death rested not with the jury, but with

the state court of appeals. The Court explained:

The "delegation" of sentencing responsibility that the

prosecutor here encouraged would thus not simply postpone

the defendant's right to a fair determination of the

appropriateness of his death; rather it would deprive him

of that right, for an appellate court, unlike a capital

sentencing jury, is wholly ill-suited to evaluate the

appropriateness of death in the first instance.

Caldwell, 472 U.S. at 330. Our circuit recognized that Caldwell "condemns

state-induced comments that 'mislead the jury as to its role in the

sentencing process in a way that allows the jury to feel less responsible

than it should for the sentencing decision.'" Gilmore v. Armontrout, 861

F.2d 1061, 1066 (8th Cir. 1988) (quoting Darden v. Wainwright, 477 U.S.

168, 184 n.15 (1986)).

In this case, the prosecutor's statements impermissibly misled the

jury to minimize its role in the sentencing process under Missouri law.

Missouri's capital murder statute, under which Driscoll was convicted and

sentenced to death, permitted imposition of a death sentence only if the

jury unanimously voted for death, Mo. Rev. Stat. § 565.006 (Supp. 1982)

(repealed effective October 1, 1984), after considering all relevant

mitigating and aggravating factors, Mo. Rev. Stat. § 565.012.4 (1979)

(repealed effective October 1, 1984). Further, Missouri Supreme Court Rule

29.05 provides: "The court shall have power to reduce the punishment

within the statutory limits prescribed for the offense if it finds that the

punishment is excessive." 

Despite their technical accuracy under Missouri law, the prosecutor's

statements were impermissible because they misled the jury as to its role

in the sentencing process in a way that allowed the jury to feel less

responsibility than it should for its sentencing decision. For example,

the prosecutor told the jury that (1) juries do not sentence defendants to

death, and (2) it did
 Although Missouri Supreme Court Rule 29.05 technically vests 10

the trial court with the power to reduce a jury-imposed sentence

which it deems "excessive," since Missouri reenacted the death

penalty in the late 1970's, "[n]o judge has ever spared a murderer

the death penalty when a jury has recommended it." William C.

Lhotka, Judges Back Juries on Death Penalty, St. Louis PostDispatch, December 6, 1992, at 9C. As one trial judge explains:

"I can't imagine myself going against the cumulative wisdom of the

jury. That's why we rely on the jury system." Id.

-25-

not matter whether the jury sentenced Driscoll to death because the judge

could simply overrule their decision. Far from a decision that does not

matter, a jury's determination to recommend a sentence of death is a matter

of almost unparalleled importance. The judge could not have sentenced

Driscoll to death absent the jury's recommendation to do so. Mo. Rev.

Stat. § 565.006(2) (Supp. 1982) (repealed effective October 1, 1984).

Moreover, for all practical purposes, a jury's recommendation of death is

final. 

10

When we consider the prosecutor's statements as a whole, we conclude

that they implicate the exact concerns that are at the heart of Caldwell:

They fundamentally misrepresented the significance of the jury's role and

responsibility as a capital sentencer and misled the jury as to the nature

of the judge's review of its sentencing determination. See Caldwell, 472

U.S. at 336; see also id. at 342-43 (O'Connor, J., concurring) ("[T]here

can be no 'valid state penological interest' in imparting inaccurate or

misleading information that minimizes the importance of the jury's

deliberations in a capital sentencing case."). The prosecutor essentially

told the jury that it could defer the extremely difficult decision of

whether or not Driscoll should be sentenced to death. As a consequence,

the jury made the decision that Driscoll would be killed without full

recognition of the importance and finality of doing so and, therefore,

without affording the decision the full consideration it required.

Driscoll's death sentence does not meet the standard of reliability
-26-

that the Eighth Amendment requires. Thus, Driscoll's capital sentence is

vacated and he is entitled to a new sentencing hearing.

2. Ineffective Assistance of Counsel

The district court also granted Driscoll habeas relief because it

concluded that his counsel was ineffective for failing to object to the

repeated efforts by the prosecution to diminish the degree of

responsibility the jury would feel in recommending a sentence of death as

discussed above. The district court, however, applied the wrong analysis

to the claim of ineffectiveness, and instead treated it as if it were a

substantive claim under Caldwell v. Mississippi, 472 U.S. 320 (1985).

Although handed down before Driscoll's conviction became final, Caldwell

was not the law at the time of Driscoll's trial; moreover, the Court's

decision in Caldwell was not dictated by the precedent existing at the time

of Driscoll's trial. Sawyer v. Smith, 497 U.S. 227, 235 (1990).

Therefore, his lawyer's effectiveness cannot be assessed in light of

Caldwell's mandate. We cannot require trial counsel to be clairvoyant of

future Supreme Court decisions in order to provide effective assistance.

Horne v. Trickey, 895 F.2d 497, 500 (8th Cir. 1990). "A fair assessment

of attorney performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of

counsel's challenged conduct, and to evaluate the conduct from the

counsel's perspective at the time." Strickland, 466 U.S. at 689. Thus,

we evaluate trial performance in light of the law and circumstances as they

existed at the time of trial. Blackmon v. White, 825 F.2d 1263, 1265 (8th

Cir. 1987).

Although misleading, the majority of the statements to which defense

counsel failed to object constituted technically correct statements under

Missouri's capital statute and Rule 29.05. At the Rule 27.26 hearing in

state court, Driscoll's trial counsel testified that, although he

considered the prosecutor's comments
 For example, when asked whether, at the time of trial, he

11

believed that the prosecutor's statement that the judge imposes

sentence on the defendant was a correct one he replied: "What I

believe was a correct statement of the law was that the Judge had

the ability to override the jury sentence if--which, in fact, was

the law." Hr'g Tr. at 65. He elaborated: "Use of the term

'thirteenth juror' was offensive to me; but I thought his statement

of the law was correct. And I did not know that the statement was

objectionable." Hr'g Tr. at 82. 

 At the Rule 27.26 hearing trial counsel stated: "[I]t's my 12

personal policy, in closing arguments, not to interrupt or make

objections unless it's what I consider to be seriously damming

[sic] to my case or something that's a flagrant misstatement of the

facts as they were revealed at trial." Hr'g Tr. at 84. 

-27-

"offensive," he believed them to accurately reflect the law and he felt he

had no basis on which to object. We have no reason to believe that the 11

trial court would have sustained counsel's objections had he advanced them

at trial. Moreover, Driscoll's trial lawyer admitted to a general trial

strategy that included minimizing the number of objections he made during

the other side's closing argument. We must conclude that counsel's

12

strategic decision not to object under the circumstances was objectively

reasonable. Because we conclude that Driscoll makes and insufficient

showing that his trial lawyer's failure to object under the circumstances

constituted inadequate performance, we need not discuss prejudice.

Strickland, 466 U.S. at 699.

D. Ineffective Assistance of Counsel: Failure to Request a

Jury Instruction on the Lesser-Included Offense of Second

Degree Felony Murder

The district court also determined that Driscoll's trial counsel was

constitutionally ineffective because he failed to request a jury

instruction on the lesser-included, non-capital offense of second degree

felony murder. At Driscoll's trial, the jury retired with instructions on

capital murder, as well as on the non-capital offenses of conventional

second degree murder (intentional murder without deliberation) and

manslaughter. In his
-28-

petition, Driscoll asserts that his counsel's failure to request the

additional instruction constituted ineffectiveness in light of Beck v.

Alabama, 447 U.S. 625 (1980) (holding that the death penalty may not be

imposed when the jury is prohibited from considering a verdict of guilt of

a lesser-included, non-capital offense). The state argues that Beck and

its progeny require only that the jury be allowed to consider a "third

option" besides finding the defendant guilty or not guilty of capital

murder. We agree with the state's interpretation of the law under Beck.

In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held

unconstitutional an Alabama statute that prohibited lesser-included offense

instructions in capital cases. As the Court later explained:

Our fundamental concern in [Beck] was that a jury

convinced that the defendant had committed some violent

crime but not convinced that he was guilty of a capital

crime might nonetheless vote for a capital conviction if

the only alternative was to set the defendant free with

no punishment at all. . . . We repeatedly stressed the

all-or-nothing nature of the decision with which the jury

was presented.

Schad v. Arizona, 501 U.S. 624, 645 (1991) (internal quotation and

citations omitted). As long as it considers a "third option," the

reliability of the jury's capital murder conviction will not be diminished

the way it is when the jury is forced into an all-or-nothing choice. Id.

This case, like Schad, does not implicate the central concern of Beck

because the jury did not face an all-or-nothing choice. In addition to

capital murder, the jury considered the lesser-included, non-capital

offenses of second degree murder and manslaughter. The record indicates

that Driscoll sought an
 As Driscoll's counsel later testified, his strategy at trial 13

was "to put evidence on to the effect that other individuals

stabbed Tom Jackson." Hr'g Tr. at 63. During his closing

argument, Driscoll's lawyer argued that the state had failed to

meet its burden of proof and that Driscoll was being used as a

scapegoat for the murder of a corrections officer. At one point he

explained to the jury: "Ordinarily, at this stage of the closing

argument, the defense attorney is supposed to talk about reasonable

doubt. I'm not going to go into that because there's mounds and

mounds and mounds of doubt." Trial Tr. at 1963.

-29-

acquittal, not a conviction of a lesser offense. This fact explains his 13

lawyer's strategic choice not to request an instruction on the additional

lesser-included offense of second degree felony murder which would have

necessarily emphasized Driscoll's admitted role in the riot. We conclude

that his counsel acted reasonably; as a consequence, Driscoll was not

denied effective counsel by the omission. Because Driscoll received

effective assistance with respect to the challenged instructions, we

reverse the district court. 

E. Remaining Claims

The district court found two additional bases to support Driscoll's

claim that he was denied due process: (1) the trial court failed to

instruct the jury, sua sponte, on the lesser-included offense of second

degree felony murder; and (2) the trial court allowed the state to offer

improper rebuttal testimony. We reverse the district court on both

grounds. The first of these claims is disposed of by our discussion of

Driscoll's trial counsel's performance with respect to the jury

instructions, supra, Section III(D). The court had no due process

obligation to submit a particular lesser-included offense instruction to

the jury. With respect to the second contention, Missouri law provides

that the scope of rebuttal testimony is left to the sound discretion of the

trial court. State v. Leisure, 749 S.W.2d 366, 380 (Mo. 1988). Further,

Driscoll raised this claim on direct appeal and the Missouri Supreme Court

dismissed it as meritless. Driscoll, 711
-30-

S.W.2d at 518. In no event does the trial court's determination of this

evidentiary issue rise to the level of a constitutional violation. 

Finally, by affirming the district court's order in all other

respects, supra n.2, we reject the claims raised by Driscoll in his crossappeal.

IV. CONCLUSION

We affirm the district court's order, in part, concluding that a

writ of habeas corpus should issue on three independent bases: (1)

Driscoll was denied the effective counsel guaranteed by the Sixth Amendment

because his lawyer allowed the jury to retire with the factually inaccurate

impression that the victim's blood was possibly on Driscoll's knife; (2)

his trial counsel was also ineffective for failing to impeach a state

eyewitness using his prior inconsistent statements; and (3) the

prosecutor's repeated statements to the jury impermissibly diminished the

jury's sense of responsibility for its sentence of death and rendered

Driscoll's death sentence infirm under the Eighth Amendment. The district

court shall vacate Driscoll's conviction and sentence and order him

released unless the state commences proceedings to retry him within 120

days. 

We reverse the district court's order, in part, because we conclude

that the following challenges to Driscoll's conviction do not warrant

habeas corpus relief: (1) Driscoll's trial counsel was ineffective for

failing to object to the prosecutor's misleading statements to the jury;

(2) Driscoll received ineffective assistance of counsel as a result of his

lawyer's failure to request a jury instruction on the lesser-included

offense of second degree felony murder; (3) the trial court denied Driscoll

due process of law by failing to, sua sponte, instruct the jury on second

degree felony murder; and (4) the trial court denied
-31-

Driscoll due process of law by allowing the state to introduce rebuttal

testimony. 

HANSEN, Circuit Judge, concurring.

I concur in Parts I, II, III(A), III(C)(2), III(D), and III(E) of the

court's opinion and in its judgment. I agree that Driscoll's defense

counsel's performance at trial with respect to the serology evidence meets

the first part of the Strickland test. It was of fundamental importance

that the defense show conclusively (and with reasonable investigation and

pretrial preparation it could have done so) that none of Officer Jackson's

blood was on the knife the state claimed was used by Driscoll to murder the

officer. I am also of the view that there is a reasonable probability that

but for counsel's deficient performance, the result in the guilt phase of

Driscoll's case would have been different. Moreover, and after considering

the totality of the evidence, because of the crucial nature of this

exculpatory evidence, my confidence in the outcome of the case is seriously

undermined to the extent that I believe the result reached is unreliable.

Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993); Strickland v. Washington,

466 U.S. 668, 687, 694 (1984).

Because I agree that Driscoll is entitled to a new trial, my

respectful disagreements with the court's analysis and opinion with regard

to Driscoll's Caldwell claim and with his claim concerning the crossexamination of the witness Joseph Vogelpohl (contained in Parts III(B) and

III(C)(1) of the opinion) do not require explication except to say that I

do not believe Driscoll has ever asserted the stand-alone Eighth Amendment

Caldwell claim upon which the court today grants him relief. The Caldwell

claim has always been made as a part of Driscoll's ineffective assistance

of counsel claim, and as a claim that the state trial court denied him due

process by not admonishing the prosecutor sua sponte concerning the

complained-of comments. As indicated, I agree with the court's
-32-

conclusion that Driscoll's trial counsel could not be constitutionally

ineffective for not making a Caldwell objection before Caldwell was

decided.

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.