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 als o 1 

### charge d and separately convicted of capital murder in connectio n with the stabbing death of Off icer Jackson. Roberts was sentenced to death for his role in restraining officer Jackson while he was fatallystabbed. 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).
-2- The State of Missouri appeals and petitioner Robert Driscoll, a/k/a Al bert Eugene Johnson, cross-appeals from the district court's orde r granting Driscoll's 28 U.S.C. § 2254 petition for writ of habeas corpus. For the reasons stated below, we agree that a wr it of habeas corpus should issue on three independent bases: (1) Dri scoll was denied the effective counsel guaranteed by the Sixt h 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 stat e 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 Potos i 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 § 565.001 (1978) (repealed effective October 1, 1984) in connection with the sta bbing death of a corrections officer, Thomas Jackson, during a priso n disturbance. On December 6, 1984, the jury recommended tha t 1 Driscoll be sentenced to death; thereafter, on F ebruary 7, 1985, the state court sen tenced him to death by lethal gas. The Missouri State Suprem e Court affirmed Driscoll's conviction and sentenc e on direct appeal. State v. Driscoll , 711 S.W.2d 512 (Mo.), cert. denied , 479

### -3-

U.S. 922 (1986). Driscoll subsequently filed a motion for post-conviction relief in state court pursuant to Missouri Supreme Court Rule 27.2 6 (repealed effective January 1, 1988), which the trial court denied after an evidentiary hearing. The Missouri Supreme Co urt affirmed the denial of the motion. Driscoll v. State , 767 S.W.2d 5 (Mo .), cert. denied , 493 U.S. 874 (1989).

On Octobe r 6, 1989, Driscoll filed this petition for writ of habeas corpu s in the United States District Court for the Eastern District o f Missouri. The court appointed counsel to assist Driscoll and on October 22, 19 90, Driscoll filed an amended petition asserting the followin g general cl aims for relief: (1) he was denied effective assistance o f
cou nsel in violation of the Sixth Amendment because of multiple allege d 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 cour t errors; (3) Driscoll's grand and petit jury pools did not represent fair
cros s sections of the community in violation of due process; (4) th e Missouri death penalt y statute is unconstitutional because it affords the prosecuting attorney unbridled discretion to seek the death penalty in a discri minatorymanner; 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 magistrat e jud ge. After conducting a de novo review of the record, includin g consideration of the parties' objections to the magistrate judge's report and recommendation, the district court adopted the report of the magistrat e judge and granted Driscoll's habeas corpus petition on July 8, 1994.

The d istrict court found seven distinct bases on which it grante d 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 

### Drisco ll's claims. Many claims in Driscoll's petition had bee n ext inguished due to procedural default unexcused for cause. Th e district court denied the rema inder 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 s o doing, we thereby reject the claims raised by Driscoll in hi s cross-appeal.
-4- proces s violations. The court determined that Driscoll receive d 2 ine ffective assistance of counsel because his trial counsel (1) did no t adequatelyprepare for the introduction of blood identification evidence at trial and failed to adequately cross-examine the state's serology exper t
on the crucial issue of blood identification testing methodology, (2 ) failed to adequately cross-examine a state eyewitness regarding prio r inconsistent statements, (3) failed to object to repeated statements by th e prosecutor to the jury that minimized the jury's sense of responsibility in recomm ending a sentence of death, and (4) did not request a jur y instruction on the lesser-included offense of se cond degree felony murder. In addition, the court determined that a writ of habeas corpus wa s warranted because Driscoll's trial was tainted by the following due proces s vi olations: (1) the court's failure to curtail, sua sponte, th e prosec utor's repeated statements to the jury that minimized the jury' s
sense o f responsibility for recommending a sentence of death; (2) th e 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 offe r improper rebuttal testimony.
We will consider each of these groun ds in turn after a recitation of the factual background necessary to reach our determination.

### Later, afte r quieting the ensuing disturbance, investigators 3 

### retrieved at least thirteen si milar homemade knives from the wing. Authorities were still discove ring knives possibly associated with the July 3, 1983 incident as late as the weeks immediatel y pr eceding Driscoll's trial. Officer Darnell testified that h e dis covered fifteen to twenty knives and other weapons during th e shakedown of the cells after the disturbance. He further te stified 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 knif e connected to Driscoll tested positive for blood. Therefore, either Darnel l made a mistake in his recollection or one or more of th e -5- 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 Missour i Trai ning Center for Men (MTCM) in Moberly, Missouri on July 3, 1983

. Driscoll was one of the 459 prisoners housed in Unit 2, an X-shape d buildi ng consisting of four cell wings (designated "A" through "D" ) bra nching 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 freel y within his wing.
Beginn ing during the day of July 3, 1983 and continuing into th e night, inmates in Unit 2B were drinking homemade alcohol and smuggled , store-bought whisky. The center of this activity, cell 2B-410, house d Drisc oll and his cellmate, Jimmie Jenkins. Officer Jackson was one o f three gua rds assigned to monitor security in Unit 2 that night. B y regula tion, Jackson was unarmed. By nighttime, Jenkins had becom e
ex ceedinglydisruptive. At approximately 9:45 p.m., Officer Jackso n entered Unit 2B to remove Jenkins from the wing. Jenkins refused to compl y with Jackson's instructions to follow him out of the wing. Officer Jackso n returned to the contr ol 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.
-6- Officer Jackson and two additional guards returned to the housin g unit to r emove Jenkins. The two other guards escorted Jenkins from th e wing to the control c enter--one guard on each side of the prisoner--while Jackson trailed some distance behind. At that p oint, a group of twenty to thirty inmates from the wing, including Driscoll , charged the guards. The two guards escorting Jenkins made it to the rotu nda where more guards were assembling to help control the situation; a crowd of prisoners, however, stop ped Officer Jackson several feet short of the door. Jackson wa s restrained, beaten, a nd stabbed four times. At trial, the state advanced the theory that Drisc oll 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 an d guards raged both in the control center and just outside. After several thwarted attempts to rescue Jackson, guards successfully pulled him throug h the door into the rotunda. Jackson's shirt was covered in blood. Th e guards managed to con trol the worst of the fighting within a few minutes. Reinforcement guards herded inmates back to thei r cells by firing sixty to eighty shotgun blasts into the floor and ceilingof the housing wings. At some point, Driscoll returned to his cell and changed his clothes.

At the en d of the fighting, Officer Jackson was dead and five other guard s had been stabbed or otherwise injured. At least thirty inmate s required treatment fo r their injuries; one prisoner was seriously wounded by a shotgun pellet. At trial, Driscoll

### -7-

presented substantial evidence that during the night of July 3rd and into the follo wing day guards subjected the inmates of Unit 2B to bruta l 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 Stat e Penitentiaryin Jefferson City, Missouri, Driscoll made an incriminating statement to investig ating officers from MTCM and the Highway Patrol. In the statement, Driscoll admits that he "stabbed at" an officer after he wa s hit by someone. He stated that he did not know at which officer he stabbe d or if he stabbed at t he officer more than once. The trial court admitted the statement into ev idence over Driscoll's objection that it was coerced and involuntary. Oth er evidence against Driscoll included the eyewitness testimony of two inma tes 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 sta b Jackson.

III. DISCUSSION

A. Ineffective Assistance of Counsel: Defense Handling o f Serology Evidence

The Sixth Amendment guarantees a criminal defendant charged with a serious c rime the right not merely to counsel, but to the effectiv e assistance of counsel. United States v. Cronic , 466 U.S. 648, 654 (1984). Any other interpretation of that right would permit a serious risk o f injustice to infect criminal trials. Cuyler v. Sullivan , 446 U.S. 335, 34 3 (1980 ). "Absent competent counsel, ready and able to subject th e prosecution's case to the 'crucible of meaningful adversarial testing, ' there can be no guarantee that the adversarial system will functio n properly to

### -8-

produce just and reliable results." Lockhart v. Fretwell , 113 S. Ct. 838, 847 (1993) (Stevens, J., dissenting) (quoting Un ited States v. Cronic , 466 U.S. 648, 654 (1984)).

The Unite d 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 cou nsel's performance was def icient. This requires showing that counsel mad e errors so serious that counsel was not functioning as the "co unsel" guaranteed the defendant by the Sixt h Amendment. Second, the defendant must show that th e def icient performance prejudiced the defense. Thi s requires showing that counsel's errors were so serious as to de prive the defendant of a fair trial, a trial whos e result is reliable.

Strickland , 466 U.S. at 687.

With respect to the performance aspect of the test, the defendan t must demonstrate that counsel's representation fell below an objectiv e standa rd of reasonableness under prevailing professional norms. Id. a t 688. Our review of counsel's performance must be highly deferential; we indulge a strong pres umption that counsel's conduct falls within the wide range of professionally reasonable assistance and sound trial strategy

. Id. at 689. For that reason,
strategic ch oices made after a thorough investigation of law and facts relevant to plausible opt ions are virtually unchallengea ble; and strategic choices made after a less tha n complete investigation are reasonable precisely t o 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, t o reconstruct the circumstances of counsel's challenged

### -9-

conduct, and to evaluate the conduct from counsel's perspective at the tim e [of trial]." Id. at 689.
Professionally unreasonable trial errors, however, do not satis fy the burden of proving ineffectiveness absent a showing of prejudice to th e defendant. We will set aside the judgment of conviction only when th e defendant demonstrates that there is a reasonable probability that, but fo r counsel's unprofessio nal 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 conduc t when "there is a reasonable probability that, absent the errors, th e factfinder would have had a reasonable doubt respecting guilt." Id. a t 695. In determining prejudice, we consider all the evidence presented to the jury; we are mind ful that some trial errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entir e eviden tiarypicture, whereas other errors will have produced only a trivial, isolated effect. Id. at 695-96.

The qu estion of whether Driscoll's Sixth Amendment rights wer e violated because he r eceived 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 f actual 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 allowin g the jury to retire with the factually inaccurate impression that th e victim's blood could have been present on Driscoll's knife. On appeal, th e state argues that Driscoll failed to establish that defense counsel' s handling of the

### -10-

serol ogyevidence either constituted unreasonable performance or cause d Driscoll prejudice. The state contends that the district court did no t engage in the required two-part Strickland analysis; specifically, that the court failed to consider whether the asserted errors by counse l pre judiced the defendant. While we acknowledge the shortcomings of th e 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 Missour i Highwa yPatrol Crime Laboratory, testified for the state at Driscoll' s trial. Dr. Su conducted all the serological examinations on the state's evidence, which inclu ded a homemade knife belonging to Driscoll, thirteen additional homemade knives discovered during the investigation of the riot , the clot hes worn by Officer Jackson at the time he was killed, and th e clothes worn by various inmates, including Driscoll, on the night of the riot. Before trial, the state provided Dri scoll's lawyer with a three-page laboratory report that summarized the latent fin gerprint, serological, and chemical examinations performed on the state's evidence. The first page of th e report lists the specimens submitted to the laboratory fo r 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 test s performed on the state's evide nce. According to the laboratory report, the blood found o n Driscoll's clothing--type O--matched Officer Jac kson's blood type. All of the homemade knives except for Driscoll's tested negative for blood traces

. The blood traces foun d on Driscoll's knife were of type A--the same blood type of Officer Maupin, but not of the victim, O fficer Jackson. The table also indicates that Jackson's dress boots testedpositive for both "A & O" type blood.

### -11- At trial, the state advanced two alt ernative theories to explain the lack of the victim's blood on the alleged murder weapon: either that the type O blood on Drisc oll's knife got wiped off when Driscoll subsequently stabbed Officer Maupi n or that type O blood was present on the knife, but "masked" from detection because of the additional presence of type A blood

.

With resp ect 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 ex plained, a reagent called anti-A is added to the blood an d agglutination (clumpi ng) occurs if the blood is type A. Similar reagents signal t he 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 typ e O blood are mixed, the antigen test will not reveal the presence of th e type O blood because the agglutination showing type A will occur. Dr. Su testified that with t he antigen test type A blood "masks" the presence of type O blood.

Neith er the prosecution nor the defense on cross-examination eve r asked Dr. Su whether she used any other blood identification methods o r whether she could have employed any other tests to establish with certaint y 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 medica l certaintywas that Driscoll's knife had blood type A on it and whethe r "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 "la ttes" antibody test. Like the thread test, the lattes test ca n 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

### -12-

blood on Driscoll's knife. The jury was never informed that the latte s 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 r egarding 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 a lso 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 lawye r testified that he didnot interview Dr. Su prior to the time she gave her testimony. He admitted that he did not take any steps to adequately infor m himself about the specific serology tests perfor med or the conclusions one
cou ld logically draw from the laboratory results. The record indicate s that trial counsel si mply reviewed the three-page summary of the serology evidence, noted that the tests did not demonstrate the existence of th e victim's blood on Driscoll's knife, and "didn't see how it was going t o hurt [him]." Hr'g Tr. at 91. He testified later that at the time of tria l he was not aware of any scientific evidence that could have rebutted the state's serology evidence.

The co mbination of the prosecution's presentation of serolog y 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 neutra l evidence at worst:

The issue of the knife on the blood [sic] doesn't really prove any thing. What it is is a neutral issue. . .

. [W]hen you mix O and A together . . . i t's going to react with the A p art in the smudge and it's going to tell you that there is A there, but the O is undetectable.

### -13- And in this situation, what we have is we have this magic com bination. Tom Jackson had O-type blood. Harol d 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 blo od on the knife is a neut ral issue. Obviously the defense is going t o make--you know--big work of that. But that's no t significant at all. Chemically--the ma nner in which they test a ntigens in the A-type blood, it explains why yo u can't detect whether O is present when A and O are mixed.

. . . . Also, t he other reason why is the in and out. Th e stabbi ng [Jackson] in the chest, the pulling it out an d the st abbing [Maupin] in the arm. Because it's a chemical fac t 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 i s 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 state ment from Dr. Su on crossexamination that the only thing beyond speculation was that blood type A was on Driscoll's kni fe. He then deduced that the prosecutor "didn't get all the evidence out of her he wanted" because the state later brough t another witness, Chief of Police James Simmerman, who essentially testifie d to the same possibility of wiping that Dr. Su did.

The questions now before us are (1) whether defense counsel' s performance in failin g to investigate and to adequately cross-examine Dr. Su about the serology tests performed on the state's evidence fell below

an obj ectively reasonable standard of representation; and (2) if so , whether Driscoll was prejudiced by these failures. We answer bot h questions in the affirmative.
Although our scrutiny of defense counsel's performance is defer ential and we presume his conduct to fall within the wide

### -14-

range of competence demanded of attorneys under like circumstances , Strickland , 466 U.S. at 687-89, "when the appellant shows that defens e 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 th e possibility of the death sentence if convicted. Whether or not the alleged murder weapon--which wa s 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 th e laboratory tests performed and the inferences that one could logically dra w from the results. At the very least, any reasonable attorney under th e circumstances would study the state's laboratory report with sufficien t
care so that if the prosecution advanced a theory at trial that was at odd s 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 th e defendant's knife by telling the jury, in essenc e, that although both type A and type O blood we re on the knife, the serology test could only detect type A. In fact, another test had been performed that conclusivel y disproved that theory. A reasonable defense lawyer would have been alerte d to the possibility of conclusively detecting bot hA and O on the same item of evidence by the laboratory report itself. Wh ereas the report indicates that only type A was found on Driscoll's knife and that only type O wa s 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 o f 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 t ype (or types) was determined, it had been determined conclusively.
-15- dete cted 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 o f adversar ial testing, and to prevent the jury from retiring with a n inaccurate impression that the victim's blood might have been present on the de fendant's knife fall short of reasonableness under the prevailin g professional norms.
Applying the second prong of the Strickland analysis, we conclud e that the inadequate performance of his lawyer pr ejudiced Driscoll. There is a reasonable probability that, absent these e rrors, 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 reste d primarilyon the presence of the victim's blood on Driscoll's pants, the
sus pect eyewitness testimony of prisoners involved in the riot, and th e incriminating statement Driscoll gave to investigators in which he admitte d "stabbing at an offic er." Given that the trial evidence established that Driscoll stabbed Officer Maupin--who has blood t ype A--and that the guards who a ctually saw an inmate stab officer Jackson identified Carr as th e assailant , we cannot say that had the jury been made aware that th e victim's blood was conclusively absent from Driscoll's knife it still woul d have foun d him guilty of Jackson's murder. Thus, we agree with th e district court that defense counsel was ineffective.

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B. Ineffective Assistance of Counsel: Failure to Impeac h State's Eyewitness with Prior Inconsistent Statements

The district court also found that D riscoll'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. W e agree with the district court's decision.

At Driscoll's trial, the state offered the eyewitness testimony o f 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 cel l to cont inue watching television as he had been before the disturbanc e began. According to Vogelpohl, Driscoll returned to his cell a while late r and, before changing his clothes, said to Vogelp ohl: "Did I take him out, JoJo, or did I take him out." Trial Tr. at 922. On cross-examination , Driscoll's lawyer que stioned Vogelpohl about his prior convictions, Trial Tr. at 926-27, about his intoxication level on the night in question, Tria l Tr. at 945-46, about the beatings he and other inmates received fro m corrections officers after the riot, Trial Tr. at 935-38, and about whethe r 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 pe tition, Driscoll asserts that his counsel was ineffective, however, because he f ailed to impeach Vogelpohl's testimony with evidence that Vogelpohl had made prior inconsistent statements to investigators

. Shortly after the incident at MTCM, Vogelpohl ha d given a statement to two investigating officers. According to one of the officer's notes, Vogelpoh l told them that when Driscoll returned to his cell he told Vogelpohl that one of

### On ap peal, the state argues that we are bound, under 2 8 5 

### U.S.C. § 2254(d), by the Missouri Supreme Court's factua l determination that Vogelpohl's prior statements were consisten t 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 th e Mis souri Supreme Court merely concluded that the trial court di d not commit plain error by dete rmining that the statements were not directly inconsistent with Vogelpohl's trial testimony. Assuming tha t the consistency of Vogelpohl's statements constitutes a factua l finding, it is unprotected by the presumption o f 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 tria l 6 

### counsel explained: "[Vogelpoh l] was about as hostile as a witness coul d be. He was the State's witness and he was completel y 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 t o Vogelpohl's prior inconsistent statements, trial counsel gave the following answers to questions:

Q: Ok ay. Now, you were asked about thes e statements of Mr. Vogelpohl to both [Investigator] Schreiber and [Investigator] Wilkinson. If Mr

. Schreiber testified that Vogelpohl -- Vogelpoh l sa id to Schreiber that Mr. Driscoll had said t o him, quote, "One of the office rs, which was Officer Jackson, had been stuck," end quote. And the n -17- the of ficers "had been stuck." Hr'g Tr. at 21. Shortly thereafter , Vogelp ohl had given a second statement to a different investigator

. According to that inv estigator'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 D riscoll admitted to stabbing Officer Jackson, much less tha t Vogelpohl witnessed Driscoll stab Jackson.

Dris coll's lawyer, who knew about Vogelpohl's statements t o investigators, never questioned him about the inconsistencies between thos e prior statements and his testimony at trial. In fact, counsel never made 5 the jury aware of Vog elpohl's prior statements. Driscoll's trial counsel subsequently testified that this omission was not a matter of tria l 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 hi m out." Do you a gree that those two statements can be construed as bein g inconsistent?

. . . . A: Okay. Yes, that's inconsistent.

. . . . Q: Ok ay. Would it have been consistent wit h your trial strategy to bring up that statement of--

- A: Yes, it would have. Q: Wa s there any matter of trial strateg y involved in not bringing up th at prior inconsistent statement to Mr. Schreiber? A: No, there was not. Hr'g Tr. at 77-78.
-18- conclude that there i s no objectively reasonable basis on which competent defen se counsel could justify a decision not to impeach a state' s eyewitness whose testimony, as the district cour t points out, took on such remarkable detail and clarity over time.

The quest ion, therefore, becomes whether Driscoll was prejudiced by his counsel's deficient performance. The state offered the testimony of another witness, Edward Ruegg, who, like Driscol l, admitted to taking part in the fighting that night. Ruegg testified that he saw Driscoll sta b Officer J ackson three or four times and that he saw the knife penetrat e 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 li fe 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, virtua lly I told them anything they wanted to hear

### Besi des Vogelpohl and Ruegg, the only inmate to activel y 7 

### implicate Driscoll in Jackson's murder was Jimmie Jenkins , Driscoll's cellmate and the person whose removal from the win g provoked the disturbance. Although he did not claim to hav e witnessed the stabbing, Jenkins testified that Driscoll ran up to him immediately after the figh ting and said, "I killed the freak." On cross-examination, defense counsel impeached Jenkins--in th e very way he failed to impeach Vogelpohl--by eliciting from him the fact t hat in two prior statements Jenkins gave investigator s immediately following the riot, he never mentioned Driscoll' s supposed statement to him.
-19- just so t hey 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 wil l have had a pervasive effect on the inferences to be drawn from th e evidence, altering the entire evidentiary pictur e . . . ." Strickland , 444 U.S. at 695-96. Vogelpohl testified before Ruegg did. The apparen t strength of Vogelpohl's claim to have seen the same events that Ruegg late r 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 th e investigat ors wanted to hear. We agree with the district court tha t 7 counsel's failure to impeach Vogelpohl was a bre ach with so much potential to infect other evidence that, without it, there is a reasonabl e probability that the jury would find reasonable doubt of Driscoll's guilt. Theref ore, his trial counsel's omission amounted to a deprivation o f 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 cour t denied Driscoll his Fifth Amendment right to due process of law because it failed, sua sponte, t o curtail the repeated efforts by the prosecution to minimi ze the jury's sense of responsibility for sentencing Driscoll t o death. We need not decide whether the district court correctly determined that t he trial court's failure to admonish the prosecutor violate d Driscoll's due proces s rights. Rupp v. Omaha Indian Tribe , 45 F.3d 1241, 1244 (8th Cir. 1995) ("We may affirm the judgmen t of the district court on any ground supported by the record, even if the district court did not rel y
on it.") (citing Monterey Dev. v. Lawyer's Title Ins. , 4 F.3d 605, 608 (8t h 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 decisio n rested elsewhere.

Throughout the trial, the prosecution made statements to the jur y that were calculated to diminish the degree of responsibility the jur y would feel in recommending a sentence of death. The prosecutor repeatedly refer red to the judge as the "thirteenth juror" and explained that th e jury's sentence of death would be a mere recommendation to the judge; in his most egregious statements, the prosecutor announced that "juries do no t sentence people to death in Missouri," and, at o ne point, even told jurors it di d not matter whether they returned a recommendation for the deat h penalty

### The followi ng references, although certainly not exhaustive, 8 

### provide a representative sample of the prosecutor's remarks:
Now, i s there any question about the fact that a jury w ho returns a verdict of a recommendation o f dea th, that it's only a recommendation to th e Court, who later sentences the defendant? Doe s ev erybodyunderstand that? Okay. Because jurie s don't sentence people to death in Missouri . Trial Tr. at 540 (voir dire) (emphasis added).

. . . . Now, lest you get another misc onception--you're not the only ones voting as jurors. The Judge has a vote. It's really thirteen vo tes. But the Judge's vote is a veto vote. It doesn 't matter whether you return a recommendation for th e death penalty . The judge can overrule you and sti ll give the defendant fifty years in prison without parole--after looking more in the defendant's background, et cetera--and tho se kinds of things. Trial Tr. at 555 (voi r dire) (emphasis added).

. . . . Well, I'll tell you. What's going to happen t o Bobby Driscoll is it's going to depend on what the ju dge does. And it's--in a way, it's certainl y going to depend on what you do. Trial Tr. at 2103 (closing argument).

. . . . But w hen you've returned a verdict of--say a recommendation of death, you each have a n indi vidual vote. But also, the judge has a vote

. Do you understand that? In other words, it take s thirteen. Trial Tr. at 481 (voir dire).

. . . . The re commendation which you will make will be n o more than a recommendation so that the Judge ca n consider when he is determinin g in his mind whether or n ot to sentence Driscoll to death--he'll hav e -21- because the judge can simply overrule their decision. Driscoll's 8

### that option. Trial Tr. at 200 4 (closing argument).

. . . . And you understand when I say "imposing" [the death penalty], what you're doing is recommending t o 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. Th e Sup reme Court granted certiorari in Caldwell on October 9, 1984 , ju st before Driscoll's trial began. 469 U.S. 879 (1984). Th e Court decided Caldwell , however, on June 11, 1985, more than four months before Driscoll's case became final on October 20, 19 86 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 Caldwe ll v. Mississippi , 472 U.S. 320, 239 (1 985), in which the Supreme Court held it constitutionall y 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 th e death sentence rests elsewhere. The Court decided Caldwell on June 11, 1985, before Driscoll's conviction became final. 9 Driscoll is thus enti tled 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 substantiv e claim under Caldwell in the Missouri Supreme Court on both direct and collateral appeal, and the st ate 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

. Sta te , 767 S.W.2d 5, 9-10 (Mo.), cert. denied , 493 U.S. 874 (1989 ) (collateral appeal). Under 28 U.S.C. § 2254, ho wever, 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 r eviewed for correctness on appeal. The Court concluded that th e

### -23-

prosecutor's statemen ts 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 th e prosecutor here encouraged would thus n ot simply postpone the defendant's right to a fair determination of th e appropriateness of his death; rather it would deprive him of tha t right, for an appellate court, unlike a capita l senten cing jury, is wholly ill-suited to evaluate th e appropriateness of death in the first instance.

Caldwell , 472 U.S. at 330. Our circuit recogniz ed that Caldwell "condemns state-ind uced comments that 'mislead the jury as to its role in th e sentencing process ina way that allows the jury to feel less responsible than it should for th e 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 th e juryto minimize its role in the sentencing process under Missouri law

. Missouri's capital mu rder statute, under which Driscoll was convicted and sentenced to death, permitted imposition of a death sentence only if the juryunanimously voted for death, Mo. Rev. Stat. § 565.006 (Supp. 1982 ) (r epealed effective October 1, 1984), after considering all relevan t mitiga ting and aggravating factors, Mo. Rev. Stat. § 565.012.4 (1979 ) (repealed effective October 1, 1984). Further, Missouri Supreme Court Rul e 29.05 prov ides: "The court shall have power to reduce the punishmen t within the statutory limits prescribed for the offense if it finds that th e punishment is excessive."
Despite their technical accuracy under Missouri law, the prosec utor's statements were imper missible because they misled the jury as to its role in the se ntencing process in a way that allowed the jury to feel les s responsibilitythan 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 Co urt Rule 29.05 technically vests 10 

### the trial court with the power to reduce a jury-imposed sentenc e wh ich it deems "excessive," since Missouri reenacted the deat h penalty in the late 1970's, "[ n]o judge has ever spared a murderer th e death penalty when a jury has recommended it." William C

. Lhotka , Judges Back Juries on Death Penalty , St. Louis Post

Dispatch , 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 th e 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 matte r of almost unparalleled importance. The judge could not have sentence d 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 pra ctical purposes, a jury's recommendation of death is final. 10

When we consider the prosecutor's st atements as a whole, we conclude that they implicate t he exact concerns that are at the heart of Caldwell : They fundamentally mi srepresented the significance of the jury's role and responsibility as a capital sentencer and misledthe 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 o r misleading information that minimizes the importance of the jury' s deliberations in a capital sentencing case."). The prosecutor essentially told the j ury that it could defer the extremely difficult decision o f whether or not Driscoll should be sentenced to death. As a consequence, the jury m ade the decision that Driscoll would be killed without ful l 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 i t concluded that his counsel was ineffective for failing to object to th e repeat ed efforts by the prosecution to diminish the degree o f responsibility the ju ry 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 substa ntive 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 tim e of Driscoll's trial. Sawyer v. Smith , 497 U.S. 227, 235 (1990)

. Theref ore, his lawyer's effectiveness cannot be assessed in light o f 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 th e di storting effects of hindsight, to reconstruct the circumstances o f
counse l's challenged conduct, and to evaluate the conduct from th e 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 the y 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 obj ect constituted technically correct statements under Missouri's capital statute and Rule 29.05. At the Rule 27.26 hearing in sta te court, Driscoll's trial counsel testified that, although h e considered the prosecutor's comments

### F or example, when asked whether, at the time of trial, h e 11 

### beli eved that the prosecutor's statement that the judge impose s senten ce 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 ter m 'thirteenth juror' was offensive to me; but I thought his st atement 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 1 2 

### person al policy, in closing arguments, not to interrupt or mak e objections unless it's what I consider to be seriously dammin g [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 refl ect 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 objec tions had he advanced them at trial. Moreover, Driscoll's trial lawyer admitted to a general trial strategy that include d 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
reason able. Because we conclude that Driscoll makes and insufficien t showing that his tria l 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-IncludedOffense of Second Degree Felony Murder

The district court also determined t hat Driscoll's trial counsel was consti tutionallyineffective because he failed to request a jur y instruction on the lesser-included, non-capital offense of second degree felony murder. At Driscoll's trial, the jury re tired with instructions on capital murder, as well as on the non-capital offenses of conventiona l second degree murder (intentional murder without deliberation) an d manslaughter. In his

### -28-

petiti on, Driscoll asserts that his counsel's failure to request th e addi tional instruction constituted ineffectiveness in light of Beck v

. Alabama , 447 U.S. 625 (1980) (holding that the death penalty may not b e imposed when the jury is prohibited from conside ring 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 "thir d option" besides finding the defendant guilty or not guilty of capita l 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 hel d unconstitutional an Alabama statute that prohibited lesser-included offens e instructions in capital cases. As the Court later explained:

Our fundamental concern in [ Beck ] was that a jur y convinced that the defendant had committed some violen t crime but not convinced that he was guilty of a capita l crime might nonetheless vote for a capital conviction if the on ly alternative was to set the defendant free wit h no p unishment at all. . . . We repeatedly stressed th e all-or-nothing nature of the decision w ith which the jury was presented.

Schad v. Arizona , 501 U.S. 624, 645 (1991) (internal quotation an d cit ations omitted). As long as it considers a "third option," th e reliability of the jury's capital murder convict ion will not be diminished the way it is when th e jury is forced into an all-or-nothing choice. Id.

This case, like Schad , does not implicate the central concern o f Beck because t he jury did not face an all-or-nothing choice. In addition t o
ca pital murder, the jury considered the lesser-included, non-capita l 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 individual s stabbed Tom Jackson." Hr'g Tr. at 63. During his closin g argume nt, Driscoll's lawyer argued that the state had failed t o meet i ts burden of proof and that Driscoll was being used as a scapegoat for the murder of a corrections officer. At one p oint he explained to the jury: "Ordinarily, at this stage of the closing argument, the defense attorney is supposed to talk about rea sonable 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 convictio n of a lesser offense. This fact explains his 13 lawyer's strategic ch oice not to request an instruction on the additional lesser -included offense of second degree felony murder which would hav e necessarily emphasize d Driscoll's admitted role in the riot. We conclude that hi s counsel acted reasonably; as a consequence, Driscoll was no t denied effective counsel by the omission. Because Driscoll receive d ef fective assistance with respect to the challenged instructions, w e reverse the district court.
E. Remaining Claims

The distr ict court found two additional bases to support Driscoll's claim tha t he was denied due process: (1) the trial court failed t o ins truct the jury, sua sponte, on the lesser-included offense of secon d degree felony murder; and (2) the trial court allowed the state to offer improper rebuttal testimony. We reverse the district court on bot h grounds

. The first of these claims is disposed of by our discussion o f Driscoll's trial counsel's performance with respect to the jur y instruct ions, supra , Section III(D). The court had no due proces s obligation to submit a particular lesser-included offense instruction to the jury. With respect to the second contention, Missouri law provide s that the scope of rebuttal testimony is left to the sound discretion of th e 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 othe r respects, supra n.2, we reject the claims raisedby Driscoll in his crossappeal.

IV. CONCLUSION

We affirm the district court's order, in part, concluding that a writ of h abeas corpus should issue on three independent bases: (1 ) Driscoll was denied the effective counsel guaranteed by the Sixth Amendmen t because his lawyer allowed the jury to retire with the factually inaccurat e impression that the victim's blood was possibly on Driscoll's knife; (2) his trial counsel was also ineffective for failing to impeach a stat e eyewitness using his prior inconsistent statements; and (3) th e prosecutor's repeatedstatements to the jury impermissibly diminished the jury's sense of responsibility for its sentence of death and rendere d Driscoll's death sentence infirm under the Eight h Amendment. The district court shall vacate Driscoll's conviction and sentence and order hi m rel eased unless the state commences proceedings to retry him within 12 0 days.

We revers e the district court's order, in part, because we conclude that t he following challenges to Driscoll's conviction do not warran t habeas corpus relief: (1) Driscoll's trial counsel was ineffective fo r 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-include d offense of second degree felony murder; (3) the trial court denied Driscol l 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 rebutta l 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 op inion and in its judgment. I agree that Driscoll's defens e counsel's performance at trial with respect to t he 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 th e officer. I am also of the view that there is a reasonable probability tha t but for counsel's def icient performance, the result in the guilt phase of Driscoll's case would have been different. Moreover, and after considerin g the total ity of the evidence, because of the crucial nature of thi s exculpatory evidence, my confidence in the outcome of the case is seriousl y undermined to the ext ent 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).

Beca use I agree that Driscoll is entitled to a new trial, my respectful disagreements with the court's analys is and opinion with regard to Dris coll's Caldwell claim and with his claim concerning the cross

examination of the witness Joseph Vogelpohl (con tained in Parts III(B) and III(C)(1) of the opin ion) do not require explication except to say that I do not believe Driscoll has ever asserted the st and-alone Eighth Amendment Caldwell claim upon which the court today grants him relief. The Caldwell claim has always beenmade as a part of Driscoll's ineffective assistance of counsel claim, and as a claim that the state trial court denied him due proces s by not admonishing the prosecutor sua sponte concerning th e complained-of comments. As indicated, I agree with the court's

### -32-

conc lusion that Driscoll's trial counsel could not be constitutionall y ineffe ctive for not making a Caldwell objection before Caldwell wa s decided.

A true copy.

Attest:

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