Robert Driscoll v. Paul Delo

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.
 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§ 565.001 (1978) (repealed effective October 1, 1984) in connection with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.1 On December 6, 1984, the jury recommended that
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

1
Two other inmates, Rodney Carr and Roy Roberts, were also
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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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

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process violations.2 The court determined that Driscoll received
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.

2
The district court either dismissed or rejected the rest of
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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 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

3
Later, after quieting the ensuing disturbance, investigators
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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 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

bloody knives were lost.

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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 cross-
examination 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

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detected on Jackson's dress boots.4 Considering the circumstances as a
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.

4
We also note that with respect to some of the items of
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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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

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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.5 In fact, counsel never made
the jury aware of Vogelpohl's prior statements. Driscoll's trial counsel
subsequently testified that this omission was not a matter of trial
strategy.6 Moreover, we

5
On appeal, the state argues that we are bound, under 28
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).
6
At Driscoll's Rule 27.26 hearing in state court, his trial
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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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

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.

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 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.7 We agree with the district court that
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

7
Besides Vogelpohl and Ruegg, the only inmate to actively
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.

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 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

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because the judge can simply overrule their decision.8 Driscoll's

8
The following references, although certainly not exhaustive,
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

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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

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).
9
Driscoll's trial commenced in state court on November 26,
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).

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22
prosecutor's statements were impermissible because they gave the jury the
false sense that the responsibility

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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

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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

10
Although Missouri Supreme Court Rule 29.05 technically vests
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 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.

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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

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"offensive," he believed them to accurately reflect the law and he felt he
had no basis on which to object.11 We have no reason to believe that the
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.12 We must conclude that counsel's
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

11
For example, when asked whether, at the time of trial, he
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.
12
At the Rule 27.26 hearing trial counsel stated: "[I]t's my
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.

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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

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

13
As Driscoll's counsel later testified, his strategy at trial
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.

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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 cross-
appeal.

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

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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 cross-
examination 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

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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.

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