State of Missouri v. Jesse Driskill , 2015 Mo. LEXIS 26 ( 2015 )

SUPREME COURT OF MISSOURI
en banc
)
STATE OF MISSOURI, )
)
Respondent, )
)
v. ) No. SC93882
)
JESSE DRISKILL, )
)
Appellant. )
APPEAL FROM CIRCUIT COURT OF LACLEDE COUNTY
Honorable Kenneth M. Hayden, Judge
Opinion issued March 31, 2015
Jesse Driskill (hereinafter, “Driskill”) was found guilty of two counts of first-
degree murder, section 565.020, RSMo 2000,1 one count of forcible rape, section
566.030, one count of forcible sodomy, section 566.060, and five counts of armed
criminal action, section 571.015. Consistent with the jury’s recommendations, Driskill
received two death sentences, a consecutive fifteen-year term of imprisonment on the
burglary count, and seven consecutive life sentences on the remaining counts. This Court
has exclusive jurisdiction. Mo. Const. art. V, sec. 3. The judgment is affirmed.
1
All further statutory references herein are to RSMo 2000.
Factual Background
On July 25, 2010, Driskill and Jessica Wallace (hereinafter, “Wallace”) were at
the Prosperine River Access on the Niangua River. Together, they did drugs and later
“ended up having sex.” Driskill and Wallace were interrupted by a police officer.
Driskill ran off into the woods with his clothes and a gun. Wallace spoke to the police
officer and returned home.
Contemporaneously, J.W. and C.W. (collectively, hereinafter, “the victims”) were
at their home, located approximately one and one-half miles from the Prosperine River
Access. J.W. was 82 years old; C.W. was 76. The victims were celebrating their fifty-
ninth wedding anniversary. They were due to return to Highlandville, Missouri, 2 the next
day.
When the victims never returned to Highlandville, family members became
worried. Multiple attempts were made to reach the victims by telephone, but without
success. Concerned family members also contacted hospitals to inquire about the
victims, pondering whether they could have had an accident.
On the evening of July 26, the following day, family members arrived at the
country house. When they arrived at the house, the doors were locked and the victims’
vehicle was not present. One relative entered the residence through a window. The
interior was “smoky and smelly.” In the dining room, the relative saw C.W.’s feet
sticking out from under a big pile of smoldering blankets.
2
The victims’ permanent residence was in Highlandville with family members.
The relative opened the front door and told the victims’ son to come inside.
Together, they found J.W. underneath another pile of blankets with chairs piled on top of
him. There were pools of blood near the victims’ heads. They called the police.
When the police officers arrived, they found no signs of forced entry. There was
an odor of accelerant near the victims. C.W. had burn marks around the top part of her
body. Paper towels had been wadded up and burned in her groin area. There was a clear
fluid and blood draining from her vaginal and anal areas. C.W. had a blackened area
beneath both eyes and a wound above her right eyebrow. J.W. was naked, except for his
shoes, and there was a plastic bag over his head. A large amount of blood had drained
out of the bag and soaked the carpet beneath his head. There was a wound on his face.
C.W.’s purse was emptied on the floor. There was a can of gasoline in the hallway.
While police officers were conducting their investigation in the victims’ home, they
received reports of a burning vehicle near Conway, Missouri.
Meanwhile, Driskill called Wallace, telling her that he needed a ride. Driskill
called her again, asking to be picked up on Highway N in Conway. Wallace drove to
meet Driskill but had difficulty locating him. She drove up and down the highway a
couple of times and stopped at a gas station. She saw smoke in the distance and first
responders heading toward the smoke. She eventually went home without locating
Driskill.
At approximately 10:45 p.m., Driskill went to Hannah’s General Store in Conway
to charge his cell phone, but there was no charger. Driskill then went to a nearby Budget
Inn, asking to use its telephone. Driskill reached Jessica Cummins (hereinafter,
3
“Cummins”), and he asked her to come get him. Cummins agreed and met Driskill at the
Budget Inn.
During the drive, Driskill kept mumbling to Cummins. He said he had “shot
someone” and that he “messed up really bad.” Cummins also thought he said he had
“shot up” some drugs.
About 11:33 p.m., a highway patrol sergeant went to the scene of the burned
vehicle, located near the county line of Laclede and Dallas counties. The sergeant
recovered the license plate from the vehicle and discovered the vehicle belonged to the
victims.
Cummins dropped Driskill off a little after midnight at Codi Vause’s (hereinafter,
“Vause”) house in Lebanon, Missouri. Driskill appeared anxious and exhausted, saying
he “needed some help,” indicating the authorities were after him. Driskill stated he
needed new clothes and that he had killed a couple of people.
At some point, Driskill called Wallace and told her he committed a home invasion,
robbery, and a double homicide. Wallace drove to Vause’s house. Driskill explained to
the group that an elderly couple caught him going through their shed or garage and that
he murdered them. Driskill further stated that he ordered them into their house while
holding up his gun. Inside the victims gave Driskill money, but Driskill said it was not
enough. Driskill then shot J.W., told C.W. to bend over, and raped her. He shot C.W. in
4
the face, but she tried to get away, so Driskill shot her two more times and “put a plastic
bag down her throat and a pillow over her head.” 3
Driskill detailed how he attempted to clean up the evidence. Driskill said he
shaved C.W.’s “pussy” and “poured bleach inside of her.” Driskill put newspaper in her
vaginal area, poured gasoline on her, and lit it. Driskill then used five gallons of gasoline
to burn the house. He took the victims’ vehicle, which he later burned. Driskill said his
shoes were filled with blood.
After listening to Driskill, Wallace left and went to a store where a friend worked.
Wallace was upset and crying. A police officer at the store asked her what was wrong.
Wallace recounted Driskill’s story to the police officer.
Cummins then returned to Vause’s home. Driskill was washing out his shoes in
the kitchen sink. Driskill changed his clothes and directed Vause to get rid of the clothes
he had been wearing. Vause put the clothes into a trash bag. Driskill fell asleep on the
couch. The others told Cummins what Driskill told them; they decided to call the police,
and they each provided a statement.
On July 27, at approximately 1:45 a.m., law enforcement officers arrested Driskill
while he was sleeping on the couch at Vause’s home. Driskill awoke and resisted his
arrest. During the arrest, Driskill’s head hit a coffee table, resulting in a laceration.
Driskill continued to resist and was tasered. The officers finally handcuffed Driskill and
3
The timing of whether Driskill raped C.W. prior to killing her or whether he killed her
prior to raping her is unclear from the record.
5
took him to the hospital for treatment. The officers also seized the trash bag containing
Driskill’s clothes.
Several hours later, law enforcement officers executed a search warrant to collect
“DNA, hair samples, anything that would have been involved with [] Driskill or the
homicide.” They conducted a gunshot residue test. They collected blood stains from
Driskill’s hands. They seized an unlabeled pill bottle and found a pack of cigarettes in
his clothes that had the same “run number” as ones at the victims’ home. They also
conducted a sexual assault kit on Driskill.
Both of the victims’ bodies were autopsied. C.W. had extensive burns on her face,
head, back, and legs. The burns were direct thermal injuries, indicating the fire was in
constant contact with her skin. There were burnt paper towels and calendar pages
between her legs. There was a gunshot wound that traveled along her jawline, exited her
neck, and reentered her shoulder. C.W. also was shot above the left eye. This shot was
instantly incapacitating and fatal; it was fired from “near contact” or less than an inch
away. C.W. had a laceration along her right eyebrow from blunt trauma, and her skull
was fractured beneath that laceration. Additionally, C.W. had injuries consistent with
sexual assault. There were bruises and tears at the entrance to C.W.’s vagina from
penetrating injuries. There were also two small tears at the entrance to C.W.’s rectum.
During the autopsy of J.W., a wadded-up plastic bag was found in his throat. J.W.
had a gunshot wound that indicated a bullet entered his right cheek, went through his
tongue and throat, exited his neck, and lodged in his shoulder. While this gunshot wound
6
was potentially fatal, J.W.’s cause of death was determined to be asphyxiation due to the
plastic bag.
The vaginal swabs from C.W. were subjected to DNA analysis. The first swab
produced a mixture from two individuals, C.W. and Driskill. J.W. was eliminated as a
contributor to the DNA mixture. Additional testing revealed that it was 94.97 billion
times more likely that the mixture was produced by C.W. and Driskill than by C.W. and
some other unknown person.
Procedural Background
On July 27, 2010, the state filed a complaint and subsequently charged Driskill by
amended information with two counts of first-degree murder, one count of first-degree
burglary, one count of forcible rape, one count of forcible sodomy, and five counts of
armed criminal action. On November 1, 2010, the state gave notice it intended to seek
the death penalty.
Pre-trial Proceedings
In July 2013, Driskill’s counsel advised the trial court that Driskill suffered from
“anxiety disorder” and “intermittent explosive disorder.” Defense counsel then
requested, should Driskill believe he would have a panic attack, that he be permitted to
leave the courtroom and participate in part of proceedings via a closed-circuit television.
The trial court questioned Driskill regarding his counsel’s request. Driskill confirmed
that he wanted to be able to leave the courtroom, if he felt he would have a panic attack.
On August 14, 2013, Driskill’s counsel again requested the trial court
accommodate Driskill by allowing him to remove himself from the courtroom and
7
observe the proceedings by closed-circuit television if he felt he was about to have a
panic attack. At that time, Driskill’s counsel advised the trial court that it retained an
expert (hereinafter, “Dr. Gruenberg”) who determined in May 2013, that Driskill was
incompetent to stand trial without being medicated. Driskill’s counsel then disclosed
Driskill was evaluated by another expert (hereinafter, “Dr. Fucetola”) in July 2013, who
determined that Driskill was competent to stand trial without being medicated. Driskill’s
counsel stated that “we may have to ask for a competency evaluation in the middle of
trial.”
Voir dire
During voir dire on August 14, 2013, Driskill’s counsel informed the trial court
that Driskill needed to leave the courtroom. Accordingly, the trial court called a recess
and allowed Driskill to leave. Driskill’s counsel notified the trial court that Driskill had
suffered a panic attack outside the courtroom and did not “think that he [could]
participate in the trial right now at this moment meaningfully.”
Driskill was escorted to a cell. When he entered the cell, a deputy observed him
punch the wall, appear to be red in the face, crying, rubbing his head, and kneeling over
as if his stomach were hurting. A second deputy reported Driskill had been sick.
Driskill’s counsel requested a competency examination. The trial court inquired
as to the results of Driskill’s two previous examinations. Driskill’s counsel informed the
trial court that, while Dr. Fucetola’s examination was more proximate in time, Dr.
Fucetola could not give an opinion as to whether during the middle of trial Driskill would
be competent if he suffered a panic attack. The trial court noted that if Driskill were
8
evaluated again in jail, the examination would be no different in that he would not be
evaluated at the time of trial, and it denied the request for another competency evaluation.
After Driskill calmed down, defense counsel spoke briefly with him. Defense
counsel reported to the trial court that she did not have “a really good conversation with
him.” Defense counsel believed Driskill was not able to participate actively in trial.
Further, defense counsel requested a recess for the day with the accommodation of
allowing Driskill to participate by closed-circuit television on the following day. The
trial court agreed, recessing for the day and allowing Driskill to participate via closed-
circuit television the following day. Driskill’s counsel clarified that the request for
participation via closed-circuit television was in lieu of the motion for a competency
evaluation because the trial court had overruled the motion for a competency evaluation.
On August 15, 2013, at the trial court’s request, Driskill admitted the evaluations
of Drs. Gruenberg and Fucetola into the record. Dr. Gruenberg’s report dated May 13,
2013, concluded that Driskill was “incompetent for trial without being placed on
Neurontin.” Dr. Fucetola’s examination conducted on July 13, 2013, concluded that
Driskill “does have the adequate capacity to appreciate his own legal situation, he has a
rational understanding of the legal situation, he has an adequate factual understanding of
the legal system and process of adjudication and the capacity to assist his own counsel in
his defense.”
The trial court questioned Driskill, who was participating in the proceedings via
closed-circuit television. The trial court inquired as to whether Driskill was able to hear
the proceedings and how he was feeling. Driskill confirmed that he was able to hear the
9
proceedings and that he was calmer; there was nothing prohibiting him from
understanding the proceedings. Driskill asked to be excused from the courtroom for the
day, and he understood he had a right to be present. Further, Driskill stated he had no
questions and did not need additional time to speak with his counsel. Driskill
corroborated the fact that he wanted to participate via closed-circuit television for the
day’s proceedings and he had not been threatened or promised anything to induce him to
participate by the closed-circuit television system. The trial court found that Driskill was
calm, and there was no evidence before the court that he was suffering from any duress.
Driskill stated that he hoped to return to the courtroom on the following day.
Defense counsel reiterated the belief that Driskill was not competent to proceed
without medication. The trial court directly questioned Driskill, who stated he was
thinking clearly and nothing was preventing him from communicating with his counsel or
assisting in his defense. Driskill confirmed he had a telephone so he could communicate
with his counsel, either by calling or texting. The trial court observed, and Driskill
confirmed, that he was calmer than the previous day.
On August 16, 2013, Driskill was present in the courtroom. There were no issues.
Guilt phase
On the fourth day of trial, August 19, 2013, Driskill was present in the courtroom
when the guilt phase of his trial began. Driskill’s counsel requested a competency
evaluation and presented an e-mail from Dr. Fucetola, which was received over the
weekend. Dr. Fucetola’s statement indicated that based on his understanding of the
10
events during voir dire, in the moments before, during, and after a panic attack, Driskill
may not be able to assist his counsel adequately.
There were no issues on the fourth day of trial. At the end of the day, defense
counsel reported Driskill was able to converse with her, answer questions, and assist in
his defense. Driskill’s counsel had no reason to believe he was “under any type of duress
or mental disability” during the day.
On the fifth day of trial, August 20, 2013, Driskill was present in the courtroom.
The state concluded presenting its case. There was no indication Driskill was not
competent to stand trial.
Driskill decided he would not take the stand to testify. Driskill communicated his
decision with counsel and gave rational answers when the trial court questioned him.
The trial court inquired as to whether Driskill understood his right to testify and whether
anyone threatened or coerced him to waive his right. Driskill provided coherent and
rational responses to this inquiry. Driskill confirmed the decision not to testify was his
alone. Driskill stated, “I want to testify, but I just know I can’t. I mean I’m not good
with people.”
On August 21, 2013, the sixth day of trial, the trial court again questioned Driskill
regarding whether he wanted to testify. Driskill’s counsel presented an argument,
believing Driskill refused to testify for fear that he would have a panic attack while
testifying. There were no issues with Driskill’s anxiety level during his counsel’s
presentation of evidence or during closing arguments. Driskill’s counsel confirmed this,
stating that Driskill was able to assist in his defense during this portion of the trial.
11
During the trial court’s reading of the verdict, Driskill asked to be escorted from
the courtroom. Driskill requested to be excused after the trial court read the first seven
guilty verdicts. The trial court granted a recess and requested his counsel speak with
Driskill to determine whether he wanted to be present for the reading of the remaining
verdicts. During this recess, there was no evidence presented that Driskill was suffering
from another panic attack. Driskill decided that he did not wish to be present for the
reading of the remaining verdicts. The jury found Driskill guilty on all counts.
Penalty phase
The penalty phase of Driskill’s trial began on August 22, 2013, the seventh day of
trial. Driskill’s counsel stated that he was able to assist the defense, but he was in a
“somewhat of a heightened state of anxiety.”
During the state’s opening argument, Driskill asked to be excused from the
courtroom. The trial court granted his request, holding the court in recess. When the
court reconvened, and out of the presence of the jury, the trial court spoke with Driskill.
The trial court inquired as to whether Driskill believed that he would have an “episode”
during the presentation of the state’s evidence. Driskill stated, “I know I’ll snap out.”
Focusing only on the time period for the state’s presentation of evidence, the trial
court questioned Driskill as to whether he wished to remain in the courtroom. Driskill
indicated he did not want to remain physically in the courtroom because he felt uneasy.
The trial court offered Driskill the opportunity to participate via closed-circuit television
as he did on the first day of voir dire. Driskill declined, stating that he did not like it.
Further, he did not want to watch the proceedings remotely. Driskill requested to be
12
excused. The trial court inquired as to whether anyone had threatened him and he
understood he had the right to be present. The trial court excused Driskill for the
presentation of the state’s evidence and indicated that the issue would be revisited later
that day.
Driskill’s counsel requested a competency evaluation, a mistrial, or a recess for an
undetermined amount of time until Driskill believed he could be in the courtroom without
feeling anxious. The state opposed Driskill’s requests as he appeared calm during the
trial court’s questioning and was able to answer all questions coherently. Driskill’s
counsel disagreed, stating that Driskill’s legs were shaking, he was wringing his hands,
and he was perspiring a little bit. The trial court asked whether there was any new
evidence it should consider it support of the claim for a competency evaluation. Driskill
had no additional evidence to support his claims of a diminished mental capacity.
Driskill asked to be excused from the courtroom before the jury returned.
After the state finished presenting its penalty phase witnesses, Driskill returned to
the courtroom outside the presence of the jury. Driskill reaffirmed his desire to not be
present for the presentation of the evidence on his behalf, and he asked to be excused
again. The trial court inquired again as to whether anyone had threatened him and
whether he understood he had the right to be present. Driskill reaffirmed that he did not
wish to participate via closed-circuit television or watch the proceedings remotely. The
trial court explained that, as it planned to take a mid-afternoon break, his counsel would
have the opportunity to visit with him then, and he would have the opportunity to return
13
to the courtroom if he desired. The trial court also noted that Driskill did not appear to be
under duress but noticed his leg bouncing a bit.
After Driskill’s counsel finished presenting evidence on his behalf, the trial court
took another recess so it could discuss with Driskill whether he wanted to testify in the
penalty phase. Driskill indicated that he did not want to testify, he understood he had the
right to remain silent, he had ample time to discuss the issue with counsel, and no one
had threatened him regarding his decision. Driskill chose to remain in the courtroom
during the instruction conference and penalty phase closing arguments. Following the
closing arguments, Driskill asked to be excused.
Driskill returned to the courtroom while the trial court excused the alternate jurors.
Driskill was also present when the trial court read the jury’s final verdicts and during the
polling of the jurors.
The jury recommended death sentences for each count of first-degree murder. In
regard to C.W.’s murder, the jury found nine statutory aggravating circumstances. In
regard to J.W.’s murder, the jury found eight statutory aggravating factors. On
November 5, 2013, the trial court sentenced Driskill to death for each count of first-
degree murder. Further, the trial court imposed consecutive sentences of fifteen years’
imprisonment for burglary and life imprisonment for each of the other offenses. Driskill
appeals.
Standard of Review
This Court reviews a sentence of death on direct appeal for prejudice, not just
mere error. State v. Anderson, 306 S.W.3d 529, 534 (Mo. banc 2010). This Court will
14
reverse a trial court’s decision only when an alleged error is so prejudicial that the
defendant was deprived of a fair trial. State v. Johnson, 284 S.W.3d 561, 568 (Mo. banc
2009); State v. McFadden, 391 S.W.3d 408, 417 (Mo. banc 2013). Prejudice exists when
there is a reasonable probability that the trial court’s error affected the outcome at trial.
McFadden, 391 S.W.3d at 417. Evidence admitted at trial is reviewed in the light most
favorable to the verdict and is reviewed for an abuse of discretion. Anderson, 306
S.W.3d at 534.
Driskill raises six points on appeal. They are all denied.
Point I: Mental Competency
Driskill alleges the trial court erred in accepting the guilty verdicts and sentencing
him because he was not mentally competent to stand trial. Driskill claims he suffered
from anxiety and panic attacks, which rendered him unable to consult with his counsel
and assist in his own defense. Driskill asserts that, given the evidence presented to the
trial court, he was not competent to stand trial. Accordingly, Driskill believes the trial
court had a duty to stop the trial and order a competency evaluation.
“It has long been accepted that a person whose mental condition is such that he [or
she] lacks the capacity to understand the nature and object of the proceedings against him
[or her], to consult with counsel, and to assist in preparing his [or her] defense may not be
subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903, 43 L.Ed2d
103 (1975). “[T]he failure to observe procedures adequate to protect a defendant’s right
not to be tried or convicted while incompetent to stand trial deprives him [or her] of his
[or her] due process right to a fair trial.” Id. at 172.
15
A trial court “is required to initiate proceedings to investigate the competency of a
defendant ‘whenever a reasonable judge in the same situation as the trial judge would
experience doubt about the defendant’s competency to stand trial.’” State v. Anderson,
79 S.W.3d 420, 432 (Mo. banc 2002) (quoting State v. Johns, 34 S.W.3d 93, 104 (Mo.
banc 2000)); see also section 552.020.2. A trial court’s determination regarding a
defendant’s competency is a factual determination that will be upheld unless there is no
substantial evidence to support it. Anderson, 79 S.W.3d at 433; State v. Whitt, 330
S.W.3d 487, 493 (Mo. App. E.D. 2010); State v. Elam, 89 S.W.3d 517, 521 (Mo. App.
W.D. 2002). “The standard for competence to stand trial is whether the defendant has
‘sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding’ and has ‘a rational as well as factual understanding of the proceedings
against him [or her].’” Zink v. State, 278 S.W.3d 170, 183 (Mo. banc 2009) (quoting
Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824 (1960)).
When reviewing the trial court’s determination, this Court does not weigh the
evidence, but accepts as true all evidence and reasonable inferences that tend to support
the trial court’s findings. Id. A defendant is presumed competent to stand trial and bears
the burden of showing that he or she is incompetent. Section 552.020.8; Anderson, 79
S.W.3d at 432-33. “The trial court has broad discretion in deciding whether to grant a
psychological exam, and is not a mere ‘automaton’ that must grant these motions merely
because they are filed.” State v. Bracken, 382 S.W.3d 206, 212 (Mo. App. E.D. 2012)
(citing United States v. McEachern, 465 F.2d 833, 837 (5th Cir. 1972)).
16
Here, the trial court determined that there was no need for a competency
evaluation during either the guilt or penalty phase of Driskill’s trial. However, Driskill
argues that there were multiple factors presented to the trial court that should have
triggered the trial court’s duty to order a competency hearing. Driskill asserts the factors
presented to the trial court were the findings of the two doctors, Driskill’s panic attack
during voir dire, and his mental health history. Driskill paints a portrait of a mentally
incompetent defendant who is unable to participate in his criminal defense, but this
picture is refuted by the record.
The first request for a competency hearing was made after Driskill had a panic
attack during voir dire. When Driskill knew the panic attack was beginning, he informed
his counsel, who informed the trial court. Immediately, the trial court excused Driskill
from the courtroom. The trial court recessed the proceedings for the rest of the day, and
prior to resuming, the trial court made its own independent inquiry into Driskill’s state of
mind.
At the trial court’s request, Driskill presented the results of two mental
competency evaluations prepared prior to trial by Drs. Gruenberg and Fucetola. Dr.
Gruenberg believed that in May 2013, Driskill was incompetent to stand trial without
being medicated. Dr. Gruenberg’s report concluded that Driskill “understands the
components of the court and the roles of most individuals in the court room as well as the
basic court room proceedings, however he is likely unable to appropriately assist in his
defense during trial, in addition to possibly becoming explosive and disruptive during the
trial proceedings.” Dr. Fucetola’s examination in July 2013, determined that based on his
17
clinical interview of Driskill, review of his records, and the standardized testing he
performed, Driskill “has an adequate factual understanding of the legal system and
process of adjudication and the capacity to assist his own counsel in his defense.”
The trial court observed Driskill in the courtroom and questioned him as to his
state of mind, seeking to determine whether he was able to assist in his defense.
Additionally, the trial court questioned defense counsel as to whether Driskill was able to
assist in his defense. The fact that the trial court chose to believe one expert’s evaluation
does not diminish this determination. The trial court had a rational basis to believe a
competency examination that was closer in time to the trial and contained a series of
standardized tests, which were not included in the previous report. A “mere
disagreement among experts does not necessarily indicate error on the part of the trial
court. On the contrary, it is the duty of the trial court to determine which evidence is
more credible and persuasive.” State v. Baumruk, 280 S.W.3d 600, 609 (Mo. banc 2009)
(quoting Anderson, 79 S.W.3d at 433); see also Helton v. Director of Revenue, State of
Mo., 944 S.W.2d 306, 310 (Mo. App. W.D. 1997) (stating that when there is a conflict in
the evidence the fact finder “is entitled to believe all, none, or any part of the testimony,
including testimonial records.”).
After receiving all of this information, the trial court determined that an additional
competency evaluation was not necessary. Driskill had a factual understanding of the
proceedings. Driskill and his counsel confirmed Driskill had the present ability to consult
with his counsel and assist in his own defense. See Zink, 278 S.W.3d at 183.
18
Any time that Driskill felt he was unable to remain in the courtroom, he was
accommodated. The trial court continually asked Driskill how he felt and whether he
was able to assist his counsel. There was no indication that Driskill was unable to
understand the proceedings against him or assist in his own defense.
During the penalty phase of trial, Driskill stated that he was “uneasy” at times and
that he did not want to remain in the courtroom. It is axiomatic that a person facing a
sentence of death may become uneasy; it would be illogical to not be uneasy at such a
time.
While Driskill points to various occurrences at trial, which he believes should
have called into question his competency, none are persuasive. The trial court relied
upon a report from one of Driskill’s experts, and it extensively questioned both Driskill
and his counsel regarding his state of mind. Throughout the guilt and penalty phases of
trial, the trial court took adequate precautions to ensure that when Driskill believed he
would suffer a panic attack, he was able to leave the courtroom. When Driskill actually
suffered one panic attack, the trial court recessed until it ensured Driskill had calmed
down and was able to resume assisting in his defense.
Driskill presented no additional evidence that he was unable to understand the
proceedings against him or was unable to participate in his own defense at any point
during the guilt or penalty phases of his trial. There was substantial evidence supporting
the trial court’s finding that Driskill was competent to stand trial based upon Driskill’s
own expert reports and the trial court’s continual questioning of Driskill and his counsel.
19
Driskill failed to meet his burden to demonstrate he was not competent to stand trial;
there was no error.
Point II: Right to be Present
Driskill claims the trial court erred in allowing phases of his trial to proceed
without his physical presence in the courtroom. Driskill states that he could not waive his
right to be present at his trial, and even if he could, any waiver was not voluntary because
he could not remain in the courtroom without suffering panic attacks in the presence of
the jury.
Underlying the entirety of Driskill’s argument is the premise that he was
incompetent throughout the entirety of his trial and he should not have been tried. This
proposition has been rejected. This Court has affirmed herein that Driskill was able to
understand the proceedings against him and assist in his own defense.
Driskill asserts that he objected repeatedly to appearing by closed-circuit
television because the trial court denied his motion for a competency hearing. However,
the record demonstrates that Driskill never presented an objection to the trial court that he
was denied his right to be present.
“To properly preserve an issue for an appeal, a timely objection must be made
during trial.” State v. McFadden, 369 S.W.3d 727, 740 (Mo. banc 2012) (quoting State v.
Cooper, 336 S.W.3d 212, 214 (Mo. App. E.D. 2011)). The objection at trial must be
specific and made contemporaneously with the purported error. State v. Shockley, 410
S.W.3d 179, 204 n.4 (Mo. banc 2013). To preserve a constitutional claim of error, the
claim must be raised at the first opportunity with citation to specific constitutional
20
sections. State v. Tisius, 362 S.W.3d 398, 405 (Mo. banc 2012). On appeal, the
objection presented to the trial court may not be broadened. Id.
Accordingly, Driskill’s challenge to his right to remain present in the courtroom
on the grounds that it violated his constitutional rights can be reviewed only for plain
error. Rule 30.20. “Plain error is found when the alleged error ‘facially establish[es]
substantial grounds for believing a manifest injustice or miscarriage of justice occurred.’”
State v. Dorsey, 318 S.W.3d 648, 652 (Mo. banc 2010) (quoting State v. Salter, 250
S.W.3d 705, 713 (Mo. banc 2008)).
Driskill ponders whether he could waive the right to be present at trial. “The right
to be present at critical stages of trial is guaranteed by the United States Constitution, the
Missouri Constitution, and Missouri statutory law.” Johns, 34 S.W.3d at 116. The
“broad dicta … that a trial can never continue in the defendant’s absence [has] been
expressly rejected.” Illinois v. Allen, 397 U.S. 337, 342, 90 S. Ct. 1057, 1060, 25 L. Ed. 2d
353 (1970) (internal citations omitted); see also State v. Drope, 462 S.W.2d 677, 682
(Mo. 1971); Johns, 34 S.W.3d at 116. Driskill could waive his right to be present.
“A waiver is ordinarily an intentional relinquishment or abandonment of a known
right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed.
1461 (1938). When a defendant choses to waive a constitutional right, the waiver must
be voluntarily, knowingly, and intelligently made. Bracken, 382 S.W.3d at 211. “[T]he
law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the
defendant fully understands the nature of the right and how it would likely apply in
general in the circumstances—even though the defendant may not know the specific
21
detailed consequences of invoking it.” United States v. Ruiz, 536 U.S. 622, 628, 122 S. Ct.
2450, 2455, 153 L. Ed. 2d 586 (2002) (emphasis in original) (determining whether a guilty
plea was made voluntarily).
This Court has found that waivers pursuant to Rule 27.01(b) require the record to
be unmistakably clear. State v. Baxter, 204 S.W.3d 650, 654-55 (Mo. banc 2006).
Accordingly, the “best practice for a trial court is to question the defendant personally, on
the record, to ensure that the defendant understands the right, understands what is lost in
the waiver, has discussed the issue with defense counsel, and voluntarily intends to waive
the right.” Id. at 655. Following this procedure, a defendant later has no argument to
later declare the waiver was ineffective. Id. Similarly, in the context of a defendant
providing a knowing and intelligent waiver of the right to counsel, this Court stated that
the trial court must “engage in a colloquy with the defendant to make certain the
defendant understands ‘exactly what rights and privileges he [or she] is waiving, as well
as the dangers associated with waiving constitutional rights.’” State v. Davis, 318
S.W.3d 618, 630-31 (Mo. banc 2010).
Missouri courts have found that a defendant may purposefully absent him or
herself from the courtroom and thereby, waive the right to be present, even without a
statement on the record. See State v. Bowens, 964 S.W.2d 232, 239 (Mo. App. E.D.
1998); Bracken, 382 S.W.3d at 211-12; Drope, 462 S.W.2d at 681. Further, this Court
has recognized that a defendant may not be inclined to remain in the courtroom during
certain penalty phase testimony given the fact that it would concern topics that the
22
defendant may find sensitive, including childhood abuse, educational levels, and mental
abilities. Johns, 34 S.W.3d at 106.
In this case, the trial court repeatedly questioned Driskill on the record regarding
whether he wished to remain present in the courtroom. Driskill requested leave to not be
present, and the trial court, after confirming this was Driskill’s voluntary choice, allowed
him to remove himself from the courtroom proceedings. Any time Driskill decided that
he did not want to remain in the courtroom, he executed a valid waiver on the record of
his right to be present.
Driskill claims that, because he was not present in the courtroom, the jury was left
to speculate. He states the jury could have not fully appreciated the gravity of its role in
sentencing a person to death and could morally disengage from its decision. Driskill also
asserts that the jury could come to nefarious conclusions in reasoning why he was not in
the courtroom. Any unintended consequences that may have resulted from Driskill’s
request to remove himself from the courtroom does not affect the validity of his waiver.
See Ruiz, 536 U.S. at 628, 122 S.Ct. at 2455.
Driskill fails to present any argument or reason why he was prevented from
appearing or that his absence was anything other than intentional. Prior to every instance
when he did not appear in the courtroom, Driskill made a clear waiver on the record as to
his absence. The trial court did not plainly err in granting Driskill’s requests to not
remain in the courtroom.
23
Point III: Right to Testify
Driskill avers the trial court erred in finding he voluntarily waived his right to
testify during both the guilt and penalty phases of his trial. Driskill claims that any
waiver was involuntary because Driskill told the trial court he wanted to testify but he felt
he could not due to his untreated mental illness.
“A criminal defendant has a constitutional right to testify in his own behalf at
trial.” Davis, 318 S.W.3d at 637; Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 97
L. Ed. 2d 37 (1987). “The decision to testify solely rests with the defendant ….” State v.
Edwards, 173 S.W.3d 384, 386 (Mo. App. E.D. 2005) (quoting Rousan v. State, 48
S.W.3d 576, 585 (Mo. banc 2001)). However, the defendant may knowingly and
voluntarily waive the right to testify. Davis, 318 S.W.3d at 637.
Driskill’s contention again is predicated upon the erroneous underlying premise
that he is incompetent to stand trial. Driskill argues that he was coerced into waiving his
right to testify because he was denied the benefit of being medicated. Hence, Driskill
claims it was impossible for him to testify without having a panic attack.
Driskill asserts on appeal that he wanted to testify, but that he was compelled to
waive this right. Driskill claims the trial court was informed of this coercion when he
informed the trial court, “I want to testify, but I just know I can’t. I mean I’m not good
with people.” Driskill understood he had the right to remain silent, and there would be no
inference drawn from his silence. The trial court questioned Driskill multiple times,
seeking to verify that no one had threatened or coerced him into choosing to waive his
24
right to testify. Driskill never altered his decision not to testify or his response that he
was not being threatened or coerced into not testifying.
Driskill analogizes his case to Flemming v. State, 949 S.W.2d 876, 879 (Tex. App.
1997), to support his argument that “physical or mental compulsion may remove the
element of voluntariness from a defendant’s decision to incriminate himself.” In
Flemming, the defendant was arrested after his DNA matched samples recovered from a
rape victim. Id. at 878. After being given his Miranda 4 warnings twice, the defendant
waived his rights and provided a bifurcated statement to a detective. Id. The first portion
of the defendant’s statement was recorded by a tape recorder sitting on the table in plain
view. Id. The detective turned off the recorder, and the defendant continued speaking,
ultimately admitting he had sex with the victim after entering her home. Id. The
detective stepped out of the room, activated a hidden recording device, and returned to
take the second portion of defendant’s statement. Id. The defendant acknowledged he
was aware of his rights, and he did not want his statement to be recorded. Id. The
detective continued the interview, wherein the defendant admitted to consensual
intercourse with the victim. Id.
On appeal, the defendant claimed the trial court failed to suppress the second
portion of his statement because it was involuntary. Id. The Texas court noted that
“[c]riminal defendants … are constitutionally protected only from compulsory self-
incrimination.” Id. at 879. Further, it noted that while a defendant may waive a
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
25
constitutional right, physical or mental compulsion may remove the component of
voluntariness. Id. “The waiver, therefore, must be voluntary in the sense that it is the
product of a free and deliberate choice rather than intimidation, coercion or deception.”
Id.
The Texas court provided examples of impermissible conduct designed to
overcome a suspect’s free will. See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S. Ct. 917,
920, 9 L. Ed. 2d 922 (1963) (finding police officer informing a suspect she would lose
welfare benefits and custody of her children if she did not confess was a form of mental
compulsion), and Spano v. New York, 360 U.S. 315, 323, 79 S. Ct. 1202, 1207, 3 L. Ed. 2d
1265 (1959) (finding it impermissible for a police officer to suggest to a suspect, who is
also a close friend, that the officer’s future in the police department might be in jeopardy
if the suspect did not confess). The Texas court also provided examples of conduct that
did not overcome a suspect’s free will. See Rodriquez v. State, 934 S.W.2d 881, 890
(Tex. App. 1996) (finding it not improper for interrogating officer to tell the suspect that
the victim, on his deathbed, identified the suspect when that event did not occur), and
Fraizer v. Cupp, 394 U.S. 731, 737-38, 89 S. Ct. 1420, 1423-24, 22 L. Ed. 2d 684 (1969)
(finding it permissible for officers to inform a suspect his accomplice provided a
complete confession when there was none). The Texas court concluded that the
defendant’s ignorance of the hidden recording device could not have compelled him to
confess. Flemming, 949 S.W.2d at 879. Accordingly, the detective’s deception was not
coercive and could not have overborn the defendant’s will. Id.
26
Here, Driskill asserts that because he was incompetent to stand trial, the
voluntariness of his waiver was invalid. Driskill’s argument relies on the incorrect
assumption that he was incompetent to stand trial.
The record is devoid of any mental anguish that could lead one to believe Driskill
did not voluntarily relinquish his right to testify or that he was being coerced. Driskill’s
responses to the trial court’s examination were unequivocal, clear, and straightforward.
Driskill even stated that, “I’m not good with people.” There is no indication there was
any coercion on the trial court’s part to force Driskill to waive his right to testify. The
record demonstrates the trial court questioned Driskill on multiple occasions about his
decision not to testify to ensure that Driskill understood his constitutional right.
There is no evidence, and Driskill makes no argument, that there was any coercion
in forcing him to waive his right to testify. Driskill had full knowledge of all of the facts
and circumstances surrounding his right to testify; there was no additional fact or
scenario that would occur should he choose to waive his right to testify. C.f. Lynumn,
372 U.S. at 534 (finding the suspect must confess or lose additional rights) and Spano,
360 U.S. at 323 (finding the suspect must confess or a close friend could lose his
employment).
Finally, while admittedly not preserved in the record, Driskill now argues the trial
court should have made accommodations for him to testify since he suffered from what
he claims was, at the least, a physical disability. Driskill asserts that the trial court was
required to ensure equal access to disabled individuals pursuant to the Americans with
Disabilities Act.
27
Yet, Driskill fails to present any evidence that he was disabled pursuant to any
statutory provision of the Americans with Disabilities Act or that he was denied equal
access to the witness stand. Further, Driskill’s alleged disability of having panic attacks
was known by the trial court and accommodated so that Driskill did not appear in the
courtroom when he suffered from the one panic attack during voir dire. This argument is
specious.
While Driskill expressed some interest in testifying, he consulted with counsel and
voluntarily chose to waive his right to testify. There was no error.
Point IV: Denial of Continuance to be Medicated
Driskill asserts the trial court erred in overruling his motion for a continuance,
failing to order him to be medicated, and proceeding through trial when he was in need of
psychiatric treatment and medication. Driskill claims the denial of medication caused
him to experience such extreme anxiety at trial that he was physically and mentally ill
and he was prevented from participating and assisting his counsel.
The trial court is vested with sound discretion to grant a continuance. State v.
Edwards, 116 S.W.3d 511, 535 (Mo. banc 2003); State v. Christeson, 50 S.W.3d 251,
261-62 (Mo. banc 2001). “Reversal is warranted only upon a very strong showing that
the court abused its discretion and prejudice resulted.” Edwards, 116 S.W.3d at 535.
Again, Driskill’s argument in this point proceeds from the belief that he was
incompetent to stand trial. Driskill asserts the trial court should have ensured he was
medicated so he could participate fully in his trial. Without the medication, Driskill
28
claims he was not able to assist in his defense. This Court has addressed this argument
and found Driskill to be competent to stand trial.
Driskill has failed to make a showing that the trial court abused its discretion in
failing to grant a continuance. When Driskill suffered from his panic attack, the trial
court recessed for the day, thereby allowing Driskill the time he needed to recover.
Further, whenever Driskill felt he needed to leave the courtroom, he was allowed to do
so, and the trial court granted a recess. The trial court made multiple inquiries of Driskill
and his counsel as to whether Driskill was able to proceed with trial and assist in his
defense throughout the entire trial. There is no showing that Driskill was incompetent to
stand trial without being medicated; there was no error.
Point V: Request to View Exhibits
Driskill claims the trial court erred in denying the jury’s request to view all of the
exhibits admitted into evidence during the penalty phase. Driskill asserts the trial court
erred in barring the jury from viewing defense exhibits because they were crucial in
supporting his case for a sentence of life without parole and to rebut the state’s inferences
and arguments. Driskill argues that the failure to send the exhibits to the jury resulted in
a violation of his right to present evidence in mitigation.
During its penalty phase deliberations, the jury sent a note to the trial court stating,
“We would like to see all evidence/submissions during the penalty phase.” The trial
court previously informed the state and Driskill that if exhibits were requested by the jury
either all or none of the exhibits would be provided.
29
Driskill wanted to provide the jury all of the records supporting the testimony of
Drs. Robert Hanlon and William Bernet, two of the witnesses he presented in support of
mitigation. These supporting records were voluminous and contained more than 1,100
pages. However, Driskill objected to providing the jury with the state’s prior conviction
exhibits. Driskill objected to redacting copies of the state’s prior conviction exhibits,
believing it would suggest to the jury that Driskill was guilty of other criminal acts.
Driskill suggested that rather than sending the state’s redacted exhibits, the jury receive a
list of the convictions and accompanying information the state read to the jury. Driskill’s
suggestion, however, was not accepted. Ultimately, the state and Driskill were unable to
arrive at an agreement regarding the exhibits, and, accordingly, the trial court responded
to the jury that “You must be guided by the instructions given and the evidence as you
remember it.” No exhibits were sent to the jury.
“Even where an exhibit is properly admitted into evidence, the decision whether
the exhibit should be sent back to the jury during deliberations remains a matter within
the sound discretion of the trial court.” State v. Roberts, 948 S.W.2d 577, 596 (Mo. banc
1997); see also State v. Barnett, 980 S.W.2d 297, 308 (Mo. banc 1998). An abuse of
discretion occurs only when the trial court’s decision to exclude an exhibit from the
jury’s deliberation was clearly against reason and resulted in an injustice to the defendant.
State v. Wolfe, 13 S.W.3d 248, 257 (Mo. banc 2000), abrogated by Mitchell v. Kardesch,
313 S.W.3d 667 (Mo. banc 2010).
Driskill asserts that his case is analogous to Taylor v. State, 262 S.W.3d 231 (Mo.
banc 2008), and Hutchison v. State, 150 S.W.3d 292 (Mo. banc 2004), abrogated by
30
Mallow v. State, 439 S.W.3d 764 (Mo. banc 2014). However, both Taylor and Hutchison
were cases wherein this Court found trial counsel to be ineffective for failing to present
mitigation evidence available to counsel or information that counsel should have
investigated and introduced. See Taylor, 262 S.W.3d at 249-53; Hutchison, 150 S.W.3d
at 307-08. Taylor and Hutchison are dissimilar to the facts and circumstances
surrounding Driskill’s argument because Driskill’s counsel investigated and introduced
substantial evidence in mitigation.
Here, Driskill claims the trial court abused its discretion in failing to provide only
the documents supporting the testimony of Drs. Hanlon and Bernet, which exceeded
1,100 pages. The trial court committed no error in not providing the jury with a
voluminous, one-sided record.
Point VI: Victim Impact Evidence
Driskill alleges the trial court abused its discretion in overruling his objections and
in admitting excessive victim impact testimony and evidence. Driskill made a continuing
objection as to the testimony of the three relatives and the admission of the photographs
of the victims, seeking “[t]o exclude victim impact evidence.” Driskill claims the state’s
excessive victim impact evidence and testimony overwhelmed the jury with emotion and
encouraged it to weigh the value of his life against the victims’ lives.
Victim impact evidence is admissible under the United States and Missouri
Constitutions. State v. McLaughlin, 265 S.W.3d 257, 273 (Mo. banc 2008). The trial
court has broad discretion to admit whatever evidence it determines may be helpful to the
jury in assessing punishment. State v. Bowman, 337 S.W.3d 679, 691 (Mo. banc 2011).
31
The state is permitted to show the victims are individuals whose deaths represent a
unique loss to society and to their family and that the victims are not simply faceless
strangers. State v. Gill, 167 S.W.3d 184, 195 (Mo. banc 2005); see also McFadden, 391
S.W.3d at 423 (“Victim impact evidence, and related argument about the impact of the
crime upon the victim and victim’s family, is admissible in the penalty phase.”). Victim
impact evidence violates the constitution if it is “so unduly prejudicial that it renders the
trial fundamentally unfair.” State v. Forrest, 183 S.W.3d 218, 225 (Mo. banc 2006).
Three of the victims’ relatives provided victim impact testimony in this case: their
son, their granddaughter, and their granddaughter’s husband. Each provided a picture of
C.W. and J.W.’s long-lasting, loving relationship and a glimpse into their lives since the
time of the victims’ murders. The victims’ granddaughter laid the foundation for
multiple photographs depicting C.W. and J.W. at various times in their lives.
Clearly, victim impact statements are admissible to illustrate the loss to the family.
Gill, 167 S.W.3d at 195. Further, admission of photographs is not per se prejudicial to a
defendant. In comparison, this Court has not found an abuse of discretion in allowing a
jury to view twenty-seven photographs of the victim and his family as part of the victim
impact evidence. Id.
Driskill presents no argument as to how the family’s relatively brief statements of
loss 5 were so excessive and emotionally-charged that his sentencing was rendered unfair.
There was no error.
5
The testimony of the three family members was contained on approximately eighteen
pages of the 1,775 page transcript.
32
Proportionality Review
This Court is obliged to conduct an independent review of all death penalty cases
for proportionality, even when not requested by a defendant. Section 565.035. Section
565.035.3 requires this Court to determine:
(1) Whether the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor; and
(2) Whether the evidence supports the jury’s or judge’s finding of a
statutory aggravating circumstance as enumerated in subsection 2 of section
565.032 and any other circumstance found;
(3) Whether the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime, the strength
of the evidence and the defendant.
(1) Passion and prejudice
After an independent review of the record, this Court does not find that the
sentence of death was imposed under the influence of passion, prejudice, or any other
factor. Driskill has not identified any such factor to this Court, and his allegations of trial
court error are without merit.
(2) Aggravating circumstances
Driskill does not claim that the evidence does not support the jury’s findings
beyond a reasonable doubt as to at least one statutory aggravating circumstance. Section
565.035.3(2). The jury made findings of multiple aggravating circumstances surrounding
both the victims’ murders.
As to C.W’s murder, the jury found multiple statutory aggravating circumstances:
33
1. Driskill had two separate serious assaultive convictions in two different
counties. 6
2. C.W.’s murder was committed while engaged in the commission of
another unlawful homicide of J.W..
3. Driskill murdered C.W. for the purpose of receiving money or another
thing of monetary value from her or another.
4. C.W.’s murder involved depravity of mind and was outrageously and
wantonly vile, horrible, and inhuman.
5. C.W.’s murder was committed while Driskill was engaged in the
perpetration of a burglary.
6. C.W.’s murder was committed while Driskill was engaged in the
perpetration of a robbery.
7. C.W.’s murder was committed while Driskill was engaged in the
perpetration of forcible rape.
8. C.W.’s murder was committed while Driskill was engaged in the
perpetration of forcible sodomy.
As to J.W.’s murder, the jury found multiple statutory aggravating circumstances:
1. Driskill had two separate serious assaultive convictions in two different
counties. 7
2. J.W.’s murder was committed while engaged in the commission of
another unlawful homicide of C.W..
3. Driskill murdered J.W. for the purpose of receiving money or another
thing of monetary value from him or another.
4. J.W.’s murder was committed while Driskill was engaged in the
perpetration of a burglary.
6
The jury found this to be two separate serious assaultive convictions, one for each
county.
7
The jury found this to be two separate serious assaultive convictions, one for each
county.
34
5. J.W.’s murder was committed while Driskill was engaged in the
perpetration of a robbery.
6. J.W.’s murder was committed while Driskill was engaged in the
perpetration of a forcible rape.
7. J.W.’s murder was committed while Driskill was engage in the
perpetration of a forcible sodomy.
“The jury need find only one statutory aggravating circumstance in order to
recommend imposition of the death penalty.” State v. Clay, 975 S.W.2d 121, 145 (Mo.
banc 1998); see also Shockley, 410 S.W.3d at 202. After this Court’s independent
review, there was sufficient evidence supporting the jury’s findings of at least one
statutory aggravating circumstance for each of the victims beyond a reasonable doubt.
Further, Driskill fails to assert any error in submission of these statutory aggravators.
(3) Similar cases
This Court’s independent review reveals that imposition of the sentence of death
was not excessive or disproportionate to the penalty imposed in similar cases, considering
both the crime and the defendant. This Court has affirmed sentences of death in cases
when the defendant has murdered a victim in the course of, or just after, raping that
victim. Davis, 318 S.W.3d 618; Dorsey, 318 S.W.3d 648; McLaughlin, 265 S.W.3d 257;
State v. Kinder, 942 S.W.2d 313 (Mo. banc 1996). The death penalty has been imposed
when the jury finds the defendant acted with a depraved mind in strangling or smothering
the victim to death after raping or sodomizing or attempting to rape or sodomize the
victim. State v. Brown, 902 S.W.2d 278 (Mo. banc 1995); State v. Mercer, 618 S.W.2d 1
(Mo. banc 1981). The death penalty has been upheld in cases when the defendant
35
murdered more than one victim. Anderson, 306 S.W.3d 529; Christeson, 50 S.W.3d 251;
State v. Smith, 32 S.W.3d 532 (Mo. banc 2000); State v. Ringo, 30 S.W.3d 811 (Mo. banc
2000). Finally, this Court has upheld the death sentence when the defendant murdered at
least one victim and perpetrated a robbery or a burglary. State v. Deck, 303 S.W.3d 527
(Mo. banc 2010); State v. Gilbert, 103 S.W.3d 743 (Mo. banc 2003); State v. Williams,
97 S.W.3d 462 (Mo. banc 2003).
This Court independently researched both death and life cases and has not
identified any similar case involving two brutal murders, burglary, robbery, sodomy, rape
and an attempt to conceal the crimes committed that would support a finding that
Driskill’s sentence is disproportionate. The evidence of Driskill’s guilt is overwhelming.
The imposition of the death penalty meets the statutory requirements. There was no
error.
Conclusion
For the foregoing reasons, the judgment is affirmed.
___________________________
George W. Draper III, Judge
Russell, C.J., Fischer, Wilson and Teitelman, JJ., concur;
Breckenridge, J., dissents in separate opinion filed;
Stith, J., concurs in opinion of Breckenridge, J.
36
SUPREME COURT OF MISSOURI
en banc
STATE OF MISSOURI, )
)
Respondent, )
)
v. ) No. SC93882
)
JESSE DRISKILL, )
)
Appellant. )
DISSENTING OPINION
I write separately because I do not agree with the majority opinion’s conclusion that
the record, in the light most favorable to the trial court’s rulings, supports a finding that
Mr. Driskill was competent to stand trial because the information in the record should have
compelled the trial court to order a psychiatric examination to determine Mr. Driskill’s
competency. Section 552.020.2 1 provides that “[w]henever any judge has reasonable cause
to believe that the accused lacks mental fitness to proceed,” the trial court shall, either on the
court’s own motion or upon a motion of the state or defense counsel, order an examination
of an accused by a physician, psychiatrist, or psychologist to determine the accused’s fitness
to proceed. Rather than focus on the standard applicable to whether the statute compelled
an examination to provide both the trial court and a reviewing court with the information
necessary to evaluate Mr. Driskill’s competency, the majority opinion examines whether the
1
Unless otherwise indicated, all statutory references are to RSMo Supp. 2013.
record supports the trial court’s finding that Mr. Driskill, in fact, was competent to proceed
with trial because he had an adequate factual understanding of the legal system and process
of adjudication. This misframing of the issue creates an insurmountable burden for
Mr. Driskill on appeal.
The majority opinion discusses at length that the trial court chose to believe that
Mr. Driskill was competent to stand trial based on the trial court’s observation and
questioning of Mr. Driskill in the courtroom and on an opinion of one of the two mental
health experts who evaluated Mr. Driskill’s competency prior to trial. It is undisputed from
the record, and not challenged by Mr. Driskill, that he was competent to stand trial in that he
did not have a mental condition that precluded him from understanding the legal system and
the nature of the charges against him. That never was Mr. Driskill’s claim of incompetency.
Rather, in his requests for a competency examination during trial, he asserted that he had a
mental condition that precluded him from being present in the courtroom so that he could
consult with his counsel and assist with his defense.
On that issue, the majority opinion simply finds that the trial court took adequate
precautions to ensure that, whenever Mr. Driskill believed he would suffer a panic attack, he
was able to leave the courtroom. The opinion further holds that Mr. Driskill’s absence from
the courtroom during the penalty phase of trial can be explained because “a person facing a
sentence of death may become uneasy; it would be illogical to not be uneasy at such a time.”
The record before the trial court shows that Mr. Driskill was not suffering from the
anxiety experienced by any person facing a sentence of death. The mental health history of
Mr. Driskill was contained in the reports of Dr. Linda Gruenberg, a board-certified
2
psychiatrist, and Dr. Robert Fucetola, a board-certified clinical neuropsychologist, both of
whom evaluated Mr. Driskill. Dr. Gruenberg’s report states that Mr. Driskill had been
diagnosed with bipolar disorder and generalized anxiety disorder and demonstrated
symptoms of intermittent explosive disorder during his adolescence and possibly earlier. 2
The report, prepared three months before trial, also noted that Mr. Driskill had difficulty
with mood and behavior – evidenced by the fact that he had experienced explosive episodes
while incarcerated and in the courtroom during pretrial proceedings.
Similarly, Dr. Fucetola’s report noted that Mr. Driskill’s medical records include
diagnoses of anxiety disorder, behavior problems, bipolar disease, chronic severe headaches,
and intermittent explosive disorder. The report also contained references to Mr. Driskill’s
prior suicide attempt. While Dr. Fucetola opined prior to trial that Mr. Driskill was
competent to stand trial, defense counsel filed an email written by Dr. Fucetola during trial
to supplement his earlier opinion. Dr. Fucetola had read testimony of the deputy present at
Mr. Driskill’s trial and discussed with defense counsel Mr. Driskill’s behavior during voir
dire when Mr. Driskill asked to be removed immediately from the courtroom and, upon
placement back in a jail cell, punched the wall, appeared red in the face, was crying, was
rubbing his head, and then vomited. In the email, Dr. Fucetola described the “episode” as a
panic attack. Dr. Fucetola called into question his prior determination of competency,
stating, “During the panic attacks, and in the moments before and after attacks, I am
2
Mr. Driskill has also been diagnosed with polysubstance dependence in remission while in
a controlled environment and a cognitive disorder demonstrated by mild neurocognitive
deficits due to multiple head traumas, chronic polysubstance abuse, and chronic migraine
headaches.
3
concerned that Mr. Driskill does not have the capacity to assist you in his own defense due
to his transient state of mind.”
“It is well established that the Due Process Clause of the Fourteenth Amendment
prohibits the prosecution of a defendant who is not competent to stand trial.” State v.
Anderson, 79 S.W.3d 420, 432 (Mo. banc 2002). The failure to inquire into a defendant’s
mental competence when there is sufficient evidence of incompetence deprives a defendant
of his or her right to a fair trial. Pate v. Robinson, 383 U.S. 375, 385 (1966). As the
majority opinion states, a trial court “is required to initiate proceedings to investigate the
competency of a defendant whenever a reasonable judge in the same situation as the trial
judge would experience doubt about the defendant’s competency to stand trial.” Anderson,
79 S.W.3d at 432 (internal quotations omitted). Here, the record shows that the trial court
experienced doubts about the defendant’s competency to stand trial. The trial court chose
the wrong path in responding to those doubts. Rather than initiate the proceedings required
by section 552.020.2 and order an examination of Mr. Driskill to determine his competency,
the trial court attempted to address the obvious issues raised by Mr. Driskill’s behavior
during trial by repeatedly questioning Mr. Driskill and his counsel and recessing the trial to
give Mr. Driskill time to recover from his anxiety or panic attacks. A defendant’s demeanor
at trial is relevant to the ultimate determination of competence, but it cannot replace the
required proceedings to fully determine competency. See Robinson, 383 U.S. at 386.
While the trial court’s extensive accommodations may have been sufficient for
Mr. Driskill to meaningfully participate in trial during the guilt phase, his condition had
deteriorated significantly by the penalty phase of trial – the phase of trial that ultimately
4
resulted in Mr. Driskill being sentenced to death. The record shows that, during the penalty
phase of his trial, Mr. Driskill had to interrupt the trial multiple times to leave the
courtroom. 3 The first time this occurred, the trial court questioned Mr. Driskill at a recess in
the midst of the state’s opening statement. When addressing the issue, the trial court noted
Mr. Driskill’s statement to his counsel that he believed he might have “one of those
episodes” like he had previously. Mr. Driskill told the trial court that he knew he would
have such an episode – that he would “snap out.” When given an offer to view the trial by
closed-circuit television, Mr. Driskill declined because doing so made him feel worse. In
fact, during the penalty phase of his capital trial, Mr. Driskill was absent during half of the
state’s opening statement, defense counsel’s opening statement, the presentation of all the
state’s evidence, and the presentation of four out of seven of his own witnesses. At this
point, Mr. Driskill no longer was able to be present in the courtroom or participate in the
proceeding by closed-circuit television and communicate and advise counsel by telephone.
This record makes clear that the trial court’s accommodations were no longer
sufficient during the penalty phase to protect Mr. Driskill’s rights. Even if Mr. Driskill was
competent at the commencement of his trial, the trial court was obligated to consider
subsequent “circumstances suggesting a change that would render the accused unable to
meet the standard of competence to stand trial.” Drope v. Missouri, 420 U.S. 162, 181
(1975).
3
Mr. Driskill asked to be excused from the courtroom four times in the jury’s presence.
Each time, without any explanation, the jury either heard defense counsel ask if Mr. Driskill
could be excused or saw Mr. Driskill leave. In particular, the jury would have observed his
absence during most of the penalty phase of his trial. These events undoubtedly would have
made a negative impression on the jury.
5
On this record, there was reasonable cause for the trial court to experience doubts
regarding Mr. Driskill’s mental fitness to proceed. Under section 552.020.2, the trial court
should have, either on the motions made by defense counsel or on the court’s own motion,
ordered an examination of Mr. Driskill by a mental health professional who met the
statutory criteria to evaluate Mr. Driskill’s competency to proceed with trial. Under section
552.020, the trial court was authorized to order that the examination be made at such time
and under such conditions as the court deemed proper. While it is a drastic remedy to grant
a mistrial, it is unknown whether the required examination could have been accomplished
without a mistrial. If a mistrial was necessary to determine Mr. Driskill’s competency to
proceed with the guilt phase of his trial, the trial court was required to grant one.
The record in Mr. Driskill’s case shows that the trial court had reasonable cause to
believe Mr. Driskill was not competent to stand trial, triggering the mandatory provisions of
section 552.020.2 requiring the court to order an independent competency examination. I
would find that its failure to do so is reversible error and remand the case to the trial court
for a new penalty phase trial.
_________________________________
PATRICIA BRECKENRIDGE, JUDGE
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