Jesse Driskill v. State of Missouri

• Court: Supreme Court of Missouri
• Decided: June 1, 2021
• Docket: SC98259
• Status: Published

Opinion

SUPREME COURT OF MISSOURI en banc JESSE DRISKILL ) Opinion issued June 1, 2021 ) Appellant, ) ) v. ) No. SC98259 ) STATE OF MISSOURI ) ) Respondent. )

APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY The Honorable Matthew P. Hamner, Judge

Jesse D. Driskill appeals the circuit court’s judgment overruling his Rule 29.15

motion for postconviction relief. He was convicted of 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. Driskill was sentenced to death for

each murder count. He also received a consecutive 15-year sentence for the burglary

count and seven consecutive life sentences for all remaining counts. Driskill asserts the

State committed multiple Brady violations and trial counsel provided ineffective

assistance in various respects during the original proceedings. Because the circuit court’s

findings of fact and conclusions of law are not clearly erroneous, the judgment denying

postconviction relief is affirmed. Background

In the light most favorable to the verdict, 1 the evidence demonstrates that, in July

2010, Driskill and Jessica Wallace were at the Prosperine River Access on the Niangua

River. They did drugs and had sex. A police officer interrupted, and Driskill ran into the

woods with a gun. Wallace returned home once she spoke to the police. At the same

time, roughly 1.5 miles from the Prosperine River Access, J.W. and C.W. (collectively,

the “victims”) were celebrating their 59th wedding anniversary at their home.

When family members became concerned about the victims’ whereabouts, they

went to the house. The victims’ car was not there. Because the doors were locked, a

relative entered through a window, finding the inside of the house was smoky and smelly.

The family member also saw C.W.’s feet under smoldering blankets. After the relative

opened the front door, the victims’ son entered the home. The two individuals found

J.W.’s body under a pile of blankets and chairs. Blood had pooled around the victims’

heads.

The police were called and began investigating the scene and collecting evidence.

Signs of forced entry were not apparent. The area near the victims smelled of accelerant.

C.W. had burn marks on the top portion of her body and wadded paper towels had been

burned in her groin area. A clear fluid and blood could be seen draining from her vaginal

and anal areas. The skin beneath C.W.’s eyes was blackened, and she had a wound above

her right eyebrow. Aside from his shoes, J.W. was naked. A plastic bag covered his

1 McFadden v. State, 619 S.W.3d 434, 444 & n.1 (Mo. banc 2020). 2 head, and a wound was visible on his face. C.W.’s purse had been dumped onto the

floor. A can of gasoline was also located in the hallway. As the police investigated the

home, a burning vehicle was located near Conway, Missouri, and later determined to

belong to the victims.

Meanwhile, Driskill called Wallace twice, ultimately asking her to pick him up on

Highway N in Conway. Wallace attempted to do so but could not locate Driskill. Seeing

first responders heading toward smoke, she left the area. In Conway, Driskill went to

Hannah’s General Store in an unsuccessful attempt to charge his cell phone. Later,

Driskill went to a Budget Inn and used the telephone. He called Jessica Cummins, who

agreed to get him. During the drive, Cummins believed Driskill was mad at her. He also

mumbled during the drive, stating he had “messed up” and shot someone. Cummins

believed Driskill mentioned he had used some drugs. After dropping Driskill off at Codi

Vause’s apartment, Cummins left. Vause and Calvin Perry were in Vause’s apartment

when Driskill arrived.

Driskill appeared exhausted and anxious. He stated he needed help and suggested

he was being chased by the authorities. Driskill also said he needed new clothes and had

killed a couple of people that day. Wallace—after Driskill contacted her and stated he

perpetrated a home invasion, robbery, and double homicide—drove to Vause’s

apartment. Driskill explained to Wallace, Perry, and Vause that he was going through a

shed or garage when an elderly couple found him. Driskill brandished his gun and

ordered the couple to go inside. He then asked for money but was not satisfied with the

amount. Driskill proceeded to shoot J.W. and rape C.W. Driskill initially shot C.W. in

3 the head. She survived, and, when she tried to get away, he shot her two more times.

Driskill further stated he put a plastic bag down C.W.’s throat and a pillow over her head.

He explained he attempted to clean up the evidence by burning it and using bleach. He

also stated he stole, and later burned, the victims’ vehicle. Driskill said his shoes were

filled with blood. Wallace went to a store after hearing Driskill’s story. A police officer

at the store noticed she was upset and approached her. Wallace told the officer what

Driskill had told her.

Cummins later returned to Vause’s apartment. She found Driskill using the

kitchen sink to wash his shoes. After changing his clothes, Driskill directed Vause to

dispose of them, and she placed them in a trash bag. Driskill subsequently fell asleep on

the couch. At that time, the other individuals relayed Driskill’s story to Cummins. They

called the police. Shortly thereafter, the police attempted to arrest Driskill while he was

sleeping at Vause’s apartment. Driskill resisted arrest and obtained a laceration on his

head during the scuffle. He was eventually tasered and arrested. The officers seized the

trash bag containing Driskill’s clothes and took him to the hospital for treatment.

As the police investigated the crimes, they executed a search warrant and obtained

various evidence, including Driskill’s clothing, an unlabeled pill bottle, and a pack of

cigarettes. A sexual assault kit was conducted on Driskill. J.W.’s and C.W.’s bodies

were autopsied. C.W. was shot once near her jawline and once above her left eye. The

latter shot was fatal. C.W. had a laceration from blunt trauma above her right eyebrow.

She also had injuries consistent with sexual assault, such as tears at the entrance of her

vagina and rectum. Vaginal swabs were collected from C.W. DNA testing eliminated

4 J.W. as a contributor and revealed a mixture from C.W. and Driskill. J.W. was shot once

near his right cheek. This wound was potentially fatal. Yet the cause of death was listed

as asphyxiation resulting from a wadded-up plastic bag that was found in J.W.’s throat.

At trial, Driskill was represented by Sharon Turlington and Cynthia Dryden.

During the guilt phase, the State adduced the evidence described above as well as other

evidence, and Driskill presented evidence from two witnesses. The jury found Driskill

guilty on all counts. During the penalty phase, the State presented evidence of Driskill’s

prior convictions and victim impact statements from three family members. Driskill

called multiple expert and lay witnesses. These individuals testified about how Driskill’s

mental health issues, genetic predisposition toward violence, and difficult past, including

physical abuse as a child, impacted his actions. The jury recommended death sentences

for each first-degree murder count. Nine statutory aggravators were found regarding

C.W.’s murder, and eight statutory aggravators were found regarding J.W.’s murder. The

circuit court adopted the jury’s recommendation. It also imposed a consecutive, 15-year

sentence for the burglary count and seven consecutive life sentences for all remaining

counts. This Court affirmed the judgment of convictions on direct appeal. See State v.

Driskill, 459 S.W.3d 412, 433 (Mo. banc 2015).

Driskill proceeded to seek postconviction relief under Rule 29.15. An evidentiary

hearing was held. The case originally was assigned to a first judge, who presided over

part of the hearing. After Prosecutor Jon Morris testified, however, the first judge

5 recused himself, and a second judge was appointed. The second judge heard the

remaining evidence and denied postconviction relief. Driskill appeals. 2

Standard of Review

Review of a circuit court’s judgment denying postconviction relief is “limited to a

determination of whether the findings and conclusions . . . are clearly erroneous.” Rule

29.15(k). Appellate courts presume the circuit court’s findings are correct. Deck v. State,

381 S.W.3d 339, 343 (Mo. banc 2012). “A clear error is a ruling that leaves the appellate

court with a definite and firm impression that a mistake has been made.” Id.

Additionally, “[t]his Court defers to ‘the motion court’s superior opportunity to judge the

credibility of witnesses.’” Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019). The

circuit court is “entitled to believe all, part, or none of the evidence presented at the post-

conviction hearing.” State v. Hunter, 840 S.W.2d 850, 863 (Mo. banc 1992).

A movant must satisfy the test announced in Strickland v. Washington, 466 U.S.

668 (1984), to obtain postconviction relief based on a claim of ineffective assistance of

counsel. Anderson v. State, 564 S.W.3d 592, 600 (Mo. banc 2018). The test requires a

movant to demonstrate 1) deficient performance by counsel and 2) prejudice as a result of

that deficient performance. Strickland, 466 U.S. at 687. Deficient performance is

measured in terms of “reasonableness under prevailing professional norms.” Id. at 688.

This Court gives great deference to counsel’s performance, recognizing the multitude of

approaches available to defend a client, and a movant must overcome the presumption

2 Because Driskill was sentenced to death, this Court has jurisdiction. Mo. Const. art. V, sec. 10. 6 that counsel’s course of action might be considered sound strategy. Id. at 689. Prejudice

requires a “show[ing] that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

“[D]ue process is violated where the prosecutor suppresses evidence favorable to

the defendant that is material to either guilt or punishment.” Anderson v. State, 196

S.W.3d 28, 36 (Mo. banc 2006) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).

Even without request, prosecutors must disclose exculpatory evidence, which includes

material that can impeach State witnesses. Middleton v. State, 103 S.W.3d 726, 733 (Mo.

banc 2003). “A Brady claim has three components: 1) the evidence at issue must be

favorable to the accused, either because it is exculpatory, or because it is impeaching; 2)

the evidence must have been suppressed by the State, either willfully or inadvertently;

and 3) prejudice must have ensued.” Barton v. State, 432 S.W.3d 741, 761 (Mo. banc

2014).

Analysis 3

I. Alleged Guilt Phase Errors

A. Failure to Disclose Purported Deal with Calvin Perry

Driskill contends the State violated Brady by failing to disclose an alleged deal

with Perry. Specifically, he argues the State and Perry reached a tacit, unwritten

3 This Court takes note of Appellant’s counsel’s failure to utilize normal spacing conventions for citations in the briefing. The word limits mandated by Rule 84.06(b) should not be sidestepped through such ploys. 7 agreement, providing that Perry’s prison sentence 4 would be reduced in exchange for his

trial testimony. While addressing a pretrial motion to reveal agreements, Assistant

Attorney General Kevin Zoellner noted that he and Prosecutor Jon Morris had not

reached any deals with witnesses. Zoellner, however, also stated the defense might want

to question Perry, as Zoellner’s office had received a telephone call indicating Perry

would not cooperate if he was not released in time to attend an upcoming family funeral.

As evidence of an agreement, Driskill cites Perry’s deposition testimony, in which

Perry expressed reservations because, even though he was doing the “right thing” by

testifying, he was not receiving any favors or promises. Perry went on to suggest this fact

impacted his actions. Zoellner asked for Perry’s trust and stated he would do whatever he

could. Perry, however, was not satisfied with this answer because the parole board had

already made a decision, and he believed help might come too late. In the midst of a

lengthy exchange spanning roughly eight pages of transcript, Perry, while voicing his

concerns, stated:

I’m not asking for favors. I’m not asking for anything. I’m asking for at the point that I was told not to worry about doing the right thing. I’m not asking for the whole six months. I’m asking from the point I went on the abscond that this happened to the 122 days later that I was picked up.

Zoellner then replied, “Yes.” Perry’s trial testimony recounted Driskill’s explanation of

the crimes and suggested Driskill enjoyed describing details that made others

4 In December 2007, Perry pleaded guilty to possessing methamphetamine and received a five-year sentence. Execution of his sentence, however, was suspended, and he was placed on probation. In February 2009, after multiple violations, Perry’s probation was revoked, and the circuit court executed his five-year sentence. Perry was on parole in July 2010 when Driskill committed the murders but returned to prison before Driskill’s trial. 8 uncomfortable. Perry explained he was asking the State for favors, namely being

released from prison, but said he never “snitched” in exchange for favorable treatment.

During the postconviction proceedings, Morris, the prosecutor who advocated for

Perry’s time-credit, testified he may have interacted with Perry prior to trial, but he does

not recall. Further, he did not attend Perry’s pretrial deposition, although he reviewed the

deposition at some point. Immediately after Perry testified, Morris spoke to Perry while

leaving the courthouse. Morris knew Perry and his family, mostly from his time as a

prosecutor but also personally. At that time, he learned the details of Perry’s request and

stated he would look into the issue after trial. Morris did not make any specific promises

to Perry at that time. After the trial concluded, Morris reviewed the case, determined

Perry deserved the time-credit, and took appropriate steps to ensure Perry’s early release.

Because a circuit judge was not always present in Laclede County, Perry’s file was

taken to another county to assure the request was granted before Perry’s sentence

concluded. Morris also acknowledged: 1) his office typically does not assist offenders in

this fashion; 2) the request was granted, even though Perry had behaved poorly on

probation; 3) Morris’s relationship with the Perry family played a role in his decision, as

a family member had recently died and the family was experiencing difficulties; and

4) Perry was assisted more out of courtesy to Perry’s mother. Perry was deposed as part

of the postconviction proceedings, but he answered “no comment” to all questions

besides stating his name. The circuit court found, in part, “There is some evidence from

which one could infer that [] Perry had a subjective hope that his testimony might result

9 in some benefit to his legal issues. There is not, however, credible evidence of any

agreement between [] Perry and the prosecution prior to trial[.]”

Under Brady, the State must disclose agreements with, or promises of leniency

made to, its witnesses because this material is helpful impeachment evidence. Middleton,

103 S.W.3d at 733. Unwritten deals can also create this obligation. See id. “Yet, the

mere fact that a witness desires or expects favorable treatment in return for his testimony

is insufficient; there must be some assurance or promise from the prosecution that gives

rise to a mutual understanding or tacit agreement.” Akrawi v. Booker, 572 F.3d 252, 263

(6th Cir. 2009) (emphasis in original). Driskill believes the above facts establish the

existence of an unwritten understanding. Citing Perry’s deposition, Driskill relies heavily

on the portion in which Perry showed frustration regarding the lack of preferential

treatment and noted this was “swaying” his decisions. Zoellner’s office also received a

telephone call stating Perry’s testimony may depend on beneficial treatment. According

to Driskill, this shows Perry’s willingness to testify was wavering. During the deposition,

however, Perry stated “I want to do the right thing. . . . And I’m going to irregardless

[sic].” While Perry was disgruntled, he was willing to testify in the absence of a deal.

Driskill points to Zoellner’s “[y]es” response, which occurred after Perry detailed

what he hoped to gain from testifying. Yet this seemed to signify an understanding of

what Perry hoped to receive, rather than acknowledgment that a deal existed. Zoellner

repeatedly emphasized he could not make any specific promises. Instead, he stated he

would do what he could and Perry would have to trust him. A single “[y]es” amidst an

eight-page discussion cannot establish the existence of mutual understanding or a tacit

10 agreement, especially when many other portions of the deposition directly rebut that

implication.

Driskill asserts an adverse inference should be drawn from Perry’s unwillingness

to answer questions at his postconviction deposition. “[A] trial judge may draw an

adverse inference from a litigant’s assertion of the Fifth Amendment privilege in a civil

case.” State v. Spilton, 315 S.W.3d 350, 356 n.8 (Mo. banc 2010). The use of “may,”

though, indicates courts are not required to draw adverse inferences in this scenario. See

Allen v. Bryers, 512 S.W.3d 17, 36 (Mo. banc 2016) (“[T]he fact-finder in a civil case is

permitted to draw an adverse inference from a defendant’s assertion of his or her Fifth

Amendment right to remain silent[.]” (emphasis added)). Such an inference is

inappropriate here. In his postconviction deposition, Perry stated his name for the record,

but he answered “no comment” to every other question, which covered various topics

such as why Perry was participating in this deposition, where he currently lives, and his

criminal record. Additionally, at the evidentiary hearing, Morris explained he had spoken

with Perry either before or after the postconviction deposition, and Perry indicated he did

not want to answer any questions. Perry was simply an uncooperative witness.

Driskill focuses on Morris’s prior relationship with Perry as well as his family and

the unusual nature of this assistance. But none of these facts establish the existence of

mutual understanding or a tacit agreement. Zoellner and Morris continually maintained

they never made a deal with Perry. Rather, they explained to Perry that they would do

what they could, while making no promises. In fact, even when speaking with Perry after

he had testified, Morris merely stated he would look into the matter after trial. These

11 factors may have impacted Morris’s ultimate decision to advocate on behalf of a

time-credit, but they fail to show mutual understanding or a tacit agreement.

Driskill relies on the fact that Perry actually received a time-credit. The existence

of preferential treatment by a prosecutor cannot alone establish a promise of leniency was

given for favorable testimony. Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003).

However, “the fact that a witness actually received favorable treatment may be relevant

in establishing the existence of undisclosed promises of leniency when considered with

other facts . . . such as a state court’s finding that the prosecutor’s account was not

credible.” Id. at 165 n.6. Although, Perry ultimately received favorable treatment, the

arguments raised by Driskill, as explained above, are unpersuasive and do not establish

the circuit court’s findings were without support in the record. The mere fact Perry

received favorable treatment fails to establish a deal. As the circuit court found, the

evidence may indicate Perry had a subjective hope of receiving favorable treatment, but a

mutual understanding and tacit agreement has not been shown. Without a deal, Driskill

was not harmed, as trial counsel and the jury knew Perry was asking for favors.

Sufficient evidence supported the circuit court’s determination that there was no Brady

violation, and denying relief on this claim was not clear error.

B. Failure to Present Evidence Cummins Did Not Notice Blood on Driskill

Driskill argues his trial counsel were ineffective for failing to elicit Cummins’s

testimony that she did not notice blood on Driskill when she picked him up from the

Budget Inn. Throughout trial, there was various evidence that Driskill’s clothing was

bloody after committing the murders. Wallace testified Driskill’s shoes were “filled with

12 blood,” and Cummins referenced Driskill washing his shoes at Vause’s apartment.

Cummins also testified Driskill changed his clothes and asked for the others to be thrown

out. Moreover, forensic reports stated blood stains were apparent on Driskill’s clothing.

Despite this evidence, the clothes tested negative for blood, and Cummins, in her

deposition, stated she did not notice any blood on Driskill when she picked him up. She

also suggested the motel employee did not seem to have seen anything. According to

Driskill, his trial counsel should have used this testimony to rebut the State’s theory that

Driskill’s clothes were blood-free because he successfully washed them.

At the evidentiary hearing, trial counsel testified they made a decision not to ask

Cummins about this subject, but they could not recall a specific rationale. Turlington

explained trial preparation consisted of reviewing police reports as well as depositions

and discussing the best way to approach each witness. She stated that, after a specific

discussion, they decided not to mention the potential presence of blood on Driskill.

Turlington could not remember exactly why they made this decision. She noted they did

present helpful evidence of a laboratory test, which showed Driskill’s clothes tested

negative for blood.

Driskill believes remand—to allow the circuit court to address whether trial

counsel provided ineffective assistance by failing to introduce Cummins’s testimony

about not noticing blood on Driskill—is appropriate, as the circuit court did not make

findings of fact or conclusions of law regarding this claim. 5 Circuit courts “shall issue

5 To support this argument, Driskill cites Green v. State, 494 S.W.3d 525 (Mo. banc 2016), in which this Court noted that, if a judgment does not dispose of all claims in a case, it is not final 13 findings of fact and conclusions of law on all issues presented[.]” Rule 29.15(j). Yet

every claim need not be addressed individually. Baumruk v. State, 364 S.W.3d 518, 539

(Mo. banc 2012). “Instead, ‘[g]eneralized findings are sufficient so long as they permit

the appellate court an adequate record for appellate review of movant’s claims.’” Id.

(alteration in original). In this case, the circuit court thoroughly discussed a distinct, but

similar, claim—that trial counsel were ineffective for failing to impeach Cummins’s

testimony by showing Driskill’s clothing to the jury. While addressing that claim as well

as others, the circuit court provided information helpful to adjudicate the current issue.

For example, the judgment provided a summary of Cummins’s trial testimony about

giving Driskill a ride and noted trial counsel prepared for Cummins’s testimony, even

though they could not recall specific decisions regarding the cross-examination.

Furthermore, even if a circuit court fails to enter findings of fact or conclusions of

law on an issue, remand might not be required because there are some common-sense

exceptions to the general rule. White v. State, 939 S.W.2d 887, 903 (Mo. banc 1997).

[A]n appellate court will not order a useless remand to direct the motion court to enter a proper conclusion of law on an isolated issue overlooked by the motion court where it is clear that movant is entitled to no relief as a matter of law and will suffer no prejudice by being denied a remand.

and the appeal must be dismissed. Id. at 533. Green, however, is distinguishable. The circuit court never adjudicated claims raised in Green’s pro se motion, as the judgment’s conclusion addressed only claims contained in the amended motion. Id. at 530. As a result, Green was distinguished from a prior case that used broad language and stated the movant had not established entitlement to the relief requested in both the pro se and amended motions. Id. at 530-31. Here, the claim at issue was raised in Driskill’s amended motion, and the judgment addressed all claims raised in that pleading, concluding: “Having reviewed all of the evidence in this matter, and each of the claims raised by Movant in his Amended Motion to Vacate, Movant’s Motion is denied.” Green does not bar review. 14 Id. This exception governs here, and review by this Court is appropriate. 6

Driskill is not entitled to relief on this claim. Failure to recall a strategic rationale

for a decision does not overcome the presumption that the decision was part of a

reasonable trial strategy. See Bullock v. State, 238 S.W.3d 710, 715 (Mo. App. 2007). At

the evidentiary hearing, Turlington testified counsel made a decision not to ask Cummins

whether she saw blood on Driskill when she picked him up. Trial counsel also decided

not to mention that Driskill had blood on him. Driskill has failed to overcome the

presumption that trial counsel employed reasonable trial strategy.

Additionally, “[i]t is not ineffective assistance of counsel to pursue one reasonable

trial strategy to the exclusion of another reasonable trial strategy.” McFadden, 619

S.W.3d at 446 (alternation in original). On cross-examination, trial counsel focused on

undermining Cummins’s credibility, noting Cummins lied to the police about giving

Driskill a ride until the police threatened to arrest her and suggesting she was upset with

6 At multiple points in his brief, Driskill condemns the circuit court for allegedly failing to conduct an independent review before adopting the State’s proposed findings. He further argues many of the circuit court’s findings were erroneous and adopted without record support. “This Court has held the process by which a court adopts a party’s proposed findings of fact raises no constitutional problems so long as the court actually makes the findings proposed after independent review.” Hosier v. State, 593 S.W.3d 75, 83 n.2 (Mo. banc 2019). To be affirmed, the findings must also be supported by the evidence. Id. “Accordingly, adopting a proposed finding that is not supported (and, in fact, is contradicted by) the evidence wastes judicial resources and strongly demonstrates why the practice of wholesale adoption of a party’s proposed findings is discouraged.” Id. Although the Supreme Court has also criticized this practice, see Jefferson v. Upton, 560 U.S. 284, 293-94 (2010), “[a] trial court judgment will be affirmed if cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient.” Hosier, 593 S.W.3d at 83 n.2 (alteration in original). As explained throughout this opinion, the circuit court’s disposition of Driskill’s claims was not clearly erroneous, so the independent review issue need not be addressed further. 15 Driskill because she wanted a relationship and he did not. Asking Cummins to testify

Driskill did not have blood on him when she picked him up would run counter to this

strategy because trial counsel would be asking the jury to believe Cummins’s testimony

about an important issue while suggesting she is not credible. Focusing on impeachment

rather than sending this mixed message was reasonable.

Moreover, the testimony was relatively unhelpful. While Cummins noted she did

not see any blood and suggested the individual from the motel lobby did not either, she

also stated that “honestly when I picked him up, I mean, he looked wet, but I also didn’t,

you know, like do a search on him or anything.” Presenting this testimony would not

have altered the outcome of trial. The circuit court did not clearly err in determining trial

counsel were not ineffective for failing to adduce this testimony.

C. Alleged Destruction of a Fiber and Hairs in C.W.’s Hand

Driskill believes the State destroyed allegedly exculpatory evidence—an orange

fiber and hairs stuck between C.W.’s fingers—in bad faith. An autopsy photograph

showed this material in C.W.’s hand, and the autopsy report mentioned the fiber and

hairs, stating the latter appeared to be of pet origin. The report noted this evidence was

given to Laclede County deputies. The orange fiber and hairs, however, were never sent

to the crime laboratory for testing, and the deputies did not have a record of retaining this

evidence. Further, Driskill’s postconviction counsel did not find the material while

reviewing the evidence. All of this demonstrates the material was misplaced or lost.

According to Driskill, the fiber and hairs were exculpatory because Driskill, at the

time of his arrest, had a shaved head and dark facial hair, which did not match the

16 material. Driskill further argues the State was aware of Driskill’s appearance and the

discrepancy between his hair color and the material found in C.W.’s hand. As a result,

the State supposedly knew the fiber and hairs were exculpatory when they went missing,

showing the evidence was destroyed in bad faith. The fiber, hairs, and autopsy

photograph were not entered into evidence at trial, and no witnesses mentioned the

material. Kimberly Hardin, an employee at the Missouri State Highway Patrol

(“MSHP”) Crime Laboratory, testified at trial that some dining chairs removed from the

crime scene had pet hair on them.

At the postconviction evidentiary hearing, highway patrol trooper Jason Trammel,

who attended C.W.’s autopsy to collect evidence, testified. Trammel recalled taking

photographs of C.W.’s hand but did not remember seizing or receiving the fiber and

hairs. He recollected seeing a piece of orange carpet on C.W.’s hand and noted

Dr. Anderson, who conducted the autopsy, believed the hairs were of pet origin.

Turlington testified that, while she did not remember if she saw the orange fiber and hairs

when reviewing evidence for trial, she conducted a review of all autopsy photographs

before trial. She indicated counsel did not raise the issue at trial because she knew the

victims had multiple cats. Dryden, who prepared an evidence chart before trial, testified

the orange fiber and hairs were not listed on this document, likely because a property

receipt was not generated for this evidence. She was also certain the fiber and hairs were

not present when viewing evidence or else they would have been placed on the chart. If

the material was preserved, Dryden would have liked to have investigated further.

17 Under Brady, “when the State suppresses or fails to disclose material exculpatory

evidence, the good or bad faith of the prosecution is irrelevant: a due process violation

occurs whenever such evidence is withheld.” Illinois v. Fisher, 540 U.S. 544, 547

(2004). To be “materially exculpatory,” “evidence must both possess an exculpatory

value that was apparent before the evidence was destroyed, and be of such a nature that

the defendant would be unable to obtain comparable evidence by other reasonably

available means.” California v. Trombetta, 467 U.S. 479, 489 (1984). But, when

evidence is only potentially useful, meaning, at most, it could have been tested and the

results may have exonerated the defendant, due process is not violated, unless the

defendant can show the State acted in bad faith. Fisher, 540 U.S. at 547-48. Bad faith

exists when the material is destroyed “for the purpose of depriving the defendant of

exculpatory evidence[.]” State v. Armentrout, 8 S.W.3d 99, 110 (Mo. banc 1999). To

meet this test, the person “destroying . . . evidence must, at a minimum, have some

knowledge that evidence is important to a pending criminal prosecution.” State v. Cox,

328 S.W.3d 358, 365 (Mo. App. 2010).

Here, the fiber and hairs are not materially exculpatory, as they did not possess

exculpatory value that was apparent before destruction. The orange fiber appeared to be

a carpet strand, and the hairs appeared to be of pet origin, which is consistent with the

victims’ ownership of cats. These determinations were reasonable, and both conclusions

call the exculpatory nature of the evidence into question. The fiber and hairs were only

potentially useful because, at most, they could have been tested and may have been

18 helpful to Driskill. For these reasons, Driskill must show the evidence was destroyed in

bad faith to establish a due process violation.

Driskill contends bad faith has been established because the fiber and hairs were

physical evidence obtained from a victim’s hand. The officers were also allegedly aware

Driskill had a shaved head and dark facial hair at the time of arrest, so they knew the light

hair was not Driskill’s. Because of these facts, the officers purportedly knew the material

was important to a pending criminal prosecution. Even assuming the officers knew this

evidence was potentially important, Driskill has not shown bad faith, as the Cox Court

explained understanding the evidence was relevant to a pending criminal prosecution is a

baseline requirement. See id. In fact, the Supreme Court has noted the absence of

“official animus towards [a defendant] or of a conscious effort to suppress exculpatory

evidence” can impact the bad faith analysis. Trombetta, 467 U.S. at 488. Cox also

referenced these factors, stating animus and a purpose to deprive the defendant of

evidence did not exist. 328 S.W.3d at 364-65.

No evidence suggests the fiber and hairs were destroyed in bad faith to prevent

Driskill from obtaining exculpatory evidence. The officers do not recall receiving this

evidence. While the evidence was lost or misplaced at some point, there is no evidence

this occurred because of animus towards Driskill or to hinder his defense. The evidence

was also shown in the autopsy photograph and referenced in the autopsy report, further

undermining the contention that the State destroyed this evidence to prevent Driskill from

using it. The circuit court did not clearly err in denying this claim.

19 D. Failure to Present Expert Testimony on Potential Contamination of DNA Evidence

Driskill argues his trial counsel were ineffective for not presenting expert

testimony, such as Dr. Dean Stetler, to establish DNA evidence was likely contaminated.

Ruth Montgomery, a DNA analyst employed at the MSHP Crime Laboratory, testified at

trial about developing a DNA profile from an unknown sample. She testified that the

basic process involves using chemicals to break open the cells to access the DNA;

isolating the DNA; quantifying the DNA; amplifying the DNA; using an instrument to

create a profile of the signals from the amplifications stage; and comparing that DNA

profile to a known DNA profile.

Montgomery performed the DNA analysis of C.W.’s two vaginal swabs from the

sexual assault kit. Microscopic examination detected intact sperm cells on the swabs.

Portions of the swabs were then placed in tubes for DNA analysis. “Swab 1” was

subjected to differential extraction. A DNA profile was developed, and a mixture of at

least two individuals was found. The major component of the mixture profile was

consistent with the profile from C.W. The minor portion was consistent with the profile

from Driskill. Additional analysis of the sample revealed the specific piece of DNA

examined had been observed in one in 15,124 people in the US Y-STR database, which is

used to calculate the occurrence of a profile within the population, and occurs in

approximately one in 1,000 DNA samples.

The remainder of “Swab 1,” after again being determined to have a minor

component consistent with the profile from Driskill, was analyzed through the FBI Pop

Stats database, which showed the observed mixture profile was 94.97 billion times more

20 likely to occur under the scenario it was a mixture of DNA from C.W. and Driskill as

opposed to the scenario it was from a mixture of the DNA from C.W. and an unknown,

unrelated individual in the population. At this point, the swab had been completely

consumed. 7

On cross-examination, Dryden elicited testimony “Swab 1” was tested multiple

times. Driskill’s boxers were also tested multiple times. A partial profile from the inside

of Driskill’s boxers was obtained. The major component matched Driskill, but the minor

component did not match C.W. During closing argument, Driskill’s trial counsel

attacked the DNA evidence. They questioned why all tests were not presented and why

the tests had different outcomes. Trial counsel also suggested DNA cross-contamination

was present, arguing the DNA sample was contaminated because Montgomery tested

Driskill’s boxers and C.W.’s vaginal swab at the same time on one of the quantification

steps. They argued retesting was not possible because the swab was completely

consumed.

At the postconviction evidentiary hearing, Dr. Stetler testified he was retained by

Driskill’s postconviction counsel. Dr. Stetler reviewed the DNA analysis conducted by

Montgomery and her trial testimony. He testified the presence of DNA in the reagent

blanks in one of the quantification procedures was evidence of contamination. He stated

7 “Swab 2” was not differentially extracted. “Swab 2,” according to Montgomery’s postconviction deposition, indicated an autosomal profile that was consistent with C.W. and that Driskill was eliminated as a source of that profile. A partial Y chromosome haplotype was developed that was consistent with the Y chromosome haplotype from Driskill at the alleles present. 21 that, because the reagent blank contained DNA, it would have been reasonable to perform

a second quantification, which occurred here. At this quantification, cuttings from

Driskill’s boxers and “Swab 1” were placed on the same plate and run at the same time.

Dr. Stetler posited that the boxers, because they contained Driskill’s DNA profile, should

not have been processed at the same time as the vaginal swabs. He could not say there

was a high probability of contamination, but he said that there was “certainly a

probability.”

Dryden testified she was aware DNA was found in the reagent blank, which is

used to ensure there is no cross-contamination, for the first vaginal swab cutting. She

was also aware that, during the quantification step, cuttings from Driskill’s boxer shorts

were run at the same time as the portion of the vaginal swab. Dryden further testified she

had consulted with an expert from Ohio who would have been able to testify

contamination could have occurred. Dryden stated that counsel had a strategic reason for

not calling a DNA expert to testify and that the subject had been discussed many times.

She was concerned the State may have tried to correct the error in some way, including

possible retesting. Ultimately, trial counsel consciously decided to cross-examine

Montgomery to attempt to show the results were unreliable.

During Montgomery’s postconviction deposition, she noted that the lab followed

standard practices and that she made specific efforts to avoid cross-contamination. She

testified about the timeframe in which evidence was handled and the steps taken to avoid

contamination. Montgomery stated that, although the reagent blank revealed a quantity,

when its value should have been zero, the quantity could have come from simple

22 fluorescence in the instrument or dust. Per the laboratory’s protocol, the level of DNA

found on the reagent blank was not considered high enough to amount to contamination.

When the reagent blanks were amplified, Montgomery testified there was not anything

there. Montgomery also explained the second extraction and quantification was

performed to get additional autosomal information and not because of potential

contamination. Driskill’s boxers and the vaginal swabs were run at the same time

because that was in accord with the scientifically accepted policy of the laboratory to test

unknown samples. To contaminate anything at that point, the analyst would have to

reenter the tube with the extracted DNA or reenter the well on the plate containing the

sample.

To prevail on a claim of ineffective assistance of counsel for failure to call a witness, the defendant must show: “(1) counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness’s testimony would have produced a viable defense.”

McFadden v. State, 553 S.W.3d 289, 305 (Mo. banc 2018) (quoting Deck, 381 S.W.3d at

346). Because selection of witnesses is presumptively a choice of strategy, it typically

cannot form the basis for an ineffective assistance of counsel claim. Id. “A trial strategy

decision may only serve as a basis for ineffective counsel if the decision is

unreasonable.” Id. at 306 (quoting McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc

2012)). “The question in an ineffective assistance claim is not whether counsel could

have or even, perhaps, should have made a different decision, but rather whether the

decision made was reasonable under all the circumstances.” Johnson v. State, 406

23 S.W.3d 892, 901 (Mo. banc 2013) (quoting Henderson v. State, 111 S.W.3d 537, 540

(Mo. App. 2003)).

Driskill argues trial counsel’s alleged strategy to not call an expert was based upon

the unreasonable assumption that, had they done so, the State could have retested the

evidence. As trial counsel admitted at the hearing, the State could not have done so

because it was completely consumed during testing. 8 However, trial counsel’s decision

to not call an expert was reasonable strategy to prevent corrective actions by the State.

“Counsel may choose to call or not call almost any type of witness or to introduce or not

introduce any kind of evidence for strategic considerations.” Shockley, 579 S.W.3d at

908 (quoting Vaca v. State, 314 S.W.3d 331, 337 (Mo. banc 2010)). Had a DNA expert,

such as Dr. Stetler or the Ohio expert who was consulted before trial, testified, the State

would have been able to argue the expert could not say contamination occurred. Each

expert would have testified contamination was possible but would not be able to state the

likelihood with any certainty. Trial counsel’s strategy to not present such inconclusive

testimony was reasonable. Further, the testimony would have permitted the State to call

Montgomery to provide testimony similar to that she gave in her postconviction

deposition, which concluded that she was confident there was no contamination.

Balanced with the unfavorable testimony from the others to whom Driskill related

his story, there is not a reasonable probability that Dr. Stetler’s testimony, which was far

less decisive than Montgomery’s testimony, would have changed the outcome of the trial.

8 Dryden recalled one of the swabs was used up during testing. 24 The circuit court did not clearly err in finding trial counsel were not ineffective in failing

to call an expert to establish DNA evidence was likely contaminated.

E. Failure to Impeach Wallace

1. Inconsistent Statements to the Police

Driskill argues his trial counsel were ineffective for not investigating and

impeaching Wallace’s testimony that she could not find Driskill near Conway despite

initially telling law enforcement she found and picked him up there. At trial, Wallace

testified she and Driskill were at Prosperine on the Niangua River before the murders.

She stated she “did a pill earlier in the day.” At the river, she and Driskill had sex, and,

when law enforcement interrupted, Driskill ran off into the woods with a gun. After

talking to the law enforcement officer, Wallace went home.

Wallace further testified Driskill called her the following day, needing a ride. She

drove to Conway to pick up Driskill on N Highway but could not locate him. After

observing smoke in the distance and seeing first responders heading toward that area,

Wallace left. Driskill later called her and related that he “pulled a home invasion and a

robbery and a murder, a double homicide.” Seeking guidance about what to do, Wallace

went to Vause’s apartment to talk to Vause’s mother, Juanita Haught. Instead, Wallace

encountered Driskill and heard more of his confession. Wallace testified that, after

leaving Vause’s apartment, she went to a gas station in Lebanon in hopes of finding

Haught. As she entered the store, she encountered a police officer who, upon seeing her

upset, inquired if something was wrong. The officer took Wallace to the sheriff’s office

and Sergeant Henry Folsom interviewed her.

25 On cross-examination, Driskill’s trial counsel questioned Wallace about her sexual

relationship with Driskill while also having a boyfriend, with whom she had a child, at

the time. Wallace admitted she was cheating on and lying to her boyfriend. They

questioned Wallace about the details of the evening at the river, including drug use. Trial

counsel also questioned Wallace on her late contact with police, given Wallace’s

supposed knowledge of what Driskill told her about the crimes. Additionally, the

cross-examination delved into potential inconsistences with statements about Wallace’s

phone calls.

In Sergeant Michael Mizer’s reporting officer’s narrative, which documented

Wallace’s first contact with law enforcement, he described encountering Wallace inside

the gas station. He said Wallace was “crying hysterically.” He further reported:

Koontz 9 stated she received a phone call from Jesse Driskill stating he needed a ride from Conway, Mo back to Lebanon. Koontz stated Driskill told her he was on N Highway. Koontz stated she then responded to that area where she picked Driskill up. Koontz stated Driskill had blood all over him. Koontz further stated Driskill began to admit to her what he had done earlier in the evening.

Trial counsel did not impeach Wallace with this statement, which indicated she

actually picked up Driskill in Conway. Trial counsel deposed Mizer prior to trial. At the

evidentiary hearing, Mizer testified that, had he been called to testify, he would have

testified consistently with his report. Folsom, who assisted with the investigation of the

case, testified he interviewed Wallace at the sheriff’s department. Wallace told Folsom

9 Koontz was Wallace’s last name at the time. 26 that Driskill requested to be picked up at a rural location, she left when she saw first

responders and met Driskill later at a residence.

Trial counsel testified they did not remember why they did not impeach Wallace

with her statement to Mizer that she picked up Driskill. Although impeachment was

discussed and counsel indicated they would have wanted to impeach Wallace’s

credibility, neither attorney remembered the reason for not using the statement. The

circuit court found, upon a review of the trial transcript, it was reasonable for trial

counsel to prefer to keep the jury focused on Wallace’s delay in speaking with the police

and her mental state, instead of whether she picked up Driskill.

“Reasonable choices of trial strategy, no matter how ill-fated they appear in

hindsight, cannot serve as a basis for a claim of ineffective assistance.” Anderson, 196

S.W.3d at 33. Although trial counsel could not articulate the rationale for not impeaching

Wallace with the prior statement, focusing on Wallace’s delayed contact with law

enforcement was reasonable. Establishing Wallace was lying was part of trial counsel’s

strategy, but the impeachment value of her statement that she picked up Driskill was

minimal. Wallace was in a state of extreme distress and incidentally stated she picked up

Driskill. This alleged statement is refuted by Folsom’s interview in the sheriff’s

department with Wallace and her trial testimony, both of which were removed from the

initial hysteria in the store. The circuit court did not clearly err in finding trial counsel

were not ineffective on this ground.

27 2. Testimony Driskill Shaved C.W.’s Pubic Area

Driskill claims his trial counsel were ineffective for not impeaching Wallace’s

testimony that Driskill told her he “shaved” C.W.’s pubic area. During voir dire, the

State claimed C.W.’s pubic area was shaved to cover up evidence. Wallace testified at

trial as to what she heard Driskill say at Vause’s apartment. She said Driskill tried to

clean up evidence, including shaving C.W.’s pubic area and pouring bleach inside of her.

He then used gasoline. No other witness from Vause’s apartment who heard Driskill

recount his actions testified that C.W.’s pubic area was shaved.

At trial, Sergeant Folsom testified about his involvement in the murder

investigation. He processed the crime scene. He noted there were burnt paper towels and

other items between C.W.’s legs. He testified he did not notice any pubic hairs in the

region, but that “[t]hey were very faint once [he] observed it and looked at it later.”

Folsom also testified he interviewed Wallace after the crimes. On cross-examination,

trial counsel referenced the interview with Wallace, asking questions about her telephone

calls with Driskill. The telephone calls were not verified or investigated by law

enforcement.

Dr. Russell Deidiker, a forensic pathologist, reviewed the autopsy reports as well

as photographs and testified at trial that there appeared to be sparse pubic hair. 10 He

could not say C.W. had been recently shaved. A picture of C.W.’s pubic region was

shown. Dr. Deidiker testified the amount of pubic hair was difficult to determine because

10 The doctor who performed the autopsy passed away before trial. 28 of thermal injuries. On cross-examination, Dr. Deidiker testified that people lose some

pubic hair as they begin to age. In closing argument, Driskill’s trial counsel noted there

was no evidence C.W.’s pubic area was shaved. Specifically, trial counsel noted the

medical examiner testified that sparse pubic hair occurs with aging, that there was no

evidence from the medical examiner C.W. was shaved, and that no razor was found with

hair in it. The State made no mention of whether C.W. was shaved in closing argument.

At the postconviction evidentiary hearing, Folsom testified he prepared an

affidavit requesting a sexual assault kit be performed on Driskill. In the affidavit, Folsom

stated it appeared that “[t]he pubic hair had been removed from [C.W.’s] vaginal area”

and that there was an attempt to start a fire in that area. He thought Wallace had told him

about Driskill shaving the victim during the interview he conducted. 11 Folsom’s affidavit

recounts that a witness contacted law enforcement and related that Driskill stated he

“shaved the female’s vaginal area and cleaned her vaginal area with bleach.”

Also testifying was Jenny Smith, a forensic chemist with the MSHP Crime

Laboratory. She stated the pubic hair from C.W.’s sexual assault kit indicated charring or

heat damage. She further stated the number of pubic hairs was typical to what would be

obtained as part of pubic hair combings from a sexual assault kit. Upon questioning, she

confirmed the length of the hairs was typical or did not strike her as outstanding.

11 The transcript of the interview also reveals Wallace related this detail. 29 Turlington testified she could not recall anything about C.W.’s pubic region being

shaved, but she had some recollection about there being evidence the hair was sparse.

She testified she would have wanted to impeach Wallace’s credibility.

Dryden testified that neither Folsom nor Wallace was impeached about the

inconsistent statements as to whether C.W.’s pubic region was shaved. She said she had

no trial strategy reason for failing to impeach the two witnesses about the pubic hair. She

further noted she and Turlington had “missed the timeline”—i.e., they did not recognize

events occurred in the following order: 1) Folsom was at the crime scene and saw the

body; 2) Folsom interviewed Wallace, and 3) Wallace testified at trial that Driskill

shaved C.W. The circuit court found, in part, that, regardless of whether C.W.’s pubic

area was shaved, there was ample evidence to support the conclusion Driskill raped

C.W., and it was reasonable for trial counsel to prefer to minimize any testimony that

highlighted that alleged detail of the crime.

Trial counsel operated pursuant to the theory that Driskill did not commit the

crime. It was reasonable to cast doubt on the passing reference from one witness that

C.W.’s pubic area was shaved by arguing, in closing, a lack of evidence. This reasonable

strategy cannot support a claim of ineffective assistance. Anderson, 196 S.W.3d at 33.

The alternative, detailed questioning about the precise manner in which the perpetrator

attempted to remove evidence, could reasonably be deemed unwise by competent, skilled

counsel. Regardless, the jury was aware of the thermal injuries to C.W.’s pubic region

and the sparse hair.

30 Wallace testified about the version of the crime she heard Driskill detail. The

physical evidence C.W. was not shaved, which is far from dispositive, did not contradict

whether Driskill made the statement that he shaved C.W. As a result, the impeachment

value of this evidence is minimal. Considering the other evidence in this case, both

physical evidence and accounts of witnesses who heard Driskill describe the crime, there

is not a reasonable likelihood that impeaching Wallace on this detail would have resulted

in a different outcome of the trial. The circuit court did not clearly err in denying this

claim.

F. Failure to Impeach Vause’s Testimony J.W. Was Tied up

Driskill claims his trial counsel were ineffective for not investigating and

impeaching Vause’s testimony. On direct examination, Vause testified Driskill said he

“tied the older man up” during the rape of C.W. In a follow-up question from the State,

Vause repeated the statement. Driskill argues this testimony should have been

impeached with the autopsy report showing no ligature marks. The possibility that J.W.

may have been tied up was not referenced again.

On cross-examination, trial counsel focused on who was present in the apartment

during Driskill’s alleged confession. Vause testified she recalled that it was only her and

Perry. Vause further testified she did not notice Driskill was covered in blood when he

entered the apartment.

At the postconviction evidentiary hearing, Turlington testified she did not

remember if they had a trial strategy for failing to impeach Vause with the fact that no

ligature marks were found on J.W. at the autopsy. Dryden testified she had no strategy

31 for not impeaching Vause. The circuit court found, in part, that trial counsel were

reasonable in concluding impeaching Vause on the point was not a significant area

worthy of cross-examination.

The value of impeaching Vause regarding the existence of ligature marks with the

autopsy report is questionable. Vause testified to Driskill’s statement about J.W. being

bound, and the autopsy report would not contradict whether Driskill made that statement.

Cross-examination about this topic would also detract from Vause’s testimony that was

potentially helpful to the defense: Driskill made his statement solely to her and Perry, and

Driskill was not covered in blood when he entered the apartment.

There is not a reasonable probability that impeaching Vause with the autopsy

report would have changed the outcome of the trial. Overall, Vause’s description of

Driskill’s statements were largely consistent with the testimony of other witnesses and

the physical evidence. The fleeting reference to J.W. being bound was not highlighted by

the State. No other witness referenced that detail. The circuit court did not clearly err in

finding trial counsel were not ineffective on this ground.

G. Failure to Introduce Evidence Vause Purportedly Used Victims’ Last Name When Calling 911

Driskill claims Vause referred to the victims’ last name when she called 911, even

though the witnesses at Vause’s apartment never claimed to have heard Driskill mention

the victims’ last name. There was no testimony from any of the people at Vause’s

apartment, where Driskill told his story, that he revealed the last name of the victims. In

32 Detective John Young’s incident report, he discussed all aspects of the investigation.

One paragraph stated:

Laclede County 911 received a separate call from a subject stating that Jessie Driskill is passed out inside a residence located [at] 713 Parkhurst in Lebanon, Laclede County, Mo. The caller advised that Driskill is the person responsible for the [victims’ last name] case. The caller also stated that Driskill had changed clothes and would be able to provide the clothing to us.

Trial counsel moved for disclosure of the 911 recordings referenced in Young’s

report, but they received only the recordings of two other calls from the case. Because

trial counsel were aware 911 recordings were destroyed after varying amounts of time,

they recalled making a further inquiry at some point about the call and being told it was

destroyed.

Driskill alleges effective counsel would have requested and obtained the 911

recording before it was destroyed or presented the statement of Detective Young that “the

caller advised that Driskill is the person responsible for the [victims’ last name] case.”

Driskill claims the fact Vause used the victims’ last name is impeaching because it

suggests she received the name from someone other than Driskill.

Trial counsel requested the recordings and made further inquiry about the missing

call. The actions of trial counsel appear to be reasonable in relation to the minimal

impeachment value of the recording. The reference to the victims’ last name in Young’s

report is potentially the product of Young’s familiarity with the case while writing the

report with the knowledge of the victims’ identities. Or it could be the result of

summarizing what a dispatcher relayed to Young, again with the name provided by a

party other than the caller. The content of the recording is speculation, and Driskill

33 cannot demonstrate prejudice based on speculation of the content of the 911 call. The

circuit court did not clearly err in holding trial counsel’s actions did not constitute

ineffective assistance.

H. Failure to Show Driskill’s Clothing and Shoes to the Jury

Driskill argues his trial counsel provided ineffective assistance by failing to show

his clothing to the jury. Authorities seized a pair of jeans and a shirt from Vause’s

apartment. A pair of shoes was collected at the hospital. Various evidence in this case

suggested blood was apparent on Driskill’s clothes and shoes. Forensic reports

describing the clothes indicated blood stains were present. Wallace testified Driskill’s

shoes were “filled with blood,” and Cummins stated Driskill washed his shoes at the

apartment.

At trial, the jeans, shirt, and shoes were admitted in evidence, but they were not

shown to the jury. Instead, Montgomery testified that, after testing, she did not find any

blood on the shirt or jeans. The shoes were not tested. While the negative test results

were referenced at trial, Driskill argues the clothes should have been shown to the jury,

so they could see the absence of blood firsthand, which would have altered the result of

the trial.

At the postconviction evidentiary hearing, Turlington stated she did not recall a

specific reason for failing to show Driskill’s clothes to the jury, but she also noted the

DNA report showing no blood could have impacted the decision. Dryden acknowledged

that forensic testing is more persuasive than merely viewing the item. She further

testified, trial counsel determined the laboratory result was the best evidence to show the

34 absence of blood. The circuit court found, after observing the clothes, that overt, visible

signs of blood were not present. It determined introduction of the laboratory test was

more compelling and unimpeachable than showing Driskill’s clothes to the jury.

Typically, the decision to introduce evidence is a question of trial strategy that is

virtually unchallengeable. Johnson v. State, 333 S.W.3d 459, 463-64 (Mo. banc 2011).

Trial counsel’s determination that the forensic test results constituted better evidence than

exhibiting Driskill’s clothes was a reasonable strategic decision. Even if trial counsel did

not specifically recall the strategic reason behind utilizing the test results rather than

showing the actual clothes, this cannot overcome the strong presumption that counsel’s

actions were based on sound strategy. See Bullock, 238 S.W.3d at 715. The circuit court

did not clearly err in determining trial counsel were not ineffective regarding this matter.

I. Failure to Introduce Evidence Regarding Size of the Cigarette Run

Driskill contends his trial counsel were ineffective in failing to investigate and

present evidence regarding the size of the Decade cigarette run. The victims’ son

testified his father smoked “Decades.” When his father went to Lebanon, he would

purchase a carton of the cigarettes. A package of Decade Menthol 100 cigarettes was

found in the basement of the victims’ residence. A package of Decade Menthol 100

cigarettes was also taken from Driskill’s clothing after he was taken to the hospital

following his arrest. Both packages had the same manufacturing run numbers.

Testimony at trial showed Corporal Scott Mertens contacted the company that

manufactured Decade cigarettes. The manufacturer “indicated that it was a very small

run” and that the run had been distributed to a store in Lebanon.

35 In opening statements, the State referenced the Decade cigarettes with the same

run number being found at the victim’s house and in Driskill’s clothing after he was

taken into custody. The defense, in closing argument, suggested the Decade cigarettes

from Driskill’s clothing were not his because he changed clothes at Vause’s apartment.

The State’s closing again referenced the run of cigarettes as part of the evidence

establishing proof beyond a reasonable doubt:

And these cigarettes incredibly -- incredibly, it would seem -- come from the same manufacturing run. Each pack, the one collected from the crime scene and the one taken from the Defendant’s pocket, have the same run number on the side of the packet which is produced by a very small run of cigarettes made by the Cheyenne Cigarette Company, meaning that there is a high likelihood that the Defendant took one of those packs of cigarettes from the scene of the crime on the night in question.

Dean Ramsey Stacy, the quality director at the company that manufactures the

Decade cigarettes, provided an affidavit during the postconviction proceedings. Stacy

averred that the specific lot number from the cigarettes in this case contained a run of

43,200 packs of cigarettes. This was equivalent to 4,320 cartons or 72 cases.

At the postconviction evidentiary hearing, trial counsel testified they did not recall

contacting the manufacturing company to determine how many packs of cigarettes

contained the same run number. Turlington believed some inquiry was made about the

topic. She stated she had some trial strategy for not obtaining the information, but she

could not recall it. Dryden testified the manufacturer was not contacted and she did not

specifically recall a trial strategy reason for failing to do so. Dryden further noted there

was an unsuccessful attempt to determine what shops in the area sold that run of

36 cigarettes. 12 The circuit court, upon review of the testimony and record, was confident

the jury understood the limited value of this evidence and that other packages of

cigarettes with the same run number existed. It further found trial counsel were not

ineffective for failing to prove the exact number of packages of cigarettes with the same

lot number.

Driskill argues the fact the run of cigarettes contained more than 43,000 packs

refuted one of the pillars of guilt the State relied on to show no reasonable doubt existed.

He contends showing the number of packs of cigarettes would negate the State’s

argument that he was present in the victims’ home because he had the same cigarettes.

But evidence of the approximate number of packages contained in the run would not

negate the inference that Driskill took the package from the victims’ home. The

circumstantial evidence provided by the matching run numbers would not be enhanced

nor diminished by establishing the exact quantity in the run. Driskill was not prejudiced

by trial counsel’s failure to present evidence of the quantity of cigarettes in the run.

Moreover, trial counsels’ apparent strategy was to suggest Driskill obtained the package

of cigarettes in the clothing from the apartment. Accordingly, there would have been no

value added by further investigation into the exact quantity of cigarettes in the run. The

circuit court did not clearly err in its findings.

12 Mertens’s original inquiry to the manufacturer resulted in the manufacturer faxing a list of distributors who received the cigarettes with the particular run number. Trial counsel would have had access to this list. The run was distributed to stores in multiple states, including a distributor in Lebanon. 37 J. Failure to Object to Voir Dire Questioning

During voir dire, the State repeatedly noted the crime was “horrible.” Driskill

argues his trial counsel were ineffective for not objecting to these comments. At the

postconviction evidentiary hearing, trial counsel could not recall a reason for not making

the objections. The circuit court found the State described the crime using the terms it

chose in an effort to determine if each juror could properly consider the legally available

sentences. It found these statements were not objectionable or prejudicial to Driskill.

The references to the “horrible” crime occurred in the context of the State

questioning jurors about whether, knowing the facts of the case, they could equally

consider imposing a death sentence or a sentence of life imprisonment. 13 The prosecutor

frequently stated jurors may be able to think of crimes they considered more horrible.

Contrary to Driskill’s suggestion, these repeated statements to the venire panels did not

serve to inform the jury that Driskill’s case was among the worst and warranted the death

penalty. Rather, the statements recognized the nature of the crime and served to inquire

of jurors whether they could fairly consider the legally available penalties.

13 After describing the crime in general terms, the prosecutor posited: Now, to me, that might be one of the most horrible—there’s more horrible crimes than that, but that’s a pretty horrible crime. Sir, I don’t know what the most horrible crime for you or the other jurors is, but what I need to ask you is even though you can consider a death sentence, knowing those facts, can you give equal consideration to a life sentence? (Emphasis added). Driskill’s brief focuses on 24 examples of similar references to the “horrible” crime, although this is the sole example of the prosecutor stating it is, to him, “one of the most horrible” crimes. Notably, the prosecutor immediately corrected himself. 38 Driskill also notes that a prosecutor’s statement of personal opinion or belief not

based on evidence is improper. See State v. Storey, 901 S.W.2d 886, 901 (Mo. banc

1995). But the prosecutor did not go so far as to inject his personal opinion in the

instances highlighted in Driskill’s brief. The characterization of the crime as horrible

was, like all murders, an apt description. Moreover, the brief factual scenario discussed

by the prosecutor during voir dire did not rely on facts that went beyond the evidence to

be presented at trial. Because the prosecutor’s statements during voir dire were not

improper, trial counsel were not ineffective for failing to object. The circuit court did not

clearly err in rejecting this claim.

II. Alleged Penalty Phase Errors

A. Failure to Call a Psychiatrist to Testify at Penalty Phase Regarding Driskill’s Complex PTSD

Driskill alleges his trial counsel were ineffective in failing to call an expert witness

to testify, at the penalty phase, about certain aspects of his mental health. While some

mental health testimony was presented during the penalty phase, Driskill contends

testimony that he has complex post-traumatic stress disorder (“PTSD”) resulting from

childhood trauma and sexual abuse would have created a stronger defense under the

mitigating factors in section 565.032.3. 14

14 All statutory references are to RSMo 2000. Section 565.032.3 provides, in part: Statutory mitigating circumstances shall include the following: ... (2) The murder in the first degree was committed while the defendant was under the influence of extreme mental or emotional disturbance; ... 39 Driskill called multiple experts during the penalty phase. Dr. Robert Hanlon, a

clinical neuropsychologist, analyzed Driskill’s cognitive functions after reviewing

records, interviewing family as well as friends, meeting with Driskill for eight hours, and

conducting tests. He testified Driskill had 1) been diagnosed with psychiatric disorders,

including intermittent explosive disorder, bipolar disorder, and an anxiety disorder, 2) a

history of suffering panic attacks, and 3) suffered abuse from his mother as a child.

Dr. Hanlon also stated Driskill had a cognitive disorder, which impaired his cognitive

functions. After testing, Dr. Hanlon concluded Driskill had neurocognitive deficits, such

as executive dysfunction, memory disturbance, and visual reaction time, which were

impacted by his bipolar disorder, a history of multiple concussions, and chronic

polysubstance abuse. The deficits also made Driskill less able to control his behavior and

impacted decision-making.

Dr. William Bernet, a professor emeritus of psychology, also testified in

mitigation. He specialized in forensic psychiatry, with an emphasis in how genetics

impact criminal or violent behavior. Dr. Bernet reviewed records, statements from

family, friends, as well as a treating physician, and had Driskill undergo a genetic test.

He mentioned records showed Driskill suffered abuse as a child. Dr. Bernet explained

that the abuse, in connection with a low-activity version of a specific gene, makes it more

likely an individual will be violent or arrested for committing a violent crime. As a

(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. . . . At Driskill’s trial, a jury instruction was provided for section 565.032.3(6) but not 565.032.3(2). 40 result, Driskill was significantly more likely to act violently, have trouble controlling his

behavior, struggle conforming his behavior to typical expectations, and overreact to mild

stressors. Dr. Reed Wouters, Driskill’s treating physician, presented testimony during the

penalty phase. He noted Driskill had been abused by his mother as a child and explained

the abuse, in connection with other issues, caused Driskill to experience anxiety,

paranoia, and mistrust. He previously diagnosed Driskill with a probable anxiety

disorder, likely some depression, explosive behavior disorder, and anger issues.

At the postconviction hearing, Driskill presented evidence from Dr. Stephen

Peterson, a forensic psychiatrist. Dr. Peterson reviewed numerous records, including

academic, medical, psychiatric, law enforcement, and correctional documents;

interviewed individuals familiar with Driskill; and conducted two in-person interviews

with Driskill. He diagnosed Driskill with complex PTSD, intermittent explosive

disorder, and polysubstance dependence disorder. Driskill’s PTSD is complex because

he has suffered multiple traumas. Dr. Peterson analyzed Driskill’s mental health before,

around, and after the offense. He noted Driskill’s early life was difficult, as he had an

unstable home environment, was physically and emotionally abused by his mother, spent

time in the Illinois juvenile justice system, and endured sexual abuse. According to

Dr. Peterson, many behaviors Driskill exhibited before the offense—including anxiety,

depression, suicidal ideation, and behavioral as well as emotional control problems—

were consistent with PTSD. Further, some of these behavioral issues are often

incorrectly ascribed to other disorders, such as bipolar disorder or schizophrenia, if a full

history for a patient is not kept.

41 Dr. Peterson further opined professionals often treat the symptoms of an issue

rather than reaching the root cause. He suggested this occurred with Driskill, which

explained why he had not been previously diagnosed with complex PTSD. Dr. Peterson

stated that, in the records he reviewed, he did not see any close questioning about

Driskill’s history of sexual, physical, or emotional abuse and how this impacted his

day-to-day functioning. He testified that records created after the offense supported his

opinion. Specifically, Dr. Peterson reviewed the examination conducted by Dr. Hanlon.

He also analyzed competency evaluations completed by Dr. Linda Gruenberg, an anxiety

disorder expert, and Dr. Robert Fucetola, a neuropsychologist. Dr. Peterson did not lodge

any complaints about the other experts’ evaluations, but he felt they were asking different

questions. For example, Dr. Hanlon and Dr. Fucetola are neuropsychologists, who focus

on brain function rather than the causes of such behavior. Thus, a neuropsychological

exam is not necessarily used to obtain a specific psychiatric diagnosis, although such an

exam can help inform a psychiatric diagnosis. Dr. Gruenberg also focused on Driskill’s

competency to stand trial instead of the source of his mental illness. According to

Dr. Peterson, all these factors explained why he diagnosed Driskill with complex PTSD

while others did not.

During interviews with Driskill, Dr. Peterson also learned Driskill was sexually

abused multiple times as an adolescent. The abuse was perpetrated by an older male and

female. Driskill mentioned the sexual abuse in the first interview, but he was very

guarded regarding the topic, stating he had not planned to share this information with

anyone. Driskill terminated the interview when Dr. Peterson further questioned him

42 about the subject. Driskill was agitated and nervous after the interview and requested to

be placed in isolation. Dr. Peterson testified sexual abuse victims are often reluctant to

disclose the incident, as they often feel they are to blame. Driskill also seemed worried

about the possibility of another inmate hearing of the sexual abuse. At the second

interview, Driskill provided more details. Dr. Peterson explained the abusers forced

Driskill to engage in sexual activity through threats to him and his brother and through

use of seductive behavior. Dr. Peterson also speculated why other professionals were not

able to discover Driskill’s allegations of sexual abuse, positing 1) patients are usually not

asked about sexual abuse in emergency situations because it often is not a base symptom

unless the abuse just occurred; 2) patients do not mention sexual abuse because help

likely will not be provided and this is a serious topic; and 3) professionals tend to ask

about sexual abuse generally but drop the subject when told abuse has not occurred.

Dr. Peterson testified that Driskill’s complex PTSD and intermittent explosive

disorder could have caused him to be under the influence of extreme mental or emotional

disturbance at the time of the crime and substantially impaired his ability to appreciate

the criminality of his conduct or conform his conduct to the requirements of law.

Dr. Peterson, however, acknowledged he did not specifically ask Driskill about the

murders. Instead, he focused on the potential presence of a mental disease relevant to his

conduct, not about criminal responsibility at the time of the offense. Dr. Peterson could

not offer an opinion regarding the latter issue, but he clarified that Driskill’s mental

health problems were operative at the time of the offense, which would have impacted

Driskill’s thinking. Dr. Peterson also admitted Driskill took steps to cover up the crimes,

43 indicating Driskill understood what he was doing was wrong and could be investigated

by others.

Turlington testified that trial counsel’s penalty phase theory was based on

Driskill’s mental health issues, genetic predisposition toward violence, and history of

physical abuse. She acknowledged that, while they did not call a psychiatrist, it would

have been consistent with their theory. Turlington, however, articulated a strategic

rationale for failing to call a psychiatrist—trial counsel believed they were presenting

evidence regarding Driskill’s mental health and history of abuse by other avenues. She

noted Driskill’s sexual abuse was not mentioned at trial, but other types of abuse and

trauma were presented. Turlington stated that trial counsel investigated a lack of capacity

defense by arranging a neuropsychological evaluation, a genetic test, and talking to a

family doctor who treated Driskill for anxiety and depression. Moreover, trial counsel

had two competency evaluations performed. Turlington also said they made a strategic,

intentional decision not to call every mental health expert who had prepared information

for, or was consulted by, the defense, as those experts had harmful information or could

not present relevant material. She also explained she preferred to present mitigation

evidence, when possible, from lay witnesses because her experience, as well as studies,

show juries respond better to these witnesses.

Dryden testified that evidence regarding Driskill’s PTSD and sexual abuse would

have been helpful at the penalty phase. She stated there was no strategic reason for

failing to call a psychiatrist. The circuit court, in part, reiterated trial counsel consulted

multiple mental health experts, including two psychiatrists, while preparing for Driskill’s

44 case. Dr. Peterson acknowledged these experts were competent and capable. The circuit

court also found Dr. Peterson’s testimony at the postconviction hearing was not

persuasive or particularly credible because he implied Driskill might not have understood

the wrongfulness of his conduct but did not specifically say that was true during the

offenses. Further, he did not discuss the crimes with Driskill.

A “viable defense” for the penalty phase portion of a death penalty trial is

established if there is a reasonable probability the mitigation testimony would have

outweighed the aggravation evidence, leading the jury to impose a sentence other than the

death penalty. McFadden, 553 S.W.3d at 308. “In a death penalty case, trial counsel has

an obligation to investigate and discover all reasonably available mitigating evidence[.]”

Id. Yet trial counsel is not required to continue investigating when there is reason to

believe further inquiry will be unhelpful and results will be unfruitful. Id. Because of

real world constraints on time and human resources, trial counsel is entitled to great

deference regarding the pursuit of witnesses. Id. at 309. Finally, “[d]efense counsel is

not obligated to shop for an expert witness who might provide more favorable

testimony.” Johnson, 333 S.W.3d at 464.

Trial counsel’s selection of penalty phase experts was reasonable. Turlington

testified they made intentional decisions regarding the mental health testimony presented.

Trial counsel believed evidence regarding Driskill’s history of abuse was adduced via

other avenues, such as lay witnesses, which Turlington’s experience and studies have

shown is more impactful. They also strategically decided not to call every potential

expert. Further, trial counsel made these decisions after investigating a lack of capacity

45 defense, consulting multiple qualified experts, subjecting Driskill to neuropsychological

as well as genetic tests, and analyzing Driskill’s medical history. Trial counsel engaged

in due diligence, and their decision as to which witnesses to call was not unreasonable.

Driskill has failed to overcome the strong presumption that trial counsel acted reasonably

and rendered proper assistance.

The circuit court found Dr. Peterson’s opinion was not credible, noting he did not

speak with Driskill about the murders. This Court defers to the circuit court’s credibility

findings. Shockley, 579 S.W.3d at 892. Driskill contends Dr. Peterson did not need to

discuss the crimes with him because the issue is whether the testimony would support the

statutory mitigators. The mitigators utilized by Driskill, however, are assessed at the time

of the crime. See section 565.032.3(2) (“The murder in the first degree was committed

while the defendant was under the influence of extreme mental or emotional

disturbance[.]”); section 565.032.3(6) (“The capacity of the defendant to appreciate the

criminality of his conduct or to conform his conduct to the requirements of law was

substantially impaired[.]”). Dr. Peterson acknowledged Driskill attempted to cover up

the murders, indicating he knew his actions were wrong and likely to be investigated.

Dr. Peterson opined Driskill was suffering from mental health issues before the crime and

that these issues likely persisted during the murders. Yet Dr. Peterson’s failure to ask

about the offenses limits the helpfulness of his testimony.

Dr. Peterson’s testimony was also largely cumulative of other evidence presented.

Driskill claims Dr. Peterson’s testimony was crucial and stronger than evidence presented

at trial because it explained Driskill had complex PTSD and experienced sexual abuse as

46 a child. During the penalty phase, Dr. Hanlon testified that Driskill had been previously

diagnosed with intermittent explosive disorder, bipolar disorder, and an anxiety disorder.

He also stated Driskill had a history of polysubstance dependence. Dr. Wouters

reaffirmed Driskill struggled with anxiety, paranoia, and mistrust, explaining he

diagnosed Driskill with a probable anxiety disorder, likely some depression, explosive

behavior disorder, and anger issues. Both experts, as well as Dr. Bernet and multiple lay

witnesses, testified Driskill was physically abused by his mother as a child. In contrast,

Dr. Peterson diagnosed Driskill with complex PTSD, intermittent explosive disorder, and

polysubstance dependence disorder. He also learned Driskill, in addition to physical

abuse by his mother, was sexually abused during his childhood.

Despite these differences, the conclusions reached by the experts were similar.

Dr. Hanlon explained Driskill was less able to control his behavior or make good

decisions due to neurocognitive deficits. Dr. Bernet testified Driskill was more likely to

act violently and less able to control his behavior or conform his actions to typical

expectations because of his genetics and history of abuse. Dr. Peterson concluded

Driskill’s mental health issues could have caused him to be under the influence of

extreme mental or emotional disturbance at the time of the crime and substantially

impaired his ability to appreciate the criminality of his conduct or conform his conduct to

the requirements of law. Even though the specific mental health problems might have

differed, all experts reached the conclusion that these issues impacted Driskill’s behavior.

Given the weaknesses in Dr. Peterson’s testimony, its similarity to other penalty phase

evidence, and the circuit court’s finding that Dr. Peterson was not credible, Driskill has

47 not established Dr. Peterson’s testimony would have persuaded the jury to impose a life

sentence. The circuit court did not clearly err in determining trial counsel were not

ineffective for failing to call a psychiatrist during the penalty phase.

B. Failure to Call Mitigation Witnesses

Driskill alleges his trial counsel were ineffective in failing to call four additional

mitigation witnesses—Johnnie Gates, Michelle Clark, Peyton Stokesberry, and Jesse

Simmons. Supposedly, these witnesses would have provided important background

information regarding Driskill’s mental health issues and demonstrated Driskill had a

loving relationship with his children.

At the penalty phase, Driskill presented mitigating evidence from Amanda

Warner, Crystal Fortune, and other lay witnesses. Warner, who dated Driskill’s brother

when she was 15, testified Driskill had a difficult childhood. She explained Driskill’s

father was an alcoholic, and Driskill’s mother abused the boys. Warner stated she knew

Driskill was bipolar; had issues with anxiety, even describing an instance where he

blacked out as a result of a panic attack; and struggled with drugs. She stated Driskill

was good with her children when medicated. Warner maintained contact with Driskill

while he was in prison and planned to continue doing so.

Driskill’s seventh grade teacher, Crystal Fortune, also testified. She suspected

Driskill had been abused because he came to school with bruises. Fortune reported her

suspicions to the principal, who believed this was not an abuse situation. Fortune

disagreed and placed a letter of disagreement in Driskill’s file. Trial counsel read a letter

from Driskill’s younger brother, which provided that Driskill served as a protector during

48 their childhood. The brothers spent a lot of time together, and Driskill was always

available to help.

1. Johnnie Gates

Gates was incarcerated in the Illinois Juvenile Justice System starting in 1989. At

the postconviction evidentiary hearing, Gates testified about the conditions in those

facilities, stating they were worse than adult correctional institutions in Missouri. He

explained fights were common, stronger individuals preyed on weaker individuals, and

sexual abuse occurred. According to Gates, gangs were present and non-members were

treated poorly. He further stated residents lived in a constant state of fear, unless they

were in solitary confinement, because guards were unhelpful. Gates acknowledged he

and Driskill were not in the system at same time. Instead, he met Driskill at a Missouri

correctional institution sometime after 2008. Gates testified he could tell Driskill had

been in the Illinois juvenile justice system by his demeanor. He later confirmed this

hunch was correct, determining Driskill had been in at least the same intake facility.

Both Turlington and Dryden testified they attempted to obtain Driskill’s Illinois juvenile

records, but they had been destroyed. They could not recall a strategic reason for not

presenting evidence regarding the above conditions. The circuit court, in part, noted

Gates and Driskill were not in the same facilities at the same time and determined his

testimony would not have changed the outcome of trial.

This Court previously rejected a similar claim. See McFadden, 553 S.W.3d at

310. There, McFadden claimed trial counsel should have called two lay witnesses to

testify about the terrible living conditions in his childhood neighborhood. Id. at 298, 310.

49 Because those witnesses, however, did not know McFadden and could only testify about

general social conditions, their testimony was speculation. Id. at 310. Moreover, gangs

were responsible for much of the violence in the area. Id. The prosecution could have

used this information on cross-examination to suggest McFadden was a member, rather

than a victim, of the gangs, which would have been harmful. Id. Similarly, Gates and

Driskill were incarcerated in the Illinois juvenile justice system at different times. Gates

could only speculate regarding the conditions Driskill experienced. His testimony would

also open the door for potentially harmful cross-examination. Because Gates said

non-gang members were treated poorly and stronger individuals preyed on weaker

individuals, the prosecution could have utilized this information to suggest Driskill was a

gang member or a perpetrator of violence instead of a victim.

2. Michelle Clark

Clark had a romantic relationship with Driskill when she was 15 and he was 17.

During the postconviction proceedings, she explained their relationship began well.

Clark testified Driskill revealed he had been sexually abused to her. She stated Driskill

showed extreme paranoia, such as delusions or hallucinations, and provided an example

of this behavior. Clark also explained she had a child with Driskill. One morning, later

in her pregnancy, she went to Driskill’s home and found him with another woman. At

that point, Driskill said he was finished with Clark and suggested she have an abortion.

Turlington believed Clark was contacted, but she was not extensively interviewed.

Dryden thought Driskill did not want Clark contacted. The circuit court noted Driskill

50 ended his relationship with Clark and suggested she abort her child, holding Clark did not

present evidence that would have caused the jury to impose a different sentence.

Multiple penalty phase witnesses explained Driskill suffered from anxiety,

paranoia, and other mental health issues. As a result, some of Clark’s testimony would

have been cumulative. To the extent the evidence was not cumulative, Clark’s testimony

would have allowed for damaging cross-examination. The prosecution could have

utilized this information, which would have been harmful to Driskill.

3. Peyton Stokesberry and Jesse Simmons

Stokesberry believed Driskill was her father until around 2014 when she

discovered that was not true. Despite this, she still considers him as her father and feels

their relationship is important. Stokesberry acknowledged Driskill was frequently in

prison during her childhood, but she stated that, when he was not in prison, he was a good

father who often spent time with his children, taking them to the movies, to get ice cream,

or spending the night with them. Stokesberry indicated she has stayed in contact with

Driskill while he has been incarcerated by writing letters, making regular phone calls, and

visiting. Driskill also has given her fatherly advice. While Stokesberry lives in

Tennessee, she planned to visit Driskill and would remain involved in his life if he

received a sentence of life without parole. Stokesberry believed trial counsel attempted

to reach her. She would have testified, but her grandmother resisted because the family

was being harassed.

Simmons is Driskill’s son. At the evidentiary hearing, he testified he did not see

Driskill much because he was often in prison. Yet he enjoyed spending time with

51 Driskill, and they were sometimes together on holidays and special occasions. Driskill

also provided fatherly advice. Simmons intended to maintain his relationship with

Driskill and would continue to do so if a sentence of life without parole was imposed.

Simmons believed trial counsel attempted to reach him, and he would have testified if

asked.

Turlington did not remember interviewing Stokesberry or Simmons. Dryden

recalled attempting to contact Stokesberry, but Driskill did not want to involve her.

Driskill’s mother, with whom Stokesberry was living, prohibited trial counsel from

contacting the child. Dryden further explained they could have subpoenaed Stokesberry

but did not do so because there were concerns, after discussions with Driskill, she would

be harmed if she testified. Dryden explained Simmons was also living with Driskill’s

mother at the time. Trial counsel had similar experiences attempting to have Simmons

testify, and he was not called for the same reasons. The circuit court noted trial counsel

contemplated calling the children as witnesses, but they decided not to because their

grandmother was resistant. The circuit court also found the children, because of their

minimal contact with Driskill, could offer only limited testimony.

The decision not to call Driskill’s children was reasonable. “Trial counsel will not

be found ineffective for failing to call an uncooperative witness.” Anderson, 564 S.W.3d

at 611. While the children themselves were willing to testify, other relatives were

resistant. Both children were living with Driskill’s mother and, as the individual

responsible for the children, she prevented trial counsel from speaking to the children.

Driskill himself did not want the children to testify due to concerns for their safety.

52 These fears were legitimate, as the family had already been subjected to harassment.

Further, the children spent limited time, and had a limited relationship, with Driskill

because he was often in prison. Due to these circumstances, Driskill did not establish

calling his children would have persuaded the jury to impose a life sentence. The circuit

court did not clearly err in rejecting this claim.

III. Constitutional Validity of Postconviction Time Limits

Driskill alleges Rule 29.15’s time limits are unconstitutional, as postconviction

counsel is unable to adequately investigate and prepare an amended motion in the allotted

time. 15 To support this contention, Driskill references the extensive trial record from this

case and notes postconviction counsel were representing individuals in two other capital

postconviction cases at the same time. Driskill notes his amended petition challenged the

constitutional validity of the time limits. The circuit court rejected the claim, noting, in

part, the time limits have been upheld by this Court.

Rule 29.15(b) provides that, if a conviction is affirmed on appeal, a motion for

postconviction relief must be filed within 90 days after issuance of the appellate court’s

mandate. In turn, Rule 29.15(g) specifies the time limit for filing an amended motion.

This Court has consistently held that Rule 29.15’s time limits are constitutional. Price v.

State, 422 S.W.3d 292, 297 (Mo. banc 2014); State v. Ervin, 835 S.W.2d 905, 929 (Mo.

banc 1992). The limitations, which serve the important purposes of “avoiding delay in

15 Driskill maintains seven additional, untimely claims should be considered. While the circuit court heard evidence on one claim—that the State committed a Brady violation by failing to disclose contamination and technical error logs from the MSHP Laboratory—it noted Driskill admitted the claim was not pleaded. 53 the processing of prisoners[’] claims and prevent[ing] the litigation of stale claims[,]” are

also reasonable. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). 16

Driskill briefly argues postconviction counsel cannot provide effective assistance

of counsel within Rule 29.15’s time limits. Driskill raises only cursory allegations and

fails to specifically demonstrate how he has been prejudiced by these time limits.

Without pointing to a certain portion or page of the opinion, he cites Martinez v. Ryan,

566 U.S. 1 (2012), to contend postconviction counsel must be effective and raise all

meritorious claims to comply with due process. Martinez, however, addressed a different

issue and did not create such a requirement. See id. at 8-9. This Court has said “[t]he

lack of any constitutional right to counsel in post-conviction proceedings . . . precludes

claims based on the diligence or competence of post-conviction counsel (appointed or

retained) and such claims are ‘categorically unreviewable.’” Price, 422 S.W.3d at 297

(citation omitted). Driskill’s attempt to transform his time-limit argument into an

ineffective assistance of postconviction counsel argument fails. The claims were not

asserted in a timely filed amended motion. The circuit court properly determined Rule

29.15’s time limits were constitutional, and failure to consider the additional claims was

not clear error.

16 Driskill notes this Court, in Rule 29.16(e), recently extended the time limit for filing a postconviction relief motion in capital cases. The provision of additional time, however, does not establish the previous requirement was unconstitutional. 54 Conclusion

The circuit court’s findings of fact and conclusions of law are not clearly

erroneous. The judgment denying Driskill postconviction relief is affirmed.

______________________________ Mary R. Russell, Judge

Draper, C.J., Wilson, Powell, Breckenridge and Fischer, JJ., concur.