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APPEAL FROM CIRCUIT COURT OF LACLEDE COUNTY. Honorable Kenneth M. Hayden, Judge.
Driskill was represented by Rosemary E. Percival of the public defender's office in Kansas City.
State was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City.
Russell, C.J., Fischer, Wilson and Teitelman, JJ., concur; Breckenridge, J., dissents in separate opinion filed; Stith, J., concurs in opinion of Breckenridge, J.
George W. Draper III, Judge
Jesse Driskill (hereinafter, " Driskill" ) was found guilty of two counts of first-degree murder, section 565.020, RSMo 2000, one count of forcible rape, section 566.030, one count of forcible sodomy, section 566.060, and five counts of armed criminal action, section 571.015. Consistent
with the jury's recommendations, Driskill received two death sentences, a consecutive fifteen-year term of imprisonment on the burglary count, and seven consecutive life sentences on the remaining counts. This Court has exclusive jurisdiction. Mo. Const. art. V, sec. 3. The judgment is affirmed.
On July 25, 2010, Driskill and Jessica Wallace (hereinafter, " Wallace" ) were at the Prosperine River Access on the Niangua River. Together, they did drugs and later " ended up having sex." Driskill and Wallace were interrupted by a police officer. Driskill ran off into the woods with his clothes and a gun. Wallace spoke to the police officer and returned home.
Contemporaneously, J.W. and C.W. (collectively, hereinafter, " the victims" ) were at their home, located approximately one and one-half miles from the Prosperine River Access. J.W. was 82 years old; C.W. was 76. The victims were celebrating their fifty-ninth wedding anniversary. They were due to return to Highlandville, Missouri, the next day.
When the victims never returned to Highlandville, family members became worried. Multiple attempts were made to reach the victims by telephone, but without success. Concerned family members also contacted hospitals to inquire about the victims, pondering whether they could have had an accident.
On the evening of July 26, the following day, family members arrived at the country house. When they arrived at the house, the doors were locked and the victims' vehicle was not present. One relative entered the residence through a window. The interior was " smoky and smelly." In the dining room, the relative saw C.W.'s feet sticking out from under a big pile of smoldering blankets.
The relative opened the front door and told the victims' son to come inside. Together, they found J.W. underneath another pile of blankets with chairs piled on top of him. There were pools of blood near the victims' heads. They called the police.
When the police officers arrived, they found no signs of forced entry. There was an odor of accelerant near the victims. C.W. had burn marks around the top part of her body. Paper towels had been wadded up and burned in her groin area. There was a clear fluid and blood draining from her vaginal and anal areas. C.W. had a blackened area beneath both eyes and a wound above her right eyebrow. J.W. was naked, except for his shoes, and there was a plastic bag over his head. A large amount of blood had drained out of the bag and soaked the carpet beneath his head. There was a wound on his face. C.W.'s purse was emptied on the floor. There was a can of gasoline in the hallway. While police officers were conducting their investigation in the victims' home, they received reports of a burning vehicle near Conway, Missouri.
Meanwhile, Driskill called Wallace, telling her that he needed a ride. Driskill called her again, asking to be picked up on Highway N in Conway. Wallace drove to meet Driskill but had difficulty locating him. She drove up and down the highway a couple of times and stopped at a gas station. She saw smoke in the distance and first responders heading toward the smoke. She eventually went home without locating Driskill.
At approximately 10:45 p.m., Driskill went to Hannah's General Store in Conway to charge his cell phone, but there was no charger. Driskill then went to a nearby
Budget Inn, asking to use its telephone. Driskill reached Jessica Cummins (hereinafter, " Cummins" ), and he asked her to come get him. Cummins agreed and met Driskill at the Budget Inn.
During the drive, Driskill kept mumbling to Cummins. He said he had " shot someone" and that he " messed up really bad." Cummins also thought he said he had " shot up" some drugs.
About 11:33 p.m., a highway patrol sergeant went to the scene of the burned vehicle, located near the county line of Laclede and Dallas counties. The sergeant recovered the license plate from the vehicle and discovered the vehicle belonged to the victims.
Cummins dropped Driskill off a little after midnight at Codi Vause's (hereinafter, " Vause" ) house in Lebanon, Missouri. Driskill appeared anxious and exhausted, saying he " needed some help," indicating the authorities were after him. Driskill stated he needed new clothes and that he had killed a couple of people.
At some point, Driskill called Wallace and told her he committed a home invasion, robbery, and a double homicide. Wallace drove to Vause's house. Driskill explained to the group that an elderly couple caught him going through their shed or garage and that he murdered them. Driskill further stated that he ordered them into their house while holding up his gun. Inside the victims gave Driskill money, but Driskill said it was not enough. Driskill then shot J.W., told C.W. to bend over, and raped her. He shot C.W. in the face, but she tried to get away, so Driskill shot her two more times and " put a plastic bag down her throat and a pillow over her head." 
Driskill detailed how he attempted to clean up the evidence. Driskill said he shaved C.W.'s " pussy" and " poured bleach inside of her." Driskill put newspaper in her vaginal area, poured gasoline on her, and lit it. Driskill then used five gallons of gasoline to burn the house. He took the victims' vehicle, which he later burned. Driskill said his shoes were filled with blood.
After listening to Driskill, Wallace left and went to a store where a friend worked. Wallace was upset and crying. A police officer at the store asked her what was wrong. Wallace recounted Driskill's story to the police officer.
Cummins then returned to Vause's home. Driskill was washing out his shoes in the kitchen sink. Driskill changed his clothes and directed Vause to get rid of the clothes he had been wearing. Vause put the clothes into a trash bag. Driskill fell asleep on the couch. The others told Cummins what Driskill told them; they decided to call the police, and they each provided a statement.
On July 27, at approximately 1:45 a.m., law enforcement officers arrested Driskill while he was sleeping on the couch at Vause's home. Driskill awoke and resisted his arrest. During the arrest, Driskill's head hit a coffee table, resulting in a laceration. Driskill continued to resist and was tasered. The officers finally handcuffed Driskill and took him to the hospital for treatment. The officers also seized the trash bag containing Driskill's clothes.
Several hours later, law enforcement officers executed a search warrant to collect " DNA, hair samples, anything that would have been involved with  Driskill or the homicide." They conducted a gunshot residue
test. They collected blood stains from Driskill's hands. They seized an unlabeled pill bottle and found a pack of cigarettes in his clothes that had the same " run number" as ones at the victims' home. They also conducted a sexual assault kit on Driskill.
Both of the victims' bodies were autopsied. C.W. had extensive burns on her face, head, back, and legs. The burns were direct thermal injuries, indicating the fire was in constant contact with her skin. There were burnt paper towels and calendar pages between her legs. There was a gunshot wound that traveled along her jawline, exited her neck, and reentered her shoulder. C.W. also was shot above the left eye. This shot was instantly incapacitating and fatal; it was fired from " near contact" or less than an inch away. C.W. had a laceration along her right eyebrow from blunt trauma, and her skull was fractured beneath that laceration. Additionally, C.W. had injuries consistent with sexual assault. There were bruises and tears at the entrance to C.W.'s vagina from penetrating injuries. There were also two small tears at the entrance to C.W.'s rectum.
During the autopsy of J.W., a wadded-up plastic bag was found in his throat. J.W. had a gunshot wound that indicated a bullet entered his right cheek, went through his tongue and throat, exited his neck, and lodged in his shoulder. While this gunshot wound was potentially fatal, J.W.'s cause of death was determined to be asphyxiation due to the plastic bag.
The vaginal swabs from C.W. were subjected to DNA analysis. The first swab produced a mixture from two individuals, C.W. and Driskill. J.W. was eliminated as a contributor to the DNA mixture. Additional testing revealed that it was 94.97 billion times more likely that the mixture was produced by C.W. and Driskill than by C.W. and some other unknown person.
On July 27, 2010, the state filed a complaint and subsequently charged Driskill by amended information with two counts of first-degree murder, one count of first-degree burglary, one count of forcible rape, one count of forcible sodomy, and five counts of armed criminal action. On November 1, 2010, the state gave notice it intended to seek the death penalty.
In July 2013, Driskill's counsel advised the trial court that Driskill suffered from " anxiety disorder" and " intermittent explosive disorder." Defense counsel then requested, should Driskill believe he would have a panic attack, that he be permitted to leave the courtroom and participate in part of proceedings via a closed-circuit television. The trial court questioned Driskill regarding his counsel's request. Driskill confirmed that he wanted to be able to leave the courtroom, if he felt he would have a panic attack.
On August 14, 2013, Driskill's counsel again requested the trial court accommodate Driskill by allowing him to remove himself from the courtroom and observe the proceedings by closed-circuit television if he felt he was about to have a panic attack. At that time, Driskill's counsel advised the trial court that it retained an expert (hereinafter, " Dr. Gruenberg" ) who determined in May 2013, that Driskill was incompetent to stand trial without being medicated. Driskill's counsel then disclosed Driskill was evaluated by another expert (hereinafter, " Dr. Fucetola" ) in July 2013, who determined that Driskill was competent to stand trial without being medicated. Driskill's counsel stated that
" we may have to ask for a competency evaluation in the middle of trial."
During voir dire on August 14, 2013, Driskill's counsel informed the trial court that Driskill needed to leave the courtroom. Accordingly, the trial court called a recess and allowed Driskill to leave. Driskill's counsel notified the trial court that Driskill had suffered a panic attack outside the courtroom and did not " think that he [could] participate in the trial right now at this moment meaningfully."
Driskill was escorted to a cell. When he entered the cell, a deputy observed him punch the wall, appear to be red in the face, crying, rubbing his head, and kneeling over as if his stomach were hurting. A second deputy reported Driskill had been sick.
Driskill's counsel requested a competency examination. The trial court inquired as to the results of Driskill's two previous examinations. Driskill's counsel informed the trial court that, while Dr. Fucetola's examination was more proximate in time, Dr. Fucetola could not give an opinion as to whether during the middle of trial Driskill would be competent if he suffered a panic attack. The trial court noted that if Driskill were evaluated again in jail, the examination would be no different in that he would not be evaluated at the time of trial, and it denied the request for another competency evaluation.
After Driskill calmed down, defense counsel spoke briefly with him. Defense counsel reported to the trial court that she did not have " a really good conversation with him." Defense counsel believed Driskill was not able to participate actively in trial. Further, defense counsel requested a recess for the day with the accommodation of allowing Driskill to participate by closed-circuit television on the following day. The trial court agreed, recessing for the day and allowing Driskill to participate via closed-circuit television the following day. Driskill's counsel clarified that the request for participation via closed-circuit television was in lieu of the motion for a competency evaluation because the trial court had overruled the motion for a competency evaluation.
On August 15, 2013, at the trial court's request, Driskill admitted the evaluations of Drs. Gruenberg and Fucetola into the record. Dr. Gruenberg's report dated May 13, 2013, concluded that Driskill was " incompetent for trial without being placed on Neurontin." Dr. Fucetola's examination conducted on July 13, 2013, concluded that Driskill " does have the adequate capacity to appreciate his own legal situation, he has a rational understanding of the legal situation, he has an adequate factual understanding of the legal system and process of adjudication and the capacity to assist his own counsel in his defense."
The trial court questioned Driskill, who was participating in the proceedings via closed-circuit television. The trial court inquired as to whether Driskill was able to hear the proceedings and how he was feeling. Driskill confirmed that he was able to hear the proceedings and that he was calmer; there was nothing prohibiting him from understanding the proceedings. Driskill asked to be excused from the courtroom for the day, and he understood he had a right to be present. Further, Driskill stated he had no questions and did not need additional time to speak with his counsel. Driskill corroborated the fact that he wanted to participate via closed-circuit television for the day's proceedings and he had not been threatened or promised anything to induce him to participate by the closed-circuit television system. The trial court found that Driskill was calm, and there was no evidence before the
court that he was suffering from any duress. Driskill stated that he hoped to return to the courtroom on the following day.
Defense counsel reiterated the belief that Driskill was not competent to proceed without medication. The trial court directly questioned Driskill, who stated he was thinking clearly and nothing was preventing him from communicating with his counsel or assisting in his defense. Driskill confirmed he had a telephone so he could communicate with his counsel, either by calling or texting. The trial court observed, and Driskill confirmed, that he was calmer than the previous day.
On August 16, 2013, Driskill was present in the courtroom. There were no issues.
On the fourth day of trial, August 19, 2013, Driskill was present in the courtroom when the guilt phase of his trial began. Driskill's counsel requested a competency evaluation and presented an e-mail from Dr. Fucetola, which was received over the weekend. Dr. Fucetola's statement indicated that based on his understanding of the events during voir dire, in the moments before, during, and after a panic attack, Driskill may not be able to assist his counsel adequately.
There were no issues on the fourth day of trial. At the end of the day, defense counsel reported Driskill was able to converse with her, answer questions, and assist in his defense. Driskill's counsel had no reason to believe he was " under any type of duress or mental disability" during the day.
On the fifth day of trial, August 20, 2013, Driskill was present in the courtroom. The state concluded presenting its case. There was no indication ...