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McFadden v. State

Supreme Court of Missouri, En Banc

July 17, 2018

VINCENT McFADDEN, Appellant,
v.
STATE OF MISSOURI, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable Tommy W. DePriest, Jr., Judge

          Laura Denvir Stith, Judge

         Vincent McFadden appeals the motion court's denial of postconviction relief from his conviction and death sentence for the first-degree murder of Leslie Addison. He claims the motion court committed multiple errors, including that the judge should have permitted him to question all jurors instead of just two jurors in an attempt to prove a juror knew Mr. McFadden previously, that the postconviction process was tainted by a ruling on the juror issue by a judge who later recused, and that defense counsel were ineffective in failing to call additional lay and expert witnesses in the guilt and penalty phase. This Court holds the motion court's findings of fact and conclusions of law are not clearly erroneous. The judgment denying postconviction relief is affirmed.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The detailed facts are set out in Mr. McFadden's prior appeals and will be repeated here only insofar as they are relevant to his postconviction claims. On May 15, 2003, Eva Addison[1] was at Maggie Jones' house on Blakemore in Pine Lawn when Mr. McFadden arrived at the house with a friend.[2] Eva and Mr. McFadden had a child together. When Mr. McFadden got out of the car, he kissed the child, slapped Eva, and told her she and her two sisters, Leslie and Jessica, needed to stay out of Pine Lawn. Mr. McFadden and his friend then got back in the car and left.

         When Leslie and Jessica later arrived, Eva told them of Mr. McFadden's warning and advised them to leave Pine Lawn. Jessica left with Eva's child soon thereafter. Before Leslie could leave, Mr. McFadden returned with his friend, as did another friend of Mr. McFadden's, Arnell Jackson, driving a separate car. Mr. McFadden and Leslie got into an argument outside of the house. He pointed a gun at her and pulled the trigger, but the gun did not fire. Mr. Jackson told Mr. McFadden to leave the women alone because he knew Mr. McFadden was wanted for the murder of Todd Franklin. As Mr. McFadden turned to leave, he stated, "one of these 'ho's' has got to die tonight." He and his friends then got back in their cars.

         Before driving away, Mr. McFadden got out of his friend's car and started to walk back toward Ms. Jones' house, but before reaching it, he heard police sirens and quickly fled. In the meantime, Leslie began walking down Blakemore and turned on Naylor and Kienlen to go to a nearby payphone to call for a ride out of Pine Lawn. Eva saw the car Mr. McFadden had been riding in come around a corner onto Kienlen and ran to urge Leslie to come back to the house, but Leslie waved her off and continued walking toward the payphone. Eva then saw Mr. McFadden get out of the friend's car and walk toward Leslie. Afraid, Eva hid in some nearby bushes. She heard Mr. McFadden yelling at Leslie and watched him shoot her several times. Leslie died from a gunshot wound to her head.

         Police arrested Mr. McFadden two days later. The State charged him with first-degree murder, armed criminal action, and tampering with a witness. A jury found him guilty on all three counts in 2005 and recommended the death penalty. This Court reversed and remanded for a new trial in State v. McFadden, 216 S.W.3d 673, 677 (Mo. banc 2007), because the State's discriminatory jury selection in the first trial violated Batson v. Kentucky, 746 U.S. 79 (1986), and because Mr. McFadden's prior convictions for armed criminal action and the murder of Mr. Franklin, which had been submitted as statutory aggravators, later were reversed in State v. McFadden, 191 S.W.3d 648 (Mo. banc 2006).[3]

         The State retried Mr. McFadden for Leslie's death in 2008. During the guilt phase of his second trial, the State presented testimony from Eva, the only eyewitness to the murder. Evelyn Carter and Jessica also testified, corroborating various aspects of Eva's testimony. So too did Stacy Stevenson, a nearby neighbor, who said he heard two women arguing in the street, watched as a man followed a woman around the corner on Kienlen, and then heard arguing followed by gunshots. After the gunshots, Mr. Stevenson ran toward the shots, saw Leslie's body lying in the street, and called 911. The State also called the paramedic who first arrived at the scene, the police officer who investigated the case, three detectives, and a medical doctor. Mr. McFadden did not testify or present any evidence during the guilt phase. The jury found him guilty of first-degree murder, armed criminal action, and witness tampering.

         Both the prosecution and defense presented evidence during the penalty phase. The State submitted two statutory aggravators based on Mr. McFadden's previous convictions of first-degree murder and armed criminal action for killing Mr. Franklin with a deadly weapon. The State submitted four additional statutory aggravators based on his convictions on two counts of first-degree assault and two counts of armed criminal action for shooting at Daryl Bryant and Jermaine Burns. The State entered certified copies of those convictions into evidence and elicited testimony from witnesses about the underlying facts of those crimes. The State also presented evidence of non-statutory aggravating circumstances, including that Mr. McFadden made earlier threats to the Addison sisters and lacked remorse for murdering Mr. Franklin.

         The same two counsel represented Mr. McFadden in his first trial for the murder of Leslie and in both trials for the murder of Mr. Franklin. In all three trials, defense counsel presented experts to help the jury understand Mr. McFadden's limited mental capacity, the effect on him of childhood traumas, and the difficulties he faced growing up poor and bullied in Pine Lawn. Counsel believed these experts failed to "relate" to the jury and their testimony distracted from lay witness testimony about these issues. Counsel made the strategic decision to present mitigation testimony about these issues in the retrial regarding Leslie's murder using only lay witnesses, as is discussed in more detail later in this opinion.

         The jury found all six statutory aggravators beyond a reasonable doubt and recommended a death sentence, which the circuit court imposed. This Court upheld the conviction and sentence. State v. McFadden, 391 S.W.3d 408 (Mo. banc 2013).

         Mr. McFadden timely filed pro se and amended motions seeking postconviction relief pursuant to Rule 29.15. After an evidentiary hearing, the motion court denied relief. Mr. McFadden appeals. Because the sentence imposed was death, this Court has jurisdiction. Mo. Const. art. V, sec. 10; Standing Order, June 16, 1988 (eff. July 1, 1988).

         II. STANDARD OF REVIEW

         "This Court reviews an order overruling a Rule 29.15 motion for postconviction relief to determine 'whether the motion court's findings of fact and conclusions of law are clearly erroneous.'" Gittemeier v. State, 527 S.W.3d 64, 67 (Mo. banc 2017), quoting, Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014); 29.15(k). This standard is met if the appellate court is left with a "definite and firm impression that a mistake has been made." Id. at 67-68. "This Court presumes that the motion court's findings are correct." Barton v. State, 432 S.W.3d 741, 748 (Mo. banc 2014) (citation omitted). This Court defers to "the motion court's superior opportunity to judge the credibility of witnesses." Id. at 760, quoting, State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991).

         To prevail on a claim of ineffective assistance of counsel, a postconviction movant must satisfy the two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984). "Under Strickland, a movant must demonstrate: (1) his or her counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he or she was prejudiced by the failure." Johnson v. State, 406 S.W.3d 892, 898-99 (Mo. banc 2013). "Both of these prongs must be shown by a preponderance of the evidence in order to prove ineffective assistance of counsel." Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009) (citation omitted).

         There is "a strong presumption that counsel's conduct was reasonable and effective to meet the first prong of the Strickland test." Id. at 176. To overcome that presumption of reasonableness, a movant must point to "specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (citation omitted). "[C]ourts distinguish between actions that result from inadequate pretrial preparation and those that are the product of trial strategy decisions." Chambers v. Armontrout, 907 F.2d 825, 835 (8th Cir. 1990). "Counsel is not ineffective as long as the investigation is reasonable." Middleton v. State, 80 S.W.3d 799, 809 (Mo. banc 2002), citing, Strickland, 466 U.S. at 691. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible opinions are virtually unchallengeable." Strickland, 466 U.S. at 690.

         To prove the prejudice prong of Strickland, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. When the issue is whether to grant a new trial on the imposition of a sentence of death the Court determines "whether there is a reasonable probability that, absent the errors, the [jury] … would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id.

         III. ALLEGED POSTCONVICTION RELIEF PHASE ERRORS

         In his postconviction motion, Mr. McFadden claimed the circuit court erred in limiting his ability to inquire into whether Juror Williams intentionally lied during voir dire when he said he did not recognize Mr. McFadden. In preparing Mr. McFadden's appeal, appellate counsel learned Juror Williams had served on the venire panel of one of Mr. McFadden's unrelated previous assault cases but was not chosen as a juror. On direct appeal, Mr. McFadden alleged Juror Williams' failure to disclose he had been on the venire panel was intentional and not simply a result of a faded memory. This Court rejected the claim because the record contained no factual basis to support the claim the nondisclosure was intentional. McFadden, 391 S.W.3d at 417-19.

         In preparing his postconviction motion, Mr. McFadden's motion counsel attempted to correct his deficiency of proof on direct appeal by moving for permission to contact all 170 venire members to ask them if Juror Williams told them he knew Mr. McFadden. St. Louis County local rule 53.3 provides in pertinent part:

Petit jurors shall not be required to provide any information concerning any action of the petit jury, unless ordered to do so by the Court. … If an attorney or party receives evidence of misconduct by a petit juror, the attorney or party shall inform the Court and the Court may conduct an investigation to establish the accuracy of the misconduct allegations.

         Judge Goldman, over objection, granted the motion in part, ruling he would examine Juror Williams and another randomly selected person who actually served as a juror. Judge Goldman did so in September 2013, in chambers and on the record. Juror Williams repeatedly stated he did not remember Mr. McFadden from the prior assault case. The randomly chosen other juror, who had been sitting next to Juror Williams during trial, testified she did not hear anything to suggest Juror Williams remembered Mr. McFadden from being on the venire or otherwise. Motion counsel did not renew his request to question all 170 venire members but did again request permission to question "all the jurors who sat on the jury, even the individuals who were the alternates." Judge Goldman denied counsel's request for additional inquiry.

         In May 2014, while the postconviction motion was still pending but after interviewing the two jurors, Judge Goldman recused himself from further postconviction proceedings because he realized he often talked about pending cases not assigned to him with one of the local prosecutors, and it was this prosecutor who tried Mr. McFadden's underlying death penalty case. Although Judge Goldman did not recall the prosecutor discussing Mr. McFadden's case with him, since it was possible that had occurred Judge Goldman recused himself "out of an abundance of caution" because "this was such a serious case."

         The case was reassigned to Judge Dolan. Counsel renewed the motion to contact additional jurors. Judge Dolan overruled the motion. The case later was reassigned to Judge DePriest, who overruled yet another motion to interview additional jurors. Judge DePriest held a further evidentiary hearing but did not permit counsel to call further jurors for questioning at that hearing. He then overruled Mr. McFadden's postconviction motion.

         A. The Motion Court Did Not Err in Limiting Juror Questioning

         Mr. McFadden asserts all three judges clearly erred in denying his counsel's request to question all members of the jury. He argues this alleged error violated his Eighth Amendment rights but does not explain how a discovery ruling in a postconviction proceeding, even if incorrect, could violate his right to be free of cruel and unusual punishment under the Eighth Amendment, nor does he cite any authority for such a proposition. This Court does not address it further.

         Mr. McFadden also argues the failure to question additional jurors hindered his ability to show Juror Williams was biased and his presence on the jury violated Mr. McFadden's due process right to a fair and impartial jury. There is "no inherent right to contact and interview jurors." Strong v. State, 263 S.W.3d 636, 643 (Mo. banc 2008). Rather, "[c]ourts have discretionary power to grant permission for contact with jurors after a trial." Id. (citation omitted). In Strong, this Court found no error in a motion court's denial of any juror contact when the defendant requested to contact jurors to investigate and prove claims of ineffective assistance of counsel and juror misconduct because there was no "reasonable cause to believe, from actual factual allegations, that defendant's rights had been violated." Id. In State v. Jones, 979 S.W.2d 171, 183 (Mo. banc 1998), this Court affirmed the motion court's order permitting juror contact but limiting the issues about which jurors could be questioned.

         In this instance, Mr. McFadden's counsel sought to find out whether Juror Williams remembered Mr. McFadden from the earlier assault case even though Juror Williams did not sit on the jury in the assault case and did not raise his hand when asked during voir dire in the instant case whether he recognized Mr. McFadden. Counsel had no specific reason to believe Juror Williams lied in stating he did not recognize Mr. McFadden but thought it did not sound likely. Judge Goldman, therefore, allowed questioning of Juror Williams and another juror. Nothing in the initial inquiry of these two jurors suggested the nondisclosure was intentional rather than simply a result of faded memory. Juror Williams repeatedly denied recognizing or remembering Mr. McFadden:

THE COURT: Do you remember being asked if you recognized Vincent McFadden?
[JUROR] WILLIAMS: Yes, sir.
THE COURT: And you did not respond to that as recognizing him; is that right?
[JUROR] WILLIAMS: Yeah, I didn't know him.
THE COURT: Okay. Do you remember being asked if you had acquired any information about Mr. McFadden from any source?
[JUROR] WILLIAMS: Yes, sir.
THE COURT: And again, you did not respond to that?
[JUROR] WILLIAMS: Correct.
THE COURT: At any time, Mr. Williams, from the beginning of the trial with the jury selection until the verdicts of guilty and verdict with the sentence, do you recall knowing Mr. McFadden from before the trial?
[JUROR] WILLIAMS: No, sir.
THE COURT: About three years before that trial, or slightly before three years, were you on a jury selection and not selected as a juror on an assault first-degree case or assault case?
[JUROR] WILLIAMS: I don't remember.
THE COURT: Okay. Coming before just for the jury selection where they asked you questions, do you recall doing that about three years before that?
[JUROR] WILLIAMS: I believe so. It's been so long ago I don't remember.
THE COURT: Okay. During the trial of Mr. McFadden on the - the trial the trial that you were on where you reached a verdict, the murder case, during that trial did you ever recall Mr. McFadden from the jury selection process that happened about three years before?
[JUROR] WILLIAMS: No.
….
THE COURT: Mr. Williams, did you tell anyone during the murder first degree trial that you had been exposed to Vincent McFadden in the past?
[JUROR] WILLIAMS: No.
THE COURT: Okay. So you never said anything. Did you recognize him ...

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