FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable
Tommy W. DePriest, Jr., Judge
Denvir Stith, Judge
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
FACTUAL AND PROCEDURAL BACKGROUND
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 was at Maggie Jones' house on
Blakemore in Pine Lawn when Mr. McFadden arrived at the house
with a friend. 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.
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.
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
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.
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.
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.
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.
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).
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,
STANDARD OF REVIEW
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.
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
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.
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."
ALLEGED POSTCONVICTION RELIEF PHASE ERRORS
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
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
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
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."
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
The Motion Court Did Not Err in Limiting Juror
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
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.
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
[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
[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
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 ...