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State v. Vickers

Court of Appeals of Missouri, Western District, Second Division

July 31, 2018

STATE OF MISSOURI, Respondent,
v.
VICTOR D. VICKERS, JR., Appellant.

          Appeal from the Circuit Court of Jackson County, Missouri The Honorable John M. Torrence, Judge

          Before Karen King Mitchell, Chief Judge, and Alok Ahuja and Edward R. Ardini, Jr., Judges

          Karen King Mitchell, Chief Judge

         Victor Vickers appeals, following a jury trial, his convictions of first-degree murder (§ 565.020), [1] first-degree assault (§ 565.050), and two counts of armed criminal action (§ 571.015), for which he was sentenced, as a prior offender, to concurrent terms of life without parole and three terms of thirty years' imprisonment. Vickers raises five claims on appeal. He argues that (1) he was denied his right to a speedy trial; (2) the court erred in excluding his proposed alibi witness; (3) the evidence was insufficient to support a finding of deliberation; (4) he was entitled to a new trial based upon newly discovered evidence; and (5) he was entitled to a mistrial when a State's witness volunteered information associating Vickers with an unrelated drug offense. Finding no reversible error, we affirm.

         Background[2]

         In August of 2011, Kristen Forbush lived on 85th Terrace in Jackson County with her fiancé, Edward Ewing, III, and her two young children. On August 15, 2011, Forbush worked from 6:00 p.m. to midnight; neither of her children were home that night. While she was at work, Forbush received a call from a high-school friend, Kyeisa Ransom, asking Forbush why she had not attended a party the weekend before that was hosted by Vickers. Ewing had attended the party and took Forbush's camcorder with him. During Forbush's conversation with Ransom, Forbush indicated that she got off work at midnight.

         After Forbush got off work, she stopped for groceries before heading home. Around 1:00 a.m., as she was coming up the street toward her house, Forbush noticed a car parked down the street with its parking lights on, which she thought was unusual. Forbush parked in her driveway and began to unload her grocery bags when she noticed that the car she had seen with its parking lights on was now sitting at the edge of her driveway.[3] Three men wearing hoodies got out of the car and approached Forbush. She immediately recognized Vickers as one of the men and Garron Briggs (Ransom's boyfriend and Vickers's cousin) as another; she did not know the third man.[4] Forbush saw that Vickers was carrying a gun.

         As the men approached, they directed Forbush to open the door to the house. She responded by saying, "Please take whatever you want. You can have whatever you want." But the men continued to instruct her to open the door. As Forbush put the key in the door, Briggs grabbed her while Vickers and the third man went inside. Briggs led Forbush into the house and directed her lie on the floor in the living room, where he then stood over her with a gun pointed at her, while Vickers and the other man went to the back bedroom where Ewing had been sleeping. Forbush heard Vickers and the other man repeatedly demand, "Where's it at? Where's it at?" Ewing kept asking, "Where is what at? What are you all looking for?" Briggs asked Forbush where the camcorder was, and Forbush responded, "What camcorder?" Meanwhile, she could hear people going through closets and drawers while Vickers and the other man continued to demand, "Where is it at?" Ewing kept asking, "What are you all looking for? I don't sell drugs. What are you all looking for?" Ewing, Vickers, and the third man approached the living room, with Ewing stopping along the way to open a coat closet and let the men search. When Ewing saw Forbush on the floor, he said, "You all got me messed up. What are you all doing? What are you all looking for?" Forbush told Ewing to "chill," and then Ewing, Vickers, and the third man headed back toward the bedroom. The third man briefly returned to the living room and told Briggs, "They don't have shit. Now what?" Briggs responded, "Just do it." Briggs then shot Forbush in the neck and ran out the front door.

         Forbush heard approximately six shots from the back bedroom. She heard four shots, a pause, and then two more, after which Vickers and the third man ran out the front door. Either Vickers or the third man tripped over Forbush's leg on the way out, but she could not tell which one it was.

         After the men left, Forbush called 911 and went to check on Ewing, who was unresponsive. When officers arrived, they asked Forbush if she knew who had attacked her, and she told them it was Briggs, Vickers, and a third man she did not know. She further advised that the men had been in Ransom's car. At the hospital, Forbush viewed several photographic lineups presented by officers, and she identified Vickers, Briggs, and Ransom.

         Ewing died as a result of his injuries. A subsequent examination of his body revealed that he had been shot in both the head and chest seven times, six of which would have been fatal in isolation. Forensic analysis of the bullets, bullet fragments, and shell casings found at the scene suggested that there were at least two different guns and that all of the rounds fired at Ewing were from the same gun.

         The State filed a complaint against Vickers on August 19, 2011, charging him with first-degree murder, first-degree assault, and two counts of armed criminal action. After Vickers was arrested, he contacted Keith Jones, seeking money to post bond. Jones provided the money and discussed the case with Vickers. Vickers told Jones that he "drove the car." Vickers also told Jones that he, Briggs, and another man went over to Ewing's house for the purpose of retrieving a moneybag belonging to Briggs. Vickers was tried on May 16, 2016, after which the jury found him guilty as charged. The court sentenced Vickers, as a prior offender, to concurrent terms of life without parole, and three terms of thirty years' imprisonment. Vickers appeals.[5]

         Analysis

         Vickers raises five points on appeal. In his first point, he argues that his right to a speedy trial was violated in light of the fact that nearly five years elapsed between the date of the State's initial complaint and the date of his trial. In his second point, he claims that he was denied his right to present a defense when the trial court precluded him from presenting testimony from a proposed alibi witness as a discovery sanction. Vickers's third point alleges that the evidence was insufficient to support a finding that he deliberated-a necessary element for first-degree murder. His fourth point claims that he was entitled to a new trial on the basis of newly discovered evidence pertaining to the credibility of one of the State's witnesses. And his final point argues that he was entitled to a mistrial when a State's witness volunteered during the trial that Vickers was known as a "wanna-be rapper who was into drugs." Finding no reversible error, we affirm.

         Speedy Trial

         A. Background Facts

         The State filed the initial complaint against Vickers on August 19, 2011, and Vickers was arrested on the associated warrant on August 22, 2011. On September 2, 2011, Vickers was indicted by a grand jury. The trial was originally set for March 12, 2012. On January 24, 2012, the State requested a continuance in order to obtain DNA evidence from Vickers, and Vickers did not oppose the continuance. Trial was rescheduled for July 9, 2012. On June 26, 2012, Vickers and the State filed a joint application for a continuance because the DNA analysis had not yet been completed. The trial was then rescheduled for November 26, 2012. On October 15, 2012, Vickers and the State filed another joint motion for continuance on the ground that

Defendant was named in a multi-defendant federal drug indictment, 4:12cr-00283-BCW, dated September 26, 2012, and the parties request an opportunity to investigate the potential consequences of said federal case before expending substantial judicial resources on the instant case.

         Vickers was transferred into federal custody pursuant to the federal charges on October 19, 2012. At a scheduled pretrial conference on November 1, 2012, the court set a new pretrial conference for May 2, 2013, which was subsequently rescheduled to May 9, 2013. At the May 9, 2013 conference, the court set trial for September 23, 2013, at 9:30 a.m. and noted that no further continuances would be granted. On August 9, 2013, however, Vickers requested another continuance, unopposed by the State, due to the hospitalization of a member of defense counsel's family. On August 15, 2013, the court held a pretrial conference of which no record has been provided to this court.[6]

         On September 10, 2013, the State voluntarily dismissed Vickers's case and then refiled a complaint alleging the same charges thirteen days later. After the complaint was refiled, nothing happened in the State murder case until after Vickers was sentenced in federal court on May 28, 2015, upon conviction of a drug offense. On June 12, 2015, Vickers was again indicted on the State charges. On September 11, 2015, without objection, the court set a trial date for May 16, 2016. On May 9, 2016-seven days before trial-Vickers filed a motion to dismiss, asserting for the first time a violation of his right to a speedy trial. The State filed a response to Vickers's motion, arguing that Vickers either acquiesced or actively contributed to most of the delay; specifically, the State argued that Vickers either joined in all of the pretrial continuance requests or requested them on his own and that Vickers supported the State's decision to dismiss and refile the charges so as to allow Vickers's federal case to conclude before proceeding with the State charges.[7]

         Before trial, the court held a hearing on Vickers's motion to dismiss, wherein the State reiterated that the decision to dismiss and refile was based, in large part, on Vickers's desire to resolve his federal case first:

I think [defense counsel] made the decision that it was a good idea because of the consecutive time issue when the Court was not going to grant his continuance back in September of 2013. I believe he filed his in August. It wasn't brought up until a pretrial sometime two weeks before the actual trial date in September, 2013. At that time the State dismissed it.
And it is my understanding the State dismissed it so he would face the charges in federal court with the understanding that then it would be more likely they can run concurrent times under the two cases. And I know there were negotiations going on between the parties at all times.

         Vickers did not refute the State's assertion. And, upon hearing the State's assertion and reviewing the sparse record before it, the trial court accepted the State's explanation:

I think the best information I can infer from what's been alleged in the motion and response and what I have heard the two of you talk about here this morning is that after the federal indictment was handed up, there was some recognition joined by both lawyers for both parties which concluded that the defendant would like to get the federal case resolved before the State case was resolved. That's kind of what the procedural history of this case looks like to me. That's common practice. It is typical for people to try to arrange things and go that way. Because the case wasn't continued by Judge Midkiff in Division one, it was dismissed and refiled. There is nothing here that leads me to believe that I should grant the motion to dismiss. So I will overrule the Motion to Dismiss based on the speedy trial argument.

         B. Standard of Review

         "The right to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and Article I of the Missouri Constitution." State v. Fisher, 509 S.W.3d 747, 751 (Mo. App. W.D. 2016). "The protections of the Sixth Amendment attach when there is a formal indictment or information or when actual restraints are imposed by arrest and holding to answer a criminal charge." Id. "The issue of whether the [d]efendant's Sixth Amendment rights have been violated is a question of law, and therefore, appellate courts review de novo." Id. "While we review de novo whether the defendant's Sixth Amendment right was violated, we defer to the trial court's findings of fact." Id.

         C. The trial court did not err in denying Vickers's motion to dismiss.

         "The determination of whether there has been a violation of speedy trial rights involves a balancing process." State ex rel. Garcia v. Goldman, 316 S.W.3d 907, 911 (Mo. banc 2010). "In determining whether [the] right to speedy trial has been violated, the Court is to consider and balance all of the circumstances and to weigh four factors: 'Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" Id. (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)).

         "The length of the delay is a 'triggering mechanism' because until there is a 'delay [that] is presumptively prejudicial,' there is no need to discuss the other factors that are part of the balancing process." Id. (quoting Barker, 407 U.S. at 530). "Missouri courts have found that a delay of greater than eight months is presumptively prejudicial." Id. (internal quotations omitted).

         1. Length of Delay

         "The delay in bringing a defendant to trial is measured from the time of a formal indictment or information or when actual restraints are imposed by an arrest." State v. Sisco, 458 S.W.3d 304, 313 (Mo. banc 2015). Here, Vickers was arrested on the State's initial complaint on August 22, 2011, and indicted on September 2, 2011.[8] The State dismissed the charges on September 10, 2013, and then refiled a complaint, alleging the same charges, on September 23, 2013. The time from Vickers's first arrest until dismissal was approximately twenty-four months, and the time between dismissal and refiling was thirteen days. After refiling the complaint, the State took no action on Vickers's case until June 12, 2015, when Vickers was formally indicted on the refiled charges. This delay consisted of approximately twenty-one months. From the second indictment to the trial on May 16, 2016, there was a delay of approximately eleven months. Thus, approximately fifty-six months passed from Vickers's initial arrest until his trial.

         Though the parties disagree as to how much of the time during the various delays should be counted for purposes of discerning the total length of delay, they agree that it surpasses the eight-month benchmark for presumptive prejudice; accordingly, we must examine the remaining Barker factors.[9]

         2. Reason for Delay

         "Different weights are assigned to different reasons for a delay." Garcia, 316 S.W.3d at 911. "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government." Sisco, 458 S.W.3d at 314 (quoting Barker, 407 U.S. at 531). "A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Id. (quoting Barker, 407 U.S. at 531). "Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." Id. (quoting Barker, 407 U.S. at 531). "On the other hand, '[d]elays attributable to the defendant weigh heavily against the defendant.'" Id. (quoting State v. Greenlee, 327 S.W.3d 602, 612 (Mo. App. E.D. 2010)). A reviewing court is to give "considerable deference" to any trial court findings regarding either negligence or bad faith on the part of the State. Id. at 315.

         Of the fifty-six-month delay, approximately twenty-one months lapsed between dismissal of the original charges and indictment on the refiled charges. The parties disagree as to whether this time should be counted against the State, or even counted at all. The State argues that, because the time does not commence until a formal indictment or information is filed, the time between the September 2013 dismissal and the second indictment in June 2015 should not be considered. Vickers argues that the time begins when actual restraints are imposed by an arrest and, because he was in custody throughout the duration, all of the time should be counted. Vickers further argues that, even if the State's argument is correct, the time should nevertheless be counted against the State because the State's dismissal in September 2013 was a calculated strategy, done in bad faith, intended to gain an advantage over Vickers.

         The trial court found that the choice to dismiss was the result of "some recognition joined by both lawyers for both parties which concluded that the defendant would like to get the federal case resolved before the State case was resolved." And, because the trial court indicated that no further continuances would be granted, the only way to resolve the federal case first was for the State to dismiss the state charges and then pursue them at the conclusion of Vickers's federal case. Thus, the trial court determined that, rather than a deliberate delay to hamper the defense, the intentional delay here was done to help Vickers resolve his federal case first. This is a finding to which we grant "considerable deference." Sisco, 458 S.W.3d at 315. Accordingly, we need not decide whether the period between the State's dismissal of charges in September 2013 and its reindictment of Vickers in June 2015 should be excluded from the analysis in the circumstances of this case. Instead, it is sufficient to observe that the trial court found that Vickers invited and acquiesced in the delay resulting from the dismissal and refiling, in furtherance of his desire to have his pending federal charges resolved before his State charges. Because of Vickers's complicity in the twenty-one-month delay between September 2013 and June 2015, that delay cannot establish a speedy-trial violation.[10]

         In addition to the dismissal and refiling, there were a number of continuances in the case made pursuant to either a joint request from both parties or solely to Vickers's request. The first continuance request was made on January 24, 2012, by the State for purposes of conducting DNA analysis. Vickers did not object to this continuance, and it resulted in a delay of trial from March 12, 2012, to July 9, 2012, or approximately four months. "Delay resulting from the state's performance of DNA analysis is weighed against the state but not heavily." Sisco, 458 S.W.3d at 314.[11] On June 26, 2012, the parties filed a joint application for continuance, again based on DNA analysis. This continuance delayed the trial for another four months until November 26, 2012. Because it was requested by both parties, it is a neutral factor in the analysis. A second joint application for a continuance was filed on October 15, 2012, resulting in an approximately ten-month delay of the trial to September 23, 2013. This joint application was based on the parties' desire to discern the consequences of Vickers's pending federal drug case. Again, its effect is neutral to the analysis. A final request for continuance was made solely by Vickers on August 9, 2013, due to a health issue with a family member of Vickers's counsel. This request was not ruled on because the State subsequently dismissed the charges on September 10, 2013; thus, it is impossible to discern what effect this request had on the delay.

         Accordingly, of the fifty-six months between Vickers's initial arrest and his trial, thirty-five months are neutral to the analysis because they involved delay that Vickers joined the State in seeking (fourteen months for joint applications for continuances and twenty-one months for dismissal and reindictment to resolve federal charges). Any remaining delays were due to either the court's docket or the State's effort to obtain DNA evidence, all of which weigh only slightly against the State. Accordingly, this factor weighs in favor of Vickers, but only slightly.

         3. Assertion of Right

         "The third factor to be considered is whether and how the defendant asserted his right to a speedy trial." Sisco, 458 S.W.3d at 316. "There is no rigid requirement regarding when a defendant must assert his right to a speedy trial." Id. "Instead, courts will weigh the timeliness of the assertion and the frequency and force of a defendant's objections." Id.

         Here, Vickers did not object to any continuances and did not assert his right until one week before trial, approximately twelve months after the second indictment and fifty-six months after the original indictment. "Waiting several months to assert the right to a speedy trial has been found to weigh against a defendant." State v. Newman, 256 S.W.3d 210, 216 (Mo. App. W.D. 2008). "Although [a] defendant has no duty to bring himself to trial, . . . failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. (quoting State ex rel. McKee v. Riley, 240 S.W.3d 720, 729 (Mo. banc 2007)). Additionally, when Vickers first asserted the right, he sought to dismiss the charges. This "strongly suggests that while he hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a dismissal of the charges, he definitely did not want to be tried." Barker, 407 U.S. at 535. Furthermore, Vickers actually sought an additional continuance on the first day of trial for the purpose of alleviating the burden he placed on the State in conjunction with his untimely notice of the potential alibi witness that is the subject of his second point on appeal. Accordingly, this factor weighs against Vickers.

         4. Prejudice

         "Generally, prejudice must be 'actual prejudice apparent on the record or by reasonable inference-not speculative or possible prejudice.'" Garcia, 316 S.W.3d at 912 (quoting State v. Edwards, 750 S.W.2d 438, 442 (Mo. banc 1988)). "More recently, however, the United States Supreme Court allowed a speedy trial claim to stand absent particularized prejudice." Id. (citing Doggett v. United States, 505 U.S. 647 (1992)). "Negligence, the Supreme Court said, is not 'automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.'" Id. (quoting Doggett, 505 U.S. at 657).

         "There are three considerations in determining whether a delay has prejudiced the defendant: (1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern of the accused; and (3) limitation of the possibility that the defense will be impaired." Garcia, 316 S.W.3d at 912. "Courts regard the third consideration as the most serious." Id.

"[T]he inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always ...

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