State v. McFadden

• Decision Date: 19 March 2013
• Docket Number: No. SC 89429.,SC 89429.
• Citation: 391 S.W.3d 408
• Parties: STATE of Missouri, Respondent, v. Vincent McFADDEN, Appellant.
• Court: Missouri Supreme Court

391 S.W.3d 408

STATE of Missouri, Respondent,

v.Vincent McFADDEN, Appellant.

No. SC 89429.

Supreme Court of Missouri, En Banc.

Jan. 29, 2013.

Rehearing Denied March 19, 2013.

Janet M. Thompson, Public Defender's Office, Columbia, for McFadden.

Daniel N. McPherson, Attorney General's Office, Jefferson City, for the State.

RICHARD B. TEITELMAN, Chief Justice.

Vincent McFadden (McFadden) was found guilty of first-degree murder, section 565.020, RSMo 2000,¹ and armed criminal action, section 571.015. The circuit court sentenced McFadden to death. This Court has exclusive jurisdiction. Mo. Const. art. V, sec. 3. The judgment is affirmed.

Facts

McFadden does not contest the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the evidence shows that on May 15, 2003, McFadden confronted Eva Addison and told her that she and her sisters needed to leave the city of Pine Lawn. Shortly after this confrontation, Eva's sisters, Leslie and Jessica, arrived. Eva told them that they needed to leave Pine Lawn. Before they could leave, McFadden returned. He pointed a gun at Leslie and pulled the trigger. The gun did not fire. Before leaving, McFadden stated that “one of these ho's has got to die tonight.”

Leslie left the scene in order to call for a ride out of Pine Lawn. As Leslie was walking down the street, Eva saw the car in which McFadden had been riding drive around the corner. Eva watched as McFadden shot Leslie several times. Leslie died from a gunshot wound to her head.

Following a jury trial, McFadden was found guilty of first-degree murder and armed criminal action. During the penalty phase, the State submitted six statutory aggravating circumstances based on McFadden's previous serious assaultive convictions for first-degree murder, assault and armed criminal action.² The jury found beyond a reasonable doubt that McFadden had committed each of the six serious assaultive convictions alleged in statutory aggravators submitted by the State. The jury assessed a sentence of death. McFadden appeals.

Standard of review

On direct appeal, a death sentence is reviewed for prejudice, not just mere error. State v. McFadden, 369 S.W.3d 727, 736 (Mo. banc 2012). This Court will reverse a trial court's decision only when an alleged error is so prejudicial that the defendant was deprived of a fair trial. Id. Prejudice exists when there is a reasonable probability that the trial court's error affected the outcome at trial. Id. Evidence admitted at trial is reviewed in the light most favorable to the verdict and is reviewed for an abuse of discretion. Id.

Many of the points on appeal raised by McFadden are not preserved for appeal. Accordingly, these points can be reviewed only for plain error. Rule 30.20. Plain error is found when the alleged error “ ‘facially establish[es] substantial grounds for believing a manifest injustice or miscarriage of justice occurred.’ ” McFadden, 369 S.W.3d at 736, quoting State v. Dorsey, 318 S.W.3d 648, 652 (Mo. banc 2010).

Point One: Juror non-disclosure

McFadden asserts that the trial court plainly erred in entering a judgment of conviction for first-degree murder and sentencing him to death because juror Jimmy Williams failed to disclose that, three years prior to the trial in this case, he was a member of the venire panel in McFadden's trial for assault and armed criminal action. Although Williams did not serve as a juror in that case, the trial court clearly and specifically asked Williams and a number of other prospective jurors if any of them recognized McFadden. Although Williams had acknowledged in a written questionnaire that he was a prospective juror in a trial for assault and armed criminal action, he did not indicate to the trial court that he recognized McFadden. McFadden asserts that Williams' disclosure was intentional and prejudicial.

Nondisclosure can occur only after a clear question is asked during voir dire. Saint Louis University v. Geary, 321 S.W.3d 282, 295 (Mo. banc 2009). In this case, the trial court clearly asked Williams whether he knew or recognized McFadden. Williams did not indicate that he knew or recognized McFadden. McFadden asserts that Williams' response that he did not know or recognize McFadden constituted intentional nondisclosure.

Intentional nondisclosure occurs when: 1) there is no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) the prospective juror remembers the experience or that it was of such significance that the juror's purported forgetfulness is unreasonable. Geary, 321 S.W.3d at 295–296. “[B]ias and prejudice will normally be presumed if a juror intentionally withholds material information.” Id., quoting State v. Mayes, 63 S.W.3d 615, 625 (Mo. banc 2002). Accordingly, a finding of intentional nondisclosure of a material issue is tantamount to a per se rule mandating a new trial. Id.

In contrast, unintentional nondisclosure “exists where, for example, the experience forgotten was insignificant or remote in time, or where the [venireperson] reasonably misunderstands the question posed.” Geary, 321 S.W.3d. at 295, quoting Williams By Wilford v. Barnes Hosp., 736 S.W.2d 33, 36 (Mo. banc 1987). If the nondisclosure was unintentional, “a new trial is not warranted unless prejudice resulted from the nondisclosure that may have influenced the jury's verdict.” Id.; quoting Mayes, 63 S.W.3d at 625. In the case of unintentional nondisclosure, the party seeking the new trial has the burden of proving prejudice. Geary, 321 S.W.3d at 296. Allegations of nondisclosure are not self-proving and must be proven. State v. Smith, 944 S.W.2d 901, 922 (Mo. banc 1997). The record must support all allegations of nondisclosure and prejudice, and the trial court's findings are reviewed for abuse of discretion. Geary, 321 S.W.3d at 296.

McFadden has not proven that Williams intentionally failed to disclose the fact that he was a prospective juror in McFadden's prior trial for assault and armed criminal action. McFadden notes correctly that Williams was on the venire panel at his earlier trial for assault and armed criminal action. However, McFadden's intentional nondisclosure argument is premised solely on the assumption that it is unreasonable to presume that Williams failed to recognize McFadden when, three years earlier, Williams had been questioned during voir dire at McFadden's trial for assault and armed criminal action. The fact that Williams participated in a voir dire three years before he was questioned in this case does not necessarily mean that he intentionally failed to disclose that information. Just as it is plausible to assume that Williams may have remembered McFadden from the earlier trial, it is equally plausible to assume that Williams's memory had faded. If Williams had no recollection of McFadden, then there was no intentional nondisclosure. McFadden offers no evidence to prove that Williams recalled that McFadden was the defendant in the previous trial and intentionally failed to disclose that fact. Furthermore, McFadden has failed to prove that he was in any way prejudiced so as to warrant a new trial based on unintentional nondisclosure. There is no basis for finding that the trial court plainly erred by declining to declare a mistrial based on Williams' service as a juror in this case.

Point Two: Improper statutory aggravator instruction

McFadden asserts that the trial court erred in submitting Instruction No. 21, based on MAI–CR 3d 314.40, because it submitted his prior serious assaultive convictions in six separately numbered paragraphs. McFadden argues that by submitting the previous convictions in separate paragraphs, the jury was encouraged to believe that there were more aggravating circumstances than mitigating circumstances and that death was the appropriate sentence.

This Court repeatedly has rejected the argument that statutory aggravators must be submitted in one paragraph. See McFadden, 369 S.W.3d at 742;State v. Taylor, 18 S.W.3d 366 (Mo. banc 2000)(it is permissible to separate prior convictions rather than listing all of the prior convictions together as one statutory aggravator); State v. Black, 50 S.W.3d 778, 792 (Mo. banc 2001)(finding the trial court properly listed prior convictions as separate statutory aggravators). The trial court did not err in submitting the statutory aggravators in separate paragraphs.

Point Three: Removal of prospective jurors for cause

The trial court sustained the State's motion to strike three venire members for cause after finding that these jurors indicated that they would not sign a verdict that imposed a death sentence. McFadden asserts that the trial court plainly erred in striking venire members Behrens and Stevens and abused its discretion in striking venireperson Brunetti.

A prospective juror in a capital case may be excluded for cause when “the juror's views would prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his [or her] instructions and his [or her] oath.” McFadden, 369 S.W.3d at 738; quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). A juror's qualifications are not determined conclusively by a single answer but rather from the entire voir dire examination. Id., citing State v. Davis, 318 S.W.3d 618, 639 (Mo. banc 2010).

Whether reviewed for plain error or abuse of discretion, McFadden has not demonstrated that the trial court erred in striking Behrens, Stevens or Brunetti. These venire members stated that they could consider both life imprisonment and the death penalty, but they also all testified that they could not sign a death verdict as a jury foreperson.

A prospective juror's reluctance to sign a death verdict is not necessarily conclusive. State v. Deck, 303 S.W.3d 527, 538 (Mo. banc 2010). However, where, as in this case, a prospective juror indicates that he or she can consider both...