553 S.W.3d 289 (Mo. 2018), SC96453, McFadden v. State

Docket Nº:SC96453
Citation:553 S.W.3d 289
Opinion Judge:Laura Denvir Stith, Judge
Party Name:Vincent MCFADDEN, Appellant, v. STATE of Missouri, Respondent.
Attorney:McFadden was represented by William J. Swift of the public defender’s office in Columbia, (573) 777-9977. The state was represented by Daniel N. McPherson of the attorney general’s office in Jefferson City, (573) 751-3321.
Case Date:July 17, 2018
Court:Supreme Court of Missouri
 
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553 S.W.3d 289 (Mo. 2018)

Vincent MCFADDEN, Appellant,

v.

STATE of Missouri, Respondent.

No. SC96453

Supreme Court of Missouri, en banc

July 17, 2018

Rehearing Denied August 21, 2018

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

McFadden was represented by William J. Swift of the public defender’s office in Columbia, (573) 777-9977.

The state was represented by Daniel N. McPherson of the attorney general’s office in Jefferson City, (573) 751-3321.

OPINION

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 Addison1 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

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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, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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

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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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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...

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