McFadden v. State

• Decision Date: 14 April 2020
• Docket Number: No. SC 97737,SC 97737
• Citation: McFadden v. State, 619 S.W.3d 434 (Mo. 2020)
• Parties: Vincent MCFADDEN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

619 S.W.3d 434

Vincent MCFADDEN, Appellant,

v.STATE of Missouri, Respondent.

No. SC 97737

Supreme Court of Missouri, en banc.

Opinion issued April 14, 2020

Rehearing Denied June 30, 2020

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

The state was represented by Garrick Aplin of the attorney general's office in Jefferson City, (573) 751-3321.

Mary R. Russell, Judge

Vincent McFadden appeals the circuit court's judgment overruling his Rule 29.15 motion for postconviction relief from his death sentence for the first-degree murder of Todd Franklin ("Victim"). He claims the circuit court committed multiple errors affecting the guilt, penalty, and postconviction relief phases of his case. McFadden asserts, among other claims, that the circuit court erred in failing to find defense counsel ineffective for: (1) calling Michael Douglas ("Codefendant") to testify during trial, (2) failing to present evidence of Victim's bad character during the penalty phase, and (3) failing to object to the State's introduction of letters exchanged between McFadden and Codefendant. Because the circuit court's findings of fact and conclusions of law are not clearly erroneous, the judgment denying postconviction relief is affirmed.

Background

McFadden was charged with first-degree murder and armed criminal action.

The evidence, viewed in the light most favorable to the verdict,¹ demonstrated that Victim and his friend, Mark Silas, were walking in Pine Lawn when they encountered McFadden and Codefendant. McFadden and Codefendant asked Victim if he had a gun; Victim responded that he did not. Codefendant then pulled out a gun and fired a shot, and Victim and Silas ran across the street to Victim's neighbor's yard. McFadden and Codefendant followed.

Codefendant then shot Victim twice, and Victim fell to the ground. McFadden took the gun from Codefendant, walked toward Victim, kicked him, and uttered derogatory phrases. McFadden then shot Victim three times. McFadden and Codefendant ran away, and the neighbor called 911. Victim was alive during each of the five shots, but he eventually died at the scene from the wounds.

An investigation ensued, during which a cigar with McFadden's thumbprint was found at the end of the neighbor's driveway, near Victim's body. During an interview shortly after the shooting, Silas identified McFadden as one of the shooters. The neighbor, as well as individuals at the neighbor's house on the day of the shooting, identified McFadden from a photograph lineup as the second shooter. McFadden was arrested 10 months later.

During trial, the defense called Codefendant as a witness. Codefendant testified he had previously stated that he and his brother – and not McFadden – had shot and killed Victim. Codefendant testified that these previous statements were lies and that McFadden was the second shooter. The jury found McFadden guilty of first-degree murder and armed criminal action.

During the penalty phase, the State presented evidence that: McFadden had prior convictions; he killed his girlfriend's sister, Leslie Addison; he attempted to prevent his girlfriend, Eva Addison, from identifying him as her sister's murderer; and he was in possession of 17 bags of crack cocaine at the time he was arrested.

In mitigation, five members of McFadden's family, McFadden's friend, and a St. Louis juvenile officer testified regarding McFadden's childhood and the environment in which he grew up. The defense also called Dr. Wanda Draper, a human development expert, who testified McFadden had developed a "severe disorganized attachment" disorder because he lacked a reliable parental figure during his childhood. She further testified McFadden's environment partially caused his violent behavior.

The jury found five statutory aggravators – four serious assaultive convictions and depravity of mind – and it recommended a sentence of death. The circuit court sentenced McFadden accordingly, imposing the death penalty for first-degree murder and life imprisonment for armed criminal action. This Court affirmed the convictions and sentences on direct appeal. State v. McFadden , 369 S.W.3d 727, 755 (Mo. banc 2012).² McFadden filed an amended Rule 29.15 motion for postconviction relief, and the circuit court held an evidentiary hearing. The circuit court entered judgment denying McFadden's claims. McFadden appeals.³

Standard of Review

A circuit court's judgment denying postconviction relief will be affirmed unless its findings and conclusions are clearly erroneous. Rule 29.15(k) ; Meiners v. State , 540 S.W.3d 832, 836 (Mo. banc 2018). Findings and conclusions are clearly erroneous only when "this Court is left with a definite and firm impression that a mistake has been made." Mallow v. State , 439 S.W.3d 764, 768 (Mo. banc 2014).

To obtain postconviction relief on the basis of ineffective assistance of counsel, a movant must satisfy the two-prong Strickland standard. Anderson v. State , 564 S.W.3d 592, 600 (Mo. banc 2018) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). A movant must first demonstrate that counsel's performance was deficient. Id. Performance is deficient if it fails to rise to the level of skill and diligence that would be demonstrated by a reasonably competent attorney under similar circumstances. Id.

A movant must then prove he was prejudiced by counsel's deficient performance. Id. at 601. Prejudice occurs when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Reasonable probability requires "a probability sufficient to undermine confidence in the outcome." Tisius v. State , 519 S.W.3d 413, 420 (Mo. banc 2017). In death penalty cases, "a defendant must show with reasonable probability that the jury, balancing all the circumstances, would not have awarded the death penalty." Id.

Analysis

I. Alleged Guilt Phase Errors

A. The Decision to Call Codefendant to Testify

McFadden argues his counsel were ineffective in calling Codefendant to testify because, prior to his testimony at trial, Codefendant's plea counsel told McFadden's counsel that Codefendant would never testify contrary to his guilty plea that he and McFadden shot Victim.⁴ Despite this information, counsel called Codefendant, who testified he and McFadden shot Victim. McFadden alleges counsel were ineffective for calling Codefendant to testify because (1) Codefendant's testimony was harmful to the defense's case, especially in light of Silas’ testimony that he did not see McFadden shoot Victim, and (2) by calling Codefendant to testify, counsel effectively conceded McFadden's guilt.

Although counsel were aware that Codefendant might testify McFadden was the second shooter – testimony that would be harmful to the defense's case – counsel recognized that Codefendant's testimony to that effect could be impeached with his prior inconsistent statements that Codefendant's brother – and not McFadden – was the second shooter. McFadden argues Silas’ testimony sufficiently established that McFadden did not shoot victim, eliminating any need to call Codefendant. But Silas’ testimony about this issue was unclear at best. Silas testified at trial that he was walking in Pine Lawn with Victim when they encountered McFadden and Codefendant. The remainder of much of Silas’ testimony consisted of claims of lack of memory. At various points, he testified that he did not know if someone was shot and that he simply heard shots and ran. In a recorded statement to police on the day of the incident, Silas reported McFadden was the second shooter. After the jury heard this recording, Silas testified he fabricated this statement in an effort to leave the police station. Accordingly, the record reflects Silas’ inconsistent and wavering testimony did not establish that McFadden did not shoot victim.

At the postconviction hearing, counsel testified they believed calling Codefendant would aid McFadden's case, as his testimony was the only way for the jury to hear the theory that Codefendant's brother may have been the second shooter. Indeed, counsel elicited other helpful statements from Codefendant, including testimony that Codefendant entered a plea and did not receive the maximum sentence even though the State was seeking the death penalty for McFadden's role in the same murder. As counsel made an informed, strategic decision to call Codefendant as a witness, the circuit court did not clearly err in finding counsel's decision reasonable. Johnson v. State , 333 S.W.3d 459, 467 (Mo. banc 2011).

McFadden also argues that, by calling Codefendant to testify, counsel violated his right to maintain his innocence by effectively conceding guilt. But this claim is not preserved, as it was not raised in his Rule 29.15 motion. Shockley v. State , 579 S.W.3d 881, 899 (Mo. banc 2019). As "there is no plain error review in appeals from postconviction judgments for claims that were not presented in the post-conviction motion," this Court cannot address this claim. Id.

B. Failure to Impeach Codefendant with His Rule 24.035 Motion

McFadden argues the circuit court clearly erred in failing to find counsel ineffective for not using Codefendant's pro se Rule 24.035 motion to impeach Codefendant's testimony. In that motion, Codefendant asserted he was not present when Victim was shot.

Although the circuit court took judicial notice of Codefendant's Rule 24.035 motion, postconviction counsel failed to ask counsel for an explanation why they did not impeach Codefendant with the motion. It is presumed that counsel's decision not to impeach a witness is a matter of trial strategy. Barton v. State , 432 S.W.3d 741, 750 (Mo. banc 2014). Accordingly, McFadden "failed to provide the motion court with any basis for concluding that counsel did not have a strategic purpose." Helmig v. State , 42 S.W.3d 658, 676 (Mo. App. 2001).

Further, as the...