State v. Vickers
| Decision Date | 31 July 2018 |
| Docket Number | WD 80148 |
| Citation | 560 S.W.3d 3 |
| Parties | STATE of Missouri, Respondent, v. Victor D. VICKERS, Jr., Appellant. |
| Court | Missouri Court of Appeals |
Joshua D. Hawley, Attorney General, and Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.
Amy M. Bartholow, Assistant Public Defender, Columbia, MO, Attorney for Appellant.
Before Division Two: Karen King Mitchell, Chief Judge, and Alok Ahuja and Edward R. Ardini, Jr., Judges
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.
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, 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 to 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, Ewing kept asking, 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, 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, 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, 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
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.
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 was apparently made.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...
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...with all reasonable inferences that support the verdict, and ignore[s] all contrary evidence and inferences.’ " State v. Vickers , 560 S.W.3d 3, 21 (Mo. App. W.D. 2018) (quoting State v. Zetina-Torres , 482 S.W.3d 801, 806 (Mo. banc 2016) ). "Our ‘review is limited to determining whether th......
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