VINCENT McFADDEN, Appellant, v. STATE OF MISSOURI, Respondent.
No. SC97737
SUPREME COURT OF MISSOURI, en banc
Opinion issued April 14, 2020
VINCENT McFADDEN, Appellant, v. STATE OF MISSOURI, Respondent.
No. SC97737
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
The Honorable David Lee Vincent III,
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.
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
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 (1984)). A
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.”
Dr. Gelbort testified in the first trial involving
C. Failure to Present Brain Scan Evidence
McFadden argues counsel were
At the postconviction hearing, counsel testified McFadden underwent an MRI scan, which came back normal. Dr. David Preston, a medical doctor working with counsel at the time, then recommended ordering a PET scan. Counsel testified they considered arranging a PET scan but were unaware of any experts who forensically interpreted the scans, as the medical community at that time was opposed to the
Further, the record indicates any potential benefit obtained from conducting a PET scan would have been negligible. During the postconviction hearing, Dr. Gur testified regarding a PET scan he performed on McFadden years after the murder. According to Dr. Gur, the scan showed abnormalities indicating McFadden likely had difficulty controlling an emotional response when “challenged or threatened.” But during cross-examination,
As counsel’s time and resources are limited, “if there is a strategy that does not look promising, he may choose not to expend his limited resources to that end.” Id. at 181. Here, counsel balanced the potential risks of ordering a PET scan with the minimal potential benefits, and the circuit court did not clearly err in finding counsel’s decision not to order the scan reasonable.
D. Failure to Present Evidence Rebutting that McFadden Previously Committed Assaults
McFadden argues the circuit court clearly erred in failing to find counsel ineffective for not rebutting aggravation evidence, which showed that McFadden was previously convicted of two counts each of first-degree assault and armed criminal action for attacking Daryl Bryant and Jermaine Burns. Specifically, McFadden asserts counsel should have: (1) called Butch Johnson, an investigator with the public defender’s office, to testify; (2) presented evidence of Bryant’s medical records; and (3) presented evidence of Codefendant’s affidavit.
1. Failure to Call Johnson
McFadden argues Johnson should have been called to rebut police report statements regarding how the assaults occurred. Occupants of a van in which Bryant and Burns were passengers told police that McFadden shot at them while standing at the front of the van. But Johnson testified at his deposition that the location of the bullets indicated the shooter stood at the back of the van. Importantly, Johnson’s testimony regarding the location of the shooter would not have established that McFadden was not the shooter. Further, his concessions during cross-examination undermined his conclusion that the shooter stood at the rear of the van, as Johnson agreed at least one of
the two bullets found could not have been fired from the van’s rear. The circuit court concluded Johnson was not qualified to give opinions regarding the evidence in the assault case because “[h]is observations, conclusions, and opinions were based on personal speculation rather than physical evidence.” This Court “defers to the motion court’s superior opportunity to judge the credibility of witnesses.” Barton, 432 S.W.3d at 760. As there is not a reasonable probability that Johnson’s testimony would have provided McFadden with a viable defense, the circuit court did not clearly err in failing to find counsel ineffective in not calling Johnson to testify.
2. Failure to Present Evidence of Bryant’s Medical Records
McFadden also argues counsel were ineffective for failing to present evidence of Bryant’s medical records to undermine any conclusion that Bryant suffered serious physical injury as a result of the assault. But there was no question the wound was substantial and required hospital treatment. The medical records confirmed that Bryant received a prescription for “severe” pain and that he was discharged with crutches. Further, an injury need not be serious to constitute felony assault. Even if the medical records supported the conclusion that the injury was
the circuit court did not clearly err in failing to find counsel ineffective for not presenting evidence of Bryant’s medical records.
3. Failure to Present Evidence of Codefendant’s Affidavit
McFadden asserts counsel should have presented evidence of Codefendant’s affidavit, in which Codefendant indicated that his brother – and not McFadden – assaulted Bryant and Burns. At the evidentiary hearing, counsel testified they were concerned the jury would view this evidence unfavorably, as the jury heard and rejected similar evidence during the guilt phase. According to counsel, such evidence would have actually been aggravating because “[i]t makes it look like Vincent McFadden just blames everything on someone else.”
Counsel testified that, as a matter of strategy, they wanted to limit evidence of the prior assault convictions, as the State could have put on even more prejudicial and inflammatory evidence to support the convictions. The circuit court did not clearly err in finding counsel used reasonable trial strategy in deciding not to present evidence of Codefendant’s affidavit.
E. Failure to Present Additional Evidence to Impeach Eva Addison’s Testimony
McFadden argues the circuit court clearly erred in failing to find counsel ineffective in the penalty phase for not calling several additional lay witnesses and failing to present photographs and measurements of the crime scene to impeach Eva Addison’s testimony that she saw McFadden kill her sister, Leslie Addison. Eva testified that, before McFadden killed Leslie, McFadden confronted Eva and argued with Leslie at Maggie Jones’ house. McFadden left in a vehicle, and Leslie walked away from Jones’
house because she was scared. Eva testified she eventually observed McFadden get out of the vehicle, approach Leslie, and shoot her. Eva then ran back to Jones’ house.
“Ordinarily, the failure to call a witness will not support an ineffective assistance of counsel claim because the choice of witnesses is presumptively a matter of trial strategy.” Tisius, 519 S.W.3d at 427. This presumption applies to counsel’s decision not to impeach a witness. Barton, 432 S.W.3d at 750. “A trial strategy decision may only serve as a basis for ineffective counsel if the decision is unreasonable.” McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc 2012). As McFadden is again claiming counsel were ineffective in failing to call certain witnesses during the penalty phase, “a ‘viable defense’ is one in which there is a reasonable probability that the additional mitigating evidence those witnesses would have provided would have outweighed the aggravating evidence presented by the prosecutor resulting in the jury voting against the death penalty.” Deck, 381 S.W.3d at 346. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible opinions are virtually unchallengeable.” Strickland, 466 U.S. at 690.
1. Failure to Call Jones
If called, Jones would have testified that she did not hear the Addisons and McFadden
Counsel testified they made the strategic decision not to call Jones at this trial because whether Eva and McFadden fought the night of Leslie’s murder was not a key
issue in this case. Further, Jones’ testimony was only marginally persuasive because she admitted she was in her bedroom the entire evening watching television, making it possible that she would not have heard the fighting. Jones’ testimony could have actually bolstered other aspects of Eva’s testimony, as Jones testified that the night Leslie was murdered she spoke with Eva, who told her she had seen McFadden shoot Leslie multiple times. As Jones’s testimony would have actually supported Eva’s testimony that McFadden killed Leslie, McFadden has failed to demonstrate her testimony would have produced a viable defense. See Deck, 381 S.W.3d at 346.
2. Failure to Call Jackson
McFadden also contends counsel were ineffective in failing to call his friend, Arnell “Smoke” Jackson. At a deposition, Jackson testified he was riding in a car near Jones’ home before Leslie was killed. When he saw McFadden leave Jones’ home, he followed McFadden and never saw him get out of the car or shoot Leslie. But Jackson stopped following McFadden after the car McFadden was in turned the other way, and Jackson conceded he did not know what actions McFadden took after this point.
As counsel concluded, Jackson “didn’t have anything helpful to say,” as his testimony would not have undermined Eva’s testimony that McFadden shot Leslie. On the contrary, Jackson’s testimony would have corroborated Eva’s testimony by placing McFadden at the crime scene. Further, Jackson would have been especially vulnerable to impeachment based on his lengthy criminal record – including murder – as well as his friendship with McFadden and admission he tried to persuade McFadden to leave Jones’ house because McFadden was wanted for Victim’s murder. The circuit court did not
clearly err in finding defense counsel used a reasonable trial strategy in deciding not to call Jackson as a witness. Strickland, 466 U.S. at 690.
3. Failure to Call Walsh
Margaret Walsh is the technician who performed blood analysis testing on the clothing McFadden was wearing when he was arrested for Leslie’s murder. McFadden claims Walsh’s failure to find blood on his clothes, when Leslie was shot at close range, weakens Eva’s testimony that he shot Leslie. But McFadden was not arrested until two days after the shooting, and Walsh admitted she did not know whether the items she tested were actually worn by McFadden at the time of Leslie’s murder. Counsel testified at the postconviction hearing that, after considering the limited impeachment value, they decided against calling Walsh as a witness. The circuit court did not clearly err in finding defense counsel used a reasonable trial strategy in not calling Walsh, absent a showing McFadden was wearing the same clothes at the time of shooting or had not washed them.5
McFadden argues counsel were ineffective for failing to present additional evidence of the lighting at the murder scene and the distance between where Eva reported she was standing and the location where the shooting occurred.
Officer Jeff Hunnius, a crime scene investigator, took photographs of the scene the night of the murder. On cross-examination, he testified that there were no streetlights on the side of the street where the shooting occurred and that he had to use the camera’s flash when taking photographs. Counsel also elicited that the distance from the stop sign to the intersection where the shooting occurred was 75 feet, meaning Eva’s location in the bushes would have been even farther away. Similarly, during cross-examination of a neighbor who heard the shooting, counsel elicited testimony that the neighbor could not tell there was a body on the ground because it was too dark. The neighbor further confirmed there were no streetlights where the shooting occurred.
McFadden now argues counsel should have introduced additional photographs and measurements to further undercut and impeach Eva’s claim she could see the murder from the bushes. In support, at the postconviction hearing, McFadden presented the deposition testimony of Johnson, who took photographs of the area and concluded the lighting was bad. But this testimony would have had little, if any, probative value, as these photographs were taken in daylight 10 years after the murder, and Johnson was unable to testify the lighting and other aspects of the scene had not changed. Further, counsel testified they went to the scene of the murder several times, observed the lighting, and determined Eva would have been capable of observing the shooting. As
counsel made a strategic decision not to present additional evidence of the murder scene after a thorough investigation of the pertinent facts, the circuit court did not clearly err in finding counsel utilized a reasonable trial strategy. Zink, 278 S.W.3d at 178.
F. Failure to Object to Arguments
McFadden argues counsel were ineffective for failing to object to certain penalty phase arguments made by the State. Specifically, McFadden contends counsel should have objected to arguments that: (1) McFadden would have killed Eva except he was arrested; (2) in an earlier time, the Victim’s and Addison families would have been given the opportunity for personal retribution, but, instead, McFadden received a fair trial; (3) the jury should think of the terror that Victim, Victim’s mother, Leslie, and Eva felt; (4) McFadden believes in the death penalty; and (5) the jury should hold, hug, and love Victim and Leslie, but “don’t let them down.”
1. Statement that McFadden Would Have Killed Eva
In the State’s closing argument in the penalty phase, the State argued:
evidence and was a reasonable inference drawn from the evidence, any objection would have been meritless, and counsel were not ineffective for failing to object.
2. Statement Involving Personal Retribution
In the State’s rebuttal closing argument, it argued:
Now, ladies and gentlemen, we live in a civilized society. But there was a time when civil society wasn’t so civilized and we would have given the [Victim’s family] and the Addison family an opportunity for retribution.
We would have let them hunt him down like he deserves. But we don’t live in that society. We gave him a fair trial. We put on evidence. He had a right to a lawyer, a jury of his peers.
McFadden argues these statements lessened the jury’s sense of responsibility for imposing death. But taken as a whole, the State’s argument explained that due process rights for defendants have overtaken a previously uncivilized form of retribution. As this Court held in McFadden’s direct appeal, “the State did not comment that the victim’s family deserved retribution in the form of demanding the death penalty” but instead “explained that as members of a civilized society we engage in preserving the due process rights of a defendant and ensuring a fair trial; we do not seek retribution.” McFadden, 369 S.W.3d at 751. Again, any objection to this argument would have been meritless, as the prosecutor’s statement did not lessen the jury’s sense of responsibility for imposing death. Counsel were not ineffective for failing to object to this statement.
3. Three Additional Statements
In the State’s rebuttal closing argument, the State made the following three statements to which McFadden now alleges counsel were ineffective for failing to object:
First: “Think of the terror that Leslie went through. Think of the terror that [Victim] went through. Think of the terror that [Victim’s wife], when she came home, went through. Think of the terror that Eva went through when she watched her sister get killed. Think of that.”
Second:
That day, those days, those two days in Pine Lawn, there was one juror that was there. And he was the foreman. He didn’t have any evidence, any rule of law. There was no trial.
[McFadden], at that time, decided the death penalty was appropriate. Because, ladies and gentlemen, if there’s one person that believes in the death penalty in this courtroom, it’s [McFadden].
Third: “Ladies and gentlemen, I leave you with [Victim] and Leslie Addison. Hold them. Hug them. Tell them you love them. But most of all, ladies and gentlemen, don’t let them down.”
As to each of these statements, McFadden alleges the State argued facts
As each of these statements made during the penalty phase was proper, the circuit court did not clearly err in failing to find counsel ineffective for not objecting to these statements.
III. Alleged Errors in the Postconviction Relief Phase
A. Overruling Motions to Compel Codefendant to Answer Deposition Questions
Codefendant appeared for a deposition and invoked the Fifth Amendment as to all questions asked by counsel. Counsel filed a motion to compel answers to the deposition questions, which the circuit court overruled on the ground that answering the questions would violate Codefendant’s Fifth Amendment right not to incriminate himself. McFadden also filed a renewed motion to compel before the evidentiary hearing, which the circuit court overruled. McFadden now argues the circuit court clearly erred in overruling the motions to compel Codefendant to answer deposition questions and, in doing so, denied McFadden the opportunity to adequately prepare for the Rule 29.15 evidentiary hearing.
Under the protections of the Fifth Amendment, an individual cannot be compelled “to provide testimonial evidence against himself which may then be used to prosecute him.” State v. Sanders, 842 S.W.2d 170, 173 (Mo. App. 1992). When an answer to a posed question would place the witness in “real danger of further incrimination,” the witness can validly exercise the privilege. Id.
McFadden claims the Fifth Amendment privilege did not apply here because Codefendant had already pleaded guilty to killing Victim. McFadden is correct that “a knowing and voluntary guilty plea waives the protection against compelled
self-incrimination as the witness can no longer be incriminated by his testimony about said crime,” id., but McFadden fails to prove he was prejudiced by the circuit court’s overruling of his motion to compel. Although McFadden indicates what topics would have been covered during Codefendant’s deposition,6 he does not identify how Codefendant’s answers to questions concerning these topics would have supported any of his claims. Indeed, it is unclear how Codefendant’s answers to these questions would have impacted McFadden’s claims at all, as several of the deposition topics were established by other testimony in the
B. Denying McFadden’s Requests to Attend the Rule 29.05 Evidentiary Hearing and to Disqualify the Prosecutor
In an amended motion, McFadden requested to be present at the postconviction evidentiary hearing, and the circuit court initially ordered that McFadden be present. The State filed a motion to recall the writ, emphasizing that McFadden had been convicted of murdering two individuals and that he had been sentenced to death for both murders. At
the hearing on the motion, the State asserted McFadden had previously assaulted a department of corrections guard and St. Louis County jail guard. Postconviction counsel opposed the motion and informed the circuit court she had no knowledge of McFadden assaulting the guards. The State filed a supplement to its motion to recall the writ, conceding there were no records of McFadden’s involvement in assaultive incidents with guards at either the jail or department of corrections. The supplement also stated that the department of corrections’ records indicated that McFadden physically assaulted another inmate and that McFadden had “multiple conduct violations.” The circuit court sustained the State’s motion to recall the writ and ordered that McFadden’s testimony be submitted by deposition.
Postconviction counsel then moved to disqualify the St. Louis County prosecutor’s office, arguing the State’s representations that McFadden had assaulted the guards were made for the purpose of prejudicing the circuit court against McFadden. After a hearing, the circuit court overruled the motion. McFadden now argues the circuit court clearly erred in ordering the writ recalled and in overruling the motion to disqualify the prosecutor’s office.
“Even when a hearing is granted, not all rights guaranteed to a criminal defendant at trial are extended to the Rule 29.15 hearing.” Edwards v. State, 200 S.W.3d 500, 515 (Mo. banc 2006). Because a Rule 29.15 motion is a civil proceeding, neither the rule nor the constitution guarantees a movant the right to be present. State v. Basile, 942 S.W.2d 342, 362 (Mo. banc 1997); see also
recognition of the right to effective assistance of postconviction counsel indicates that he must be allowed to attend his hearing to ensure effective assistance. See Martinez v. Ryan, 566 U.S. 1 (2012). But this argument is without merit, as “[t]here is no right to effective assistance of counsel at a Rule 29.15 hearing.” Edwards, 200 S.W.3d at 515; see also Barton v. State, 486 S.W.3d 332, 336 (Mo. banc 2016) (“[N]either this Court nor the federal courts have held that this Sixth Amendment right [to counsel] extends to the post-conviction process.”). Because McFadden had no right to attend the hearing, the circuit court did not clearly err in sustaining the State’s motion to recall the writ ordering McFadden’s attendance at the hearing.
As for McFadden’s claim that the circuit court clearly erred in overruling
There was no appearance of impropriety. The circuit court did not clearly err in overruling McFadden’s motion to disqualify the prosecutor’s office.
C. Memoranda of Law Claims
More than four years after filing the amended motion, postconviction counsel filed a memorandum titled “Memorandum Asserting Ineffective Assistance of Counsel for Failure to Investigate and Adduce Evidence of Movant’s Brain Deficiencies During the Guilt Phase.” In the memorandum, postconviction counsel recognized the two claims regarding Dr. Gur and Dr. Gelbort in the amended motion applied only to the penalty phase but requested those claims also apply to the guilt phase. In response, the State filed a motion to dismiss, asserting the claims alleged in the memorandum were barred because they were not raised in the amended motion. The circuit court sustained the State’s motion to dismiss, finding the claims untimely. Several months later, McFadden filed a letter complaining postconviction counsel failed to include these claims in his Rule 29.15 amended motion.
McFadden now asserts two arguments regarding the claims asserted in the memorandum. First, McFadden argues the circuit court clearly erred in treating the claims as untimely. Next, McFadden argues the circuit court clearly erred in failing to find that postconviction counsel abandoned him when postconviction counsel did not include the memorandum claims in the amended motion.
1. Failure to Find the Claims Timely
To the extent McFadden argues the Rule 29.15 time limits are unconstitutional, “unreasonably short,” and should be reconsidered by this Court, this claim has been
waived, as McFadden failed to make this claim before the circuit court. See White v. State, 939 S.W.2d 887, 904 (Mo. banc 1997) (“Since the issue was never raised in the post-conviction proceeding, error by that court, plain, clear, or otherwise, is not discernable.”).
To the extent McFadden asserts this Court’s rules required the circuit court to find the claims timely, his argument also fails. Rule 29.15 provides that a postconviction relief motion shall be filed within 90 days after the date the mandate of the appellate court issues. The rule also provides a specific timeframe for filing an amended motion. See Rule 29.15(g). It is “a time-worn and oft-rejected charge that the mandatory time limits established by Rule 29.15 are unconstitutional.” State v. Ervin, 835 S.W.2d 905, 929 (Mo. banc 1992). Such time limitations are reasonable and constitutional because “[t]hey serve the legitimate end of avoiding delay in the processing of prisoners[’] claims and prevent the litigation of stale claims.” Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). McFadden
2. Failure to Find Postconviction Counsel Abandoned McFadden
McFadden next argues the circuit court clearly erred in failing to find postconviction counsel abandoned him by not asserting in the amended motion that the claims regarding Dr. Gur and Dr. Gelbort should apply to the guilt phase.
In general, an abandonment claim is limited to two circumstances, when “(1) post-conviction counsel takes no action on movant’s behalf with respect to filing an amended motion” or “(2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner.” Barton, 486 S.W.3d at 338. This Court reviews claims of abandonment carefully “to ensure that the true claim is abandonment and not a substitute for an impermissible claim of ineffective assistance of post-conviction counsel.” Eastburn v. State, 400 S.W.3d 770, 774 (Mo. banc 2013). If a movant claims ineffective assistance of postconviction counsel, such claims are “categorically unreviewable.” Id.
Because postconviction counsel timely filed an amended Rule 29.15 motion, McFadden’s assertion that postconviction counsel failed to include additional claims is “more appropriately characterized as a claim of ineffective assistance of post-conviction counsel.” Id. As this Court has made clear abandonment does not encompass perceived ineffective assistance of postconviction counsel, id., the circuit court did not clearly err in failing to find abandonment.
Conclusion
The circuit court’s findings of fact and conclusions of law are not clearly erroneous. The judgment denying McFadden postconviction relief is affirmed.
Mary R. Russell, Judge
All concur.