             SUPREME COURT OF MISSOURI
                                        en banc
VINCENT McFADDEN,                             )          Opinion issued April 14, 2020
                                              )
              Appellant,                      )
                                              )
v.                                            )          No. SC97737
                                              )
STATE OF MISSOURI                             )
                                              )
              Respondent.                     )


        APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
                The Honorable David Lee Vincent III, 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.




1
    State v. Taylor, 134 S.W.3d 21, 24 (Mo. banc 2004).
                                                 2
       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


2
 This Court initially reversed McFadden’s convictions on direct appeal, State v. McFadden, 216
S.W.3d 673, 678 (Mo. banc 2007), and the case was retried.
                                              3
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 (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.”


3
  This Court has jurisdiction because McFadden received a death sentence. Mo. Const. art. V,
sec. 10. Many of the arguments now raised are similar to those McFadden asserted on direct
appeal and in McFadden v. State, 553 S.W.3d 289, 312 (Mo. banc 2018), McFadden’s appeal of
the denial of postconviction relief from his conviction and death sentence for the first-degree
murder of Leslie Addison. Portions of those opinions are incorporated without further
attribution.
                                               4
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



4
    The same two counsel represented McFadden in both trials for the murder of Victim.
                                                5
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

                                              6
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 circuit court found, it was reasonable for counsel not to question

Codefendant about the motion, as the motion’s substance did not support the defense’s

strategy. The defense sought to prove McFadden’s innocence through evidence that

Codefendant and his brother killed Victim. A statement by Codefendant that

Codefendant was not involved in the shooting would be inconsistent with the defense’s

position. Although McFadden may be correct that it would have been reasonable strategy

                                            7
for counsel to impeach Codefendant using the motion, “[i]t is not ineffective assistance of

counsel to pursue one reasonable trial strategy to the exclusion of another reasonable trial

strategy.” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006).

       Because McFadden has failed to overcome the presumption that counsel’s

decision not to impeach Codefendant was reasonable trial strategy, the circuit court did

not clearly err in denying this claim.

                 C. Failure to Object to the State’s Introduction of Letters
                     Exchanged between McFadden and Codefendant

       McFadden argues that the circuit court clearly erred in failing to find counsel

ineffective for not objecting to the admission of letters that McFadden and Codefendant

exchanged while both individuals were in jail. McFadden asserts the letters written by

Codefendant were inadmissible as hearsay and irrelevant evidence. Further, McFadden

claims the letters he wrote were inadmissible as irrelevant.

       Hearsay is an out-of-court statement offered as “evidence to prove the truth of the

matter asserted.” State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009). Generally,

hearsay is excluded because “the out-of-court statement is not subject to cross-

examination, is not offered under oath, and the fact-finder is not able to judge the

declarant’s demeanor and credibility as a witness.” State v. Link, 25 S.W.3d 136, 145

(Mo. banc 2000). When a declarant testifies live and under oath, “the dangers of hearsay

are largely non-existent.” State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006). For

this reason, prejudice cannot be found from the admission of hearsay evidence if the




                                             8
declarant “was also a witness at trial, testified on the same matter, and was subject to

cross-examination.” State v. Tindle, 395 S.W.3d 56, 63 (Mo. App. 2013).

       When the circuit court admitted the letters into evidence, it expressly ruled the

letters could not be read to the jury unless Codefendant testified. Codefendant later

testified, during which he admitted exchanging letters with McFadden. Because

Codefendant testified at trial regarding the letters and was subject to cross-examination

on the matter, McFadden was not prejudiced by the admission of the letters written by

Codefendant.

       McFadden also asserts both sets of letters were inadmissible because they were

irrelevant. To be admissible, evidence must be both logically and legally relevant. State

v. Anderson, 306 S.W.3d 529, 538 (Mo. banc 2010). Evidence is logically relevant when

it “tends to make the existence of a material fact more or less probable.” Id. Evidence is

legally relevant when its probative value outweighs its costs, such as “unfair prejudice,

confusion of the issues, misleading the jury, undue delay, waste of time, or

cumulativeness.” Id. The State asserts the letters were admitted to establish that

McFadden was attempting to persuade Codefendant to conceal McFadden’s involvement

in the shooting, showing McFadden’s consciousness of guilt. For example, one of

McFadden’s letters asked Codefendant to “[j]ust hold fast,” and one of Codefendant’s

letters stated, “[T]ell your lawyer to put me on the stand because I know you wasn’t there

and I’m willing to testify on your behalf.” The letters showed McFadden was

communicating with Codefendant, making more probable the State’s argument that

McFadden persuaded Codefendant to cover up McFadden’s involvement in the shooting.

                                              9
       McFadden further argues the phrases in the letters suggesting gang affiliation –

such as “Love-N-Loyalty;” “Love is love. Loyalty is royalty;” and “Yung Hood” –

caused unfair prejudice. But these phrases are vague in nature and not so prejudicial as to

outweigh the letters’ probative value. See State v. Davidson, 242 S.W.3d 409, 415 (Mo.

App. 2007) (“Where, as here, there is no reference to any specific criminal act committed

either by the defendant or by any gang to which the defendant might belong, admission of

such a vague reference . . . does not support a claim of reversible error.”). Accordingly,

any objection by counsel regarding the relevance of the letters would have been meritless.

       Because McFadden has failed to prove that counsel’s failure to object to the

admission of the letters resulted in prejudice, the circuit court did not clearly err in

denying these claims.

                     D. Failure to Object to the State’s Introduction of
                         Identification and Fingerprint Evidence

       McFadden argues the circuit court clearly erred in failing to find counsel

ineffective for not objecting to the State’s introduction of evidence demonstrating

(1) Silas identified McFadden using a photograph on the wall at the police station and

(2) fingerprints on a cigar wrapper found at the crime scene matched “on file”

fingerprints belonging to McFadden. McFadden argues this evidence was inadmissible

because it created the inference he had a criminal record or was in trouble with the police.

“[P]roof of the commission of separate and distinct crimes is not admissible, unless such

proof has some legitimate tendency to directly establish the defendant’s guilt of the

charge for which he is on trial.” State v. Shilkett, 204 S.W.2d 920, 922-23 (Mo. 1947).


                                              10
                      1. Failure to Object to Identification Evidence

       At trial, the State played Silas’ recorded statement to police, in which he identified

McFadden by using the photograph from the police station wall. A police officer and

detective also testified Silas used the photograph to identify McFadden. These references

to the photograph were not made to indicate McFadden had committed prior bad acts or

uncharged crimes. There were no references to the photograph as a “wanted” photograph

and no explanation was provided for the photograph’s presence. There was no evidence

linking McFadden’s photograph to other crimes he may or may not have committed. See

State v. Carr, 50 S.W.3d 848, 857 (Mo. App. 2001) (requiring defendant, who alleged the

State’s use of the term “mug shots” and reference to photographs on file with the police

department indicated prior criminal activity, to demonstrate photographs maintained by

the police department were solely of persons who committed prior crimes, or that the

average juror believes same, to satisfy burden of involvement in prior criminal activity);

Nunn v. State, 755 S.W.2d 269, 272 (Mo. App. 1988) (finding an officer testifying he saw

defendant’s photograph at roll call was not suggestion that defendant had a criminal

record when there was no actual evidence of other crimes).

       Even if the references to the photograph on the wall demonstrated McFadden

committed prior crimes, “otherwise inadmissible evidence may be admitted . . . if it tends

to establish . . . the identity of the person charged with commission of the crime on trial.”

State v. Primm, 347 S.W.3d 66, 70 (Mo. banc 2011). Because the references to the

photograph were for the purpose of identification, there would have been no merit to an

objection to the admission of this evidence. See Clay, 975 S.W.2d at 135. The circuit

                                             11
court did not clearly err in failing to find counsel were ineffective for not objecting to the

State’s presentation of evidence that Silas identified McFadden in a photograph on the

wall at the police station.

                 2. Failure to Object to the Match of On-file Fingerprints

       A fingerprint examiner obtained a fingerprint from a cigar wrapper found near

Victim’s body. The examiner testified that, after a comparison to prints on file in the

Automated Fingerprint Identification System (AFIS), he determined it was a match to

McFadden’s fingerprints. “Fingerprint cards, in and of themselves, do not constitute

evidence of a prior crime.” State v. Morrow, 968 S.W.2d 100, 111 (Mo. banc 1998).

This Court finds the on-file fingerprints in this case to be analogous. The examiner’s

testimony was neutral. He did not testify that McFadden’s fingerprints on file were

obtained pursuant to an arrest, conviction of a crime, or negative interaction with law

enforcement. The examiner merely testified about the procedure used.

       Because the evidence of the on-file fingerprint was referenced in the context of

explaining the procedure for the match and did not, absent something more, raise an

inference of prior criminal activity, there would have been no merit to the objection. The

circuit court did not clearly err in failing to find counsel ineffective for not objecting to

evidence that the fingerprint found at the murder scene matched one of McFadden’s

on-file fingerprints.




                                              12
                               II. Alleged Penalty Phase Errors

       A. Failure to Introduce Certain Evidence Regarding Victim’s Bad Character

           During the penalty phase, the State offered testimony by Victim’s mother,

girlfriend, and sister, all of whom portrayed Victim as an upstanding individual.

McFadden argues the circuit court clearly erred in failing to find counsel ineffective for

not presenting certain evidence to rebut this portrayal of Victim. As a result of the

absence of certain rebuttal evidence, McFadden claims the jury believed him to be more

deserving of the death penalty. Specifically, McFadden argues counsel should have

obtained and introduced a copy of Victim’s guilty plea to the felony of second-degree

drug trafficking. He further argues counsel should have called Tanesia Kirkman-Clark to

testify.

                             1. Victim’s Guilty Plea Court Record

           At the postconviction evidentiary hearing, McFadden submitted a certified court

record, which indicated that Victim had pleaded guilty to second-degree drug trafficking

for possessing six or more grams of cocaine base. Although introduction of this record

would have rebutted the evidence of Victim’s good character by demonstrating his

involvement with drugs, counsel were not ineffective for failing to present evidence that

was cumulative to other evidence presented at trial. Forrest, 290 S.W.3d at 709. During

trial, counsel presented evidence that Victim possessed cocaine at the time of his death

and further emphasized this point during closing argument. During the cross-

examinations of Victim’s mother and girlfriend, counsel elicited that both witnesses were

unaware of Victim’s involvement with drugs.

                                               13
       Although evidence that Victim possessed cocaine is not the equivalent of evidence

of a second-degree drug trafficking conviction, McFadden has failed to prove there is a

reasonable probability that the jury – which heard evidence regarding Victim’s history of

cocaine possession – would not have recommended the death penalty had Victim’s

conviction record been admitted into evidence. For this reason, the circuit court did not

clearly err in denying McFadden’s ineffective assistance of counsel claim for counsel’s

failure to present evidence of the guilty plea court record.

                               2. Kirkman-Clark’s Testimony

       McFadden next argues the circuit court clearly erred in failing to determine

counsel were ineffective by not calling Kirkman-Clark to testify. To prevail on a claim

of ineffective assistance of counsel for failure to call a witness during the penalty phase

of trial, a movant must establish, among other requirements, that “the witness could be

located through reasonable investigation.” Barton, 432 S.W.3d at 757. McFadden

argues Gennetten v. State, 96 S.W.3d 143, 148 (Mo. App. 2003), in which the court held

counsel ineffective for failing to locate and present an expert witness who would have

presented a viable defense for movant, is analogous. But Gennetten can be distinguished

on its facts, as counsel in that case did not attempt to contact or locate the witness at all.

Id. at 151. Here, counsel testified they attempted to contact and locate Kirkman-Clark

but were unsuccessful. As McFadden did not prove that Kirkman-Clark could have been

located through reasonable investigation, he failed to demonstrate counsel were deficient

in their attempt to locate Kirkman-Clark.



                                              14
       Even if Kirkman-Clark could have been located through reasonable investigation,

McFadden has failed to demonstrate he was prejudiced by counsel’s failure to call her as

a witness. Because McFadden is arguing counsel were ineffective in failing to call a

witness 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.

       McFadden asserts Kirkman-Clark would have rebutted evidence of Victim’s good

character through her testimony that Victim dealt drugs, carried a gun, and was involved

in a drive-by shooting. In her deposition, Kirkman-Clark testified that Victim sold drugs,

which she learned by witnessing him receive a phone call and observing another

individual waiting for him. As these facts alone do not establish that Victim was selling

drugs, Kirkman-Clark’s testimony to that effect would have been an inadmissible,

speculative conclusion. See State v. Boyd, 706 S.W.2d 461, 465 (Mo. App. 1986) (“[T]he

general rule provides that a lay witness must be restricted to statements of fact, not

opinions or conclusions.”). Kirkman-Clark further testified she had heard Victim was

involved in a drive-by shooting of her mother’s house. As Kirkman-Clark recognized

during her deposition, this testimony would have been inadmissible hearsay. See Tisius,

519 S.W.3d at 422. Accordingly, testimony by Kirkman-Clark that Victim was a drug

dealer and was involved in a drive-by shooting would have been inadmissible, and

counsel is not ineffective for not presenting inadmissible evidence. Id.



                                             15
       McFadden has failed to establish the remainder of Kirkman-Clark’s testimony

would have produced a viable defense. Although she testified Victim carried a gun, she

later stated the gun was only for protection. Her testimony actually could have

negatively impacted McFadden’s defense, as she repeatedly emphasized Victim’s good

character, maintaining that he “was nice,” “respectable” and “liked to . . . make people

laugh.” As Kirkman-Clark’s testimony would have had only minimal probative value in

demonstrating Victim’s violent tendencies and bad character, the circuit court did not

clearly err in determining there was not a reasonable probability that McFadden would

not have received a death sentence had she testified.

             B. Failure to Call Additional Expert and Lay Witnesses in Mitigation

       McFadden argues the circuit court clearly erred in failing to find counsel

ineffective for not calling four additional lay witnesses and two additional expert

witnesses.

       When representing a defendant in a death penalty case, “trial counsel has an

obligation to investigate and discover all reasonably available mitigating evidence.”

Davis v. State, 486 S.W.3d 898, 906 (Mo. banc 2016). Such mitigating evidence may

include “medical history, educational history, employment and training history, family

and social history, prior adult and juvenile correctional experience, and religious and

cultural influences.” Wiggins v. Smith, 539 U.S. 510, 524 (2003). At the same time, the

duty to investigate does not require counsel “to scour the globe on the off-chance

something will turn up; reasonably diligent counsel may draw a line when they have good



                                             16
reason to think further investigation would be a waste.” Strong, 263 S.W.3d at 652

(quoting Rompilla v. Beard, 545 U.S. 374, 383 (2005)).

       At the postconviction hearing, counsel testified the defense’s mitigation theory

was that McFadden grew up in a bad neighborhood with a home environment that lacked

guidance and support. During the penalty phase at trial, counsel called seven lay

witnesses, each of whom emphasized the difficulties McFadden experienced growing up

in Pine Lawn. Two of McFadden’s aunts and an uncle testified he was a smaller-sized

child who was bullied by other children at school and in the neighborhood. McFadden’s

father testified that, when McFadden was around seven years old, he often had bruises,

black eyes, and scratches. McFadden’s grandmother testified that he did not have a

consistent home and stayed with various family members. Lynette Hood, a friend of

McFadden’s who lived in Pine Lawn, testified that Pine Lawn is a violent neighborhood

and that she often heard gunshots. She stated McFadden was shot in the leg, which led to

a decline of his mental health and wellbeing. A St. Louis juvenile officer testified that

Pine Lawn is a “violent,” “depressed,” and “difficult place” to live. He further stated

McFadden did not have adequate structure in his home life. Counsel also called an expert

witness, Dr. Draper, who testified regarding the effect of McFadden’s home and

community life on his development.

                       1. Failure to Call Additional Lay Witnesses

       McFadden now claims counsel should have called four additional lay witnesses

who lived in Pine Lawn: Kirkman-Clark, Elwyn Walls, Sean Nichols, and Willabea

Blackburn. At the postconviction hearing, they testified that Pine Lawn culture consists

                                             17
of gangs, drugs, and violence. This testimony would have been cumulative to the

testimony of the seven lay witnesses and Dr. Draper. “Counsel is not ineffective for not

presenting cumulative evidence.” Deck, 381 S.W.3d at 351. Further, these witnesses

would have been subject to potentially damaging cross-examination regarding

McFadden’s gang involvement and responsibility in creating the violent culture.

Accordingly, McFadden failed to demonstrate that, had the additional witnesses been

called to testify, their testimonies would have outweighed the potentially aggravating

evidence elicited by the State. For these reasons, the circuit court did not clearly err in

failing to find counsel ineffective for not calling these additional lay witnesses.

                                2. Failure to Call Dr. White

       McFadden also claims counsel were ineffective in failing to call Dr. Norman

White, or another sociologist with similar expertise, to testify regarding how the cultural

environment in which McFadden grew up impacted his development. McFadden also

argues counsel were ineffective in failing to provide Dr. Draper with Dr. White’s report.

        Postconviction counsel asked Dr. White to study Pine Lawn to gain an

understanding of McFadden’s life as an adolescent in the 1980s and 1990s. Dr. White

reviewed Dr. Draper’s report, watched a video compilation of interviews addressing life

in Pine Lawn, read Pine Lawn newspaper clippings, and interviewed Pine Lawn

residents.

       Although Dr. White’s testimony would have further supported the defense’s

mitigation theory, Dr. White was unable to opine how growing up in Pine Lawn actually

impacted McFadden’s decision to murder Victim. Because the defense presented ample

                                             18
evidence of the Pine Lawn culture and its effects on McFadden’s childhood and

development – including testimony by another expert, Dr. Draper – additional expert

testimony on this topic would have been of limited assistance. See Deck, 381 S.W.3d at

351.

       As for McFadden’s claim that counsel were ineffective in failing to provide

Dr. Draper with Dr. White’s report, counsel testified at the postconviction hearing that

Dr. Draper never indicated she needed additional information to inform her opinion.

Further, the record indicates that, even if Dr. Draper had reviewed Dr. White’s report

prior to testifying at trial, her testimony would not have substantively changed. At trial,

Dr. Draper testified the violent environment in which McFadden lived impaired his

ability to make decisions. Similarly, at the postconviction hearing, Dr. Draper testified

the environmental factors identified by Dr. White, such as crime and violence in the

community, had an adverse effect on McFadden’s development. Dr. Draper’s opinion

that McFadden used his free will to kill multiple people did not change after reviewing

Dr. White’s report. Because McFadden failed to demonstrate that introduction of

Dr. White’s findings into evidence – either through Dr. White’s own testimony or

through furnishing his report to Dr. Draper – would have produced a viable defense, the

circuit court did not clearly err in failing to find counsel ineffective for not introducing

Dr. White’s findings into evidence.

                               3. Failure to Call Dr. Gelbort

       McFadden similarly argues the circuit court clearly erred in failing to find counsel

ineffective in not calling Dr. Gelbort, or a similarly qualified neurological expert, to

                                              19
testify regarding McFadden’s mental capacity. McFadden argues Dr. Gelbort’s

testimony should have been presented to support a pretrial motion or, alternatively, to

support the defense’s argument during the penalty phase that the jury was required to find

McFadden was mentally at least 18 years old before sentencing him to death.

       To the extent McFadden argues a mental age of younger than 18 entitles him to be

treated as a juvenile for sentencing purposes and precludes imposition of the death

penalty, despite that he was 23 years old at the time he committed the murder, this Court

has rejected that argument. See Tisius, 519 S.W.3d at 430-31. Tisius held that even

though the United States Supreme Court “recognized the potential for a defendant’s

mental age to differ from his or her biological age,” it “nonetheless, implemented a bright

line rule as to the minority age for imposition of the death penalty” and “trial counsel

were not ineffective for failing to object on grounds that [the defendant’s] mental age

prohibited imposition of the death penalty.” Id. at 431. Accordingly, even if counsel had

called Dr. Gelbort to testify regarding McFadden’s mental capacity, his testimony could

not have affected McFadden’s death penalty eligibility, as McFadden incorrectly

suggests.

       To the extent McFadden argues counsel were unreasonable in deciding not to call

Dr. Gelbort as an expert during the penalty phase, his claim also fails. In 2004, counsel

asked Dr. Gelbort to conduct a neuropsychological evaluation of McFadden. Dr. Gelbort

testified the results indicated McFadden had brain abnormalities affecting his ability to

solve problems, make decisions, and excel academically.



                                             20
       Dr. Gelbort testified in the first trial involving the murder of Victim as well as the

trial involving the murder of Leslie. According to counsel, Dr. Gelbort’s testimony was

not particularly helpful in those cases, as he had “extremely bad” demeanor on the

witness stand and lost credibility with the jury. Further, Dr. Gelbort was unable to testify

that McFadden’s brain abnormalities caused him to kill Victim, and, in both cases, the

juries recommended death. Counsel testified they made a strategic decision not to call

Dr. Gelbort as an expert again, concluding the negative impact of Dr. Gelbort’s poor

demeanor outweighed any potential benefit of his testimony. Instead, counsel chose to

call Dr. Draper as well as lay witnesses to testify regarding the effect of Pine Lawn

culture on McFadden’s development. Such “strategic choices made after thorough

investigation of law and facts relevant to plausible opinions are virtually

unchallengeable.” Strickland, 466 U.S. at 690. Counsel reasonably chose not to pursue a

strategy that had failed in prior trials, Baumruck v. State, 364 S.W.3d 518, 536 (Mo. banc

2012), and instead chose “to pursue one reasonable trial strategy to the exclusion of

another.” Davis, 486 S.W.3d at 912. For these reasons, the circuit court did not clearly

err in failing to find counsel ineffective for not calling Dr. Gelbort as a witness.

                        C. Failure to Present Brain Scan Evidence

       McFadden argues counsel were ineffective in failing to order a PET (positron

emission tomography) scan of his brain and in failing to call Dr. Ruben Gur, a clinical

psychologist, to testify about the scan’s results.

       At the postconviction hearing, counsel testified McFadden underwent an MRI

scan, which came back normal. Dr. David Preston, a medical doctor working with

                                              21
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 use of

PET scans in criminal cases. Even if counsel had identified a place to have a PET scan

performed, counsel testified they were hesitant to order the scan due to the concern that it

was impossible to do so without the State knowing, and any “normal” result could be

used against McFadden. These concerns were valid reasons to avoid pursuing the scan.

See Forrest, 290 S.W.3d at 709 (holding counsel was not ineffective for failing to obtain

a PET scan based on fears that the scan would not be “ex parte and under seal” and

potentially would “provide[] harmful information that would undermine other mitigating

evidence”).

       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, Dr. Gur conceded that the abnormalities in McFadden’s scan were not

necessarily related to his decisions to kill others and that not all individuals with similar

abnormalities are murderers. As this Court stated in Zink v. State, 278 S.W.3d 170, 182

(Mo. banc 2009), “the mitigating value of the PET scan evidence is limited because . . .

there is no generally accepted scientific link between [a movant’s] brain abnormalities

and his diagnosed personality disorders.”

                                              22
       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

                                              23
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 not severe, introducing them into

evidence would not have impacted the jury’s finding that McFadden was convicted of

two counts of felony assault. See State v. Kinder, 942 S.W.2d 313, 332 (Mo. banc 1996)

(“[F]or purposes of evaluating a statutory aggravator, the determination of whether a

prior conviction is a serious assault is a matter of law for the court, and the jury only

finds as a matter of fact that a prior conviction actually occurred.”). For these reasons,



                                              24
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’

                                              25
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 options 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 fighting on the night Leslie was murdered and that Eva did not tell her they

had been fighting. McFadden argues this would have impeached Eva’s claim that she

fought with McFadden outside the house the night Leslie was murdered.

       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

                                             26
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

                                             27
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



5
  McFadden cites Black v. State, 151 S.W.3d 49, 56 (Mo. banc 2004), for the proposition that
counsel can be found ineffective for failing to impeach witnesses with their prior inconsistent
statements about the circumstances surrounding the crime when the defendant’s mental state
“was the key issue in contention between the parties” and the prior inconsistent statements
“related directly to the central issue of whether [the defendant] acted with deliberation or in a fit
of rage or out of self-defense.” In such circumstances, there is a reasonable probability this
would have affected the outcome of the trial because, if believed, the testimony would have
negated an element of the crime for which the defendant was convicted. Id. at 58. Unlike in
Black, McFadden fails to identify prior inconsistent statements Eva made and with which she
could have been impeached, nor would the impeaching testimony of these three uncalled
witnesses have related “directly to the central issue.” Rather, and again unlike in Black, counsel
made a strategic decision not to call additional lay witnesses after weighing their impeachment
value against the damaging cross-examination to which they would have been subjected.

                                                 28
                 4. Failure to Present Evidence of Lighting and Distance

       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

                                            29
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: “He

threatens to kill Eva. That’s aggravating: you’re going to kill a witness because she

witnesses you killing her sister. He wants to kill her. He just didn’t get a chance to kill

her because he got caught in St. Charles.” McFadden argues this statement was

speculative argument that misled the jury. But “[a] prosecutor is allowed to argue the

evidence and all reasonable inferences from the evidence during closing arguments.”

State v. Brown, 337 S.W.3d 12, 14 (Mo. banc 2011). The evidence suggested McFadden

threatened Eva. Specifically, Eva testified McFadden said he would kill her if she

continued to claim McFadden killed Leslie. As the State’s assertion was not outside the

                                              30
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:




                                             31
       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 outside

the record and injected passion, prejudice, caprice, and emotion, prejudicing the jury.

But the State argued inferences from evidence presented in this case. Brown, 337 S.W.3d

at 14. The circumstances present in this case involved emotionally charged facts.

“Arguments likely to inflame and excite prejudices of the jury are not improper if they

help the jury understand and appreciate evidence that is likely to cause an emotional

response.” State v. Rhodes, 988 S.W.2d 521, 528 (Mo. banc 1999). For this reason,

counsel were not ineffective for failing to object to these statements.




                                             32
       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

                                              33
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 record. 7 As McFadden has failed to meet his

burden establishing prejudice, Goodwin v. State, 191 S.W.3d 20, 26 (Mo. banc 2006), the

circuit court did not clearly err in overruling the motions to compel.

          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



6
  McFadden asserts the following topics would have been covered during Codefendant’s
deposition: (1) Codefendant’s guilty plea of murder for killing Victim and 20-year prison
sentence; (2) Codefendant’s deposition by phone years earlier during which he refused to be
sworn; (3) McFadden’s letter that was delivered to Codefendant at the jail; (4) Codefendant’s
Rule 24.035 motion; (5) Codefendant’s letter written years earlier to McFadden’s attorneys;
(6) information regarding perjury charges; (7) Codefendant’s discussion with prosecutors before
his testimony in the retrial of this case; and (8) the presence of Roderick Jones and “Little Tony”
when Victim was shot.
7
  For example, the record indicates: Codefendant pleaded guilty to murdering Victim, he refused
to be sworn during a previous deposition by trial counsel, he wrote a letter to trial counsel, and
he filed a Rule 24.035 motion.
                                                34
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 Rule 29.15(i) (“At any hearing ordered by the court

the movant need not be present.”). McFadden argues the United States Supreme Court’s

                                             35
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 the

motion to disqualify the prosecutor’s office, disqualification of a prosecutor is

appropriate when a conflict of interest prohibits the attorney’s participation in the

underlying case. State v. Lemasters, 456 S.W.3d 416, 420 (Mo. banc 2015). A

prosecutor’s office “must be disqualified if a reasonable person with knowledge of the

facts would find an appearance of impropriety and doubt the fairness” of the process. Id.

at 423. During the hearings, the prosecuting attorneys indicated their belief that

McFadden had a history of assaulting jail and prison guards was derived from

information received from the St. Louis County jail. Further, in their supplement to the

motion, the prosecuting attorneys corrected their earlier statements that McFadden had a

history of assaulting jail and prison guards. For these reasons, the record indicates the

prosecutor’s office was impartial and had no conflict of interest in McFadden’s case.



                                              36
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

                                            37
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 attempted to amend his claim more than four years after

postconviction counsel timely filed the amended motion – long after the deadlines

provided in Rule 29.15. Accordingly, the circuit court did not clearly err in finding the

added claims were untimely pursuant to Rule 29.15.

            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.



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       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.




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                                       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.




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