Vickers v. State

632 S.W.3d 781

Victor D. VICKERS, Jr., Respondent,

v.STATE of Missouri, Appellant.

WD 83989

Missouri Court of Appeals, Western District.

OPINION FILED: AUGUST 3, 2021

Application for Transfer Denied November 23, 2021

Annette M. Wallace, Kansas City, MO, Counsel for Respondent.

Richard A. Starnes, Jefferson City, MO, Counsel for Appellant.

Before Division One: Alok Ahuja, Presiding Judge, Lisa White Hardwick, Judge, Anthony Rex Gabbert, Judge

Anthony Rex Gabbert, Judge

The State of Missouri appeals the grant of Victor Vickers’ Rule 29.15 motion after evidentiary hearing. In one point on appeal, the State claims the motion court erred in finding Vickers’ trial counsel ineffective in failing to endorse an alibi witness prior to trial. The judgment is affirmed.

Facts¹

On August 13, 2011, Victor Vickers hosted a pool party at a water resort in Kansas City, Missouri. Two of the guests at that party were Edward Ewing and Emily DeMarea. DeMarea was romantically involved with Vickers at that time.

Two days after the pool party, Ewing was murdered inside his home. Ewing's girlfriend, Kristen Forbush, was also shot but survived her injuries. After the shooters ran out of the house, Forbush called 911. When the 911 operator asked Forbush if she knew the people who shot her and her boyfriend, Forbush stated she did not. A law enforcement officer arrived at the home and also asked Forbush if she knew who the shooters were. Forbush told the officer that there were three black males, one of them being Garron Briggs, and that the suspects were driving a silver Pontiac Grand Prix. Vickers was not named as a suspect at that time.

After she arrived at the hospital, the officer spoke with Forbush a second time. During that second interview, Forbush told the officer that the silver Pontiac Grand Prix belonged to Kyesia Ransom. Ransom was Briggs’ girlfriend at the time. Forbush also added that a person whom she only knew by the name of "V.V." may have been a second of the three suspects, and that she could not identify the third male. Forbush knew "V.V." to be Briggs’ cousin. Forbush later identified "V.V." as Victor Vickers.

Ewing's family informed law enforcement that Ewing was contemplating ending his relationship with Forbush because she was cheating on him with Troy Jefferson. Jefferson owned a white Impala that was never seen again after the shootings. Two days after the shooting, Vickers learned of the allegations and met with private counsel ("Private Counsel"). Vickers claims that he told Private Counsel he was home with DeMarea at the time of the crime.

On September 2, 2011, Vickers was charged by the State of Missouri ("the State") with murder in the first degree, assault in the first degree, and two counts of armed criminal action. Following the indictment, trial dates were scheduled and later continued on three occasions. The first scheduled trial date was continued at the request of the State and without objection by Vickers. Two additional trial dates were continued at the request of Vickers.

Trial was then scheduled for September 23, 2013.

Between the murder charges being filed in 2011 and the September 23, 2013 trial date, Vickers was apparently indicted for his participation in a drug distribution conspiracy in the U.S. District Court for the Western District of Missouri. Vickers sought another continuance of the trial date, but his request was denied. Aware that Vickers would soon be remanded to federal court, the State dismissed all charges then pending against Vickers on September 10, 2013.

Following his trial, conviction and sentencing in federal court, Vickers was again charged by the State of Missouri for the 2011 shooting of Ewing and Forbush. He was charged as acting alone or in concert with another. The same charges had been filed against Briggs, the co-defendant in a separate case.

Vickers was arraigned on August 24, 2015. He was unable to retain private counsel. A public defender ("Defense Counsel") was appointed to represent Vickers. Trial was scheduled for May 16, 2016.

Briggs’ trial began on December 14, 2015. The same witnesses ultimately testified for the State in both Briggs’ trial and Vickers’ trial with the exception of an additional witness who testified for the State in Vickers’ trial. The same witnesses testified for the defense in both Briggs’ trial and Vickers’ trial with the exception of an additional witness, Ransom, who testified for the defense in Briggs’ trial. Briggs was convicted.

On May 8, 2016, eight days before the scheduled trial, Defense Counsel filed a motion to dismiss or exclude evidence alleging a violation of Vickers’ right to a speedy trial. That motion was overruled, and trial occurred the week of May 16, 2016.

Following a recess for lunch during jury selection on the first day of trial, Defense Counsel requested leave to endorse DeMarea as an alibi witness. DeMarea's existence had not been disclosed before that time. Defense Counsel stated that she had been made aware of the existence of DeMarea as a potential witness and her investigator spoke with DeMarea on the phone a few weeks prior to trial. This conversation occurred prior to Defense Counsel filing a response to the State's request for discovery wherein Defense Counsel pled that Vickers did not intend to rely on the defense of alibi. On the first morning of trial, DeMarea came to the courthouse voluntarily and spoke with Defense Counsel. That is when Defense Counsel determined she wanted to call DeMarea as an alibi witness. The State opposed Defense Counsel's motion. The trial court denied the motion and disallowed DeMarea's testimony.²

The jury found Vickers guilty of murder in the first degree, assault in the first degree, and two counts of armed criminal action. On October 18, 2016, Vickers was sentenced to life in prison without parole for murder in the first degree, and 30 years imprisonment for the other three charges. All sentences were ordered to run concurrently. Vickers’ conviction and sentence were upheld by this court in State v. Vickers , 560 S.W.3d 3 (Mo. App. W.D. 2018).³

Vickers filed a timely pro se Rule 29.15 motion on February 27, 2019. One of the claims pertained to Defense Counsel's failure to investigate and timely endorse DeMarea as an alibi witness. Appointed post-conviction counsel gave notice that Vickers would proceed only on his pro-se motion. After an evidentiary hearing, the motion court⁴ denied all of the claims in the Rule 29.15 motion except for the claim pertaining to the alibi witness. With respect to that claim, the motion court found that Defense Counsel's representation fell substantially below that of reasonably competent counsel and further, that her failure undermined confidence in the outcome of the trial. It vacated the judgment and ordered a new trial.

This appeal follows.

Standard of Review

"We review a motion court's ruling on a Rule 29.15 post-conviction motion for the limited determination of whether the findings of fact and conclusions of law are clearly erroneous." Hook v. State , 611 S.W.3d 842, 849 (Mo. App. W.D. 2020). "The motion court's findings and conclusions are clearly erroneous only if a review of the entire record leaves this Court with a definite and firm impression that a mistake has been made." Id. (internal quotation marks omitted).

Analysis

In its sole point on appeal, the State claims the motion court clearly erred in granting Vickers’ Rule 29.15 motion. It maintains that Defense Counsel was not ineffective for failing to diligently investigate and timely endorse DeMarea as an alibi witness. The State concludes that Vickers failed to prove Defense Counsel was ineffective because she did conduct a reasonable investigation of DeMarea prior to trial and reasonably concluded that DeMarea could not provide a valid alibi defense.

"To be entitled to post-conviction relief for ineffective assistance of counsel, [a movant] must satisfy the two-prong test of Strickland by a preponderance of the evidence." Id. "First, [a movant] must show that counsel's performance was deficient by falling below an objective standard of reasonableness." Id. "If counsel's performance was deficient, [a movant] must then prove that he was prejudiced by counsel's deficiency." Id. "Prejudice occurs when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (internal quotation marks omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (internal quotation marks omitted).

"There is a strong presumption that counsel's conduct was reasonable and effective." Id. "To overcome this presumption, the movant must point to specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of effective assistance." Id. "Strategic choices made after a thorough investigation of the law and the facts are virtually unchallengeable." Id. "A movant must satisfy both prongs ... to obtain postconviction relief as a result of ineffective assistance of counsel." Id. (internal quotation marks omitted).

"An alibi is [a] defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for defendant to be the guilty party." Wren v. State , 313 S.W.3d 211, 218 (Mo. App. E.D. 2010) (internal quotation marks omitted) (emphasis in original).

To obtain a hearing on a claim that counsel was ineffective for failure to call a witness, a movant must plead facts, not refuted by the record, establishing that: (1) counsel knew or should have known of the witness's existence; (2) the witness could have been located with reasonable investigation; (3) the witness would have testified; and (4) the testimony would have provided a viable defense.

White v. State , 383 S.W.3d 58, 62 (Mo. App. E.D. 2012). "A witness's testimony provides a movant with a viable defense when it...