GARY D. WITT, Judge.
Ryan Ferguson appeals the circuit court's judgment denying his motion for post-conviction relief. After a jury trial, Ferguson was convicted in Boone County Circuit Court of one count of felony murder in the second degree, Section 565.021.1(2),
Because the findings and the conclusions of the motion court, which denied Ferguson's post-conviction relief motion, are not clearly erroneous, we affirm. Ferguson further filed with this Court a Motion To Remand Based on Newly Discovered Evidence. For the reasons set forth herein, this Motion is denied.
On October 31, 2001, Chuck Erickson, a seventeen-year-old high school junior, attended a party at night at his friend's house in Columbia, Missouri. The police broke up the party, and as Erickson was leaving the party, he ran into Ferguson who was just driving up to the house. Ferguson, who was also a seventeen-year-old high school junior, told Erickson to get in his car, and the two drove off. They made plans to meet with Ferguson's sister at By George's, a club in downtown Columbia, Missouri.
Although underage, Ferguson's sister had arranged for them to "borrow" other people's I.D.s so they could enter the club. Once in the club, Ferguson bought a few mixed drinks for Erickson and himself. Around 1:00 a.m. Ferguson and Erickson ran out of money so they left the club.
Once outside, they went to Ferguson's vehicle. There, Ferguson told Erickson that he did not want to go home and that they should find something else to do. Ferguson suggested that they rob someone so they could get more beer money and stay out later. Erickson agreed. They exited Ferguson's vehicle, and Ferguson got a tire tool out of his trunk to use in the robbery. They then walked downtown to find someone to rob. They eventually walked to the Columbia Tribune Building where they saw the victim leaving the building.
Ferguson and Erickson went down an alley and hid behind a dumpster. They observed as the victim reached his vehicle in the Tribune parking lot and opened his front door. As he was shuffling some papers, Erickson and Ferguson ran up behind him as he was facing his vehicle,
During the assault, a custodian at the Tribune Building, Shawana Ornt, had exited the building to smoke a cigarette. She observed what was happening and went back to the building to get a co-worker, Jerry Trump. While that was occurring, Ferguson reached down and searched the victim's pockets and took his watch and car keys. Erickson grabbed the tire tool and the belt. Trump exited the building and saw the victim on the ground. He called out, "I see you there. Who's out there." Erickson responded that the victim was hurt. Erickson and Ferguson then left the scene. Trump went over to the victim's body and told Ornt to call 911.
The police were unable to develop any leads immediately after the murder, based primarily on the fact that little forensic evidence was left at the scene of the crime.
Eventually, Ferguson and Erickson went to separate colleges. Erickson stayed near Columbia for college, and Ferguson moved to Kansas City to attend college. At a New Year's Eve party in 2003, Erickson confronted Ferguson about his recollection of the murder. Ferguson told him that they did not murder the victim. Ferguson threatened to kill Erickson if he went to the police with his story. Soon after, Erickson disclosed what he believed to be his involvement in the murder to his friends, Nick Gilpin and Art Figueroa. Gilpin contacted the Columbia Police Department. On March 10, 2004, the police contacted Erickson, and he went to the Columbia Police Department where he confessed to his involvement in the murder and robbery. He was eventually arrested and charged.
On March 10, 2004, the police drove to Kansas City, Missouri, where they arrested Ferguson, who was later charged with the class A felony of murder in the first degree, in violation of § 565.020 and the class A felony of robbery in the first degree, in violation of § 569.020. Erickson pled guilty to first-degree robbery, in violation of § 569.020, second-degree murder in violation of § 565.021.1(2), and armed criminal action, in violation of § 571.015. In exchange for a lesser sentence, Erickson agreed to testify against the appellant.
Ferguson's case proceeded to a jury trial on October 14, 2005. The State called Erickson to the stand; he testified that he and Ferguson robbed and murdered the victim.
On October 18, 2005, the jury returned verdicts against Ferguson finding him guilty of felony murder in the second degree, in violation of § 565.021.1(2), and robbery in the first degree, in violation of § 569.020. Ferguson filed a motion for a new trial, which the trial court overruled. On December 12, 2005, the trial court entered judgment against the appellant sentencing him to consecutive terms of thirty years on Count I and ten years on Count II, to be served in the Missouri Department of Corrections.
This Court affirmed Mr. Ferguson's convictions and sentences on June 26, 2007. State v. Ferguson, 229 S.W.3d 612, 614 (Mo.App. W.D.2007).
On November 14, 2007, Ferguson filed a pro se motion for post-conviction relief, which was subsequently amended by counsel. An extensive evidentiary hearing was held on the motion on July 16 to July 18, 2008.
On June 12, 2009, the motion court issued its Findings of Fact, Conclusions of
After the motion court denied Ferguson's post-conviction relief motion in its June 2009 judgment (and while his appeal of that judgment was pending in this Court), Ferguson filed with this Court a Motion to Remand Based Upon Newly Discovered Evidence (Remand Motion) in February 2010. The basis of the Remand Motion is that Ferguson's co-defendant, Charles Erickson, has provided a sworn statement (written and videotaped) that he alone robbed and murdered Kent Heitholt without any involvement of Ferguson. Because he argues that this newly discovered evidence demonstrates that his conviction rests solely on perjured testimony, Ferguson requests that this Court stay the pending appeal (WD71264) and remand the case to the trial court so that the new evidence provided by Erickson can be considered and a decision rendered by the trial court as to whether a new trial is warranted.
We must reject Ferguson's Remand Motion because Missouri law is clear that he is not entitled to file another motion for new trial at this time. Even when taking all of the averments in his Remand Motion as true, this Court is unable to grant Ferguson the relief that he requests. Ferguson argues that because Erickson recanted his trial testimony after his post-conviction relief motion was filed and ruled upon, that this somehow confers upon him a unique right to have this matter remanded to the circuit court so that he can file another motion for new trial. We disagree.
Critically, had Ferguson brought this claim of newly discovered evidence in a timely fashion in his post conviction relief action, the motion court would still have been precluded from reviewing the substance of this claim.
While "[n]ewly-discovered evidence is not cognizable in a post-conviction action," an exception is allowed when it is later discovered that "the state knowingly used perjured testimony which is cognizable in a post-conviction action." State v.
"`In order to show perjury entitling him to post-conviction relief, the appellant must [also] prove that the witnesses' trial testimony was false and that the prosecution used the testimony knowing it to be false and that the conviction was obtained because of the perjured testimony.'" DeClue, 579 S.W.2d at 159 (emphasis added) (quoting Voegtlin v. State, 546 S.W.2d 40, 41 (Mo.App.1977)); see also Cummings, 838 S.W.2d at 7 ("Cummings failed to establish that the prosecutor knew of Coonce's [perjured] testimony"). Because Ferguson provides no basis, other than his bare allegation, that the prosecution knew that Erickson perjured himself during Ferguson's trial, we must deny this claim of newly discovered evidence as a basis for relief in this post-conviction proceeding.
Perhaps in acknowledgment that a newly discovered evidence claim cannot be brought in a Rule 29.1.5 proceeding, Ferguson argues that the instant motion is not proceeding pursuant to Rule 29.15, but instead, he is asking this Court to stay the 29.15 appeal so that a motion for new trial may be filed and heard by the trial court. In light of the fact that he was convicted in October 2005, Ferguson's motion is not within the time limits for filing a motion for a new trial pursuant to Rule 29.11(b) because that limit is twenty-five days after the verdict. State v. Terry, 304 S.W.3d 105, 108 (Mo. banc 2010). Nonetheless, Ferguson asserts that his motion to remand falls within an extremely limited exception to Rule 29.11, which permits a remand for newly discovered evidence as recently outlined by the Missouri Supreme Court in Terry. We disagree.
"Once the time for filing a motion for a new trial has passed, the Missouri rules have no provision for the granting of a new trial based on newly discovered evidence even if the evidence is available prior to sentencing." Id. at 109. "However there is authority for an appellate court, in a proper case, to grant a motion to remand a case to the trial court to enable an appellant to move for a new trial based on newly
Id. at 515-16 (emphasis added).
The Supreme Court of Missouri recently held in Terry that "[a] review of the post-Mooney case law indicates that courts have interpreted Mooney to stand for the proposition that a remand to the trial court so an accused can file a motion for a new trial on the ground of newly discovered evidence is only appropriate in `exceptional circumstances' when the newly discovered evidence will exonerate the accused." Terry, 304 S.W.3d at 110. "This Court agrees with Mooney that an appellate court has the `inherent power to prevent miscarriages of justice' and ... that it is the Court's responsibility to avoid a `perversion of justice.'" Id. "An appellate court will exercise this power in its discretion." Id. at 109.
But Ferguson ignores that both Terry and Mooney were cases that were pending on direct appeal when the evidence in question was discovered, as opposed to the instant case where Ferguson's criminal conviction was finalized in 2007 and the instant motion wasn't filed until 2010. Ferguson cites no case law that would support the conclusion that this Court has the authority to remand a matter during a post-conviction relief appeal. The Eastern District has specifically held that the Mooney principles do not apply where the direct appeal is final. Clemmons v. State, 795 S.W.2d 414, 418 n. 4 (Mo.App. E.D. 1990) (citing State v. Warden, 753 S.W.2d 63 (Mo.App. E.D.1988)).
What Ferguson asks this Court to do is allow him to raise a claim on remand that he would not have been allowed to raise in a timely filed post-conviction relief claim. Because it is undisputed that a claim of newly discovered evidence is not cognizable in a Rule 29.15 motion, this Court would therefore be creating a novel avenue for relief for Ferguson during a post-conviction appeal that had previously been foreclosed to countless prior defendants. Ferguson, 20 S.W.3d at 505. Our rules
Finally, while Ferguson relies heavily on the Supreme Court of Missouri's most recent holding in this matter, Terry, to support his argument that this cause should be remanded to the motion court, we believe it illustrates precisely why we must deny Ferguson's motion. 304 S.W.3d at 107. In Terry, a seventeen year old defendant was convicted of statutory rape charges based largely on the "victim's" testimony that defendant impregnated her. Id. After a DNA test of the newborn baby confirmed that this was not the defendant's child, defendant filed a motion to remand while the case was pending on direct appeal, which argued that he was convicted on the basis of perjured testimony by the victim. Id. at 108.
But in granting the motion in Terry, the Missouri Supreme Court highlighted why similar relief is not available to Ferguson. The Missouri rules have no provision for the granting of a new trial based on newly discovered evidence, so the Court relied heavily on Rule 33(b)(1) of the Federal Rules of Criminal Procedure and the fact that the Federal Rule allows "for a motion for a new trial based on newly discovered evidence to be filed within three years of the verdict." Id. at 109 n. 7. Ferguson ignores the fact that his motion was filed over four years after the verdict was entered in this case, so we would also be obliged to deny his motion to remand pursuant to the Federal Rules of Criminal Procedure. United States v. McDonald, 326 Fed.Appx. 880, 883 (6th Cir.2009) ("Rule 33 requires such motions to be filed within certain time requirements; if based upon newly discovered evidence, the motion must be filed `within 3 years after the verdict or finding of guilty,'" and because defendant failed to file such a timely motion he was "left with only one possible avenue to challenge his 1996 conviction: his Congressionally-enacted right to collaterally attack the conviction under 28 U.S.C. § 2255 [writ of habeas corpus].").
Ferguson is not without recourse to have this newly discovered evidence heard in a Missouri court of law. Habeas corpus relief is available "where petitioner can demonstrate `manifest injustice or miscarriage of justice' by showing that `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" State ex rel. Verweire v. Moore, 211 S.W.3d 89, 91 (Mo. banc 2006) (quoting Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000)). "[I]n nearly all cases, manifest injustice or miscarriage of justice will require a showing of newly discovered evidence of actual innocence.'" Id. at 93. "Justice requires that this Court consider all available evidence uncovered following Engel's trial that may impact his entitlement to habeas relief," and under "the `cause and prejudice' standard... [h]e also must establish that he is entitled to habeas review because this Court's failure to review his claims would prejudice him." State ex rel. Engel v. Dormire, 304 S.W.3d 120, 126 (Mo. banc 2010). Habeas corpus relief may even be available in rare circumstances where a freestanding claim of actual innocence is brought independent of any constitutional violation at trial. State ex rel. Amrine v. Roper, 102 S.W.3d 541, 547-548 (Mo. banc 2003).
Accordingly, for all of the aforementioned reasons, Ferguson's Motion To Remand Based Upon Newly Discovered Evidence is denied.
In determining whether the motion court erred in denying Ferguson's motion for post-conviction relief, our review is "limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 29.15(k).
In Point One, Ferguson argues that the motion court erred in denying his motion for post-conviction relief in light of the fact that "he was denied a fair trial because the State failed to disclose to the defense Clarence Mabon's statements regarding his involvement in Mr. Heitholt's murder."
"In Brady [v. State of Maryland], the United States Supreme Court held that the State violates due process if it suppresses evidence that is favorable to the accused and material to either the guilt phase or the penalty phase. 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)." Gill v. State, 300 S.W.3d 225, 231 (Mo. banc 2009). "The State violates due process regardless of whether it withheld the evidence in good faith or in bad faith." Id. "`There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" Merriweather v. State, 294 S.W.3d 52, 54 (Mo. banc 2009) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). "`According to Brady, due process requires the prosecution to disclose evidence in its possession that is favorable to the accused and material to guilt or punishment.'" Id. (quoting State v. Goodwin, 43 S.W.3d 805,
Here, Ferguson argues that because the State failed to disclose information that Ronald Hudson stated that Clarence Mabon had "confessed to involvement in the murder" in question, that the motion court erred in denying his post-conviction relief motion. In denying this claim, the motion court made the following relevant findings of fact and conclusions of law:
Even if the State's failure to disclose this information constituted a Brady violation, Ferguson's inability to demonstrate prejudice from this alleged Brady violation is dispositive of this Point Relied On. Simply put, Ferguson has failed to demonstrate that the motion court's above findings and conclusions were somehow in error.
Ferguson fails to demonstrate that the motion court's conclusion, that Hudson's testimony was not credible, was not supported by the evidentiary record. "At a post-conviction relief evidentiary hearing, the motion court determines the credibility of the witnesses and is free to believe or disbelieve the testimony of any witness...." Hurst v. State, 301 S.W.3d 112, 117 (Mo.App. E.D.2010).
Ferguson argues on appeal that the consequence of this nondisclosure is that it prevented Ferguson from carefully investigating potential leads including Hudson, Mabon's ex-girlfriend Yolanda, as well as Hudson's girlfriend Felicia and that there may have been some physical evidence implicating Mabon that they could have uncovered. What this argument ignores is that the motion court found that Hudson's entire story was not credible, so any subsequent investigation would have been futile because this was a false and phony lead.
Ferguson relies heavily on this Court's holding in State v. Parker to support his argument that he is entitled to relief on appeal for this alleged Brady violation. 198 S.W.3d 178, 181 (Mo.App. W.D.2006). Parker does not support Ferguson's argument. In Parker, this Court simply remanded the case to the circuit court for it to convene a hearing to consider Parker's Brady claims to determine whether or not the prosecuting attorney suppressed Brady material and, if the circuit court determined that the prosecuting attorney did suppress Brady material, to determine whether or not the statements would have been favorable to Parker's defense. Id. But here, the motion court already had such an evidentiary hearing and detailed its reasons for answering the aforementioned questions against Ferguson. Because he has failed to demonstrate that the findings and conclusions regarding this claim are somehow clearly erroneous, Ferguson has no basis for relief pursuant to this Brady claim on appeal.
Finally, Ferguson argues that he could have utilized Hudson's statement for cross-examination of law enforcement at trial regarding other leads that were not followed up on, but does not dispute the motion court's detailed findings and conclusions that Hudson's statements were inadmissible hearsay. When the undisclosed material in question is inadmissible at trial, a Brady violation cannot occur in light of the fact that the material in question could have had no direct effect on the outcome of trial, because defendant could not have mentioned them either during argument or while questioning witnesses. Wood v. Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995). Accordingly, we fail to understand how this inadmissible hearsay would have been any benefit to Ferguson. Therefore, we must deny this Brady claim.
Point One is denied.
In Point Two, Ferguson argues that the motion court erred in denying his motion for post-conviction relief because
We must deny Ferguson's second Brady claim for a similar reason as we denied his first Brady claim, namely that the motion court made the following detailed findings that the evidence in question was not credible and thus was not a basis for a meritorious Brady claim:
At the hearing on Ferguson's post-conviction motion, Shawana Ornt testified that she told the prosecutor's office (specifically the lead prosecutor in this case, Kevin Crane) that neither Ryan Ferguson nor Charles Erickson were the men she saw in the parking lot the evening the victim was murdered. Of course, were Ornt's testimony to be believed, this evidence would be material because Ornt was one of the only individuals in the area immediately after the victim's murder who had the opportunity to identify who may have committed the crimes in question.
While Ornt testified at the post-conviction relief hearing that she told Crane that Ferguson and Erickson were not the individuals she saw on the morning in question, the motion court heard evidence that directly contradicted and undermined Ornt's testimony. "At a post-conviction relief evidentiary hearing, the motion court determines the credibility of the witnesses and is free to believe or disbelieve the testimony of any witness...." Hurst, 301 S.W.3d at 117. Specifically, Kevin Crane testified that he met with Ornt two or three times in his capacity as the lead prosecutor on the Ferguson case, and at that time, Ornt told him that she couldn't say whether Ferguson and Erickson were the people she saw or not. The motion court was free to believe Crane's testimony and disbelieve Ornt's testimony. Indeed, the motion court was also free to rely on the fact that Ornt testified at both a deposition and at Ferguson's trial, yet she never stated that the man accused of murder was innocent based on her own recollection of the events in question.
If Ornt did not tell Crane this exculpatory information, there could have been no
For the first time in his reply brief, Ferguson argues that the motion court made several factual errors in its judgment that undermine its ruling. But we must reject this argument for two distinct reasons. To begin, "`[a] reply brief is to be used only to reply to arguments raised by respondents, not to raise new arguments on appeal.'" Arch Ins. Co. v. Progressive Cas. Ins. Co., 294 S.W.3d 520, 524 n. 5 (Mo.App. W.D.2009) (quoting Kells v. Mo. Mountain Props., Inc., 247 S.W.3d 79, 84 n. 7 (Mo.App. S.D.2008)). "`We do not review an assignment of error made for the first time in the reply brief.'" Id. (quoting 66, Inc. v. Crestwood Commons Redevelopment Corp., 130 S.W.3d 573, 584-85 (Mo.App. E.D.2003)).
Even if we were to review these alleged "factual errors" contained in the motion court's judgment, Ferguson fails to cite any authority that any of the alleged discrepancies are a basis for relief on appeal. For example, Ferguson argues that the most blatant factual error in the motion court's judgment is the finding that Ms. Ornt testified at the evidentiary hearing that Kevin Crane, the prosecutor, showed her pictures of Ferguson and Chuck Erickson during their meeting preparing for trial, because Ornt did not so testify at the motion hearing.
For all of the aforementioned reasons, we conclude that Ferguson has failed to demonstrate that the motion court erred in denying Ferguson's second Brady claim in his motion for post-conviction relief.
Point Two is denied.
In Point Three, Ferguson argues the motion court erred in adopting, in substantial part, the State's proposed findings of fact and conclusions of law in its judgment, thereby demonstrating a lack of independent judgment in assessing the evidence and applicable law when considering his Rule 29.15 motion.
We do not believe Ferguson has demonstrated that he is entitled to relief in this Point Relied On. Adopting one party's proposed findings of fact and conclusions of law "has become a common practice in Missouri courtrooms and raises no constitutional problems so long as the court, after independent reflection, concurs with the contents of the proposed findings and conclusions." Skillicorn v. State, 22 S.W.3d 678, 690 (Mo. banc 2000). "Still, to be valid, the proposed findings of fact and conclusions of law must be supported by the evidence." Id. "Though drafted by another, this process makes the findings of
Ferguson has failed to demonstrate that the motion court's judgment was unsupported by the evidence. While the motion court did adopt a significant percentage of the State's proposed findings of fact and conclusions of law, it is undisputed that the motion court also made substantive changes that reflect that it thoughtfully and carefully considered Ferguson's claims. Link, 25 S.W.3d at 148.
Furthermore, Ferguson makes merely conclusory assertions on appeal as it pertains to the motion court's judgment, yet he fails to illustrate how any adoption of the State's proposed findings actually prejudiced his rights in the post-conviction relief proceedings. For example, Ferguson argues on appeal that the proposed findings of fact and conclusions of law submitted by the State were not accurate, yet he does not then outline precisely how or why they were inaccurate. Ferguson does give a few examples for the first time in his reply brief, but we do not review an assignment of error made for the first time in a reply brief. Arch Ins. Co., 294 S.W.3d at 524 n. 5. Even when considering these arguments that focus on the actual substance of the judgment, they are mostly re-hashed arguments from his other points relied on in this appeal.
For these reasons, Point Three is denied.
In Point Four, Ferguson argues the motion court clearly erred in denying his post-conviction claim because his trial counsel was ineffective for failing to investigate and call multiple witnesses who would have impeached the credibility of Charles Erickson and Jerry Trump, and had his counsel called these witnesses to the stand, it would have changed the outcome at trial.
"`To be entitled to post-conviction relief for ineffective assistance of counsel, the movant must satisfy a two-prong test.'" Glaviano v. State, 298 S.W.3d 112, 117 (Mo.App. W.D.2009) (quoting Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009)). "The movant must show that his counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would exercise in a similar situation and that trial counsel's failure prejudiced the defendant." Id.
In order to satisfy the performance prong, Ferguson's burden is to "overcome the presumptions that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment." State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). To demonstrate prejudice, Ferguson's burden is to "show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "A reasonable probability is a probability
"To prevail on a claim of ineffective assistance of counsel for failure to call a witness, a defendant must show that:1) trial counsel knew or should have known of the existence of the witness, 2) the witness could be located through reasonable investigation, 3) the witness would testify, and 4) the witness's testimony would have produced a viable defense." Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004). "Counsel's decision not to call a witness is presumptively a matter of trial strategy and will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise." Id.
Ferguson alleges that his trial counsel was ineffective for failing to interview and call to the stand three specific witnesses who would have impeached Charles Erickson's trial testimony. At the post-conviction relief hearing, Keith Fletcher, Jonathan James, and Eric Gathings all testified to statements Erickson made to them in an individual capacity while they were incarcerated with Erickson.
At the post-conviction relief hearing, Keith Fletcher testified that "Erickson told him that he was not sure whether he had committed the murder" and "Fletcher also testified that Erickson stated that he had dreamed that he and Ferguson had committed the murder." Fletcher also contends that Erickson stated that he confessed to the murder merely because "he wanted to go home" and the police promised him he could go home after giving a statement, and he eventually took the plea agreement to "get it over with."
Jonathan James similarly testified that Erickson told him that "he didn't know if he had done it" and that "it was all a dream." James also testified that Erickson told him he was high on marijuana when he admitted to committing the crimes to the police, and that ultimately he "never gave a hundred percent answer if [he or Mr. Ferguson] had done it."
Finally, Eric Gathings also testified that Erickson told him that he "had a dream that him and [Ferguson] did it" and that he did not say "whether he knew if he actually committed that murder or not."
In rejecting Ferguson's claims as it pertains to each of these witnesses, the motion court made a specific finding and conclusion that these witnesses would not have provided a viable defense for Ferguson to the charged crimes and thus would not have changed the outcome at trial. After a careful review of the record on appeal, we conclude that the motion court did not clearly err in refusing to grant Ferguson post-conviction relief in this regard.
"When the testimony of the witness would only impeach the state's witnesses, relief on a claim of ineffective assistance of counsel is not warranted." Whited v. State, 196 S.W.3d 79, 82 (Mo. App. E.D.2006). "However, when the testimony of the witness would also negate an
Here, Ferguson has failed to demonstrate that any one of the three witnesses would have negated an element of one of the crimes he was charged with, or even provide compelling testimony that would have impeached Erickson's testimony in a unique fashion that was not done at trial by Ferguson's trial counsel. On cross-examination, Erickson was subjected to a lengthy and extensive cross-examination, wherein Ferguson's trial counsel was successful in illustrating that Erickson had made various prior statements that seriously undermined Erickson's credibility.
Specifically, Erickson admitted on cross-examination that from November 2, 2001, until spring of 2003, he did not have any conscious memory that he was involved in the death of Kent Heitholt. Erickson conceded on cross examination that for a period of many months after he was first investigated by the police for the murder, he stated to friends, the police, his parents, and even a nurse in the jail, that he was uncertain whether he and Ferguson had murdered the victim. On cross-examination, Erickson acknowledged that he had stated at one time or another, as it pertained to whether he and Ferguson murdered the victim, the following: "I don't even remember" the murder; that he might be "confusing [memories] with dreams"; that he was "not sure that he had been involved in the death of Mr. Heitholt"; "Like, I could just be sitting here and fabricating all of it and not know. Like, I don't know. I don't."
In light of the fact that Erickson admitted at trial the statements the witnesses would testify to, Ferguson has failed to demonstrate that the three witnesses' testimony would have produced a viable defense. Hutchison, 150 S.W.3d at 304. Counsel was not ineffective for not putting on cumulative evidence from these other witnesses. Goodwin v. State, 191 S.W.3d 20, 38 (Mo. banc 2006). Their testimony would have been cumulative, and they provide no additional facts that would exculpate Ferguson. Id.; see also Kuhlenberg v. State, 54 S.W.3d 705, 708-09 (Mo.App. E.D.2001)("[C]ounsel's failure to call Archer was not ineffective assistance of counsel because counsel was able to obtain from the witnesses that were called most of the information movant contends Archer would have added.").
Ferguson argues on appeal that the substance of Fletcher, James, and Gathings'
Ferguson further alleges that his trial counsel was ineffective for failing to interview and call to the stand Christine Varner because she would have impeached Jerry Trump's trial testimony at Ferguson's trial. Jerry Trump was working at the Tribune on the morning of the murder and came outside of the building shortly after the incident. Because Trump positively identified Ferguson at trial as one of the individuals he saw outside the building that morning, Ferguson contends that his trial counsel's failure to impeach Trump's testimony with Christine Varner's testimony constituted ineffective assistance of counsel.
Ferguson argues that Varner's testimony at the post-conviction relief hearing illustrates that her testimony would have impeached Trump's testimony. Specifically, Varner testified that Trump told her right after the murder happened that, while he saw some individuals the morning in question, he couldn't recognize them at all because of the lights, and he couldn't identify anyone that would have been out of his car because of the way the lights were.
As previously stated, "[t]o prevail on a claim of ineffective assistance of counsel for failure to call a witness, a defendant must show that: 1) trial counsel knew or should have known of the existence of the witness, 2) the witness could be located through reasonable investigation, 3) the witness would testify, and 4) the witness's testimony would have produced a viable defense." Hutchison, 150 S.W.3d at 304.
In rejecting this claim as a basis for post-conviction relief, the motion court found that trial counsel was not ineffective in this regard because Ferguson has failed to establish that his counsel's actions were unreasonable because he has failed to demonstrate that counsel's investigation was inadequate. It was undisputed at the hearing that Varner contacted the public defender's office long after Ferguson's trial, after watching the television program
Ferguson has failed to demonstrate that the above findings and conclusions of the motion court were clearly erroneous. On appeal, Ferguson contends that Varner's whereabouts and the substance of her testimony was easily discoverable in light of the fact that Varner was an employee of Trump's employer and interviewing the staffing agency about Trump would have uncovered Varner's information. But in so arguing Ferguson essentially asks this Court to disregard our standard of review. The motion court expressly concluded that Varner and Trump's conversation was random, which is a conclusion that was supported by the evidence adduced at the hearing because Varner merely worked for the company that did the payroll for Trump's employer. Ferguson cites no authority to support the proposition that trial counsel should be reasonably expected to interview all individuals that Trump may have interacted with on a "semi-regular" basis in order to discover potential impeachment material to cross-examine Trump. Indeed, not even Ferguson's post-conviction relief counsel interviewed Varner on their own initiative because it was not until Varner saw the program 48 Hours that she belatedly decided to contact the Public Defender's office. Ultimately, the fact that Varner could not have been located through reasonable investigation is dispositive of this argument on appeal. Hutchison, 150 S.W.3d at 304.
For all of the aforementioned reasons, Point Four is denied.
The judgment of the circuit court, denying Ferguson's post-conviction relief motion, is hereby affirmed. That is not to say that the issues of this case do not give us pause. The sole evidence tying Ferguson to the crime was the testimony of Erickson and the identification from Trump. There is no physical evidence that ties Ferguson to this murder. However, we are mindful that Ferguson has other legal avenues to bring forth his claims of newly discovered evidence. Rule 29.15 does not provide Ferguson the relief he seeks. However, habeas corpus review is still available to him to raise the issues in the appropriate forum.
All concur.
