State v. Ferguson

Decision Date28 December 2005
Docket NumberNo. 04-421.,04-421.
PartiesSTATE of Montana, Plaintiff and Respondent, v. Pacer FERGUSON, Defendant and Appellant.
CourtMontana Supreme Court

Jack E. Sands, Attorney at Law, Billings, Montana, for Appellant.

Hon. Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant Attorney General, Helena Montana, Dennis Paxinos, Yellowstone County Attorney, Mark J. Murphy, Deputy County Attorney, Billings, Montana, for Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Pacer Anthony Ferguson (Ferguson) appeals from the Judgment of the District Court of the Thirteenth Judicial District, Yellowstone County, sentencing him to prison upon his conviction for the offense of attempted robbery. We affirm in part, reverse in part, and remand for re-sentencing.

¶ 2 Ferguson raises the following issues:

¶ 3 1. Did the District Court err in allowing Spaeny to testify?

¶ 4 2. Did the District Court err in allowing testimony regarding other crimes?

¶ 5 3. Did the District Court err in denying Ferguson's Motion for a Mistrial based on alleged prosecutorial misconduct?

¶ 6 4. Did the District Court err in denying Ferguson's motions for a directed verdict of acquittal?

¶ 7 5. Did the District Court err in sentencing Ferguson?

¶ 8 6. Did the District Court err in not granting Ferguson's Motion to Dismiss for failure to enter a written judgment on the record within the time period established at § 46-18-116(1), MCA?

¶ 9 7. Did the proceedings contain cumulative error sufficient to warrant a new trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 10 At approximately 8:00 p.m., on January 29, 2003, Don Janich (Janich) drove from his home to the Wal-Mart store located on Main Street in Billings. Janich purchased several miscellaneous items, paying in cash. At the time, he was carrying a roll of twenty-dollar bills, amounting to roughly $300, which he displayed when making his purchase. Ferguson was at the same Wal-Mart that night with his girlfriend, Erin Spaeny (Spaeny), and his friends Tyson Heisler (Heisler), Devin Vezina (Vezina), and Tim Taylor (Taylor). They arrived as a group, in Vezina's car.

¶ 11 Ferguson, Spaeny, Vezina, and Taylor entered the store and saw Janich in the check-out line with his large roll of bills. Janich proceeded to the parking lot and commenced a conversation on his cell phone while sitting in his truck. Shortly thereafter, Ferguson, Vezina, and Taylor approached Janich and asked to use his phone. As he was engaged in a conversation, Janich declined to lend his phone to the strangers. They departed, only to return approximately fifteen minutes later, at which time Janich was still talking on his phone. This time, the group engaged in an attempt to rob Janich.

¶ 12 Although it is not clear what role each individual played, it is undisputed that someone in the group opened the truck door and pulled on Janich's shoulder in an attempt to remove him from the vehicle. Further, someone demanded Janich's money, and someone displayed a knife. Janich remained in the truck and managed to slam the door shut, clipping one of the perpetrators in the process and causing them to flee. He then pursued the group in his truck until they split up. Shortly thereafter, Janich reported the incident to law enforcement officials.

¶ 13 On June 20, 2003, the State filed an Information charging Ferguson with attempted robbery. At this time, Ferguson was seventeen years old. The Honorable Gregory R. Todd considered a transfer to Youth Court, but ultimately ordered that the prosecution proceed in District Court. Having pled not guilty and waived his right to a speedy trial, Ferguson went to trial on February 2, 2004.

¶ 14 At trial, the jury viewed Wal-Mart surveillance video footage which showed rather obscure images moving about the store's parking lot. However, no one denied that the footage showed Ferguson, Taylor, and Vezina approach Janich's truck and then flee through the parking lot. Taylor testified that their request for Janich's phone was just a "setup" for the robbery. Ferguson testified that he did not know of the planned robbery; that he had nothing to do with it; that he merely accompanied Taylor and Vezina for the purpose of borrowing a cell phone; and that he was shocked when he realized a robbery was taking place. Both Taylor and Vezina testified that they planned the robbery together and did not discuss it with Ferguson. Spaeny also testified that to her knowledge Ferguson had nothing to do with the robbery.

¶ 15 Janich testified that he thought the three perpetrators were working together. He also testified that while only one individual pulled a knife, the other two "acted like they had knives." Finally Janich testified that he did not get a good look at the perpetrators and he could not positively identify any of them in a photo lineup prepared by law enforcement.

¶ 16 On February 4, 2004, the jury rendered its verdict, finding Ferguson guilty of the offense of attempted robbery. Thereafter, the District Court sentenced Ferguson to a term of fifteen years in the Montana State Prison. Ferguson now appeals, alleging errors in the trial and the sentencing process. Additional facts will be discussed hereinafter as necessary for the resolution of each issue.

DISCUSSION

¶ 17 1. Did the District Court err in allowing Spaeny to testify?

¶ 18 Detective Kent Ewalt (Ewalt), of the Billings Police Department, was extensively involved in the investigation of the attempted robbery. As part of that investigation, he interviewed Spaeny at length. Prior to trial, Ferguson moved to bar Spaeny from testifying. The District Court denied the Motion.

¶ 19 On appeal, Ferguson argues that Spaeny should not have been allowed to testify because she was subjected to "shocking" coercion which made her "an inherently unreliable witness." In advancing this argument, Ferguson relies on United States v. Vavages (9th Cir.1998), 151 F.3d 1185, wherein the Ninth Circuit Court of Appeals reversed a defendant's conviction and remanded for a new trial because the prosecutor intimidated a witness by making "thinly veiled threats to prosecute" her for perjury and to withdraw her plea agreement in an unrelated case if she testified in support of the defendant's alibi defense. The facts of this case, Ferguson argues, provide an even more compelling basis for reversal than did the facts in Vavages. Specifically, Ferguson refers us to the following portions of the trial transcript, wherein Ferguson's trial counsel questioned Spaeny regarding her interviews with law enforcement officials:

Q. Do you remember saying that the officer had told you that if he caught you lying he would stop the tape and immediately arrest you?

A. Yeah.

Q. And did you recall Officer Ewalt telling you that—or you saying that he just wanted to arrest me, that's what he said at the house?

A. Yeah.

Q. And do you recall saying, I'm about ready to do that, that is to make something up, just so they'll leave me alone and get off my case?

A. Yeah.

Q. And you recall being very upset by the way this was going on?

A. Yeah.

Q. Were you frightened of what they were telling you?

A. Yes.

Q. Do you recall Detective Ewalt telling you, I made you a promise. You can be my witness or my defendant and I'll stand by that.

A. Yeah.

Q. And this was after you had denied that Pacer Ferguson was involved in this case, this robbery in any way, shape or form; isn't that true?

A. Yeah.

....

Q. Well, you had told [Ewalt] that Pacer had absolutely nothing to do with this, didn't you?

A. That I could see or that I heard.

Q. And that's true today, isn't it?

A. Yeah.

Q. As far as you know, Pacer had nothing to do with this robbery that you saw or heard; isn't that true?

A. Yes.

....

Q. Officer Ewalt also called you a liar, didn't he?

A. Yes.

Q. Do you recall a deputy prosecutor coming into the room?

A. Yes.

Q. And that was after you had been interrogated for, what, about almost two hours at that time, right?

A. Yes.

Q. And he told you that you have—he said you have trouble remembering, didn't he?

A. Yeah.

Q. And he says that doesn't make things easier. You will be questioned a lot more by me. Didn't he tell you that?

A. Yeah.

....

Q. And then he told you that he would guarantee you that Pacer would hire a lawyer and that they were going to come after you. They will paint you as a liar and call you a liar to your face; isn't that true?

A. Yes.

....

Q. And then he told you that they will have private investigators, totally privately hired who will try to trip you up, embarrass you, make you uncomfortable and do everything short of completely upsetting you.

A. Yes.

Q. And he told you, this is your chance and you barely passed; is that true?

A. Yes.

Q. And he told you, I'm on your side at this time. If you go on the opposite side, I'm going against you. That means you will go to the youth detention center and spend the night and a while. I'm just being honest with you. Didn't he tell you that?

A. Yes.

Q. So he said that if you went on the opposite side, that means testified in support of Pacer, that you would be immediately arrested?

A. I didn't take it as being immediately arrested, but they would do something to punish me, yeah.

Q. And that meant going to jail, right?

A. Yeah.

....

Q. Didn't he tell you that Pacer is going to paint you as one of the persons involved, didn't he?

A. Yes.

Q. And then he told you if you testified for the prosecution you didn't need to worry about being criminally charged, didn't he?

A. Yes.

Q. And he said if you did anything wrong, just don't think of them as crimes. They're not crimes until I charge them as crimes. Think of them as things that are wrong. Didn't he tell you that?

A. Yes.

Q. After that, you would never...

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