Ferguson v. Dormire, No. WD 76058.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtCYNTHIA L. MARTIN
Citation413 S.W.3d 40
PartiesIn re Ryan FERGUSON, Petitioner, v. Dave DORMIRE, Superintendent, Jefferson City Correctional Center, Respondent.
Decision Date05 November 2013
Docket NumberNo. WD 76058.

413 S.W.3d 40

In re Ryan FERGUSON, Petitioner,
v.
Dave DORMIRE, Superintendent, Jefferson City Correctional Center, Respondent.

No. WD 76058.

Missouri Court of Appeals,
Western District.

Nov. 5, 2013.


[413 S.W.3d 44]


Samuel Henderson, St. Louis, MO, and Kathleen T. Zellner and Douglas H. Johnson, Downers Grove, IL, for petitioner.

Shaun J. MacKelprang and Stephen D. Hawke, Jefferson City, MO, for respondent.


Before Writ Division: GARY D. WITT, Presiding Judge, JOSEPH M. ELLIS, Judge and Cynthia L. Martin, Judge.

CYNTHIA L. MARTIN, Judge.

Ryan Ferguson (“Ferguson”) was convicted in 2005 of felony murder in the second degree and first degree robbery. Ferguson filed a petition for writ of habeas corpus, petitioning this court to vacate his convictions and to grant him a new trial either: (i) because newly discovered evidence clearly and convincingly establishes that he is actually innocent thus undermining confidence in his conviction, or (ii) because he has established a gateway permitting review of procedurally defaulted claims that his due process rights were violated depriving him of a fair trial.

We conclude that Ferguson has established the gateway of cause and prejudice, permitting review of his procedurally defaulted claim that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by withholding material, favorable evidence of an interview with Barbara Trump, the wife of Jerry Trump, one of the State's key witnesses at trial. The undisclosed evidence was favorable because it impeached Jerry Trump's explanation for his ability to identify Ferguson. The undisclosed evidence was material because of the importance of Jerry Trump's eyewitness identification to the State's ability to convict Ferguson, because the evidence would have permitted Ferguson to discover other evidence that could have impacted the admissibility or the credibility of Jerry Trump's testimony, and because of the cumulative effect of the nondisclosure when considered with other information the State did not disclose. The undisclosed evidence renders Ferguson's verdict not worthy of confidence.

Accordingly, Ferguson's request for habeas corpus relief is granted. Ferguson's convictions are vacated. Ferguson is ordered discharged from the State's custody subject to the terms and conditions set forth at the end of this Opinion.

I
Factual and Procedural Background

Events Leading to Ferguson's Arrest

On November 1, 2001, Kent Heitholt (“Mr. Heitholt”) was murdered in the early morning hours near his car in the parking lot of the Columbia Daily Tribune (“Tribune”) in Columbia, Missouri. Mr. Heitholt was the sports editor for the paper. Mr. Heitholt timed off his computer at 2:08 a.m., and left the Tribune building for the parking lot shortly thereafter.

[413 S.W.3d 45]

The murder scene was discovered at approximately 2:20 a.m. by Shawna Ornt (“Ornt”) and Jerry Trump (“Trump”), two custodians who were working at the Tribune. Both Ornt and Trump saw two white males standing by the driver's side of Mr. Heitholt's car. One of the men hollered “Someone's hurt out here, man.” The two men then walked away down an adjacent alley. Trump then saw an obviously injured Mr. Heitholt lying on the ground next to his car. After reporting the discovery of Mr. Heitholt to other Tribune employees, Trump and Ornt called 911 at 2:26 a.m.

Ornt told police that she saw the man who was standing toward the back of the car “really good.” Ornt worked with sketch artists in the months following the murder to develop two composite sketches of this man. Ornt described the man as muscular, not stocky, with blond hair and in his early twenties.

Trump told police he could not provide a detailed description of either of the men he saw other than to say that both were white males in their twenties. The man toward the back of the car was described by Trump as wearing a ball cap pushed back on his head, far enough that Trump could see blonde hair spiked up in front. In a supplemental interview with police, Trump reported that he was not certain if he could identify the two individuals again. Trump reported that he was unable to identify the facial characteristics of either man.

Police discovered physical evidence at the scene including unidentified fingerprints in and on Mr. Heitholt's car, and a hair not belonging to Mr. Heitholt but discovered in his hand. Two sets of bloody footwear impressions were located at the scene. Work related papers involving high school and college basketball programs were found around and under Mr. Heitholt's car. Evidence found inside the car suggested that Mr. Heitholt's car door was open at the time of his murder, then closed. Mr. Heitholt's watch and keys were missing, though his wallet was found inside the car.

Police determined that the last known person to see Mr. Heitholt alive was Michael Boyd (“Boyd”), a sports writer who worked under Mr. Heitholt's supervision. Boyd was interviewed by police at approximately 4:00 a.m. and again at approximately 11:45 p.m. on November 1, 2001. He reported that he left the Tribune building at around 2:10 a.m., that he sat in his car for two to three minutes adjusting his radio, and that he then saw Mr. Heitholt exit the Tribune building to head to his car. Boyd told police that he drove over to Mr. Heitholt's car, that he had a three to five minute conversation with Mr. Heitholt,1 and that he left the parking lot at 2:20 a.m. Boyd told police that as he drove out of the lot he saw Mr. Heitholt getting into his car.2 Boyd told police he turned westbound out of the lot into the adjacent alley.3 Boyd told police he did not see anybody around the parking lot or

[413 S.W.3d 46]

anything that was suspicious.4

Mr. Heitholt's murder went unsolved for two years. Though several leads were followed, and persons of interest were investigated, no arrests were made. The investigative efforts focused on locating the two “persons of interest” Ornt and Trump saw in the parking lot.5 Boyd was never investigated as a person of interest in Mr. Heitholt's murder, though his statements to police placed him with Mr. Heitholt during the time immediately preceding Ornt and Trump's discovery of the crime scene.

Articles appeared in Columbia newspapers about Mr. Heitholt's unsolved murder in and around October 2003. Charles Erickson (“Erickson”) read the articles and began to wonder whether he committed the crime. The night Mr. Heitholt was murdered, Erickson and Ferguson (who were then juniors in high school) had been drinking together at By George, a club located within a few blocks of the Tribune. Erickson became heavily intoxicated, “blacked out,” and was unable to remember his actions after leaving the club.

In late December 2003 or early January 2004, Erickson told Ferguson he was having “dream like” memories that he and Ferguson may have murdered Mr. Heitholt. Ferguson told Erickson that they had nothing to do with Mr. Heitholt's murder.

Erickson later told friends Nick Gilpin and Art Figueroa about his “dream like” memories. Nick Gilpin reported the conversation to police. On March 10, 2004, the Columbia Police Department contacted Erickson. After questioning, Erickson confessed to involvement in the robbery and murder of Mr. Heitholt and implicated Ferguson. On the same day, Ferguson was arrested in Kansas City, Missouri. Ferguson denied any involvement in the murder and robbery of Mr. Heitholt. Ferguson told police that he and Erickson left By George in his car, and that he dropped Erickson off at his house before going home.

Ferguson was charged with the class A felony of murder in the first degree (section 565.020) 6 and the class A felony of robbery in the first degree (section 569.020). Erickson pled guilty to first degree robbery, second degree murder, and armed criminal action. In exchange for a lesser sentence, Erickson agreed to testify against Ferguson.

Ferguson's Trial

Ferguson's case proceeded to a jury trial on October 14, 2005. The physical evidence found at the crime scene could not be tied to Ferguson or Erickson. 7 In fact, no physical evidence connected either Ferguson or Erickson to Mr. Heitholt's murder or robbery, or to the crime scene.

[413 S.W.3d 47]

Ferguson v. State, 325 S.W.3d 400, 419 (Mo.App. W.D.2010).

The State nonetheless theorized that Erickson and Ferguson left By George at some point in the early morning hours of November 1, 2001 with the intention of robbing someone so they could have more money to continue drinking. Cell phone records indicated that Ferguson made a call at 2:08 a.m. near By George that lasted a minute or two. The State theorized that after this call, Erickson and Ferguson retrieved a tire tool from Ferguson's trunk then walked around in search of a victim. The State theorized that Erickson and Ferguson walked three to four minutes before happening upon Mr. Heitholt in the Tribune parking lot. According to the State, Mr. Heitholt was then beaten and strangled by Erickson and Ferguson over a several minute period between 2:12 a.m. and 2:20 a.m.8 Mr. Heitholt sustained multiple head injuries. The testifying pathologist said that Mr. Heitholt was struck eleven times. The State theorized that these injuries were caused when Erickson struck Mr. Heitholt with the tire tool taken from the trunk of Ferguson's car. Mr. Heitholt's cause of death was determined to be asphyxiation caused by strangulation. A mark on Mr. Heitholt's neck matched his belt buckle, which was found on the ground nearby along with a part of his belt. The State theorized that Ferguson strangled Mr. Heitholt with Mr. Heitholt's belt. Though the purported motive was robbery, Mr. Heitholt's wallet was found inside the car at the scene. According to the State, Erickson and Ferguson nonetheless returned to By George and continued drinking because Ferguson remembered he had money in his glove compartment.

The State's evidence in support of its theory was limited to Erickson's...

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9 practice notes
  • State ex rel. Koster v. Oxenhandler, WD 79277
    • United States
    • Court of Appeal of Missouri (US)
    • March 15, 2016
    ...(Emphasis added.) Rule 91 does not expressly prohibit the filing of successive habeas petitions in lower courts. See Ferguson v. Dormire, 413 S.W.3d 40, 52 (Mo.App.W.D.2013) (addressing, generally, that successive habeas petitions are not barred except as proscribed by Rule 91).17 The State......
  • Ferguson v. Short, No. 2:14-cv-04062-NKL
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • August 12, 2014
    ...of Appeals did not declare his innocence and left the door open for the State of Missouri to retry Ferguson. See Ferguson v. Dormire, 413 S.W.3d 40, 53, 73 (Mo. Ct. App. 2013). There is also no way to verify the truth of the statement "They know how I feel." Ferguson relies heavily on Harri......
  • Ballinger v. Cedar Cnty., No. 14–3576.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 14, 2016
    ...the result of a habeas proceeding." Ballinger offers two Missouri habeas cases in support of his position. In both Ferguson v. Dormire, 413 S.W.3d 40, 73 n. 51 (Mo.Ct.App.2013), and State ex rel. Koster v. Green, 388 S.W.3d 603, 605 n. 2 (Mo.Ct.App.2012), the Missouri Court of Appeals ruled......
  • State v. Smith, No. ED 102585
    • United States
    • Court of Appeal of Missouri (US)
    • April 5, 2016
    ...U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the trial court granted the motion.6 Defendant also relies on Ferguson v. Dormire, 413 S.W.3d 40 (Mo.App.W.D.2013) and Duley v. State, 304 S.W.3d 158 (Mo.App.W.D.2009) for general propositions of law relating to the late-disclosure of evid......
  • Request a trial to view additional results
9 cases
  • State ex rel. Koster v. Oxenhandler, WD 79277
    • United States
    • Court of Appeal of Missouri (US)
    • March 15, 2016
    ...(Emphasis added.) Rule 91 does not expressly prohibit the filing of successive habeas petitions in lower courts. See Ferguson v. Dormire, 413 S.W.3d 40, 52 (Mo.App.W.D.2013) (addressing, generally, that successive habeas petitions are not barred except as proscribed by Rule 91).17 The State......
  • Ferguson v. Short, No. 2:14-cv-04062-NKL
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • August 12, 2014
    ...of Appeals did not declare his innocence and left the door open for the State of Missouri to retry Ferguson. See Ferguson v. Dormire, 413 S.W.3d 40, 53, 73 (Mo. Ct. App. 2013). There is also no way to verify the truth of the statement "They know how I feel." Ferguson relies heavily on Harri......
  • Ballinger v. Cedar Cnty., No. 14–3576.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 14, 2016
    ...the result of a habeas proceeding." Ballinger offers two Missouri habeas cases in support of his position. In both Ferguson v. Dormire, 413 S.W.3d 40, 73 n. 51 (Mo.Ct.App.2013), and State ex rel. Koster v. Green, 388 S.W.3d 603, 605 n. 2 (Mo.Ct.App.2012), the Missouri Court of Appeals ruled......
  • State v. Smith, No. ED 102585
    • United States
    • Court of Appeal of Missouri (US)
    • April 5, 2016
    ...U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the trial court granted the motion.6 Defendant also relies on Ferguson v. Dormire, 413 S.W.3d 40 (Mo.App.W.D.2013) and Duley v. State, 304 S.W.3d 158 (Mo.App.W.D.2009) for general propositions of law relating to the late-disclosure of evid......
  • Request a trial to view additional results

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