Ferguson v. State Of Mo., No. WD 71264.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGARY D. WITT, Judge.
Citation325 S.W.3d 400
PartiesRyan FERGUSON, Appellant, v. STATE of Missouri, Respondent.
Docket NumberNo. WD 71264.
Decision Date31 August 2010

325 S.W.3d 400

Ryan FERGUSON, Appellant,
v.
STATE of Missouri, Respondent.

No. WD 71264.

Missouri Court of Appeals,Western District.

Aug. 31, 2010.


325 S.W.3d 401

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Samuel Henderson and Kathleen Zellner, St. Louis, MO, for appellant.

Shaun J. Mackelprang, Jefferson City, MO, for respondent.

Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.

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), 1 and one count of robbery in the first degree, Section 569.020.

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.

Factual Background 2

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,

325 S.W.3d 405

and Erickson hit him with the tire tool. Erickson repeatedly hit him with the tire tool. The victim eventually fell to the ground, where he laid motionless. Erickson dropped the tire tool near the victim. Ferguson went over to the victim and took the victim's belt off and strangled him with it.

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

325 S.W.3d 406

Law, and Judgment, which denied Ferguson's post-conviction relief motion.

Motion to Remand Based Upon Newly Discovered Evidence

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. 3

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. 4 It is a well-established principle that “Missouri's post-conviction relief rules are not a proper vehicle for the examination of claims of newly discovered evidence.” Wilson v. State, 813 S.W.2d 833, 834 (Mo. banc 1991); see also State v. Ferguson, 20 S.W.3d 485, 505 (Mo. banc 2000). “The sole purpose of this post-conviction proceeding is to determine whether the proceedings that led to [Ferguson's] conviction were violative of any constitutional requirements or if the judgment of conviction is otherwise void.” Wilson, 813 S.W.2d at 834. “This proceeding is not the proper vehicle for relitigating [Ferguson's] guilt or innocence.” Id. “Newly discovered evidence, if available, may better serve [Ferguson] in a Petition for a Writ of Habeas Corpus under Rule 91, ... or in a request for a pardon from the governor under the Missouri Constitution.” Id. at 834-35.

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.”

325 S.W.3d 407

State v. Cummings, 838 S.W.2d 4, 7 (Mo.App. W.D.1992); see also DeClue v. State, 579 S.W.2d 158, 159 (Mo.App. E.D.1979) (“Allegations claiming the conviction is based upon perjured testimony which defendant contends was known to the state are controlled by a different standard.”). Ferguson does allege in a conclusory fashion in his briefing on the motion that, at trial, the State presented Erickson's testimony knowing it was perjury and convicted Ferguson based on that perjury. “To prevail on this theory, [Ferguson] must show (1) the witness' testimony was false; (2) the state knew it was false; and (3) the conviction was obtained as a result of the perjured testimony.” Cummings, 838 S.W.2d at 7.

“ ‘In order to show perjury entitling...

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16 practice notes
  • Lapointe v. Comm'r of Corr., SC19079
    • United States
    • Supreme Court of Connecticut
    • April 21, 2015
    ...60 (2007); Howell v. State, Mississippi Supreme Court, Docket No. 2013-CA-01027-SCT (Miss. October 9, 2014) (same); Ferguson v. State, 325 S.W.3d 400, 413 (Mo. App. 2010) ("[w]e must deny [the petitioner's] second Brady claim for a similar reason as we denied his first Brady claim, namely t......
  • Lapointe v. Comm'r of Corr., No. 19079.
    • United States
    • Supreme Court of Connecticut
    • March 31, 2015
    ...590, 312 Ill.Dec. 660, 871 N.E.2d 60 (2007) ; Howell v. State, 163 So.3d 240, 2014 WL 5035951 (Miss.2014) (same); Ferguson v. State, 325 S.W.3d 400, 413 (Mo.App.2010) (“[w]e must deny [the petitioner's] second Brady claim for a similar reason as we denied his first Brady claim, namely that ......
  • Ferguson v. Dormire, No. WD 76058.
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 2013
    ...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 N......
  • Paulson v. Norman, Case No. 12-3229-CV-S-BCW-P
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • May 10, 2013
    ...would only impeach the state's witnesses, relief on a claim of ineffective assistance of counsel is not warranted.'" Ferguson v. State, 325 S.W.3d 400, 416-17 (Mo.App. W.D. 2010) (quoting Whited v. State, 196 S.W.3d 79, 82 (Mo.App. E.D. 2006)).Furthermore, Paulson presented substantial evid......
  • Request a trial to view additional results
16 cases
  • Lapointe v. Comm'r of Corr., SC19079
    • United States
    • Supreme Court of Connecticut
    • April 21, 2015
    ...60 (2007); Howell v. State, Mississippi Supreme Court, Docket No. 2013-CA-01027-SCT (Miss. October 9, 2014) (same); Ferguson v. State, 325 S.W.3d 400, 413 (Mo. App. 2010) ("[w]e must deny [the petitioner's] second Brady claim for a similar reason as we denied his first Brady claim, namely t......
  • Lapointe v. Comm'r of Corr., No. 19079.
    • United States
    • Supreme Court of Connecticut
    • March 31, 2015
    ...590, 312 Ill.Dec. 660, 871 N.E.2d 60 (2007) ; Howell v. State, 163 So.3d 240, 2014 WL 5035951 (Miss.2014) (same); Ferguson v. State, 325 S.W.3d 400, 413 (Mo.App.2010) (“[w]e must deny [the petitioner's] second Brady claim for a similar reason as we denied his first Brady claim, namely that ......
  • Ferguson v. Dormire, No. WD 76058.
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 2013
    ...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 N......
  • Paulson v. Norman, Case No. 12-3229-CV-S-BCW-P
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • May 10, 2013
    ...would only impeach the state's witnesses, relief on a claim of ineffective assistance of counsel is not warranted.'" Ferguson v. State, 325 S.W.3d 400, 416-17 (Mo.App. W.D. 2010) (quoting Whited v. State, 196 S.W.3d 79, 82 (Mo.App. E.D. 2006)).Furthermore, Paulson presented substantial evid......
  • Request a trial to view additional results

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