Ferrell v. Wall, PM-02-3635 (RI 2/2/2005)
| Decision Date | 02 February 2005 |
| Docket Number | PM-02-3635 |
| Parties | JASON FERRELL v. A. T. WALL, WARDEN |
| Court | Rhode Island Supreme Court |
On December 18, 1995, John Carpenter was shot to death in broad daylight on the streets of South Providence. Petitioner Jason Ferrell was indicted along with four (4) other men for Mr. Carpenter's murder and related crimes. At trial, Mr. Ferrell was acquitted of murder, but convicted of conspiracy to murder Carpenter as well as conspiracy to assault and assault with intent to murder one Lorenzo Evans. The petitioner received consecutive sentences and currently is serving an aggregate of forty (40) years at the Adult Correctional Institutions. In a post-conviction relief application brought pursuant to R.I.G.L. 10-9.1-1, et seq., he asserts that newly discovered evidence and the ineffectiveness of his attorney warrant a new trial.1
On December 18, 1995, Lorenzo Evans was a passenger in an automobile operated by John Carpenter. When three (3) men other than Petitioner Ferrell opened fire from their black Jeep on Carpenter and Evans, Evans managed to exit the vehicle and flee through nearby backyards and streets. It was at a separate location from where Carpenter was murdered outside his vehicle that Lorenzo Evans testified at the trial that he saw Jason Ferrell in a white Ford Taurus with another black male, Germaine Campbell. Evans also testified that he saw Ferrell brandish a pistol, though he did not fire it. The testimony of Lorenzo Evans was the only evidence that placed Ferrell or his passenger, Germaine Campbell (who was convicted on the two conspiracy counts), in the general vicinity of John Carpenter's untimely end.
Petitioner Ferrell has placed before this Court a videotape and an accompanying transcript evidencing the recanting by Mr. Evans of his trial testimony. On the tape, Evans declares that he did not see Mr. Ferrell or Mr. Campbell in a white Taurus at or near the scene of John Carpenter's murder — or anywhere else for that matter — on December 18, 1995. A recanting can constitute a basis for the granting of postconviction relief pursuant to R.I.G.L. 10-9.1-1 (a) (4) as it is "evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice . . ." Because I find the recanting of Mr. Evans to be credible when considered within the totality of the circumstances, Jason Ferrell's petition for postconviction relief is granted, his convictions are vacated and his sentences set aside.
Other than the testimony of Lorenzo Evans, there was no evidence whatsoever that tended to prove any element of any of the crimes for which Mr. Ferrell stands convicted. No other witness placed him near the scene of the shooting or in the locale where the events immediately preceding and following the shooting are claimed by Evans to have taken place. Ferrell never admitted to the police or to any other person that he engaged in any of the conduct attributed to him. Thus, the jury heard from no other eye witnesses, nor did it hear from any prison guards or cell mates about a "jailhouse admission." Moreover, no tangible evidence of any kind connects the petitioner with any criminal activity directed against John Carpenter or Lorenzo Evans. No pistol was ever introduced as evidence against him, nor was any forensic evidence submitted for the jury's consideration. In short, without Lorenzo Evans, there is no case against Jason Ferrell.
At petitioner's evidentiary hearing, Lorenzo Evans was called as a witness, but on the advice of his attorney invoked his Fifth Amendment privilege on every question put to him, whether by Petitioner's attorney, the Attorney General, or the Court. Gerard Donnelly Esq., Mr. Evan's attorney, indicated that Evans was asserting his privilege because of several potential criminal charges unrelated to the instant matter as well as his concern about a perjury charge or charges arising out of his recanting. Needless to say, Mr. Donnelly was not at liberty to develop this point or to indicate which of Evans' two versions of the December 18, 1995 events is true. The Court offered the Attorney General an opportunity to go before the Presiding Justice, pursuant to R.I.G.L. 12-17-15, to seek immunity for Mr. Evans so that his recanting could be explored more fully during the hearing, but this offer was declined.
The State's theory regarding the murder of John Carpenter is that the conspirators killed him to avenge the murder of their friend, Wayne Baptista, three (3) days prior to Carpenter's death. This, along with other evidence put before the juries simultaneously trying the indictments arising out of the Carpenter murder, constituted evidence sufficient to sustain the convictions that resulted, and so said our Supreme Court. State v. Gahil Oliveira, et al., 774 A.2d 893 (2001). But so far as petitioner Ferrell's convictions are concerned, without Evans' testimony, the State's case collapses.
Regarding Ferrell's post-conviction relief application, the State advances a theory about a separate and distinct unlawful conspiracy. The Attorney General argues that Lorenzo Evans, who went on trial for the murder of Wayne Baptista after Ferrell had already been convicted, entered into a criminal agreement to recant his testimony against Jason Ferrell if the key witness to the Baptista murder, one Santos, refused to testify against him. During the so-called communication, it must be emphasized that the State asserts that no spoken or written language was used, but rather hand gestures purportedly signaled a meeting of the minds; yet no credible evidence was put forward at the petition hearing indicating what the signs and signals meant. Of course, even had such evidence been forthcoming, there is not a jot of evidence connecting Ferrell to any such exchange.
The record from Evans' trial indicates that Santos was shaky in recounting events surrounding Baptista's slaying; and his inability to identify Lorenzo Evans as the killer lead to Evans' acquittal. But this theory of Ferrell's participation in such a nefarious scheme is not supported by any credible evidence. Not a scintilla of evidence was placed before the Court indicating that Jason Ferrell was involved in or privy to such an agreement or even that he had knowledge of such a scheme; he was definitely not present at the so-called "hand gesture" exchange. Moreover, the State did not produce any evidence that Lorenzo Evans himself had subverted his own trial:
The Supreme Court of Rhode Island has provided guidance relative to the role of a trial judge considering petitions such as Mr. Ferrell's:
In analyzing a post-conviction relief application based on newly discovered evidence, we apply the standard used for awarding a new trial based on newly discovered evidence. [citations omitted]. Bleau v. Wall, 808 A.2d 637, 642 (R.I. 2002)
The standard consists of a two-part test.
`The first part is a four-prong inquiry that requires that the evidence be (1) newly discovered since trial, (2) not discoverable prior to trial with the exercise of due diligence, (3) not merely cumulative or impeaching but rather material to the issue upon which it is admissible, [and] (4) of the type that would probably change the verdict at trial.' [citations omitted]
For the second part of the inquiry, the hearing justice must exercise his or her discretion and determine whether the newly discovered evidence is credible enough to warrant relief. [citations omitted]
Bleau v. Wall, 808 A.2d 637, 642 (2002).
No one disputes that the version of events described in Mr. Evans' recanting is newly discovered and was surely unavailable before trial, no matter how diligent the efforts of trial counsel or any investigators. And the recanting is "not merely . . . impeaching but rather material to the issue upon which it is admissible . . ." In his recanting, Lorenzo Evans states categorically that neither Jason Ferrell nor Germaine Campbell had any connection with the shooting of John Carpenter or any threats or assaults directed at him (Evans), but he persisted in his assertion that the three (3) individuals in the black Jeep were who he said they were and did what he testified they did. Moreover, his recanting clearly fits the definition of relevant evidence as it has the "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, R.I. Rules of Evid.
New testimony by Lorenzo Evans that Jason Ferrell was not at the scene of the criminal activity of December 18, 1995 would undoubtedly — or at the very least, probably — result in acquittals for Mr. Ferrell. This is so because the only evidence produced by the State connecting Jason Ferrell to the criminal activity directed at John Carpenter and Lorenzo Evans on that date was the identification testimony of Lorenzo Evans. Though the State was able to show that Jason Ferrell was a friend of Wayne Baptista, the man murdered on December 15, and was upset by his friend's death, no evidence other than Evans' pointed finger linked him to the crimes for which he was convicted. There were no admissions or confessions, fingerprints, DNA comparisons, no forensic evidence of any type, no gun seized — in short, nothing.
The recanting of Lorenzo Evans was memorialized on a videotape made under the supervision of Matthew Smith, Esq., a member of the Bar in good standing. Mr. Smith testified at the post-conviction relief application...
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