State v. Ferguson

• Decision Date: 30 May 2000
• Citation: 20 S.W.3d 485
• Parties: (Mo.banc 2000) . Supreme Court of Missouri State of Missouri, Respondent, v. Jeffrey Ferguson, Appellant. Case Number: SC78609 Handdown Date: 0
• Court: Missouri Supreme Court

20 S.W.3d 485 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Supreme Court of Missouri

State of Missouri, Respondent, v. Jeffrey Ferguson, Appellant.

Case Number: SC78609

Handdown Date: 05/30/2000

Appeal From: Circuit Court of St. Louis County, Hon. William M. Corrigan, Judge at trial; Hon. John F. Kintz, Judge at post-conviction proceeding.

Counsel for Appellant: Janet M. Thompson

Counsel for Respondent: Catherine Chatman

Opinion Summary:

Jeffrey Ferguson was convicted of first degree murder and sentenced to death for killing a seventeen-year-old girl kidnapped from a St. Charles service station in 1989. His first conviction was overturned because of instructional error. He was again convicted of first-degree murder; the jury again recommended and the court imposed the death penalty. He appeals this conviction and denial of post-conviction relief.

AFFIRMED.

Court en banc holds:

(1) The court did not err in prohibiting open-ended questions in voir dire about the jurors' ability to consider mitigating factors. The irrelevant questions guided trial strategy rather than discovered bias. Ferguson was permitted to explore this line of questioning with different questions. The proposed questions were potentially confusing.

(2) The admission of DNA evidence was not objected to and was not erroneous. Ferguson's argument about the way that the tests were conducted goes to weight, not admissibility. It was not error to admit testimony that his DNA "matched" the DNA from the semen on Hall's coat without admitting statistical evidence. Absent bad faith, where the testing agency consumes the sample in testing, admission of the results does not violate due process.

(3) A co-conspirator's statements about disposing of the victim's rings were properly admitted. The co-conspirator exception to the hearsay rule applies even if a conspiracy has not been charged, and it continues for any purpose, such as concealing the crime. Ferguson could not have been prejudiced because others testified to Ferguson's attempts to sell the rings.

(4) The evidence was sufficient to convict Ferguson. He was tried for first-degree murder on a theory of accomplice liability. The jury had to find he or his accomplice knowingly caused the victim's death after deliberation. A reasonable juror could infer from the evidence that Ferguson intended to abduct, rape, and rob the victim, and to murder her so that there would be no witness. In fact, the evidence indicated he was the principal actor.

(5) The court did not abuse its discretion in overruling Ferguson's objection to the prosecutor's closing argument because the prosecutor had not yet commented on an expert's testimony and, in fact, never did. Each of Ferguson's other challenges to the prosecutor's comments either have been taken out of context or otherwise mischaracterized. None constitutes error, much less manifest injustice.

(6) The court did not err in proceeding with the penalty phase until 10:00 or 10:30 at night. The jurors were sequestered, willing to proceed, and disappointed by not proceeding later. Trial counsel did not mention or demonstrate that she was tired or unprepared.

(7) Ferguson was on notice the state would call two witnesses of unadjudicated bad acts because the state called them at his first trial. All the statutory aggravators were also disclosed before the first trial.

(8) Random selection of the victim is a factor that limits to whom the death penalty may be applied and supports the statutory aggravator of depravity of mind. Despite the statutory prohibition that jurors should not be instructed on specific evidence of aggravation or mitigation, the randomness provision limits and constitutionalizes the depravity of mind aggravator. The second aggravator, that the victim was murdered to prevent arrest, narrows the field of those murders to which the death penalty may be applied; the victim was murdered to avoid arrest for kidnapping and rape. Ferguson offers no reason to believe he suffered manifest injustice because of the nonstatutory mitigating circumstances instruction, and this Court found none.

(9) In closing argument, the prosecutor did not improperly speculate but merely stated obvious inferences from the evidence, and did not suggest personal danger. Most challenged statements have been mischaracterized or taken out of context, were not erroneous, and are frivolous. One misstatement was not manifest injustice.

(10) (A) Ferguson failed to specify what exculpatory evidence might support his claim of non-disclosure. By the time he made his request for disclosure, a videotape had been lost or destroyed, with no showing of bad faith. Ferguson has not established the evidence was exculpatory or that prejudice resulted.

(B) Ferguson did not properly plead Brady violations in disclosing FBI materials and was thus foreclosed. He has not demonstrated any of the materials would be exculpatory or prejudicial. There is no evidence that a certain agent who previously falsified testimony acted improperly in this case, or that the hair and fiber evidence had a prejudicial impact on the trial.

(C) Failure to disclose DNA materials from a possible serial rapist was not included in Ferguson's argument. That such rapist might be the perpetrator is wholly speculative. Overwhelming evidence supported Ferguson's guilt, including his DNA match. No manifest injustice resulted.

(11) In the guilt phase, counsel was not ineffective for:

(A) failing to move for change for judge, based on surveys evaluating the judge and that the public defender previously disqualified him in other cases, absent facts that would lead a reasonable person to conclude the judge was biased against Ferguson;

(B) failing to strike a prospective juror who said he leaned toward death but stated he would consider mitigating circumstances, both penalties, and the judge's instructions;

(C) failing to strike jurors who heard one juror's statements supporting the death penalty on economic grounds;

(D) failing to investigate and present certain evidence, which would not have shown Ferguson was not involved in the crimes or directly connect someone else with the crimes;

(E) failing to make a record on juror misconduct, as Ferguson did not allege facts entitling him to relief or show a juror was sleeping;

(F) failing to refute the state's DNA evidence, as counsel cross-examined the expert extensively and called an expert;

(G) failing to present evidence that would not implicate someone else or exonerate Ferguson or evidence of mental condition and alcohol consumption that would have been inconsistent with his defense;

(H) failing to preserve challenges to the judge's efforts to expedite the trial, which were not error;

(12) In the penalty phase, counsel was not ineffective for:

(A) failing to present additional evidence of experts and other witnesses, which would have been cumulative;

(B) failing to object to the judge's derogatory remarks at sentencing, which were not made before the sentence and which explained the sentence, and therefore, do not establish disqualifying bias;

(C) failing to take actions based on claims discussed and denied in other sections of this opinion.

(13) Absent independent evidence that the court failed to thoughtfully and carefully consider the claims, there is no constitutional problem with the court adopting in whole or part the findings of fact and conclusions of law drafted by one of the parties. Entry of the order on the same day the state filed its proposal proves nothing more than that the court was able to give the matter immediate attention.

(14) This death sentence passes statutory proportionality review.

Opinion Author: Stephen N. Limbaugh, Jr., Judge

Opinion Vote: AFFIRMED. All concur.

Opinion:

This is an appeal of defendant Jeffrey Ferguson's second conviction and death sentence for the 1989 murder of Kelli Hall. The first conviction was overturned because of instructional error. State v. Ferguson, 887 S.W.2d 585 (Mo. banc 1994). In this case, like the other, Ferguson was convicted by a jury in the St. Louis County Circuit Court of murder in the first degree, section 565.020, RSMo 1986, and the trial court, following the jury's recommendation, sentenced Ferguson to death. The post-conviction court overruled his Rule 29.15 motion without an evidentiary hearing. Because the death penalty was imposed, this Court has exclusive jurisdiction of the appeals. Mo. Const. art. V, sec. 3; Order of June 16, 1988. The judgments are affirmed.

I. FACTS

The facts, which this Court reviews in the light most favorable to the verdict, State v. Wolfe, 13 S.W.3d 248, 252 (Mo. banc 2000), are as follows:

On February 9, 1989, at about 9:00 p.m., Melvin Hedrick met Ferguson and a friend, Kenneth Ousley, at Ferguson's home. Ferguson asked Hedrick if he would be interested in buying a .32 caliber pistol. Although Hedrick said that he was not interested, he suggested that they take the pistol with them because they might be able to sell it at a bar. Ferguson and Hedrick then made their way to Brother's Bar in St. Charles, where they stayed for about forty-five minutes to an hour. At the bar, Hedrick began to feel ill, and Ferguson arranged for Ousley to meet them at a Shell service station on 5th Street, near Interstate 70. Between 10:50 and 10:55 p.m., Ferguson and Hedrick made the short trip to the Shell station, where Ousley was waiting in Ferguson's brown and white Blazer. Ferguson put the .32 caliber pistol in his waistband and then walked toward the passenger side of the Blazer as Hedrick left for home.

Seventeen-year-old Kelli Hall, the victim in the case, worked at a Mobil service station across the street from the Shell station where Ousley and Ferguson met. Hall's shift was scheduled to end at 11:00 p.m., and at about that time, one of Hall's co-workers, Tammy Adams, arrived at the...