State v. Ferguson

• Decision Date: 24 January 2019
• Docket Number: Docket: Pen-18-13
• Citation: 200 A.3d 272
• Parties: STATE of Maine v. Thomas FERGUSON
• Court: Maine Supreme Court

200 A.3d 272

STATE of Maine

v.Thomas FERGUSON

Docket: Pen-18-13

Supreme Judicial Court of Maine.

Argued: December 11, 2018

Decided: January 24, 2019

James M. Mason, Esq., Handelman & Mason LLC, Brunswick, and Justin C. Bonus, Esq. (orally), Forest Hills, New York, for appellant Thomas Ferguson

Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

MEAD, J.

[¶1] On November 27, 2015, Robert Kennedy was shot to death in an apartment on Center Street in Bangor; Barry Jenkins was seriously wounded

in the attack. Thomas Ferguson appeals from a judgment of conviction for Kennedy's murder, 17-A M.R.S. § 201(1)(A) (2017), and the elevated aggravated assault on Jenkins (Class A), 17-A M.R.S. § 208-B(1)(A) (2017), entered by the trial court (Penobscot County, Anderson, J. ) following a bench trial. Ferguson contends that (1) the evidence was insufficient to support the court's factual findings, as well as its ultimate finding that he was at least an accomplice in the murder of Kennedy and the shooting of Jenkins; (2) he was denied due process when the State allowed Jenkins to perjure himself when testifying at the trial; (3) the court improperly allowed two witnesses to identify him in court; and (4) the court erred in certain evidentiary rulings. Discerning no error, we affirm the judgment.

I. FACTS AND PROCEDURE

A. Facts

[¶2] Following a jury-waived trial, the court made extensive findings of fact beyond a reasonable doubt. We review those findings for clear error, "uphold[ing] them if supported by competent evidence in the record." State v. Wilson , 2015 ME 148, ¶ 13, 127 A.3d 1234.

[¶3] The court found that on November 27, 2015, at about 3:30 a.m., Karen Patchell was in her apartment at 201 Center Street in Bangor with Robert Kennedy and Barry Jenkins; another woman who had been at the apartment that day, Tera Choquette, was outside. Two men, Robert Hansley and Thomas Ferguson, quickly walked by Choquette, entered the building, and went up the stairs to Patchell's apartment, planning to kill Kennedy.

[¶4] Ferguson had a "very strong, intense" dislike of Kennedy based on a previous physical fight and a belief that Kennedy was a "rat or snitch" due to an encounter Ferguson, Hansley, and Kennedy had with Brewer police that had resulted in Kennedy being arrested. Raised voices were heard in the apartment, and within a few seconds at least nine shots were fired by either Hansley or Ferguson from a Bersa .40 caliber pistol, killing Kennedy and seriously wounding Jenkins. Ferguson had obtained the pistol as payment for a drug debt.

[¶5] Hansley and Ferguson rushed out and fled. At about 3:45 a.m., a video camera at the federal building in Bangor recorded two people fitting their description walking from the general direction of Center Street in the general direction of Hammond Street. Ferguson's friend, Brittany,¹ lived on Hammond Street, and she had arranged for him to get the key to her apartment the previous day so that he could stay there while she was away for Thanksgiving. The court found, based on DNA evidence, the unique way in which they were packaged, and their proximity to each other, that sometime after the shooting Ferguson was involved in separately wrapping the murder weapon and a sawed-off shotgun in foil and a plastic bag; additionally wrapping the pistol in a newspaper dated November 20, 2015; and then storing the weapons on a high shelf in Brittany's closet.² When Brittany returned from Florida several hours after the shooting, Ferguson was at her apartment. He left later that afternoon and returned with Hansley.

[¶6] Ferguson and Hansley had also been together for some time before the shooting. At 1:40 a.m. on November 27, the day of the shooting, a video camera at the Bangor Mall recorded them Christmas shopping. Shortly after that, Ferguson waited in a cab while Hansley sold drugs in the parking lot to Mariah, whom Hansley met when leaving the mall. Minutes later, Ferguson was the primary actor when he and Hansley sold drugs at a convenience store. Ferguson and Hansley left the store in a cab around 2:33 a.m. and were dropped off at Brittany's apartment between 2:40 and 2:45 a.m., forty-five to fifty minutes before the shooting. The court found that the distance between Brittany's Hammond Street apartment and the scene of the shooting on Center Street could be "easily" covered in forty-five minutes. Cell phone records were not definitive, but were consistent with Ferguson being in the area of Center Street when Kennedy and Jenkins were shot.

[¶7] On the afternoon following the shooting, Hansley contacted Mariah to negotiate for a ride to Portland. She agreed, and at about 6:00 p.m. she picked up Hansley and Ferguson at Brittany's apartment and drove in the direction of I-95. Bangor police had been surveilling the apartment. Before Mariah's car reached the highway, police stopped the vehicle and arrested Hansley and Ferguson. When interviewed by police, Ferguson lied about (1) being with Hansley at the Bangor Mall early that morning, (2) having any involvement in the shooting, and (3) being on his way to Portland when he was arrested.

B. Procedure

[¶8] Ferguson was charged by complaint with murder, 17-A M.R.S. § 201(1)(A), and elevated aggravated assault (Class A), 17-A M.R.S. § 208-B(1)(A). A subsequent indictment added a third charge of tampering with a victim (Class B), 17-A M.R.S. § 454(1-B)(A) (2017), which was dismissed by the State on the first day of trial. Ferguson pleaded not guilty and counsel was appointed, followed later by the appointment of co-counsel.

[¶9] Ferguson moved to suppress any in-court identification of him by Choquette or Patchell on the ground that their out-of-court identifications resulted from suggestive circumstances and were therefore unreliable. Following a hearing, the court denied the motion. Ferguson also demanded a speedy trial pursuant to article I, section 6 of the Maine Constitution,³ and shortly thereafter waived his right to a jury trial. Based in part on the speedy trial demand, and over the State's objection, the court granted Ferguson's motion for relief from prejudicial joinder and ordered that he be tried separately from Hansley.

[¶10] A bench trial was held May 24-26, May 31-June 2, and June 5, 2017. On June 28, the court convened a hearing at which it announced its verdict of guilty on the remaining charges of murder and elevated aggravated assault. At a sentencing hearing on January 8, 2018, the court denied Ferguson's motions for a judgment of acquittal and for dismissal, entered judgment, and sentenced Ferguson to fifty years' incarceration on the murder count and twenty-five years, to run concurrently with the sentence for murder, on the elevated aggravated assault count. Ferguson timely appealed the convictions. He did not appeal from the sentence.

II. DISCUSSION

A. Sufficiency of the Evidence

[¶11] Ferguson asserts that the evidence was insufficient to support three of the court's factual findings, as well as its ultimate finding that he was at least Hansley's accomplice in the murder of Kennedy and the aggravated assault on Jenkins. The applicable standards of review are well established:

In reviewing a conviction, we view the evidence admitted at trial in the light most favorable to the State to determine whether the fact-finder could rationally have reached its findings beyond a reasonable doubt. Because the court here specifically found facts in reaching its verdict, we review those findings for clear error and will uphold them if supported by competent evidence in the record. In a nonjury trial, the court is free to determine which witnesses to believe and which evidence to accept or reject as trustworthy or untrustworthy as long as there is evidence by which a fact-finder could rationally conclude, beyond a reasonable doubt, that the crime was committed.

Wilson , 2015 ME 148, ¶ 13, 127 A.3d 1234 (footnote, citations, and quotation marks omitted). "Any conflicts in evidence are resolved in favor of the State." State v. Allen , 2006 ME 20, ¶ 26, 892 A.2d 447.

1. Factual Findings

[¶12] Ferguson challenges the court's findings that (1) he sold drugs with Hansley on two occasions in the early morning hours of November 27, 2015; (2) he "stormed" into Patchell's apartment together with Hansley just before the shooting; and (3) he participated in wrapping the pistol that had been used to commit the crimes and that was found in Brittany's closet. Each finding is supported by competent evidence in the record; accordingly, none is clearly erroneous. See Wilson , 2015 ME 148, ¶ 13, 127 A.3d 1234.

[¶13] The court's finding that Ferguson participated in drug sales with Hansley was supported by the testimony of the buyer in the case of one sale, and by the testimony of the driver of the car in which the deal was consummated in the other. The court's finding that Ferguson and Hansley entered Patchell's apartment together was supported by the testimony of three witnesses: Patchell, who was inside the apartment; Choquette, who was outside the apartment; and Jenkins, who was in the living room and saw Ferguson and Hansley enter before he was shot.

[¶14] Finally, although the court acknowledged that Ferguson was not directly linked to the murder weapon by DNA or fingerprint evidence, it found by circumstantial evidence, as it was entitled to do, that he was connected to the handgun. See State v. Coleman , 2018 ME 41, ¶ 30, 181 A.3d 689 ("We have repeatedly said that a criminal conviction may be based solely on circumstantial evidence ...." (alteration and quotation marks omitted) ). The circumstantial evidence cited by the court included that Ferguson acquired the handgun in payment of a drug debt; that the handgun was discovered on a high closet shelf in the apartment of a woman whom Ferguson...