State v. Ferguson

• Citation: 804 N.W.2d 586
• Decision Date: 19 October 2011
• Docket Number: No. A10–0499.,A10–0499.
• Parties: STATE of Minnesota, Respondent,v.Calvin FERGUSON, Appellant.
• Court: Supreme Court of Minnesota (US)

804 N.W.2d 586

STATE of Minnesota, Respondent,

v.Calvin FERGUSON, Appellant.

No. A10–0499.

Supreme Court of Minnesota.

Oct. 19, 2011.

Syllabus by the Court

The district court erred when it excluded evidence that had an inherent tendency to connect an alternative perpetrator to the shooting of the victim because the evidence showed that the alternative perpetrator's physical description was in several ways similar to the description of the shooter, the alternative perpetrator's vehicle matched the description of the shooter's vehicle, the alternative perpetrator's nickname matched that of the shooter, and the alternative perpetrator had a connection with the victim.

Lori Swanson, Attorney General, St. Paul, MN; and Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County Attorney, Minneapolis, MN, for respondent.David W. Merchant, Chief Appellate Public Defender, Sara L. Martin, Assistant State Public Defender, St. Paul, MN, for appellant.

OPINION

ANDERSON, PAUL H., Justice.

Calvin Ferguson was convicted in Hennepin County District Court of first-degree premeditated murder for the death of Irene Burks. The court then sentenced Ferguson to life in prison without any possibility of release. Ferguson has appealed his conviction and raises eight separate issues. On appeal, Ferguson argues that (1) the district court abused its discretion by admitting hearsay evidence that “C.J.” or “B.J.” (Ferguson's street names) shot Burks; (2) the court abused its discretion by allowing into evidence Ferguson's bad acts testimony from another trial; (3) the State committed prosecutorial misconduct; (4) the court erred by precluding Ferguson from calling an expert witness on eyewitness identification; (5) the court abused its discretion by excluding evidence of an alternative perpetrator; (6) the court erred by limiting Ferguson's impeachment of a witness; (7) the court erred by refusing to instruct the jury on circumstantial evidence; and (8) the cumulative effect of trial errors deprived him of a fair trial. We reverse on the alternative perpetrator issue and remand for a new trial.

Irene Burks was shot to death on September 12, 2006. At approximately 5:30 p.m. on the day she was shot, Burks went to the home of K.C. K.C. and Burks were close friends and routinely saw each other several times a week. After Burks arrived at K.C.'s home, she did not go inside the home but remained outside to speak with K.C. and K.C.'s daughter. Burks asked K.C. if she could use K.C.'s telephone. K.C. went back inside her home to get the telephone. Burks remained outside the home and continued to visit with K.C.'s daughter, who was standing in the doorway of the home. After retrieving the telephone, K.C. returned to the doorway. As she was handing the telephone to Burks, K.C. looked up and saw an African American man wearing a black hooded sweatshirt standing between two trucks parked across the street. As K.C. watched the man, he started running toward K.C.'s home. K.C. became alarmed when she saw a large object in the man's hand, so she yelled out Burks's name. When the man reached K.C.'s gate, he fired a gun at Burks. K.C. reacted by pulling her daughter inside the home and closing the door. K.C. testified that from inside her home, she heard approximately six more gunshots being fired outside. She then called the police. When the police arrived, K.C. opened the door and saw Burks lying in the front yard. K.C. located all of her children and saw that her daughter's ankle was bleeding. The police determined that the daughter had suffered a gunshot wound and treated her injury at the scene. Meanwhile, an ambulance took Burks to the Hennepin County Medical Center, where she died of the injuries she sustained as a result of the shooting.

Several eyewitnesses observed some of the events surrounding the shooting. W.O., A.Q., J.W., and O.M. all lived in the neighborhood. W.O., A.Q., and J.W. reported seeing an individual wearing a dark-colored hooded sweatshirt leaving the scene of the shooting. A.Q. and J.W. stated that they saw the individual running toward a parking space in an alley opposite K.C.'s home. Shortly afterward, they observed a brown sedan back out of the same parking space and hit a garage before the sedan headed south down the alley. O.M. observed an individual get into a brown sedan, back into the garage, and head south down the alley.

When police officers arrived at the scene, they took a statement from K.C. K.C. described the shooter as a “black male, about five-nine, thin build, medium to dark complected.” She said his nose was “a little wider,” and he had “medium-sized lips.” She said the shooter was wearing a blue or black “hoodie.” Police officers also examined the forensic evidence found at the scene—footprints, tire tracks, and bullet casings.

Investigation of Calvin Ferguson

Sergeant Bruce Folkens led the investigation of Burks's murder. Shortly after the shooting, in late September or early October 2006, Burks's mother telephoned Folkens and told him that she had just heard from her niece that the person who shot Burks was called “B.J.” Later, Burks's mother called back to tell Folkens that the shooter's name was actually “C.J.” ¹ Folkens would later testify that he knew from his time working in the community that the defendant, Calvin Ferguson, had used both of these names.

On the basis of the calls from Burks's mother and his prior knowledge of Ferguson, Folkens retrieved a photograph of Ferguson and prepared a six-person sequential photographic lineup that included Ferguson's photograph. Folkens then met with K.C. at her home and showed her the photo lineup while they both sat at the dining room table. K.C. viewed all six photographs in the photo lineup and identified Calvin Ferguson, who was depicted in the second photograph, as the person who shot Irene Burks. K.C. was the only eyewitness who was able to identify Ferguson from a photo lineup. Folkens showed the same lineup to A.Q. and J.W., but neither of them was able to identify Ferguson as the person he saw at the scene of the shooting. Folkens also prepared a second photo lineup consisting of profile views of the same individuals for J.W., who had told Folkens that he had seen the suspect from the side. J.W. was unable to identify a suspect from the second lineup.

On August 7, 2008, a Hennepin County grand jury indicted Ferguson for first-degree and second-degree murder under Minn.Stat. §§ 609.185, 609.19 (2010) respectively. He was arrested shortly thereafter. At trial, the State elicited testimony in support of the facts set forth above. The State also introduced Ferguson's testimony from United States v. Edwards, a case in which Ferguson had testified on behalf of the United States. In this testimony, Ferguson admitted to being part of a group called the Rolling 30s Bloods. He stated that he and other members of the Rolling 30s Bloods had street names, and that his street names were C.J., B.J., and “Bad News.” Ferguson testified that gang members use street names to help them get away with crimes. Ferguson stated that he wore a black hooded sweatshirt with the letters “RTB,” which was short for the “Rolling 30s Bloods,” airbrushed in red ink on the back. He said that these colors, specifically red and black, were the colors that identified the Rolling 30s Bloods, as opposed to blue, which was associated with a different gang.

Ferguson's testimony in Edwards also included a statement that he was an “enforcer” for the Rolling 30s Bloods. He described the role of an enforcer as follows: “[I]f we was to have a problem, [the enforcer] would be the person that's most likely going to go take care of it.” An enforcer would “make sure it's safe ... for us to sell drugs.” Ferguson went on to testify that he used guns in his capacity as an enforcer, and shared guns with his fellow gang members.

The State introduced additional evidence suggesting that Irene Burks was being followed by someone shortly before she was shot. The State's evidence showed that, at approximately 1:30 p.m. on the day she was shot, Burks went to a neighborhood deli. She left the deli for a while and purchased some food at a nearby restaurant before returning to the deli at around 4:00 p.m. Shortly thereafter, Burks again left the deli. E.W. testified that he was on the porch of a house within viewing distance of the deli on the afternoon of September 12, 2006. He said that he saw Burks at the deli, and also saw a man pacing back and forth nearby. E.W. testified that the man was African American, between five-nine and five-eleven with a medium build, and the man had “medium beady eyes,” a broad nose, and “chubby” lips. The man was wearing a black hooded sweatshirt with dark pants. E.W. testified that when Burks left the deli, the man he was watching walked into an alley by the deli, and shortly afterward, a tan Ford Taurus came out of the alley. The car sped up until it caught up with Burks's car, and then it followed her.

Derrick Johnson also testified for the State. Johnson was incarcerated with Ferguson in the Anoka County jail in December 2008, during which time both men were transported together to the Hennepin County courthouse. Johnson testified that he knew Ferguson as B.J. Johnson testified that Ferguson told him that he did not know why he was being transported to the Hennepin County courthouse, but that Ferguson thought his friend L.S., also known as “Killer,” was “telling on him” for some incident that Ferguson did not describe. Johnson testified that Ferguson told him—again without referring to a specific incident—“[t]hat it was Killer's weapon. The gun belonged to him.” Johnson also testified that Ferguson told him that a fellow gang member called “Izzy” was supposed to shoot Irene Burks, and if “Izzy [had] taken care of it, [Ferguson] wouldn't have had to do it.” Johnson's testimony about Izzy was the only motive evidence that the State...