State v. Ferguson

804 N.W.2d 586, 2011 Minn. LEXIS 644, 2011 WL 4949998

• Court: Supreme Court of Minnesota
• Decided: October 19, 2011
• Docket: No. A10-0499
• Status: Published

Opinions

OPINION

ANDERSON, PAUL H., Justice.

Calvin Ferguson was convicted in Hen-nepin 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 KC.’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 KC.’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 KC.’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 Henne-pin 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 introduced, and there is no other evidence in the record that indicates why Burks was murdered.

Ferguson’s counsel impeached Johnson with his felony convictions for being an accomplice after the fact, fleeing a peace officer in a motor vehicle, third-degree burglary, and being a felon in possession of a firearm. Ferguson’s counsel also elicited evidence that Johnson had previously told Folkens that Johnson knew nothing about Ferguson’s case and that he had stated, “[Y]ou don’t get no assistance from helping the defense at all.” Ferguson’s counsel also showed that the State agreed to recommend a 12-month reduction in Johnson’s sentence for another crime and that L.S., who Johnson said had given Ferguson the gun in question, had been in prison at the time of the homicide.

The Assistant Hennepin County Medical Examiner, who conducted the autopsy of Irene Burks, also testified for the State. The medical examiner testified that Burks was shot from an indeterminate distance and that she died of multiple gunshot wounds, some of which she received when she was lying on the ground. The State also called a forensic scientist who testified that the cartridge casings found at the scene were the type used in a .40 caliber handgun. The forensic scientist testified that he looked for fingerprints on the cartridges but found none. He also testified that the State found tire tracks and paint scrapings at the scene, but the State could not link any of this physical evidence to Ferguson.

The jury found Ferguson guilty of first-degree and second-degree murder. The district court then convicted Ferguson of first-degree murder and sentenced him to life in prison without the possibility of parole. Ferguson filed his notice of direct appeal on March 15, 2010.

I.

We begin our analysis by addressing Ferguson’s claim that the district court erred when it excluded the alternative perpetrator evidence. Ferguson argues that the court erred by denying his motion to introduce evidence of an alternative perpetrator, and that this error infringed upon his constitutional right to present a complete defense. Ferguson made a motion to introduce evidence that connected Christopher Jennings, an acquaintance of Burks, to the shooting. The court denied Ferguson’s motion. When reviewing constitutional error, we first determine whether the district court erred, and then “whether the error was harmless beyond a reasonable doubt.” State v. Hall, 764 N.W.2d 837, 841-42 (Minn.2009); see also id. at 844 n. 4.

All defendants accused of criminal behavior have the constitutional right to present a complete defense. State v. Larson, 787 N.W.2d 592, 597 (Minn.2010) (citing State v. Atkinson, 774 N.W.2d 584, 589 (Minn.2009)). Included within this right is “the right to present evidence showing that an alternative perpetrator committed the crime with which the defendant is charged.” Id. (internal quotation marks omitted). Such evidence is generally not admitted “for the purpose of establishing the alternative perpetrator’s guilt, but to create a reasonable doubt as to the defendant’s guilt.” Id. (internal quotation marks omitted). Courts may limit the defendant’s evidence to ensure that the defendant does not confuse or mislead the jury. State v. Hannon, 703 N.W.2d 498, 506 (Minn.2005) (citing Taylor v. Illinois, 484 U.S. 400, 411 n. 15, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)).

Alternative perpetrator evidence is admissible only if the defendant makes a “threshold showing that the evidence the defendant seeks to admit has an ‘inherent tendency to connect the alternative perpetrator to the commission of the charged crime.’ ” State v. Nissalke, 801 N.W.2d 82, 99 (Minn.2011) (quoting State v. Larson, 788 N.W.2d 25, 36-37 (Minn.2010)). This foundational requirement “ ‘avoid[s] the use of bare suspicion, and safeguard[s] a third person from indiscriminate use of past differences with the deceased.’ ” Id. (quoting State v. Jenkins, 782 N.W.2d 211, 224 (Minn.2010)).

Once the defendant lays foundation for the evidence by proving its inherent tendency to connect the alleged alternative perpetrator to the commission of the crime, “ ‘it is permissible to introduce evidence of a motive of the third person to commit the crime, threats by the third person, or other miscellaneous facts which would tend to prove the third person committed the act,’ in order to cast a reasonable doubt on the state’s case.” State v. Jones, 678 N.W.2d 1, 16 (Minn.2004) (quoting State v. Hawkins, 260 N.W.2d 150, 159 (Minn.1977)). Exclusion of alternative perpetrator evidence “will almost invariably be declared unconstitutional when it significantly undermines fundamental elements of the defendant’s defense.” Id. (internal quotation marks omitted).

Ferguson sought to present the jury with an alternative perpetrator theory in response to the State’s identity-of-the-shooter evidence. The State presented evidence that a person identified as either B.J. or C.J. committed the murder. The State also presented evidence that Ferguson was known as B.J. and C.J. The State contended that it was not offering the evidence about the identity of the shooter for the truth of the matter asserted therein but only to explain the basis for the police investigation of Ferguson. The jury was not given any cautionary instruction limiting the manner in which the jury could use the evidence as to the identity of the shooter.

In his defense, Ferguson attempted to admit evidence about an alternative perpetrator, Christopher Jennings. Ferguson offered the following foundational evidence. T.B. called Folkens and told him that someone who went by the name C.J. shot Burks. Jennings’s initials are C.J., he was listed as C.J. in Burks’s cell phone contacts, he had a tattoo of the letters C.J. on his arm, and three days before the shooting — September 9, 2006 — Burks spoke to him on the telephone. Further, Jennings’s physical description was in several ways similar to the descriptions of the shooter provided by witnesses. Jennings also drove a car that matched some of the descriptions of the car seen at the scene of the shooting. Finally, Jennings was arrested for possession of a firearm without a permit on April 4, 2006, but was not in police custody on the date of the shooting.

In response to Ferguson’s foundational evidence, the State argues that there must be some direct evidence placing the alternative perpetrator at the scene of the crime, plus additional evidence connecting the alternative perpetrator to the crime. The State cites Atkinson, in which we noted that evidence of an alternative perpetrator’s presence at the scene of the crime is insufficient on its own to create an inherent tendency connecting the alternative perpetrator to the crime. 774 N.W.2d at 590 (citing State v. Flores, 595 N.W.2d 860, 868-69 (Minn.1999)). In Atkinson, the defendant produced evidence suggesting the alternative perpetrator’s presence at the scene of the crime and evidence that the alternative perpetrator had a tattoo similar to the shooter’s tattoo. Id. at 591. We held that these pieces of evidence did not create an inherent tendency connecting the alternative perpetrator to the crime. Id. Acknowledging that it was a “close question,” we concluded that the specific evidence suggesting the alternative perpetrator’s presence at the scene of the crime connected the alternative perpetrator only to the location of the crime, not the crime itself. Id. We then concluded that the remaining evidence, when considered in light of all of the evidence in the record, failed to create an inherent tendency to connect the alternative perpetrator to the crime. Id. at 591-92.

The foundational evidence offered by Ferguson surpasses the foundational evidence offered in Atkinson. In particular, Jennings’s physical appearance matches descriptions of the shooter’s physical appearance and Jennings’s car matches witnesses’ descriptions of the shooter’s car. Both pieces of evidence suggest Jennings was present at the scene of the crime. Moreover, Ferguson produced other evidence that connects Jennings to Burks, and to the crime. Thus Ferguson has not only produced evidence placing Jennings at the scene of the crime but has also offered additional evidence connecting Jennings to the victim.

After reviewing Ferguson’s offer of proof, we conclude that the alternative perpetrator foundational evidence, with respect to Jennings, was sufficient to allow Ferguson to present an alternative perpetrator defense. Ferguson presented multiple pieces of information that may have incriminated Jennings and so had an “inherent tendency” to connect Jennings to the commission of Burks’s murder. Jones, 678 N.W.2d at 16. Therefore, we hold that the district court erred when it excluded the evidence after concluding that Ferguson had not laid a proper foundation.

Our conclusion that the district court erred when it excluded the alternative perpetrator evidence does not end our inquiry. To determine whether the erroneous exclusion of the alternative perpetrator evidence infringed on Ferguson’s constitutional rights, we must determine whether the court’s error was harmless beyond a reasonable doubt. Hall, 764 N.W.2d at 842. An error is harmless beyond a reasonable doubt “ ‘[i]f the verdict rendered is surely unattributable to the error.’ ” Id. (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997)) (internal quotation marks omitted). An error is not harmless if there is “a reasonable possibility that the verdict might have been different” if the eiTor were not committed. State v. Quick, 659 N.W.2d 701, 716 (Minn.2003) (internal quotation marks omitted).

We conclude that there is a reasonable possibility the jury may have reached a different verdict if the jury had known the information regarding Jennings. We reach this conclusion despite evidence that K.C. testified that she saw the shooter as he ran toward K.C. and Burks, and that K.C. ultimately identified Ferguson in a photo lineup. Ferguson rebuts KC.’s eyewitness identification with a lack of any physical evidence connecting Ferguson to the shooting, as well as evidence that no other eyewitness identified Ferguson as the shooter. In light of the absence of physical evidence and other identifications, we conclude the jury might have reached a different result if it had known about (1) the similarities in physical descriptions and characteristics of Ferguson and Jennings, (2) their common nickname, (3) Jennings’s listing as C.J. in Burks’s phone, (4) the tattoo of C.J. on Jennings’s arm, (5) the telephone call between Jennings and Burks three days before the shooting, and (6) the fact that Jennings was not in custody on the day of the shooting despite an arrest for possession of a firearm without a permit.

Because we conclude that the verdict might have been different if the jury had received the alternative perpetrator evidence, we hold that the district court’s error was not harmless beyond a reasonable doubt and infringed on Ferguson’s constitutional right to present a complete defense. Having held that the district court erred when it excluded the alternative perpetrator evidence, and that the court’s error was not harmless beyond a reasonable doubt, we hold that Ferguson is entitled to a new trial.

II.

Because the district court’s exclusion of the alternative perpetrator evidence denied Ferguson his constitutional right to present a complete defense and entitles him to a new trial, we do not need to reach the other issues raised by Ferguson.

Reversed and remanded.

1 . Folkens recalled that Burks's mother said "CJ.” initially, and "B J." on the second call.