Professional Documents
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Response To Ryan Ferguson's Writ of Habeas Corpus
Response To Ryan Ferguson's Writ of Habeas Corpus
Comes now respondent, by and through counsel, and states as follows in response to
this Court's order to show cause why a writ of habeas corpus should not be granted.
Correctional Center located in Jefferson City, Missouri, pursuant to the sentence and
judgment of the Circuit Court of Boone County, Missouri. Petitioner was found guilty of
second degree murder and first degree robbery for which the jury recommended sentence of
thirty years and ten years imprisonment with the Missouri Department of Corrections, and
the judge ordered the sentences to run consecutively. Petitioner has yet to complete service
of these sentences. Named respondent, Dave Dormire, Warden of the Jefferson City
Correctional Center, is petitioner's custodian and is the proper party respondent. Missouri
evidentiary hearing.
10. Respondent’s Exhibit J is a copy of the opinion of the Missouri Court of Appeals,
11. Respondent’s Exhibit K is a copy of the January 9, 2009 order and judgment in
Ryan Ferguson v. Dave Dormire, No. 08AC-CC00721 (Cole County Circuit Court).
13. Respondent’s Exhibit M is a copy of the order in State ex rel. Ryan Ferguson v.
2
Statement of Facts
Petitioner, Ryan Ferguson, was charged by substitute information with murder in the
first degree, § 565.020, RSMo 2000 (with notice that the state might submit the offense of
felony murder, § 565.021.1.(2), RSMo 2000), and robbery in the first degree, § 569.020,
RSMo 2000 (Respondent’s Exhibit B, page 36). After a trial by jury, petitioner was found
guilty of murder in the second degree (felony murder), and robbery in the first degree (Tr.
2188-2189). Viewed in the light most favorable to the verdict, the facts were as follows:
On the evening of October 31, 2001, the victim, Kent Heitholt, returned to work at the
Columbia Daily Tribune, where he worked as a sports writer (Tr. 452, 456). Deborah
Evangelista, the victim's wife, called the victim at around 10:00 p.m., to tell him that he did
not need to get any lunch money for his daughter (Tr. 461).
About six hours later, at around 4:00 a.m., two police officers arrived at the victim's
home and informed the victim's wife that there had been a "horrible crime," and that her
The murder had been committed by petitioner and Charles Erickson (Tr. 474-475).
Both petitioner and Erickson had attended a party (petitioner only briefly) on the evening of
October 31, 2001 (Tr. 485, 487,1777). After the police broke up the party, petitioner and
Erickson met up, and the two men went to "By George," a dance club and bar (Tr. 495-496).
They were underage, but petitioner's sister had agreed to get them into the club (Tr. 496,
506).
While at the club (the two had no trouble getting in), petitioner and Erickson had a
few mixed drinks, but eventually they ran out of money (Tr. 509, 511-513). They then left
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the club, and petitioner made some telephone calls, looking for something to do (Tr. 515).
Erickson said that he wanted to go home, but petitioner said, "Well, if we could get some
more money, we could get some more drinks. We could buy some more drinks and stay out
later" (Tr. 516-517). Petitioner then suggested that they rob someone (Tr. 517).
Erickson agreed, and the two decided to walk downtown (Tr. 517). Petitioner then
said, "Hold on a second. We need to take something with us," meaning that they needed
some kind of weapon (Tr. 519). Petitioner opened his trunk, retrieved a tire tool, and handed
it to Erickson (Tr. 519). Erickson removed an attachment from the tool, and they headed
down Ash Street (Tr. 519). (At about that same time, the victim logged off his computer; it
A few minutes later, petitioner and Erickson saw the victim walking in an alley
between the Columbia Daily Tribune building and the parking lot (Tr. 520-521, 904).
Another person exited the Tribune building, and petitioner and Erickson hid behind a
dumpster enclosure (Tr. 522). That person then drove away, and petitioner said, "We need to
get this over with. We need to get this over with. Just do it" (Tr. 524).1 Erickson walked up
behind the victim and hit him on the head with the tire tool (Tr. 525). The victim turned, and
Erickson continued to hit him (Tr. 526). After several blows, the victim groaned and fell to
his knees (Tr. 526). Erickson hit him one more time, and the victim fell to the ground (Tr.
526, 541). Erickson then dropped the tire tool (Tr. 526).
1
The victim had apparently lingered in the parking lot to put out some cat food on
nearby retaining wall (Tr. 1155, 1177). Thus, the victim was caught in the parking lot alone.
4
Petitioner picked up the tire tool and hit the victim on the head while the victim was
on the ground.2 Petitioner then pulled off the victim's belt and strangled the victim (Tr. 548).
When Erickson saw what petitioner was doing, he yanked the belt from the victim's neck,
causing the buckle to tear off and fall to the ground (Tr. 549). Petitioner then went through
the victim's pockets and car and took the victim's watch and car keys (Tr. 551).
At about that time, Shawna Ornt, a custodial worker at the Tribune building, went
outside to smoke a cigarette (Tr. 551). Erickson ducked down behind the victim's car, but
Ornt saw him duck (Tr. 551, 929). Ornt went back inside and told Jerry Trump, another
worker (Tr. 930). Trump went outside with Ornt and he called out, saying, "I see you out
there. Who's out there?" (Tr. 973). Petitioner and Erickson stood up, and Erickson yelled,
"Someone's hurt out here," or words to that effect (Tr. 933-934, 973). Trump closed the door,
told Ornt that he thought they should call 911, and then he decided to walk out to the parking
lot (Tr. 977). Trump found the victim and yelled for Ornt to call 911 (Tr. 978). He then saw
petitioner and Erickson walking away (he did not then know who they were) (Tr. 978,981).3
Other employees of the Tribune soon discovered what was happening, and they ran
outside (Tr. 985, 1079). Law enforcement officers and emergency personnel soon arrived,
with the first officer arriving at about 2:31 a.m., just four minutes after the 911 call (Tr.
1062, 1084-1085). Subsequent examination of the victim's body revealed eleven blows to the
2
This can be inferred from the fact that petitioner retrieved the tire tool, and from the
blood spatter evidence that indicated that the victim could have been hit while on the ground
(Tr. 558, 566, 1135-1136).
3
Subsequent investigation revealed the presence of two blood trails leading away
from the scene (Tr. 1147).
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head and evidence of strangulation (Tr. 1414, 1423-1427). The victim died of asphyxia (Tr.
1431). The victim's watch and car keys were never found (Tr. 1225).
After leaving the scene, petitioner and Erickson ran down Fourth Street toward
Broadway (Tr. 556-557). Erickson had taken the victim's belt (minus the buckle), and he put
it in his pocket (Tr. 557). They went to Flat Branch Park, crossed the creek, went up a rock
embankment, and arrived at a Phillips 66 gas station on Providence (Tr. 560). There they
encountered Dallas Mallory, and Erickson told him that they had just beaten a man (Tr. 561).
Petitioner did not deny Erickson's report (Tr. 562). Mallory then drove off, and petitioner and
At the car, petitioner told Erickson to put the victim's belt in a plastic sack (Tr. 566).
Petitioner then put the tire tool and some other items into the plastic sack (Tr. 506). Erickson
was concerned about the items in the bag, but petitioner later told Erickson, "Don't worry.
I'm going to take care of it" (Tr. 573). Petitioner also said, "You know, it doesn't really
matter, man. I always wanted to kill someone before I was 60 anyway, so I just - I just
The next morning, November 1, 2001, Erickson did not recall the murder (Tr. 575).
On November 2, Erickson saw an article about the murder and he remarked to petitioner,
"That's messed up ... this happened two blocks away from where we were partying the other
night" (Tr. 577). Petitioner became irritated and said, "So what?" (Tr. 577). After that,
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In time, Erickson started to recall the murder (Tr. 581). He remembered "snapshots"
of what had occurred on the night of the murder, but the memories seemed distant and
On December 31, 2003, Erickson talked to petitioner at a New Year's party (Tr. 587).
He mentioned that he thought they had killed the victim on Halloween night (in 2001) (Tr.
588). Petitioner feigned ignorance, saying, "You mean the Tribune guy?" (Tr. 588). And,
when Erickson said, "Yeah," petitioner said, "No, we didn't do that. We didn't do that. We
never done anything like that" (Tr. 588). When Erickson stated that he might go to the
police, petitioner threatened to kill Erickson (Tr. 591). Petitioner became upset when
Erickson pressed the issue, and he said, "Man, we didn't kill anybody" (Tr. 591). Erickson
was also upset and he said, "Man, that's not something that somebody can forget, man.
Shortly thereafter, Erickson disclosed his and petitioner's involvement in the murder
to Nick Gilpin and Art Figueroa (Tr. 592, 596). Gilpin went to the police, and both petitioner
and Erickson were contacted by the police on March 10, 2004 (Tr. 598, 600, 1757).
Petitioner denied any involvement in the murder (Tr. 1762). Erickson was reluctant to fully
admit his guilt, and he could not recall certain details, but he admitted that he and petitioner
were responsible for the murder (see Tr. 601-602,614, 659,694). Ultimately, Erickson
In March or April, 2004, after the arrests, Jerry Trump (one of the custodial workers
at the Tribune) saw photographs of petitioner and Erickson in a newspaper article (Tr. 1021,
1031). He immediately recognized them as the two men that he had seen in the parking lot
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beside the victim's car (Tr. 1022, 1032). He informed the prosecutor (Tr. 1027). He later
At trial, which was held in October, 2005, petitioner testified and denied any
involvement in the murder (Tr. 1802). Petitioner called various other witnesses in an attempt
to corroborate his account and to cast doubt on the state's case (Tr. 1471, 1532, 1626, 1658,
1678, 1691, 1709, 1726, 1950). The jury found petitioner guilty of murder in the second
degree (felony murder) and robbery in the first degree (Tr. 2188-2189). After a separate
penalty phase, the jury recommended sentences of thirty years for murder and ten years for
On December 5,2005, the trial court sentenced petitioner in accordance with the jury's
recommendation (Tr. 2253-2254). The court further ordered that petitioner serve his
Procedural History
The underlying cause of action is a second petition for writ of state habeas corpus
under Missouri Supreme Court Rule 91. Ferguson stands convicted of second degree felony
murder and first degree robbery for which the jury recommended sentences of thirty years
and ten years imprisonment. The Missouri Court of Appeals affirmed the sentence and
judgment on direct appeal. State v. Ferguson, 229 S.W.3d 612, 614 (Mo. App. W.D. 2007).
The court of appeals also affirmed the denial of post-conviction relief under Missouri
Supreme Court Rule 29.15. Ferguson v. State, 325 S.W.3d 400 (Mo. App. W.D. 2010).
Ferguson’s first state habeas petition was denied by this court and then the appellate courts.
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Ferguson v. State, No. 08AC-CC00721 (Cole County Circuit Court); Ferguson v. Dormire,
No. 70818 (Mo. App. W.D.); Ferguson v. Dormire, No. SC90095 (Mo. banc).
Statement of Merits
Petitioner presents four grounds in his petition for writ of state habeas corpus. None
of the grounds, however, rises to the high level contemplated by the Missouri Supreme Court
for issuance of a writ; accordingly, the petition should be denied. But due to the nature of
the allegations, an evidentiary hearing is warranted for parts of Grounds I, II and III, where
both parties can present evidence so the court can determine the credibility of petitioner’s
new evidence in light of the current record, and any additional evidence the State chooses to
Ground I
“actually innocent” of the offenses (Petition, page 11). The burden of proof petitioner must
sustain in order to receive a writ of habeas corpus on the basis of this claim was established
by the Supreme Court in State ex rel. Amrine v. Roper, 102 S.W.3d 541 (Mo. banc 2003).
The appropriate burden of proof for a habeas claim based upon a free
standing claim of actual innocence should strike a balance between these
competing standards and require the petitioner to make a clear and
convincing showing of actual innocence that undermines confidence in the
correctness of the judgment….
9
Id. at 548.
timely proper manner, such as with Grounds II, III and IV. See Clay v. Dormire, 37 S.W.3d
214, 217 (Mo. banc 2000). As noted in Amrine, that showing of “actual innocence” is
slightly easier for the offender to make. Nonetheless, the showing requires new evidence in
A. Jerry Trump
Initially, petitioner contends that one of the state’s witnesses at trial, Jerry Trump (Tr.
At petitioner’s trial, Jerry Trump testified that he was employed by C&S Cleaning
Company and his place of work for the evening of October 31 and November 1, 2001 was the
Columbia Daily Tribune building (Tr. 965). After Shawna Ornt left for a cigarette, she
returned and told Trump that someone was outside the building, “ducking down behind
[victim’s] car” (Tr. 969). When Trump went outside, he also saw two individuals hiding
behind the victim’s car (Tr. 973). When he asked, “who’s out there?” (Tr. 973), one young
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man replied “someone’s hurt out here, man” (Tr. 973). Trump closed the building’s garage
door (Tr. 975, 976) and told Ornt to call 911 (Tr. 977). Trump went out the employee door,
went down some steps and across the parking lot to the victim’s car (Tr. 977). Trump
observed the two young males walking up the alley towards 4th Street (Tr. 978). After
reaching the car, Trump observed the victim lying face down in a pool of blood, he yelled to
Ornt to call 911 now (Tr. 978). As Trump returned to the building, he observed the two
young males again (Tr. 981). At trial, Trump described the individuals he saw (Tr. 982-83).
Trump also testified that he had previously been convicted and was on probation in
2001 (Tr. 988-89). For reasons not connected with the murder, Trump’s probation was
violated in December, 2001, and he began to serve a five year sentence (Tr. 989-90). While
incarcerated, Trump received from his wife a newspaper article that contained pictures of
both Erickson and Ferguson (Tr. 1020-22). Upon receiving the article, Trump recognized the
photographs as the individuals he observed on the night of the murder (Tr. 1022). Though he
had earlier viewed photographs at the request of the Columbia Police Department, he had not
identified those photographs as the people involved (Tr. 1023). At trial, he identified those
pictures again (Tr. 1024-28). Trump also identified petitioner as being one of the males he
Petitioner did not call Jerry Trump to testify at the post-conviction proceeding
Petitioner submits now two affidavits from Trump with his petition - - Petitioner’s
Exhibit 6, an October 11, 2010 affidavit - - and Petitioner’s Exhibit 7, a December 28, 2010
affidavit. In the October 11, 2010 affidavit, petitioner states that he could not identify the
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two individuals immediately after the offense (Petitioner’s Exhibit 6, paragraphs 7-9).
Trump states that he could not identify the two individuals that he saw “for some time after
that” (Petitioner’s Exhibit 6, paragraph 9). This affidavit does not recant the testimony by
Trump identifying Ferguson and Erickson as the two young males beside the victim’s car.
And the jury heard his testimony that he did not identify anyone immediately after the crime
(Tr. 1023).
Similarly, the December 28, 2010 affidavit does not recant the identification. Most of
the affidavit speculates that the two people he saw did not kill the victim (Petitioner’s Exhibit
7, paragraphs 6-11). Of course, that is pure speculation by Trump, speculation that he is not
In the December 28, 2010 affidavit, Trump states that he “cannot positively identify”
the two people in the parking lot as Erickson and Ferguson (Petitioner’s Exhibit 7, paragraph
5), but he could and did in December, 2004 and in October, 2005 when he testified at
petitioner’s trial (Tr. 965). And the “postiveness” of the identification was a matter for the
jury considered in rendering verdict. Compare Tr. 1029 with Tr. 1057-58. Notwithstanding
identification testimony.
B. Charles Erickson
Next petitioner contends that co-defendant Erickson has recanted his trial testimony
(Petition, pages 19-42). Ferguson stands convicted of second degree felony murder and first
degree robbery, due, in part, to testimony from co-defendant Erickson (Petition, pages 8-9).
In that testimony (covering over 400 pages of the trial transcript), Erickson testified that he
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robbed Kent Heitholt and beat Mr. Heitholt with a tire iron, and that Ferguson robbed and
strangled Heitholt (Notice Exhibit I, pages 474-75).4 Erickson proceeded to describe in detail
how Ferguson suggested that they rob somebody to get some money, how Ferguson got a tire
tool from Ferguson’s trunk and gave it to Erickson to use in the robbery, how they selected
Heitholt to rob, how Erickson beat Heitholt with the tire iron, and how Ferguson then
strangled Heitholt (Notice Exhibit I, pages 516-26, 537-55). When given a chance to
withdraw these statements and to say that it was a dream, Erickson insisted that he and
The testimony of Erickson at Ferguson’s trial was consistent with several statements
that he had made prior to trial. In particular, before his arrest on these charges, Erickson
described to several different people at different times his involvement in the murder of Kent
Heitholt and included Ferguson as a co-participant in the commission of the crime (Notice
Exhibit H, pages 127-38). After his arrest, Erickson described his and Ferguson’s
involvement to the police in a lengthy videotaped interview after having been given his
Miranda warnings. In that interview, Erickson stated that Ferguson had strangled Heitholt
Subsequently, the state entered into a plea agreement with Erickson. That agreement
provided that in exchange for the state’s recommendation of a sentence totaling twenty-five
years imprisonment for the charges of second degree murder, first degree robbery and armed
4Notice exhibits were submitted to the court with the March 24, 2011 notice to court.
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criminal action, Erickson agreed to provide truthful and complete testimony at Ferguson’s
Then, at his plea of guilty on November 4, 2004, Erickson acknowledged under oath
before the Honorable Gene Hamilton that he and Ferguson acted together in committing the
crimes of murder, robbery, and armed criminal action (Notice Exhibit J, pages 10-12).
Later, Erickson testified under oath in a 286-page deposition conducted on June 30,
2005, by the attorney for Ferguson. In that deposition, Erickson was questioned at length by
defense counsel who tried to suggest that Erickson was only testifying that Ferguson was
involved because of the plea agreement (Notice Exhibit H, pages 43-46). In response,
Erickson firmly indicated that a statement that Ferguson was not involved would be a lie
(Notice Exhibit H, page 44). Erickson also stated that, when he had talked with Ferguson
about the murder during a New Year’s Eve Party, Ferguson had threatened Erickson with
violence if Erickson went to the police (Notice Exhibit H, pages 109-14). During the
deposition, Erickson described how he and Ferguson had decided to find somebody to rob
for money, how Ferguson took a tire iron out of Ferguson’s trunk and gave it to Erickson to
use as a weapon in the robbery, how they selected Mr. Heitholt, and how they then
proceeded to rob and kill Mr. Heitholt (Notice Exhibit H, pages 182-90, 192-206, 208-20).
In describing the murder of Mr. Heitholt, Erickson specifically testified at the deposition that
Erickson struck Heitholt multiple times with the tire iron, and that, after Heitholt had been
knocked down, he saw Ferguson holding a belt and using it to strangle Heitholt (Notice
14
Then on November 22, 2009, Erickson gave a sworn videotaped statement to Zellner
and other witnesses that is omitted from the petition. In that videotaped statement, Erickson
read from a prepared statement, identified as Exhibit 1, but not attached to the transcript
submitted to the court of appeals as Exhibit J of the “Motion to Remand” (Notice Exhibit A).
In that statement, Erickson still placed Ferguson at the crime scene with sufficient detail for a
jury to convict Ferguson of felony murder, but the statement differed from his previous
Instead, in the petition filed with this Court, Ferguson now presents what purports to
11). The February 11, 2011 affidavit (Ferguson’s Exhibit 11) denies Ferguson’s involvement
with the robbery and murder, and gives no details of the actual events surrounding the murder
of Mr. Heitholt. The current affidavit stands in contrast with the November 22, 2009,
statement of Erickson taken by Zellner, which placed Ferguson at the scene of the crime
aiding and encouraging Erickson while Erickson committed the robbery and murder (Notice
Exhibit A).
In short, Erickson’s multiple statements before, during and after trial consistently
placed Ferguson at the murder scene with Ferguson strangling the victim.
A recantation does not nullify the existence of the previous testimony by Mr.
Erickson. See In re Davis, 2010 WL 3385081, at *45 n.39 (S.D. Ga. Aug. 24, 2010).
It is easy to understand why this should be so. The trial is the main
event in the criminal process. The witnesses are there, they are sworn, they
are subject to cross-examination, and the jury determines whether to believe
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them. The stability and finality of verdicts would be greatly disturbed if
courts were too readily to entertain testimony from witnesses who have
changed their minds, or have claimed to have lied at the trial.
United States v. Gray Bear, 116 F.3d 349, 350 (8th Cir. 1997). The wisdom of these words
from the federal court of appeals is reflected in the current situation. The trial should be the
main event in the process, not a springboard for a post-conviction motion. And a PCR
motion should not be the springboard for a state habeas petition, and so on.
Petitioner contends that his co-defendant felt pressured to testify at petitioner’s trial
(Petition, pages 34-35, 40-42). Erickson’s motivation to testify was explored by petitioner
began before his arrest and continued after his incarceration with the Department of
Corrections. Those statements occurred when Erickson had no reason to feel “pressured”
into giving inculpatory statements. Perhaps it is a different form of “pressure” that has led
Petitioner complains about the jury’s hearing testimony about the plea agreement
between the state and Mr. Erickson where Erickson was required to provide truthful
testimony (Petition, pages 30-34). Erickson testified about the plea agreement without
objection (Tr. 620-21). The plea agreement was also entered into evidence as an exhibit at
petitioner’s trial (Tr. 617). Other than not liking the information, petitioner does not state a
legal basis for its exclusion in his petition (Petition, pages 30-34). Indeed, if the State had not
introduced the plea agreement, respondent suspects that petitioner’s trial counsel would have
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Petitioner contends that Erickson’s testimony was the product of marijuana use before
arrest (Petition, pages 34-35). This is doubtful. Mr. Erickson’s initial statement to the police
occurred on March 10, 2004. Petitioner’s trial occurred in August, 2005, a year and a half
later. Erickson’s inculpatory testimony is not explained by his marijuana use before the
March 10, 2004 statement. Respondent further notes that petitioner introduced video of the
interviews with the police (Tr. 653, 678, 695). The jury could determine the lucidity and
Finally, petitioner contends that Erickson suffered a black-out from alcohol ingestion
on the night of the murder; thus, he does not remember anything (Petition, pages 35-40).
First, the contention is empirically refuted by Erickson’s inculpatory statements over the
course of the years before, during and after petitioner’s trial. Second, the allegation is
empirically refuted by the petition. Erickson’s February 9, 2011 affidavit states that he had
“personal and direct knowledge of the facts set forth in the affidavit” (Petitioner’s Exhibit 11,
paragraph 3). Erickson recants in this affidavit his testimony of the events of October 31-
November 1, 2001 (Petitioner’s Exhibit 11, paragraphs 19-33). He could not do that if he did
not remember.
Petitioner appears to propose to present a mental health expert about the effect of
inadmissible because it invades the province of the jury. Phrased another way, the testimony
is admissible only if it addresses a subject about which the jurors lack experience or
knowledge and would not divert the jury’s attention from relevant issues. State v. Jones, 322
S.W.3d 141 (Mo. App. W.D. 2010). In Jones, the appellate court upheld the trial court’s
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exclusion of an expert’s testimony about the general effects of cocaine and alcohol. Id. at
impeach. But that general statement does not allow extrinsic expert testimony on the effect
C. Other
Petitioner next contends that Shawna Ornt can provide useful testimony. In summary,
her current statement is not credible (Respondent’s Exhibit F, page 13). That finding was
made in the context of the Rule 29.15 trial court’s resolution of a claim that the state failed to
disclose that Ornt told the prosecutor that petitioner and Erickson were not the men that she
saw the night that Kent Heitholt was murdered. In particular, the Rule 29.15 trial court held:
Ms. Ornt testified at the evidentiary hearing that Kevin Crane, the prosecutor,
showed her pictures of Movant and Chuck Erickson during their meetings
together preparing for trial and that she told Mr. Crane that Movant and
Erickson were not the men she saw that night. Ms. Ornt also admitted that
she had been in touch with Movant’s father, they had corresponded back and
forth via e-mail and telephone, that she wanted to get in touch with Movant,
that she thought Movant looked “sweet,” that she made a video of her
memories of that night with Movant’s father, that Movant’s father in an e-
mail had solicited money to help with Movant’s defense from Ms. Ornt, and
that she had not told anyone about this statement until she began a
relationship with Movant’s father.
Kevin Crane, the former prosecutor, and Bill Haws, an investigator with the
Prosecutor’s office who was present during the pre-trial meeting with Ms.
Ornt and Kevin Crane, both testified that they never asked Ms. Ornt whether
she could identify Movant or Chuck Erickson as the persons she saw by Kent
Heitholt the night he was killed and never showed her pictures of Movant or
Erickson. Crane and Haws testified that Ms. Ornt had always indicated that
she could not identify who the individuals were that night. (This is supported
by Ms. Ornt’s testimony at her pre-trial deposition where she stated that she
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had seen Movant’s and Erickson’s photographs in the media and could not
say whether either of them were the individuals she saw that night.)
During trial as a discussion was had about whether Ms. Ornt could
identify Movant as the perpetrator, Mr. Crane admitted that he had no idea
whether Ms. Ornt would be able to identify him or not as the perpetrator (Tr.
960-961).
Charlie Rogers testified that he asked Ms. Ornt whether she had seen
the photographs of Erickson and Movant in the newspaper during a
deposition and had inquired whether she could identify them as the men she
saw outside the Tribune building that night. Ms. Ornt, during her deposition
prior to trial (and prior to any contact from Movant’s father), indicated that
she did not know whether Movant and Erickson were the two individuals she
saw that night. Moreover, this Court also notes that Ms. Ornt, during her
video with Movant’s father, admits that the individual she saw looked like
Chuck Erickson, Movant’s co-defendant. And, evidence at the evidentiary
hearing established that Ms. Ornt attempted to identify, at least initially,
multiple people as the persons she saw that night (although later determining
that they were not, in fact, the perpetrators). Ms. Ornt told Bill Ferguson,
Movant’s father, that she would not know the person that she saw at the rear
of the car if she saw them today. And, even though the deposition showed
that Ornt was asked whether she could identify Movant and Erickson as the
individuals she saw that night and she said “no” prior to trial, Ornt claimed at
the evidentiary hearing that she was never asked that question at the
deposition, which is obviously refuted by the record.
This Court finds Ms. Ornt’s testimony is not credible. Ms. Ornt’s
testimony that she waited over two years to tell anyone that two “innocent”
people went to prison for the rest of their lives and that she lied during her
deposition to the one person who was assisting Movant, is incredulous. This
Court finds Kevin Crane and Bill Haws’ testimony to be credible. This
Court finds that no Brady violation occurred because no statements were
made by Ms. Ornt that Movant and Erickson were not involved. This Claim
is denied.
(Respondent’s Exhibit F, pages 270-72). Petitioner continues with that factual assertion in
the current habeas petition (Petition, pages 42-45). But it has been considered and rejected.
Now, petitioner joins to the factual theory the contention that Ornt did not properly
testify about what one of the two men beside the victim’s car said to her. Petitioner contends
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that Ornt stated that one of the two males stated “somebody’s hurt, man” instead of
“somebody get help” in response to a leading question by the prosecutor at trial (Petition,
page 43). The record reflects, however, that Ornt’s first discussion of what the male said was
not in response to a leading question (Tr. 934). Instead, the following exchange occurred:
Q. And that was the person who spoke to you? He said, “somebody
needs help,” or something to that effect.
(Tr. 948). This “exculpatory” information does not rise to the high level contemplated by the
Supreme Court in Amrine. The jury was informed by Ornt that her recollection of the male’s
Next, petitioner contends that Kimberly Bennett can provide helpful information.
Petitioner asserts that Bennett could testify that petitioner and Erickson left the bar at 1:15
a.m. on November 1, 2001 and that Ms. Bennett left a deserted bar at 1:45 a.m. (Petition,
pages 45-46). The information from Bennett is redundant with that actually presented by
petitioner at trial. While Melissa Griggs did not state that she saw Ferguson and Erickson
leave the bar (Tr. 1715), she did testify that at closing time (1:15 a.m.), the bouncers began
pushing all the patrons out of the bar and made people leave (Tr. 1715). Further, Kristopher
Canada, a bartender, testified to that procedure as well. According to Mr. Canada, everyone
left by 1:30 a.m. (Tr. 1730-35). The testimony of a deserted bar by these witnesses was
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argued by petitioner at the closing argument (Tr. 2135). Ms. Bennett’s information does not
Petitioner contends that Michael Boyd, an African American co-worker of the victim,
was the only viable suspect (Petition, pages 47-58). The theory petitioner weaves does not
rise even to the level of “probable cause” necessary for indictment. Neither Erickson, Trump
Petitioner also presents an affidavit by Dr. Blom (Petitioner’s Exhibit 16). Petitioner
presents Dr. Blom for the proposition that strangulation would not cause the fracture of the
hyoid bone. First, Dr. Blom does not eliminate the possibility of a fracture of hyoid bone by
strangulation with a belt (Petitioner’s Exhibit 16, paragraph 4). At petitioner’s trial, Dr.
Adelstein testified to asphyxiation as being the cause of death (Tr. 1431). The breaking of
hyoid bone demonstrated that a great deal of force was required for the strangulation (Tr.
1430). That is consistent with Dr. Blom’s analysis (Petitioner’s Exhibit 16, paragraph 4).
But Dr. Blom theorizes that the hyoid bone was broken during the earlier beating
(Petitioner’s Exhibit 16, paragraph 7). Petitioner does not describe any significance to
Dr. Blom also suggests that Erickson did not use a tire iron during the beating
(Petition, page 62). Adelstein testified that some injuries required focused energy, for
example, a hammer (Tr. 1412). Other injuries were consistent with being hit by “a very
substantial object” for example a pipe, a piece of metal or a board (Tr. 1412). It takes a
substantial force to make a laceration, to make the skin split (Tr. 1413). The lack of fractures
to the bones does not preclude a substantial object making injuries to the head.
21
Dr. Blom estimates that the attack took five to ten minutes (Petitioner’s Exhibit 16,
paragraph 7). Dr. Adelstein testified that the victim’s heart continued beating two to ten
minutes after the strangulation began (Tr. 1428). There is nothing new with that information.
Next, petitioner submits an affidavit by Dr. Burgess to the effect that his view of the
crime scene suggests that it was an acquaintance murder, not a crime against an unknown
person (Petition, pages 62-64). First, such profiling evidence is inadmissible. State v. Elbert,
831 S.W.2d 646 (Mo. App. W.D. 1992). In Vittengl v. Fox, 967 S.W.2d 269 (Mo. App.
W.D. 1998), a psychologist testified that a perpetrator of violence against a tenant was a
psychopath. The court of appeals held that the testimony should have been excluded because
the expert’s testimony involved no specialized knowledge and involved only speculation. Id.
at 282. Similarly, Dr. Burgess’s affidavit involves her speculation that did not include a
Petitioner’s second ground for relief is a contention that the state adduced the false
testimony of Trump (Petition, pages 67-69). Petitioner also presents the same contention as a
discovery violation (Petition, page 71). The state denies petitioner’s allegations. There was
voluminous discovery before trial, numbering in the thousands of pages and the state
properly disclosed its contacts with Mr. Trump during the trial. That disclosure and that
information by Mr. Trump was truthful. Respondent believes that an evidentiary hearing will
The final aspect of the third ground for relief concerns Bennett (Petition, pages 69-71).
The claim is presented as a discovery claim. Respondent notes that petitioner does not
22
present a police report that was not disclosed to the defense before trial concerning Bennett.
Accordingly, petitioner fails to demonstrate any information that was not disclosed to him.
All aspects of Grounds II and III are not cognizable in a state habeas proceeding
because the ground should have been presented either on direct appeal or the post-conviction
proceeding. State ex rel. Simmons v. White, 866 S.W.2d 443 (Mo. banc 1993). Petitioner
does not allege or demonstrate good cause and actual prejudice to overcome this default.
Ground IV
Petitioner’s final ground for relief is a contention that the jury selection procedures in
Lincoln County, where his jury was drawn, departed from §§494.400-.505, RSMo. Cum.
Supp. 2005. Petitioner litigated this claim in his first state habeas corpus petition. Ryan
Ferguson v. Dave Dormire, No. 08AC-CC00721 (Cole County Circuit Court). Judge
Callahan found the circuit court’s review of the claim was barred by default (Respondent’s
Exhibit K, pages 2-7). In an alternative ruling, after an evidentiary hearing, the circuit court
found that petitioner did not show that there was a substantial failure to comply with the
statute (Respondent’s Exhibit K, pages 7-8). The Missouri Court of Appeals denied the
successive petition (Respondent’s Exhibit L). The Missouri Supreme Court then denied the
23
When a petition for a writ of habeas corpus has been denied by a
higher court, a lower court shall not issue the writ unless the order in the
higher court denying the writ is without prejudice to proceeding in a lower
court.
Neither the Missouri Court of Appeals nor the Missouri Supreme Court’s order denying the
The rule prohibiting successive petitions is clear. In response, petitioner contends that
the “law of the case” doctrine is inapplicable to state habeas litigation. Petitioner cites State
v. Graham, 13 S.W.3d 290 (Mo. banc 2000), in support of this proposition (Petition, page
74). But in Graham, the court of appeals erred in its application of the law in an earlier 1998
decision involving Mr. Graham. But the Missouri Supreme Court held that under the “law of
the case” doctrine, the error could not be relitigated in a subsequent appeal. Accordingly,
under Graham, the “law of the case” doctrine should apply and prevent petitioner’s
relitigation of his jury selection claim. Moreover, nothing in Graham purports to construe
Missouri Supreme Court Rule 91.22 which precludes a second petition where the order in the
higher court does not deny the petition without prejudice. Graham is simply inapplicable.
And to the extent it is applicable, the court enforced the “law of the case.”
The court of appeals applied Rule 91.22 in State v. Thompson, 723 S.W.2d 76 (Mo.
App. S.D. 1987). In Thompson, the offender asserted a double jeopardy due process claim
that had been previously litigated in a state habeas corpus petition. Because the state’s
Supreme Court’s denial “was not without prejudice” the appellate court was bound by the
higher court’s adjudication of the claim. Id. at 90. The history of that rule is discussed
24
extensively by the court of appeals in Hicks v. State, 719 S.W.2d 86, 88 (Mo. App. S.D.
Petitioner complains that the 2009 judgments denying his state habeas corpus petition
were without the benefit of Preston v. State, 325 S.W.3d 420 (Mo. App. E.D. 2010). Preston
does not involve a situation where an offender was attempting to litigate a second state
habeas corpus petition after being denied relief after a hearing on the first habeas corpus
petition. Missouri Supreme Court Rule 91.22. Second, petitioner contends that Preston
construed the statutory timeliness requirement for a challenge to the jury selection process
under the statute. But the decision in the first Ferguson petition concerned whether there was
cause for petitioner’s failure to present the jury selection issue properly. For there to be
cause, as Judge Callahan noted, there must be some objective factor external to the defense
that impeded counsel’s efforts to comply with the state’s procedural rule (Respondent’s
Exhibit K, page 3). And, the circuit court found that there was no objective external factor
because nothing prevented petitioner from presenting his claim at the time of trial or in a
timely post-conviction relief motion (Respondent’s Exhibit K, page 3). Preston does not
address the concept of cause and prejudice as discussed by the Missouri Supreme Court in
State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001).
Additionally, in respondent’s view, Preston was wrongly decided. Consistent with the
principles discussed in State v. Anderson, 79 S.W.3d 420 (Mo. banc 2002), the jury selection
procedures employed here substantially complied with Missouri’s statutory requirements and
25
Lastly, during the state habeas litigation, the circuit court concluded that the
requirement of randomness was fulfilled with the Lincoln County jury selection process
(Respondent’s Exhibit K, pages 7-8). Phrased succinctly, petitioner’s jury was fair.
Petitioner contends, however, that there are other statutory values such as preserving a
citizen’s obligation to serve as a juror and preserving the judicial function of making the
determination to excuse a juror (Petition, page 77). The court need not resolve that assertion.
Neither of those values concern the actual fairness of petitioner’s trial; thus, relief in the form
of a new trial by way of a writ of habeas corpus is not warranted. The purpose of the writ is
to protect an offender’s rights, and neither of the putative concerns identified in Preston
actually affect the fairness of petitioner’s trial. The fairness issue was resolved and resolved
26
Conclusion
WHEREFORE, for the reasons herein stated, respondent prays that the Court deny the
petition as to Ground 4 and deny the petition after an evidentiary hearing on Grounds 1, 2 and
3.
Respectfully submitted,
CHRIS KOSTER
Attorney General
STEPHEN D. HAWKE
Assistant Attorney General
Missouri Bar No. 35242
P. O. Box 899
Jefferson City, MO 65102
(573) 751-3321
(573) 751-3825 fax
Stephen.Hawke@ago.mo.gov
Attorneys for Respondent
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CERTIFICATE OF SERVICE
I hereby certify that a true and
correct copy of the foregoing
was mailed, postage prepaid, this
2 day of May, 2011, to:
Samuel Henderson
Attorney at Law
10 South Broadway, Suite 2000
St. Louis, MO 63102
Shane Farrow
Attorney at Law
601 Monroe Street, Suite 304
Jefferson City, MO 65101
Jayson B. Lenox
Attorney at Law
131 Jefferson Street
St. Charles, MO 63301
________________________
Stephen D. Hawke
Assistant Attorney General
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