IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI

STATE EX REL. RYAN )

FERGUSON, )
)
Petitioner, )
)
v. ) No. 11AC-CC00068
)
DAVE DORMIRE, Warden, )
Jefferson City Correctional Center, )
)
Respondent. )

RESPONSE TO ORDER TO SHOW CAUSE WHY

A WRIT OF HABEAS CORPUS SHOULD NOT BE GRANTED

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.

Statement of Custody and Parties

Named petitioner, Ryan Ferguson, is currently incarcerated at the Jefferson City

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

Supreme Court Rules 91.01, .04, .07.

 Statement of Exhibits

1. Respondent's Exhibit A is a copy of the trial transcript.

2. Respondent's Exhibit B is a copy of the direct appeal legal file.

3. Respondent's Exhibit C is a copy of the petitioner’s brief on direct appeal.

4. Respondent's Exhibit D is a copy of the state’s brief on direct appeal.

5. Respondent's Exhibit E is a copy of the opinion of the Missouri Court of Appeals,

Western District, affirming the conviction and sentence.

6. Respondent's Exhibit F is a copy of the post-conviction appeal legal file.

7. Respondent’s Exhibit G is a copy of the transcript of the post-conviction

evidentiary hearing.

8. Respondent’s Exhibit H is a copy of petitioner’s brief on post-conviction appeal.

9. Respondent's Exhibit I is a copy of the state’s brief on post-conviction appeal.

10. Respondent’s Exhibit J is a copy of the opinion of the Missouri Court of Appeals,

Western District, affirming the denial of post-conviction relief.

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).

12. Respondent’s Exhibit L is a copy of the order in In re Ryan Ferguson v. Dave

Dormire, No. 70818 (Mo. App. W.D.).

13. Respondent’s Exhibit M is a copy of the order in State ex rel. Ryan Ferguson v.

Dave Dormire, No. 90095 (Missouri Supreme Court).

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

husband had been found dead, "beaten to death" (Tr. 462-463).

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

3
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

was around 2:08 a.m. (Tr. 1061)).

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

Erickson returned to petitioner's car (Tr. 564).

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

accomplished that" (Tr. 573).

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,

petitioner and Erickson interacted less often (Tr. 578).

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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

dreamlike (Tr. 583-584).

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.

That's not something somebody can forget" (Tr. 592).

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

agreed to testify against petitioner as part of a plea agreement (Tr. 614-615).

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

7
beside the victim's car (Tr. 1022, 1032). He informed the prosecutor (Tr. 1027). He later

identified petitioner in court (Tr. 1029).

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

robbery (Tr. 2230-2231).

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

sentences consecutively (Tr. 2254).

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.

8
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

present. After hearing, the court should deny relief.

Ground I

Petitioner’s first ground in the petition is that he should be discharged because he is

“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….

The burden of establishing a fact by clear and convincing evidence is

heavier than the “preponderance of the evidence” test of ordinary civil cases
and is less than the “beyond reasonable doubt” instruction that is given in
criminal cases. Evidence is clear and convincing when it “instantly tilts the
scales in the affirmative when weighed against the evidence in opposition,
and the fact finder’s mind is left with an abiding conviction that the evidence
is true.”

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Id. at 548.

In contrast to the freestanding innocence epitomized by Amrine is the “actual

innocence” standard used in habeas corpus practice by offenders to overcome a procedural

default from the offender’s failure to raise a constitutional challenge to a conviction in a

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

order for the procedural bar to be lifted.

To be credible, such a claim requires petitioner to support his

allegations of constitutional error with new reliable evidence - - whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts or critical
physical evidence - - that was not presented at trial. Because such evidence
is obviously unavailable in the vast majority of cases, claims of actual
innocence are rarely successful.

Schlup v. Delo, 513 U.S. 298, 324 (1995).

A. Jerry Trump

Initially, petitioner contends that one of the state’s witnesses at trial, Jerry Trump (Tr.

965) has recanted (Petition, pages 11-19). He has not.

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

10
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

observed that night (Tr. 1028-29).

Petitioner did not call Jerry Trump to testify at the post-conviction proceeding

(Respondent’s Exhibit G).

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

11
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

competent to give from the witness stand.

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

petitioner’s characterization of Trump’s affidavits, there is no “recantation” of his

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

12
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

Ferguson did these offenses (Notice Exhibit I, page 623).

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

(Notice Exhibit H, pages 253-65).

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.

13
criminal action, Erickson agreed to provide truthful and complete testimony at Ferguson’s

trial (Ferguson’s Exhibit 18).

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

Exhibit H, pages 198-206, 208-13).

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 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

statements and testimony (Notice Exhibit A, pages 8-9, 13, 14).

Instead, in the petition filed with this Court, Ferguson now presents what purports to

be a “recantation” of Erickson’s trial testimony (Petition, pages 21-22; Ferguson’s Exhibit

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).

Generally, courts look on recanted evidence with suspicion. In re Davis, at *47.

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

15
 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

extensively during cross-examination (Tr. 627-859). Erickson’s inculpatory statements

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

Erickson to issue his latest statements.

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

introduced the plea agreement in an attempt to impeach Erickson.

16
 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

credibility of Mr. Erickson at his March 10, 2004 interview.

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

alcohol consumption on a witness’s memory (Petitioner’s Exhibit 19). This testimony is

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

17
exclusion of an expert’s testimony about the general effects of cocaine and alcohol. Id. at

145. This testimony is a classic example of a collateral issue. Undoubtedly alcohol

consumption is relevant and provable by cross-examination or extrinsic evidence in order to

impeach. But that general statement does not allow extrinsic expert testimony on the effect

of alcohol upon an individual.

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 what do you recall that person saying?

A. He looked at me and he said, “somebody’s hurt. Get help.” Along

those lines.

(Tr. 934). On cross-examination, petitioner questioned as follows:

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

statement was “something to that effect.”

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

add to that already presented by petitioner at trial.

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

nor Ornt identify Boyd as the perpetrator.

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

whether the hyoid bone was fractured by a striking or by strangulation.

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.

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 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

review of the entire record (Petitioner’s Exhibit 31).

Grounds II and III

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

resolve these allegations against petitioner.

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.

Moreover, petitioner fails to demonstrate prejudice. As discussed earlier, Bennett’s

testimony is cumulative to that actually presented by petitioner at trial. Petitioner fails to

show prejudice from the alleged failure to disclose.

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.

State ex rel. Nixon v. Jaynes, 63 S.W.3d 210 (Mo. banc 2001).

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

second successive petition (Respondent’s Exhibit M).

Missouri Supreme Court Rule 91.22 governs this situation.

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 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

writ was without prejudice.

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.

1986), which is cited in Thompson.

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

could not be shown to prejudice petitioner’s right to a fair trial.

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 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

against petitioner in the initial state habeas litigation.

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 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

Kathleen Zellner &

Douglas Johnson
2215 York Road, Suite 504
Oak Brook, IL 60523

________________________
Stephen D. Hawke
Assistant Attorney General

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