Ferguson v. State, Minn.S.Ct., 2/17/2013. A jury convicted Mr. Ferguson of first degree premeditated murder. The essential facts are these:
On December 7, 2004, three men — Kentrell Green, Johntaye Hudson, and Ferguson — kicked open the door to an apartment in Minneapolis and opened fire on its occupants, killing Joseph Papasadora and injuring Ernest Houle and Gordon Hill. The apparent reason for the attack was to retaliate against Collin Goodwin,the intended target of the shooting, who had assaulted a friend of the three men earlier that day. As it turned out, Goodwin was not present at the apartment when the three men attacked the apartment’s occupants.
After trial, Mr. Ferguson presented some evidence – a memorandum from a defense investigator – that Mr. Green had recanted his testimony against him:
It should be noted that on May 2, 2006, at 1:00 p.m., [Ferguson’s trial counsel] and Michael Grostyan interviewed Kentrell Green, at Stillwater State Prison. Mr. Green informed us that our client, Jermaine Ferguson, was not present at the scene of the murder that he is serving time for. He indicated that he told the authorities and I believed [sic] he testified also that Jermaine Ferguson was present. His explanation for doing that was that the police threatened to take the children away from the children’s mother, Judonna Parker, and they also threatened to send Ms. Parker to prison for her potential involvement.
The post conviction court said that this was “insufficient indicia of the trustworthiness of recantation” to require a hearing on the claim, and the supreme court agreed. Mr. Ferguson then filed another petition, this time with an affidavit from Mr. Green, which stated, in part:
[W]hile in costody [sic] on the case that I’m currently incarcerated for, I was not fully truthful on the facts pertaining to this case. . . . I was told that I would lose my son and do life in prison if I didn’t give the police JERMAINE FERGUSON. I told them that he was not with me but they continued to say that they wanted Ferguson and that they did not care about anybody else. So from the stress and my lack of knowledge in the law, I lied and said that Jermaine Ferguson was with me at the sceen [sic] of the crime, which he never was and I told the police that the first time.
Under protest – reversal and remand – the post conviction court eventually held an evidentiary hearing on this claim. Wouldn’t you know it, Mr. Green refused to testify. So, Mr. Ferguson offered his affidavit instead. The post conviction court would not admit the affidavit, concluding that it was hearsay, but said that even if it did admit it it still wasn’t trustworthy.
Justice Stras agrees that the affidavit is not admissible under Rule 804(b)(3) because it lacked corroboration, a requirement of the rule:
First, the court must determine if the declarant was unavailable to testify at trial. Second, the court must determine that the statement must “at the time of its making. . . so far [tend] to subject the declarant to civil or criminal liability . .. that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Third, the court must scrutinize the statements to avoid violating the Confrontation Clause.
Justice Stras says that whether “corroborating circumstances” exist is to be determined under a “totality of circumstances” analysis, but he then identifies six factors to consider:
(1)whether other evidence corroborates the facts in the hearsay statement; (2) the extent to which the hearsay statement is consistent with the declarant’s prior testimony and other statements; (3) the relationship between the declarant and other witnesses and parties, including the defendant; (4) whether the declarant has reason to fabricate the statement; (5) the overall credibility and character of the declarant; and (6) the timing of the statement.
He then considers those factors and agrees with the post conviction court’s conclusion.
The court then rejects a claim of ineffective assistance of counsel during the post conviction proceedings because no such right exists. Coleman v. Thompson, 501 U.S. 722 (1991). Even under the state constitution, a defendant who has been represented by counsel on direct appeal has no state constitutional right to assistance of counsel – effective or otherwise – in a post conviction proceeding. Barnes v. State, 768 N.W.2d 359 (Minn. 2009).
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