Exclusion of Third Party Perpetrator Evidence Earns a New Trial; Concurrence Urges a New Look at Eye Witness Testimony

State v. Ferguson, Minn.S.Ct., 10/19/2011.  A jury convicted Mr. Ferguson of first degree premeditated murder of Irene Burks.  Mr. Burks raised eight separate issues on appeal but reversed on only one of them, a claim that the trial court had been wrong to exclude evidence of an alternative perpetrator.

Ms. Burks was standing outside a friend’s house,  “K.C.”, and K.C.’s daughter.  An African American man wearing a black hooded sweatshirt started running toward K.C.’s house; this man fired a gun six or more times in the general direction of K.C. and  Ms. Burks.  Ms. Burks later died at the hospital.  At the scene, K.C. further described the shooter as a black male, about five-nine, thin build, medium to dark complected.” K.C. said the shooter’s nose was “a little wider,” and he had “medium-sized lips.” She said the shooter was wearing a blue or black “hoodie.” Three witnesses saw an individual wearing a dark-colored hooded sweatshirt leaving the scene of the shooting.  K.C. later identified Mr. Ferguson during a six person sequential photographic lineup.

Mr. Ferguson asked the trial court to be allowed to introduce evidence that connected a Christopher Jennings, an acquaintance of Ms. Burks, to the shooting; the trial court denied this request.  Before getting to the factual basis for this claim, here’s a short summary of third party perpetrator evidence law:

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

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

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

(Or not so short; anyway, the facts:)  Here’s what Mr. Ferguson sought to introduce in support of his third party perpetrator defense:  The police had got a tip that the person who had shot Ms. Burks was “C.,” (get it?).  C.J. was listed in her cell phone contacts and C.J. and Ms. Burks had spoken by phone three days before the shooting.  Jennings’ description was similar to that of the shooter provided by witnesses, and Jennings drove a car that matched some of the descriptions of a car seen at the scene of the shooting.  Jennings had been arrested for possession of a firearm without a permit some four months before the shooting and he was not in custody on the date of the shooting.  This evidence – in particular Jennings’ physical appearance and that of the car – suggest that Jennings was present at the scene of the shooting.  This evidence also connected Jennings both to Burks and to the crime.  As a result the exclusion of third party perpetrator evidence was an error, and it was not harmless beyond a reasonable doubt.

Justice Paul Anderson wrote a concurring opinion in which he addressed several of the other issues that Mr. Ferguson had raised on appeal.  One was the exclusion of expert testimony on the eye witness identification.  Justice Anderson pointed out that the police had not followed the “double blind” photo lineup protocol in the administration of the photo identification, and that the identification was a significant part of the state’s case.  The Justice lauds the recent New Jersey opinion, State v. Henderson, 2011 WL 3715028 (N.J. 8/24/2011), as destined “to become an important benchmark on the limitations of eyewitness identification”.  There’s plenty of good language here to support a request for introduction of such expert testimony.