2011-192             State of Minnesota, Respondent, vs. Calvin Ferguson, Appellant.

MAJORITY:  The district court erred when it excluded evidence that had an inherent tendency to connect an alternative perpetrator to the shooting of the victim because the evidence showed that the alternative perpetrator’s physical description was in several ways similar to the description of the shooter, the alternative perpetrator’s vehicle matched the description of the shooter’s vehicle, the alternative perpetrator’s nickname matched that of the shooter, and the alternative perpetrator had a connection with the victim.    Reversed and remanded

Calvin Ferguson was convicted in Hennepin County District Court of first-degree premeditated murder for the death of Irene Burks.  The court then sentenced Ferguson to life in prison without any possibility of release.  Ferguson has appealed his conviction and raises eight separate issues.  On appeal, Ferguson argues that (1) the district court abused its discretion by admitting hearsay evidence that “C.J.” or “B.J.” (Ferguson’s street names) shot Burks; (2) the court abused its discretion by allowing into evidence Ferguson’s bad acts testimony from another trial; (3) the State committed prosecutorial misconduct; (4) the court erred by precluding Ferguson from calling an expert witness on eyewitness identification; (5) the court abused its discretion by excluding evidence of an alternative perpetrator; (6) the court erred by limiting Ferguson’s impeachment of a witness; (7) the court erred by refusing to instruct the jury on circumstantial evidence; and (8) the cumulative effect of trial errors deprived him of a fair trial.  We reverse on the alternative perpetrator issue and remand for a new trial.

CONCUR:  Justice Paul Anderson concurred with himself: “I agree with the majority of our court that Ferguson is entitled to a new trial based on the erroneous exclusion of the alternative perpetrator evidence.  Nevertheless, I write separately because I believe that several other remaining issues raised by Ferguson warrant the court’s attention.

First, as admitted, the B.J. and C.J. hearsay testimony (tips by the victim’s mother as to the identity of the killer which were followed by the mother’s direct testimony at trial)) presented a risk of unfair prejudice because of the danger that the jury would misuse the testimony for its truth.  Moreover, the testimony was of marginal probative value to establish the context of a police investigation.  I would conclude that, under the Minn. R. Evid. 403 balancing test, the probative value of the testimony was substantially outweighed by the danger of unfair prejudice.  Thus, the district court should not have admitted the B.J. and C.J. hearsay testimony.

Second, I would hold that the district court erred by allowing admission of Ferguson’s own federal testimony about his own role as a crack dealer in the neighborhood of this killing.

Third, Ferguson argues that the State committed misconduct by eliciting testimony from Folkens that Folkens knew Ferguson from his work in the gang unit and in narcotics.  Before trial, Ferguson asked the district court to preclude Folkens from referring to Ferguson’s prior contacts with the police when Folkens testified about why he knew that Ferguson went by the names B.J. and C.J.  I would conclude that the questions referencing Folkens’s experience with gangs and narcotics were improper because they suggested that Folkens knew Ferguson from this context and thus violated the court’s pretrial order regarding testimony of Ferguson’s prior police contacts.  Moreover, the State’s reference to Folkens’s 21 years of experience in the neighborhood does not excuse the State’s direct violation of the court’s order. 

Fourth, Ferguson also argues that the State committed misconduct by stating: [K.C.’s] ability to observe that individual and then ultimately make this identification is corroborated.  It’s corroborated by [K.C.’s daughter] who says, my mom was standing next to me at the time she saw the defendant.  [W.O.], who saw the defendant running across the street after [K.C.] saw him shoot Ms. Burks.  [O.M.], who saw the defendant get out of the car.”

Neither witness identified Ferguson so the State’s suggestion in its closing statement that three eyewitnesses were able to corroborate K.C.’s eyewitness identification of Ferguson is unsupported by the record and did not constitute a reasonable inference based on the evidence.  Therefore, I would conclude that the State made misstatements with respect to the evidence and that these misstatements constituted prosecutorial misconduct.  

Fifth, Ferguson also argues that the district court abused its discretion by limiting his ability to impeach Derrick Johnson with testimony by Folkens that Johnson had a reputation for untruthfulness.  I trust that on remand, the foundation requirement will be applied and the reputation evidence will be admitted if

Ferguson can lay a proper foundation with evidence showing that Folkens had sufficient knowledge of Johnson’s reputation.

Sixth, Ferguson also argues that the district court abused its discretion by limiting his ability to impeach Derrick Johnson with Johnson’s statement that Ferguson denied involvement in the shooting.  I would hold that the district court abused its discretion when it precluded Ferguson from impeaching Johnson with his prior statement that Ferguson had denied responsibility for the shooting.

Seventh, Ferguson also argues that the district court abused its discretion by limiting his ability to impeach Derrick Johnson with evidence that Johnson had a conviction for “accomplice after the fact to first-degree murder.”  Evidence impeaching Johnson’s testimony was relevant, and its admission was not prohibited by any legal authority.

Eighth, Ferguson argues that the district court abused its discretion by prohibiting him from calling an expert witness to testify about the unreliability of eyewitness identification.  If f Ferguson offers eyewitness identification expert testimony on remand, I hope that the district court will carefully consider whether the defects in the photo lineup procedure used here and the recent developments in social science require admission of eyewitness identification expert testimony and/or a cautionary jury instruction. 

Ninth, given our court’s decision to reverse and remand for a new trial, I conclude it is important to note that the admission of the statement of Burks’s niece presents a potential confrontation problem.  Although Ferguson does not make this argument, I nevertheless address this issue to provide guidance to the district court on remand, and to highlight my concerns about the admission of this testimony.

On remand, I trust that during Ferguson’s new trial, the district court will carefully consider whether

the admission of out-of-court statements by Burke’s niece that C.J. or B.J. shot Burks violates Ferguson’s confrontation rights under the United States Constitution.   

Paul Anderson (Gildea, Page, Meyer, Barry Anderson, Dietzen and Stras)

Concur:  Paul Anderson (concurs with himself)

[MURDER]