State of Maine v. Thomas Ferguson

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 10
Docket: Pen-18-13
Argued: December 11, 2018
Decided: January 24, 2019

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

STATE OF MAINE

v.

THOMAS FERGUSON

MEAD, J.

[¶1] On November 27, 2015, Robert Kennedy was shot to death in an

apartment on Center Street in Bangor; Barry Jenkins was seriously wounded in

the attack. Thomas Ferguson appeals from a judgment of conviction for

Kennedy’s murder, 17-A M.R.S. § 201(1)(A) (2017), and the elevated

aggravated assault on Jenkins (Class A), 17-A M.R.S. § 208-B(1)(A) (2017),

entered by the trial court (Penobscot County, Anderson, J.) following a bench

trial. Ferguson contends that (1) the evidence was insufficient to support the

court’s factual findings, as well as its ultimate finding that he was at least an

accomplice in the murder of Kennedy and the shooting of Jenkins; (2) he was

denied due process when the State allowed Jenkins to perjure himself when

testifying at the trial; (3) the court improperly allowed two witnesses to
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identify him in court; and (4) the court erred in certain evidentiary rulings.

Discerning no error, we affirm the judgment.

I. FACTS AND PROCEDURE

A. Facts

[¶2] Following a jury-waived trial, the court made extensive findings of

fact beyond a reasonable doubt. We review those findings for clear error,

“uphold[ing] them if supported by competent evidence in the record.” State v.

Wilson, 2015 ME 148, ¶ 13, 127 A.3d 1234.

[¶3] The court found that on November 27, 2015, at about 3:30 a.m.,

Karen Patchell was in her apartment at 201 Center Street in Bangor with Robert

Kennedy and Barry Jenkins; another woman who had been at the apartment

that day, Tera Choquette, was outside. Two men, Robert Hansley and Thomas

Ferguson, quickly walked by Choquette, entered the building, and went up the

stairs to Patchell’s apartment, planning to kill Kennedy.

[¶4] Ferguson had a “very strong, intense” dislike of Kennedy based on a

previous physical fight and a belief that Kennedy was a “rat or snitch” due to an

encounter Ferguson, Hansley, and Kennedy had with Brewer police that had

resulted in Kennedy being arrested. Raised voices were heard in the apartment,

and within a few seconds at least nine shots were fired by either Hansley or
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Ferguson from a Bersa .40 caliber pistol, killing Kennedy and seriously

wounding Jenkins. Ferguson had obtained the pistol as payment for a drug

debt.

[¶5] Hansley and Ferguson rushed out and fled. At about 3:45 a.m., a

video camera at the federal building in Bangor recorded two people fitting their

description walking from the general direction of Center Street in the general

direction of Hammond Street. Ferguson’s friend, Brittany,1 lived on Hammond

Street, and she had arranged for him to get the key to her apartment the

previous day so that he could stay there while she was away for Thanksgiving.

The court found, based on DNA evidence, the unique way in which they were

packaged, and their proximity to each other, that sometime after the shooting

Ferguson was involved in separately wrapping the murder weapon and a

sawed-off shotgun in foil and a plastic bag; additionally wrapping the pistol in

a newspaper dated November 20, 2015; and then storing the weapons on a high

shelf in Brittany’s closet.2 When Brittany returned from Florida several hours

1 For this person and one other, this opinion will use first names out of respect for their privacy.

2 A State Police Crime Laboratory witness testified that DNA found on the interior of the foil in

which the shotgun was wrapped was consistent with Ferguson’s; Ferguson is African-American, and
the random probability of the same result using the FBI’s African-American database was 1 in 2,590.
DNA found on the shotgun’s barrel matched Ferguson’s; the estimated random probability of a match
using the FBI’s African-American database was 1 in 22.6 million. Ferguson’s DNA was not found on
the pistol.
4

after the shooting, Ferguson was at her apartment. He left later that afternoon

and returned with Hansley.

[¶6] Ferguson and Hansley had also been together for some time before

the shooting. At 1:40 a.m. on November 27, the day of the shooting, a video

camera at the Bangor Mall recorded them Christmas shopping. Shortly after

that, Ferguson waited in a cab while Hansley sold drugs in the parking lot to

Mariah, whom Hansley met when leaving the mall. Minutes later, Ferguson was

the primary actor when he and Hansley sold drugs at a convenience store.

Ferguson and Hansley left the store in a cab around 2:33 a.m. and were dropped

off at Brittany’s apartment between 2:40 and 2:45 a.m., forty-five to fifty

minutes before the shooting. The court found that the distance between

Brittany’s Hammond Street apartment and the scene of the shooting on Center

Street could be “easily” covered in forty-five minutes. Cell phone records were

not definitive, but were consistent with Ferguson being in the area of Center

Street when Kennedy and Jenkins were shot.

[¶7] On the afternoon following the shooting, Hansley contacted Mariah

to negotiate for a ride to Portland. She agreed, and at about 6:00 p.m. she picked

up Hansley and Ferguson at Brittany’s apartment and drove in the direction of

I-95. Bangor police had been surveilling the apartment. Before Mariah's car
 5

reached the highway, police stopped the vehicle and arrested Hansley and

Ferguson. When interviewed by police, Ferguson lied about (1) being with

Hansley at the Bangor Mall early that morning, (2) having any involvement in

the shooting, and (3) being on his way to Portland when he was arrested.

B. Procedure

[¶8] Ferguson was charged by complaint with murder, 17-A M.R.S.

§ 201(1)(A), and elevated aggravated assault (Class A), 17-A M.R.S.

§ 208-B(1)(A). A subsequent indictment added a third charge of tampering

with a victim (Class B), 17-A M.R.S. § 454(1-B)(A) (2017), which was dismissed

by the State on the first day of trial. Ferguson pleaded not guilty and counsel

was appointed, followed later by the appointment of co-counsel.

[¶9] Ferguson moved to suppress any in-court identification of him by

Choquette or Patchell on the ground that their out-of-court identifications

resulted from suggestive circumstances and were therefore unreliable.

Following a hearing, the court denied the motion. Ferguson also demanded a

speedy trial pursuant to article I, section 6 of the Maine Constitution,3 and

shortly thereafter waived his right to a jury trial. Based in part on the speedy

trial demand, and over the State’s objection, the court granted Ferguson’s

3 The Constitution of Maine provides that “[i]n all criminal prosecutions, the accused shall have a

right . . . [t]o have a speedy, public and impartial trial.” Me. Const. art. I, § 6.
6

motion for relief from prejudicial joinder and ordered that he be tried

separately from Hansley.

[¶10] A bench trial was held May 24-26, May 31-June 2, and June 5, 2017.

On June 28, the court convened a hearing at which it announced its verdict of

guilty on the remaining charges of murder and elevated aggravated assault. At

a sentencing hearing on January 8, 2018, the court denied Ferguson’s motions

for a judgment of acquittal and for dismissal, entered judgment, and sentenced

Ferguson to fifty years’ incarceration on the murder count and twenty-five

years, to run concurrently with the sentence for murder, on the elevated

aggravated assault count. Ferguson timely appealed the convictions. He did

not appeal from the sentence.

II. DISCUSSION

A. Sufficiency of the Evidence

[¶11] Ferguson asserts that the evidence was insufficient to support

three of the court’s factual findings, as well as its ultimate finding that he was

at least Hansley’s accomplice in the murder of Kennedy and the aggravated

assault on Jenkins. The applicable standards of review are well established:

In reviewing a conviction, we view the evidence admitted at
trial in the light most favorable to the State to determine whether
the fact-finder could rationally have reached its findings beyond a
reasonable doubt. Because the court here specifically found facts
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in reaching its verdict, we review those findings for clear error and
will uphold them if supported by competent evidence in the record.
In a nonjury trial, the court is free to determine which witnesses to
believe and which evidence to accept or reject as trustworthy or
untrustworthy as long as there is evidence by which a fact-finder
could rationally conclude, beyond a reasonable doubt, that the
crime was committed.

Wilson, 2015 ME 148, ¶ 13, 127 A.3d 1234 (footnote, citations, and quotation

marks omitted). “Any conflicts in evidence are resolved in favor of the State.”

State v. Allen, 2006 ME 20, ¶ 26, 892 A.2d 447.

1. Factual Findings

[¶12] Ferguson challenges the court’s findings that (1) he sold drugs

with Hansley on two occasions in the early morning hours of

November 27, 2015; (2) he “stormed” into Patchell’s apartment together with

Hansley just before the shooting; and (3) he participated in wrapping the pistol

that had been used to commit the crimes and that was found in Brittany’s closet.

Each finding is supported by competent evidence in the record; accordingly,

none is clearly erroneous. See Wilson, 2015 ME 148, ¶ 13, 127 A.3d 1234.

[¶13] The court’s finding that Ferguson participated in drug sales with

Hansley was supported by the testimony of the buyer in the case of one sale,

and by the testimony of the driver of the car in which the deal was

consummated in the other. The court’s finding that Ferguson and Hansley
8

entered Patchell’s apartment together was supported by the testimony of three

witnesses: Patchell, who was inside the apartment; Choquette, who was outside

the apartment; and Jenkins, who was in the living room and saw Ferguson and

Hansley enter before he was shot.

[¶14] Finally, although the court acknowledged that Ferguson was not

directly linked to the murder weapon by DNA or fingerprint evidence, it found

by circumstantial evidence, as it was entitled to do, that he was connected to

the handgun. See State v. Coleman, 2018 ME 41, ¶ 30, 181 A.3d 689 (“We have

repeatedly said that a criminal conviction may be based solely on

circumstantial evidence . . . .” (alteration and quotation marks omitted)). The

circumstantial evidence cited by the court included that Ferguson acquired the

handgun in payment of a drug debt; that the handgun was discovered on a high

closet shelf in the apartment of a woman whom Ferguson described to police

as his “girlfriend,” and where Ferguson had stayed the night before the

shooting; and that it was wrapped “in a very similar distinctive manner” as a

sawed-off shotgun located next to it, which was directly linked to Ferguson by

DNA evidence found on both the foil used to wrap the shotgun and on its barrel.

See supra n.2. From that evidence, the court could infer that Ferguson “was

involved in the wrapping and the storage of the murder weapon in the
 9

apartment he was using for the night after the murder weapon was used to kill

Mr. Kennedy and injure Mr. Jenkins.” See Coleman, 2018 ME 41, ¶ 30,

181 A.3d 689 (stating that the fact-finder could “rationally infer[]” the

existence of a fact beyond a reasonable doubt “based on the circumstantial

evidence presented at trial”).

2. Accomplice Finding

[¶15] Ferguson also challenges the court’s ultimate finding that, at the

very least, he was “guilty as an accomplice to the murder of Mr. Kennedy and

the elevated aggravated assault against Mr. Jenkins.” In State v. Anderson, we

said that

[a] person is guilty as an accomplice of a crime committed by
another person if he or she “aids or agrees to aid or attempts to aid
such other person in planning or committing the crime,” and has
the “intent of promoting or facilitating the commission of the
crime.” 17-A M.R.S. § 57(3)(A) [2017]. The State must prove
something more than the defendant’s mere presence, but need not
prove an overt act of physical assistance. Once presence is proven,
accomplice liability may attach upon the State’s proof of any
conduct promoting or facilitating, however slightly, the
commission of the crime.

2016 ME 183, ¶ 20, 152 A.3d 623 (alteration, citation, and quotation marks

omitted); see 17-A M.R.S. § 57 (2017).

[¶16] From its supported factual findings, the court concluded beyond a

reasonable doubt that Ferguson was at least an accomplice to the crimes
10

because he had a motive; he was with Hansley—who was linked to the murder

weapon by fingerprint and DNA evidence—before, during, and after the

shooting; he originally obtained the murder weapon and was involved in

packaging and hiding it after the shooting; he was identified by Jenkins as one

of his assailants; he attempted to flee to Portland with Hansley within hours of

the shooting; and he falsely denied any involvement to police when he was

interviewed following his arrest. That evidence, viewed in the light most

favorable to the State, see Wilson, 2015 ME 148, ¶ 13, 127 A.3d 1234, allowed

the court to rationally find that Ferguson had engaged in “conduct promoting

or facilitating, however slightly, the commission of the crime.” Anderson,

2016 ME 183, ¶ 20, 152 A.3d 623 (quotation marks omitted).

B. Jenkins’s Testimony

[¶17] Ferguson argues that the State’s attorneys suborned perjury by

calling Jenkins as a witness knowing that he would testify that both Hansley and

Ferguson were armed and shooting during the attack, although the ballistics

evidence indicated that a single firearm, the Bersa pistol, fired all of the rounds

recovered, and only Hansley was connected to that weapon by forensic

evidence. From this, Ferguson asserts that “[t]he State’s willingness to put such

a liar on the stand even after they knew he was lying fundamentally violated
 11

Mr. Ferguson’s ability to defend himself” and charges that “the State suborned

[Jenkins’s] perjury.”

[¶18] Ferguson is correct only to the extent that “a conviction obtained

through use of false evidence, known to be such by representatives of the State,

must fall under the Fourteenth Amendment.” State v. True, 2017 ME 2, ¶ 17,

153 A.3d 106 (alteration and quotation marks omitted) (emphasis added).

He bears the burden of persuasion:

As a threshold matter, a defendant must satisfy the basic and
fundamental burden of demonstrating that the information
delivered at trial was perjured—not merely inconsistent with
other evidence or previous testimony. A showing that trial
testimony is inconsistent with other testimony or evidence does
not, standing alone, demonstrate that evidence presented to the
fact-finder contained intentional inaccuracies or that there had
been a knowing use of false testimony. Such inconsistencies
present issues of credibility and call for the weighing of conflicting
or inconsistent evidence—a task that falls solidly within the
province of the . . . fact-finder. The [fact-finder] is permitted to
draw all reasonable inferences from the evidence and is free to
selectively accept or reject testimony presented based on the
credibility of the witness or the internal cogency of the content.
The [fact-finder] may believe some parts of witness testimony to
the exclusion of others, and may combine testimony in any way.

Id. ¶ 19 (alteration, citations, and quotation marks omitted).

[¶19] The trial court performed its proper role here—it critically

analyzed Jenkins’s testimony by examining both its inconsistencies and its

corroborating support, then accepted some parts of it and rejected others in
12

finding the facts that led to its verdict. Ferguson “has not . . . demonstrated that

any particular testimony about the events was perjured, much less that any

perjured testimony contributed to the [court’s] verdict.” Id. ¶ 20. An error in a

witness’s perception or recall of events, which is all that the record supports

here, is not “a false material statement [made] under oath . . . not believ[ing] the

statement to be true.”4 17-A M.R.S. § 451(1)(A) (2017). Accordingly, Ferguson

has not even come close to meeting his burden of demonstrating a Fourteenth

Amendment due process violation. See True, 2017 ME 2, ¶ 17, 153 A.3d 106.

C. In-Court Identifications

[¶20] Ferguson next contends that the court erred in allowing Choquette

and Patchell to identify him in court because they were only able to do so as the

result of suggestive circumstances facilitated by police prior to trial. Ferguson

moved to suppress the identifications, asserting that his identity was suggested

to Choquette when she overheard Jenkins tell a police officer as they rode to the

hospital in an ambulance that Ferguson had shot him, and that Patchell’s

4 The accusation that an attorney has suborned perjury is a grave and serious matter and should

not be leveled when, as here, the sole basis for the claim of perjury is the existence of evidence—
including strong or compelling evidence—that is simply contrary to, or inconsistent with, the
testimony given at trial. Counsel is reminded that “the consequences of . . . acerbic shrillness in the
pleadings can also include revocation of pro hac vice privileges.” Order at 2-3, HouseCanary, Inc. v.
Quicken Loans, Inc., No. SA-18-CV-0519-FB (W.D. Tex. Aug. 14, 2018), ECF No. 47.
 13

identification was tainted by a police follow-up interview of Jenkins conducted

at Patchell’s apartment where she was present.

[¶21] The court denied the motion to suppress, finding that “neither

procedure was suggestive to the extent that the State should not be permitted

to ask questions concerning identity of the two witnesses.” The court’s factual

findings are reviewed for clear error, State v. Nigro, 2011 ME 81, ¶ 21,

24 A.3d 1283, and its ultimate decision to admit the identification testimony is

reviewed for an abuse of discretion, State v. Davis, 2018 ME 116, ¶ 32,

191 A.3d 1147. Although a showing of highly suggestive behavior need not

necessarily involve police misconduct, Ferguson bore the initial burden of

“prov[ing] by a preponderance of the evidence that the circumstances

surrounding the witness’s identification of him were suggestive.” Davis,

2018 ME 116, ¶¶ 25, 30, 191 A.3d 1147.

[¶22] The matter before us does not involve the identification of an

individual unknown to the witnesses. Choquette testified at the suppression

hearing that before entering the ambulance she told police that “Ferg” had gone

into Patchell’s apartment. Regarding Patchell’s identification, at the hearing the

detective who conducted the interview with Jenkins at her apartment testified

that he initially asked her to go into another room located at the end of a
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twenty-foot-long hallway and he did not see her again during the interview.

Furthermore, before identifying Ferguson at trial, Patchell testified that she met

Ferguson in the summer of 2015, well before the November shooting.

Accordingly, the court did not err in finding that neither witness’s identification

was “tainted by suggestive circumstances creating a substantial likelihood of

irreparable misidentification.” Id. ¶ 27 (quotation marks omitted). Ferguson

remained free to argue the reliability of the identifications and the weight that

the court should give them, which, as demonstrated by the court’s factual

findings, he did with some success. See id. ¶ 29.

D. Evidentiary Rulings

[¶23] Finally, Ferguson contends that the court erred in admitting

evidence (1) of the sawed-off shotgun, (2) that he was involved in drug dealing,

(3) that the murder weapon had previously been stolen and given to him in

payment of a drug debt, and (4) concerning the location of his cell phone when

the crime was committed. “We review a trial court’s decision to admit evidence

of prior bad acts pursuant to M.R. Evid. 404(b) for clear error, and its

determination pursuant to M.R. Evid. 403 for an abuse of discretion.” State v.

Pillsbury, 2017 ME 92, ¶ 22, 161 A.3d 690. The court’s relevance
 15

determinations are reviewed for clear error. State v. Haji-Hassan, 2018 ME 42,

¶ 13, 182 A.3d 145.

[¶24] We discern no error or abuse of discretion in the court’s careful

rulings that each aspect of the challenged evidence was relevant and admissible

for proper purposes. See State v. Maderios, 2016 ME 155, ¶ 9, 149 A.3d 1145

(“[E]vidence of prior bad acts is admissible for limited purposes other than to

prove propensity, in that Rule 404(b) does not render inadmissible evidence of

other crimes, wrongs, or acts if the evidence is offered to demonstrate motive,

intent, identity, absence of mistake, or the relationship of the parties.”

(quotation marks omitted)).

[¶25] Moreover, the potential for prejudice was lessened because this

was a bench trial. The court stated that it would not consider evidence of bad

acts “to show that a defendant might have acted in conformity therewith in the

future by committing this crime,” see Steadman v. Pagels, 2015 ME 122, ¶ 20,

125 A.3d 713, and we have noted that

[i]t is trial judges’ experience and training, and their long tradition
of professionalism, that give rise to the firmly established rule that
a court learned in the law is presumed to render its decision on the
evidence in the case which is legally admissible even though
inadmissible testimony be received. This presumption must be
rebutted before the reception of such evidence by the court will be
deemed prejudicial.

16

MacCormick v. MacCormick, 478 A.2d 678, 683 (Me. 1984) (quotation marks

omitted). Ferguson has not rebutted the presumption here.

The entry is:

Judgment affirmed.

James M. Mason, Esq., Handelman & Mason LLC, Brunswick, and Justin C. Bonus,
Esq. (orally), Forest Hills, New York, for appellant Thomas Ferguson

Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine

Penobscot County Unified Criminal Docket docket number CR-2015-4405
FOR CLERK REFERENCE ONLY