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State v. Ferguson

Supreme Court of Maine

January 24, 2019

STATE OF MAINE
v.
THOMAS FERGUSON

          Argued: December 11, 2018

          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

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

          MEAD, J.

         [¶l] 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 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, "upholding] 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 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 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 1-95. Bangor police had been surveilling the apartment. Before Mariah's car 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(l-B)(A) (2017), which was dismissed by the State on the first day of trial. Ferguson ...


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