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DAVE DORMIRE, Warden, Jefferson City Correctional Center, Respondent. ) ) ) ) ) ) ) ) ) )
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. On February 14, 2011, the Petitioner filed his petition for writ of
habeas corpus pursuant to Rule 91. 2. On July 22, 2011, this Court dismissed Claim 4 of the petition
after briefing by the parties. 3. Following various pretrial proceedings, the Court held a hearing
beginning on April 16, 2012, lasting five days and concluding on April 20, 2012. Petitioner appeared in person and by counsel, Ms. Kathleen Zellner and Mr. Douglas Johnson. Members of the Missouri Attorney General‟s Office represented Respondent Dormire. 4. At the request of the parties, the Court allowed the parties until
June 15, 2012, to file proposed findings of fact and conclusions of law. 5. With regard to Claim 4, the allegation that the Lincoln County
jury selection process did not comport with Missouri statute, this Court
seriously considered that claim in light of Preston v. State, 325 S.W.3d 420 (Mo. App. E.D. 2010). 6. Petitioner‟s conviction has been affirmed on direct appeal. State
v. Ferguson, 229 S.W.3d 612, 614 (Mo. App. W.D. 2007). Petitioner then filed
a habeas petition challenging the jury selection process, and this Court denied that petition. Ferguson v. State, No. 08AC-CC00721. The Court of Appeals and the Missouri Supreme Court also denied similar petitions. In re
Ferguson v. Dormire, W.D. 70818; State ex rel. Ferguson v. Dormire,
SC90095. In these state habeas petitions, Petitioner received a ruling from the courts, including the Missouri Supreme Court, that Lincoln County‟s noncompliance with the statutes did not warrant state habeas relief. Accordingly, the matter could not be reconsidered in the present petition. 7. The Missouri Court of Appeals also affirmed the denial of post-
conviction relief, brought under Rule 29.15. Ferguson v. State, 325 S.W.3d 400 (Mo. App. W.D. 2010). 8. Petitioner categorizes his claims as follows: a. Claim 1 asserts actual innocence because: (1) (2) Jerry Trump recanted; Charles Erickson recanted (although his
“recantation” at the time of the petition was
significantly different from his recantation at the April 2012 hearing); and (3) b. Mike Boyd committed the murder;
Claim 2 asserts the prosecutor knowingly used perjured testimony; and
Claim 3 asserts Brady violations.
With Claim 1, Petitioner bears the burden of proving actual
innocence. State ex rel. Amrine v. Roper, 102 S.W.3d 541 (Mo. banc 2003). He must show clear and convincing evidence sufficient to undermine the Court‟s confidence in the correctness of the judgment. Id. at 548. 10. With regard to Claims 2 and 3, petitioner may only overcome his
procedural default of failing to raise those claims on direct appeal or in a Rule 24.035 or Rule 29.15 motion, by showing showing it is more likely than not that no reasonable juror would find him guilty in light of the “new evidence of innocence.” Murray v. Carrier, 477 U.S. 478, 496 (1986). 11. “[S]uch a claim requires petitioner to support his allegations of
constitutional error with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts or critical physical evidence -- that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
Under Schlup, in order for evidence to be classified as new, it
must be evidence “that was not available at trial.” Storey v. Roper, 603 F.3d 507, 524 (8th Cir. 2010) quoting Nance v. Norris, 392 F.3d 284, 291 (8th Cir. 2004). If a habeas petitioner adduces conflicting evidence about the murder, the new conflicting evidence is insufficient to show probable innocence. “The existence of such a „swearing match‟ would not establish that no reasonable juror would have credited the testimony of the prosecution witnesses and found [that petitioner] guilty beyond a reasonable doubt.” Moore-El v.
Luebbers, 446 F.3d 890, 902-903 (8th Cir. 2006); Johnson v. Norris, 170 F.3d
816, 818-819 (8th Cir. 1999)(reversing grant of habeas relief, finding that much of the evidence -- witnesses' memory loss and potentially conflicting testimony of witnesses -- is not new and reliable); Gomez v. Jaimet, 350 F.3d 673, 679-681 (7th Cir. 2003)(holding that petitioner‟s own statements and statements of petitioner‟s co-defendants were insufficient to warrant applying the extremely rare actual innocence exception); Bosley v. Cain, 409 F.3d 657, 665 (5th Cir. 2005)(rejecting claim where new evidence consisted only of testimony from four relatives of petitioner). Merely putting a different spin on evidence that was presented to the jury does not satisfy the Schlup requirement. Bannister v. Delo, 100 F.3d 610, 618 (8th Cir. 1996). 13. Defaulted claims can be considered in a state habeas petition but
only in limited circumstances:
A person who has suffered criminal conviction is bound to raise all challenges thereto timely and in accordance with the procedures established for that purpose. To allow otherwise would result in a chaos of review unlimited in time, scope, and expense. In accordance with our previous decisions, habeas corpus is not a substitute for appeal or post-conviction proceedings. Habeas corpus may be used to challenge a final judgment after an individual‟s failure to pursue appellate and post-conviction remedies only to raise jurisdictional issues or in circumstances so rare and exceptional that a manifest injustice results.
State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993).
Habeas review is not meant to be a substitute for post-conviction review under Rule 24.035 or Rule 29.15 or for direct appeal. State ex rel.
Green v. Moore, 131 S.W.3d 803, 805 (Mo. banc 2004). To challenge the
validity of a conviction through habeas, a petitioner must: 1) demonstrate the existence of a jurisdictional defect; 2) show that he is probably actually innocent; or 3) demonstrate cause and prejudice for the failure to make the claim on direct appeal or post-conviction review. Green, 131 S.W.3d at 805, n. 5. 14. Not only must Petitioner establish cause to overcome the default,
but he must also show the equivalent of “Brady prejudice.” State ex rel. Engel
v. Dormire, 304 S.W.3d 120, 126 (Mo. banc 2010). “The likelihood of a
different result must be substantial, not just conceivable.” Harrington v.
Richter, 131 S.Ct. 770, 791-792 (2011).
Petitioner cites State ex rel. Amrine v. Roper, 102 S.W.3d 541
(Mo. banc 2003), for the proposition that once he established that Mr. Erickson and Mr. Trump recanted, he is automatically entitled to habeas relief. In other words, though Petitioner asked for, and received, a five-day evidentiary hearing before this Court (Petition, p. 80), Petitioner asserts this Court has no obligation to evaluate the strength or weight of his evidence before ordering the extraordinary remedy of invalidating a jury‟s verdict that has been affirmed on appeal by two separate panels of the Western District. Circuit courts receive and review evidence as the finder of fact. This Court does not believe that it can, or should, abrogate that responsibility to evaluate the evidence presented. If evidence is not credible, it should not be the basis for habeas relief. And Amrine clearly states that the Petitioner has the burden of proof to establish his claims. 102 S.W.3d at 548. Furthermore, the law views recantations with suspicion. State v. Cook, 339 S.W.3d 523 (Mo. App. E.D. 2011); Haouari v. United States, 510 F.3d 350, 353 (2nd Cir. 2007)(collecting cases). “[I]f the trial court is not satisfied that a witness‟s post-trial testimony is credible, it is the trial court‟s duty to deny a new trial.” State v. Garner, 976 S.W.2d 57, 60 (Mo. App. W.D. 1998). “Recanting testimony is exceedingly unreliable and regarded with suspicion; it is the right and duty of the court to deny a new trial where it is not satisfied such testimony is true.” State v. Harris, 428 S.W.2d 497, 501 (Mo.
banc 1968). In Dobbert v. Wainwright, 468 U.S. 1231 (1984), Justice Brennan wrote that the initial question a reviewing judge should have with a recantation is whether it is true. Only after determining that it is true should the court consider whether the recantation is material. Id. at 1233-34 (Brennan, J. dissenting). A witness who was involved in the crime may come forward to recant for a variety of base motives or importunities. Newman v.
United States, 238 F.2d 861, 862 (5th Cir. 1956).
Petitioner‟s reading of Amrine would create a bizarre result in which the trial court could deny a motion for new trial because the recantation was not credible, while a habeas court would be compelled to grant a writ years later merely because the recantation existed (though was not credible). The Eighth Circuit Court of Appeals rejected that approach in resolving a
Strickland v. Washington claim in Lawrence v. Armontrout, 31 F.3d 662 (8th
Cir. 1994). In Lawrence, the offender contended he needed to show only the existence of alibi witness testimony, and it was erroneous for the district court to consider its veracity or reliability. Id. at 667. The court stated that an inherent part of its analysis was to consider the “strength of the offered testimony.” Id. 16. Additionally, there are allegations raised by Petitioner that can
be properly addressed only by a court. Allegations of suborning perjury and
withholding evidence are not matters for a petit jury to resolve. It is for a court, not a jury, to address and resolve claims of prosecutorial misconduct. 17. This Court takes judicial notice of the underlying Boone County
Circuit Court files, including the records on appeal. The appellate record was submitted to the Court as Respondent‟s Exhibits A through M. The evidence at trial can be summarized as follows: On the evening of October 31, 2001, the victim, Kent Heitholt, returned to work at the Columbia Daily Tribune, where he worked as a sports writer. (Tr. 452, 456). Deborah Evangelista, the victim‟s wife, called the victim at around 10:00 p.m. to tell him that he did not need to get any lunch money for his daughter. (Tr. 461). About six hours later, at around 4:00 a.m., two police officers arrived at the victim‟s home and informed the victim‟s wife that there had been a “horrible crime,” and that her husband had been found dead, “beaten to death.” (Tr. 462-463). The murder had been committed by Petitioner and Charles Erickson. (Tr. 474-475). Both Petitioner and Erickson had attended a party (Petitioner only briefly) on the evening of October 31, 2001. (Tr. 485, 487, 1777). After the party was broken up by the police, Petitioner and Erickson met up, and the two
men went to “By George,” a dance club and bar. (Tr. 495-496). They were underage, but Petitioner‟s sister had agreed to get them into the club. (Tr. 496, 506). While at the club (the two had no trouble getting in), Petitioner and Erickson had a few mixed drinks, but eventually they ran out of money. (Tr. 509, 511-513). They then left the club, and Petitioner made some telephone calls, looking for something to do. (Tr. 515). Erickson said that he wanted to go home, but Petitioner said, “Well, if we could get some more money, we could get some more drinks. We could buy some more drinks and stay out later.” (Tr. 516-517). Petitioner then suggested that they rob someone. (Tr. 517). Erickson agreed, and the two decided to walk downtown. (Tr. 517). Petitioner then said, “Hold on a second. We need to take something with us,” meaning that they needed some kind of weapon. (Tr. 519). Petitioner opened his trunk, retrieved a tire tool, and handed it to Erickson. (Tr. 519). Erickson removed an attachment from the tool, and they headed down Ash Street. (Tr. 319). At about that same time, the victim logged off his
computer; it was around 2:08 a.m. (Tr. 1061).
A few minutes later, Petitioner and Erickson saw the victim walking in an alley between the Columbia Daily Tribune building and the parking lot. (Tr. 520-521, 904). Another person exited the Tribune building, and Petitioner and Erickson hid behind a dumpster enclosure. (Tr. 522). That person then drove away, and Petitioner said, “We need to get this over with. We need to get this over with. Just do it.” (Tr. 524). Erickson walked up behind the victim and hit him on the head with the tire tool. (Tr. 525). The victim turned, and Erickson continued to hit him. (Tr. 526). After several blows, the victim groaned and fell to his knees. (Tr. 526). Erickson hit him one more time, and the victim fell to the ground. (Tr. 526, 541). Erickson then dropped the tire tool. (Tr. 526). Petitioner then pulled off the victim‟s belt and strangled the victim. (Tr. 548). When Erickson saw what Petitioner was doing, he yanked the belt from the victim‟s neck, causing the buckle to tear off and fall to the ground. (Tr. 549). Petitioner then went through the victim‟s pockets and car and took the victim‟s watch and car keys. (Tr. 551). At about that time, Shawna Ornt, a custodial worker at the Tribune building, went outside to smoke a cigarette. (Tr. 551).
Erickson ducked down behind the victim‟s car, but Ornt saw him duck. (Tr. 551, 929). Ornt went back inside and told Jerry Trump, another worker. (Tr. 930). Trump went outside with Ornt and he called out, saying, “I see you out there. Who‟s out there?” (Tr. 973). Petitioner and Erickson stood up, and Erickson yelled, “Someone‟s hurt out here,” or words to that effect. (Tr. 933-934, 973). Trump closed the door, told Ornt that he thought they should call 911, and then he decided to walk out to the parking lot. (Tr. 977). Trump found the victim and yelled for Ornt to call 911. (Tr. 978). He then saw Petitioner and Erickson walking away (he did not then know who they were). (Tr. 978, 981). Subsequent investigation revealed the presence of two blood trails leading away from the scene. (Tr. 1147). Other employees of the Tribune soon discovered what was happening and they ran outside. (Tr. 985, 1079). Law
enforcement officers and emergency personnel soon arrived, with the first officer arriving at about 2:31 a.m., just four minutes after the 911 call. (Tr. 1062, 1084-1085). Subsequent examination of the victim‟s body revealed eleven blows to the head and evidence of strangulation. (Tr. 1414, 1423-1427). The victim died
of asphyxia. (Tr. 1431). The victim‟s watch and car keys were never found. (Tr. 1225). After leaving the scene, Petitioner and Erickson ran down Fourth Street toward Broadway. (Tr. 556-557). Erickson had taken the victim‟s belt (minus the buckle), and he put it in his pocket. (Tr. 557). They went to Flat Branch Park, crossed the creek, went up a rock embankment, and arrived at a Phillips 66 gas station on Providence. (Tr. 560). There they encountered Dallas Mallory, and Erickson told him that they had just beaten a man. (Tr. 561). Petitioner did not deny Erickson‟s report. (Tr. 562). Mallory then drove off, and Petitioner and Erickson returned to Petitioner‟s car. (Tr. 564). At the car, Petitioner told Erickson to put the victim‟s belt in a plastic sack. (Tr. 566). Petitioner then put the tire tool and some other items into the plastic sack. (Tr. 506). Erickson was concerned about the items in the bag, but Petitioner later told Erickson, “Don‟t worry. I‟m going to take care of it.” (Tr. 573). Petitioner also said, “You know, it doesn‟t really matter, man. I always wanted to kill someone before I was 60 anyway, so I just – I just accomplished that.” (Tr. 573).
The next morning, November 1, 2001, Erickson did not recall the murder. (Tr. 575). On November 2, Erickson saw an article about the murder and he remarked to Petitioner, “That‟s messed up … this happened two blocks away from where we were partying the other night.” (Tr. 577). Petitioner became irritated and said, “So what?” (Tr. 577). After that, Petitioner and Erickson interacted less often. (Tr. 578). In time, Erickson started to recall the murder. (Tr. 581). He remembered “snapshots” of what had occurred on the night of the murder, but the memories seemed distant and dreamlike. (Tr. 583-584). On December 31, 2003, Erickson talked to Petitioner at a New Year‟s party. (Tr. 587). He mentioned that he thought they had killed the victim on Halloween night (in 2001). (Tr. 588). Petitioner feigned ignorance, saying, “You mean the Tribune guy?” (Tr. 588). And, when Erickson said, “Yeah,” Petitioner said, “No, we didn‟t do that. We didn‟t do that. We never done anything like that.” (Tr. 588). When Erickson stated that he might go to the police, Petitioner threatened to kill Erickson. (Tr. 591). Petitioner became upset when Erickson pressed the issue, and he said, “Man, we didn‟t kill anybody.” (Tr. 591). Erickson was also
upset and he said, “Man, that‟s not something that somebody can forget, man. That‟s not something somebody can forget.” (Tr. 592). Shortly thereafter Erickson disclosed his and Petitioner‟s involvement in the murder to Nick Gilpin and Art Figueroa. (Tr. 592, 596). Gilpin went to the police, and both Petitioner and Erickson were contacted by the police on March 10, 2004. (Tr. 598, 600, 1757). Petitioner denied any involvement in the murder. (Tr. 1762). Erickson was reluctant to fully admit his guilt, and he could not recall certain details, but he admitted he and Petitioner were responsible for the murder. (see Tr. 601-602, 614, 659, 694; Trial Exhibits A, C, D). Ultimately, Erickson agreed to testify against Petitioner as part of a plea agreement. (Tr. 614-615). On November 4, 2004, Erickson pled guilty to murder in the second degree, robbery in the first degree, and armed criminal action. (Tr. 618). In March or April, 2004, after the arrests, Jerry Trump (one of the custodial workers at the Tribune) saw photographs of Petitioner and Erickson in a newspaper article. (Tr. 1021, 1031). He immediately recognized them as the two men that he had seen in the parking lot beside the victim‟s car. (Tr. 1022, 1032).
He informed the prosecutor. (Tr. 1027). He later identified Petitioner in court. (Tr. 1029). At trial, which was held in October, 2005, Petitioner testified and denied any involvement in the murder. (Tr. 1802). Petitioner called various other witnesses in an attempt to corroborate his account and to cast doubt on the State‟s case. (Tr. 1471, 1532, 1626, 1658, 1678, 1691, 1709, 1726, 1750). The jury found Petitioner guilty of murder in the second degree (felony murder) and robbery in the first degree. (Tr. 2188-2189). After a separate penalty phase, the jury recommended sentences of thirty years for murder and ten years for robbery. (Tr. 22302231). On December 5, 2005, the trial court sentenced Petitioner in accordance with the jury‟s recommendation. (Tr. 2253-2254). The court further ordered that Petitioner serve his sentences consecutively. (Tr. 2254). 18. At the April 2012 hearing, Petitioner did not testify, but he
presented the testimony of several witnesses. 19. Dr. Larry Blum is a forensic pathologist in Rockford, Illinois. (H.
Tr. 121). Petitioner made no showing that this witness was unavailable in 2005, and fails to explain why this witness could not have been called at
Petitioner‟s trial. (H. Tr. 140). After listening to Dr. Blum‟s opinions, the Court concludes that his testimony and opinions could have been rendered in 2005 and this is not new evidence. As the State has noted, this proceeding is not intended to be a successive post-conviction proceeding to challenge the effective assistance of counsel. Even if such a claim were permitted, Petitioner did not call his trial attorney, Charles Rogers, and did not overcome the presumption that the decision to not call Dr. Blum, or some similar expert, was a matter of sound trial strategy. Strickland v.
Washington, 466 U.S. 668 (1984).
As an example, Dr. Blum testified that Dr. Adelstein was not board certified in forensic pathology. (H. Tr. 129). That is a fact that existed in 2005 and could have been a basis of attack. Dr. Blum did not disagree with much of what Dr. Adelstein concluded (“it was a good report”), but complains that he did not memorialize the details that Dr. Blum would have liked to have seen. (H. Tr. 130-132). Dr. Blum disagreed with the conclusion that the injuries to Mr. Heitholt‟s hands were due, in part, to scraping on the asphalt and suggested they were defensive injuries. (H. Tr. 132). It is understandable that defense counsel did not want to highlight the violence and length of the assault, seeing as how Petitioner was charged with first degree murder.
Dr. Blum agrees completely with Dr. Adelstein‟s conclusion that the cause of death was strangulation. (H. Tr. 135, 136). He also agreed that a belt was used to strangle the victim. (H. Tr. 135). He offers the opinion, however, that this strangulation by the belt did not cause damage to the hyoid bone. (H. Tr. 136). He thinks it is possible that the injury was caused by force. (H. Tr. 135-136, 138). Dr. Blum cannot disagree with Dr. Adelstein‟s belief that the assailant may have been kneeling on Mr. Heitholt. (H. Tr. 143, 144). He then tried to suggest some of the injuries were not from a tire tool, as he understands them, but suggested that it was caused by a nail puller. (H. Tr. 144). He produced one during his testimony. (H. Tr. 148). While the Court overruled the State‟s objection to Dr. Blum‟s testimony on this matter, it was clearly speculation on his part. (H. Tr. 148). The nail puller produced could not have caused all of the injuries to Mr. Heitholt. Dr. Blum has “an opinion” about the length of time that he thinks the crime took. He concludes the blunt force took 4-5 minutes, and the strangulation took 2-3 minutes. (H. Tr. 154). He also said it would be impossible to determine the sequence of the injuries. (H. Tr. 155, 156). Dr. Blum also admitted that the strangulation can be shorter due to injuries from the beating of Mr. Heitholt. (H. Tr. 154).
Dr. Blum was asked if he had an opinion about whether Mr. Heitholt was on his knees. Dr. Blum testified he did have an opinion, but he did not state what that opinion was. (H. Tr. 157). Dr. Blum does not eliminate the possibility that some of the strikes occurred after the strangulation. (H. Tr. 158). He also admitted there are other possible scenarios for the sequence of wounds and how they were struck. (H. Tr. 158-159, 160-161). Dr. Blum also admitted that there were many types of instruments, differing in length and appendages, that could have caused the injuries. (H. Tr. 162). In fact, on cross-examination Dr. Blum admitted the device he had earlier claimed may have caused the injuries (the nail puller), could not have caused the circular injuries to Mr. Heitholt‟s head. (H. Tr. 165, 166). Dr. Blum testified that he would have likely rendered these same opinions in 2005. (H. Tr. 168). His opinion was based on the photos, Dr. Adelstein‟s testimony, and Dr. Adelstein‟s report, information available in 2005. (H. Tr. 168, 172-173). Again, there is no reason this attack on the State‟s case could not have been made by Petitioner in 2005. Dr. Blum does agree that it is possible the hyoid bone fracture was from the belt. The pressure to cause the hyoid bone to break could have occurred very fast. He mentioned that there are also many factors that influence the
amount of pressure needed to break the bone, including age, gender and individual differences. (H. Tr. 169-170, 175-178). Dr. Blum stated that “overall” the report of Dr. Adelstein was “good” (H. Tr. 178), although he says he wishes it contained more information. Dr. Blum also admitted that even the small nail puller he used as a demonstration could cause a skull fracture. (H. Tr. 181). While Petitioner proclaimed that Dr. Blum was much better qualified than Dr. Adelstein, in the end, Dr. Blum had very few actual opinions different from Dr. Adelstein, and his differing opinions were speculative. 20. Joseph Buckley, President of John Reid and Associates, testified
critically of the Columbia Police Department‟s interview of Mr. Erickson on March 10, 2004. (H. Tr. 65-95). This information came to the jury‟s attention at Petitioner‟s 2005 trial through cross-examination. (H. Tr. 95). It is not “new evidence” in the factual or legal sense of the term. Mr. Buckley highlighted the non-public information that Mr. Erickson provided about the offenses. (H. Tr. 97-103, 105). Mr. Buckley also believed that he may have been contacted by the defense about testifying in this very case, further refuting the claim that this is “new evidence.” Indeed, Mr. Rogers testified at the post-conviction proceeding that he had consulted with someone about police interview tactics but decided not to use the witness. (Exhibit G, pp. 437, 438).
Mr. Michael Boyd is a sports editor in Ste. Genevieve. (H. Tr.
504). In 2001, he worked at the Columbia Tribune with Kent Heitholt. (H. Tr. 504). He arrived at the Tribune about 9:00 p.m. on the evening of October 31, 2001. (H. Tr. 504-505, 535). He testified he left about 2:00 a.m. (H. Tr. 505506, 536). He spoke to Mike Henry “a good few minutes.” (H. Tr. 506, 537). Mr. Boyd owned two cars, a red car and a blue car. (H. Tr. 508, 532-533). He drove the red car that night. (H. Tr. 508, 534). He got in his car and listened to music for a few minutes. (H. Tr. 509). He saw Mr. Heitholt exit the building and Mr. Boyd pulled up to his car and spoke to Mr. Heitholt. (H. Tr. 509-510). The conversation lasted “a few minutes.”(H. Tr. 512). When he turned to leave, he saw two people in an alley by the dumpster. (H. Tr. 513-514, 540). He looked in his rear view mirror and Mr. Heitholt appeared to be getting into his car. (H. Tr. 514, 539). Mr. Boyd did not pay attention to the race of the two individuals, or even their gender. (H. Tr. 514-515). He estimates that it was around 2:20 a.m. when he left, “somewhere in there.” (H. Tr. 515, 538-539). After going home and going to bed, Mr. Boyd received a telephone call from a co-worker who told him that Mr. Heitholt had been hurt. (H. Tr. 517518). A police officer then got on the phone and Mr. Boyd spoke to him. (H. Tr. 518). Mr. Boyd then dressed and returned to the Tribune. (H. Tr. 519-
520). There were many police vehicles, and Mr. Heitholt‟s body was still present. (H. Tr. 520-521). Mr. Boyd testified that after the arrest of Petitioner and Mr. Erickson, he thought he went to the police and told Detective Short that he saw two individuals in the alley. (H. Tr. 524-525). He had read in the paper that two people were seen in the area and so that prompted Mr. Boyd to go back. (H. Tr. 525). He thought it was within a year and before he moved to Ste. Genevieve. (H. Tr. 526). In 2005, Mr. Boyd told Mr. Haws the same information. (H. Tr. 526). He also spoke to Prosecutor Crane on the telephone prior to trial. (H. Tr. 527). Mr. Crane did not tell Mr. Boyd whether Mr. Boyd would or would not be a witness. (H. Tr. 528). Mr. Boyd testified that he remembers that the music was very loud outside and he believed it was coming from the nightclub. (H. Tr. 531). Mr. Boyd did not have any particular reason that night to be aware of the time. He is not sure about what time he left. He did not consider it unusual to see the two individuals in the alley. (H. Tr. 531-532). 22. Kevin Crane, the prosecutor at Petitioner‟s 2005 trial and
currently a circuit judge, also testified. (H. Tr. 556-557). Mr. Erickson and Mr. Erickson‟s attorney entered into a plea agreement that required Mr. Erickson to testify truthfully at Petitioner‟s trial. (H. Tr. 558). Mr. Crane did
not suggest or threaten Mr. Erickson that Mr. Crane might consider seeking capital punishment or even charge Mr. Erickson with first degree murder. (H. Tr. 558, 559-560, 586-588). Capital punishment was not an available punishment for those who kill when they were under the age of 17. (H. Tr. 559). Nor did Mr. Crane threaten Mr. Erickson with the possibility that Petitioner may make a deal against Mr. Erickson. (H. Tr. 578). Mr. Erickson entered his guilty plea on November 4, 2004 (H. Tr. 561), long after Mr. Crane spoke with Mr. Trump for the first time on December 21, 2004 (H. Tr. 562-565). On November 4, 2004, Mr. Trump had not identified Mr. Erickson or Petitioner as the men in the parking lot at the newspaper building. (H. Tr. 563; Exhibit R72, p. 4). At the December 21, 2004 meeting between Mr. Crane, Mr. Haws, and Mr. Trump, Mr. Trump volunteered that he might be able to identify the men in the parking lot. (H. Tr. 567). Mr. Trump stated that he received an envelope from his wife that contained a newspaper story. (H. Tr. 568). Mr. Trump repeated this information at the pretrial deposition. (H. Tr. 572). Mr. Crane recognized that this information would lead to difficulty in admitting into evidence the basis of the identification. (H. Tr. 569). It would have been easier if there had been an identification after a photo or in-person lineup. (H. Tr. 570, 575).
Mr. Crane attempted to have Mr. Trump identify Petitioner at the August 29, 2005 hearing, but the trial court denied the request. (H. Tr. 572577). Because Mr. Crane did not know if Mr. Trump would identify Petitioner, it was not foreshadowed in the opening statement. (H. Tr. 579580). The identification first occurred at trial. (H. Tr. 582). As to Mr. Erickson, Mr. Crane testified that he would not have produced Mr. Erickson as a witness if Mr. Crane thought Mr. Erickson was perjuring himself. (H. Tr. 583). 23. Mr. Jerry Trump first appeared by video deposition offered by the
Petitioner. The Court indicated that it would be beneficial to hear from Mr. Trump live. The State indicated during a conference in chambers that Mr. Trump was subpoenaed by the State and it would be calling him. Instead, Petitioner then called Mr. Trump live on the second day of the hearing. At Petitioner‟s criminal trial, Mr. Trump identified Petitioner as one of the two men he saw at Mr. Heitholt‟s car at the time of the murder. (Trial Tr. 1006). Extensive pretrial discovery and hearings established the basis for this identification. Mr. Trump appeared at Mr. Crane‟s office on December 21, 2004, after being released from prison on December 13, 2004, to meet with Crane and investigator Bill Haws about the upcoming trial of Petitioner. (Trial Tr. 1005). It should be noted that Mr. Trump was not prosecuted for
child molestation by Mr. Crane, but was convicted in Audrain County. (H. Tr. 565). At this meeting, Mr. Trump announced that his wife had sent him a copy of a newspaper article (Exhibit T4; Exhibit 30 from the trial), dated March 11, 2004 (Exhibit T6). Mr. Trump first testified to this fact during his pretrial deposition on June 29, 2005. (Exhibit T6, p. 43). He then testified to this fact in a motion hearing outside the presence of the jury on October 18, 2005. (Exhibit T5; Trial Tr. 1000). Finally, he testified to this fact a third time in front of the jury. (Trial Tr. 1021). Mr. Trump now asserts his earlier testimony was untrue and that Crane showed him the newspaper article and “encouraged” him to identify Petitioner. (Exhibit 5, p. 88). Previously, he testified at trial that no such thing had occurred. (Trial Tr. 1002). Mr. Trump‟s first affidavit (Exhibit 2) was written on October 11, 2010, the day before Mr. Erickson signed one of his affidavits, on October 12, 2010 (Exhibit 34b). In this first affidavit, Mr. Trump does not state that his incourt identification of Petitioner was inaccurate. Unlike his later testimony at this hearing, however, Mr. Trump then claimed he was able to identify Petitioner because, “I had seen a video that was circulated in the prison that triggered my memory.” (Exhibit 2, ¶11). This affidavit states that he has “had the opportunity to reflect upon the events that occurred in the early morning
hours of November 1, 2001.” (Exhibit 2, ¶5). That statement is not credible because the record demonstrates that Mr. Trump did not simply come to “reflect” upon the events; Petitioner‟s investigator, Steve Kirby, contacted Mr. Trump and encouraged him to prepare one affidavit and then another. There are items in the affidavit that cannot reasonably be attributed to Mr. Trump. The most obvious example is in paragraph 8 where Mr. Trump states he told Christine Varner he could not identify anyone; yet, Mr. Trump did not even know who Ms. Varner was. (Trump 2012 depo, pgs. 11, 61, 62). Though the second affidavit states it was written because Mr. Trump wanted to supplement his first affidavit (Exhibit 3, ¶4), that too is incredible. Mr. Trump testified that he felt no need or desire to prepare a second affidavit. (Trump 2011 depo, p. 68). It was Mr. Kirby who wanted this second affidavit (Trump 2011 depo, p. 63), in which Mr. Trump asserts for the first time that Mr. Crane coerced him into identifying Petitioner as one of the murderers. The accusations against Mr. Crane by Mr. Trump have increased on every occasion. During his pre-hearing deposition testimony, Mr. Trump claimed that Mr. Crane showed him a newspaper article dated March 11, 2004 (Exhibit T6), and told Mr. Trump the two men were guilty of the murder. At the hearing, Mr. Trump claimed, for the first time, that Mr. Crane suggested that Mr. Trump should state that the newspaper was folded.
Earlier, in his second affidavit, Mr. Trump makes no mention of the claim that Mr. Crane suggested the story that Mr. Trump got the newspaper in the mail. Additional factors undermine Mr. Trump‟s recantation. First, as the State points out, if Mr. Crane had wanted to cause Mr. Trump to make a false identification of Petitioner, he would not have used a nine-month-old newspaper article. The article had the “mug shots” of Petitioner and Mr. Erickson, and it would be a simple thing to have shown the actual mug shots to the witness. The record demonstrates that Mr. Crane was actually seeking a determination whether Mr. Trump could make an in-court identification. He tried to do so at the hearing on August 29, 2005. (Exhibit C3), was stymied by the reasonable objections of Petitioner‟s counsel that Petitioner was wearing jail house clothing. At the time of trial, Mr. Crane did not know whether Mr. Trump could, or would, identify Petitioner. This is most evident from the fact that Mr. Crane did not mention any possible identification by Mr. Trump in his opening statement. (Exhibit C2). This Court cannot imagine any reasonable explanation why a prosecutor would not mention such an important and favorable fact unless he did not know if Mr. Trump would be able to do so. Mr. Crane did not want to promise something we wasn‟t sure he could deliver.
In short, the Court finds Mr. Trump‟s recantation not only unpersuasive but entirely incredible. In contrast, the Court finds Mr. Crane‟s denial of these accusations credible, and his testimony was corroborated by the Bill Haws. 24. Petitioner asserts that Mr. Erickson‟s tardy discovery of his
amnesia about the events of November 1, 2001, is new evidence of Petitioner‟s innocence. Of course, at the time Petitioner filed his petition (February 14, 2011), Mr. Erickson had most certainly not exonerated anyone. On November 22, 2009, Mr. Erickson gave a statement to Ms. Zellner indicating that it was Mr. Erickson who actually strangled Mr. Heitholt, and that Petitioner was present. That explanation showed an intact memory but did not exonerate either man of the murder. On February 9, 2011, Mr. Erickson issued a
second recantation in which he never asserts they were not at the murder, but where he says Petitioner did not commit any crime and did not know of Mr. Erickson‟s intent to commit a crime. (Exhibit 34d). Subsequent statements from Mr. Erickson have evolved into a new narrative where Mr. Erickson now claims he has amnesia, and has always had amnesia about the events of that night. Mr. Erickson‟s recantations are inconsistent and inherently in conflict with each other. Mr. Erickson even acknowledged that he had told so many
different versions of the facts that he does not blame anyone for not believing him today. (H. Tr. 357, 394, 420). On direct examination, Mr. Erickson testified that he was on probation prior to October 31, 2001. He claimed he was using cocaine, alcohol and Adderall. He claimed to have blackouts from this use before that night. It is significant to the Court that Mr. Erickson has recalled many events of the evening, but now states that he has no recollection of leaving the By George bar. He claims he remembers throwing up a green drink, but is not sure where, or if it was even that night. He claims he woke up at home. He was able to get up the next day and go to school. Mr. Erickson did acknowledge that he knew he owed Petitioner some money from the night at By George‟s. (H. Tr. 281). This is inconsistent with his claim of no memory. Mr. Erickson testified at trial that Petitioner paid the cover charge, and gave him money for drinks. (Trial Tr. 509, 511-512). Petitioner confirmed this with his trial testimony. (H. Tr. 281). This is inconsistent with Mr. Erickson‟s current claim of no memory. As the State alleges, Mr. Erickson‟s lack of memory is selective. Mr. Erickson testified he was “interested” in the Heitholt murder and read articles about the case. He claimed that the articles in the paper mentioned the fact that the cleaning lady stated one of the suspects asked for help. Yet Petitioner does not demonstrate that the media ever released this
particular fact. (Trial Tr. 713, 716). Mr. Erickson stated that because he did not remember what happened that night, he began to wonder if he had committed the murder. Mr. Erickson related the incident on New Year‟s Eve of 2003-2004, when he talked to Petitioner about whether they were involved in the murder. Mr. Erickson now testifies, “I really did not think I was involved in the murder.” That contradicts his recent recantations. Mr. Erickson said he and Petitioner had a second conversation that Mr. Erickson admitted got loud and heated, and Mr. Erickson said he got in Petitioner‟s face at one point. Mr. Erickson acknowledged speaking to Nick Gilpin in March of 2004. Mr. Gilpin is someone with whom Mr. Erickson socialized. Mr. Erickson admits that he “might have” told Mr. Gilpin that he was involved in the murder, and he told Mr. Gilpin that Petitioner strangled Mr. Heitholt and that Mr. Erickson had taken a lesser role in the murder. He admitted hitting Mr. Heitholt and that he told the cleaning lady to go get some help. Mr. Erickson, even when lead by counsel, stated that he was making assumptions when he said these things. Mr. Erickson also had a conversation with Art Figueroa in which he claims he told Mr. Figueroa that Mr. Erickson should have his DNA tested to see if he were involved.
Mr. Erickson testified he was arrested on March 10, 2004, and the video of his later interview with Mr. Nichols was played at the trial. (Exhibit 23). During this interview, Mr. Nichols tells Mr. Erickson not to tell him what Mr. Erickson had read in the newspaper, but to tell him what he remembered. (Exhibit 22). Mr. Erickson was questioned about this interview at trial and stated that he was not intimidated and it did not alter anything he told the police. (Trial Tr. 717, 722-723). This is not new evidence. Nor is the claim that Mr. Erickson was “fed” information a new allegation. Mr. Erickson claims his statement to the police was false and he did it to make himself appear less involved in the murder. Mr. Erickson‟s rambling narratives as he testified at the hearing are in sharp contrast to the certain and specific testimony Mr. Erickson gave at trial. (Exhibit R66). The trial itself was recorded in the media, and the Court is fortunate to be able to compare the witnesses‟ (Mr. Trump and Mr. Erickson‟s) demeanor at trial and at the hearing. The difference in their demeanor leads to the conclusion that Mr. Erickson was testifying truthfully at the trial, but is completely fabricating his current stories. Mr. Erickson states that when he received the criminal discovery in the case, it convinced him that they committed the crime. He claims he read that Mr. Trump had been able to identify them. He mentioned Richard Walker and Dallas Mallory. We know that this allegation regarding Mr. Trump is
false because Trump admitted that he never told anyone he could identify the killers until after Mr. Erickson had already pleaded guilty. Mr. Erickson said he met with Crane and Haws several times. He claimed his attorney, Mr. Mark Kempton, was not present at any of these meetings except a proffer meeting with the prosecution. Mr. Kempton later testified that this was not true. Mr. Erickson testified that he never told Crane that he did not remember anything. On November 9, 2009, Mr. Erickson wrote to Petitioner. (Exhibit 34g). Exhibit 34 is a handwritten statement which Mr. Erickson provided to Petitioner‟s counsel. Petitioner then played the video of Mr. Erickson‟s first recantation. (Exhibit 80). In this video, Mr. Erickson claims to have acted alone, but with Petitioner present. Mr. Erickson admits to killing Mr. Heitholt in the accompanying document; he also states, “After the murder I remember telling Ryan that it didn‟t matter who did what because we were both there.” (Exhibit 34, p. 4). Mr. Erickson says that he actually remembered strangling Mr. Heitholt with the belt. The video shows an intact memory. The written document accompanying the video hints of Mr. Erickson‟s alcohol use but also shows memory and enjoyment from the crime. (Exhibit R30). Mr. Erickson then admitted to the Court that he lied in that recantation. Mr. Erickson proceeded to claim that he had developed a
conscience and provided this false statement because he felt guilty. He then blamed Mr. Trump, again, for identifying them and that he wanted to “save himself.” The State introduced Exhibit R72, which is a police report of the interview of Jerry Trump on the morning of the murder. Mr. Erickson testified that he reviewed the discovery and learned that Mr. Trump had identified Petitioner and Mr. Erickson. The police report demonstrates otherwise. It states that Mr. Trump “could not provide a detailed description of either of the individuals.” (Exhibit R72). In early 2010, Mr. Erickson and Petitioner‟s attorney, Kathleen Zellner, developed an attorney-client relationship. Ms. Zellner suggested she could get him out of prison. (Exhibits R68d and R68m). Mr. Erickson then discussed “his memory stuff” with Ms. Zellner. (Exhibit R68e). He then provided affidavits to Ms. Zellner. These affidavits are also false statements. (Exhibits 34b, 34c, and 34d). What is significant for this Court is that while Mr. Erickson claims now to have complete amnesia of the events, he was actually editing the factual assertions of the events of October 31 and November 1, 2001, in the affidavits. Mr. Erickson may not understand the inconsistency in doing so, but it is significant to the Court. Mr. Erickson‟s mother commented that the “memory stuff” was hard to reconcile with his memory. (Exhibit R68k).
During the time that Mr. Erickson had a concurrent attorney-client relationship with Petitioner's counsel, Ms. Zellner, he spoke with her on a number of occasions. The Court notes there were 11 "legal" phone calls
between them from September 30, 2010 to May 2, 2011. (Exhibit R56). During that time Mr. Erickson reviewed and edited various affidavits for use by Petitioner in seeking post-conviction relief. According to Mr. Erickson, he believed after consulting with Ms. Zellner that his cooperation in Petitioner‟s case could lead to his release from prison, in spite of the fact that he has been convicted of two new offenses, In a phone call to his mother from prison on May 6, 2010, Mr. Erickson discusses this possibility. His mother asks him “what does this all mean?” Mr. Erickson then replies, "I don't know yet, it‟s kind of early. It means I might get out of prison, maybe.” His mother then asks incredulously, “Does it mean that she (Zellner) really thinks that you two weren‟t there?” Mr. Erickson answers, “I don‟t know, I guess." (Exhibit R68d). Later on during that same phone call with his mother, Mr. Erickson is more specific as to the strategy that was to be used to help him gain his release. Mr. Erickson tells his mother, "She's (Ms. Zellner) gonna try to get me out with this memory stuff." After his mother exclaims, "Wow, amazing," Mr. Erickson says, "We'll see what happens," and then Mr. Erickson is heard to laugh. (Exhibit R68e). This candid
conversation with his mother undermines Mr. Erickson’s testimony that he doesn’t know whether he and petitioner committed the crime. This point is driven home during a recorded call from prison to his mother a few months later. Mr. Erickson had a phone conversation with Ms. Zellner for nearly an hour on the afternoon of December 28, 2010. (Exhibit R56). Later that evening Mr. Erickson called his mother and talked about the "new evidence" that he had learned from Ms. Zellner that Petitioner would be using to justify post-conviction relief. He then agreed with his mother that the "new" facts were inconsistent with his memory. Erickson: I Talked to Kathleen Zellner today…That guy Jerry Trump … that put us at the scene…he’s now saying that we weren’t at the scene and that Kevin Crane basically coerced him and told him what to say, and that nobody told the cleaning lady to go get help and a lot of other stuff. Mother: Oh, but you remembered that (Pause with NO DENIAL….) Erickson: They are also saying that nobody ever told anybody to go get help, that that was not correct...The other thing being said is … two women saw us driving away when the club closed… Mother: Hard to reconcile this with your memory (Long pause) Erickson: Well, right. (Exhibit R68k). Erickson agrees with his mother that the “new” facts that are being alleged by Petitioner are inconsistent with his memory. Mr. Erickson also claims that his “lawyer thought that if I didn‟t cooperate they might try to execute me since it was such a high profile murder and so gruesome.” (Exhibit 32, p. 16). Both Mr. Kempton and Mr. Crane deny such a threat was ever conveyed. Their denials are credible, bolstered by the fact that on August 26, 2003, the Missouri Supreme Court
had ruled that executing 17-year-old murderers was cruel and unusual punishment. State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. banc 2003). Mr. Erickson tries to backtrack from this testimony by trying to now say it was other unidentified inmates who were telling him this. Mr. Erickson is not credible. After pleading guilty and being sentenced, Mr. Erickson wrote two letters to Mr. Heitholt‟s daughter. (Exhibits 25 and 26). It was not a requirement of the plea agreement that Mr. Erickson apologize. Yet, in these letters, Mr. Erickson apologizes for the murder. The first of those letters, dated January 25, 2006, consists of three single spaced handwritten pages and includes with it a two page police report of an interview by the police of Meghan Arthur. The Court also notes that the content of the letter appears to be sincere and suggests an honest belief (and memory) that he had committed the robbery and murder of Kent Heitholt, that Petitioner had joined him in committing those crimes, and that, at least at the time he wrote the letter, he felt remorse for his crimes. Mr. Erickson states in the letter, “I have wanted to apologize to you and your family for some time now. I didn‟t know how to go about it without seeming intrusive. I too was mad that Judge Hamilton wouldn‟t let me apologize at the sentencing. I thought that I would never have that chance again.” (Exhibit R25). His desire to apologize to the family is corroborated by the
testimony of Mr. Erickson‟s attorney, Mark Kempton, at the hearing before this Court whereby he recalled that Mr. Erickson had wanted to apologize to the victim‟s family for what he had done, but that he was not permitted to do so by the sentencing judge. Mr. Erickson continues his apology in his letter to Ms. Heitholt: “I will never be able to comprehend the pain that I‟ve caused you. However, I am sincerely sorry for what I have done. I am sorry for the pain that I cause your father. I am sorry for the pain that I have caused you, your family, and everyone else. I would do anything to be able to go back and stop myself from doing what I did that night. I know that I will never be able to make up for what I have done.” (Exhibit R25). Mr. Erickson continues in the letter: “I don‟t know …I really don‟t know what else to say. I‟m sorry. You really need to know that I am telling the truth about what happened.” (Exhibit R25). Mr. Erickson also refers to the police report he enclosed in the letter, vouching for the veracity of its contents and asserting that the report (which the jury in Petitioner‟s case never heard) helps prove that Petitioner was guilty of the murder/robbery. Mr. Erickson writes, “This is about the closest that Ryan ever got to admitting his guilt to anyone (other than myself on 11/1/01).” (Exhibit R25). The enclosed police report contains information provided by Meghan Arthur that Petitioner, while drunk on the second anniversary of the murder of Kent Heitholt, began telling Ms. Arthur that Mr. Erickson was trying to get them
to turn themselves in to authorities, but that Petitioner did not want to. According to Ms. Arthur‟s statement, Petitioner makes the statement that “he and Erickson had left and he doesn‟t know how it turned out.” (Exhibit R25). While this statement may appear to be a denial of his actual
involvement in the criminal acts themselves, it implies that Petitioner was present when the crime for which Mr. Erickson was trying to get Petitioner to turn himself in was committed and establishes that the two were discussing the murder of Kent Heitholt before the police ever considered either of them a suspect. Mr. Erickson also states in the letter that he believes that “if Ryan would have had to, he would have lied and said that I [Erickson] did everything and that he wasn‟t there.” (Exhibit R25). Mr. Erickson writes, “I wish that Ryan would admit to it too. Damn, this must really be hell for you. I am sorry to say that Ryan will never admit to what he did. There was a time when he might have admitted to some version of the truth, but I believe that time has passed. I hope that I have given you some sense of closure.” (Exhibit R25). Mr. Erickson also wrote a second letter to Kali Heitholt which appears to be postmarked February 24, 2006. In it, Mr. Erickson again apologizes for what he has done, suggests others knew about what had occurred but never
came forward, and again inculpates Petitioner as a co-actor in the death of her father. (Exhibit R26). 25. Additional information undermined the credibility of Mr.
Erickson‟s current version of events. Mr. Erickson called his mother from the Boone County Jail and told her about an incident that occurred on or about April 23, 2004, six weeks after the arrest, when both he and the Petitioner were being transported in custody on a bus – only 44 days after their arrest: “He [Petitioner] was trying to call me a rat and shit. Basically, I just told him he was a coward, and that ended the conversation.” (Exhibit R67a). This establishes the animosity between the two men and also impeaches Mr. Erickson‟s claim that no one ever called him a rat or snitch. Mr. Erickson recognized early on that being labeled a "snitch” for agreeing to testify against his co-defendant would make his life difficult when he went to prison. In a conversation with his mother on the phone from the Boone County jail, long before any plea offer would have been extended by the State, Mr. Erickson expressed his concerns. In April 2004, Mr. Erickson told her it‟s about talking with the cops, being a snitch, being a rat. He told her that the label doesn‟t go away and that he could be there the rest of his life, living with that and having to look over his shoulder every day because of it. (Exhibit R67c). What is also noteworthy from this phone call is that Mr. Erickson was clearly contemplating pleading guilty to the charge early on (as
his attorney Mark Kempton testified at the hearing before this Court). And, it is noteworthy what Mr. Erickson fails to mention. He does not complain about a fear of the prosecutor, the cops, or the death penalty as he suggests now. His concern is with being labeled a “rat” and having to do real hard time with a "snitch jacket." Mr. Erickson's time spent in the Department of Corrections has not been easy. He has attached to him the label of "snitch" for testifying for the State against Petitioner at his trial. He acknowledged this in a statement to Corrections personnel in 2006. “I testified against my co-defendant in a high profile murder case. I want to go to 4 House when I get released from ad seg. My co-defendant is Ryan Ferguson – he‟s at JCCC. He has money, and it would be real possible for him to do something to me.” (Exhibit R50). While incarcerated in prison, Mr. Erickson has refused to sign a document that would waive Petitioner as his enemy. (Exhibit R48). Mr. Erickson's concerns or fears of other inmates, particularly the Petitioner, even led Mr. Erickson's mother to write a letter to Mr. Erickson's defense counsel, Mark Kempton, in which those concerns were voiced: "Ivan Johnson, another inmate, had called us to report that Ferguson had allegedly been looking for someone to kill Charles." (Exhibit K2).
Mr. Erickson has received numerous conduct violations for fighting (none since his statement of November 22, 2009) while in prison. These
conduct violations have culminated in two new felony convictions for which will likely extend the time Mr. Erickson will have to serve in prison. (Exhibits R16, R17). 26. Contrary to Mr. Erickson‟s current assertion that he has no
memory of whether he or the petitioner committed the crimes, the record reflects that Mr. Erickson possessed knowledge of unique facts about the murder. Mr. Erickson knew (1) that the killers had told the cleaning lady to go get help (Exhibit R66a; Trial Tr.712, 713 – Mr. Erickson corrects the defense counsel that this fact had not been in the newspaper); (2) which parking lot at the Columbia Tribune where the murder occurred (Exhibit R57, findings of fact from Petitioner‟s post conviction proceeding); (3) the location on his body where the victim had been hit; (4) that a man had followed the suspects down the alley (Exhibit R57); (5) the description of the dock at the Tribune (Exhibit R57); (6) where the cleaning lady had been standing (Exhibit R57); and (7) that the victim‟s car door was open (Exhibit R57). 27. Mr. Erickson has admitted that before he was arrested he told
Nick Gilpin and then later Art Figeroa that he had hit the victim, that he saw Petitioner strangle the victim and that he told the cleaning lady to go get
help (Exhibit R66e, Trial Tr. 860 to 867; and Exhibit R66i, Trial Tr. 893 to 894). 28. Mr. Erickson has described in vivid detail what he observed when
he struck the victim with the tire tool. In one of his first police interviews on video, he tells the detective he “distinctly remembered” the first time he hit the victim, hearing this noise, seeing his face, and it made him sick. When asked by the officer if it was the victim screaming, Mr. Erickson corrects the officer, and says, “no it was more like a groan.” (Exhibit R64b). 29. Mr. Erickson gave a statement to personnel at the Department of
Corrections upon his arrival to begin serving his sentence that he and Petitioner had in fact committed the crimes for which they had been convicted. In describing what he had done, Mr. Erickson said, “I was
drinking with a friend. We decided to do a robbery. Things got out of hand. I hit the guy with a tire tool, my friend strangled him and he was a sports editor for the paper. We didn‟t get caught for 2 years. It was a high profile case.” (Exhibit R47). 30. Mr. Erickson has made statements to his parents challenging the
veracity of claims by Petitioner that there is “new evidence” which would exculpate the Petitioner. On June 16, 2009, Mr. Erickson spoke separately with his father and mother on the phone from the Department of Corrections, and discussed the post- conviction claims of Petitioner which had just been
denied by Judge Asel. In the call to his father, Mr. Erickson discusses the denial of post- conviction relief and a claim being made by Petitioner referring to some “new evidence” they have. Mr. Erickson‟s father opines that he doesn‟t think they are ever going to be able to get Petitioner out, to which Mr. Erickson responds “right.” Mr. Erickson tells his father on the recorded line, “whatever the evidence is, it must be something that they think is going to partially incriminate him or something. Otherwise why would he not come forward with it now?” Mr. Erickson‟s father then
comments, “I can‟t begin to think what goofy shit they‟re thinking,” to which Mr. Erickson responds, “right.” (Exhibit R68b). A short time later on the same date Mr. Erickson spoke with his mother by phone from the Department of Corrections and had the following exchange regarding the Petitioner (in part): Erickson: “Processing new information …. Just what dad told me. Trying to figure out … what he‟s gonna try to do next -- all that shit …. [Dad] said he didn‟t think he was gonna get a new trial … but then they had new evidence or some shit …. I‟m not worried about it. But I‟m kind of guessing he‟s going to try to place the blame on me since that‟s what he was going to try to do to begin with .… * * * I don‟t know why there would be … If they had new evidence why wouldn‟t they have introduced it earlier, unless they were going to use it as a last resort because they thought that it would incriminate him … you know what I mean?…at least partially? You see what I‟m saying? …. If he said that he had evidence why wouldn‟t he have brought it forward already?
* * * …. There‟s gotta be something underhanded about it … Either way he‟s gonna be trying to put the blame on somebody else …. I‟ve got nothing to hide but …. It‟s more shit, they just keep on bringing up all sorts of shit.” (Exhibit R68a) Mr. Erickson, only months before he would recant on November 22, 2009 seems incredulous that there could possibly be any new evidence that would exculpate the Petitioner. In fact, Mr. Erickson makes it clear that he believes any such evidence would have to be “underhanded” and therefore, not credible. Mr. Erickson and his mother continued to discuss the postconviction court‟s rulings during the same call: Mother: Erickson: Mother: Erickson: Mother: Erickson: Mother: Erickson: “…The good news about all this, however, is that there hasn‟t been a judge yet that disagreed with the jury that found him guilty.” “Right.” “…You knew things before you ever talked to the police….” “Oh that we did it? Right.” “…The allegations the police told you everything to say are absolutely incorrect.” “Mmhmm.” “…you were telling the truth, you knew things that were never published in the paper and that no police officer ever told you.” “Right.”
(Exhibit R68a)(emphasis added). It is telling that Mr. Erickson was astonished on June 16, 2009 about what possible new evidence the Petitioner might have to try to establish his
It is even more telling that Mr. Erickson essentially confirms
their guilt in the phone call to his own mother. This evidence refutes and completely discredits Mr. Erickson‟s recantation asserting that Mr. Erickson has no memory of acting in concert with the Petitioner to murder Kent Heitholt. These candid conversations are persuasive in that they show Mr.
Erickson has no genuine doubt about Petitioner‟s guilt, or his own. Mr. Erickson spoke to Bill Haws on June 24, 2005, and told him that he and Petitioner hid until a red car left the parking lot where the murder took place. (Exhibit B4). Mr. Michael Boyd did leave the scene in a red car. (Exhibit B4). Mr. Haws subsequently visited with Mr. Boyd and determined that the car was red. (Exhibit R1). This independently bolsters the credibility of Mr. Erickson‟s confession. Mr. Erickson stated that Ms. Zellner told him that she could help him get out. He hired her, but he claims that he continued to lie to her and her investigator. This included providing a drawing to an expert hired by Ms. Zellner in February, 2005, to analyze his testimony. This drawing places Petitioner at the scene with labels identifying the participants. “(Exhibit R35). He again reiterated his assertion that Jerry Trump‟s identification of them was a very important factor in his decision to plead guilty. Today, the “party line” appears to be that Mr. Erickson just does not remember the events from October 31 to November 1, 2001. But even the
August 29, 2011, affidavit shows detailed memories by Mr. Erickson from that evening. At the swilling party, Mr. Erickson said he wore bell bottoms, ate candy, played a drinking game with cards, and saw Dallas Mallory (in a police uniform). The police broke up the party, and people fled in panic. Mr. Erickson got a ride from Petitioner because the guys he rode with fled without him. He saw his father when he got home. Mr. Erickson saw Petitioner‟s sister looking pretty, dressed in a cat costume, when she got them into By George. Petitioner paid the cover charge and Mr. Erickson had his hand stamped. Mr. Erickson remembered going inside, feeling young and out-of-place. He didn‟t like the light or music with the costumed people dancing. Because the lights made Mr. Erickson‟s head hurt, he asked Mr. Igleheart to take him home, but the latter was not ready to leave. These details show detailed memory from the evening. (Exhibit 34a). Mr. Erickson claims that the reason he continued to “lie” following his plea and his testimony in 2005 was because he was afraid the State would somehow revoke his plea agreement. It is that fear, asserts Mr. Erickson, that caused him to continue to assert to everyone he spoke to that he was guilty. This claim is not credible. The plea agreement did not require Mr. Erickson to contact Ms. Heitholt. The letters are those of a truly repentant man who, at that time, was sorry for what he had done. The notion that he
wrote those letters expressing sorrow for a crime he “actually” did not remember is simply not credible and is inconsistent with human nature generally and Mr. Erickson‟s character specifically as assessed by this Court. The conversations while in prison with his parents present further evidence that they recognize his guilt and that there is not the uncertainty Mr. Erickson now asserts. In fact, when relating to his mother that Mr. Trump has now recanted, Mr. Erickson is completely unaffected by that fact. Mr. Erickson has tried to explain the changes in his story since his first "recantation" in November, 2009. He has said that he only took responsibility because Jerry Trump was still putting them at the scene. (Exhibit R68l). "I took responsibility for it because I wanted him (Petitioner) to get out ... and I knew that I couldn‟t just say we didn‟t do it or I don‟t remember because there was that guy still putting us at the scene ... So the only way for him to get out was for me to say that I did everything ... Or at least so I thought." (Exhibit R68l). This statement by Mr. Erickson, again to his mother,
suggests he believes he is free to alter his testimony based on his understanding of what facts might now help he and Petitioner. Mr. Erickson has contended he does not stand to benefit from his recantation and could face consequences. Yet, in a January 2011 call with his sister, he tells her about assurances he has received, including: that he can't be charged with perjury; that (Ms. Zellner) thinks if he is granted a new trial
the state isn't even going to want to take him to trial; that the state will not be able to use the statements from November because he didn‟t have a lawyer present; and that it sounds like not only is the state not going to be able to give him more time, but he could possibly get out. (Exhibit R68m). It is clear to this Court that Mr. Erickson has come to believe he will benefit and not be harmed by altering his testimony to assist Petitioner and himself. Finally, as was argued at trial, Mr. Erickson had no incentive or motivation to falsely plead guilty in 2004 and testify falsely in 2005. The consequences of these actions was 25 years imprisonment, and fear of being labeled a “rat” in prison. No one was threatening him with any greater penalty. Now, however, it does appear that Mr. Erickson has grown weary of prison and the reality of being someone who testified against a co-defendant. Mr. Erickson claimed otherwise, but does have two subsequent assault convictions and 14 conduct violations. Those problems did end shortly after Mr. Erickson sent Petitioner the letter dated November 9, 2009. (Exhibit 34g). 31. Mr. Baer was a sports writer at the Columbia Tribune on October
31, 2001. (H. Tr. 544). The writers worked late, until 2:00 a.m. in the morning at times. (H. Tr. 544). The computers would shut down at 2:00 a.m. (H. Tr. 545). After Kent Heitholt left, probably after 2:00 a.m., Shawna Ornt came in
and said something had happened to Kent. (H. Tr. 546). He and another writer ran out and saw Mr. Heitholt on the ground. (H. Tr. 546-547). They turned him over, face up and had tried to feel for a pulse. (H. Tr. 546-547). They waited for paramedics. (H. Tr. 548). At some point, he called the managing editor and Mike Boyd. (H. Tr. 550). He does not recall if Mr. Heitholt was covered, or when he was covered. (H. Tr. 551). He was not called as a witness at trial. (H. Tr. 553). 32. Ms. Kim Bennett testified for the Petitioner. She lived in
Columbia and grew up in Columbia. (H. Tr. 460-461). She testified that on October 31, 2001, she and some friends went to By George‟s club. (H. Tr. 461). She was 16 years old at the time. (H. Tr. 461). She saw Petitioner in By George. (H. Tr. 462). She also knew Mr. Erickson as well. (H. Tr. 463). She was drinking that night, but claims to have had very little to drink – a couple of sips – and was not intoxicated. (H. Tr. 463). She testified the bar closed “around 1:00 a.m.,” and people were leaving. (H. Tr. 464). She testified that she saw Mr. Erickson and Petitioner outside the bar and saw them walk “straight” to their car and drive away. (H. Tr. 465-466). Ms. Bennett drew a diagram (Exhibit 47) of where she claimed Petitioner‟s car was parked. (H. Tr. 468-469). Her description, however, is inconsistent with the trial testimony of both Mr. Erickson (Tr. 504 – First Street – almost two intersections from the club, 516) and Petitioner (Tr. 1825-1826 – corner of
First and Ash). In fact, in this hearing, Mr. Erickson reiterated that Petitioner‟s car was parked on First Street. Thus, Ms. Bennett‟s testimony is not credible. Ms. Bennett testified that several weeks after the March 10 arrest, two officers from the Columbia Police Department appeared at her home and spoke to her. (H. Tr. 470-471). She stated that they asked her questions and that she told them that she saw Petitioner and Mr. Erickson “cross the street” and get into their car and leave. (H. Tr. 471-472). She testified that in 2005, the police again spoke to her about the New Year‟s Eve party. (H. Tr. 473-474). She testified that she knew nothing about it other than that “they were arguing” and Mr. Erickson was yelling. (H. Tr. 474). Petitioner‟s father contacted her after the trial and she eventually contacted him and she told him how she had seen them that night. (H. Tr. 475-476). She credited this contact because several of Petitioner‟s friends knew her information. (H. Tr. 492-493). She was later contacted by Ms. Zellner‟s office in December of 2010. (H. Tr. 477). She prepared an affidavit for one of Petitioner‟s investigators. (H. Tr. 478). She testified she was 100% certain of what she saw. (H. Tr. 479-480). Ms. Bennett does not know the name of the two police officers. (H. Tr. 480). They were not dressed in uniforms, but in suits and ties. (H. Tr. 480481). During the second visit, the visitors were also two men in business
suits. (H. Tr. 483). Ms. Bennett testified she was by the back door of By George‟s. Mr. Erickson and Petitioner came out the front door. (H. Tr. 484485). She described Petitioner‟s car as maroon. (H. Tr. 486). The trial testimony is that car was blue. She also testified that the car was less than a block from where she was standing on the parking lot of By George‟s. (H. Tr. 487). Once more, this is inconsistent with Petitioner‟s own trial testimony. (Tr. 1825-1826). Trial Exhibit 9 was shown to Ms. Bennett, who placed Petitioner‟s vehicle in a location very different from where the vehicle was described at trial. (H. Tr. 489-491). She acknowledged also that several of Petitioner‟s friends knew that she had this information. (H. Tr. 492-493). She could not say where Mr. Erickson and Petitioner were at the time of the murder. (H. Tr. 495). While the Court has doubts about the veracity of Ms. Bennett‟s claim that she told the police this information, her credibility on that issue is not necessary to resolve this claim. Under the prejudice prong of the Brady analysis, this claim is denied. Ms. Bennett‟s testimony would be inconsistent with the evidence at trial, including Petitioner‟s own testimony, and would not have been helpful to Petitioner‟s defense. Claim I – The Recantation 33. Both Mr. Erickson and Mr. Trump have recanted their trial
testimony. The Petitioner argues that he has no obligation other than to
prove that a recantation was made in order to be entitled to relief. This argument fails because of two basic legal principles well-established in Missouri. To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts or critical physical evidence -- that was not presented at trial.
Schlup v. Delo, 513 U.S. 298, 324 (1995) (emphasis added).
Second, “[r]ecanting testimony is exceedingly unreliable and regarded with suspicion; it is the right and duty of the court to deny a new trial where it is not satisfied such testimony is true.” State v. Harris, 428 S.W.2d 497, 501 (Mo. banc 1968); State v. Cook, 339 S.W.3d 523 (Mo. App. E.D. 2011). A recantation can be sufficient to entitle a petitioner to habeas relief, but not if the recantations are not credible. In this case, Mr. Erickson and Mr. Trump made initial recantations that did not exonerate the Petitioner. Their subsequent recantations, made after considerable consultation with
Petitioner‟s legal team, became more elaborate and more exculpatory – but less credible. This Court should not reverse a finding of guilt by a jury, affirmed by two appellate courts, based on recantations that are not credible. 34. Mr. Erickson claims two reasons for falsely testifying at trial.
First, he claims that he was in fear of receiving a death sentence if he did not cooperate with the State. Both Mr. Kempton and Judge Crane testified,
credibly, that there were never any discussions of a possible death sentence for Mr. Erickson, nor were there ever any discussions about even amending the charges against Mr. Erickson to murder in the first degree. The Missouri Supreme Court had already ruled, prior to the arrest of Mr. Erickson, that 17-year-old murderers could not be executed. State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. banc 2003). Mr. Erickson‟s second stated reason for cooperating with the prosecution and implicating Petitioner was because Mr. Jerry Trump had allegedly identified both men. That claim is untrue. Up until the time of the actual trial of Petitioner, and long after Mr. Erickson had plead guilty, Mr. Trump had not been able to identify anyone. In fact, Mr. Trump was still imprisoned at the time Mr. Erickson plead guilty in November of 2004, and even Mr. Trump‟s recantation does not suggest he made any identification until after Mr. Erickson‟s plea. No hint of being able to identify anyone was made by Mr. Trump until a month after Mr. Erickson had plead guilty. 35. The testimony of Mr. Erickson‟s trial attorney, Mark Kempton, is
also compelling. Though told by Mr. Erickson of his desire to plead guilty from their first meeting, Mr. Kempton competently and thoroughly represented Mr. Erickson and did not allow Mr. Erickson to plead until Mr. Kempton was certain that Mr. Erickson‟s confession was both voluntary and true. Mr. Kempton received and analyzed all of the evidence, and
communicated those contents to Mr. Erickson. Mr. Kempton proactively addressed any mental health issues and had Mr. Erickson evaluated. Mr. Kempton fully understood his ethical obligations to Mr. Erickson and represented his interests well. 36. The two letters Mr. Erickson wrote to the victim‟s daughter
(Exhibits 25 and 26) also support the conclusion of this Court and the jury that Mr. Erickson‟s trial testimony in 2005 was true. The letters reflect a genuine remorse that Mr. Erickson now has extinguished. 37. Finally, with regard to Mr. Erickson, the Court believes that Mr.
Erickson is now motivated to fabricate these recantations because of a dislike of the realities of prison life along with a hope that his release will occur once he assists in releasing Petitioner. While denials of this motivation were made, the record clearly reflects Mr. Erickson‟s hope and expectation that he, too, will be released. In the meantime, Mr. Erickson‟s time in prison is likely to be lengthened because of the difficulties from other offenders‟ perception of him as a snitch. 38. Mr. Trump‟s recent recantations suffer from the same problems
as Mr. Erickson‟s various recantations: they are factually inconsistent and factually impossible. As will be noted, the assertions made by Mr. Trump are not merely improbable and dubious, but are claims that are neither rational nor possible.
More suspicious is the fact that the evolution of Mr. Trump‟s recantations developed in the same suspicious manner as Mr. Erickson‟s. In both cases, Mr. Trump and Mr. Erickson made retractions to Petitioner‟s attorney that did not exonerate Petitioner. Only after repeated visits from Petitioner‟s legal staff, and overt prompting, did both of these individuals come to the conclusion that they were both “coerced” into testifying falsely at trial. In October of 2011, Petitioner‟s investigator, Steve Kirby, visits Mr. Trump on several occasions (by telephone and in person) and finally obtains an affidavit from Mr. Trump recanting his positive, in-court identification of Petitioner. (1st Affidavit). (H. Tr. 35). This first affidavit makes several assertions Mr. Trump now admits cannot possibly be true. Affidavit number 1 says that Mr. Trump was able to recognize Petitioner based on a video he saw in prison. (Exhibit 2). That cannot be true; the video was created before the arrests of Petitioner and Mr. Erickson, and showed only the original composite drawings – which were created shortly after the crime. There was nothing about the video that could have had any impact on his memory. In fact, in his deposition, Mr. Trump admitted he learned nothing from the video he did not already know. (Exhibit 1, p. 97).
Yet, Mr. Trump swore to this fact, which is patently false. He then claimed Judge Crane showed him photos of “several people,” another “fact” which Mr. Trump subsequently admits is not true. (Exhibit 1, pp. 84-85). In addition to being false, the original affidavit was not consistent with the allegations in the petition filed by Petitioner, which asserted Mr. Trump‟s supposed false testimony was the result of government misconduct. So, although Mr. Trump admitted he felt no need to supplement or amend his affidavit (Exhibit 1, p. 68), Petitioner‟s investigator makes repeated visits to Mr. Trump and finally gets a new affidavit that comports with the Petitioner‟s “theme” – prosecutor coercion. (Exhibit 1, p. 69). (H. Tr. 39, 4950). Mr. Kirby referred to it as “defense collaborating.” (H. Tr. 38). Mr. Kirby confirmed that Mr. Trump said that “he had doubts that they were them.” (H. Tr. 40). “Doubts” was not the word selected by Mr. Kirby when he typed the second affidavit. (H. Tr. 41). Shortly before the second affidavit, Mr. Trump told Mr. Hamby that his identification of Petitioner was accurate. Mr. Trump “stood by” his identification. (Hamby depo). The new affidavit claims that Judge Crane had a nine-month-old newspaper article with him when he interviewed Mr. Trump and showed Mr. Trump pictures of Petitioner and Mr. Erickson. (Exhibit 1, pp. 78, 88). Aside from the fact that Mr. Trump testified three times under oath that he saw
the newspaper article in prison when his wife sent it to him (Tr. 1000, 102021, 1031), Mr. Trump‟s factual allegation is irrational and absurd. First, if the prosecutor wanted to get Mr. Trump to identify Petitioner, why would he use a newspaper article? Why not use a mug shot, or an actual photograph of the suspect. Using the newspaper as the preferred basis for an identification makes no sense; in fact, the State had great difficulty getting the newspaper article admitted at trial because of the other potentially inadmissible matters contained in the paper. (Tr. 995-96; H. Tr. 569). The pictures in the paper were the mug shots, and it is the mug shots themselves that law enforcement would prefer to use. (H. Tr. 570). Further proof of the absurdity of this allegation is the fact that the record demonstrates that Judge Crane did not know if Mr. Trump could identify Petitioner and never knew until the trial itself. During a pretrial deposition taken by Petitioner, Mr. Trump indicated that he had recognized Petitioner based on the newspaper article his wife sent to him while in prison. (H. Tr. 572; Exhibit 5, p. 43). The defense then filed a motion to suppress any identification by Mr. Trump (H. Tr. 572-537; filed August 25, 2005; Exhibit C1). A hearing was then held in which Judge Crane affirmatively sought the right to determine if Mr. Trump could identify Petitioner. Why? Because
Judge Crane did not know if Mr. Trump would, or could, identify Petitioner. (H. Tr. 573-577; Exhibit C3). If Judge Crane had actually coerced Mr. Trump into making an identification, this exercise would have been needless and counterproductive to the State. No identification was allowed prior to trial because Petitioner objected because he was present in court on that day in a prison uniform and identification would have been too obvious. (H. Tr. 576-577; Exhibit C3, pp. 97, 100-101). Thus, as of the time of trial, Judge Crane did not know if Mr. Trump would be able to identify Petitioner. We know this, not simply because Judge Crane so stated at the hearing, but based on the record at trial. (H. Tr. 577; Exhibit C3, p. 101). One very obvious clue is that Judge Crane did not mention an in-court identification by Mr. Trump in his opening statement. (Exhibit C2, pp. 413428). If Judge Crane was confident that Mr. Trump was going to identify Petitioner, it is beyond question that Judge Crane would have informed the jury of this fact in his opening statement. The State would want the jury to know from the outset the strength of its case. Instead, even after Mr. Trump is on the stand, Judge Crane does not know whether Mr. Trump can make an identification. In fact, he stops his direct examination of Mr. Trump so that he can learn whether or not Mr.
Trump can identify Petitioner. (Tr. 990). A lengthy discussion and voir dire of Mr. Trump occurs outside the presence of the jury. (Tr. 999-1013). Mr.
Trump declares repeatedly and unequivocally that he recognized Petitioner from the newspaper article he received from his wife while in prison (Tr. 1000-1001), and that no one ever showed him that article before that day (Tr. 1000, 1005). Mr. Trump does identify Petitioner under oath before the court (Tr. 1006), and subsequently does so, again, before the jury. (Tr. 1029). These events are completely inconsistent with the claim that Judge Crane coerced Mr. Trump into making an identification on December 21, 2004. Judge Crane invested an incredible amount of effort and energy seeking an answer to a question Mr. Trump says Judge Crane already knew. And, had he known that Mr. Trump would identify Petitioner at trial, Judge Crane would have absolutely made the jury aware of this fact in his opening statement. Additionally, the claims contained in Mr. Trump‟s two affidavits are incompatible and irreconcilable. 39. Finally, we have the credible and unequivocal denial of Judge
Crane. That denial is corroborated by the testimony of Mr. Bill Haws, the prosecutor‟s investigator who was present during these meetings. While the Petitioner identified some inconsistencies in Judge Crane‟s and Mr. Haws‟ recollection of the sequence of events (was Mr. Trump standing or sitting),
the Court nevertheless finds the denials to be credible. Their credibility is bolstered by the facts and circumstances surrounding Mr. Trump‟s testimony and in-court identification. 40. The 2005 trial testimony of Mr. Trump and Mr. Erickson is
credible. The various inconsistent recantations of Mr. Trump and Mr. Erickson are not credible. 41. These recantations do not, therefore, constitute new evidence to
support a claim of actual innocence. These recantations are examples of why the law views recantations with suspicion and caution. 42. Petitioner abandoned his claim that Mr. Boyd is the actual killer
of Mr. Heitholt. The State filed a motion in limine and during a pretrial hearing to address motions filed by both parties, Petitioner indicated he did not intend to proceed with the claim. 43. By agreement with the State, Petitioner was given time to
investigate information from Enterprise Car Rental concerning a vehicle owned by Mr. Boyd. Nothing further was submitted and the Court has assumed, based on the fact that Petitioner filed his proposed findings of fact and conclusions of law, that Petitioner had no further evidence to offer as a result of his investigation. 44. Petitioner also asserted he would prove that he and Mr. Erickson
could not have committed the murder, relying on the “timeline” established
by various witnesses. Petitioner did not sustain his burden. Other than the time in which the Tribune‟s computers were shut down on the morning of November 1, 2001, and the time of the 911 call to the police, all other times mentioned by witnesses were approximated and do not eliminate Mr. Erickson and Petitioner as the killers. 45. Claim I is denied. Claim II 46. In Claim II, Petitioner asserts that Judge Crane suborned
perjury from Mr. Trump. The Petitioner did not merely fail to sustain his burden of proof as to this claim; this Court finds that the claim is untrue. Judge Crane did not encourage or allow Mr. Trump to testify falsely in the trial of Petitioner. There was no knowing use of perjured testimony by Judge Crane. Claim III 47. In Claim III, the Petitioner asserts that the testimony of Kim
Bennett established a Brady violation. There was also a claim that Mr. Boyd made a statement to police that was not given to the defense. The Court views with caution the recollection of witnesses presented several years after the events. The recollections may be sincerely believed but nevertheless inaccurate given the passage of time. This is one of many
reasons why subsequent habeas proceedings based on claims of actual innocence should properly be limited to exceptional circumstances. 48. In this case, the Court need not decide if the testimony is faulty
or not because the Court is firmly convinced that the information was not exculpatory and Petitioner was not prejudiced. 49. To show Brady prejudice, the offender must demonstrate a
reasonable probability that the outcome of the proceeding would have been different. Id. at 128 quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)
quoting United States v. Bagley, 473 U.S. 667, 682 (1995). In Bagley, the
Supreme Court stated, “[w]e find the Strickland formulation of the Agurs test for materiality sufficiently flexible to cover the “no request,” “general request,” and “specific request” cases of prosecutorial failure to disclose evidence to the accused: the evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” United States
v. Bagley, 473 U.S. at 682.
50. As noted above, the testimony of Ms. Bennett would not have
benefitted the Petitioner. Her testimony is not credible or persuasive because it directly contradicts the testimony of Petitioner, himself, at trial. If anything, this testimony only highlighted the fact that Petitioner and Mr.
Erickson‟s testimony about the events of that night were strikingly consistent, in spite of any claim that Mr. Erickson “blacked out.” The Court will also note that Ms. Bennett does also suffer from some credibility issues as well, claiming to be the only 16-year-old known to this Court to “sneak” into a club, under age, and who did not drink alcoholic beverages. Regardless, this testimony would not have changed the outcome at trial. Nor would the testimony of Mr. Boyd. As noted above, Mr. Boyd did not create a timeline that made it impossible for Mr. Erickson and Petitioner to commit the murder. 51. Subsequent to the hearing and prior to filing proposed findings,
the Petitioner submitted Exhibits 111, 112, and 112a to this Court. The State indicated it would make no objection to their admission and consideration by the Court. 52. Exhibit 111 is purported to be the Department of Corrections
polices for sending and receiving mail, and is dated May 11, 2003. Petitioner appears to argue that this policy somehow casts doubt on Mr. Trump‟s testimony that he received the Tribune newspaper article (Exhibit T4) from his wife while in prison. The Court finds nothing in Exhibit 111 that casts doubt on the accuracy of Mr. Trump‟s original trial testimony. Nowhere in the policy is there a prohibition against sending newspaper articles to inmates. The only portion of the policy that appears to be related in any way
is Section III, F., 1.f, which says that a letter is limited to 5 additional pieces of paper or clippings. Mr. Trump‟s testimony at his deposition does not suggest that his wife‟s letter with the newspaper article would have been in violation of this policy: “My wife sent me a copy of the page out of the paper where two had been arrested on suspicion of being the ones that had murdered Kent Heitholt.” (Exhibit T6; June 29, 2005, Trump depo, p. 42). 53. Exhibit 112 is what appears to be an edited news clip from an
unknown, and undated, news report. Again, the State did not object to this Court receiving and considering this item for whatever evidentiary value this Court gives it. In the video clip, Mr. Crane does not say he will seek or even consider the death penalty for Mr. Erickson, but that he will be reviewing and researching the matter. 54. Exhibit 112a is a newspaper article dated March 13, 2004 (which
was three days after the arrests), in which the reporter states that Mr. Crane “hasn‟t decided whether to pursue the death penalty for one of the two suspects ….” The article notes that Mr. Crane discusses the fact that the Missouri Supreme Court had already ruled that 17-year-olds could not be executed, which was consistent with Mr. Crane‟s testimony at this hearing. It
is true that at the hearing, Mr. Crane testified that the death penalty “was never in play” with regard to either suspect. (H. Tr. 558). The Court believes this minor inconsistency is due to the passage of time and memory rather than an attempt to mislead. More important, these pieces of evidence suggesting that Mr. Crane may have initially considered whether the death penalty was appropriate for Petitioner in no way alters this Court‟s conclusion that Mr. Erickson was never threatened by Mr. Crane or Mr. Kempton with the death penalty. Mr. Crane made it clear that Mr. Erickson was never subject to the death penalty (H. Tr. 560), and Mr. Kempton confirmed this fact (H. Tr. 630631). It is this fact, that Mr. Erickson was never threatened with the death penalty, that is relevant to this Court‟s conclusion that Mr. Erickson‟s recantations are fabrications completely lacking in credibility. 55. Petitioner also submitted the affidavit of his trial counsel,
Charles Rogers, whom Petitioner had indicated was unavailable for the hearing because of a serious injury. Exhibit 113 is a lengthy affidavit by Mr. Rogers in which he offers opinions about a number of legal matters and reports that there were various items of evidence or information not provided to him prior to the trial. In other words, the affidavit is intended to support Petitioner‟s new claims of
The State objects to the affidavit, Exhibit 113, because it is hearsay and because the State has not had the opportunity to ask any questions of Mr. Rogers. While the State‟s objections are both reasonable and proper, this Court overruled the State‟s objection and received Exhibit 113. The Court does so for one compelling reason, to bring some finality to this case and address all issues. Petitioner has not actually taken the proper steps to obtain review of his “new” Brady claims, although this Court believed it was clear to Petitioner that a formal motion – setting forth the specific claims Petitioner wished this Court to consider and address – should be filed. Though Petitioner has failed to do so, the Court nevertheless will endeavor to address these claims over the State‟s objections. 56. While the Court has some serious reservations about Mr. Haw‟s
memory regarding speaking to Mrs. Trump, even if this Court assumes that Mrs. Trump did state she did not recall sending the article to Mr. Trump, this Court is firmly convinced that this was not crucial evidence, prejudicial to the Petitioner‟s defense. This Court first notes that Mr. Haw‟s statement about what Mrs. Trump said is, itself, hearsay. Petitioner did not call Mrs. Trump as a witness, although Petitioner had indicated his intention to do so. In fact, she was at court, but did not testify. Without speculating about why Mrs. Trump
was not called by Petitioner, the fact remains that Petitioner did not sustain his burden of proof at this hearing by providing any evidence as to what Mrs. Trump‟s trial testimony would be. Instead, the only evidence is Mr. Haw‟s hearsay testimony that Mrs. Trump “didn‟t remember ever sending the article.” (H. Tr. 668). Even if that would have been Mrs. Trump‟s testimony, this Court does not believe that testimony would have altered the outcome of Judge Roper‟s ruling on the admissibility of the identification or the jury‟s assessment of Mr. Trump‟s identification. 57. As to Petitioner‟s claim that the State had some obligation to
prepare a report and notify the defense every time a witness is contacted, the Petitioner provides no authority to support this proposition. Mr. Haws telephoned Mr. Trump while Mr. Trump was still incarcerated and asked Mr. Trump to contact the prosecutor when released. That telephone call does not mandate a police report being prepared or disclosure of this telephone call to the defense. Yet from this event, it appears that Mr. Rogers now concludes that the State fabricated Mr. Trump‟s story. This is one of several reasons why Mr. Rogers‟ affidavit is not particularly persuasive. This Court has already addressed the allegation that Mr. Crane had Mr. Trump fabricate his testimony and restates the conclusion that this claim is completely untrue.
The telephone call does not, as Mr. Rogers suggests, establish “governmental involvement in the identification.” (Exhibit 13, ¶47). 58. Likewise, this Court has already addressed Petitioner‟s claim
that Mr. Boyd‟s testimony created a timeline that made it impossible for Mr. Erickson and Petitioner to have committed the murder. Unlike Mrs. Trump, who did not appear and testify and whose potential testimony – had she testified – is only a matter of speculation, Michael Boyd did testify at the hearing and it was clear to this Court that Mr. Boyd‟s times were approximations: Q. much time? A. Q. A. Q. Pretty much my best estimate, yes. No reason to be memorizing times that night? Unless it‟s right in front of me, no. And when you get out to your car and you‟re So are you giving your best estimate as to how
done talking with Kent, you give estimates of your time, but you don‟t know exactly when? A. Q. Not exactly, no. And one police report you gave your best guess,
it could have been 2:15 to 2:20?
They asked me how you all do and, you know,
and I just pretty much guess. Q. So you‟re not committing to saying I know for
sure I left at exactly 2:20 or 2:15? A. I know it was close to 2:20, but the exact time, I
was not paying attention. Q. That‟s based on your best guess based on how
long it might have been when you were chit-chatting with people? A. (H. Tr. 538-539). Thus, Mr. Rogers is again incorrect in asserting that Mr. Boyd‟s testimony creates some timeline that would prove Petitioner innocent. It is abundantly clear that the times given by these witnesses were not intended as exact. Furthermore, according to the Petitioner‟s theory, if the timeline were true, then Mr. Heitholt would have to have still been alive when Ms. Ornt called the police at 2:26 a.m. – to report he was dead. The timeline advocated by Mr. Rogers and the Petitioner make it impossible for anyone to have strangled or murdered Mr. Heitholt at the time the crime was reported. The Court does not fault Mr. Rogers for continuing to be an advocate for his client, but the Court does not give great weight to Mr. Rogers‟ opinions
Fair to say.
or conclusions. As one example, Mr. Rogers‟ assertion that, “I would have been able to connect Boyd to the murder as the likely suspect” (Exhibit 113, ¶42), is untrue and incorrect based on the evidence produced at this hearing. 59. Finally, this Court has also addressed Petitioner‟s allegation that
Kimberly Bennett‟s testimony was new Brady evidence. Mr. Rogers does not say he was unaware of her testimony in his affidavit, only that the prosecution did not provide it to him. (Exhibit 113, ¶17). Ms. Bennett‟s testimony is inconsistent with the trial testimony of Mr. Erickson and Petitioner. She did not see what she claims and had Mr. Rogers used her as a witness, she would have impeached the credibility of Petitioner. Conclusion Having reviewed the entire record in this case, heard the testimony of the witnesses, and reviewed the legal arguments of both parties, the Court denies Petitioner‟s petition for a writ of habeas corpus. SO ORDERED.
________________________________ The Honorable Daniel Green