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Ferguson v. Commonwealth

Court of Appeals of Kentucky

November 9, 2017

ALGER FERGUSON APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM LAWRENCE CIRCUIT COURT HON. JOHN DAVID PRESTON, JUDGE INDICTMENT NO. 03-CR-00062

          BRIEFS FOR APPELLANT: R. Christian Garrison Margaret A. Ivie Assistant Public Advocates LaGrange, Kentucky.

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky.

          BEFORE: COMBS, JOHNSON, AND J. LAMBERT, JUDGES.

          OPINION

          JOHNSON, JUDGE.

         Alger Ferguson appeals from the Lawrence Circuit Court's order denying his motion for relief under Kentucky Rule of Criminal Procedure (RCr) 11.42, entered April 28, 2016. Based upon the record, Alger Ferguson received constitutionally ineffective assistance of counsel leading to his conviction for murder. We reverse and remand for new trial.

         Background

         The events of this case stem from the shooting death of Parker Ferguson in Lawrence County, Kentucky, on or about the evening of August 9, 2003. Parker was at the home of his uncle, Alger Ferguson ("Alger"), when he suffered two gunshot wounds to his head. The two men had been drinking and smoking marijuana earlier that evening. When police arrived on the scene, Alger, the only other person present at the time of the shooting, said Parker had shot himself. The weapon, a .40 caliber semi-automatic pistol, was on the floor beside the body. The autopsy would later reveal that one gunshot, fired into an area above the decedent's lip, was at least 18-24 inches away. This shot would not have been immediately disabling. The second gunshot was a contact wound to the decedent's temple, and was immediately incapacitating. Alger was indicted shortly thereafter for Parker's murder.

         Alger did not know his trial counsel before the shooting, and hired him based upon a friend's recommendation. Unfortunately, Alger's trial counsel had, and would continue to have, an extensive history of ethical violations leading to increasingly severe sanctions by the bar. Trial counsel was repeatedly disciplined for numerous, unrelated violations over nearly twenty years, from 1992 to 2011. Particularly of note, trial counsel was suspended from the practice of law for one year in 2010, based upon the following: failure to competently and diligently represent a client; failure to appropriately communicate with a client; commingling client funds; failure to notify clients of receipt of funds; failure to expedite litigation; conduct involving dishonesty, fraud, deceit, or misrepresentation; and failure to respond to disciplinary authority. In 2011, trial counsel was charged and convicted for willfully filing or making false tax returns or failing to pay taxes, and thereafter sentenced to three years' imprisonment. Following his conviction, trial counsel was permanently disbarred from the practice of law in 2012.

         Alger's trial took place on November 14, 2005. At trial, the Commonwealth's witnesses included Detective Paul Cales of the Kentucky State Police; Boyd County Coroner Keith Moore, who was also a retired Kentucky State Police detective; and state medical examiner William Ralston. These three witnesses testified as to the investigation, blood evidence, the firearm used, and the decedent's autopsy. Coroner Moore specifically testified that, in his opinion, "the shot to the temporal area was not conducted by the decedent." Other family members testified regarding Alger's behavior on the night of the shooting, in which he appeared to be frustrated, aggravated, and angry. Parker's sister testified that Parker drank regularly, but did not have a history of depression, nor had he previously attempted suicide.

         During voir dire, Alger's counsel informed the court that he had only one testifying witness - the defendant himself. He did not consult or hire experts, nor did he find other witnesses to support Alger's defense, which was that Parker had died by suicide. In the first half of trial, during the Commonwealth's case, Alger's counsel made no opening statement and performed minimal cross- examination of the Commonwealth's witnesses. Counsel did not object when Commonwealth's witnesses testified as to their opinions regarding the capability of the firearm, despite not qualifying as firearm experts. Alger grew frustrated with his trial counsel's inability or unwillingness to thoroughly cross-examine members of the Ferguson family who testified for the Commonwealth.

         Later, during Alger's evidentiary hearing on his RCr 11.42 motion, trial counsel admitted that he did not hire or consult experts because his client could not afford to pay for them. He also admitted he did not prepare for trial or make an opening statement as he normally would have, because he believed Alger was going to represent himself. This belief was based upon statements Alger had made to counsel two or three weeks before the trial date. However, no motion to proceed pro se or as hybrid counsel had been presented to the court, and Alger's counsel went forward with the murder trial despite his lack of preparation.

         When he saw that matters were not proceeding well at trial, Alger fired his lawyer at the close of the Commonwealth's case. The circuit court permitted him to proceed pro se, with his recently-fired lawyer as stand-by counsel. Alger re-called some of the family members who testified on behalf of the Commonwealth and questioned them regarding their earlier testimony. He finished his defense by testifying on his own behalf. Despite his efforts, the jury found Alger guilty of murder. During the penalty phase, the only statement offered by Alger in mitigation was "I ask for the minimum sentence." The jury returned after deliberation with a recommended sentence of life imprisonment. The circuit court entered final judgment on December 20, 2005, sentencing Alger in accord with the jury's recommendation. The Kentucky Supreme Court affirmed the conviction on direct appeal in an unpublished memorandum opinion.[1] Alger subsequently filed a timely pro se motion to vacate sentence under RCr 11.42 on April 7, 2008. However, the motion lay dormant in circuit court until a panel of this Court ruled on Alger's pro se writ of mandamus, entered May 27, 2015.

         Alger obtained post-conviction counsel with the Department of Public Advocacy (DPA) to assist him with his RCr 11.42 issues. DPA retained a crime scene reconstruction expert, Shelly Rice, employed by Stidham Reconstruction and Investigation. She prepared a detailed, peer-reviewed one hundred thirteen-page report based upon the shooting. Specifically, Rice reviewed the crime scene evidence, the firearm, gunshot wounds and other evidence on the body of the decedent, and bloodstain pattern analysis. In particular, Rice focused on the "void" pattern (i.e., absence of blood) on the decedent's hand, which indicated the decedent was holding an object at the time of his death. Rice stated this pattern was more consistent with the decedent holding the pistol found at the scene than a beer can, as the Commonwealth asserted. She also commented upon ...


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