Appeals court orders new trial for man convicted of killing Columbia Tribune sports editor

Saying the state withheld evidence, the Missouri Western District Court of Appeals this morning ordered that Ryan Ferguson (pictured), the man who has spent eight years in prison for the 2001 murder of Columbia Tribune Sports Editor Kent Heitholt be set free within 15 days if the charges are not refiled.

The only eyewitness to put Ferguson at the scene of the crime was Jerry Trump, who said he recognized the faces of Ferguson and his co-defendant after he saw their pictures in a newspaper that his wife had sent to him. On earlier occasions, the witness had not been able to identify the men.

According to the opinion, the prosecuting attorney's office withheld information that the witness' wife told an investigator she had never sent a newspaper to her husband.

In one of the arguments against Ferguson's appeal, the Boone County Prosecuting Attorney's office had said that Ferguson had waited too long to reveal this exculpatory evidence. The opinion notes that if Ferguson had known about it earlier, he would have revealed it earlier.

With Trump's eyewitness testimony discredited, the only remaining witness against Ferguson was his alleged partner in crime, Charles Erickson, who was severely intoxicated at  the time of Heitholt's death and whose memory appeared to be augmented through the help of the prosecuting attorney's office.

Also noted in the opinion was the failue of an investigator to even file reports on witnesses whose testimony could have been favorable to Heitholt.

The case history was provided in the opinion:

On November 1, 2001, Kent Heitholt ("Mr. Heitholt") was murdered in the early morning hours near his car in the parking lot of the Columbia Daily Tribune ("Tribune") in Columbia, Missouri. Mr. Heitholt was the sports editor for the paper. Mr. Heitholt  timed off his computer at 2:08 a.m., and left the Tribune building for the parking lot shortly thereafter.

 The murder scene was discovered at approximately 2:20 a.m. by Shawna Ornt ("Ornt") and Jerry Trump ("Trump"), two custodians who were working at the Tribune. Both Ornt and Trump saw two white males standing by the driver's side of Mr. Heitholt's car. One of the men hollered "Someone's hurt out here, man." The two men then walked away down an adjacent alley. Trump then saw an obviously injured Mr. Heitholt lying on the ground next to his car. After reporting the discovery of Mr. Heitholt to other Tribune employees, Trump and Ornt called 911 at 2:26 a.m.

Ornt told police that she saw the man who was standing toward the back of the car "really good." Ornt worked with sketch artists in the months following the murder to develop two composite sketches of this man. Ornt described the man as muscular, not stocky, with blond hair and in his early twenties. Trump told police he could not provide a detailed description of either of the men he saw other than to say that both were white males in their twenties. The man toward the back of the car was described by Trump as wearing a ball cap pushed back on his head, far enough that Trump could see blonde hair spiked up in front. In a supplemental interview with police, Trump reported that he was not certain if he could identify the two
individuals again. Trump reported that he was unable to identify the facial characteristics of either man.

Police discovered physical evidence at the scene including unidentified fingerprints in and on Mr. Heitholt's car, and a hair not belonging to Mr. Heitholt but discovered in his hand. Two sets of bloody footwear impressions were located at the scene. Work related papers involving high school and college basketball programs were found around and under Mr. Heitholt's car. Evidence found inside the car suggested that
Mr. Heitholt's car door was open at the time of his murder, then closed. Mr. Heitholt's watch and keys were missing, though his wallet was found inside the car. Police determined that the last known person to see Mr. Heitholt alive was Michael Boyd ("Boyd"), a sports writer who worked under Mr. Heitholt's supervision.
Boyd was interviewed by police at approximately 4:00 a.m. and again at approximately 11:45 p.m. on November 1, 2001. He reported that he left the Tribune building at around 2:10 a.m., that he sat in his car for two to three minutes adjusting his radio, and that he then saw Mr. Heitholt exit the Tribune building to head to his car. Boyd told police that he drove over to Mr. Heitholt's car, that he had a three to five minute conversation with Mr. Heitholt, and that he left the parking lot at 2:20 a.m. Boyd told police that as he
drove out of the lot he saw Mr. Heitholt getting into his car.Boyd told police he turned westbound out of the lot into the adjacent alley.Boyd told police he did not see anybody around the parking lot or anything that was suspicious.4

 In one statement to the police, Boyd said that he exited his car to talk to Mr. Heitholt. In another
statement to the police, Boyd said that he stayed in his car, and spoke with Mr. Heitholt through his rolled down window.

In another statement, Boyd said that he saw Mr. Heitholt's tail lights come on as if he was exiting the parking lot.

 This is the same alley used by the two men Ornt and Trump saw walking away from the murder scene.
Statements to the police by Boyd and others indicated that the alley is commonly used by pedestrians in downtown Columbia as it is near several bars and night clubs.

 Boyd later told the State's investigator a few months before Ferguson's October 2005 trial that when he
left the Tribune parking lot and turned into the alley, he saw two men walking in the alley several feet away. During the habeas proceedings, Boyd added that he was startled when he saw the two men in the alley, as he had been looking in his rear view mirror when he left the Tribune parking lot, and looked forward just in time to avoid hitting the men. Boyd testified that he would not be surprised if the two men had taken down his license plate number.

 Mr. Heitholt's murder went unsolved for two years. Though several leads were followed, and persons of interest were investigated, no arrests were made. The investigative efforts focused on locating the two "persons of interest" Ornt and Trump saw in the parking lot.

 Boyd was never investigated as a person of interest in Mr. Heitholt's murder, though his statements to police placed him with Mr. Heitholt during the time immediately preceding Ornt and Trump's discovery of the crime scene.

Articles appeared in Columbia newspapers about Mr. Heitholt's unsolved murder in and around October 2003. Charles Erickson ("Erickson") read the articles and began to wonder whether he committed the crime. The night Mr. Heitholt was murdered, Erickson and Ferguson (who were then juniors in high school) had been drinking together at By George, a club located within a few blocks of the Tribune. Erickson became
heavily intoxicated, "blacked out," and was unable to remember his actions after leaving the club.

In late December 2003 or early January 2004, Erickson told Ferguson he was having "dream like" memories that he and Ferguson may have murdered Mr. Heitholt. Ferguson told Erickson that they had nothing to do with Mr. Heitholt's murder. Erickson later told friends Nick Gilpin and Art Figueroa about his "dream like"
memories. Nick Gilpin reported the conversation to police. On March 10, 2004, the Columbia Police Department contacted Erickson. After questioning, Erickson confessed to involvement in the robbery and murder of Mr. Heitholt and implicated Ferguson. On the same day, Ferguson was arrested in Kansas City, Missouri. Ferguson denied any involvement in the murder and robbery of Mr. Heitholt. Ferguson told police that he and Erickson left By George in his car, and that he dropped Erickson off at his house before going home.

Ferguson was charged with the class A felony of murder in the first degree and the class A felony of robbery in the first degree. Erickson pled guilty to first degree robbery, second degree murder, and armed criminal
action. In exchange for a lesser sentence, Erickson agreed to testify against Ferguson.

Ferguson's Trial 
Ferguson's case proceeded to a jury trial on October 14, 2005. The physical evidence found at the crime scene could not be tied to Ferguson or Erickson.  In fact, no physical evidence connected either Ferguson or Erickson to Mr. Heitholt's murder or robbery, or to the crime scene.

The State nonetheless theorized that Erickson and Ferguson left By George at some point in the early morning hours of November 1, 2001 with the intention of robbing someone so they could have more money to continue drinking. Cell phone records indicated that Ferguson made a call at 2:08 a.m. near By George that lasted a minute or two. The State theorized that after this call, Erickson and Ferguson retrieved a tire tool. from Ferguson's trunk then walked around in search of a victim. The State theorized that Erickson and Ferguson walked three to four minutes before happening upon Mr. Heitholt in the Tribune parking lot. According to the State, Mr. Heitholt was then beaten and strangled by Erickson and Ferguson over a several minute period between 2:12 a.m. and 2:20 a.m.

 Mr. Heitholt sustained multiple head injuries. The testifying pathologist said that Mr. Heitholt was struck eleven times. The State theorized that these injuries were caused when Erickson struck Mr. Heitholt with the tire tool taken from the trunk of Ferguson's car. Mr. Heitholt's cause of death was determined to be asphyxiation caused by strangulation. A mark on Mr. Heitholt's neck matched his belt buckle, which was
found on the ground nearby along with a part of his belt. The State theorized that Ferguson strangled Mr. Heitholt with Mr. Heitholt's belt. Though the purported motive was robbery, Mr. Heitholt's wallet was found inside the car at the scene. According to the State, Erickson and Ferguson nonetheless returned to By George and continued drinking because Ferguson remembered he had money in his glove compartment.
The State's evidence in support of its theory was limited to Erickson's confession and to an eyewitness identification of Erickson and Ferguson provided by Trump. At trial, Erickson's confession was severely challenged by Ferguson, as were the investigative and interrogation tactics employed by the State in securing Erickson's confession. "Ferguson's trial counsel was successful in . . . seriously undermin[ing]
Erickson's credibility."

Trump testified that notwithstanding what he told police officers immediately after the murder, he came to the sudden realization that he could identify the two men he saw in the parking lot after he received a newspaper from his wife in March or April of 2004 while he was incarcerated.Trump testified that the newspaper was folded in such a way that when he removed it from an envelope, he saw the photographs of Erickson and
Ferguson before realizing the article involved Mr. Heitholt's murder. Trump testified that he immediately recognized the photographs as the men he saw in the parking lot on the night of Mr. Heitholt's murder.

Following this testimony, Trump made an in-court identification of Ferguson. Trump's eyewitness identification testimony was admitted over Ferguson's trial objections and following an unsuccessful motion in limine to exclude the testimony.

Ferguson was convicted of second degree murder (section 565.021.1(2)) and first degree robbery (section 569.020). He was sentenced to consecutive prison terms of thirty years on the murder conviction and ten years on the robbery conviction to be served in the Missouri Department of Corrections. Ferguson's convictions were affirmed on direct appeal.