COLUMBIA — The state wouldn’t oppose holding a hearing to examine Charles Erickson’s new sworn statement that he alone robbed and murdered Columbia Daily Tribune sports editor Kent Heitholt — just not right now.
In a court document filed by the state Tuesday opposing Ryan Ferguson’s motion to remand his post-conviction case to the trial court in Boone County, the state argued that Missouri rules of criminal procedure bar Ferguson from introducing new evidence — such as Erickson’s recantation and confession — at this stage of his case.
“The state is not averse to holding a full and fair evidentiary hearing to test the validity of the newly available evidence set forth in Mr. Ferguson’s motion,” the filing says. “But Mr. Ferguson’s motion for remand is not properly addressed to this Court.”
Shaun Mackelprang, the attorney general’s chief counsel for criminal appeals, declined to comment on what might be a more appropriate time and place to present Erickson’s new testimony.
Ferguson’s motion to remand, which is now before the Missouri Court of Appeals for the Western District, includes a videotaped sworn statement in which Erickson says he lied during his testimony at Ferguson’s trial in 2005. Erickson originally testified that he beat Heitholt with a tire tool, Ferguson strangled Heitholt to death and the two then robbed the victim.
But, in his new statement, Erickson says he alone beat and strangled Heitholt while Ferguson tried to stop him.
Heitholt was found dead in the parking lot of the Columbia Daily Tribune early on Nov. 1, 2001. Erickson testified that he began to have "snapshot" memories of committing the crime two years later.
Erickson pleaded guilty to second-degree murder, first-degree robbery and armed criminal action and is serving a 25-year sentence. Ferguson, who was convicted largely on Erickson's testimony against him, is serving 40 years for second-degree murder and first-degree robbery.
In the motion to remand, Ferguson’s lawyer, Kathleen Zellner, cites cases in which Missouri appellate courts have granted a remand to allow the trial court to consider newly discovered evidence. But Mackelprang notes that many of these cases were in the direct appeal stage, a line of appeals Ferguson has already exhausted. Other cases cited by Zellner are different enough from Ferguson’s case that they’re not applicable, according to Mackelprang.
The appellate court will review Ferguson’s motion and the state’s opposition and will likely rule in the next few days, a spokesperson for the court clerk said. If the court denies the motion, it would then base its decision on evidence presented during an evidentiary hearing held in July 2008 in the 13th Circuit for Boone County.