State's response to Ferguson motion about Michael Boyd

8/2/2019 State's response to Ferguson motion about Michael Boyd

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IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI

STATE EX REL. RYAN FERGUSON, )

)

Petitioner, ))

v. ) No. 11AC-CC00068

)

DAVE DORMIRE, Warden, )

Jefferson City Correctional Center, )

)

Respondent. )

MOTION IN LIMINE

COMES NOW the Respondent, by and through counsel, Assistant Attorney General

Theodore A. Bruce, and hereby moves that this Court limit and exclude any and all evidence,

argument or questions in whatever form, suggesting that Mike Boyd or any other person

may have committed the murder of Kent Heitholt, and, in support, states as follows:

The Petitioner has indicated his intent to allege that the murder of the victim, Kent

Heitholt, was committed by an individual named Michael Boyd. In discovery, the Petitioner

has listed Mr. Boyd as a witness and identified several statements made by Mr. Boyd as

evidence he intends to introduce at the hearing of his petition. Indeed, in a newspaper article

reported in the Columbia Tribune dated February 16, 2011, Petitioners counsel is reported

to have expressed an opinion that Mr. Heitholts DNA and the murder weapon may be in a

vehicle owned by Mr. Boyd.

Regardless of the propriety of such speculative pronouncements by an attorney

regarding ongoing litigation under Missouris Rules of Ethics, such speculation is not

admissible under well established Missouri law.


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Missouris Direct Connection Rule excludes any evidence or argument alleging that

some third person may have committed the crime unless the Defendant establishes a direct

connection between that third person and the crime. State v. Nash, 339 S.W.3d 500, 513

(Mo. banc 2011).

To be admissible, evidence that another person had an opportunity or

motive for committing the crime for which a defendant is being tried

must tend to prove that the other person committed some act directly

connecting him with the crime. The evidence must be of the kind that

directly connects the other person with the corpus delicti and tends

clearly to point to someone other than the accused as the guilty person.

Disconnected and remote acts, outside the crime itself cannot be

separately proved for such purpose; and evidence which can have no

other effect than to cast a bare suspicion on another, or to raise a

conjectural inference as to the commission of the crime by another, is

not admissible.

State v. Rousan, 961 S.W.2d 831, 848 (Mo. banc 1998).

In the context of the admission of evidence regarding alternate suspects, evidence

suggesting motive or opportunity to commit a crime is not admissible in the absence of some

evidence that the alternative suspect did some act directly connecting that suspect with the

alleged crime. State v. Davidson, 982 S.W.2d 238, 242 (Mo. banc 1998). Likewise,

evidence of other bad acts unconnected to the alleged crime itself is not admissible for

purposes of casting bare suspicion on an alternative suspect. State v. Chaney, 967 S.W.2d


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47, 54-55 (Mo. banc 1998)(evidence related to neighbor being a pedophile inadmissible to

cast suspicion on pedophile as alternate suspect in killing of friend of defendants

stepdaughter); State v. Castro, 276 S.W.3d 358, 361 (Mo. App. S.D. 2009)(evidence of

presence of another person with propensity to molest children not admissible to prove that

alternative person molested victim); State v. Riley, 213 S.W.3d 80, 92-93 (Mo. App. W.D.

2006)(evidence that other person in household had used drugs subsequent to date of offense

not admissible in possession case to prove that the other person was the person who

possessed the drugs in question).

Again, the law requires proof that directly connects the other person with thecorpus

delicti, and tends clearly to point out someone besides accused as the guilty person. State v.

Woodworth, 941 S.W.2d 679, 690 (Mo. App. W.D. 1997).

The Missouri Supreme Court has recently affirmed the constitutionality and

applicability of the Direct Connection Rule. State v. Nash,supra. InNash, the third persons

fingerprint was on the victims car, he allegedly lied about knowing the victim, and was seen

with her shortly before her death. 339 S.W.3d at 515. Nevertheless, this was not sufficient

evidence to establish a direct connection to the murder.

In this case, a jury has already found beyond a reasonable doubt that Petitioner

committed the murder. That conviction has been affirmed on appeal, and in previous post-

conviction proceedings.

Under these circumstances, the requirement that Petitioner come forward with legally

sufficient direct evidence before accusing some other third person of the crime is reasonable.


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Petitioner has no such evidence, and has not alleged that any such evidence exists.

Therefore, these accusations are not admissible in this Court, or any court, and should be

excluded.

WHEREFORE, Respondent prays that this Court limit and exclude any evidence,

argument or questions, in whatever form, regarding any claim that Mike Boyd or any other

person may be the real killer of Kent Heitholt for the reasons set forth above.

Respectfully submitted,

CHRIS KOSTER

Attorney General

THEODORE A. BRUCEAssistant Attorney General

Mo. Bar No. 29687P.O. Box 899

Jefferson City, MO 65102

573-751-1508 (Phone) / 573-751-1336 (Facsimile)

[email protected]

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was mailed, postage prepaid,

this 5 day of April, 2012, to:

Samuel Henderson

Attorney at Law10 South Broadway, Suite 2000

St. Louis, MO 63102

Kathleen Zellner &Douglas Johnson

1901 Butterfield Road, Suite 650

Downers Grove, IL 60515


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Shane Farrow

Attorney at Law

601 Monroe Street, Suite 304

Jefferson City, MO 65101

Jayson B. Lenox

Attorney at Law

131 Jefferson Street

St. Charles, MO 63301

_____________________________

Assistant Attorney General

Documents

State's response to Ferguson motion about Michael Boyd