"Missouri executes St. Louis-area man who raped, killed teen girl." (March 26, 2014 6:00 am)

ST. LOUIS • A St. Louis-area man convicted of kidnapping, raping and killing a 17-year-old girl in 1989 was executed early today. Jeffrey Ferguson, 59, was put to death by injection just after midnight at the state prison in Bonne Terre. He was pronounced dead at 12:11 a.m. Among the witnesses was St. Louis Post-Dispatch columnist Bill McClellan. McClellan said he saw no sign of discomfort between the time the drug was administered and the time Ferguson was declared dead. He said Ferguson was turned toward and talking to family and friends of his who were there as witnesses during his final minutes.

Jim Hall, father of victim Kelli Hall, expressed relief at Ferguson's death. "It's been a very long 25 years waiting for this execution," he said at a press conference afterward. Hall said the execution came "301 months to the day since we buried Kelli."

As the lethal drug was administered, Ferguson took a few deep breaths before becoming still, and his daughters cried as he closed his eyes. "I'm sorry to have to be the cause that brings you all into this dark business of execution," Ferguson said in his final statement. "I pray for the victim's family to have peace in their hearts one day and lose the anger, hate and need for revenge that has driven them."

Jim Hall, who also witnessed the execution along with his son and ex-wife, fought back tears as he described how Ferguson strangled his daughter as he raped her 25 years ago. Hall said it took "way too many years" to put Ferguson to death. "This basically tore two families apart," he said after Ferguson's execution. "Hopefully, now we can move forward. ... Kelli can rest now."

Appeals on Ferguson’s behalf were denied late Tuesday night by the U.S. Supreme Court and the 8th U.S. Circuit Court of Appeals. Missouri Gov. had denied a clemency request earlier in the day. Ferguson’s attorneys challenged, among other things, the state’s refusal to disclose where it gets its execution drugs.

Kelli Hall was abducted about 11 p.m. Feb. 9, 1989, from a St. Charles service station where she worked. Her nude body was found 13 days later off River Valley Drive in Maryland Heights. A co-defendant, Kenneth Ousley, 48, of Ellisville, pleaded guilty in 1993 to second-degree murder and was sentenced to life in prison. Ferguson was tried twice in three years for her killing. A jury in 1992 sentenced him to death, but the state Supreme Court reversed the decision because of a faulty jury instruction. Ferguson was tried again in October 1995. The second jury also recommended the death penalty.

Silent at the first trial, Ferguson testified at the second. He claimed he had been drinking and had fallen asleep in the back seat of his Chevrolet Blazer. He denied killing Hall. A witness placed Ferguson within 100 yards of the site of the abduction near the time Hall disappeared. An FBI scientist said DNA of a blood sample from Ferguson matched semen recovered from the victim’s coat. Other witnesses said Ferguson had tried to dispose of rings that had belonged to the victim.

In later years, Ferguson had expressed remorse for the crime. Supporters said he'd found religion, counseled other inmates and helped start a prison hospice program. But St. Louis County prosecutor Bob McCulloch said Ferguson's good deeds in prison didn't make up for the senseless killing of an innocent teenager. He noted that it took several minutes for Hall to die. "She gets abducted, abused in an unspeakable manner by this guy and then slowly murdered and dumped in a field like a bag of garbage," McCulloch said.

A statement issued by Gov. Nixon on Tuesday night said: "Kelli Hall was only 17 when she was abducted from her workplace, raped and brutally murdered. Her life, so full of promise, was brutally taken from her and her family." "The jury that convicted Jeffrey Ferguson of Kelli's murder found that the aggravating circumstances for this crime warranted the death penalty," he said in denying the clemency request. "My decision today upholds that appropriate sentence. " Missouri switched to a one-drug execution method last year. Ferguson’s execution was Missouri’s fifth straight execution using the single drug, pentobarbital. Ferguson’s father was a photographer at the Post-Dispatch. Renyold Ferguson retired in 1995.

ReutersNews

BONNE TERRE, Missouri(Reuters) - Missouri officials executed a man early on Wednesday who was convicted of abducting a teenage girl at the gas station where she worked, then raping and strangling her. Jeffrey Ferguson, 59, was pronounced dead at 12:11 a.m local time at a state prison in Bonne Terre, said Mike O'Connell, a spokesman for the Missouri Department of Public Safety. He was the third man executed in Missouri this year. Ferguson was twice convicted of killing 17-year-old Kelli Hall, whom he kidnapped with an accomplice as she ended her evening shift at a metropolitan St. Louis service station on February 9, 1989. The girl's naked body was found less than two weeks later.

Ferguson was given a lethal injection of 5 grams of pentobarbital, a fast-acting barbiturate at 12:01 a.m. local time, O'Connell said. Ferguson, covered neck to toe with a white sheet and strapped to a gurney, mouthed words and seemed to smile as a group of friends and family blew him kisses just as the drugs began to flow, said a Reuters reporter at the prison. His legs made a flurry of kicking motions under the sheet but he quickly appeared to slip into unconsciousness and took only a few shallow breaths before becoming still. Two young women in the family witness room began to cry.

"She was 17 years old. She had her life in front of her," Jim Hall, Kelli's father, told reporters after the execution as he choked back tears. "It's been a very long 25 years waiting for this execution. Hopefully we can now move forward."

Ferguson's first conviction in 1992 was overturned due to a problem with the jury instructions. He was convicted in a second trial and again sentenced to death. The U.S. Supreme Court late on Tuesday denied last-minute petitions seeking to stay the execution. Attorneys for Ferguson had filed several appeals to try to delay or halt his execution, arguing, among other things, that an FBI agent gave false and misleading testimony at his trial. Missouri Governor on Tuesday denied a clemency petition for Ferguson, finding the jury's decision appropriate.

According to prosecutors, Ferguson had been out drinking at a bar with a friend and then went to meet another friend at the gas station where Hall was ending her shift. Hall was checking the fuel levels in the station tanks when a witness saw her being forced into the back seat of a vehicle by a white male. The next day a maintenance worker found Hall's coat and clothes discarded at the side of the road. A farmer later found her battered and frozen body hidden in a machinery shed.

Ferguson requested and was given an oral sedative early in the evening, prison officials said. For a final meal he ate barbecue ribs, French fries and apple pie. Before being put to death, Ferguson stuck his tongue out and wiggled it toward his relatives. "At this point in my life, I believe that I am the best man that I've ever been," Ferguson said in a final statement. "I'm sorry to have to be the cause that brings you all into this dark business of execution."

Ferguson's execution comes at a time when Missouri, and several U.S. states, are under fire for turning to lightly regulated compounding pharmacies for their lethal injection drugs. Major pharmaceutical companies have stopped allowing sales of their drugs for executions, leaving U.S. states scrambling to come up with alternatives. Two executions planned for March in Oklahoma were postponed until April after the state said it was having trouble obtaining the drugs it needs to perform executions. Advocates for inmates say drugs from compounding pharmacies can lack purity and potency and cause undue suffering in violation of the U.S. Constitution's protections against cruel and unusual punishment.

Ferguson is one of a group of Missouri inmates who sued state officials in 2012 in a challenge to the constitutionality of the state's execution protocols. The case is set for trial on September 15. Missouri has since made a series of changes to its execution protocols. The state is now under scrutiny for adding layers of secrecy to its practices, including its efforts to source drugs from compounding pharmacies. The state has also been criticized for carrying out executions while appeals are awaiting court review.

(Reporting by Carey Gillam in Bonne Terre, Mo. and Eric M. Johnson in Seattle; Editing by Ken Wills and Andrew Heavens)

Murderpedia

"Missouri executes convicted killer, rapist Jeffrey Ferguson," by Jim Salter. (Associated Press March 26, 2014)

BONNE TERRE, Mo. — A death-row inmate convicted of kidnapping, raping and killing a 17-year-old girl in suburban St. Louis was executed early Wednesday in Missouri, marking the state’s fifth execution in as many months. Jeffrey Ferguson abducted Kelli Hall as she finished her shift at a Mobil gas station in St. Charles on Feb. 9, 1989. Her naked, frozen body was found 13 days later on a St. Louis County farm, and investigators determined she had been raped and strangled. Ferguson, 59, was pronounced dead shortly after midnight at the state prison in Bonne Terre.

In an attempt to spare his life, Ferguson’s attorneys made last-minute court appeals challenging, among other things, the state’s refusal to disclose where it gets its execution drugs. Supporters said Ferguson, who expressed remorse for the crime, became deeply religious in prison, counseled inmates and helped start a prison hospice program. “Society doesn’t gain anything by his execution,” Rita Linhardt of Missourians for Alternatives to the Death Penalty, said Tuesday. “He’s not the same man he was 24 years ago.” His attorney also said he was an alcoholic who blacked out the night of the murder.

But St. Louis County prosecutor Bob McCulloch said Ferguson’s good deeds in prison didn’t make up for the senseless killing of an innocent teenager. Calling the crime “unspeakable,” he noted that it took several minutes for Hall to die. “She gets abducted, abused in unspeakable manner by this guy and then slowly murdered and dumped in a field like a bag of garbage,” McCulloch said.

And the courts appeared to agree: the U.S. Supreme Court, the 8th U.S. Circuit Court of Appeals and the governor all refused to halt the execution. “Kelli Hall was only 17 when she was abducted from her workplace, raped and brutally murdered,” Democratic Gov. said in a statement Tuesday. “Her life, so full of promise, was brutally taken from her and her family.” “The jury that convicted Jeffrey Ferguson of Kelli’s murder found that the aggravating circumstances for this crime warranted the death penalty,” Nixon said in denying Ferguson’s clemency request. “My decision today upholds that appropriate sentence.”

Missouri switched to a one-drug execution method late last year. The state obtains the drug, pentobarbital, from a compounding pharmacy that it refuses to name. Ferguson’s attorney, Jennifer Herndon, had argued that the state’s secretive process prohibited the public from knowing exactly how the drug was made and whether it could, in violation of the U.S. Constitution, cause pain and suffering for the inmate. The same drug also was used in the state’s four previous lethal injections, and the inmates showed no outward signs of distress during the execution process.

On the night of the murder, Ferguson and a friend, Kenneth Ousley, were at a Shell service station in St. Charles across the street from the Mobil station where Hall worked. Hall was nearing the end of her eight-hour work shift when she went outside to check the levels of four fuel tanks. A witness said Ferguson’s Chevrolet Blazer pulled up. The witness saw a man standing close to Hall with his hand in his pocket. Investigators said Ferguson was carrying a pistol. About a half-hour later, co-workers went looking for Hall. When they found out she was not home and her purse was still at the station, they contacted police. Some of her clothing was later found by a city worker in the St. Louis County town of Chesterfield. Nearly two weeks later, on Feb. 22, 1989, Warren Stemme was approaching a machine shed on his farm in Maryland Heights, another St. Louis suburb, when he found Hall’s frozen body, naked except for socks. An acquaintance suspicious about Ferguson led police to him, and he was convicted of first-degree murder. Ousley pleaded guilty to second-degree murder in 1993; he is serving a life term but is eligible for parole.

Missouri executed just two men between 2005 and November. But after the state switched from a three-drug execution method to a single-drug protocol last year, executions resumed. All five executions since November have used pentobarbital. Although critics have raised concerns about the drug and the secretive ways Missouri obtains and uses it to kill inmates, more executions are likely. On Friday, the Missouri Supreme Court set an April 23 execution date for William Rousan, who killed a St. Francois County couple, both in their 60s, in 1993. Experts say as many as 20 of Missouri’s 41 death row inmates have exhausted appeals and could also face execution dates soon, perhaps making 2014 the most prolific year ever for executions in the state. Missouri executed nine men in 1999, the most-ever in a single calendar year.

State of Missouri v. Jeffrey Ferguson
Missouri Supreme Court Case Number: SC78609

Case Facts:

On February 9, 1989, at about 9:00 p.m., Melvin Hedrick met Jeffrey Ferguson and a friend, Kenneth Ousley, at Ferguson's home. Ferguson asked Hedrick if he would be interested in buying a .32 caliber pistol. Although Hedrick said that he was not interested, he suggested that they take the pistol with them because they might be able to sell it at a bar. Ferguson and Hedrick then made their way to Brother's Bar in St. Charles, where they stayed for about forty-five minutes to an hour. At the bar, Hedrick began to feel ill, and Ferguson arranged for Ousley to meet them at a Shell service station on 5th Street, near Interstate 70. Between 10:50 and 10:55 p.m., Ferguson and Hedrick made the short trip to the Shell station, where Ousley was waiting in Ferguson's brown and white Blazer. Ferguson put the .32 caliber pistol in his waistband and then walked toward the passenger side of the Blazer as Hedrick left for home.

Seventeen-year-old Kelli Hall, the victim in the case, worked at a Mobil service station across the street from the Shell station where Ousley and Ferguson met. Hall's shift was scheduled to end at 11:00 p.m., and at about that time, one of Hall's co-workers, Tammy Adams, arrived at the Mobil station to relieve her. A few minutes later, Robert Stulce, who knew Hall, drove up to the Mobil station to meet a friend and noticed Hall checking and recording the fuel levels in the four tanks at the front of the station. Stulce also saw a brown and white Blazer, which he later identified as identical to Ferguson's Blazer, pull in front of him and stop in the parking lot near Hall. When Stulce looked again, Hall was facing a white male who was standing between the open passenger door and the body of the Blazer. The man stood very close to Hall and appeared to have one hand in his pocket and the other hand free. Stulce then saw Hall get into the back passenger seat of the vehicle.

In the meantime, Hall's boyfriend, Tim Parres, waited for her in his car, which he had parked behind the station. After waiting for Hall for about half an hour, Parres went inside the station looking for her, but to no avail. He and Tammy Adams then determined that Hall was not at home, but that her purse was still at the station, and at that point they called the police. Early on the morning of February 22, Warren Stemme was working on his farm in the Missouri River bottoms. As he walked by a machinery shed, he discovered Kelli Hall's body, frozen, clothed only in socks, and partially obscured by steel building partitions that had been leaned up against the shed.

websolutions.learfield.com

MissouriDeathRow.Com

The Missouri Department of Public Safety reports 59-year-old Jeffrey Ferguson has died by a lethal injection of pentobarbital at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre. The execution was carried out at 12:01 a.m. He was pronounced dead ten minutes later. Ferguson and another man, Kenneth Ousley, abducted 17-year-old Kelli Hall from the St. Charles gas station she was working at on February 9, 1989. Her body was found three weeks later on a nearby farm. DNA evidence found on Hall’s coat was matched to Ferguson. Ferguson and Ousley were charged with first degree murder but Ousley pleaded guilty and received a life sentence (Source: The Missourinet)

State of Missouri v. Jeffrey Ferguson
Missouri Supreme Court Case Number: SC78609
Jeffrey Ferguson was executed at 12:01 a.m., March 26, 2014

Case Facts: On February 9, 1989, at about 9:00 p.m., Melvin Hedrick met Jeffrey Ferguson and a friend, Kenneth Ousley, at Ferguson’s home. Ferguson asked Hedrick if he would be interested in buying a .32 caliber pistol. Although Hedrick said that he was not interested, he suggested that they take the pistol with them because they might be able to sell it at a bar. Ferguson and Hedrick then made their way to Brother’s Bar in St. Charles, where they stayed for about forty-five minutes to an hour. At the bar, Hedrick began to feel ill, and Ferguson arranged for Ousley to meet them at a Shell service station on 5th Street, near Interstate 70. Between 10:50 and 10:55 p.m., Ferguson and Hedrick made the short trip to the Shell station, where Ousley was waiting in Ferguson’s brown and white Blazer. Ferguson put the .32 caliber pistol in his waistband and then walked toward the passenger side of the Blazer as Hedrick left for home.

Seventeen-year-old Kelli Hall, the victim in the case, worked at a Mobil service station across the street from the Shell station where Ousley and Ferguson met. Hall’s shift was scheduled to end at 11:00 p.m., and at about that time, one of Hall’s co-workers, Tammy Adams, arrived at the Mobil station to relieve her. A few minutes later, Robert Stulce, who knew Hall, drove up to the Mobil station to meet a friend and noticed Hall checking and recording the fuel levels in the four tanks at the front of the station. Stulce also saw a brown and white Blazer, which he later identified as identical to Ferguson’s Blazer, pull in front of him and stop in the parking lot near Hall. When Stulce looked again, Hall was facing a white male who was standing between the open passenger door and the body of the Blazer. The man stood very close to Hall and appeared to have one hand in his pocket and the other hand free. Stulce then saw Hall get into the back passenger seat of the vehicle.

In the meantime, Hall’s boyfriend, Tim Parres, waited for her in his car, which he had parked behind the station. After waiting for Hall for about half an hour, Parres went inside the station looking for her, but to no avail. He and Tammy Adams then determined that Hall was not at home, but that her purse was still at the station, and at that point they called the police. Early on the morning of February 22, Warren Stemme was working on his farm in the Missouri River bottoms. As he walked by a machinery shed, he discovered Kelli Hall’s body, frozen, clothed only in socks, and partially obscured by steel building partitions that had been leaned up against the shed.

Victim’s family: “It’s over. Thank God”

In his final statement, convicted rapist and killer Jeffrey Ferguson wrote that he prays “for the victim’s family to have peace in their hearts one day and lose the anger, hate and need for revenge that has driven them” and that they find “forgiveness, compassion and love in their hearts instead.”

However, Kelli Hall’s father, Jim Hall, told reporters after the execution that what Ferguson felt in dying wasn’t one iota compared to the fear and pain his daughter felt when her life was taken from her at age 17. Jim Hall was joined by his former wife and Kelli’s mother, Susan King, two brothers, Stephen (and Melissa) Hall and Michael Venegoni, Jr., and a cousin, Chris Parmeter, in saying that today was a “special day for Kelli’s family.” “It’s been a very long 25 years waiting for this execution, way too long,” Jim said. “My family and I have been devastated for years over this. His family was devastated by this. This basically tore two families apart. That should have never been. It’s been so long, it tested our ability to move forward.” “They took her someplace, they undressed her and Kenneth Ousley raped her while Ferguson stood by and waited his turn,” Jim said, fighting to keep his composure. “Ferguson was more violent than Ousley, because he killed her while he was raping her.”

He says the Hall family was elated when an execution date had been set last month. “We waited 25 years for that news,” Jim said. “It’s been 301 months since we buried Kelli. To the day.” He says now, maybe, his family can move on. “I’m not sure. We’ll find out starting tomorrow,” he said. “Kelli can rest now.” “It’s over, thank God,” said Kelli’s mother, Susan King.

Governor issued a brief statement about the execution, saying that Jeffrey Ferguson was convicted of Kelli’s murder and sentenced to the ultimate punishment provided by Missouri law. “That sentence has now been carried out,” Nixon said. “I ask that Missourians remember Kelli Hall at this time and join us in keeping her family in their thoughts and prayers.” Ferguson’s brother, friend and two daughters also witnessed the execution. His daughters wept as the curtain was drawn and he lie on the gurney. As he had said he would, Ferguson made funny faces at them, and mouthed that he loved them. He was then administered a lethal dose of pentobarbital, waggled his feet rapidly, took a few breaths, then closed his eyes. He was pronounced dead shortly after. P>

Missouri.Net

Missouri’s Attorney General has issued a statement following the execution early this morning of Jeffrey Ferguson at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre. In the statement, Chris Koster says, “More than two decades have passed since Jeffrey Ferguson kidnapped, raped, and murdered seventeen-year-old Kelli Hall. While this sentence cannot bring Kelli back, her parents have waited a quarter-century for justice for their daughter. My thoughts and prayers tonight are with Kelli Hall’s family and friends, in the hope that they can now have a degree of closure and finality on this awful crime.”

Agency reports Jeffrey Ferguson has been executed
March 26, 2014 By Mike Lear

A convicted inmate has been executed for the 1989 murder of a St. Louis County teenager.

The Missouri Department of Public Safety reports 59-year-old Jeffrey Ferguson has died by a lethal injection of pentobarbital at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre. The execution was carried out at 12:01 a.m. He was pronounced dead ten minutes later. Ferguson and another man, Kenneth Ousley, abducted 17-year-old Kelli Hall from the St. Charles gas station she was working at on February 9, 1989. Her body was found three weeks later on a nearby farm. DNA evidence found on Hall’s coat was matched to Ferguson. Ferguson and Ousley were charged with first degree murder but Ousley pleaded guilty and received a life sentence.

Governor denies clemency for Ferguson
March 25, 2014 By Mike Lear

Governor (D) has denied a petition for clemency for convicted inmate Jeffrey Ferguson. Ferguson is scheduled to be executed shortly after midnight for the 1989 murder of Kelli Hall. Nixon issued the following statement to the media:

“Earlier today, I received from my counsel a final briefing on the petition for clemency from Jeffrey Ferguson, which has been reviewed in detail. After careful deliberation, I have denied this petition. This is a process and a gubernatorial power I do not take lightly. The specific circumstances and set of facts for each case are – and must be – considered on their own. “Kelli Hall was only 17 when she was abducted from her workplace, raped and brutally murdered. Her life, so full of promise, was brutally taken from her and her family. The jury that convicted Jeffrey Ferguson of Kelli’s murder found that the aggravating circumstances for this crime warranted the death penalty. My decision today upholds that appropriate sentence. “I ask that the people of Missouri remember Kelli Hall and keep her family in their thoughts and prayers.”

Ferguson execution set for March 26, says he is ‘ready to go’ (AUDIO)
March 19, 2014 By Jessica Machetta

One week to live. Jeffrey Ferguson says he’s been moved into solitary confinement, “the hole,” and expects to be transferred from the prison in Potosi to Bonne Terre on Friday. Though he’s been cut off from the rest of the prison population and his friends there, he maintains contact with his loved ones on the outside. “My two brothers and brothers wife and my children and grandchildren and my friends, a whole network of people,” he said. “A lot of people have been calling and sending letters.” Including letters, he said, from other victims’ families. Those who “want to know about forgiveness.”

Ferguson says he was blacked out on alcohol and cocaine when 17-year-old Kelli Hall was abducted, raped and murdered in St. Charles. He says he might or might not have committed the crime. However, he has taken responsibility for the crime and is ready to pay the ultimate price. Ferguson is to be executed by lethal injection at midnight on March 26th. “Drinking and drugging, and blacking out every night,” he said. “For the last two years, I would drink until I passed out and then I’d wake up places I didn’t know where I was at and what I did. And this night I went out with these guys and we abducted and sexually assaulted and killed this gal, I don’t even remember seeing this gal. I don’t know how I got home that night, none of that. But, you know, maybe … the way the prosecutor said … I don’t know, it seems a little far fetched that a guy in that bad of shape would be able to do all that but … they gave me the death penalty.”

Ferguson said he was weak and didn’t have any faith or courage. “I should have been a better man,” he said. “This is what you get.” Ferguson seems conflicted on whether he wants to live or die. He says he wants to live, and that the death penalty doesn’t bring justice to victims’ families, but that he’s a Christian man and ready to “meet his maker.” “It was 25 years ago, this is just a terrible way to do things,” he said. “I’m not complaining about being put to death, you know, kill me. I’m going to go to heaven to be with my Lord and Savior. That beats this place.” Meanwhile, he said he’s talking to his family to get funeral arrangements in place and try to make this as easy as possible on them. He knows he cannot do that for Kelli Hall’s family. He is sorry, but said he has no words that can take away their pain. “They had this bad thing happen to them,” he said. “They don’t need to have my name shoved in their face, and they don’t need to have their wounds opened again like this execution’s going to do. They’re going to bring them down there … stick microphones in their face, they’re going to start it all over again. It’s going to be like the first day for them all over again.”

This isn’t the first time Ferguson’s number has come up. He was scheduled to die by lethal injection in 2011, after Martin Link, when the state’s three-drug protocol was brought into question. Link was the last offender in Missouri to be put to death using the three-drug cocktail containing sodium pentothal, which renders the offender unconscious, followed by pancuronium bromide, which causes paralysis, and finally, potassium chloride, which stops the heart. Since then, four offenders have been put to death using a single drug protocol, pentobarbital. It’s the same drug commonly used to euthanize animals and was once the standard drug used to put people under before surgery.

Ferguson thinks the process is cruel and unusual, but he’s not talking about the clinical aspect. He said he was prepared to die three years ago, “packed up, ready to go.” “I told everybody it was their last visit,” he said. “You talk about cruel and unusual, it’s like somebody takes a gun and has a bullet in it and they play Russian Roulette with you and they keep clicking the chamber and they keep pointing it right at your head and you know they’re going to kill you, and ‘click’ and then it’s like, ‘Well, hang on a minute, let me re-load.’ “Do it or don’t do it,” he said. “Don’t dangle me over the fire. Get it over with. I’m ready to get it over with.”

Ferguson said his lawyer is still working to get the execution stayed or to get his sentence commuted, but that he doesn’t put too much faith in that. He said the only person that you can count on in life is Jesus Christ. And because of that, he’s making plans with his family for his funeral. “I don’t have any fear in my heart at all,” he said. “I’m ready to do this. I’m ready to go. I’m going to go up there, they’re going to pull the curtains open and my family is going to be there. And I’m going to look at them and I’m going to smile and then make a funny face at them and they’re going to laugh, and then I’m going to tell them I love them and then I’ll go to sleep and die. Then I’m going to open my eyes and it’ll be Jesus and he’ll be going, ‘Come here, man!’ and it’ll be fantastic. That’s the plan.”

(AUDIO) Interview with Jeffrey Ferguson (29:16)

St. Louis Post-Dispatch

Twenty five years ago Tuesday, Jim Hall and his former wife Susan King buried their daughter, Kelli Hall. She had been raped and murdered. Jim and Susan celebrated the anniversary — if celebrating is the right word — by going to the South Central Correctional Center in Licking, Mo., to argue against parole for Kenneth Ousley. In 1993, he pleaded guilty to second-degree murder in connection with Kelli’s death, receiving a life sentence. Baby Life. He was, and is, eligible for parole. Tuesday was his fourth parole hearing. It began at 10 a.m. That was the same time Kelli’s funeral Mass began 25 years earlier at St. Ferdinand Catholic Church in Florissant.

Victims — or family members of victims — are given an option when they speak at parole hearings. They can speak before the would-be parolee arrives, or they can make their presentation in the presence of the would-be parolee. As he has done at the first three hearings, Jim opted to make his presentation with Ousley in the room. Jim was brief and to the point. He said Ousley was one of two men who abducted their 17-year-old daughter from the gas station where she was working. They raped her, and then the other man strangled her while Ousley watched. We do not need people like this on the streets, Jim said. Jim and Susan were accompanied by their son Stephen and his wife, Melissa.

At the last hearing five years ago, Ousley’s wife was present. She had married him in prison a year earlier. She was blond and country. Jim and Susan did not speak to her. She was not at this hearing. One of the hearing officers told Susan that Ousley’s wife was ill. When Jim was finished, Ousley addressed the three-person board. As he has done in the past, he denied involvement in the crime. He said he only helped dispose of the body. He seemed oddly confident, Jim thought. Oddly confident because his story made little sense. One of his pubic hairs was found on one of Kelli’s socks. Perhaps she kicked him. No one knows. That bothers Jim. At the first three hearings, Jim said that if Ousley would write down exactly what happened, and if the police confirmed that his account jibed with the evidence, Jim and Susan would quit attending the hearings to argue against parole. “I don’t want to know the details, but I think they should be in the record,” Jim told me later. But once again, Ousley denied involvement. The board seemed skeptical, Jim and Susan told me. Which means, they hope, that Ousley’s parole will be denied.

Meanwhile, another part of their long ordeal seems to be nearing an end. One week ago, the family was at Jefferson Barracks Cemetery to bury Jim’s aunt. Stephen and Melissa’s daughter received a text message. A date had been set for Jeffrey Ferguson’s execution. Ferguson was Ousley’s partner 25 years ago. He was seen marching Kelli into his Chevy Blazer. He was convicted of strangling her. When she first heard the news, Susan couldn’t process the information. “I felt emotionally blocked,” she said. “Then I felt elation.”

A year ago, when a shortage of drugs had led to a de facto moratorium on executions, Susan told me she was afraid she would die before Ferguson. She is now 67. Jim had seemed more ambivalent about the de facto moratorium. He said the sentence had been handed down, and should be carried out, but he seemed almost resigned to the idea that it would not be. He said he believed that the death penalty can serve as a deterrent, but only if it is carried out in a reasonable amount of time. We also talked back then about the notion that people change, and the state can end up executing a different person than the one who was convicted. In fact, Ferguson made that point when I talked to him about the de facto moratorium. “That person died a long time ago,” he said.

But now that a date has been set for Ferguson’s execution — March 26 — Jim no longer feels any sense of ambivalence. “I’m looking forward to it,” he said of the execution. “I don’t care about the last 25 years. I don’t care if he’s found God. Maybe he’ll get to heaven. That’s not up to me. Twenty-five years ago, he murdered my daughter.” She would be, should be, 42 now. She’d almost surely have a family of her own. By the way, Stephen’s daughter, the one who got the text message at the cemetery? Her name is Kelli Hall. She was named after the aunt she never knew. She’s now 21, four years older than her aunt was when she was murdered 25 years ago.

St. Louis Post-Dispatch

"McClellan: The execution of Jeffrey Ferguson closed chapters in several lives," by Bill McClellan. (March 28, 2014 1:30 am)

Kelli Hall would have been 43 next month. As a teenager, she was headstrong, smart and hardworking. If it’s possible to plot a future from the trajectory of a life stopped at 17, she’d have gotten married at a young age. Would have had kids. Beyond that, things are hazy. Maybe she’d have worked outside the home. Maybe not. She might have been a soccer mom. The possibilities are endless. Because he snuffed out those possibilities, Jeffrey Ferguson was executed early Wednesday.

After the execution, the state released his final statement. “At this point in my life, I believe that I am the best man that I’ve ever been ...” That is a nice thought. It speaks of redemption. On the other hand, it speaks of a squandered life. Ferguson was not a dead-end kid who needed prison to find himself. He came from a solid, middle-class family. His father was a photographer for this newspaper. Jeffrey Ferguson himself married a nice woman and had two daughters. He had a clear path to a good life. He became a boozer and a druggie. He left his family. His new girlfriend later told police that he had broken her face. Literally. She had a metal plate in her face. When he kidnapped Kelli from her job at a gas station in St. Charles, he was drunk. It was not a carefully conceived crime.

“We knew who we wanted before we found her body,” Tim Harvey said. Harvey was a detective with the St. Charles Police Department who worked the case. He attended the execution with Patrick McCarrick, who still works for the department. Harvey now works as an investigator for the St. Charles County prosecuting attorney’s office. McCarrick and Harvey were state witnesses. So was I.

After the execution, Kelli’s father, Jim Hall, read a statement to the press. Kelli’s mother, Susan King, sat next to her ex-husband. They were divorced before Kelli’s murder, but they have remained friends throughout the years. When Jim momentarily seemed overcome by emotion, Susan rubbed his back. Jim’s statement was gracious. He spoke about Kelli and bemoaned the long wait for her killer’s execution, but he also made reference to Ferguson’s other victims. This crime devastated two families, Jim said.

Executions are somber affairs. The death chamber is a small room with viewing areas on three sides. The state’s witnesses and the condemned prisoner’s guests are on either side, facing each other. The family and friends of the victim face the condemned. They are not visible to the other two groups. The condemned prisoner is lying on the gurney. He is covered by a sheet. An IV can be seen coming from the wall and snaking under the sheet. When the curtain opened shortly before midnight, I saw several people on the other side, but my eyes were drawn to two young women. I figured they were Ferguson’s daughters.

I first saw them 25 years ago. I was at the St. Louis County jail to interview Joseph Paul Franklin. I saw a woman with two young girls in the waiting room. Several years later, I was visiting a man in prison. The visiting area was a cafeteria with tables in the middle and vending machines along the walls. I saw the same woman and the same little girls sitting at a table with Ferguson. Then the little girls went to a vending machine and Ferguson and his wife were alone. “What does a man say at a moment like that?” I wondered. I visited Ferguson in prison last year. He told me his wife had long ago divorced him and had remarried. He was no longer part of her life. He said his daughters wouldn’t take his calls or answer his letters. Jeffrey Ferguson, was sentenced to death in 1995 for the 1989 murder of 17-year-old Kelli Hall.

But there they were as Tuesday night turned into Wednesday morning. Good for them, I thought. They looked at their father and suddenly they both smiled. His face was turned toward them and I could not see what he was doing. I figured he was mouthing words. I later learned he put his tongue out and waggled it. He had told a television reporter he intended to make funny faces. He sent me a letter last month after the state set his execution date. “I should have been home with my family. I should have been a more responsible man and father and I failed miserably,” he wrote.

Paradise Lost. That’s what he’s looking at in his final moments. His death itself was anticlimactic. He must have closed his eyes, because his daughters quit smiling. Then the curtains closed while medical personnel confirmed that he was dead. Afterward, Jim and Susan and other family members came into the media area. They had a photo of Kelli for the television people who didn’t have one. This is our daughter, he said.

St. Louis Post-Dispatch

"McClellan: Death penalty raises complicated questions for murder victim's parents," by Bill McClellan. (March 24, 2013 12:15 am)

Kelli Hall was 17 and working at a gas station in St. Charles when she was abducted, raped and murdered in 1989. Jeffrey Ferguson was convicted of first-degree murder and sentenced to death. Samuel Ousley pleaded guilty to second-degree murder and received a life sentence with the possibility of parole. He is still in prison. Sixty-one men have been executed in Missouri since Ferguson was sentenced to death. When Martin Link was executed in February 2011, it appeared that Ferguson would be next. But one of the three drugs used in the cocktail for executions is no longer available, and a proposal to use a single drug is tied up in court. At the moment, then, there is a de facto moratorium on executions in Missouri. I visited Kelli Hall’s parents last week to hear their thoughts on the moratorium. They were divorced when Kelli was 3, but have remained friends.

Sue King is 66 and lives with two dogs and a cat. She is a widow. Her walls are filled with family photographs. One is of her brother, Stephen. He was killed in a hunting accident at the age of 17. Many of the photographs are of Kelli. Others are of her son, Stephen, his wife and two children. His oldest child is named after his late sister. It has been more than 24 years since Kelli was murdered, and Susan says the pain is as bad now as it was then. The de facto moratorium on executions makes no sense to Susan. She called the problem with getting the appropriate drugs “Mickey Mouse” nonsense. If the state can’t get the drugs it needs, it ought to come up with another method. She mentioned the electric chair. But she is not confident that will happen. She suspects Ferguson will out-live her. He is 58. “I was a fence-sitter (on the death penalty) before they took Kelli,” she said. “I jumped off the fence real quick. I was so damn mad. I’m not angry any more. I hurt all the time.”

Not long ago, she ran into Kelli’s old boyfriend. He’s been married and divorced, and he has a child. Kelli would be 41 now, almost certainly with children of her own. It hurts Sue to think about that. Sue does not expect closure with an execution. Instead, it is a matter of justice, she said. “Him being executed would not end it. Part of me is gone. But everybody is accountable for what they do in life,” she said.

Jim Hall is 66. He is retired. A stepdaughter and her son were visiting the house he rents in Hazelwood when I stopped by. I remembered from court long ago that he favored the death penalty, but he did not seem as firm in that conviction as Sue.

Ferguson’s father was a Post-Dispatch photographer, and during the penalty phase of the trial, he pleaded with the jury to spare his son’s life. After the jury voted for the death penalty, Hall said to me, “Your friend really got to me. They say that mothers have a bond with children, but we do, too. You could hear it in his voice. I know that Ferguson deserves the death penalty, but after listening to your friend, I could have settled for life without parole.” I asked if the years had changed his thinking at all. He considered the question. It’s very complicated, he said. “I truly believe that the death penalty — if used properly — is a good thing. It can serve as a deterrent. It has been used that way in traditional societies. But it has to be carried out in a reasonable amount of time,” he said.

Hall was raised Catholic and then drifted away from religion. He said that after his daughter’s murder, he blamed God for several years. Then, about 18 years ago, he came back to religion. He said he joined a non-denominational, Bible-based church and was born again. He became involved in youth ministry. “Knowing what I know today, I probably wouldn’t have pushed for the death penalty,” he said. Does that mean he no longer thinks Ferguson should be executed? No, that is not what he meant. “This is what he got. We’ve waited this long,” Hall said.

Kelli’s photo hangs in his house, too, and like Sue, he is reminded of his daughter often. He said that one spring day a couple of years ago, he was at a hospital, and a young woman was talking with a friend on a nearby bench. She said she wouldn’t be seeing her dad on Father’s Day because he was on death row for killing a young woman. Hall said he listened and realized the woman talking was one of Ferguson’s daughters. “She was a beautiful young woman,” he said. As he said, it is all very complicated.

Kansas City Star

"Missouri executes convicted killer, rapist Jeffrey Ferguson," by Jim Salter. (Associated Press March 26, 2014)

BONNE TERRE, Mo. — A death-row inmate convicted of kidnapping, raping and killing a 17-year-old girl in suburban St. Louis was executed early Wednesday in Missouri, marking the state’s fifth execution in as many months. Jeffrey Ferguson abducted Kelli Hall as she finished her shift at a Mobil gas station in St. Charles on Feb. 9, 1989. Her naked, frozen body was found 13 days later on a St. Louis County farm, and investigators determined she had been raped and strangled. Ferguson, 59, was pronounced dead shortly after midnight at the state prison in Bonne Terre.

In an attempt to spare his life, Ferguson’s attorneys made last-minute court appeals challenging, among other things, the state’s refusal to disclose where it gets its execution drugs. Supporters said Ferguson, who expressed remorse for the crime, became deeply religious in prison, counseled inmates and helped start a prison hospice program. “Society doesn’t gain anything by his execution,” Rita Linhardt of Missourians for Alternatives to the Death Penalty, said Tuesday. “He’s not the same man he was 24 years ago.” His attorney also said he was an alcoholic who blacked out the night of the murder.

But St. Louis County prosecutor Bob McCulloch said Ferguson’s good deeds in prison didn’t make up for the senseless killing of an innocent teenager. Calling the crime “unspeakable,” he noted that it took several minutes for Hall to die. “She gets abducted, abused in unspeakable manner by this guy and then slowly murdered and dumped in a field like a bag of garbage,” McCulloch said. And the courts appeared to agree: the U.S. Supreme Court, the 8th U.S. Circuit Court of Appeals and the governor all refused to halt the execution. “Kelli Hall was only 17 when she was abducted from her workplace, raped and brutally murdered,” Democratic Gov. said in a statement Tuesday. “Her life, so full of promise, was brutally taken from her and her family.” “The jury that convicted Jeffrey Ferguson of Kelli’s murder found that the aggravating circumstances for this crime warranted the death penalty,” Nixon said in denying Ferguson’s clemency request. “My decision today upholds that appropriate sentence.”

Missouri switched to a one-drug execution method late last year. The state obtains the drug, pentobarbital, from a compounding pharmacy that it refuses to name. Ferguson’s attorney, Jennifer Herndon, had argued that the state’s secretive process prohibited the public from knowing exactly how the drug was made and whether it could, in violation of the U.S. Constitution, cause pain and suffering for the inmate. The same drug also was used in the state’s four previous lethal injections, and the inmates showed no outward signs of distress during the execution process.

On the night of the murder, Ferguson and a friend, Kenneth Ousley, were at a Shell service station in St. Charles across the street from the Mobil station where Hall worked. Hall was nearing the end of her eight-hour work shift when she went outside to check the levels of four fuel tanks. A witness said Ferguson’s Chevrolet Blazer pulled up. The witness saw a man standing close to Hall with his hand in his pocket. Investigators said Ferguson was carrying a pistol. About a half-hour later, co-workers went looking for Hall. When they found out she was not home and her purse was still at the station, they contacted police. Some of her clothing was later found by a city worker in the St. Louis County town of Chesterfield.

Nearly two weeks later, on Feb. 22, 1989, Warren Stemme was approaching a machine shed on his farm in Maryland Heights, another St. Louis suburb, when he found Hall’s frozen body, naked except for socks. An acquaintance suspicious about Ferguson led police to him, and he was convicted of first-degree murder. Ousley pleaded guilty to second-degree murder in 1993; he is serving a life term but is eligible for parole.

Missouri executed just two men between 2005 and November. But after the state switched from a three-drug execution method to a single-drug protocol last year, executions resumed. All five executions since November have used pentobarbital. Although critics have raised concerns about the drug and the secretive ways Missouri obtains and uses it to kill inmates, more executions are likely. On Friday, the Missouri Supreme Court set an April 23 execution date for William Rousan, who killed a St. Francois County couple, both in their 60s, in 1993. Experts say as many as 20 of Missouri’s 41 death row inmates have exhausted appeals and could also face execution dates soon, perhaps making 2014 the most prolific year ever for executions in the state. Missouri executed nine men in 1999, the most-ever in a single calendar year.

Daily Mail Online

"Killer makes funny faces to his daughters as they see him executed for rape and murder," by Belinda Robinson. (26 March 2014)

Jeffrey Ferguson, 59, was executed by lethal injection at the state prison in Bonne Terre, Missouri The 59-year-old was accused of kidnapping Kelli Hall as she finished her shift at a Mobil gas station in St. Charles, Missouri on Feb. 9, 1989 After the execution, the victims father Jim Hall said: ‘Hopefully, now we can move forward’

Her killer was animated just before his execution as he lay strapped to a hospital gurney. He had enjoyed a final meal he ate barbecue ribs, French fries and apple pie. To ease the tension, he made funny faces and mouthed words to relatives, who included his two daughters, sitting in the observation room. As the lethal drug was administered, he took a few deep breaths before becoming still, and his daughters cried as he closed his eyes. He was pronounced dead at 12:11 a.m.

In his final statement, Ferguson said: ‘I'm sorry to have to be the cause that brings you all into this dark business of execution. I pray for the victim's family to have peace in their hearts one day and lose the anger, hate and need for revenge that has driven them.’

The victim's father Jim also witnessed the execution along with his son and ex-wife, who fought back tears as he described how Ferguson strangled his daughter as he raped her 25 years ago. He said it took ‘way too many years’ to put him to death. 'This basically tore two families apart,’ he said after Ferguson's execution. ‘Hopefully, now we can move forward. ... Kelli can rest now.’

On the night of the murder, Ferguson and a friend, Kenneth Ousley, were at a Shell service station across the street from the Mobil gas station where Hall worked. The teenager was nearing the end of her eight-hour shift when she went outside to check the levels of four fuel tanks. A witness said Ferguson's Chevrolet Blazer pulled up and a man standing close to Hall had his hand in his pocket. Investigators said Ferguson was carrying a pistol.

About a half-hour later, co-workers went looking for Hall and contacted police when they realized she wasn't home and her purse was still at the station. Some of her clothes were later found in another town. Nearly two weeks later, on Feb. 22, 1989, Warren Stemme was approaching a machine shed on his farm in Maryland Heights, another St. Louis suburb, when he found Hall's body, naked except for socks.

An acquaintance suspicious about Ferguson led police to him, and he was convicted of first-degree murder. Meanwhile, Mr Ousley pleaded guilty to second-degree murder in 1993; he is serving a life term but is eligible for parole.

Jim Hall said Wednesday that his family will fight to make sure Mr Ousley is never paroled. In an attempt to spare Ferguson's life, his attorneys made last-minute court appeals challenging, among other things, the state's refusal to disclose where it gets its execution drugs. Supporters also said Ferguson was remorseful, became deeply religious in prison, counselled inmates and helped start a prison hospice program. His attorney also said he was an alcoholic who blacked out the night of the murder. ‘Society doesn't gain anything by his execution,’ Rita Linhardt of Missourians for Alternatives to the Death Penalty, said Tuesday. ‘He's not the same man he was 24 years ago.’

But St. Louis County prosecutor Bob McCulloch said Ferguson's good deeds in prison didn't make up for the senseless killing of an innocent teenager. He noted that it took several minutes for Hall to die. ‘She gets abducted, abused in an unspeakable manner by this guy and then slowly murdered and dumped in a field like a bag of garbage,’ McCulloch said. And the courts appeared to agree: the U.S. Supreme Court, the 8th U.S. Circuit Court of Appeals and the governor all refused to halt the execution.

Missouri switched to a one-drug execution method late last year. The state obtains the drug, pentobarbital, from a compounding pharmacy that it refuses to name. Ferguson's attorney, Jennifer Herndon, had argued that the state's secretive process prohibited the public from knowing exactly how the drug was made and whether it could cause pain and suffering for the inmate. The same drug was used in the state's four previous lethal injections. Like Ferguson, those inmates also showed no outward signs of distress during the execution process.

Missouri executed just two men between 2005 and November. But after the state switched from a three-drug execution method to a single-drug protocol last year, executions resumed. Although critics have raised concerns about the drug and the secretive ways Missouri obtains and uses it to kill inmates, more executions are likely. Experts say as many as 20 of Missouri's 41 death row inmates have exhausted appeals and could also face execution dates soon, perhaps making 2014 the most prolific year ever for executions in the state. Missouri executed nine men in 1999, the most-ever in a single calendar year.

ProDeathPenalty.Com

On February 9, 1989, at about 9:00 pm, Melvin Hedrick met Jeffrey Ferguson and a friend, Kenneth Ousley, at Ferguson's home. Ferguson asked Hedrick if he would be interested in buying a .32 caliber pistol. Although Hedrick said that he was not interested, he suggested that they take the pistol with them because they might be able to sell it at a bar. Ferguson and Hedrick then made their way to Brother's Bar in St. Charles, where they stayed for about forty-five minutes to an hour. At the bar, Hedrick began to feel ill, and Ferguson arranged for Ousley to meet them at a Shell service station on 5th Street, near Interstate 70. Between 10:50 and 10:55 pm, Ferguson and Hedrick made the short trip to the Shell station, where Ousley was waiting in Ferguson's brown and white Blazer. Ferguson put the .32 caliber pistol in his waistband and then walked toward the passenger side of the Blazer as Hedrick left for home.

Seventeen-year-old Kelli Hall, the victim in the case, worked at a Mobil service station across the street from the Shell station where Ousley and Ferguson met. Kelli's shift was scheduled to end at 11:00 p.m., and at about that time, one of Kelli's co-workers, Tammy Adams, arrived at the Mobil station to relieve her. A few minutes later, Robert Stulce, who knew Kelli, drove up to the Mobil station to meet a friend and noticed Kelli checking and recording the fuel levels in the four tanks at the front of the station. Stulce also saw a brown and white Blazer, which he later identified as identical to Ferguson's Blazer, pull in front of him and stop in the parking lot near Kelli. When Stulce looked again, Kelli was facing a white male who was standing between the open passenger door and the body of the Blazer. The man stood very close to Kelli and appeared to have one hand in his pocket and the other hand free. Stulce then saw Kelli get into the back passenger seat of the vehicle.

In the meantime, Kelli's boyfriend, Tim Parres, waited for her in his car, which he had parked behind the station. After waiting for Kelli for about half an hour, Parres went inside the station looking for her, but to no avail. He and Tammy Adams then determined that Kelli was not at home, but that her purse was still at the station, and at that point they called the police.

Early the next morning, February 10, a street maintenance worker for the City of Chesterfield found a red coat, a blue sweater with a Mobil insignia, a white shirt, an undershirt, a bra, underwear, and tennis shoes two to three feet off Creve Coeur Mill Road. In the pocket of the coat was a red scarf and a Mobil credit card slip form with notations on the back about the fuel levels of two of the underground tanks. On that same day, Melvin Hedrick heard on two news reports that a girl had been abducted from a St. Charles gas station and that police were looking for a Blazer like Ferguson's. Hedrick called Ferguson and jokingly asked him if he abducted the girl, whereupon Ferguson became angry and responded: “I wasn't even in St. Charles last night. Don't tell anybody I was in St. Charles last night.” Later in the evening Ferguson called Hedrick and told him that he thought they were just “joking around” earlier.

That night, Kenneth Ousley showed his friend Mike Thompson two rings and asked him if he knew where they could exchange the rings for money or cocaine. When Thompson asked where the rings came from, Ousley replied that he and Ferguson “did a job in St. Charles” and that Ferguson had a third ring. The next day, February 11, 1989, Ousley and Thompson sought advice from Alicia Medlock about exchanging the rings for drugs or finding a pawnshop, but she provided no help. On February 12, Ousley told Thompson that Ferguson knew a woman in Jefferson County who dealt in jewelry, and that Ferguson would handle getting rid of the rings. Sometime that day, Ferguson offered to sell the three rings to Brenda Rosener, the Jefferson County woman. When Rosener asked Ferguson if they were “hot,” he said that they were “very hot.” Rosener refused to buy the rings, but Ferguson left them with her anyway and told her to think it over.

During that time, Hedrick began to think that Ferguson was involved in the crime. On Monday morning, February 13, 1989, Hedrick contacted Glenn Young, a co-worker who was a former FBI agent, and suggested that the FBI investigate Ferguson. Later that day, Ferguson called Hedrick and said that he intended to leave town because things were getting “too hot.” Ferguson, accompanied by Ousley, then drove to a friend's auto body shop where he asked to have his Blazer painted black, explaining that people with Blazers were being pulled over by police because of the Kelli Hall disappearance and that he wanted to avoid being “hassled.” The shop owner, however, was too busy to do the job that day, and Ferguson and Ousley left without making an appointment for some other day. At about this time, the street maintenance worker realized the significance of the clothes he found on Creve Coeur Mill Road and turned them over to the police. The next day, Tuesday, February 14, Kelli Hall's mother identified the clothing he found as the clothing her daughter wore on the night she disappeared.

Several days later, on February 18, Ferguson called Hedrick and told him that the FBI had searched his house, but had not found anything. He urged Hedrick not to tell anyone that he was in St. Charles at the time of the abduction and suggested that if Hedrick had to say anything at all, he should say they were there at 10:00 pm, rather than 11:00 pm. On February 20, Ferguson went to Brenda Rosener's house to inquire about the rings. Because Rosener was not home, Ferguson asked her housemate, Ed Metcalf, if he knew whether she wanted to buy the rings. Ferguson then said that he was being investigated in connection with Kelli Hall's disappearance, whereupon Metcalf asked him to leave. That night, Metcalf asked Rosener to show him the rings that Ferguson was talking about. Suspecting that the rings were Kelli Hall's, they decided to call Michael Eifert, a relative who was an officer with the St. Ann Police Department. After obtaining the three rings from Metcalf and Rosener, Officer Eifert took them to the St. Charles Police Department, and Kelli Hall's mother identified them as her daughter's.

Early on the morning of February 22, Warren Stemme was working on his farm in the Missouri River bottoms. As he walked by a machinery shed, he discovered Kelli Hall's body, frozen, clothed only in socks, and partially obscured by steel building partitions that had been leaned up against the shed. The partitions could not have been moved by one man alone. According to the trial testimony of the state's forensic pathologist, Kelli Hall died from strangulation with a broad ligature, such as a strip of cloth. The pathologist also testified that it would have taken one to two minutes for Kelli to lose consciousness; then two or three more minutes for Kelli to die; that multiple red horizontal abrasions on Kelli's neck indicated a struggle; and, therefore, that the strangulation process could have taken longer than several minutes.

The day that Kelli's body was found, FBI agents and St. Charles police arranged for Melvin Hedrick to wear a body transmitter and meet with Ferguson at a bar. Hedrick asked Ferguson what happened to the gun he had with him the night of the abduction, and Ferguson responded, “Just forget the gun. It's gone. I got rid of it.” Hedrick said, “You got rid of it?” Ferguson replied, “Hell, yeah.” Hedrick told Ferguson that he suspected his involvement in the abduction, and Ferguson stated he could understand why Hedrick was suspicious. When Hedrick commented that they were near the scene at the time of the abduction, Ferguson insisted that it was later or earlier than that. Hedrick pointed out that he had paid with a credit card at Brother's Bar, so the time that they left would be recorded. Ferguson said, “Well, then you will just have to go with that.” Referring to the media attention over the abduction, Ferguson then stated: “they're making a big thing out of this thing and it's just another fucking cunt who lost it.” Ferguson was arrested later that night.

After being informed of his rights, both at the time of arrest and again at the police station, he indicated he understood, and he agreed to talk to Detective Michael Harvey. Ferguson admitted being at the Shell station, across from the Mobil station, on the night of the abduction, but he denied any involvement. Detective Harvey then placed the three rings in front of Ferguson and told him that the rings had come from an informant named Eddie who said that Ferguson had sold them to him. Ferguson indicated that he knew that this was Ed Metcalf, but said that Metcalf was lying.

The FBI crime laboratory examined blood, hair, fiber, and DNA evidence collected during the investigation. The serology unit tested blood samples from Kelli Hall, Ferguson, and Kenneth Ousley, and the results showed that Ferguson had blood type A and that he was a secretor, which meant that his blood type could be identified from his semen. Ousley had blood type B, and was a non-secretor. Tests of the vaginal swab and the vaginal wash taken from Kelli Hall during the autopsy both identified semen that came from someone with type A blood who was a secretor. Another test identified semen collected from the collar and the inside of Hall's coat also as that of an individual with type A blood who was a secretor. Lab personnel then performed DNA analysis-restriction fragment length polymorphism (RFLP)-by comparing DNA extracted from the semen stain on the collar of Kelli Hall's coat with DNA extracted from blood samples obtained from Ferguson, Ousley, and Kelli Hall. Based on these tests, Ousley's DNA was not present in the semen stain, but the DNA obtained from Ferguson was a “match.” Lab personnel also examined fibers found on Kelli Hall's sweater and socks, compared them to fibers from the carpeting in Ferguson's Blazer, and found them to be “indistinguishable.” They also examined a blonde hair of Caucasian origin found on Ousley's shoe (Ousley is African-American), compared it with a sample of Kelli's hair, and determined that the hairs were “indistinguishable.” Finally, the pubic hair of an African American was recovered from Hall's socks, and it was “indistinguishable” from Ousley's sample. On the basis of the foregoing evidence, the jury returned a verdict of guilty of murder in the first degree, and the case proceeded to the penalty phase.

To show Ferguson's prior assaults, the state introduced the testimony of Holly Viehland, who lived with Ferguson for two years, during which time Ferguson assaulted her and frequently threatened to kill her. Additionally, there was testimony that Ferguson shot an acquaintance, Mike Thompson, in the shoulder during a dispute involving Viehland. In mitigation, Ferguson presented testimony of two clinical psychologists who testified that he suffered from persistent recurrent depression and a psychiatric disorder known as substance dependence, for which he never received adequate treatment. Ferguson also presented eight other witnesses who testified to his problems with alcohol and drugs and to his otherwise good character.

At the close of the penalty phase evidence, the jury found the presence of the following six aggravating circumstances beyond a reasonable doubt: 1) that the murder of the victim was outrageously or wantonly vile, horrible or inhuman in that it involved torture and depravity of mind; 2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest of Ferguson or others; 3) that the murder was committed while Ferguson was engaged in the perpetration or was aiding or encouraging another person to perpetrate or attempt to perpetrate a felony of any degree of rape; 4) that the murder was committed while Ferguson was engaged in the perpetration or was aiding or encouraging another person to perpetrate or attempt to perpetrate a felony of any degree of kidnapping; 5) that Ferguson committed the crime of assault against Mike Thompson on or about September 12, 1988; and 6) that Ferguson committed the crime of assault against Holly from late 1987 to late 1988.

Upon the jury's recommendation, the trial court sentenced Ferguson to death. UPDATE: Despite appeals from his attorneys, the U.S. Supreme Court, the 8th U.S. Circuit Court of Appeals and the governor all refused to halt the execution of Jeffrey Ferguson. "Kelli Hall was only 17 when she was abducted from her workplace, raped and brutally murdered," Democratic Gov. said in a statement Tuesday. "Her life, so full of promise, was brutally taken from her and her family. The jury that convicted Jeffrey Ferguson of Kelli's murder found that the aggravating circumstances for this crime warranted the death penalty," Nixon said in denying Ferguson's clemency request. "My decision today upholds that appropriate sentence."

Missourians to Abolish the Death Penalty

Missourians for Alternatives to the Death Penalty

Wikipedia

A total of 73 individuals convicted of murder have been executed by the state of Missouri since 1976. All were by executed by lethal injection. All executions in Missouri were suspended between June 26, 2006, and June 4, 2007, due to a federal court ruling. Executions resumed on May 20, 2009.

1. George Mercer January 6, 1989 Karen Keeton
2. Gerald Smith January 18, 1990 Karen Roberts
3. Winford L. Stokes, Jr. May 17, 1990 Pamela Brenda
4. Leonard Marvin Laws May 17, 1990 John Seward
5. George Clifton Gilmore August 21, 1990 Mary Luella Watters
6. Maurice Oscar Byrd August 23, 1991 Judy Cazaco, James Wood, Edna Ince, and Carolyn Turner
7. Ricky Lee Grubs October 21, 1992 Jerry Thornton
8. Martsay Bolder January 27, 1993 Theron King
9. Walter Junior Blair July 21, 1993 Kathy Jo Allen
10. Frederick Lasley July 28, 1993 Janie Tracy
11. Frank Joseph Guinan October 6, 1993 John McBroom
12. Emmitt Foster May 3, 1995 Travis Walker
13. Larry Griffin June 21, 1995 Quintin Moss
14. Robert Anthony Murray July 26, 1995 Jeffrey Jackson and Craig Stewart
15. Robert T. Sidebottom November 15, 1995 Mary Sidebottom.
16. Anthony Joe Larette November 29, 1995 Mary Fleming
17. Robert Earl O'Neal December 6, 1995 Arthur Dale.
18. Jeffrey Paul Sloan February 21, 1996 Jason Sloan
19. Doyle James Williams April 10, 1996 A. H. Domann
20. Emmett Clifton Nave July 31, 1996 Geneva Roling
21. Thomas Henry Battle August 7, 1996 Birdie Johnson
22. Richard Oxford August 21, 1996 Harold Wampler and Melba Wampler
23. Richard Steven Zeitvogel December 11, 1996 Gary Wayne Dew
24. Eric Adam Schneider January 29, 1997 Richard Schwendeman and Ronald Thompson
25. Ralph Cecil Feltrop August 6, 1997 Barbara Ann Roam
26. Donald Edward Reese August 13, 1997 James Watson, Christopher Griffith, John Buford, and Don Vanderlinden
27. Andrew Wessel Six August 20, 1997 Kathy Allen
28. Samuel Lee McDonald, Jr. September 24, 1997 Robert Jordan
29. Alan Jeffrey Bannister October 24, 1997 Darrell Ruestman
30. Reginald Love Powell February 25, 1998 Freddie Miller and Arthur Miller
31. Milton Vincent Griffin-El March 25, 1998 Jerome Redden
32. Glennon Paul Sweet April 22, 1998 Missouri State Trooper Russell Harper
33. Kelvin Shelby Malone January 13, 1999 William Parr (he was also sentenced to death by the state of California)
34. James Edward Rodden, Jr. February 24, 1999 Terry Trunnel and Joseph Arnold
35. Roy Michael Roberts March 10, 1999 Correctional officer Tom Jackson
36. Roy Ramsey, Jr. April 14, 1999 Garnett Ledford and Betty Ledford
37. Ralph E. Davis April 28, 1999 Susan Davis
38. Jessie Lee Wise May 26, 1999 Geraldine McDonald
39. Bruce Kilgore June 16, 1999 Marilyn Wilkins
40. Robert Allen Walls June 30, 1999 Fred Harmon
41. David R. Leisure September 1, 1999 James A. Michaels, Sr
42. James Henry Hampton March 22, 2000 Frances Keaton
43. Bart Leroy Hunter June 28, 2000 Mildred Hodges and Richard Hodges
44. Gary Lee Roll August 30, 2000 Sherry Scheper, Randy Scheper and Curtis Scheper
45. George Bernard Harris September 13, 2000 Stanley Willoughby
46. James Wilson Chambers November 15, 2000 Jerry Lee Oestricker Roger B. Wilson
47. Stanley Dewaine Lingar February 7, 2001 Thomas Scott Allen
48. Tomas Grant Ervin March 28, 2001 Mildred Hodges and Richard Hodges
49. Mose Young, Jr. April 25, 2001 Kent Bicknese, James Schneider and Sol Marks
50. Samuel D. Smith May 23, 2001 Marlin May
51. Jerome Mallett July 11, 2001 Missouri State Trooper James F. Froemsdorf
52. Michael S. Roberts October 3, 2001 Mary L. Taylor
53. Stephen K. Johns October 24, 2001 Donald Voepel
54. James R. Johnson January 9, 2002 Deputy Sheriff Leslie B. Roark, Pam Jones, Charles Smith, Sandra Wilson
55. Michael I. Owsley February 6, 2002 Elvin Iverson
56. Jeffrey Lane Tokar March 6, 2002 Johnny Douglass
57. Paul W. Kreutzer April 10, 2002 Louise Hemphill
58. Daniel Anthony Basile August 14, 2002 Elizabeth DeCaro
59. William Robert Jones, Jr. November 20, 2002 Stanley Albert
60. Kenneth Kenley February 5, 2003 Ronald Felts
61. John Clayton Smith October 29, 2003 Brandie Kearnes and Wayne Hoewing
62. Stanley L. Hall March 16, 2005 Barbara Jo Wood
63. Donald Jones April 27, 2005 Dorothy Knuckles
64. Vernon Brown May 17, 2005 Janet Perkins Synetta Ford
65. Timothy L. Johnston August 31, 2005 Nancy Johnston
66. Marlin Gray October 26, 2005 Julie Kerry and Robin Kerry
67. Dennis James Skillicorn May 20, 2009 Richard Drummond
68. Martin C. Link February 9, 2011 Elissa Self
69. Joseph Paul Franklin November 20, 2013 Gerald Gordon
70. Allen L. Nicklasson December 11, 2013 Richard Drummond
71. Herbert L. Smulls January 29, 2014 Stephen Honickman
72. Michael Anthony Taylor February 26, 2014 Ann Harrison
73. Jeffrey R. Ferguson March 26, 2014 Kelli Hall

State v. Ferguson, 887 S.W.2d 585 (Mo. 1994). (PCR)

Defendant convicted of first-degree murder and sentenced to death filed motion for postconviction relief. The Circuit Court, St. Louis County, Melvyn W. Weisman, J., denied motion, and defendant appealed. The Supreme Court, Limbaugh, J., held that: (1) verdict directing instruction charging deliberation alternatively to defendant “or” codefendant was error; and (2) error was not harmless. Reversed and remanded.

LIMBAUGH, Judge.

A jury convicted Jeffrey Ferguson of first degree murder for his complicity in the death of Kelli Hall. The trial court, abiding the jury's recommendation, imposed the death sentence. Ferguson filed a motion for postconviction relief under Rule 29.15, which was heard and overruled. This Court has jurisdiction of the appeal. Mo. Const. art. V, § 3. The conviction is reversed and remanded for a new trial.

Ferguson contends that the trial court committed reversible error in submitting a verdict director allowing the jury to find him guilty without finding that he deliberated as required under § 565.020, RSMo 1986, the first degree murder statute. He explains that by charging the element of deliberation in the alternative—to either “defendant or [codefendant] Kenneth Ousley”—the jury was not required to find that defendant, himself, deliberated. The verdict director, Instruction No. 9, was submitted to the jury as follows:

INSTRUCTION NO. 9 If you find and believe from the evidence beyond a reasonable doubt: First, that on or about February 9, 1989 or February 10, 1989, in the County of St. Louis, State of Missouri, the defendant or Kenneth Ousley caused the death of Kelli Hall by strangling her, and Second, that defendant or Kenneth Ousley knew or was aware that his conduct was practically certain to cause the death of Kelli Hall, and Third, that defendant or Kenneth Ousley did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief, then you are instructed that the offense of murder in the first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt: Fourth, that with the purpose of promoting or furthering the commission of that offense of murder in the first degree, the defendant acted together with or aided Kenneth Ousley in committing that offense, then you will find the defendant guilty of murder in the first degree. However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of murder in the first degree.

Ferguson specifically objected to this instruction “as being an incorrect statement of the law ... and for charging repeatedly throughout the body of the instruction in the alternative....” The trial court overruled the objection, but Ferguson neglected to raise the point in his motion for new trial. Ferguson now requests plain error review as both he and the State are under the impression that the point was not properly preserved. Under Rule 28.03, however, plain error review is not required. The rule states that “specific objections to given or refused instructions and verdict forms shall be required in motions for new trial unless made on the record at the time of trial.” Because Ferguson made a specific objection on the record at trial, it was not necessary to raise the point in his motion for new trial, and the issue was adequately preserved.

On the merits, Ferguson's objection is well taken. Under State v. Ervin, 835 S.W.2d 905, 923 (Mo. banc 1992), and State v. O'Brien, 857 S.W.2d 212, 217 (Mo. banc 1993), the verdict directing instruction for first degree murder must ascribe the element of deliberation to the defendant specifically, even though the charge is premised on accessory liability. Although the conduct of a defendant may be imputed to a codefendant, the element of deliberation may not. O'Brien, 857 S.W.2d at 218. The rationale for this rule, though not expressly stated in Ervin or O'Brien, is that the failure to ascribe deliberation to the defendant relieves the State of its burden of proving the requisite mental state of the offense. An instruction that relieves this burden violates due process and constitutes error. State v. Erwin, 848 S.W.2d 476, 484 (Mo. banc 1993), cert. denied, 510 U.S. 826, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993). In this case, paragraph third of Instruction No. 9 charges the element of deliberation alternatively to the “defendant or Kenneth Ousley” (emphasis added). Couching the instruction in the disjunctive by using “or” rather than “and” allows the jurors to find the element of deliberation even if they did not believe that defendant, himself, deliberated. It is in that way that the submission of Instruction No. 9 relieves the State of its burden of proof and, thus, constitutes error.

The State argues that an instructional error as to the mental element of an offense can, and does in this case, constitute harmless error. However, the rule is well-established that an instructional error “will be held harmless only when the court can declare its belief that it was harmless beyond a reasonable doubt.” Erwin, 848 S.W.2d at 484. Moreover, when a “substantial issue exists regarding the defendant's state of mind, it is impossible to say the error is harmless beyond a reasonable doubt.” Id. In reviewing this case for harmless error, it is unnecessary to set out the evidence in detail. Suffice it to say that there were no witnesses to the murder, that neither Ferguson nor codefendant Ousley confessed, and that the proof of deliberation, as in most cases, was based entirely on circumstantial evidence. In this situation, there was a real possibility that the jury did not determine that Ferguson, himself, deliberated. Therefore, it cannot be said that the error was harmless beyond a reasonable doubt.

Alternatively, the State contends that Ervin and O'Brien are inapplicable to Ferguson's case because they were decided after Ferguson's trial. Ervin and O'Brien are silent on the retrospective application of their holdings. In such cases, if the holdings pertain to procedural matters, they are applied prospectively only; if they pertain to substantive matters, they are applied both prospectively and retrospectively. State v. Walker, 616 S.W.2d 48, 49 (Mo. banc 1981). Generally, however, retrospective application is limited to those cases “subject to direct appeal,” see, e.g., Erwin, 848 S.W.2d at 484, or “to all pending cases not finally adjudicated,” see, e.g., State v. Stewart, 832 S.W.2d 911, 914 (Mo. banc 1992); and is sometimes further limited to those cases where the issue has been preserved. See, e.g., Erwin, 848 S.W.2d at 484.

Under these rules, retrospective application is appropriate. The holdings of Ervin and O'Brien—that verdict directing instructions must ascribe deliberation specifically to the charged defendant—are undisputably substantive. Moreover, Ferguson's case was pending at the time Ervin and O'Brien were decided, and the instruction issue was preserved.

Having determined that the instruction issue is dispositive, Ferguson's remaining points need not be addressed. Furthermore, the appeal on the Rule 29.15 motion is moot. The judgment of conviction is reversed and the case is remanded for new trial. All concur.

State v. Ferguson, 20 S.W.3d 485 (Mo. 2000). (Direct Appeal After Retrial)

Defendant was convicted in the Circuit Court, St. Louis County, Melvyn W. Weisman, J., of first-degree murder and was sentenced to death. Defendant appealed. The Supreme Court, Limbaugh, J., 887 S.W.2d 585, reversed and remanded. On remand, the Circuit Court, William M. Corrigan and John F. Kintz, JJ., again convicted the defendant, sentenced him to death, and denied postconviction motion. Defendant appealed. The Supreme Court, Limbaugh, J., held that: (1) evidence of DNA match was admissible without evidence of the statistical significance of the DNA test results; (2) co-perpetrator's statements relating to the attempted disposition of the victim's rings were admissible under the co-conspirator exception to the hearsay rule; (3) defendant was not entitled to adjournment after the guilt-phase verdict was returned at 5:10 p.m.; (4) prosecutor's closing arguments were permissible; (5) attorney did not render ineffective assistance; (6) the aggravating circumstances were valid; and (7) the judge was not biased. Affirmed.

LIMBAUGH, J.

This is an appeal of defendant Jeffrey Ferguson's second conviction and death sentence for the 1989 murder of Kelli Hall. The first conviction was overturned because of instructional error. State v. Ferguson, 887 S.W.2d 585 (Mo. banc 1994). In this case, like the other, Ferguson was convicted by a jury in the St. Louis County Circuit Court of murder in the first degree, section 565.020, RSMo 1986, and the trial court, following the jury's recommendation, sentenced Ferguson to death. The post-conviction court overruled his Rule 29.15 motion without an evidentiary hearing. Because the death penalty was imposed, this Court has exclusive jurisdiction of the appeals. mo. Const. art. V. sec. 3; Order of June 16, 1988. The judgments are affirmed.

I. FACTS

The facts, which this Court reviews in the light most favorable to the verdict. State v. Wolfe, 13 S.W.3d 248, 252 (Mo. banc 2000), are as follows: On February 9, 1989, at about 9:00 p.m., Melvin Hedrick met Ferguson and a friend, Kenneth Ousley, at Ferguson's home. Ferguson asked Hedrick if he would be interested in buying a .32 caliber pistol. Although Hedrick said that he was not interested, he suggested that they take the pistol with them because they might be able to sell it at a bar. Ferguson and Hedrick then made their way to Brother's Bar in St. Charles, where they stayed for about forty-five minutes to an hour. At the bar, Hedrick began to feel ill, and Ferguson arranged for Ousley to meet them at a Shell service station on 5th Street, near Interstate 70. Between 10:50 and 10:55 p.m., Ferguson and Hedrick made the short trip to the Shell station, where Ousley was waiting in Ferguson's brown and white Blazer. Ferguson put the .32 caliber pistol in his waistband and then walked toward the passenger side of the Blazer as Hedrick left for home.

Seventeen-year-old Kelli Hall, the victim in the case, worked at a Mobil service station across the street from the Shell station where Ousley and Ferguson met. Hall's shift was scheduled to end at 11:00 p.m., and at about that time, one of Hall's co-workers, Tammy Adams, arrived at the Mobil station to relieve her. A few minutes later, Robert Stulce, who knew Hall, drove up to the Mobil station to meet a friend and noticed Hall checking and recording the fuel levels in the four tanks at the front of the station. Stulce also saw a brown and white Blazer, which he later identified as identical to Ferguson's Blazer, pull in front of him and stop in the parking lot near Hall. When Stulce looked again, Hall was facing a white male who was standing between the open passenger door and the body of the Blazer. The man stood very close to Hall and appeared to have one hand in his pocket and the other hand free. Stulce then saw Hall get into the back passenger seat of the vehicle.

In the meantime, Hall's boyfriend, Tim Parres, waited for her in his car, which he had parked behind the station. After waiting for Hall for about half an hour, Parres went inside the station looking for her, but to no avail. He and Tammy Adams then determined that Hall was not at home, but that her purse was still at the station, and at that point they called the police. Early the next morning, February 10, a street maintenance worker for the City of Chesterfield found a red coat, a blue sweater with a Mobil insignia, a white shirt, an undershirt, a bra, underwear, and tennis shoes two to three feet off Creve Coeur Mill Road. In the pocket of the coat was a red scarf and a Mobil credit card slip form with notations on the back about the fuel levels of two of the underground tanks.

On that same day, Melvin Hedrick heard on two news reports that a girl had been abducted from a St. Charles gas station and that police were looking for a Blazer like Ferguson's. Hedrick called Ferguson and jokingly asked him if he abducted the girl, whereupon Ferguson became angry and responded: “I wasn't even in St. Charles last night. Don't tell anybody I was in St. Charles last night.” Later in the evening Ferguson called Hedrick and told him that he thought they were just “joking around” earlier.

That night, Kenneth Ousley showed his friend Mike Thompson two rings and asked him if he knew where they could exchange the rings for money or cocaine. When Thompson asked where the rings came from, Ousley replied that he and Ferguson “did a job in St. Charles” and that Ferguson had a third ring. The next day, February 11, 1989, Ousley and Thompson sought advice from Alicia Medlock about exchanging the rings for drugs or finding a pawnshop, but she provided no help. On February 12, Ousley told Thompson that Ferguson knew a woman in Jefferson County who dealt in jewelry, and that Ferguson would handle getting rid of the rings. Sometime that day, Ferguson offered to sell the three rings to Brenda Rosener—the Jefferson County woman. When Rosener asked Ferguson if they were “hot,” he said that they were “very hot.” Rosener refused to buy the rings, but Ferguson left them with her anyway and told her to think it over.

During that time, Hedrick began to think that Ferguson was involved in the crime. On Monday morning, February 13, 1989, Hedrick contacted Glenn Young, a co-worker who was a former FBI agent, and suggested that the FBI investigate Ferguson. Later that day, Ferguson called Hedrick and said that he intended to leave town because things were getting “too hot.” Ferguson, accompanied by Ousley, then drove to a friend's auto body shop where he asked to have his Blazer painted black, explaining that people with Blazers were being pulled over by police because of the Hall disappearance and that he wanted to avoid being “hassled.” The shop owner, however, was too busy to do the job that day, and Ferguson and Ousley left without making an appointment for some other day.

At about this time, the street maintenance worker realized the significance of the clothes he found on Creve Coeur Mill Road and turned them over to the police. The next day, Tuesday, February 14, Kelli Hall's mother identified the clothing he found as the clothing her daughter wore on the night she disappeared. Several days later, on February 18, Ferguson called Hedrick and told him that the FBI had searched his house, but had not found anything. He urged Hedrick not to tell anyone that he was in St. Charles at the time of the abduction and suggested that if Hedrick had to say anything at all, he should say they were there at 10:00 p .m., rather than 11:00 p.m.

On February 20, Ferguson went to Brenda Rosener's house to inquire about the rings. Because Rosener was not home, Ferguson asked her housemate, Ed Metcalf, if he knew whether she wanted to buy the rings. Ferguson then said that he was being investigated in connection with Kelli Hall's disappearance, whereupon Metcalf asked him to leave. That night, Metcalf asked Rosener to show him the rings that Ferguson was talking about. Suspecting that the rings were Kelli Hall's, they decided to call Michael Eifert, a relative who was an officer with the St. Ann Police Department. After obtaining the three rings from Metcalf and Rosener, Officer Eifert took them to the St. Charles Police Department, and Hall's mother identified them as her daughter's.

Early on the morning of February 22, Warren Stemme was working on his farm in the Missouri River bottoms. As he walked by a machinery shed, he discovered Kelli Hall's body, frozen, clothed only in socks, and partially obscured by steel building partitions that had been leaned up against the shed. The partitions could not have been moved by one man alone. According to the trial testimony of the state's forensic pathologist, Kelli Hall died from strangulation with a broad ligature, such as a strip of cloth. The pathologist also testified that it would have taken one to two minutes for Hall to lose consciousness; then two or three more minutes for Hall to die; that multiple red horizontal abrasions on Hall's neck indicated a struggle; and, therefore, that the strangulation process could have taken longer than several minutes.

The day that Hall's body was found, FBI agents and St. Charles police arranged for Melvin Hedrick to wear a body transmitter and meet with Ferguson at a bar. Hedrick asked Ferguson what happened to the gun he had with him the night of the abduction, and Ferguson responded, “Just forget the gun. It's gone. I got rid of it.” Hedrick said, “You got rid of it?” Ferguson replied, “Hell, yeah.” Hedrick told Ferguson that he suspected his involvement in the abduction, and Ferguson stated he could understand why Hedrick was suspicious. When Hedrick commented that they were near the scene at the time of the abduction, Ferguson insisted that it was later or earlier than that. Hedrick pointed out that he had paid with a credit card at Brother's Bar, so the time that they left would be recorded. Ferguson said, “Well, then you will just have to go with that.” Referring to the media attention over the abduction, Ferguson then stated: “they're making a big thing out of this thing and it's just another fucking cunt who lost it.”

Ferguson was arrested later that night. After being informed of his rights, both at the time of arrest and again at the police station, he indicated he understood, and he agreed to talk to Detective Michael Harvey. Ferguson admitted being at the Shell station, across from the Mobil station, on the night of the abduction, but he denied any involvement. Detective Harvey then placed the three rings in front of Ferguson and told him that the rings had come from an informant named Eddie who said that Ferguson had sold them to him. Ferguson indicated that he knew that this was Ed Metcalf, but said that Metcalf was lying.

The FBI crime laboratory examined blood, hair, fiber, and DNA evidence collected during the investigation. The serology unit tested blood samples from Kelli Hall, Ferguson, and Kenneth Ousley, and the results showed that Ferguson had blood type A and that he was a secretor, which meant that his blood type could be identified from his semen. Ousley had blood type B, and was a non-secretor. Tests of the vaginal swab and the vaginal wash taken from Hall during the autopsy both identified semen that came from someone with type A blood who was a secretor. Another test identified semen collected from the collar and the inside of Hall's coat also as that of an individual with type A blood who was a secretor. Lab personnel then performed DNA analysis—restriction fragment length polymorphism (RFLP)—by comparing DNA extracted from the semen stain on the collar of Hall's coat with DNA extracted from blood samples obtained from Ferguson, Ousley, and Hall. Based on these tests, Ousley's DNA was not present in the semen stain, but the DNA obtained from Ferguson was a “match.”

Lab personnel also examined fibers found on Kelli Hall's sweater and socks, compared them to fibers from the carpeting in Ferguson's Blazer, and found them to be “indistinguishable.” They also examined a blonde hair of Caucasian origin found on Ousley's shoe (Ousley is African–American), compared it with a sample of Hall's hair, and determined that the hairs were “indistinguishable.” Finally, the pubic hair of an African American was recovered from Hall's socks, and it was “indistinguishable” from Ousley's sample.

On the basis of the foregoing evidence, the jury returned a verdict of guilty of murder in the first degree, and the case proceeded to the penalty phase. To show Ferguson's prior assaults, the state introduced the testimony of Holly Viehland, who lived with Ferguson for two years, during which time Ferguson assaulted her and frequently threatened to kill her. Additionally, there was testimony that Ferguson shot an acquaintance, Mike Thompson, in the shoulder during a dispute involving Viehland.

In mitigation, Ferguson presented testimony of two clinical psychologists who testified that he suffered from persistent recurrent depression and a psychiatric disorder known as substance dependence, for which he never received adequate treatment. Ferguson also presented eight other witnesses who testified to his problems with alcohol and drugs and to his otherwise good character.

At the close of the penalty phase evidence, the jury found the presence of the following six aggravating circumstances beyond a reasonable doubt: 1) that the murder of the victim was outrageously or wantonly vile, horrible or inhuman in that it involved torture and depravity of mind, section 565.032.2(7), RSMo 1994; 2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest of Ferguson or others, section 565.032 .2(10), RSMo 1994; 3) that the murder was committed while Ferguson was engaged in the perpetration or was aiding or encouraging another person to perpetrate or attempt to perpetrate a felony of any degree of rape, section 565.032.2(11), RSMo 1994; 4) that the murder was committed while Ferguson was engaged in the perpetration or was aiding or encouraging another person to perpetrate or attempt to perpetrate a felony of any degree of kidnapping, section 565.032.2(11), RSMo 1994; 5) that Ferguson committed the crime of assault against Mike Thompson on or about September 12, 1988 (non-statutory); and 6) that Ferguson committed the crime of assault against Holly Utz from late 1987 to late 1988 (nonstatutory). Upon the jury's recommendation, the trial court sentenced Ferguson to death. Ferguson timely filed a pro se Rule 29.15 motion, and counsel then filed a 249–page amended motion. On February 25, 1999, the motion court filed its findings of fact, conclusions of law, order and judgment, denying all claims without a hearing and dismissing Ferguson's motion in its entirety with prejudice. This consolidated appeal followed.

II. ALLEGATIONS OF TRIAL COURT ERROR
A. Voir Dire

Ferguson claims that the trial court improperly restricted death qualification voir dire by refusing to allow him to ask the prospective jurors the following three questions regarding their ability to consider mitigating factors in the penalty phase: 1) Can you imagine any mitigating factors that would make you think that punishment for murder in the first degree should be something other than the death penalty? 2) What kind of factors would you consider in determining the correct punishment? 3) What sort of factors would you take into consideration?

It is well-settled that the nature and extent of questioning on voir dire is within the discretion of the trial judge, and only a manifest abuse of discretion and a probability of prejudice to the defendant will justify reversal. State v. Armentrout, 8 S.W.3d 99, 109 (Mo. banc 1999). Missouri courts have held time and again that prohibiting open-ended questions like those asked here is a proper exercise of the trial court's discretion. See, e.g., State v. Middleton, 995 S.W.2d 443, 461 (Mo. banc 1999); State v. Thompson, 985 S.W.2d 779, 790 (Mo. banc 1999); State v. Chaney, 967 S.W.2d 47, 57 (Mo. banc 1998). The open-ended or over-broad questions in this case have no reference to any pertinent mitigating circumstances, and therefore, the information sought is irrelevant. See Middleton, 995 S.W.2d at 461. Furthermore, they are questions that appear to be intended to elicit responses that would be more helpful in forming a strategy for the penalty phase of trial, rather than merely exposing disqualifying bias.

Even if the questions regarding mitigation should have been allowed, Ferguson suffered no prejudice. The trial court did not preclude defense counsel from exploring this line of questioning, as long as he changed the form of the questions. In that respect, defense counsel was permitted to ask each prospective juror individually whether he or she would properly consider mitigating circumstances that would justify a life sentence rather than the death penalty. Ferguson also argues the trial court erred in sustaining objections to certain mitigating circumstances questions asked of another prospective juror, Mr. Wilson. However, these questions were potentially confusing, and therefore, improper, because defense counsel had not set the context for the questions by explaining the distinction between the guilt phase and the penalty phase of the trial. State v. Thompson, 985 S.W.2d 779, 790 (Mo. banc 1999). Furthermore, Mr. Wilson was stricken for cause, and, for that reason alone, Ferguson cannot now complain that he was unable to expose Mr. Wilson's possible bias.

B. Guilt Phase
1. Admission of DNA Evidence

Ferguson alleges that the trial court erred in admitting DNA evidence. Although Ferguson admits that the RFLP method of DNA testing is generally accepted in the scientific community, he contends that the procedures used by the FBI did not conform with those required by the scientific community. Because Ferguson failed to object to the admission of the DNA evidence, he seeks plain error review under Rule 30.20, which requires a showing of manifest injustice. The admission of the DNA evidence, however, was not erroneous in the first place. This Court reaffirms its holding in State v. Davis, 814 S.W.2d 593, 603 (Mo. banc 1991), cert. denied, 502 U.S. 1047, 112 S.Ct. 911, 116 L.Ed.2d 812 (1992), that the “argument concerning the manner in which the [DNA] tests were conducted goes more to the credibility of the witness and the weight of the evidence ...”—not to admissibility. See also State v. Huchting, 927 S.W.2d 411, 417 (Mo.App.1996); State v. Davis, 860 S.W.2d 369, 374 (Mo.App.1993). Ferguson's remedy is not to exclude the evidence, but to cross-examine the state's experts and to call expert witnesses of his own. The point is denied.

Next, Ferguson claims that the trial court erred in admitting the DNA evidence because the state presented no evidence of the statistical significance of its DNA test results, and the characterization of the DNA comparison as a “match” is meaningless. This theory was not presented to the trial court, and like the previous claim, is only reviewable for plain error resulting in manifest injustice. Rule 30.20. Scientific evidence, such as hair, fiber, and blood type evidence, is often admitted where the only conclusion to be drawn is that the tested sample is consistent with the defendant's sample, or that defendant's sample shows that he cannot be excluded as the perpetrator. Therefore, it was not error, much less manifest injustice, to admit the testimony that Ferguson's DNA “matched” that of the DNA extracted from the semen stain on Hall's coat.

It bears mention that the absence of manifest injustice is also shown by the fact that Ferguson had good reason to avoid any inquiry about the statistical significance of the “match.” At Ferguson's first trial, the state's DNA expert testified that the chances that the semen stain was from someone other than Ferguson were 1 in 1.7 million or 1 in 11 million, depending on the statistical approach used. Although admission of that statistical evidence was hotly contested, this Court did not reach the issue in the first appeal, and therefore, neither Ferguson nor the state could be assured of a favorable ruling before this Court the second time around. To avoid the risk that the state would successfully introduce the more damaging statistical evidence, Ferguson was justified, as a matter of trial strategy, in declining to object to the less damaging characterization that the evidence was a “match.”

Finally, Ferguson contends that the DNA evidence should not have been admitted because the semen sample was consumed in the FBI's tests, and he was not able to have it independently tested. In cases where the testing agency finds it necessary to consume the only sample of evidence in the testing procedure, admission of the test results does not violate due process in the absence of bad faith on the part of the state. Arizona v. Youngblood, 488 U.S. 51, 57–58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Because Ferguson has failed to allege that the semen sample was consumed in bad faith, this claim fails as well.

2. Admission of hearsay statements

Ferguson alleges that the trial court erred in admitting hearsay evidence of Ousley's statements relating to the attempted disposition of Kelli Hall's rings. These statements, as noted, were admitted through the testimony of Alicia Medlock and Mike Thompson. Thompson testified that on the day of the abduction Ousley showed him two of the rings, explained that he and Ferguson “did a job in St. Charles,” and asked if he knew where to get money or drugs for the rings. Alicia Medlock testified that within two days of the abduction, Ousley and Thompson came to see her, and Ousley asked her if she knew of a pawnshop or a place where he might exchange the rings for drugs. The next day, Ousley told Thompson that Ferguson knew a woman that would take the rings.

Statements of one conspirator are admissible against another under the co-conspirator exception to the hearsay rule, even if a conspiracy has not been charged. State v. Pizzella, 723 S.W.2d 384, 388 (Mo. banc 1987). For a statement to be admissible under the co-conspirator exception, there must be a showing, by evidence independent of the statement, of the existence of the conspiracy, and in addition, the statement must have been made in furtherance of the conspiracy. Id. The existence of a conspiracy need not be shown by conclusive evidence and may be established, instead, by circumstantial evidence consisting of the mere appearance of “acting in concert.” State v. Clay, 975 S.W.2d 121, 131 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999).

In this case, there was sufficient evidence that Ferguson and Ousley were acting in concert in committing the crime. The evidence placed both of them in Ferguson's Blazer at the scene of the abduction. In addition, both were linked to the crime through laboratory analysis: pubic hair found on Hall's body was consistent with Ousley's pubic hair and hair found on Ousley's shoes was consistent with Hall's hair; the DNA profile from the semen found on Hall's coat matched Ferguson's DNA profile. Also, both men had possession of one or more of Hall's rings at one time or another after the abduction.

Ferguson argues, however, that Ousley's statements were not made “in furtherance of the conspiracy” because the criminal enterprise had ended. If, however, the conspiracy continues for any purpose, such as concealing the crime, the declarations of one co-conspirator are still admissible against the other. State v. Isa, 850 S.W.2d 876, 892 (Mo. banc 1993). Here, Ferguson and Ousley continued to act together to eliminate evidence of their crime by selling the rings. That their main objective was to dispose of incriminating evidence is demonstrated by the fact that Ferguson finally left the rings with Brenda Rosener, even though she had not agreed to buy them. Under these circumstances, the statements were properly admitted. Even if admission of the statements had been error, Ferguson could not have been prejudiced because the jury learned independently of his own attempts to sell the rings through the testimony of Brenda Rosener and Ed Metcalf.

3. Sufficiency of Evidence

Ferguson next contends that there was insufficient evidence to establish that he deliberated before the murder. He was tried on a theory of accomplice liability. To convict him of murder in the first degree, the jury had to find that he or Kenneth Ousley knowingly caused the death of Kelli Hall after deliberation on the matter. Section 565.020, RSMo 1986. Ferguson need not have personally performed each act constituting the elements of the crime, State v. Clay, 975 S.W.2d 121, 139 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999), but in order to be responsible for Ousley's acts, he must have acted together with or aided Ousley either before or during the commission of the crime, with the purpose of promoting the crime. Section 562.041.1(2), RSMo 1986. In addition, where a defendant is convicted of first degree murder as an accomplice, the state must prove that the defendant personally deliberated upon the murder. State v. Rousan, 961 S.W.2d 831, 841 (Mo. banc), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998). Deliberation is “cool reflection upon the matter for any length of time, no matter how brief.” Section 565.002(3), RSMo 1994. Like any state of mind, deliberation generally must be proved through the surrounding circumstances of the crime. State v. Johnston, 957 S.W.2d 734, 747 (Mo. banc 1997), cert. denied, 522 U.S. 1150, 118 S.Ct. 1171, 140 L.Ed.2d 181 (1998).

Ferguson's more specific claim is that the only evidence of deliberation is the manner in which Hall was killed and that that particular evidence does not indicate Ferguson's personal deliberation. Ferguson explains that an inference of personal deliberation derived from the manner in which the victim was killed is only appropriate where the defendant personally caused the victim's death, State v. O'Brien, 857 S.W.2d 212, 219 (Mo. banc 1993), and in this case, Ferguson's direct participation in the murder was not established. This Court disagrees. The record shows that a white male in a Blazer, identified as Ferguson's, was seen talking to Hall immediately before she was abducted. The DNA in a semen stain found on Hall's coat matched Ferguson's DNA. The body was partially covered by steel partitions that Ousley, alone, could not have moved. A reasonable juror could infer from this evidence that Ferguson intended to abduct, rape, and rob the victim, and to murder her so that there would be no witness. In fact, the evidence indicated that Ferguson was the principal actor. Ferguson possessed a gun, and he appears to be the one who first accosted Hall. The evidence that Ferguson raped her was overwhelming. Further, Ferguson generally appeared to exercise a significant degree of control over Ousley. Although Ousley was often in Ferguson's company, Ferguson treated him poorly, referred to him as “his nigger,” and regularly required him to wait outside rather than go with Ferguson into public places. On this record, the evidence was sufficient to submit the charge of murder in the first degree to the jury.

4. Instructions

Ferguson argues that the trial court plainly erred in submitting Instruction 5, the verdict director for first-degree murder, which was based on MAI–CR3d 304.04 and MAI–CR3d 313.02. This instruction, Ferguson claims, misled the jury by allowing a finding of guilt against him even if the evidence showed that only Ousley had deliberated. Ferguson failed to properly object to this instruction and is only entitled to plain error review on a showing of manifest injustice. Rule 30.20. As this Court has repeatedly held, the alleged deficiency in the verdict director is not error, plain or otherwise, State v. Copeland, 928 S.W.2d 828, 848 (Mo. banc 1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 864 (1997); State v. Richardson, 923 S.W.2d 301, 318 (Mo. banc), cert. denied, 519 U.S. 972, 117 S.Ct. 403, 136 L.Ed.2d 317 (1996), and an extended discussion on the point would have no precedential value. The point is denied.

5. Closing Argument

Ferguson contends the prosecutor made ten different comments in guilt phase closing argument that constitute reversible error. However, he made an objection to only one of the ten. The only point preserved involved the prosecutor's discussion of the testimony of Ferguson's expert witness, Dr. Libby. The prosecutor, while reminding the jury of questions that he asked that witness, stated, “And I said [to Dr. Libby], ‘Do you remember Dr. Allen with the Chapman Institute of Medical Genetics? He was a defense witness. Did you ever discuss with him that he said all these bands matched?’ “ Defense counsel then objected that “the witness said that he didn't know what the other witness said,” which was to say that the prosecutor was misstating the evidence. The trial court responded that “the jury will recall the evidence as they heard it.” The trial court has broad discretion in controlling the scope of closing argument, and the court's rulings will be cause for reversal only upon a showing of abuse of discretion resulting in prejudice to the defendant. State v. Deck, 994 S.W.2d 527, 543 (Mo. banc 1999). In this instance, the trial court did not abuse its discretion in overruling the objection because the prosecutor had not yet commented on Dr. Libby's response to his question, and for that reason, the objection was premature. In fact, the prosecutor never did follow-up and comment on Dr. Libby's response, even after the objection was overruled.

The remaining allegedly improper comments, for which Ferguson asks plain error review under the manifest injustice standard, include: 1) “... if that's not cool deliberation, I don't know what is ...;” 2) “[Brenda Rosener and Ed Metcalf] thought that [Ferguson] was involved in this murder ...” and that “We know that Ed wasn't lying;” 3) “The jury should consider the personal emotional impact on them;” 4) “... that's the way DNA is put on. It's not to the degree of fingerprints, yet.” 5) “[Defense witness Gamel] stated [Ferguson] was ‘slurring a little bit’ [at the bar] and Hedrick stated he ‘staggered a little bit;’ “ 6) “This was a deliberate killing because they tried to sell Hall's rings later;” 7) “A pubic hair on Hall's sock ‘matched’ Ousley's;” 8) “The same guy that had the rings matches the semen stain on her shoulder. The same guy that had the rings matches the pubic hair on her sock out in that field;” and 9) “[Ferguson] never looked at you and said, ‘I didn't kill that girl.’ “

Ferguson's laundry list of improprieties regarding these statements include personalizing, bolstering, vouching for witnesses' judgment and credibility, misstating the evidence, and infringing on the right against self-incrimination. On review of the record, each of the prosecutor's comments either have been taken out of context or otherwise mischaracterized, and none of the remarks constitutes error, much less manifest injustice. FN1. It is a concern of this Court that the public defender's office presses these claims even though the post-conviction motion court concluded, and this Court agrees, that most are frivolous. Some are even sanctionable. For example, Ferguson's entire discussion regarding the comment that “[T]he jury should consider the personal emotional impact on them”—a serious charge which, if true, may well constitute reversible error—amounted to only one clause in the point relied on and one sentence in the argument and was supported solely by a citation to the transcript that was totally irrelevant.

C. Penalty Phase
1. Denial of Request for Adjournment

Ferguson claims that the trial court erred in denying his request to adjourn after the guilt phase verdict was returned at 5:10 p.m. on October 23, 1995, and in proceeding with the penalty phase case until 10:00 or 10:30 that night. He also claims the trial court erred in denying his subsequent motion for mistrial, which was based on the same grounds. In determining whether to grant a recess or temporary adjournment during a trial, the trial court has considerable discretion and will not be found to have abused its discretion in the absence of a very strong showing of prejudice. State v. Middleton, 995 S.W.2d 443, 464–65 (Mo. banc 1999). Here, Ferguson contends that the members of the jury, having had a full day in court, were too tired and aggravated to be attentive during the evening session, and further, that trial counsel was too tired to proceed and was unprepared to present the testimony of Ferguson's two penalty phase expert witnesses.

These charges, however, are refuted by the record. About 10:30 p.m., the trial court informed the jury that it was going to save final argument for the next morning, and later made a record that the jurors were disappointed because they wanted to finish the case that night, which indicates, at the least, that the jurors were not too tired or aggravated to listen to evidence up to that time. The trial court's determination is also supported by the fact that the jurors were sequestered and could not return home, which explains why they were able and willing to proceed beyond the usual working hours. In addition, trial counsel made no mention in her request for adjournment or in the motion for mistrial that she, herself, was too tired to proceed or unprepared to proceed, and her focus was solely on her perceived adverse effect on the jurors. Even if counsel had based the motion on her own fatigue and lack of preparation, there was no prejudice. The record shows that counsel was able to elicit a wealth of testimony in mitigation from the two experts, both psychologists, that included the results of extensive psychological testing and the diagnoses that Ferguson suffered from depression and substance dependence. Their testimony supported, in particular, the statutory mitigating circumstance that Ferguson's capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” The claim has no merit.

2. Evidence of unadjudicated bad acts

Ferguson contends that the trial court plainly erred in allowing the state to present evidence of unadjudicated bad acts through the testimony of penalty phase witnesses Holly Viehland and Mike Thompson without giving notice of the evidence prior to trial. Because Ferguson did not object to this evidence, he must show plain error under the manifest injustice standard. Rule 30.20. Contrary to Ferguson's contention, he was clearly on notice that the state would call Viehland and Thompson because the state called them as witnesses during the penalty phase at Ferguson's first trial. Although extensive evidence of a serious unconvicted crime is inadmissible in the penalty phase if the state provides no timely notice that it intends to introduce the evidence, it is not plain error to introduce the evidence if it was introduced at an earlier trial. State v. Chambers, 891 S.W.2d 93, 107 (Mo. banc 1994).

Ferguson also briefly alleges that the state failed to comply with section 565.005, RSMo 1994, by failing to provide notice of all the statutory aggravators that it intended to prove and the witnesses it intended to call in the penalty phase. This claim, however, is not in the Point Relied On in his brief, and, therefore, it is not preserved for appellate review. In any event, Ferguson cannot claim that he was prejudiced because all of the statutory aggavators submitted to the jury in the second trial were disclosed prior to the first trial. Additionally, Ferguson claims in his point relied on that the admission of unadjudicated bad acts in the penalty phase (other than the two assaults that were specifically instructed on) violates due process because the state is not required to prove those acts beyond a reasonable doubt. Ferguson offers no argument in support of the claim, probably because it has been repeatedly rejected by this Court. State v. Kinder, 942 S.W.2d 313, 331 (Mo. banc 1996), cert. denied, 522 U.S. 854, 118 S.Ct. 149, 139 L.Ed.2d 95 (1997). The point is denied.

3. Instructions

Ferguson next challenges the submission of Instructions 16 and 17, the instructions for statutory and nonstatutory aggravating circumstances, respectively. The first of Ferguson's several reasons why the trial court erred in submitting Instruction 16 is that the portion of the instruction dealing with the first statutory aggravating circumstance is unconstitutionally “vague and overbroad, applicable to any murder and thus not narrowing the class of individuals to whom the death penalty applies....” The instruction states:

1. Whether the murder of Kelli Hall involved torture and depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman. You can make a determination of depravity of mind only if you find: That the defendant's selection of the person he killed was random and without regard to the victim's identity and that defendant's killing of Kelli Hall thereby exhibited a callous disregard for the sanctity of all human life.

Ferguson specifically challenges the limiting language of subsection [1] regarding the random selection of the victim, the purpose of which is to comply with State v. Griffin, 756 S.W.2d 475, 490 (Mo. banc 1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989). In Griffin, this Court held that, in order to avoid an arbitrary application of the death penalty, the depravity of mind aggravator must be supplemented by a finding of at least one of a number of court-approved limiting factors. In State v. Brooks, 960 S.W.2d 479, 496 (Mo. banc 1997), cert. denied, 524 U.S. 957, 118 S.Ct. 2379, 141 L.Ed.2d 746 (1998), this Court held that the random selection of the victim is to be included in this list of limiting factors. Nonetheless, Ferguson claims that subparagraph [1] “does not limit the class eligible for death or guide discretion,” because “a murder victim is always either someone unknown to the defendant, as here, or known to the defendant....” This Court is at a loss to understand this argument. The fact that Ferguson's selection of his victim was random demonstrates a callous disregard for the sanctity of all human life. Therefore, requiring the jury to find that Kelli Hall was chosen at random sufficiently “narrows the depravity of mind aggravating circumstance to those murders that involve an absence of any substantive motive.” Brooks, 960 S.W.2d at 496.

Ferguson also argues that the randomness provision of subsection [1] violates section 565.032.1(2), RSMo 1994, which provides that the “shall not be instructed upon any specific evidence which may be in aggravation or mitigation of punishment....” However, Ferguson did not specify this reason to the trial court when he objected to Instruction 16 during the instruction conference, as required under Rule 28.03. As a result, Ferguson is only entitled to plain error review under Rule 30.20 and must establish that the trial judge so misdirected or failed to instruct the jury as to cause manifest injustice. State v. Doolittle, 896 S.W.2d 27, 29 (Mo. banc 1995). Despite the statutory prohibition that jurors should not be instructed on specific evidence of aggravation or mitigation, the randomness provision serves to limit and thereby constitutionalize the depravity of mind aggravator. For that reason, no manifest injustice occurred.

Although Ferguson contends that there was no evidence to support the submission of the second aggravating circumstance—“[w]hether the murder of Kelli Hall was committed for the purpose of avoiding or preventing a lawful arrest of the defendant or Kenneth Ousley”—he couches his argument like that regarding the first aggravator—that the instruction does not sufficiently narrow the field of those eligible for the death penalty. There is no narrowing of the field, as Ferguson claims, because every murder can be said to have been committed, at least in part, to avoid or prevent the arrest of the perpetrator of the murder. This argument fails because it ignores the logical inference that Kelli Hall was killed to avoid Ferguson's and Ousley's arrest for kidnapping and rape.

Ferguson also challenges the submission of the third and fifth aggravating circumstances instructions (no finding was made on fourth aggravator), which state: 3. Whether the murder of Kelli Hall was committed while the defendant was engaged in the perpetration of or the attempt to perpetrate or was aiding or encouraging another to perpetrate or the attempt to perpetrate a felony of any degree of rape. * * * * * * 5. Whether the murder of Kelli Hall was committed while the defendant was engaged in the perpetration of or the attempt to perpetrate or was aiding or encouraging another to perpetrate or the attempt to perpetrate a felony of any degree of kidnapping.

Ferguson relies on State v. Isa, 850 S.W.2d 876, 902 (Mo. banc 1993), for the proposition that the phrase “aiding or encouraging another” permitted the jury to sentence him to death for Ousley's actions. This is another claim that has been repeatedly denied. The incorporation of the phrase “aiding or encouraging another,” or similar language, “does not remove the jury's focus from the ‘convicted murderer's own character, record and individual mindset as betrayed by [his] own conduct.’ “ State v. Hutchison, 957 S.W.2d 757, 765 (Mo. banc 1997); State v. Gray, 887 S.W.2d 369, 387 (Mo. banc 1994). Ferguson's complaint about Instruction 17, the instruction on the two nonstatutory aggravating circumstances, is that it also violates section 565.032.1's prohibition against instructing on specific evidence of aggravators or mitigators. Again, Ferguson failed to specify this reason to the trial court when he objected to the instruction during the instruction conference. The claim is reviewable only under the plain error/manifest injustice standard of Rule 30.20. Ferguson offers no reason to believe that he suffered manifest injustice because of this instruction, and this Court has found none. The point is denied.

4. Closing Argument

Ferguson contends that 12 of the prosecutor's statements in the state's penalty phase closing argument constitute reversible error. Only five of these challenges were preserved for appeal. First, Ferguson claims that the prosecutor argued facts not in evidence or misstated evidence when he said, “You know what [Hall's] mother felt like then? Like her world had just dropped out.” Prosecutors may comment on the evidence and the reasonable inferences to be drawn from the evidence, as long as they do not imply knowledge of facts not before the jury. State v. Clemons, 946 S.W.2d 206, 228–29 (Mo. banc), cert. denied, 522 U.S. 968, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997). Here, the prosecutor did not improperly speculate, and, instead, merely stated an obvious inference drawn from Kelli Hall's mother's testimony.

Next, Ferguson claims that the prosecutor improperly speculated when he remarked, “... we don't know whether he kept that ligature on or whether it was released and she started to come to and he had to go back and do it again. You've seen those marks.” The trial court did not err by overruling the objection to these statements, because they were drawn directly from the testimony of the medical examiner.

Ferguson also claims that the prosecutor improperly speculated and misstated the evidence by commenting: What was going through her mind before she lost consciousness? She knew she was never coming out of that field ... any begging out there fell and falls on deaf ears. This comment was not objectionable because it was a reasonable inference from the evidence.

The two remaining comments were challenged on the ground of improper personalization. The prosecutor stated: ... no matter how long they had her out there, have you thought during the course of the trial what was going through her mind, how frightened she had to be? * * * * * * ... when you get back there and you start being concerned about Jeff Ferguson and feel sorry for him, think about what it was like out in that field that night.

A prosecutor “may recount in detail the victim's pain and suffering, engendering sympathy in the jury during the penalty-phase closing argument,” and such argument is only improper when it suggests a personal danger to the jury or their families. State v. Rhodes, 988 S.W.2d 521, 528 (Mo. banc 1999). These comments did not suggest such a personal danger, and therefore, the trial court committed no error in overruling the objections.

Ferguson requests plain error review under the manifest injustice standard for the following seven comments: 1) “She's left out there for 13 days nude. There were marks on her neck. You know that involved torture and depravity of mind;” 2) “He's choking and beating other women;” 3) “I could have brought in Kelli Hall's family. I could have put her mother up on the stand, tell us about her childhood and have her cry. I could have brought her grandparents in.... But I am not parading them in here to tell you what a wonderful little girl she was and how much they are going to miss her and that sort of thing;” 4) “You have to protect Kelli Hall. We have to protect every child like her, ladies and gentlemen. Society sometimes has to make tough decisions;” 5) “If any one of you had been out in that field and saw what happened that night, like that you would have known what has to be done in this case;” 6) “And it's time for society to take a stand and take it against the people like Jeff Ferguson who just manipulate and use people;” 7) “So I am asking you on behalf of the State of Missouri, and on behalf of Kelli Hall's family, to return a verdict of death in this case.”

Ferguson alleges that these statements are improper because they misstate the law or misstate the facts or they constitute speculation or personalization. Upon review of the record, six of the seven statements have either been mischaracterized or taken out of context and were not erroneous, and like the claims regarding the prosecutor's closing argument in guilt phase, most are frivolous. The prosecutor did, however, make one misstatement of fact when he commented that Ferguson was “choking and beating other women,” and Ferguson correctly points out that the state presented evidence that he beat and choked only one woman other than Kelli Hall. This does not amount to manifest injustice. The point is denied.

III. ALLEGATIONS OF RULE 29.15 MOTION COURT ERRORS

Appellate review of a post-conviction motion is limited to a determination of whether the findings of fact and conclusions of law are “clearly erroneous.” State v. Brown, 998 S.W.2d 531, 550 (Mo. banc 1999). Findings and conclusions are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Id.

As noted, the motion court refused to grant an evidentiary hearing on any of the claims in Ferguson's Rule 29.15 motion. The motion court need not hold an evidentiary hearing unless: 1) the movant cites facts, not conclusions, which if true would entitle the movant to relief; 2) the factual allegations are not refuted by the record; and 3) the matters complained of prejudiced the movant. State v. Moss, 10 S.W.3d 508, 511 (Mo. banc 2000).

A. Disclosure

Several of Ferguson's Rule 29.15 claims arise from the state's alleged failure to disclose exculpatory evidence before and during the trial. Under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), due process requires the state to disclose evidence in its possession that is favorable to the accused and material to guilt or punishment. Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). More recently, the Supreme Court has held that there are three components of a Brady violation: 1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; 2) the evidence must have been suppressed by the state, either willfully or inadvertently; and 3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

1. The surveillance videotape

Ferguson first claims that the motion court clearly erred in denying a new trial or other post-conviction relief on the ground that the state failed to disclose a surveillance videotape that was supposedly made at the Mobil gas station on the night of Kelli Hall's abduction. However, Ferguson failed to properly plead this alleged Brady violation in his Rule 29.15 motion, asserting nothing more than that the “state had in its possession material exculpatory evidence that was not turned over to the defense,” without specifying what the exculpatory evidence might be. This allegation fails to cite “facts, not conclusions, which if true would entitle the movant to relief.” Indeed, Ferguson conceded in the motion, itself, that he had no facts to support the claim of withholding evidence. In State v. Brooks, 960 S.W.2d 479, 500 (Mo. banc 1997), cert. denied, 524 U.S. 957, 118 S.Ct. 2379, 141 L.Ed.2d 746 (1998), this Court has made it clear that claims based on this sort of pleading are unacceptable:

Appellant contended in his amended motion that the state had in its possession material, exculpatory evidence that the state failed to turn over to the defense. He sought to establish a claim of violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant's claim is patently frivolous. It is entirely speculative and conclusional. There is no authority in law for the proposition that a defendant may simply make a general allegation of a Brady violation so as to require the motion court to grant an evidentiary hearing and to order that the state discloses its entire file so that a criminal defendant may cast about, attempting to discover whether or not a Brady violation may have occurred. Appellant's claim requires no further discussion.

In a related claim, Ferguson complains that the state violated the motion court's discovery order to allow his counsel to view the surveillance videotape. Discovery in post-conviction relief cases, which are civil in nature, is governed by Rule 56.01, so that Ferguson is entitled to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action....” Rule 56.01(b)(1). Despite the motion court's order, the pleading defect in Ferguson's Brady claim—the failure to cite facts, not conclusions, that would entitled him to relief—foreclosed any entitlement to discovery on the matter. The Brady violation was not actionable from the start and was ultimately dismissed by the motion court for that reason, and therefore, discovery sought pursuant to the Brady violation was never “relevant to the subject matter involved in the pending action.” To hold otherwise—to allow full-scale discovery on matters not properly pled—expands and distorts the post-conviction relief proceedings, and Brady, itself, to something that was never intended.

Even if Ferguson had properly pled a Brady violation, by the time he made his request for disclosure, which was more than a year after the filing of his amended Rule 29.15 motion, the videotape had been either lost or destroyed. Absent a showing of bad faith on the part of the police or prosecutor, the failure to preserve even potentially useful evidence does not constitute a denial of due process. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Ferguson has made no such showing, and the record discloses none.

Assuming that Ferguson had properly pled the Brady claim, that he was entitled to discovery, and that the videotape had been preserved, he still has not established that the evidence was exculpatory or that prejudice resulted. According to Ferguson's theory of the case, Mike Thompson and Kenneth Ousley were the actual perpetrators. Witnesses had seen Kelli Hall talking with a white male and a black male, possibly resembling Thompson and Ousley, who had come to the station in a rusty Blazer between 9 and 10 p.m. on the night of the abduction, and their presence at the gas station would supposedly be borne out by the videotape. However, even if that evidence appeared on the videotape, which is obviously a speculative proposition, it does not in any way negate Ferguson's guilt. Ferguson admitted he was with Ousley in the vicinity of the Mobil station at about 11 p.m. when the abduction occurred, and therefore, he was still fully capable of participating in the crimes. Even under Ferguson's best case scenario, there is no reasonable probability that the result of the trial would have been different.

2. The FBI materials

Ferguson next claims that the motion court clearly erred in denying a new trial or other post-conviction relief based on his claim that the state failed to disclose exculpatory evidence pertaining to the FBI crime lab, including the FBI's entire file on the case, and any and all information about the serology, DNA, and hair and fiber units of the FBI lab. In addition, Ferguson makes the related claims that the motion court erred 1) in denying several motions to disclose a wide range of material that he asserted was pertinent to the Brady violation and 2) in denying his motion for new trial based on the FBI's failure to follow the motion court's order that Dr. Libby be allowed to inspect its original DNA case file. These claims fail for the same reasons the surveillance video claim fails—the Brady violation was not properly pled in the Rule 29.15 motion and discovery requests relating to the alleged Brady violations were thus foreclosed.

Assuming Ferguson had properly pled the Brady claim, he has not demonstrated that any of the FBI material would be exculpatory or prejudicial. Before trial he was provided with extensive information regarding the FBI tests and procedures, and he used the information to thoroughly challenge the FBI evidence at trial, as demonstrated, for example, by the 54 pages of transcript of his cross-examination of the state's DNA expert. Ferguson does not clearly identify what he hopes additional FBI materials would show, and it appears that these materials, if any, could only be used to counter the FBI evidence in basically the same way that he countered that evidence at trial. Furthermore, it is worth noting that during the post-conviction proceedings Ferguson was able to obtain through the Freedom of Information Act at least 1,779 pages of FBI materials that have still not revealed any more exculpatory information than what he had before.

In denying relief, this Court is fully aware of Ferguson's allegation and request for discovery regarding FBI Agent Malone, who testified about the hair and fiber samples, and who has apparently been exposed for falsifying testimony in other cases. However, there is no evidence that Agent Malone acted improperly in this case, and it cannot fairly be said that the hair and fiber evidence had a prejudicial impact on the trial.

3. “South side rapist” materials

Ferguson argues that the motion court clearly erred in denying his motion for disclosure of DNA materials from the “south side rapist,” an alleged serial rapist who was at large during the time of Hall's abduction. Ferguson failed to include this argument in his Point Relied On, and therefore, this Court's review is for plain error/manifest injustice under Rule 30.20. State v. Tooley, 875 S.W.2d 110, 115 (Mo. banc 1994). Given the wholly speculative nature of the underlying claim that the south side rapist might be the true perpetrator, and the overwhelming evidence of Ferguson's guilt, especially the fact that Ferguson's DNA matched the semen found on Hall's clothing, no manifest injustice occurred. This claim fails for the additional reason that it is a claim of newly discovered evidence, which is not cognizable in a Rule 29.15 motion, even where properly pleaded and preserved. State v. Stephan, 941 S.W.2d 669, 679 (Mo.App.1997); Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991) (regarding Rule 24.035 post-conviction claims).

B. Ineffective Assistance of Counsel Claims

Ferguson makes a number of claims of ineffective assistance of counsel in his amended Rule 29.15 motion. To establish that counsel was constitutionally ineffective, it must be shown that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to obtain an evidentiary hearing, Ferguson must allege facts, not refuted by the record, showing that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that he was thereby prejudiced. State v. Jones, 979 S.W.2d 171, 180 (Mo. banc 1998), cert. denied, 525 U.S. 1112, 119 S.Ct. 886, 142 L.Ed.2d 785 (1999).

1. Failure to move for a change of judge

Ferguson claims that counsel was ineffective for failing to move for a change of judge based on the trial judge's alleged bias toward criminal defendants. The basis for this claim is that the trial judge received a “below average” rating on impartiality in a 1992 Missouri Bar Judiciary Evaluation survey and that trial counsel was aware that other public defenders were challenging the judge's impartiality in State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996), cert. denied, 520 U.S. 1254, 117 S.Ct. 2415, 138 L.Ed.2d 180 (1997).

This Court agrees with the motion court's finding that neither the 1992 survey nor the fact that the public defender's office had previously questioned and litigated the trial judge's impartiality on various grounds constitute facts that would lead a reasonable person to conclude that the trial judge was biased against Ferguson. A general survey does not necessarily indicate that a judge has prejudged issues in a particular case. Furthermore, the public defenders in Smulls challenged the trial judge's impartiality by alleging that he was biased against women and African–Americans, not that he was biased against white males like Ferguson.

2. Voir dire

Ferguson presents two ineffective assistance of counsel claims regarding voir dire: 1) that counsel should have moved to strike prospective juror Schleper for cause; and 2) that counsel should have moved to strike the entire group of prospective jurors who heard juror Rohan's comment supporting the death penalty.

The claim pertaining to Mr. Schleper is that he could not fully consider life imprisonment without the possibility of parole. The motion court found that Ferguson's claim was refuted by the record. This Court agrees. Although Mr. Schleper first indicated that he “kind of ... leaned toward” the death penalty, he then stated unequivocally that he would consider mitigating circumstances, would consider both possible penalties, and would follow the judge's instructions. See State v. Ramsey, 864 S.W.2d 320, 336 (Mo. banc 1993) (holding that the trial court did not err in overruling a challenge for cause of a venireperson who stated that he “leaned toward the death penalty”), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994). The ruling was not clearly erroneous.

The second complaint involves prospective juror Rohan's statement that “I am strongly for the death sentence. I would have difficulty if I believed that someone murdered someone believing that the country should support them the rest of their life.” To establish that the entire jury panel should have been quashed based on one venireperson's statement, Ferguson must show that the statement was “ ‘so inflammatory and prejudicial that it can be said a right to a fair trial has been infringed.’ “ State v. Smulls, 935 S.W.2d at 19 (quoting State v. Evans, 802 S.W.2d 507, 514 (Mo. banc 1991)). Ferguson has not demonstrated that Ms. Rohan's statement was inflammatory and prejudicial because there was no suggestion that Ferguson, himself, deserved the death penalty, nor any attempt to encourage other venirepersons to impose the death penalty. The ruling was not clearly erroneous.

On this same point, Ferguson also contends that after Ms. Rohan made the statement, counsel should have attempted to educate the panel about the relative costs of life imprisonment and the death penalty. However, this Court has held that such economic concerns may not be addressed during voir dire, or at any time during trial, because they are completely irrelevant to any issue before the jury. State v. Clay, 975 S.W.2d 121, 142 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999). Therefore, counsel was not ineffective for failing to inform the jury on this information.

3. Guilt phase
a. Failure to investigate and present evidence

Ferguson claims that the motion court should have granted a hearing on his claims of ineffective assistance of counsel in the investigation and presentation of guilt phase evidence. This claim is difficult to establish because neither the failure to call a witness nor the failure to impeach a witness will constitute ineffective assistance of counsel unless such action would have provided a viable defense or changed the outcome of the trial. State v. Hall, 982 S.W.2d 675, 687 (Mo. banc 1998), cert. denied, 526 U.S. 1151, 119 S.Ct. 2034, 143 L.Ed.2d 1043 (1999).

Ferguson is primarily critical of the failure to present witness testimony or other evidence to impeach state's witness Robert Stulce, who testified that he saw a brown and white Blazer that looked just like Ferguson's at the Mobil station and that he saw Kelli Hall get in the Blazer with a white male. Later, Stulce assisted police in making composite pictures of the man he had seen. He also viewed a police line-up that included Ferguson, and although he did not positively identify Ferguson, he indicated that Ferguson and one other man looked “similar” to the man he saw at the Mobil station.

Ferguson contends that counsel should have: 1) introduced one of the composite pictures of the person Stulce saw because it supposedly resembled Mel Hedrick more than Ferguson; 2) introduced a picture of Hedrick taken close to the time to the offense; 3) presented testimony that Hedrick did not have a beard at that time, contrary to his testimony; 4) introduced Stulce's prior inconsistent statement that the man he saw was a head taller than Hall; and 5) introduced Stulce's prior statement that he was sure that a man he later saw on I–70 was the man he saw at the Mobil station. These actions, according to Ferguson, would not only have impeached Stulce's testimony, but also would have linked Hedrick to the crime.

Impeaching Stulce's testimony either on cross-examination or by calling other witnesses would not have aided Ferguson. Stulce admitted that he could not identify the man he saw at the Mobil station, and he did not identify Ferguson at trial. He merely stated that the man looked “similar” to Ferguson. In addition, Hedrick testified at trial so that the members of the jury were able to see for themselves whether he had a resemblance to Ferguson and could have been the man at the Mobil station. But even assuming that counsel had done everything that Ferguson now suggests, and it had the desired effect of leading the jury to believe that Hedrick was at the Mobil station, it still would not have provided Ferguson with a viable defense. None of this evidence would have shown that Ferguson was not involved in the crimes.

Ferguson also faults counsel for failing to investigate and present evidence that co-defendant Ousley, state's witnesses Hedrick and Thompson, and even Kelli Hall and her boyfriend, were involved in the area drug scene. The apparent purpose of the evidence was to show that persons other than Ferguson had the motive or opportunity to commit the crimes against Kelli. As the motion court found, however, this evidence would have been inadmissible because it constituted evidence of the witnesses' prior bad acts. State v. Clay, 975 S.W.2d at 141–43. It also would have been inadmissible because it would not directly connect any of those persons with the corpus delicti of the crime and point to someone other than Ferguson as the guilty party. See State v. Rousan, 961 S.W.2d 831, 848 (Mo. banc 1998), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998). Finally, this is also the kind of evidence that, even if it was admissible, is not inconsistent with Ferguson's commission of every element of the crimes, as principal or accomplice.

b. Juror misconduct

Ferguson contends in a cursory fashion that his counsel was ineffective for failing to make a record that one of the jurors was sleeping at trial and, thereafter, for failing to move to strike that juror for cause. He also claims that the jurors committed misconduct by disregarding the court's instructions to avoid news reports and discussions of the case. He subsequently filed a “Motion for Leave to Contact and Interview Petit Jurors” for discovery purposes that was denied after argument. The motion court did not clearly err in denying these claims. In his Rule 29.15 motion, Ferguson did not allege “facts, not conclusions, that would entitle him to relief,” and there is nothing in the post-conviction record to indicate that any juror was actually sleeping. In addition, Ferguson failed to plead any facts supporting his other claims of jury misconduct. The point is denied.

c. DNA and blood evidence

Ferguson also argues that counsel was ineffective for failing to refute the state's DNA evidence. As noted, however, Ferguson's trial counsel engaged in extensive cross-examination of the state's DNA expert and called an expert witness for the defense, Dr. Libby, who challenged the state's findings and procedures. Counsel was not ineffective in this regard. Ferguson next claims that counsel should have insisted that blood samples be taken of Hall's boyfriend, Hedrick, and Thompson because those persons may have been type A secretors like Ferguson. This failure does not, however, show that counsel was ineffective. Even if these persons were type A secretors, blood evidence of that sort, which is found in a large percentage of the population, had little to do with establishing the identity of the perpetrator. Ferguson was convicted on the stronger evidence that his DNA “matched” the DNA extracted from the sample on Hall's coat. Ferguson further argues that counsel was ineffective for failing to show that Ousley could not have been excluded as the source of the semen on his own jeans. Again, Ferguson cannot show that he was prejudiced. The state never disputed Ousley's involvement, and, as previously discussed, implicating someone else, especially Ousley, would not exonerate Ferguson.

Finally, Ferguson claims that counsel was ineffective for failing to present evidence that his “judgment, cognition and impulse control were substantially impaired” due to his mental condition and consumption of alcohol. However, this evidence, even if true, would have been inconsistent with his defense at trial. Ferguson testified that he could not have committed the crime because he “passed out” in the Blazer at the Shell station. Ineffective assistance of counsel cannot be established where counsel pursued one reasonable trial strategy to the exclusion of another. State v.. Harris, 870 S.W.2d 798, 816 (Mo. banc 1994), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994).

d. The trial judge's efforts to expedite the trial

Ferguson also claims that trial counsel was ineffective for failing to preserve the challenge to the court “forcing trial to proceed late at night” and for failing to preserve his related motion for mistrial. The record shows, however, that counsel adequately preserved these matters for this appeal.

In addition, Ferguson contends that trial counsel was ineffective for failing to object and preserve a challenge to the trial court's alleged efforts to expedite the entire course of the trial. He alleges, in particular, that the trial judge hurried through the trial so that he could go on a planned vacation. In support of the allegation, he states: 1) that the trial judge commented to the jury during voir dire that he intended to keep the trial moving along and he intended to complete the trial within two weeks; 2) that the trial judge allegedly remarked off the record that the case was interfering with his vacation plans; and 3) that the judge's wife and friends were present in the courtroom one day, apparently waiting for the trial to end. This evidence, even if true, does not in and of itself demonstrate trial court error. See State v. Engleman, 634 S.W.2d 466, 479 (Mo. banc 1982) (“the trial judge should act with the purpose of maintaining orderly procedure and expediting the trial without denying the defendant any right to which he is entitled under law.”). Moreover, Ferguson has not shown how he was prejudiced.

Assuming the trial court erred, Ferguson's challenge still fails. In his Rule 29.15 motion, he did not claim counsel was ineffective for failing to preserve this challenge, and instead, he challenged the trial court's actions and rulings as a matter of trial court error, which, as the motion court properly determined, is not cognizable in a Rule 29.15 proceeding. Nevertheless, Ferguson attempts to transform this claim of trial court error into a cognizable ineffective assistance of counsel claim by citing United States v. Cronic, 466 U.S. 648, 659–62, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), for the proposition that external forces can render counsel constitutionally ineffective even when counsel performed as well as a reasonably competent attorney could have performed under the circumstances. This is true, however, only when “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659–60, 104 S.Ct. 2039. Here, such a presumption is not appropriate. Even if Ferguson could overcome the initial hurdle of demonstrating that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, he does not show that he was prejudiced by the trial court's actions.

4. Penalty phase
a. Failure to investigate and present evidence

Ferguson claims that counsel was ineffective for failing to investigate and present certain penalty phase evidence. More specifically, he states that counsel should have presented three expert witnesses, either in addition to or instead of the two expert witnesses that were called. These three witnesses, according to Ferguson, would have testified regarding the effect of his past and present alcohol and drug addiction, his intelligence, his genetic predisposition to a major depressive disorder, and his family history of mental illness and alcoholism. Ferguson also contends that counsel should have called twenty-six lay witnesses, in addition to the eight lay witnesses that were actually called, to testify about his good character and other mitigating circumstances in his background.

This additional evidence would have been cumulative. The two experts who were called did testify, at length, about Ferguson's intelligence, depression and substance abuse. Further, the eight lay witnesses testified about his devotion to his family, his good character, his problems with seizures, his problems with drugs and alcohol, and other details about his background. This was ample evidence in support of mitigation, and counsel's failure to present additional evidence that would have been cumulative does not amount to ineffective assistance of counsel. See State v. Johnston, 957 S.W.2d 734, 755 (Mo. banc 1997), cert. denied, 522 U.S. 1150, 118 S.Ct. 1171, 140 L.Ed.2d 181 (1998). The point is denied.

b. Trial court's remarks at sentencing

Ferguson contends that trial counsel was ineffective for failing to object to the trial court's derogatory remarks at sentencing. These remarks included, “You deserve the death penalty more than any case I've ever had in my life. And when I see those pictures of that young woman, it even makes my blood boil a little bit.” Ferguson maintains that these remarks demonstrated a bias and hostility toward him, although he does not state exactly what relief trial counsel should have sought. Regardless, the motion court did not clearly err in finding that the record did not support the claim, and that Ferguson had not overcome the presumption that judges do not consider improper evidence in sentencing. The judge's remarks were made during, not before, pronouncement of the sentence and were made to explain the sentence, and therefore, they do not establish disqualifying bias. See State v. Whitfield, 939 S.W.2d 361, 368 (Mo. banc), cert. denied, 522 U.S. 831, 118 S.Ct. 97, 139 L.Ed.2d 52 (1997). Furthermore, the trial court's comments in this case are not unlike allegedly derogatory comments in other cases that this Court held were not improper. See, e.g., Haynes v. State, 937 S.W.2d 199, 201–02 (Mo. banc 1996).

5. Remaining ineffective assistance of counsel claims

Ferguson's remaining allegations of ineffective assistance counsel are based on claims discussed and denied in the sections of this opinion dealing with trial court error. They include that counsel was ineffective for failing to: 1) object and preserve claims regarding the trial court's limitations on voir dire; 2) challenge the admissibility of the DNA evidence; 3) object to the hearsay statements admitted through the testimony of Alicia Medlock and Mike Thompson; 4) object to nine comments made in the closing arguments of the guilt phase; 5) object on proper grounds to the verdict director for first-degree murder; 6) adequately examine Ferguson's two penalty phase experts, Dr. O'Connor and Dr. Smith; 7) object to the admission of unadjudicated bad acts in the penalty phase; 8) object to seven comments made by the prosecutor during the penalty phase closing argument; and 9) object on proper grounds to the penalty phase instructions on the statutory and non-statutory aggravating circumstances. As noted, none of these claims resulted in manifest injustice entitling Ferguson to plain error relief, and indeed, most claims did not constitute error in the first place. As to those few claims that did constitute error, none were prejudicial; none resulted in a “reasonable probability” that the outcome of the trial would have been different, as required to show ineffective assistance of counsel under Strickland.

C. Motion Court's Adoption of the State's Proposed Findings

Ferguson contends that the motion court erred in adopting the state's proposed findings of fact and conclusions of law verbatim, which shows that the court did not exercise independent judgment in denying relief without a hearing, and thus constituted a denial of due process. For support, Ferguson points to the fact that the motion court filed its findings, conclusions, and order the same day the state submitted its proposal.

In the absence of independent evidence that the court failed to thoughtfully and carefully consider the claims, “there is no constitutional problem with the court adopting in whole or in part the findings of fact and conclusions of law drafted by one of the parties.” State v. Kenley, 952 S.W.2d 250, 261 (Mo. banc 1997), cert. denied, 522 U.S. 1095, 118 S.Ct. 892, 139 L.Ed.2d 878 (1998). See also State v. Basile, 942 S.W.2d 342, 362 (Mo. banc 1997), cert. denied, 522 U.S. 883, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997); State v. Phillips, 940 S.W.2d 512, 521 (Mo. banc 1997). In this case, the record reflects that the motion court exercised independent judgment. The court held a lengthy hearing to determine whether any of Ferguson's claims warranted an evidentiary hearing, and then having been advised by the parties, ruled from the bench that the claims were denied. He invited both parties to submit proposed findings of fact and conclusions of law, but Ferguson declined to do so. The motion court's entry of its findings, conclusions and order on the same day that the state filed its proposals proves nothing more than that the court was able to give the matter immediate attention. The point is denied.

IV. PROPORTIONALITY REVIEW

Under section 565.035.3, RSMo 1994, this Court is required to determine: 1) Whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; 2) Whether a statutory aggravating circumstance and any other circumstances found by the trier of fact were supported by the evidence; and 3) Whether the sentence is excessive or disproportionate to the punishment imposed in similar cases, considering both the crime, the strength of the evidence and the defendant.

From this Court's review of the record, there is no evidence that the sentence of death was imposed under the influence of passion or prejudice or any other arbitrary factors. Further, the evidence amply supports the four statutory and two non-statutory aggravators found by the jury. Finally, the imposition of the death penalty in this case is neither excessive nor disproportionate. In that regard, the strength of the evidence and the circumstances of the crime far outweigh any mitigating factors in Ferguson's favor. In addition, this case is like many others where the death penalty has been imposed against defendants who have murdered victims they had abducted and against whom they had committed sexual offenses. See, e.g., State v. Brooks, 960 S.W.2d 479, 502 (Mo. banc 1997), cert. denied, 524 U.S. 957, 118 S.Ct. 2379, 141 L.Ed.2d 746 (1998); State v. Nunley, 923 S.W.2d 911, 926 (Mo. banc 1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 772, 136 L.Ed.2d 717 (1997); State v. Brown, 902 S.W.2d 278 (Mo. banc 1995), cert. denied, 516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995); State v. Gray, 887 S.W.2d 369 (Mo. banc 1994), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995); State v. Lingar, 726 S.W.2d 728, 741–42 (Mo. banc), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987).

CONCLUSION

For the foregoing reasons, the judgments are affirmed. All concur.

Ferguson v. Roper, 400 F.3d 635 (8th Cir. Mo. 2005). (Federal Habeas)

Background: State prisoner petitioned for writ of habeas corpus after he was convicted and sentenced to death for the abduction, rape, and murder of 17 year old gas station attendant, and his conviction was affirmed on appeal, 20 S.W.3d 485. The United States District Court for the Eastern District of Missouri, Catherine D. Perry, J., denied petition. Prisoner appealed.

Holdings: The Court of Appeals, Loken, Chief Judge, held that: (1) failure of Missouri Supreme Court to refer to Youngblood was not contrary to, or unreasonable application of, clearly established federal law; (2) defendant was not entitled under Youngblood to discovery and evidentiary hearing during his post-conviction proceedings; and (3) co-conspirator's out of court statement to witness was admissible under hearsay exception for conspirator statements in furtherance of conspiracy. Affirmed.

LOKEN, Chief Judge.

Jeffrey Ferguson was convicted and sentenced to death in state court for the abduction, rape, and murder of Kelli Hall, a seventeen-year-old gas station attendant. The Supreme Court of Missouri affirmed the conviction and sentence and the denial of state post-conviction relief. State v. Ferguson, 20 S.W.3d 485 (Mo. banc 2000). Ferguson then filed this petition for a federal writ of habeas corpus under 28 U.S.C. § 2254. The district court FN1 denied the petition, and Ferguson appealed. A certificate of appealability was granted on two issues: whether the district court erred in denying, without a hearing, Ferguson's claim that the State violated his due process rights under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), by the post-conviction loss or destruction of a potentially useful surveillance tape; and whether the state trial court violated his Confrontation Clause rights as recently construed in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), when it admitted testimony of incriminating out-of-court statements by Ferguson's co-defendant. We affirm. FN1. The HONORABLE CATHERINE D. PERRY, United States District Judge for the Eastern District of Missouri.

I. The Youngblood Issue.

Kelli Hall worked at a service station in Saint Charles, Missouri. Hall's frozen, naked body was discovered on a nearby farm three weeks after a witness saw a man resembling Ferguson forcing her into a truck identical to Ferguson's vehicle outside the service station on the night she disappeared. An autopsy revealed that Hall had been raped before she was strangled to death. Ferguson and his friend, Kenneth Ousley, were seen with Ferguson's truck across the street from the service station shortly before Hall was abducted. During the days following Hall's disappearance, Ferguson and Ousley tried to sell three of her rings. Ferguson warned a potential purchaser that the rings were “very hot,” and he told another friend not to tell anyone he was in Saint Charles on the night of the abduction. He also asked a body shop to repaint his vehicle because the police were looking for it.

Laboratory tests showed that semen found inside Hall came from a person with Ferguson's blood type, DNA found in a semen stain on Hall's coat matched Ferguson's, and fibers found on Hall's clothing were “indistinguishable” from the carpeting in Ferguson's truck. A blonde hair matching Hall's was found on Ousley's shoe, and a pubic hair indistinguishable from Ousley's was found on Hall's socks. Hall's body was found partially obscured by steel partitions that could not have been moved by one man.

Ferguson and Ousley were charged with first degree murder. Ousley, who later pleaded guilty and received a life sentence, did not testify at Ferguson's trial. Ferguson did testify. He admitted meeting Ousley at the time and place in question but said that he could not have raped and murdered Hall because he was drunk and “passed out” in his vehicle (contrary to his statement to police following his arrest). The jury convicted Ferguson of first degree murder and recommended the death penalty, which the trial court imposed.

Ferguson filed a petition for state post-conviction relief that included a claim that the prosecution failed to disclose unspecified exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While investigating post-conviction claims, Ferguson's attorneys learned that the service station where Hall worked operated a video surveillance system to monitor the station's interior public areas, and that the station manager had turned over to the police a videotape from the night Hall was abducted. The Saint Charles Police Department confirmed the existence of a “security video.” When the prosecutor refused Ferguson's request to view the videotape, he filed a motion to compel its disclosure. The post-conviction court granted the motion, but when Ferguson's investigator returned to the police station to view the tape, it could not be found. Ferguson then filed a motion for new trial, arguing that the prosecution's failure to disclose the surveillance videotape prior to trial violated its duty to disclose material exculpatory evidence under Brady. The post-conviction trial court denied that motion and Ferguson's other claims.

The Supreme Court of Missouri consolidated Ferguson's direct and post-conviction appeals and upheld his conviction and sentence. On the surveillance tape issue, the Court rejected Ferguson's Brady claim because it was not alleged with sufficient specificity in the post-conviction motion, Ferguson failed to show that the videotape evidence was exculpatory, and no prejudice resulted. The Court rejected on two grounds the related claim that the State, by losing or destroying the videotape, had violated the discovery order permitting Ferguson's post-conviction counsel to view the videotape. First, the Court explained, Ferguson was not entitled to discovery on a Brady claim that “was not actionable from the start.” Second, the videotape was lost or destroyed by the time Ferguson requested its disclosure, and “[a]bsent a showing of bad faith on the part of the police or prosecutor, the failure to preserve even potentially useful evidence does not constitute a denial of due process. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).” Ferguson, 20 S.W.3d at 504.

In the district court, Ferguson asserted that Youngblood rather than Brady provides the relevant federal constitutional rule governing the State's loss or destruction of the videotape. In Youngblood, the Supreme Court declined to extend the prosecutor's absolute duty under Brady to produce materially exculpatory evidence to cases where the State failed to preserve evidence that was only “potentially useful” at trial. Rather, the Court held “that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58, 109 S.Ct. 333, followed in Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004). The district court rejected Ferguson's Youngblood claim, and his request for an evidentiary hearing on that claim, concluding that he made no showing the tape disappeared due to bad faith, as opposed to mere negligence, and that the tape was not “potentially useful” evidence because Ferguson's admission he was in the vehicle before the abduction made him capable of participating in the crimes even if the videotape had revealed that another person entered the service station with Ousley.

On appeal, Ferguson abandons his Brady claim and argues that he is entitled to habeas relief, or at least an evidentiary hearing, under Youngblood.FN2 We disagree. Youngblood stated the applicable constitutional principle when potentially useful evidence is lost or destroyed before trial. Here, uncontroverted evidence established that the surveillance videotape existed until long after the trial. Thus, the videotape was evidence undiscovered by the defense, not evidence unavailable to the defense. Various post-conviction claims may be available to a defendant in this situation, but they are not Youngblood claims. For example, if the videotape was materially exculpatory, Ferguson has a post-conviction claim that the prosecution violated its absolute duty under Brady to disclose such evidence in its possession. Ferguson raised that claim in state court, and initially in the district court, but has abandoned it on appeal. Alternatively, if Ferguson's trial counsel should have discovered the videotape prior to trial, for example by interviewing the service station manager, that could give rise to an ineffective assistance of counsel claim. But no such claim was raised in state court, even though Ferguson asserted countless other ineffective assistance claims. Finally, Ferguson could have argued that the videotape was newly discovered evidence warranting a new trial under state law, an argument not made to the state post-conviction court.

FN2. Respondent argues for the first time on appeal, without citation to relevant authority, that Ferguson “cannot allege that the Missouri Supreme Court improperly applied Youngblood when petitioner did not raise, or even cite, Youngblood to the Missouri Supreme Court.” This contention-in effect a claim of procedural bar-is without merit. The Supreme Court of Missouri no doubt recognized that Brady and Youngblood both involve, in the Supreme Court's words, “what might loosely be called the area of constitutionally guaranteed access to evidence,” Youngblood, 488 U.S. at 55, 109 S.Ct. 333 (quotation omitted). Accordingly, the Missouri Supreme Court treated Ferguson's Brady claim as including a potential Youngblood issue and addressed that issue on the merits. Ferguson, 20 S.W.3d at 504. Federal habeas review is not procedurally barred when the state court's disposition of a federal constitutional claim “fairly appears to rest primarily on federal law.” Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quotation omitted); see Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th Cir.1990), cert. denied 499 U.S. 931, 111 S.Ct. 1337, 113 L.Ed.2d 268 (1991).

In these circumstances, reviewing the state court decision under the deferential standard enacted by the Anti-Terrorism and Effective Death Penalty Act of 1996, it is apparent that the Supreme Court of Missouri's application of Youngblood did not result in a decision “that was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1); see Johnston v. Luebbers, 288 F.3d 1048, 1051 (8th Cir.2002), cert. denied, 537 U.S. 1166, 123 S.Ct. 983, 154 L.Ed.2d 904 (2003). Moreover, because Youngblood does not apply to evidence not lost or destroyed until after trial, the district court did not err in denying Ferguson's request for discovery and an evidentiary hearing to explore whether the police acted in bad faith in losing or destroying the videotape during his post-conviction proceedings.

II. The Crawford Issue.

At trial, Ferguson's friend Michael Thompson testified that, after Hall's disappearance, Ousley asked Thompson whether he knew “where to get either money or cocaine” for two of Hall's rings. When Thompson asked Ousley where the rings came from, Ousley responded that “him [Ousley] and Jeff [Ferguson] did a job in St. Charles” and that “Jeff had a third ring.” The trial court overruled Ferguson's objection that this testimony was inadmissible hearsay. Citing only state cases, the Supreme Court of Missouri upheld that ruling on the ground that Thompson's testimony was admissible under the hearsay exception for conspirator statements in furtherance of a conspiracy. 20 S.W.3d at 496-97. In the district court, Ferguson argued that this ruling violated his Confrontation Clause rights as construed in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and its progeny. The district court ruled that Ousley's hearsay statements “bear particularized guarantees of trustworthiness,” one test under Roberts, and alternatively that any error was harmless beyond a reasonable doubt.

While this appeal was pending, the Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which overruled Roberts, at least in part. Crawford held that the Confrontation Clause bars admission of “testimonial” hearsay “unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.” Evans v. Luebbers, 371 F.3d 438, 444 (8th Cir.2004). Ferguson now argues that Ousley's out-of-court statements were “testimonial” and therefore barred by Crawford 's new categorical rule. In Crawford, the Court gave examples of testimonial hearsay but declined to articulate a comprehensive definition of the term. See 541 U.S. at 54 & n. 10, 124 S.Ct. 1354.

We then expanded Ferguson's certificate of appealability “to include the Sixth Amendment confrontation issue in light of ... Crawford.” However, in a subsequent decision, we held that “co-conspirator statements are nontestimonial.” United States v. Reyes, 362 F.3d 536, 540 n. 4 (8th Cir.), cert. denied 542 U.S. 945, 124 S.Ct. 2926, 159 L.Ed.2d 826 (2004). Ferguson argues that Reyes does not bar his Crawford claim because Ousley's statements to Thompson were not in furtherance of the conspiracy. That assertion is contrary to the facts as found by the Supreme Court of Missouri. It is also irrelevant to the question whether Ousley's private statements to Thompson were testimonial in nature. See Horton v. Allen, 370 F.3d 75, 84 (1st Cir.2004); United States v. Manfre, 368 F.3d 832, 838 n. 1 (8th Cir.2004). Accordingly, even if applied retroactively to this habeas case, FN3 the categorical rule in Crawford does not govern this case because Ousley's statements were not “testimonial.”

FN3. We have noted that Crawford does not appear to fall within the narrow exceptions to non-retroactivity under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Evans, 371 F.3d at 444. At least two circuits have held that Crawford is not retroactive. Brown v. Uphoff, 381 F.3d 1219, 1226-27 (10th Cir.2004); Hiracheta v. Attorney General of California, 105 Fed. Appx. 937, 938 (9th Cir.2004) (unpublished). We need not decide the question in this case.

Applying the Supreme Court's pre- Crawford decisions to this nontestimonial hearsay issue, we reject Ferguson's Confrontation Clause claim for the reasons stated by the Supreme Court of Missouri and by the district court. The Supreme Court's discussion in Crawford raises some doubt whether the Roberts reliability analysis remains good law when applying the Confrontation Clause to nontestimonial hearsay. See 541 U.S. at 52, 124 S.Ct. 1354 (“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law.”). But eliminating Roberts reliability review altogether would not entitle Ferguson to federal habeas relief, so we need not decide the issue.

The judgment of the district court is affirmed.