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Ferrell v. Wall2/2/2005
DECISION
On December 18, 1995, John Carpenter was shot to death in broad daylight on the streets of South Providence. Petitioner Jason Ferrell was indicted along with four (4) other men for Mr. Carpenter's murder and related crimes. At trial, Mr. Ferrell was acquitted of murder, but convicted of conspiracy to murder Carpenter as well as conspiracy to assault and assault with intent to murder one Lorenzo Evans. The petitioner received consecutive sentences and currently is serving an aggregate of forty (40) years at the Adult Correctional Institutions. In a post-conviction relief application brought pursuant to R.I.G.L. 10-9.1-1, et seq., he asserts that newly discovered evidence and the ineffectiveness of his attorney warrant a new trial.
On December 18, 1995, Lorenzo Evans was a passenger in an automobile operated by John Carpenter. When three (3) men other than Petitioner Ferrell opened fire from their black Jeep on Carpenter and Evans, Evans managed to exit the vehicle and flee through nearby backyards and streets. It was at a separate location from where Carpenter was murdered outside his vehicle that Lorenzo Evans testified at the trial that he saw Jason Ferrell in a white Ford Taurus with another black male, Germaine Campbell. Evans also testified that he saw Ferrell brandish a pistol, though he did not fire it. The testimony of Lorenzo Evans was the only evidence that placed Ferrell or his passenger, Germaine Campbell (who was convicted on the two conspiracy counts), in the general vicinity of John Carpenter's untimely end.
Petitioner Ferrell has placed before this Court a videotape and an accompanying transcript evidencing the recanting by Mr. Evans of his trial testimony. On the tape, Evans declares that he did not see Mr. Ferrell or Mr. Campbell in a white Taurus at or near the scene of John Carpenter's murder -- or anywhere else for that matter -- on December 18, 1995. A recanting can constitute a basis for the granting of post-conviction relief pursuant to R.I.G.L. 10-9.1-1 (a) (4) as it is "evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice . . ." Because I find the recanting of Mr. Evans to be credible when considered within the totality of the circumstances, Jason Ferrell's petition for post-conviction relief is granted, his convictions are vacated and his sentences set aside.
Other than the testimony of Lorenzo Evans, there was no evidence whatsoever that tended to prove any element of any of the crimes for which Mr. Ferrell stands convicted. No other witness placed him near the scene of the shooting or in the locale where the events immediately preceding and following the shooting are claimed by Evans to have taken place. Ferrell never admitted to the police or to any other person that he engaged in any of the conduct attributed to him. Thus, the jury heard from no other eye witnesses, nor did it hear from any prison guards or cell mates about a "jailhouse admission." Moreover, no tangible evidence of any kind connects the petitioner with any criminal activity directed against John Carpenter or Lorenzo Evans. No pistol was ever introduced as evidence against him, nor was any forensic evidence submitted for the jury's consideration. In short, without Lorenzo Evans, there is no case against Jason Ferrell.
At petitioner's evidentiary hearing, Lorenzo Evans was called as a witness, but on the advice of his attorney invoked his Fifth Amendment privilege on every question put to him, whether by Petitioner's attorney, the Attorney General, or the Court. Gerard Donnelly Esq., Mr. Evan's attorney, indicated that Evans was asserting his privilege because
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