MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	10	
Docket:	   Pen-18-13	
Argued:	   December	11,	2018	
Decided:	  January	24,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 STATE	OF	MAINE	
                                         	
                                        v.	
                                         	
                                THOMAS	FERGUSON	
	
	
MEAD,	J.	

      [¶1]	 	 On	 November	 27,	 2015,	 Robert	 Kennedy	 was	 shot	 to	 death	 in	 an	

apartment	on	Center	Street	in	Bangor;	Barry	Jenkins	was	seriously	wounded	in	

the	 attack.	 	 Thomas	 Ferguson	 appeals	 from	 a	 judgment	 of	 conviction	 for	

Kennedy’s	 murder,	 17-A	 M.R.S.	 §	 201(1)(A)	 (2017),	 and	 the	 elevated	

aggravated	 assault	 on	 Jenkins	 (Class	 A),	 17-A	 M.R.S.	 §	 208-B(1)(A)	 (2017),	

entered	by	the	trial	court	(Penobscot	County,	Anderson,	J.)	following	 a	bench	

trial.		Ferguson	contends	that	(1)	the	evidence	was	insufficient	to	support	the	

court’s	factual	findings,	 as	well	 as	its	ultimate	finding	that	he	was	 at	least	 an	

accomplice	in	the	murder	of	Kennedy	and	the	shooting	of	Jenkins;	(2)	he	was	

denied	 due	 process	 when	 the	 State	 allowed	 Jenkins	 to	 perjure	 himself	 when	

testifying	 at	 the	 trial;	 (3)	 the	 court	 improperly	 allowed	 two	 witnesses	 to	
2	

identify	 him	 in	 court;	 and	 (4)	 the	 court	 erred	 in	 certain	 evidentiary	 rulings.		

Discerning	no	error,	we	affirm	the	judgment.	

                             I.		FACTS	AND	PROCEDURE	

A.	   Facts	

	     [¶2]		Following	a	jury-waived	trial,	the	court	made	extensive	findings	of	

fact	 beyond	 a	 reasonable	 doubt.	 	 We	 review	 those	 findings	 for	 clear	 error,	

“uphold[ing]	them	if	supported	by	competent	evidence	in	the	record.”		State	v.	

Wilson,	2015	ME	148,	¶	13,	127	A.3d	1234.	

	     [¶3]	 	 The	 court	 found	 that	 on	 November	 27,	 2015,	 at	 about	 3:30	 a.m.,	

Karen	Patchell	was	in	her	apartment	at	201	Center	Street	in	Bangor	with	Robert	

Kennedy	and	 Barry	Jenkins;	another	 woman	who	had	been	at	the	apartment	

that	day,	Tera	Choquette,	was	outside.		Two	men,	Robert	Hansley	and	Thomas	

Ferguson,	quickly	walked	by	Choquette,	entered	the	building,	and	went	up	the	

stairs	to	Patchell’s	apartment,	planning	to	kill	Kennedy.	

	     [¶4]		Ferguson	had	a	“very	strong,	intense”	dislike	of	Kennedy	based	on	a	

previous	physical	fight	and	a	belief	that	Kennedy	was	a	“rat	or	snitch”	due	to	an	

encounter	 Ferguson,	 Hansley,	 and	 Kennedy	 had	 with	 Brewer	 police	 that	 had	

resulted	in	Kennedy	being	arrested.		Raised	voices	were	heard	in	the	apartment,	

and	within	a	few	seconds	at	least	nine	shots	were	fired	by	 either	Hansley	or	
                                                                                                        3	

Ferguson	 from	 a	 Bersa	 .40	 caliber	 pistol,	 killing	 Kennedy	 and	 seriously	

wounding	 Jenkins.	 	 Ferguson	 had	 obtained	 the	 pistol	 as	 payment	 for	 a	 drug	

debt.	

	        [¶5]		Hansley	 and	Ferguson	 rushed	out	 and	fled.		 At	about	 3:45	a.m.,	 a	

video	camera	at	the	federal	building	in	Bangor	recorded	two	people	fitting	their	

description	walking	from	the	general	direction	of	Center	Street	in	the	general	

direction	of	Hammond	Street.		Ferguson’s	friend,	Brittany,1	lived	on	Hammond	

Street,	 and	 she	 had	 arranged	 for	 him	 to	 get	 the	 key	 to	 her	 apartment	 the	

previous	day	so	that	he	could	stay	there	while	she	was	away	for	Thanksgiving.		

The	court	found,	based	on	DNA	evidence,	the	unique	way	in	which	they	were	

packaged,	and	their	proximity	to	each	other,	that	sometime	after	the	shooting	

Ferguson	 was	 involved	 in	 separately	 wrapping	 the	 murder	 weapon	 and	 a	

sawed-off	shotgun	in	foil	and	a	plastic	bag;	additionally	wrapping	the	pistol	in	

a	newspaper	dated	November	20,	2015;	and	then	storing	the	weapons	on	a	high	

shelf	in	Brittany’s	closet.2		When	Brittany	returned	from	Florida	several	hours	



    1		For	this	person	and	one	other,	this	opinion	will	use	first	names	out	of	respect	for	their	privacy.	

    	
    2		A	State	Police	Crime	Laboratory	witness	testified	that	DNA	found	on	the	interior	of	the	foil	in	

which	the	shotgun	was	wrapped	was	consistent	with	Ferguson’s;	Ferguson	is	African-American,	and	
the	random	probability	of	the	same	result	using	the	FBI’s	African-American	database	was	1	in	2,590.		
DNA	found	on	the	shotgun’s	barrel	matched	Ferguson’s;	the	estimated	random	probability	of	a	match	
using	the	FBI’s	African-American	database	was	1	in	22.6	million.		Ferguson’s	DNA	was	not	found	on	
the	pistol.	
4	

after	the	shooting,	Ferguson	was	at	her	apartment.		He	left	later	that	afternoon	

and	returned	with	Hansley.	

	      [¶6]		Ferguson	and	Hansley	had	also	been	together	for	some	time	before	

the	 shooting.	 	 At	 1:40	 a.m.	 on	 November	 27,	 the	 day	 of	 the	 shooting,	 a	 video	

camera	at	the	Bangor	 Mall	recorded	them	Christmas	shopping.		Shortly	 after	

that,	Ferguson	waited	in	a	cab	while	Hansley	sold	drugs	in	the	parking	lot	to	

Mariah,	whom	Hansley	met	when	leaving	the	mall.		Minutes	later,	Ferguson	was	

the	 primary	 actor	 when	 he	 and	 Hansley	 sold	 drugs	 at	 a	 convenience	 store.		

Ferguson	and	Hansley	left	the	store	in	a	cab	around	2:33	a.m.	and	were	dropped	

off	 at	 Brittany’s	 apartment	 between	 2:40	 and	 2:45	 a.m.,	 forty-five	 to	 fifty	

minutes	 before	 the	 shooting.	 	 The	 court	 found	 that	 the	 distance	 between	

Brittany’s	Hammond	Street	apartment	and	the	scene	of	the	shooting	on	Center	

Street	could	be	“easily”	covered	in	forty-five	minutes.		Cell	phone	records	were	

not	definitive,	but	were	consistent	with	Ferguson	being	in	the	area	of	Center	

Street	when	Kennedy	and	Jenkins	were	shot.	

	      [¶7]		On	the	afternoon	following	the	shooting,	Hansley	contacted	Mariah	

to	negotiate	for	a	ride	to	Portland.		She	agreed,	and	at	about	6:00	p.m.	she	picked	

up	Hansley	and	Ferguson	at	Brittany’s	apartment	and	drove	in	the	direction	of	

I-95.		Bangor	police	had	been	surveilling	the	apartment.		Before	 Mariah's	car	
                                                                                                      5	

reached	 the	 highway,	 police	 stopped	 the	 vehicle	 and	 arrested	 Hansley	 and	

Ferguson.	 	 When	 interviewed	 by	 police,	 Ferguson	 lied	 about	 (1)	 being	 with	

Hansley	at	the	Bangor	Mall	early	that	morning,	(2)	having	any	involvement	in	

the	shooting,	and	(3)	being	on	his	way	to	Portland	when	he	was	arrested.	

B.	     Procedure	

	       [¶8]	 	 Ferguson	 was	 charged	 by	 complaint	 with	 murder,	 17-A	 M.R.S.	

§	201(1)(A),	 and	 elevated	 aggravated	 assault	 (Class	 A),	 17-A	 M.R.S.	

§	208-B(1)(A).	 	 A	 subsequent	 indictment	 added	 a	 third	 charge	 of	 tampering	

with	a	victim	(Class	B),	17-A	M.R.S.	§	454(1-B)(A)	(2017),	which	was	dismissed	

by	the	State	on	the	first	day	of	trial.		Ferguson	pleaded	not	guilty	and	counsel	

was	appointed,	followed	later	by	the	appointment	of	co-counsel.	

	       [¶9]		Ferguson	moved	to	suppress	any	in-court	identification	of	him	by	

Choquette	 or	 Patchell	 on	 the	 ground	 that	 their	 out-of-court	 identifications	

resulted	 from	 suggestive	 circumstances	 and	 were	 therefore	 unreliable.		

Following	a	hearing,	the	court	denied	the	motion.		Ferguson	also	demanded	a	

speedy	 trial	 pursuant	 to	 article	 I,	 section	 6	 of	 the	 Maine	 Constitution,3	 and	

shortly	thereafter	waived	his	right	to	a	jury	trial.		Based	in	part	on	the	speedy	

trial	 demand,	 and	 over	 the	 State’s	 objection,	 the	 court	 granted	 Ferguson’s	


    3		The	Constitution	of	Maine	provides	that	“[i]n	all	criminal	prosecutions,	the	accused	shall	have	a	

right	.	.	.	[t]o	have	a	speedy,	public	and	impartial	trial.”		Me.	Const.	art.	I,	§	6.	
6	

motion	 for	 relief	 from	 prejudicial	 joinder	 and	 ordered	 that	 he	 be	 tried	

separately	from	Hansley.	

	     [¶10]		A	bench	trial	was	held	May	24-26,	May	31-June	2,	and	June	5,	2017.		

On	June	28,	the	court	convened	a	hearing	at	which	it	announced	its	verdict	of	

guilty	on	the	remaining	charges	of	murder	and	elevated	aggravated	assault.		At	

a	sentencing	hearing	on	January	8,	2018,	the	court	denied	Ferguson’s	motions	

for	a	judgment	of	acquittal	and	for	dismissal,	entered	judgment,	and	sentenced	

Ferguson	 to	 fifty	 years’	 incarceration	 on	 the	 murder	 count	 and	 twenty-five	

years,	 to	 run	 concurrently	 with	 the	 sentence	 for	 murder,	 on	 the	 elevated	

aggravated	 assault	count.		Ferguson	timely	appealed	the	convictions.	 	He	 did	

not	appeal	from	the	sentence.	

                                 II.		DISCUSSION	

A.	   Sufficiency	of	the	Evidence	

	     [¶11]	 	 Ferguson	 asserts	 that	 the	 evidence	 was	 insufficient	 to	 support	

three	of	the	court’s	factual	findings,	as	well	as	its	ultimate	finding	that	he	was	

at	 least	 Hansley’s	 accomplice	 in	 the	 murder	 of	 Kennedy	 and	 the	 aggravated	

assault	on	Jenkins.		The	applicable	standards	of	review	are	well	established:	

      	      In	reviewing	a	conviction,	we	view	the	evidence	admitted	at	
      trial	in	the	light	most	favorable	to	the	State	to	determine	whether	
      the	fact-finder	could	rationally	have	reached	its	findings	beyond	a	
      reasonable	doubt.		Because	the	court	here	specifically	found	facts	
                                                                                      7	

     in	reaching	its	verdict,	we	review	those	findings	for	clear	error	and	
     will	uphold	them	if	supported	by	competent	evidence	in	the	record.		
     In	a	nonjury	trial,	the	court	is	free	to	determine	which	witnesses	to	
     believe	 and	 which	 evidence	 to	 accept	 or	 reject	 as	 trustworthy	 or	
     untrustworthy	as	long	as	there	is	evidence	by	which	a	fact-finder	
     could	 rationally	 conclude,	 beyond	 a	 reasonable	 doubt,	 that	 the	
     crime	was	committed.	
     	
Wilson,	2015	ME	148,	¶	13,	127	A.3d	1234	(footnote,	citations,	and	quotation	

marks	omitted).		“Any	conflicts	in	evidence	are	resolved	in	favor	of	the	State.”		

State	v.	Allen,	2006	ME	20,	¶	26,	892	A.2d	447.	

	     1.	    Factual	Findings	

	     [¶12]	 	 Ferguson	 challenges	 the	 court’s	 findings	 that	 (1)	 he	 sold	 drugs	

with	 Hansley	 on	 two	 occasions	 in	 the	 early	 morning	 hours	 of	

November	27,	2015;	(2)	he	“stormed”	into	Patchell’s	apartment	together	with	

Hansley	just	before	the	shooting;	and	(3)	he	participated	in	wrapping	the	pistol	

that	had	been	used	to	commit	the	crimes	and	that	was	found	in	Brittany’s	closet.		

Each	 finding	 is	 supported	 by	 competent	 evidence	 in	 the	 record;	 accordingly,	

none	is	clearly	erroneous.		See	Wilson,	2015	ME	148,	¶	13,	127	A.3d	1234.	

	     [¶13]		The	court’s	finding	that	Ferguson	participated	in	drug	sales	with	

Hansley	was	supported	by	the	testimony	of	the	buyer	in	the	case	of	one	sale,	

and	 by	 the	 testimony	 of	 the	 driver	 of	 the	 car	 in	 which	 the	 deal	 was	

consummated	 in	 the	 other.	 	 The	 court’s	 finding	 that	 Ferguson	 and	 Hansley	
8	

entered	Patchell’s	apartment	together	was	supported	by	the	testimony	of	three	

witnesses:	Patchell,	who	was	inside	the	apartment;	Choquette,	who	was	outside	

the	apartment;	and	Jenkins,	who	was	in	the	living	room	and	saw	Ferguson	and	

Hansley	enter	before	he	was	shot.	

	     [¶14]		Finally,	although	the	court	acknowledged	that	Ferguson	was	not	

directly	linked	to	the	murder	weapon	by	DNA	or	fingerprint	evidence,	it	found	

by	circumstantial	evidence,	as	it	was	entitled	to	do,	that	he	was	connected	to	

the	handgun.		See	State	v.	Coleman,	2018	ME	41,	¶	30,	181	A.3d	689	(“We	have	

repeatedly	 said	 that	 a	 criminal	 conviction	 may	 be	 based	 solely	 on	

circumstantial	evidence	.	.	.	.”	(alteration	and	quotation	marks	omitted)).		The	

circumstantial	evidence	cited	by	the	court	included	that	Ferguson	acquired	the	

handgun	in	payment	of	a	drug	debt;	that	the	handgun	was	discovered	on	a	high	

closet	shelf	in	the	apartment	of	a	woman	whom	Ferguson	described	to	police	

as	 his	 “girlfriend,”	 and	 where	 Ferguson	 had	 stayed	 the	 night	 before	 the	

shooting;	and	that	it	was	wrapped	“in	a	very	similar	distinctive	manner”	as	a	

sawed-off	shotgun	located	next	to	it,	which	was	directly	linked	to	Ferguson	by	

DNA	evidence	found	on	both	the	foil	used	to	wrap	the	shotgun	and	on	its	barrel.		

See	 supra	 n.2.	 	 From	 that	 evidence,	 the	 court	 could	 infer	 that	 Ferguson	 “was	

involved	 in	 the	 wrapping	 and	 the	 storage	 of	 the	 murder	 weapon	 in	 the	
                                                                                     9	

apartment	he	was	using	for	the	night	after	the	murder	weapon	was	used	to	kill	

Mr.	 Kennedy	 and	 injure	 Mr.	Jenkins.”	 	 See	 Coleman,	 2018	 ME	 41,	 ¶	 30,	

181	A.3d	689	 (stating	 that	 the	 fact-finder	 could	 “rationally	 infer[]”	 the	

existence	 of	 a	 fact	 beyond	 a	 reasonable	 doubt	 “based	 on	 the	 circumstantial	

evidence	presented	at	trial”).	

	     2.	    Accomplice	Finding	

	     [¶15]		Ferguson	also	challenges	the	court’s	ultimate	finding	that,	at	the	

very	least,	he	was	“guilty	as	an	accomplice	to	the	murder	of	Mr.	Kennedy	and	

the	elevated	aggravated	assault	against	Mr.	Jenkins.”		In	State	v.	Anderson,	we	

said	that	

      [a]	 person	 is	 guilty	 as	 an	 accomplice	 of	 a	 crime	 committed	 by	
      another	person	if	he	or	she	“aids	or	agrees	to	aid	or	attempts	to	aid	
      such	other	person	in	planning	or	committing	the	crime,”	 and	has	
      the	 “intent	 of	 promoting	 or	 facilitating	 the	 commission	 of	 the	
      crime.”	 17-A	 M.R.S.	 §	 57(3)(A)	[2017].	 The	 State	 must	 prove	
      something	more	than	the	defendant’s	mere	presence,	but	need	not	
      prove	an	overt	act	of	physical	assistance.		Once	presence	is	proven,	
      accomplice	 liability	 may	 attach	 upon	 the	 State’s	 proof	 of	 any	
      conduct	 promoting	 or	 facilitating,	 however	 slightly,	 the	
      commission	of	the	crime.	
      	
2016	 ME	 183,	 ¶	 20,	 152	 A.3d	 623	 (alteration,	 citation,	 and	 quotation	 marks	

omitted);	see	17-A	M.R.S.	§	57	(2017).	

	     [¶16]		From	its	supported	factual	findings,	the	court	concluded	beyond	a	

reasonable	 doubt	 that	 Ferguson	 was	 at	 least	 an	 accomplice	 to	 the	 crimes	
10	

because	he	had	a	motive;	he	was	with	Hansley—who	was	linked	to	the	murder	

weapon	 by	 fingerprint	 and	 DNA	 evidence—before,	 during,	 and	 after	 the	

shooting;	 he	 originally	 obtained	 the	 murder	 weapon	 and	 was	 involved	 in	

packaging	and	hiding	it	after	the	shooting;	he	was	identified	by	Jenkins	as	one	

of	his	assailants;	he	attempted	to	flee	to	Portland	with	Hansley	within	hours	of	

the	 shooting;	 and	 he	 falsely	 denied	 any	 involvement	 to	 police	 when	 he	 was	

interviewed	 following	 his	 arrest.	 	 That	 evidence,	 viewed	 in	 the	 light	 most	

favorable	to	the	State,	see	Wilson,	2015	ME	148,	¶	13,	127	A.3d	1234,	allowed	

the	court	to	rationally	find	that	Ferguson	had	engaged	in	“conduct	promoting	

or	 facilitating,	 however	 slightly,	 the	 commission	 of	 the	 crime.”	 	 Anderson,	

2016	ME	183,	¶	20,	152	A.3d	623	(quotation	marks	omitted).	

B.	   Jenkins’s	Testimony	

	     [¶17]	 	 Ferguson	 argues	 that	 the	 State’s	 attorneys	 suborned	 perjury	 by	

calling	Jenkins	as	a	witness	knowing	that	he	would	testify	that	both	Hansley	and	

Ferguson	 were	 armed	 and	 shooting	 during	 the	 attack,	 although	 the	 ballistics	

evidence	indicated	that	a	single	firearm,	the	Bersa	pistol,	fired	all	of	the	rounds	

recovered,	 and	 only	 Hansley	 was	 connected	 to	 that	 weapon	 by	 forensic	

evidence.		From	this,	Ferguson	asserts	that	“[t]he	State’s	willingness	to	put	such	

a	liar	on	the	stand	even	after	they	knew	he	was	lying	fundamentally	violated	
                                                                                            11	

Mr.	Ferguson’s	ability	to	defend	himself”	and	charges	that	“the	State	suborned	

[Jenkins’s]	perjury.”	

	      [¶18]		Ferguson	is	correct	only	to	the	extent	that	“a	conviction	obtained	

through	use	of	false	evidence,	known	to	be	such	by	representatives	of	the	State,	

must	fall	under	the	Fourteenth	Amendment.”		State	v.	True,	2017	ME	2,	¶	17,	

153	 A.3d	 106	 (alteration	 and	 quotation	 marks	 omitted)	 (emphasis	 added).		

He	bears	the	burden	of	persuasion:	

       	      As	a	threshold	matter,	a	defendant	must	satisfy	the	basic	and	
       fundamental	 burden	 of	 demonstrating	 that	 the	 information	
       delivered	 at	 trial	 was	 perjured—not	 merely	 inconsistent	 with	
       other	 evidence	 or	 previous	 testimony.	 	 A	 showing	 that	 trial	
       testimony	 is	 inconsistent	 with	 other	 testimony	 or	 evidence	 does	
       not,	 standing	 alone,	 demonstrate	 that	 evidence	 presented	 to	 the	
       fact-finder	 contained	 intentional	 inaccuracies	 or	 that	 there	 had	
       been	 a	 knowing	 use	 of	 false	 testimony.	 	 Such	 inconsistencies	
       present	issues	of	credibility	and	call	for	the	weighing	of	conflicting	
       or	 inconsistent	 evidence—a	 task	 that	 falls	 solidly	 within	 the	
       province	 of	 the	 .	 .	 .	 fact-finder.	 	 The	 [fact-finder]	 is	 permitted	 to	
       draw	 all	 reasonable	 inferences	 from	 the	 evidence	 and	 is	 free	 to	
       selectively	 accept	 or	 reject	 testimony	 presented	 based	 on	 the	
       credibility	 of	 the	 witness	 or	 the	 internal	 cogency	 of	 the	 content.		
       The	 [fact-finder]	 may	believe	some	parts	of	witness	testimony	to	
       the	exclusion	of	others,	and	may	combine	testimony	in	any	way.	
       	
Id.	¶	19	(alteration,	citations,	and	quotation	marks	omitted).	

	      [¶19]	 	 The	 trial	 court	 performed	 its	 proper	 role	 here—it	 critically	

analyzed	 Jenkins’s	 testimony	 by	 examining	 both	 its	 inconsistencies	 and	 its	

corroborating	 support,	 then	 accepted	 some	 parts	 of	 it	 and	 rejected	 others	 in	
12	

finding	the	facts	that	led	to	its	verdict.		Ferguson	“has	not	.	.	.	demonstrated	that	

any	 particular	 testimony	 about	 the	 events	 was	 perjured,	 much	 less	 that	 any	

perjured	testimony	contributed	to	the	[court’s]	verdict.”		Id.	¶	20.		An	error	in	a	

witness’s	perception	or	recall	of	events,	which	is	all	that	the	record	supports	

here,	is	not	“a	false	material	statement	[made]	under	oath	.	.	.	not	believ[ing]	the	

statement	to	be	true.”4		17-A	M.R.S.	§	451(1)(A)	(2017).		Accordingly,	Ferguson	

has	not	even	come	close	to	meeting	his	burden	of	demonstrating	a	Fourteenth	

Amendment	due	process	violation.		See	True,	2017	ME	2,	¶	17,	153	A.3d	106.	

C.	       In-Court	Identifications	

	         [¶20]		Ferguson	next	contends	that	the	court	erred	in	allowing	Choquette	

and	Patchell	to	identify	him	in	court	because	they	were	only	able	to	do	so	as	the	

result	of	suggestive	circumstances	facilitated	by	police	prior	to	trial.		Ferguson	

moved	to	suppress	the	identifications,	asserting	that	his	identity	was	suggested	

to	Choquette	when	she	overheard	Jenkins	tell	a	police	officer	as	they	rode	to	the	

hospital	 in	 an	 ambulance	 that	 Ferguson	 had	 shot	 him,	 and	 that	 Patchell’s	




      4		The	accusation	that	an	attorney	has	suborned	perjury	is	a	grave	and	serious	matter	and	should	

not	be	leveled	when,	as	here,	the	sole	basis	for	the	claim	of	perjury	is	the	existence	of	evidence—
including	 strong	 or	 compelling	 evidence—that	 is	 simply	 contrary	 to,	 or	 inconsistent	 with,	 the	
testimony	given	at	trial.		Counsel	is	reminded	that	“the	consequences	of	.	.	.	acerbic	shrillness	in	the	
pleadings	can	also	include	revocation	of	pro	hac	vice	privileges.”		Order	at	2-3,	HouseCanary,	Inc.	v.	
Quicken	Loans,	Inc.,	No.	SA-18-CV-0519-FB	(W.D.	Tex.	Aug.	14,	2018),	ECF	No.	47.	
                                                                                       13	

identification	was	tainted	by	a	police	follow-up	interview	of	Jenkins	conducted	

at	Patchell’s	apartment	where	she	was	present.	

	     [¶21]	 	 The	 court	 denied	 the	 motion	 to	 suppress,	 finding	 that	 “neither	

procedure	was	suggestive	to	the	extent	that	the	State	should	not	be	permitted	

to	ask	questions	concerning	identity	of	the	two	witnesses.”		The	court’s	factual	

findings	 are	 reviewed	 for	 clear	 error,	 State	 v.	 Nigro,	 2011	 ME	 81,	 ¶	 21,	

24	A.3d	1283,	and	its	ultimate	decision	to	admit	the	identification	testimony	is	

reviewed	 for	 an	 abuse	 of	 discretion,	 State	 v.	 Davis,	 2018	 ME	 116,	 ¶	 32,	

191	A.3d	1147.	 	 Although	 a	 showing	 of	 highly	 suggestive	 behavior	 need	 not	

necessarily	 involve	 police	 misconduct,	 Ferguson	 bore	 the	 initial	 burden	 of	

“prov[ing]	 by	 a	 preponderance	 of	 the	 evidence	 that	 the	 circumstances	

surrounding	 the	 witness’s	 identification	 of	 him	 were	 suggestive.”	 	 Davis,	

2018	ME	116,	¶¶	25,	30,	191	A.3d	1147.	

	     [¶22]	 	 The	 matter	 before	 us	 does	 not	 involve	 the	 identification	 of	 an	

individual	unknown	to	the	witnesses.		Choquette	testified	 at	the	suppression	

hearing	that	before	entering	the	ambulance	she	told	police	that	“Ferg”	had	gone	

into	Patchell’s	apartment.		Regarding	Patchell’s	identification,	at	the	hearing	the	

detective	who	conducted	the	interview	with	Jenkins	at	her	apartment	testified	

that	 he	 initially	 asked	 her	 to	 go	 into	 another	 room	 located	 at	 the	 end	 of	 a	
14	

twenty-foot-long	 hallway	 and	 he	 did	 not	 see	 her	 again	 during	 the	 interview.		

Furthermore,	before	identifying	Ferguson	at	trial,	Patchell	testified	that	she	met	

Ferguson	 in	 the	 summer	 of	 2015,	 well	 before	 the	 November	 shooting.		

Accordingly,	the	court	did	not	err	in	finding	that	neither	witness’s	identification	

was	“tainted	by	suggestive	circumstances	creating	 a	substantial	likelihood	of	

irreparable	misidentification.”		Id.	¶	27	(quotation	marks	omitted).		Ferguson	

remained	free	to	argue	the	reliability	of	the	identifications	and	the	weight	that	

the	 court	 should	 give	 them,	 which,	 as	 demonstrated	 by	 the	 court’s	 factual	

findings,	he	did	with	some	success.		See	id.	¶	29.	

D.	   Evidentiary	Rulings	

	     [¶23]	 	 Finally,	 Ferguson	 contends	 that	 the	 court	 erred	 in	 admitting	

evidence	(1)	of	the	sawed-off	shotgun,	(2)	that	he	was	involved	in	drug	dealing,	

(3)	 that	 the	 murder	 weapon	 had	 previously	 been	 stolen	 and	 given	 to	 him	 in	

payment	of	a	drug	debt,	and	(4)	concerning	the	location	of	his	cell	phone	when	

the	crime	was	committed.		“We	review	a	trial	court’s	decision	to	admit	evidence	

of	 prior	 bad	 acts	 pursuant	 to	 M.R.	 Evid.	 404(b)	 for	 clear	 error,	 and	 its	

determination	pursuant	to	M.R.	Evid.	403	for	an	abuse	of	discretion.”		State	v.	

Pillsbury,	 2017	ME	 92,	 ¶	 22,	 161	 A.3d	 690.	 	 The	 court’s	 relevance	
                                                                                  15	

determinations	are	reviewed	for	clear	error.		State	v.	Haji-Hassan,	2018	ME	42,	

¶	13,	182	A.3d	145.	

	     [¶24]		We	discern	no	error	or	abuse	of	discretion	in	the	court’s	careful	

rulings	that	each	aspect	of	the	challenged	evidence	was	relevant	and	admissible	

for	proper	purposes.		See	State	v.	Maderios,	2016	ME	155,	¶	9,	149	A.3d	1145	

(“[E]vidence	of	prior	bad	acts	is	admissible	for	limited	purposes	other	than	to	

prove	propensity,	in	that	Rule	404(b)	does	not	render	inadmissible	evidence	of	

other	crimes,	wrongs,	or	acts	if	the	evidence	is	offered	to	demonstrate	motive,	

intent,	 identity,	 absence	 of	 mistake,	 or	 the	 relationship	 of	 the	 parties.”	

(quotation	marks	omitted)).	

	     [¶25]		 Moreover,	the	 potential	for	prejudice	was	lessened	because	this	

was	a	bench	trial.		The	court	stated	that	it	would	not	consider	evidence	of	bad	

acts	“to	show	that	a	defendant	might	have	acted	in	conformity	therewith	in	the	

future	by	committing	this	crime,”		see	Steadman	v.	Pagels,	2015	ME	122,	¶	20,	

125	A.3d	713,	and	we	have	noted	that	

      [i]t	is	trial	judges’	experience	and	training,	and	their	long	tradition	
      of	professionalism,	that	give	rise	to	the	firmly	established	rule	that	
      a	court	learned	in	the	law	is	presumed	to	render	its	decision	on	the	
      evidence	 in	 the	 case	 which	 is	 legally	 admissible	 even	 though	
      inadmissible	 testimony	 be	 received.	 	 This	 presumption	 must	 be	
      rebutted	before	the	reception	of	such	evidence	by	the	court	will	be	
      deemed	prejudicial.	
      	
16	

MacCormick	 v.	 MacCormick,	 478	 A.2d	 678,	 683	 (Me.	 1984)	 (quotation	 marks	

omitted).		Ferguson	has	not	rebutted	the	presumption	here.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	      	      	       	    	     	
	
James	M.	Mason,	Esq.,	Handelman	&	Mason	LLC,	Brunswick,	and	Justin	C.	Bonus,	
Esq.	(orally),	Forest	Hills,	New	York,	for	appellant	Thomas	Ferguson	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen.	
(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
Penobscot	County	Unified	Criminal	Docket	docket	number	CR-2015-4405	
FOR	CLERK	REFERENCE	ONLY	
