Court upholds murder conviction

PALMER — A state appeals court has slapped down an attempt by a man found guilty of murder to have his conviction overturned.

Tommie Patterson was one of two people convicted of murdering Terrell Houngues in 2005. The other two were Kira Gray and Mario Page.

At trial, the story presented to jurors was that Houngues had stolen nine ounces of cocaine from Page, who was dealing drugs in Anchorage. Houngues was living with Gray’s sister at the time and Gray was Page’s girlfriend.

The theft led to a murder plot in which Gray enticed Houngues to Houston. On an ATV trail she shot him in the leg, then in the body. After Houngues was on the ground, twitching, Patterson emptied his pistol into Houngues’ body.

Patterson appealed his conviction on two grounds:

• An AST investigator should not have been allowed to testify as to whether a witness was being truthful.

• A witness should not have been allowed to describe Patterson as “crazy” and a bad influence.

The investigator, Mike Burkmire, now one of two sergeants heading up the troopers’ Alaska Bureau of Investigation’s Palmer office, was testifying as to the statements Frederick “Sherm” Johnson gave to troopers.

Johnson was along for the ride the night of the murder. He stayed in the car while the events on the ATV trail transpired.

“He’s a human being, and human beings who are involved in activities like this are going to minimize their particular part or their particular role. I do believe that Mr. Johnson did provide us with a lot of information that was very truthful and very credible,” Burkmire said when asked about Johnson’s credibility.

To prove that this was enough to overturn his conviction, appeals court judge David Mannheimer wrote, Patterson would need to show that his attorney, Abigail Sheldon, failed to object to the answer for no good reason. But Sheldon was clearly told about the question beforehand and told the judge she didn’t object. This, Mannheimer wrote, means that she chose not to object for tactical reasons.

“Perhaps more important, Burkmire told the jurors that he actively distrusted Johnson’s account to the extent that it minimized Johnson’s own personal role in the kidnapping and murder,” Mannheimer wrote.

But the judge made clear that this kind of testimony isn’t generally looked upon kindly.

“This court has repeatedly noted and applied the rule that witnesses should not be allowed to give their personal opinion regarding the truthfulness (or untruthfulness) of another person’s testimony,” Mannheimer wrote.

At any rate, the judge wrote, the testimony was not of a caliber that was so damaging to Patterson’s case as to warrant overturning the conviction.

As for the description of Patterson’s personality, that testimony came from James Freitas, who had a relationship with Page bordering on a father-son relationship. Freitas testified that Patterson was a “crazy guy,” by which he apparently meant he was dangerous. He said a similar thing about Page.

Mannheimer writes that the testimony was inadmissible and that the prosecutor in the case, Jon-Marc Petersen, should not have been allowed to refer to it in his closing arguments as proof of Patterson’s character.

“The question is whether any of this constitutes plain error — an error so obvious and so egregious that Judge (Eric) Smith should have taken it upon himself to intervene, even though the defense attorney made no objection and sought no relief,” Mannheimer wrote.

But, Mannheimer wrote, it’s reasonable to assume that Smith let it fly by in order to allow Sheldon the room to “try her own case.”

Like the evidence about Johnson’s truthfulness, Mannheimer wrote, it’s also not enough of a mistake to assume the jury convicted Patterson solely on the weight of this testimony.

“The state’s evidence against Patterson was lengthy, detailed and strong. Freitas’ challenged testimony and the prosecutor’s challenged argument occupied mere moments of a six-day trial. We are not convinced that this error made any difference to the outcome of the case, much less that this error caused manifest injustice,” Mannheimer wrote.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.