Manning v. State

• Decision Date: 06 May 2004
• Docket Number: No. 2000-DR-01078-SCT.,2000-DR-01078-SCT.
• Citation: 884 So.2d 717
• Parties: Willie Jerome MANNING v. STATE of Mississippi.
• Court: Mississippi Supreme Court

884 So.2d 717

Willie Jerome MANNING v. STATE of Mississippi.

No. 2000-DR-01078-SCT.

Supreme Court of Mississippi.

May 6, 2004.

Office of Capital Post Conviction Counsel, by David Voisin Robert Ryan, attorney for appellant.

Office of the Attorney General, by Marvin L. White, Jr., attorney for appellee.

EN BANC.

GRAVES, Justice, for the Court.

¶ 1. In 1994, in the Circuit Court of Oktibbeha County, Willie Jerome Manning was convicted of the capital murder of Alberta Jordan and Emmoline Jimmerson who were killed during the commission of a robbery. On July 25, 1996, Manning was sentenced to death in each case. On March 31, 1999, this Court affirmed Manning's convictions and sentences on all grounds except a Batson issue. That issue was remanded to the circuit court and the circuit judge found valid race-neutral reasons for the State's two peremptory strikes. See Manning v. State, 735 So.2d 323 (Miss.1999). On June 29, 2000, this Court affirmed the circuit court's judgment on the Batson issue. See Manning v. State, 765 So.2d 516 (Miss.2000) The motion for rehearing was denied on September 7, 2000, and the United States Supreme Court denied Manning's petition for writ of certiorari on March 5, 2001. Manning v. Mississippi, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001).

¶ 2. After denial of the petition for writ of certiorari, this Court, in accordance with Jackson v. State, 732 So.2d 187 (Miss. 1999), remanded the matter to the Circuit Court of Oktibbeha County for appointment of post-conviction counsel. The Office of Capital Post Conviction Counsel (OCPCC) was ordered to inform the trial court of who it had selected as counsel for Manning, on or before December 15, 2000. Following prolonged disputes regarding Manning's appointed representation, David Voisin, with the OCPCC, filed the application for leave to proceed in the trial court with post-conviction pleadings on January 23, 2002.

FACTUAL BACKGROUND

¶ 3. On the evening of January 18, 1993, Emmoline Jimmerson and Alberta Jordan were found dead in their Brooksville Gardens apartment. Police found no signs of forced entry, and the apartment was not ransacked. Both women had been beaten about the head, and their throats were slashed. In the investigation of the murders, police interviewed many of the residents of Brooksville Gardens. Certain residents told the police that they had seen someone running up the hill behind the victims' apartment, and another resident said that she saw as many as three men enter the victims' apartment and later saw them running up the hill and climbing into a car. One of those men was identified as Joe Arthur "Jo Jo" Robinson, a neighbor of the victims. Several other residents told police that they suspected that Jo Jo was somehow involved.

¶ 4. Over a year later, Herbert Ashford and Kevin Lucious (both serving time or facing charges) were approached by the police and made statements implicating Willie Jerome Manning in the murders of the two elderly women. At this time, Manning was already a suspect in another murder case involving two Mississippi State University students (See Manning v. State No.2001-DR-00230). At trial the State called Ashford, Lucious, and Larry Harris. All three testified to having seen Manning in Brooksville Gardens near the time of the murders.

ANALYSIS

¶ 5. In his Petition for Post-Conviction Relief, Manning raises sixteen claims which we have combined into fifteen for clarity. Manning raises a number of separate claims of ineffective assistance by his trial and appellate counsel. He also includes ineffective assistance claims in many of his claims that the State knowingly presented false testimony and/or created a false impression of the evidence, and failed to disclose materials that Manning characterizes as exculpatory. In his charges against the State, Manning alternatively asserts that his trial counsel was ineffective for failing to properly investigate the facts surrounding testimony of certain witnesses, failing to discover certain materials and documents in possession of the police department, failing to discover and interview witnesses, and failing to obtain and adequately use impeachment evidence.

A. The State knowingly presented false and perjured testimony from Kevin Lucious identifying Petitioner as forcing his way into the victims' apartment.

¶ 6. Manning argues that Kevin Lucious's testimony was false and that the State knowingly presented false evidence. Lucious stated that from the apartment he shared with his girlfriend, which is across the street from the apartment then occupied by the victims, he saw Manning force his way into the victims' apartment. However, Lucious did not live in the apartment across the street from the victims at the time they were murdered. According to Likeesha Jones Harris's affidavit, she and Lucious moved into apartment 11E after the homicides. Manning also provided the affidavit of Teresa Bush, which states that Lucious and Likeesha Jones did not live in Brooksville Gardens at the time of the murders.

¶ 7. Furthermore, Manning asserts that the State knew that Lucious did not live in Brooksville Gardens at the time of the crimes. Oktibbeha County Sheriff Dolph Bryan was informed by Likeesha's grandmother that Likeesha and Lucious were not living in apartment 11E at the time and a police officer's notes from the days following the murders indicate that apartment 11E was vacant at the time.¹

¶ 8. Manning asserts that the U.S. Supreme Court has held that a State's knowing use of or its failure to correct false testimony or its presentation of evidence which creates a materially false impression of the evidence violates a defendant's right to due process. See Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Manning argues that he is entitled to a new trial.

¶ 9. The State's response is that this issue, as well as all of Manning's non-ineffective assistance claims, are procedurally barred from collateral review by the doctrine of waiver pursuant to Miss.Code Ann. § 99-39-21(1) because such claims could have been raised on direct appeal and that Manning fails to demonstrate cause or actual prejudice for not raising the claim. The State asserts that Manning had a meaningful opportunity to raise these objections, defenses, claims, questions, issues, or errors at trial and/or on direct appeal but failed to do so.

¶ 10. We find that the State offers nothing in support of this position. There is no assertion that Manning or his attorneys were aware of any of these issues. The State cites Brown v. State, 798 So.2d 481 (Miss.2001), where this Court held that in a death penalty case claims made in post-conviction collateral review were procedurally barred by the doctrine of waiver because the petitioner either failed to object at trial or raise the issue on direct appeal. We find that case distinguishable where Brown took issue with evidence that was known at the time of his trial. On Brown's claim that the State coerced false testimony from a witness, this Court noted, "[t]he record reflects that the defense was fully aware of the existence of all of Coleman Jones' statements and their inconsistencies." Id. at 491. Brown's claims of improper argument by the prosecution, testimony of prior bad acts and the prosecution's improperly attesting to the veracity of its witnesses during closing argument, are all claims that were known to Brown at the time of his trial and/or direct appeal. Those claims were properly refused as procedurally barred because they could all have been resolved on the face of the record.

¶ 11. As to Manning's claims of false testimony by Kevin Lucious, included in his petition for post-conviction relief is the affidavit of Richard Burdine, Manning's trial counsel. Burdine attests that he never saw, nor knew of the existence of materials that were in the possession of the Starkville Police Department. Included in these materials were handwritten notes by police officers who conducted a door-to-door canvas of the Brooksville Garden apartments that indicated that apartment 11E was vacant at the time of the murders, corroborating the affidavits of Harris, Lucious's girlfriend, and of Mildred Jones, Harris's grandmother, attesting that Harris and Lucious did not live in Brooksville Gardens at the time of the murders.

¶ 12. Manning supports his pleadings with affidavits and records regarding the inability to have these grounds heard on the merits at trial or direct appeal and asserts that where a petitioner shows cause and actual prejudice, this Court may grant relief from the waiver. See Miss. Code Ann. § 99-39-21(1). Furthermore, errors affecting fundamental constitutional rights may be excepted from procedural bars. See Luckett v. State, 582 So.2d 428, 430 (Miss.1991). We find that Manning has alleged such facts that demonstrate his claims are not procedurally barred, and we will grant his petition to seek post-conviction relief as to this issue.

B. The State coerced Kevin Lucious into providing false testimony.

¶ 13. Manning presents an affidavit of Kevin Lucious in which he recants his testimony that he saw Manning enter the victims' apartment and that he heard Manning talk about the murders. Lucious now testifies that Sheriff Bryan and David Lindley of the Starkville Police Department came to Lucious while he was incarcerated in St. Louis County, Missouri, and threatened him with prosecution in Mississippi for those murders if he did not sign the statement. Manning incorporates by reference the discussion in part A above and asserts that the State presented false testimony or at least coerced a witness into providing false evidence. Given the importance of Lucious's testimony and the fact that there are...