Smith, In re, 53564

• Decision Date: 26 September 1984
• Docket Number: No. 53564,53564
• Citation: 457 So.2d 911
• Parties: In re Willie Albert SMITH.
• Court: Mississippi Supreme Court

Page 911

457 So.2d 911

In re Willie Albert SMITH.

No. 53564.

Supreme Court of Mississippi.

Sept. 26, 1984.

Robert J. Brantley, Kirksey, Brantley & DeLaughter, Jackson, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

HAWKINS, Justice, for the Court:

Before us is the second petition for writ of error coram nobis of Willie Albert Smith. ¹ It assigns a new and distinct ground for post-conviction relief, namely: that two eyewitnesses committed perjury when they made in-court identification of Smith as the person who abducted the victim later found murdered. Attached to this petition are the affidavits of these witnesses, Kenneth Thomas and James E. Wells, that they did indeed lie when they identified Smith as the person seen struggling with the victim. If their affidavits are true, they have both committed perjury under Miss. Code Ann. Sec. 97-9-59, and subjected themselves to a sentence of at least ten years in the state penitentiary under Miss.Code Ann. Sec. 97-9-61. ²

These witnesses' identification of Smith at trial formed an integral part of our opinion affirming his conviction. ³

In his original appeal Smith filed a Supplemental Assignment of Error that the in-court identification was invalid, which we rejected. Page 574. Smith renewed this contention in his first petition for writ of error coram nobis. We again rejected this contention as having been previously considered without merit on direct appeal, 434 So.2d page 216.

In York v. State, 413 So.2d 1372 (Miss.1982), we set out the current holdings of the United States Supreme Court and this court concerning the problems relating to witnesses' identification of the accused. It is pertinent now to make more detailed observations about the trial record in this case, because we find from this record that the in-court identification of Smith by these witnesses was perilously close to violating even the lenient guidelines of York.

On March 15, 1981, between 4:30 and 5 o'clock in the morning, James E. Wells went to Kenneth Thomas's house in Jackson to request Thomas to go with him to get a check cashed. It was a Sunday morning, and shortly after 5:00 (between dark and sunrise), as Wells drove by a Tote-Sum Store on Robinson Road in the City of Jackson, Thomas noticed a Black man struggling with a White woman in the parking lot. Thomas tried to get Wells to stop, but Wells was reluctant to get involved, and drove on.

After Wells and Thomas had driven by, Sgt. George E. Otis of the Jackson Police Department stopped at the store to use the telephone. While he was there, Wells and Thomas returned around 5:30 o'clock, and reported to him what they had seen. Thomas did most of the talking.

The black man struggling with the woman was described as having a "medium Afro, medium dark complexion, rather short stature." Page 132.

The description of the vehicle was more detailed and specific. It was described as a red Pinto, approximately 1970 model, with a cracked or broken grill, some material resembling carpeting on the dashboard, and a decal of some type on the rear. Within an hour Smith was arrested driving a Pinto car of this description.

Either one or two days after March 15, 1981, Thomas was called to the Jackson Police Station to identify Smith in a line-up as the man he saw struggling with the white woman on the store parking lot. He failed to point Smith out in the line-up, telling the officers he was unable to identify such person. Prior to trial Thomas was asked by representatives of the defendant if he could identify the man in the parking lot, and he said he could not.

There was a pre-trial suppression hearing on the 7th day of July, 1981, with Smith present. Thomas saw Smith at this suppression hearing.

Trial began on July 27, 1981. The day before Thomas took the stand as a witness, he was shown five photographs of Black males, one of which was of Smith. Thomas picked Smith's photo. The next day when Thomas took the stand as a witness, he made an in-court identification of Smith.

Wells testified it was dark when he drove past the Tote-Sum Store, but not so dark that he could not see. After returning to the Tote-Sum Store and reporting what they had observed to Otis, Wells and Thomas gave the officer their addresses and left.

Wells never attended a line-up. He, too, was shown five photographs the day before he testified and Smith's photo.

He identified Smith in person for the first time in the courtroom when he testified. On cross-examination he admitted having been told there would be "a little Black man sitting in the courtroom." He admitted to talking to the police two days after the crime and telling them he could not identify the man in the parking lot, also telling Thomas the same, and later telling representatives of Smith he could not identify such man.

We thus have the rather unusual circumstance of two identification witnesses positively informing police officers within two days after the crime that they are unable to identify the culprit, and no further questioning of them by the police until trial four months later. Then, the day before they are to testify each is shown five photographs, one of which was of Smith. In the meantime, Thomas has seen Smith at a pre-trial hearing.

Unfortunately, at the trial defense counsel made no effort to exclude these in-court identifications as violative of Smith's constitutional right. It is idle to speculate what the circuit judge's ruling might have been had an in-depth hearing on this matter been conducted in chambers. Rather, it is apparent from the record that defense counsel chose to exploit this tenuous identification testimony before the jury in an effort to discredit him. Counsel conducted a vigorous cross-examination. All of their prior inconsistent statements were displayed to the jury.

We do not criticize this trial strategy of a manifestly able trial lawyer, but point it out as one of the reasons we did not give greater consideration to the assignment of error that Smith's constitutional rights had been violated by the in-court identification.

Now, we are faced with a petition for writ of error coram nobis with affidavits from Thomas and Wells that they lied when they testified they were able to identify Smith at the trial. Their affidavits are as follows:

My name is Kenneth Thomas....

I testified at a trial in Jackson, Miss. in July 1981, about facts concerning Willie Albert Smith. My testimony at that trial was untrue. I would like to state the following information as absolute fact.

(1) At trial, I identified Willie Albert Smith, the defendant in the courtroom, as a black man I saw struggling with a white woman in a parking lot in front of the Tote-Sum Store on Robinson Road about 5:15 a.m. on March 15, 1981. That testimony was completely untrue.

(2) On March 15, 1981 at about 5:00 a.m. I was a passenger in a car being driven by James Wells. We drove by the Tote-Sum Store on Robinson Road. I saw a black man and a white woman struggling. A red Pinto was in the parking lot.

(3) I did not see the face of the black man in the parking lot that morning. There is no way that I could possibly identify him.

* * *

(5) After that day, I was taken by a police investigator to the district attorney's office. I was pressured to give a statement. I was told that if I did not give them a statement, I would be thrown in jail. They told me my probation would be revoked and I would go back to Parchman for 22 years. Out of fear, I agreed to sign a statement, without concern for whether that statement was true.

(6) Some time after March 15, a police investigator took me to the district attorney's office. Ed Peters gave me a stack of five photos. He told me to pick out the picture of the man I saw at the Tote-Sum Store. I told Peters that I could not identify the man. Peters insisted that I select one of the pictures as the man I saw at the Tote-Sum anyway. I looked at the pictures. I gave Peters the picture of Willie Albert Smith. I could not recognize Smith but that picture had the name "Willie Albert Smith" written on the back. I knew that this was the picture of the man Peters wanted me to identify. I knew that the man they had arrested for the crime was named Willie Albert Smith. Although I gave Peters that picture, I told him I could not identify the man in that picture as the man in the Tote-Sum parking lot.

* * *

(8) At trial I testified that I could identify Willie Albert Smith as the man in the Tote-Sum parking lot. I testified that I had identified his picture as the man in the Tote-Sum Store parking lot. I testified that I had identified Smith in the line-up as the man in the Tote-Sum Store parking lot. None of this testimony was true. I have no idea who the man was in the Tote-Sum Store parking lot. I never saw his face and it is not possible for me to identify the man I saw. I gave this false and untrue testimony because I was threatened by Ed Peters and the police investigator....

(9) I am giving this affidavit of my own free will. I have not had any peace of mind since I gave this untrue testimony at the trial of Willie Albert Smith. I want to tell the truth now so I can live with myself. I want Willie Albert Smith and his family to know that I am genuinely sorry for what I did. I have not been pressured or threatened to give this statement.

S/Kenneth Thomas

My name is James Earl Wells.... I testified at a trial in Jackson, Miss. in July, 1981, about facts concerning Willie Albert Smith. My entire testimony was not true, and I would like to state the following information as absolute fact:

(1) At trial, I identified Willie Albert Smith, the defendant in the courtroom, as a black man I saw struggling with a white woman in a parking lot in front of the Tote-Sum Store in Robinson Rd. about 5:15 a.m. on March 15, 1981. That testimony was completely untrue.

(2) On March 15, 1981, at...