Smith v. State

• Decision Date: 19 March 1986
• Docket Number: No. 56301,56301
• Citation: 492 So.2d 260
• Parties: Willie Albert SMITH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 260

492 So.2d 260

Willie Albert SMITH v. STATE of Mississippi.

No. 56301.

Supreme Court of Mississippi.

March 19, 1986.

Rehearing Denied Aug. 13, 1986.

Robert J. Brantley, Jr., Jackson, Albert X. Bader, John J. Kenney, David Massengill, New York City, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., and Amy D. Whitten, Sp. Asst. Attys. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

This is an appeal from a denial of a new trial on a petition for a writ of error coram nobis. It must be remembered throughout this opinion that the evidence at the original trial was overwhelming beyond a reasonable doubt that Willie Albert Smith did brutally murder Shirley Roberts on March 15, 1981. It also must be remembered, however, that it has been clearly established that two of the state's witnesses committed perjury at this trial. Constrained by the overwhelming evidence of guilt and the case precedent in this regard, we hold that a new trial is not required.

HISTORY OF THE CASE

In the early morning hours of March 15, 1981, Shirley Roberts was abducted from the parking lot of the Tote-Sum store, where she worked, on Robinson Street in Jackson, Mississippi. A few hours later her body was found. As a result of this, Willie Albert Smith was indicted and tried in the Circuit Court of the First Judicial District of Hinds County for capital murder.

The circumstantial evidence presented at trial was overwhelming that Smith had killed Roberts while engaged in the crime of robbery. In addition to the circumstantial evidence, there was the testimony of Kenneth Thomas and James Wells. They testified that at approximately 5:30 on that morning of March 15th they rode past the Tote-Sum store and saw a black man, who was in a red Pinto, attack and struggle with a white woman in the parking lot. They did not stop then, but when they returned in a few minutes the Pinto was gone and there was no one in the parking lot but a policeman. They informed the policeman, who did not know what had occurred, as to what they had seen. The subsequent investigation quickly led to Smith being stopped while in a red Pinto and to the discovery of the body of Shirley Roberts behind his apartment building. Thomas and Wells made in-court identifications of Smith as the assailant they saw that morning. ¹

On July 30, 1981, Smith was convicted of the murder of Shirley Roberts and sentenced to death. This conviction was affirmed on August 11, 1982. Smith v. State, 419 So.2d 563 (Miss.1982). Smith's petition for rehearing was denied on September 22, 1982, and the United States Supreme Court denied his petition for writ of certiorari. Smith v. Mississippi, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983).

On June 1, 1983, this Court denied Smith's first petition for post-conviction relief. Smith v. State, 434 So.2d 212 (Miss.1983). The petition for rehearing on same was denied July 27, 1983. On August 1, 1983, Smith filed a petition for writ of habeas corpus in the United States District Court for the Southern District. This action is pending.

On January 31, 1984, Smith filed a second petition for writ of error coram nobis, alleging new material facts as shown by the affidavits of Kenneth Thomas and James Wells attached to the petition, namely, that Thomas and Wells had lied when they made the in-court identifications of Smith as the assailant. (The affidavits may be found in their entirety in the opinion, cited below, which granted leave to file the petition in lower court.) The petition alleged that the state knowingly used the perjured testimony and that the affidavits showed that there was no constitutional basis for the initial stop of Smith.

In a five-to-four decision, the Court granted leave to file the petition in Hinds County Circuit Court. In Re Smith, 457 So.2d 911 (Miss.1984). The Court noted that the central allegation was that Thomas and Wells had committed perjury. A hearing was had on October 10, 1984, before Judge William F. Coleman, who was the same judge who presided in the original trial. He denied the petition on January 16, 1985, finding that the petitioner had failed to prove that the witnesses committed perjury and that there was no presentation of false evidence on the part of the prosecution. Smith has appealed.

DID SMITH PROVE THAT THOMAS AND WELLS COMMITTED PERJURY AT

THE ORIGINAL TRIAL AND, IF HE DID, IS HE ENTITLED

TO A NEW TRIAL?

In Rogers v. Jones, 240 Miss. 610, 618-19, 128 So.2d 547, 551 (1961), the Court stated the purpose of the writ of error coram nobis:

The purpose of the writ of coram nobis is to bring before the court rendering the judgment matters of fact which, if known at the time the judgment was rendered, would presumably have prevented its rendition. It cannot be employed as an appeal from an adjudicated question of law and fact nor can it be employed where there are other adequate remedies available. Wetzel v. State, 225 Miss. 450, 76 So.2d 188, 194, 846, 78 So.2d 774, 84 So.2d 429, 91 So.2d 750; Corry v. Buddendorff, 98 Miss. 98, 54 So. 84; Bennett v. State, 106 Miss. 103, 63 So. 339; Dolan v. State, 195 Miss. 154, 13 So.2d 925.

In Lang v. State, 230 Miss. 147, 92 So.2d 670 (1957), this Court granted a petition for leave to file in the trial court a motion to vacate the judgment and for a new trial on the ground of newly discovered evidence, treating the petition as a remedy supplemental to the writ of error coram nobis. The allegations were that there was newly discovered evidence which showed that another person may have committed the rape for which the petitioner was convicted. A hearing was had after which the trial judge denied the motion for a new trial.

The petitioner appealed, and this Court reversed and remanded for a new trial. In regard to the hearing in the trial court, the Court said, "The purpose of such hearing was to give the State an opportunity to controvert the allegations, demand proof, if it so desired, and offer such contradictory evidence as it might desire." Lang v. State, 232 Miss. 616, 620, 100 So.2d 138, 140 (1958). In any event, the petitioner must, at the hearing, prove his allegations by clear and convincing proof before the final judgment will be set aside and a new trial ordered. Sanders v. State, 440 So.2d 278, 288 (Miss.1983).

Even if the petitioner is successful in proving his allegations regarding the newly discovered evidence, there still must be a determination concerning the "probative effect of such evidence to produce a different result on a new trial." Howell v. State, 354 So.2d 1124, 1127 (Miss.1978).

Of course, if newly discovered evidence will not probably produce a different result or induce a different verdict, it is not sufficient to warrant the granting of a new trial. Carraway v. State, 167 Miss. 390, 148 So. 340; Thornton v. State, 178 Miss. 304, 170 So. 541; Stewart v. State, 203 Miss. 295, 33 So.2d 787; Brockman v. State, 216 Miss. 314, 62 So.2d 362; Townsel v. State, Miss. , 87 So.2d 481. But, conversely, if, by legal standards, it will probably produce a different result or induce a different verdict, it is sufficient and should require a new trial. This is the true rule.

Lang v. State, 232 Miss. at 624, 100 So.2d at 142.

In conjunction with the above rule, the Court has adopted criteria to be considered on a motion for a new trial on the grounds of newly discovered evidence:

To warrant the granting of a new trial on the ground of newly discovered evidence, it must appear that the evidence is such as will probably change the result if a new trial is granted, that it has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching. See also Stewart v. State, supra; Carraway v. State, 1933, 167 Miss. 390, 148 So. 340; Brockman v. State, 1953, 216 Miss. 314, 62 So.2d 362.

Townsel v. State, 228 Miss. 110, 118-19, 87 So.2d 481, 484 (1956). (cited in Lang, 232 Miss. at 624, 100 So.2d at 142) (quoting 39 Am.Jur., New Trial, section 158).

It was also said in Townsel that the determination as to whether the newly discovered evidence is such as will probably change the result if a new trial is granted is to be determined by the trial court in its discretion. 228 Miss. at 120, 87 So.2d at 485. In fact, our scope of inquiry on appeal is to determine whether the trial court abused its discretion in making this determination, as well as in making the determination of whether the allegations were sufficiently proven. Howell v. State, 354 So.2d at 1127. To do this we must look closely to the evidence adduced at the hearing.

The evidence presented at the hearing clearly showed that from the time of the incident until the day before the trial started in late July, 1981, neither Thomas nor Wells identified Smith as the assailant. In the statement given by Wells to police three days after the incident, he indicated that he would not be able to identify the assailant since he did not get a good look at him. The police officers who investigated the murder conceded that Wells was not able to identify the assailant; that was the reason they did not have him attend a lineup. On the day after the incident, Thomas did attend a lineup which included Smith; however, it is now undisputed that at that time he did not identify Smith.

Both Thomas and Wells made statements to representatives of Smith a few days before the trial that they could not identify the assailant. The prosecuting attorney even admitted that they were proceeding as if the case would be based on circumstantial evidence with no eyewitness identification until the day before the trial when Thomas and Wells identified Smith from a photograph lineup.

Since trial, Thomas and Wells have on three occasions stated that they lied at the trial when they...