        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CA-01619-COA

ANTWINE EQUALITY GRAVES A/K/A                                              APPELLANT
ANTWOINE EQUALITY GRAVES

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                          08/20/2013
TRIAL JUDGE:                               HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    MICHAEL W. CROSBY
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LAURA HOGAN TEDDER
NATURE OF THE CASE:                        CIVIL – POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   POST-CONVICTION RELIEF DENIED
DISPOSITION:                               AFFIRMED - 08/04/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ISHEE AND MAXWELL, JJ.

       MAXWELL, J., FOR THE COURT:

¶1.    The Mississippi Supreme Court ordered an evidentiary hearing on Antwine Equality

Graves’s post-conviction relief (PCR) motion. The sole issue was the recantation of a

witness from Graves’s murder trial. As directed, the circuit judge conducted the hearing but

was not swayed by the recanting witness’s affidavit or his new testimony that he did not

really see Graves shoot the victim. So the circuit judge denied Graves’s request for a new

trial. After review, we find the judge’s denial was supported by substantial evidence and was

not clearly erroneous. We thus affirm.
                              Facts and Procedural History

¶2.    On January 13, 2011, Graves dropped by the Blue Note Lounge in Biloxi, Mississippi.

As the night progressed, Graves got into an argument with Marlon Bland. Both men were

told to leave the bar, which they did. As Graves and Marlon went outside, the two continued

to argue. The disagreement ended abruptly when Marlon was shot with a pistol. There was

conflicting evidence about who shot Marlon. But it was undisputed that Marlon was shot in

the neck and died outside the lounge around 3 a.m.

¶3.    Graves was later charged with Marlon’s murder. Willie Fairley gave a statement to

police that he saw Graves shoot Marlon. And Fairley later testified at trial that he watched

Graves shoot Marlon in the neck. Daray Bland—Marlon’s brother—also testified at trial that

he saw Graves shoot Marlon.

¶4.    On January 20, 2002, a jury found Graves guilty of murder. Since he had two prior

felonies, Graves was sentenced as a habitual offender to life without parole. On direct

appeal, this court affirmed Graves’s conviction and sentence. See Graves v. State, 914 So.

2d 788, 799 (¶42) (Miss. Ct. App. 2005).

¶5.    Graves later sought permission from our supreme court to seek post-conviction relief.

The supreme court granted Graves’s request, but strictly limited his PCR motion. Graves

was only allowed to seek PCR review of one issue—“the issue of the recantation of Willie

Earl Fairley’s testimony[.]” And the supreme court denied Graves’s request to pursue his

remaining PCR claims.


                                             2
¶6.    On June 20, 2013, the circuit judge held an evidentiary hearing. The only issue teed

up for review was Fairley’s recanted testimony. As expected, during the PCR hearing,

Fairley recanted his trial testimony. His new testimony centered on his claim that he was in

the club during the shooting, so he did not really see who shot Marlon. When asked why he

had earlier testified at trial that he did see Graves shoot Marlon, Fairley said he felt pressured

by Marlon’s family—a different reason from the one offered in his recanting affidavit.

¶7.    During the hearing, Fairley conceded the differences between his PCR testimony and

recanting affidavit. According to the affidavit, he was pressured by law enforcement officers

to say he witnessed the shooting. And he felt responsible because he took Marlon to the club

the night he was murdered.

¶8.    But one thing Fairley was consistent about was the fact that he did not prepare the

affidavit himself. Instead, Graves’s PCR attorneys1 crafted a typed affidavit, including its

content, before ever talking to him. They later presented it to him for his signature. As

Fairley put it, he would not have come forward with the “truth” had he not been sought out

by Graves’s attorneys.

¶9.    Graves took the stand at the PCR hearing, denying that he shot Marlon. And while

Graves was testifying, his attorney tried to introduce a 911 recording—purportedly from

Marlon’s brother, Daray—in an effort to retroactively impeach Daray’s trial testimony. But



       1
        Graves is represented on appeal by Michael W. Crosby. Graves was represented by
different lawyers during his PCR case.

                                                3
citing the supreme court’s specific limitation to Fairley’s recantation, the circuit judge found

the 911-recording issues were not properly before him.

¶10.   After the hearing, the circuit judge entered an order denying Graves’s PCR motion.

In his order, the judge expressed that he had properly viewed Fairley’s recanted testimony

with suspicion. And he “was not satisfied with the truthfulness” of Fairley’s new testimony

at the hearing. Because he did not believe Fairley’s recantation, he denied Graves’s PCR

motion.

¶11.   Graves appealed.

                                         Discussion

       I.     Recanted Testimony

¶12.   While Graves suggests the circuit judge should have given more credibility to

Fairley’s recanted testimony and granted a new trial, credibility decisions are for the trial

judge, not this court. And here, we find no reason to tamper with the judge’s denial of the

PCR motion.

¶13.   It is true that recanted testimony, if believed by the trial judge, may in some situations

require a new trial. But the mere fact a trial witness later recants does not itself necessitate

a new trial. Sharp v. State, 152 So. 3d 1212, 1214 (¶10) (Miss. Ct. App. 2014) (quoting

Woods v. State, 141 So. 3d 14, 16 (¶10) (Miss. Ct. App. 2014)). Recanted testimony,

however, is an “adequate ground” for granting an evidentiary hearing. Id. Such a hearing

allows the judge to “better evaluate the testimony of the recanting witness” and resolve


                                               4
credibility issues. Id.; see also Turner v. State, 771 So. 2d 973, 976 (¶8) (Miss. Ct. App.

2000). Typically, the judge is tasked with deciding if the witness was lying at trial or later

at the PCR hearing. Id. As our supreme court has put it, when making this credibility call,

trial judges should be mindful that “recanting testimony is exceedingly unreliable[.]”

Williams v. State, 669 So. 2d 44, 53 (Miss. 1996) (quoting Bradley v. State, 214 So. 2d 815,

817 (Miss. 1968)). So trial judges should be mindful to regard recanting testimony “with

suspicion.” Id. If the judge “is not satisfied that such testimony is true,” the judge has “the

right and duty . . . to deny a new trial.” Id.

¶14.   Here, the circuit judge followed these dictates. He opted to hold an evidentiary

hearing about Fairley’s recanted testimony—testimony he viewed as highly suspect. As the

judge put it, he “was not satisfied with the truthfulness of the testimony provided by [Fairley]

at the [PCR] hearing.” This decision was certainly within the judge’s prerogative. And we

cannot fault him for discrediting Graves’s new testimony since “experience teaches all courts

a healthy skepticism toward recanted testimony.” Sharp, 152 So. 3d at 1214 (¶10).

¶15.   Also telling was Fairley’s admission that he only came forward after one of Graves’s

PCR lawyers approached him with a pre-made affidavit a decade after Graves’s conviction.

Fairley had not even mentioned recanting before he was approached. And it was the PCR

attorney, not Fairley, who described the alleged facts listed in the affidavit—purported facts

that ultimately conflicted with Fairley’s PCR testimony. Fairley merely signed it.

¶16.   On top of that, Fairley was not the lone witness who testified at Graves’s murder trial


                                                 5
that Graves was the shooter. Both Fairley and Daray testified that they saw Graves shoot

Marlon. Though Fairley recanted his testimony, Daray did not. Based on this additional

testimony, the judge found Graves failed to show that absent Fairley’s testimony, the trial’s

result would have been different. Thus, we do not find the judge’s credibility assessments

and ultimate PCR denial were clearly erroneous.

       II.      911 Recording

¶17.   Graves next argues the circuit judge erred in cutting off his attempt to retroactively

impeach Daray’s trial testimony with a 911 recording supposedly depicting Daray’s voice.

The judge refused to consider this issue because the supreme court expressly limited

Graves’s PCR motion to Fairley’s recanted testimony. Since all parties agree that the 911

call did not come from Fairley, it was not properly before the trial judge.2 We thus find the

circuit judge rightly excluded inquiry about it.

       III.     Request for Remand

¶18.   Graves’s appellate counsel suggests we should remand the case back to the circuit

court to “more fully develop the issues.” But an attorney’s desire to further investigate a case

is not a legal basis for remand. Graves’s appellate counsel has been a strong advocate for

Graves. He has no doubt been persistent and zealous in his representation, both in briefing

and oral argument. We acknowledge that he “views the case differently” than Graves’s

former attorneys and asks for a chance “to present the case with additional facts.” But the


       2
           We also note this issue was never raised in Graves’s PCR motion.

                                               6
possibility that Graves’s appellate lawyer would have tried the case better or developed the

facts differently at the PCR hearing are not legally cognizable grounds to grant a new trial.

                                         Conclusion

¶19.   In short, decisions about recanted testimony and whether a guilty verdict should be

set aside are for trial judges. And this court “‘should not’ tamper with such decisions unless

they are ‘clearly erroneous.’” Id. at 1215 (¶12) (citing Woods, 141 So. 3d at 17 (¶13)).

Because the circuit judge’s denial is supported by substantial evidence and is not clearly

erroneous, we affirm.3

¶20. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND JAMES, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.




       3
         Graves filed a second petition for an extraordinary writ, arguing there is a new law
that should be applied and that the circuit judge should have given a manslaughter lesser-
offense jury instruction. Judge Griffis entered an order passing these issues for consideration
with the merits of the appeal. However, these issues were never raised in the circuit court.
Nor were they permitted by our supreme court to be argued in Graves’s PCR motion. Thus,
these issues are procedurally barred, and Graves’s petition is denied.

                                              7
