                        IN THE SUPREME COURT OF MISSISSIPPI
                                 NO. 95-KA-00971-SCT
TONY LYNN ADAMS
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                            08/31/95
TRIAL JUDGE:                                 HON. JOHN LESLIE HATCHER
COURT FROM WHICH APPEALED:                   QUITMAN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      AZKI SHAH
ATTORNEYS FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL

                                             BY: DEIRDRE MCCRORY
DISTRICT ATTORNEY:                           LAWRENCE Y. MELLEN
NATURE OF THE CASE:                          CRIMINAL - POST CONVICTION RELIEF
DISPOSITION:                                 AFFIRMED - 8/7/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                              8/29/97




     BEFORE PRATHER, P.J., ROBERTS AND MILLS, JJ.

     ROBERTS, JUSTICE, FOR THE COURT:


                                 STATEMENT OF THE CASE

Tony Lynn Adams appeals the denial of his petition for post-conviction relief from the Circuit Court
of Quitman County. Adams was convicted of the burglary of an occupied dwelling and was sentenced
as a habitual offender to a term of fifteen years in the custody of the Mississippi Department of
Corrections. Adams appealed and this Court affirmed his conviction and sentence. Adams v. State,
611 So. 2d 1013 (Miss. 1993). Subsequently, Adams filed and this Court granted his application for
leave to proceed in the trial court for post-conviction relief.

On August 30, 1995, an evidentiary hearing was held to consider Adams' motion before Circuit Court
Judge John L. Hatcher. At this hearing, Adams asked the court to appoint counsel for his defense, or
in the alternative, to grant a continuance so that he might employ counsel. The circuit court stated
that Adams had sufficient time to request or retain an attorney and that both motions were denied.
On September 5, 1995, the circuit court entered an order that denied Adams' petition for post-
conviction relief. Aggrieved by the judgment below, Adams' asks this Court to consider the following
assignments of error:

     I. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST
     FOR APPOINTMENT OF AN ATTORNEY?

     II. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION
     FOR POST-CONVICTION RELIEF?

     III. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S
     REQUEST FOR A CONTINUANCE?

                                  STATEMENT OF THE FACTS

Adams was convicted of the 1990 burglary of the dwelling of Adams' father, Earnest Bush. Adams
was sentenced as a habitual offender and ordered to serve fifteen years imprisonment in the custody
of the MDOC. Adams filed an appeal which was affirmed by this Court, Adams v. State, 611 So. 2d
1013 (Miss. 1993).

On August 14, 1994, based upon the recanted testimony of Earnest Bush, Adams requested this
Court to grant his application for leave to proceed in the trial court for post-conviction relief. On
January 30, 1995, this Court granted Adams' application. On August 7, 1995, the Circuit Court of
Quitman County set the evidentiary hearing to be August 30, 1995. On August 25, 1995, Adams filed
a request to subpoena Earnest Bush and Adams' sister, Betty Bush.

Upon commencement of the evidentiary hearing, Adams stated that he wanted to postpone the
hearing until he retained an attorney. Adams stated that he did not know about the law and that a
prison writ writer had prepared all of his filings. Judge Hatcher stated that Adams' request for an
attorney was untimely and that the hearing would proceed. Adams stated that he did not have any
witnesses that would testify, including himself, but that he did have a signed affidavit by Earnest Bush
that recanted his trial testimony. Adams stated he had requested that subpoenas be issued for his
father and sister, but that they lived in Milwaukee, Wisconsin. Judge Hatcher received Earnest Bush's
affidavit into evidence.

District Attorney Laurence Y. Mellen called Investigator Tommy Taylor of the District Attorney's
Office to testify regarding a conversation he had with Betty Bush. Taylor testified that he had been
asked to determine if Earnest Bush had signed the affidavit, in which the trial testimony is recanted.
Taylor testified that Earnest Bush had moved away from Marks, Mississippi, and that he now lived in
Milwaukee, Wisconsin, with his daughter Betty Bush. Taylor called several times before reaching
Betty Bush, who informed Taylor that Earnest Bush had suffered a stroke and had moved to her
home so that she could provide care to her father.(1) Betty Bush stated that her father was too weak
to speak with Taylor, but that she would help in any way she could. Betty Bush stated that she was
familiar with the affidavit that her father had signed, because she handled her father's mail and had
read the affidavit to him. Taylor asked Betty if her father had said he agreed with the statements in
the affidavit that indicated he falsely testified at the trial and now recanted that testimony. Betty
stated that Earnest told her that Adams was wrong and that he knew it was Adams who committed
the burglary. Betty stated that Earnest signed the affidavit after she told him that Adams only wanted
to be released from prison and that he would never see Adams again.

Tony Adams testified that he had not spoken with Betty or Earnest, instead, on the advice of his writ
writer he sent the affidavit to his father. Adams contended that he should be released from custody
because his father had testified against him at trial and had later recanted the trial testimony. Upon
cross-examination, Adams testified his writ writer read the trial transcript and had prepared the
affidavit and suggested that Adams send it to his father. Adams admitted that neither he nor the writ
writer had spoken with Earnest. Adams stated that the writ writer had told him that Earnest may not
be mad anymore and that he may sign the affidavit.

At the conclusion of closing argument, Judge Hatcher announced that he would deny Adams' motion
and stated:

     This case seems to fit the same factual scenario as the case of Yarborough v. State, 514 So. 2d
     1215, a 1987 Mississippi Supreme Court case, which involved the defendant filing a pro se
     motion to vacate his sentence and conviction. In that case, as in this case, the victim is alleged
     to have recanted his earlier testimony, and in Yarborough, as in here, a notarized statement of
     the victim was used to show a change in the testimony. The trial court denied the petition, and
     the Supreme Court affirmed. In that decision the Supreme Court held: "Experience teaches all
     courts a healthy skepticism toward recanted testimony. For one thing, if the recanter's change of
     testimony is of consequence, likely he or she has committed perjury at some point. Second, the
     new trial suggested by the recantation will necessarily put the prosecution at a disadvantage
     with respect to other witnesses whose memories will necessary fade with time. Third, crediting
     such testimony may only diminish the import of the trial as a momentous event."

     In this case, the only thing that has been presented regarding recanted testimony of the victim is
     an affidavit, and I must say that an affidavit that was procured under these circumstances is
     somewhat suspicious. It was prepared by a writ writer who had not talked to the affiant ahead
     of time nor had the Defendant talked to his father ahead of time. It was simply mailed to
     Milwaukee, Wisconsin. Then the testimony before me now indicates that the sister of the
     Defendant, the daughter of the victim, indicated that he was signing the thing simply to let the
     Defendant go, and since he would never see him again, he didn't have any problem signing it.
     Those persons are not here. There's no way for the State or the Court to cross-examine an
     affidavit. Of course, the original testimony was shortly after the event took place. The
     Defendant was testifying in open court, under oath, subject to cross-examination. All of the
     tests as to truthfulness were available and utilized at that time. No such test as to truthfulness
     appears when all you have is an affidavit executed under somewhat suspicious Circumstances.
     That being the case, I will do as the trial judge did in the Yarborough case, and I will deny the
     petition, and I will enter an order accordingly.

On September 5, 1995, Judge Hatcher entered the order that denied Adams' motion for post-
conviction relief. On September 20, 1995, Adams filed this appeal.

                                 DISCUSSION OF THE ISSUES

     I. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST
     FOR APPOINTMENT OF AN ATTORNEY?

A review of the hearing transcript reveals that the evidentiary hearing was held seven months after
this Court granted Adams leave to proceed with his petition for post-conviction relief. During that
interval, Adams proceeded pro se and never asked the circuit court to appoint counsel. Adams waited
until the start of the evidentiary hearing to ask the circuit court to postpone the hearing so that he
could retain counsel or, alternatively, that he be appointed counsel. Adams now contends that the
lower court committed error when he was refused a continuance or a court appointed attorney. Miss.
Code Ann. § 99-39-23 (1) states:

     If an evidentiary hearing is required, the judge may appoint counsel for a petitioner who
     qualifies for the appointment of counsel under section 99-15-15, Mississippi Code of 1972.

The language of the statute gives the judge discretion to decide if counsel should be appointed for an
indigent in an evidentiary hearing. Judge Hatcher exercised the discretion that the legislature
provided, therefore his decision not appoint counsel for Adams cannot be set aside.

     II. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION
     FOR POST-CONVICTION RELIEF?

In the end we are reviewing a finding of ultimate fact, one made by a trial court sitting without a jury.
We do not reverse such findings where they are supported by substantial credible evidence.
Yarborough v. State, 514 So. 2d 1215, 1220 (Miss. 1987); Anderson v. Burt, 507 So. 2d 32, 36
(Miss. 1987); Dunaway v. Busbin, 498 So. 2d 1218, 1221 (Miss. 1986). Watts v. State, 492 So. 2d
1281, 1289 (Miss. 1986); and Gavin v. State, 473 So. 2d 952, 954 (Miss. 1985).

The only evidence produced by Adams at the evidentiary hearing was a signed affidavit by Earnest
Bush, in which Earnest recanted his trial testimony. Based upon this recantation, Adams contends
that the circuit court committed error when it denied his motion for post-conviction relief. Adams
admitted that neither he nor the writ writer that prepared the affidavit, had any communication with
Earnest Bush to determine if the information contained in affidavit was correct. Adams testified that
he sent the letter to his father in hope that his father was not angry any longer. Further, Taylor
testified that he had spoken with Betty Bush, who stated that she had convinced her father to sign the
affidavit so that Adams might get out of prison.

In reference to recanted testimony, this Court has stated:

     Experience teaches all courts a healthy skepticism toward recanted testimony. For one thing, if
     the recanter's change of testimony is of consequence, likely he or she has committed perjury at
     some point. Second, the new trial suggested by the recantation will necessarily put the
     prosecution at a disadvantage with respect to its other witnesses whose memories necessarily
     will fade with time. Third, crediting such testimony may only diminish the import of the trial as
     a momentous event. Such considerations have produced comments such as the following:

     No form of proof is so unreliable as recanting testimony. In the popular mind it is often
     regarded as of great importance. Those experienced in the administration of the criminal law
     know well its untrustworthy character.
People v. Van Den Dreissche, 233 Mich. 38, 206 N.W. 339, 341 (1925) quoting People
v.Shilitano, 218 N.Y. 161, 112 N.E. 733 (1916).

Yarborough, 514 So. 2d at 1220.

Here there is substantial credible evidence in the record supporting the circuit court's finding that
Earnest Bush's trial testimony was correct and that Adam's showing was insufficient to undermine
confidence in the outcome of his original trial. Therefore, this issue is without merit.

     III. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S
     REQUEST FOR A CONTINUANCE?

In a case similar to the case sub judice, this Court stated that a defendant who was indicted in July,
1977, and tried in May, 1978, had abundant time and should have arranged in advance of the day trial
was to begin if he wanted to retain other counsel. Collins v. State, 369 So. 2d 500, 501 (Miss. 1979).
Further, this Court stated that Collins' request was untimely and his motion for a continuance was not
worthy of favorable consideration. Id. In the case at bar, Adams had seven months, after he was
notified that he would have an evidentiary hearing, in which to retain an attorney, therefore, Judge
Hatcher did not error in refusing to grant a continuance.

                                           CONCLUSION

An evidentiary hearing was held to consider Earnest Bush's recanted trial testimony. The only
evidence offered by Adams was the suspicious affidavit signed by Earnest, which recanted his trial
testimony. However, Adams own testimony revealed that the statement had been prepared and
mailed in hope that Earnest might sign the affidavit. Additionally, other evidence indicated that
Earnest signed the affidavit although he did not support the assertions contained therein. The circuit
court properly denied Adams' motion for post-conviction relief. Pursuant to legislative created
discretion, the circuit court properly denied Adams' request for a court appointed. Further, Adams'
motion for a continuance was untimely and properly denied by the lower court.

LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, SMITH AND MILLS, JJ.,
CONCUR. BANKS AND McRAE, JJ., CONCUR IN RESULT ONLY.




1. Taylor recorded his conversation with Betty Bush. The tape and transcript of the discussion were
entered into evidence.
