                     IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2003-CT-00716-SCT

OLIVER JOHNS, JR.

v.

STATE OF MISSISSIPPI

                               ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                            3/6/2003
TRIAL JUDGE:                                 HON. MIKE SMITH
COURT FROM WHICH APPEALED:                   PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      PRO SE
ATTORNEYS FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                             BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                           DEE BATES
NATURE OF THE CASE:                          CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                 REVERSED AND REMANDED - 04/06/2006


       EN BANC.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.     In November, 1996, Oliver Johns was convicted of aggravated assault in the Circuit

Court of Pike County and was sentenced to twenty years in prison. Johns appealed the

conviction, and the Court of Appeals affirmed the trial court. This Court denied the petition

for writ of certiorari filed in Johns’s direct appeal.

¶2.     Following the denial of his direct appeal, Johns filed a petition for post-conviction

relief. We granted Johns’s petition for post-conviction relief. After an evidentiary hearing

was held in the trial court, Johns’s motion for post-conviction relief was denied. Johns
appealed the denial of his motion. The Court of Appeals affirmed the judgment of the trial

court and denied rehearing on July 26, 2005. We granted Johns’s petition for writ of

certiorari. We find that Johns did not receive constitutionally effective assistance of counsel.

We reverse the judgments of the Court of Appeals and the Pike County Circuit Court, and

we remand this case for a new trial.

                        FACTS AND PROCEDURAL HISTORY

¶3.    On September 20, 1996, Oliver Johns was indicted by the Grand Jury of Pike County

for the offenses of aggravated assault and shooting into a vehicle. The record reveals that

the victim of the assault was shot in the finger and required stitches. Less than two months

after he was indicted, Johns’s trial was held, and he was convicted of the aggravated assault.

Johns was sentenced to serve twenty years in prison.

¶4.    The aggravated assault for which Johns was convicted happened some time between

8:00 p.m. and 8:19 p.m. on March 28, 1996, according to the victim, Kendall Jefferson. At

8:19 that evening, the police received a call that there had been a shooting. Jefferson testified

that Johns passed him at a park and then turned around and followed his car. When he and

his passenger, Vincent Holloway, got to a stop sign, Jefferson noticed that the car was still

behind him, and shots were fired. Jefferson testified that he did not see who was shooting,

but he was certain the shots were fired from the vehicle behind him that was allegedly driven

by Johns. Other witnesses to the shooting were Rushard Haynes, Jefferson’s cousin, who was

driving the car that was immediately in front of Jefferson and who left the scene as soon as




                                               2
he realized that shots were being fired. The passenger, Vincent Holloway, has never been

found.

¶5.      As a result of the shooting, Jefferson’s finger was injured. He drove to the hospital

immediately following the shooting. When officers arrived at the hospital, Jefferson would

not cooperate with them by providing details about the shooting. When he decided to

cooperate, he told them Johns was the shooter and proceeded to describe Johns’s car. An

officer then went to Johns’s home, and Johns identified the car as his vehicle. The officer

testified that when they examined Johns’s car, they found no gunshot residue, no bullets, no

casings, no guns, no fingerprints, and no other evidence that a gun was even shot from the

vehicle. There was only Jefferson’s testimony that the shots were fired from Johns’s vehicle.

Johns testified he was at home with his young daughter at the time of the shooting.

¶6. The jury deliberated at length before they returned a verdict of guilty on the charge of

aggravated assault. Interestingly, Johns was acquitted on the charge of shooting into a motor

vehicle. Oliver Johns began serving his 20 year sentence in 1996.

¶7. Johns filed a direct appeal from the conviction of the trial court. The Mississippi Court

of Appeals affirmed the conviction, and this Court denied certiorari. Johns v. State, 746

So.2d 947 (Miss. App. 1999). Johns then filed an Application for Post-Conviction Relief,

and we granted Johns’s application for the purpose of conducting an evidentiary hearing on

the issue of whether he was denied effective assistance of counsel.

¶8.   On February 18, 2003, an evidentiary hearing was held in the Circuit Court of Pike

County. At the evidentiary hearing, three witnesses came forward to testify that they saw



                                              3
Johns with his one-year old daughter around the time of the shooting and that the two of them

had walked to and from a nearby store during that time. These witnesses provided affidavits

and testimony which verified that they were willing and available to testify at Johns’s trial,

but were not contacted by Johns’s attorney regarding their testimony. John Jackson (Jackson)

was Oliver Johns’s attorney. He testified at the evidentiary hearing strictly from his

recollection. When asked if he made a search to try to find his file in Johns’s case when he

became aware that the district attorney’s office wanted him to testify, his response was

unequivocally “No.”

¶9.     Jackson repeatedly stated      he did not remember specific details regarding his

representation of Johns. He did, however, remember (1) going to the scene of the shooting,

and (2) talking to two people who may have been witnesses, but he did not remember who

they were.

¶10.   The trial court judge denied Johns’s motion for post-conviction relief, finding

Jackson’s assistance was effective. In making this finding, the trial court judge relied on his

personal knowledge of Jackson, stating “the trials that he’s tried in my court, there’s

absolutely no doubt about John Jackson’s truth and veracity. I have yet to find John

(Jackson) tell me anything that did not add up or ... wasn’t so.” Four months later, Jackson

was indicted for the sale of marijuana within a correctional facility and was later convicted

and sentenced to serve a term of three years in the custody of the Mississippi Department of

Corrections. He is presently suspended from the practice of law, pending the appeal of his




                                              4
conviction. If his conviction is not overturned he will be disbarred. Mississippi Bar v.

Jackson, 904 So.2d 109 (Miss. 2004).

¶11.   Oliver Johns appealed the denial of his motion for post-conviction relief. The Court

of Appeals affirmed the trial court. Johns filed a petition for writ of certiorari with this

Court. We granted certiorari to finally determine the issue of whether Johns’s counsel was,

indeed, ineffective. We turn now to a discussion of Jackson’s performance.

¶12. According to Johns, he retained the services of Jackson a few days after he was

arrested. Johns approached Jackson at a retail store when he overheard him talking about a

legal matter. Jackson did not have a law office, so all of the meetings with his client

regarding his representation took place at either the courthouse or at McDonald’s. Vanessa

Williams, Oliver Johns’s mother, provided testimony that she met Jackson once and asked

him if he had an office. Jackson said he did not. She asked him for a business card, and

Jackson said he did not have one. Williams then asked him how he could be reached, and

Jackson told her he could not give her a number.

¶13.   The day after meeting him at the retail store, Oliver Johns, Jr. met with Jackson at the

local McDonald’s and employed Jackson by paying him $500.00. Johns recalled that this

meeting with Jackson lasted less than forty-five minutes. The $500 attorney fee was paid by

Johns for representation at a preliminary hearing; however, Jackson later called Johns and

told him that the preliminary hearing was not important, so they would not have it. Oliver

Johns provided testimony that he hired Jackson after he (Johns) had been indicted, arrested,

and had bonded out of jail. That he charged him for a preliminary hearing means either that



                                              5
he did not even take the time to determine Johns’ had already been indicted, or he simply

wanted cash. It is elementary that there is no necessity for a preliminary hearing after an

indictment.

¶14.    On October 1, 1996, ten days after Johns’s indictment, an order was entered that

waived John’s preliminary hearing and set an omnibus hearing for October 10, 1996, nine

days later. This October 1 order gave Jackson nine days to file any pre-trial motions on

behalf of his client. In effect, Jackson was expected to properly investigate this case and

uncover any evidence relating to Johns’s charges in only nine days.

¶15.    Jackson did not take any action to delay the proceedings. After being hired to

represent Johns, he had approximately fifteen days to obtain discovery from the prosecution,

establish what the evidence was, investigate the case, and file pre-trial motions. Jackson

testified regarding pre-trial preparation:

Do you have a memory as you sit here today of discussing the discovery material that you got
in this case with Mr. Johns?
A.      I remember discussing the case in depth with him. But like I told you, I’ve tried over
        100 cases since then and I don’t remember this particular day that I discussed this Mr.
        Johns, no, I do not.
Q.      The physical evidence in this case, the photographs, the shell casings, when was the
        first time you ever showed those items to Mr. Johns?
A.      I don’t remember.
Q.      Did you ever take him to the crime lab to see.....
A.      No.
Q.      Did you ever take him to the D.A.’s office?
A.      No.
Q.      Did you ever get prints made of the photographs that were in the D.A.’s possession?
A.      Now that, I don’t remember.




                                              6
¶16.        A couple of days after the first meeting, Johns and his father, Oliver Johns, Sr.

(Johns, Sr.) met with Jackson at McDonald’s. This meeting took place before the October

10 hearing. Johns, Sr. recalled that when he asked Jackson about the case, Jackson said that

everything was going good. Jackson did not show them any documents related to the case,

nor did he show them any evidence related to the case.1 In fact, Jackson informed them that

the State had no evidence against Oliver Johns, Jr. At this meeting, Jackson asked for more

money. Johns, Sr. paid Jackson another $1000.00.

¶17.    Jackson next met with the Johns’ at the Courthouse on October 10, 1996, the day of

the omnibus hearing. Johns, Sr. remembered Jackson telling him basically the same thing

about the case -- that it was going okay. He testified that at the time of the omnibus hearing

he had already told Jackson that the alibi witnesses had information that would help them and

that he and Oliver Johns had provided him with the witnesses addresses. Oliver Johns

remembers that Jackson told him that the witnesses were not important. As was customary,

Jackson requested even more money from the Johns’ and, this time, was paid $500.00.

¶18.    Oliver Johns’s mother, Vanessa Williams, provided testimony that she met Jackson

once because Oliver Johns had to pay more legal fees. She asked Jackson if he had spoken

with the witnesses. Jackson told her he did not have any transportation at that time so he

could not get around. He told her he was planning to borrow his girlfriend’s car and he

would go see the witnesses then.




        1
          This Court is not attempting to label Jackson ineffective for not showing evidence, as it was
obvious the state had none.

                                                    7
¶19.   At the omnibus hearing on October 10, the matter was set for trial on November 8,

1996, less than a month later. Johns’s case moved from indictment to verdict in less than

forty-nine days, and there is no evidence Jackson tried to contact Johns during that time.

Vanessa Williams, however, tried to contact Jackson and was unable to locate him. Williams

was able to obtain a contact number for Jackson from her son’s bail bondsman, so she called

and left a message at the number. Williams testified that Jackson called her back that

evening and was upset that she had called him at his girlfriend’s house. Jackson told her he

would call her when he needed to talk to her.

¶20.   On the eve of trial, November 7, 1996, Jackson called Johns. Jackson called Johns,

Sr. at 9:00 p.m. and told them to meet him at McDonald’s because the trial was the next day.

The Johns’ say that was the first time they knew there was a trial scheduled. Jackson, Johns,

Sr., and Oliver Johns met at McDonald’s at about 10:00 p.m. At this meeting, the night

before trial, John Jackson had no file and no documents and met with the Johns’ for about

forty minutes. Both the Johns’ provided sworn testimony that Jackson never discussed

anything about Oliver testifying in his defense, except to say that he could testify in his own

behalf if he wanted to testify. He never showed Oliver Johns any discovery provided by the

state, nor did he show him any evidence. In fact, Johns, Sr, said that Jackson never had any

paperwork or documents either of the times they met with him.

¶21.   Again, at McDonald’s, Jackson solicited even more money from the Johns’ and was

paid another $500.00. Johns, Sr. testified that Jackson never had any paperwork, and that

when he paid Jackson $500 that night, Jackson wrote him a receipt on a McDonald’s napkin.



                                              8
¶22.   Most importantly, at the last-minute meeting before trial, the Johns’ asked what

progress Jackson had made in speaking with their alibi witnesses. Oliver Johns testified that

Jackson assured them he would speak to the witnesses that night. Johns, Sr. recalled that

Jackson said he had not gotten around to talking to any of the witnesses, but he would see

what he could do before trial the next day. Jackson has a different version of these events.

He says he had already talked to the witnesses that Johns asked him to talk to, so talking to

anyone on the night before trial would have been defeating his purpose.

¶23.   Jackson claims that during his investigation, he went to the scene of the crime and just

walked around asking people if they knew what “went down” and what they knew about it.

He stated that he did not necessarily know the names of the people, he just started asking.

He also claimed to have asked some people from outside the area whom he thought might

have been there or know something about it. Johns never claimed to have been at the scene

of the crime; he claims to have been at home. If Jackson had done any independent

investigation, then certainly one place to investigate would have been the place where his

client claimed to be – his neighborhood.

¶24.    Next, Jackson claims he talked to two other people, but he doesn’t know who they

were. His testimony was that he refused to rely on these witnesses because he did not believe

they would provide truthful testimony. The three witnesses who testified at the evidentiary

hearing say Jackson never talked to them. Therefore, no one, including Jackson, is certain

of the identity of these two mystery people to whom Jackson allegedly spoke.




                                              9
¶25.   Johns claimed all along that he was home alone with his young daughter. At this

time, Johns’s daughter was around 1 year old. At a minimum, the child’s mother should have

been contacted. Jackson did not even do that.

¶26.   The morning of trial, the Johns’ asked where the witnesses were. Jackson claimed

that he spoke to one of the witnesses, and they could not help. The morning of the trial was

the first time that Johns knew that no witnesses were going to be called on his behalf.

¶27.   Before the jury was selected, Oliver Johns was advised that the prosecution would

recommend a sentence of five to six years if he plead guilty. Jackson told him that the State

had no evidence against him and that they would be able to win the case. Oliver Johns relied

on this advice and went forward without accepting the plea.

¶28.   Jackson’s performance at trial was less than stellar, so much so that Johns, Sr., left

during his son’s trial to find another attorney. At another break, Jackson approached Johns,

Sr. and asked him if he had any more money; Johns, Sr. went to the bank and got $500 for

Jackson. After he returned and paid Jackson, his son was found guilty. The Johns’ then

hired another attorney for further representation. The grand total paid to Jackson for his

assistance was $3000.00.

                                       DISCUSSION

¶29. On appeal, the appropriate standard of review for denial of post-conviction relief after

an evidentiary hearing is the clearly erroneous standard. Reynolds v. State, 521 So.2d 914,

918 (Miss. 1988). A finding of fact is “clearly erroneous” when, although there is evidence

to support it, the reviewing court, on the entire evidence, is left with the definite and firm



                                             10
conviction that a mistake has been made. Bryan v. Holzer, 589 So.2d 648, 659 (Miss.1991)

(citing UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754

(Miss.1987)). “This Court must examine the entire record and accept that evidence which

supports or reasonably tends to support the findings of fact made below, together with all

reasonable inferences which may be drawn therefrom and which favor the lower court's

findings of fact. Mullins v. Ratcliff, 515 So.2d 1183,1189 (Miss.1987) (citing Cotton v.

McConnell, 435 So.2d 683, 685 (Miss.1983)). And, finally, the trial judge, sitting in a bench

trial as the trier of fact, has sole authority for determining credibility of the witnesses.

Mullins v. Ratcliff; 515 So.2d at 1189 (Miss.1987)(citing Hall v. State ex rel. Waller, 247

Miss. 896, 903, 157 So.2d 781, 784 (1963)). This Court must examine assignments of error

presented in light of the aforementioned principles.

¶30. A presumption exists that an attorney’s representation was competent, with a strong

presumption that the conduct fell within the wide range of professional assistance. Hiter v.

State, 660 So.2d 961 (Miss. 1995)(citing Carney v. State, 525 So.2d 776, 780(Miss. 1988)).

Under Strickland v. Washington, 466 U.S 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the

defendant must first show that counsel’s performance was deficient, which requires a

showing that counsel made errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth Amendment. The deficiencies of Attorney

John Jackson must be measured within the totality of the circumstances. Hiter, 660 So.2d,

at 965 .




                                             11
¶31.    To overcome the presumption that counsel is competent, “[t]he defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Schmitt v. State, 560 So.2d 148, 154 (Miss.

1990) (quoting Strickland, 466 US at 694). Similarly, according to Strickland, the defendant

must show the deficient performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result

is reliable. Id. at 687.

                                    Deficient Performance

¶32.       Johns asserts various errors that call into question the competence of his attorney.

The burden of proving of these errors rests with Johns. Oliver Johns asserted many errors

in his ineffective assistance claim. However, because the law requires that we measure

performance within a totality of the circumstances, we will point out the deficiencies of

Jackson’s performance in their entirety.

¶33.    As the facts have shown, Jackson did not do much in the very short time he had to

prepare for this trial. The record reveals that he met with Johns four times, and two of those

meetings lasted less than forty-five minutes.2 It is abundantly clear to this Court that the

primary purpose of the meetings with his client was not to conduct any pre-trial investigation

or preparation, but to obtain cash from the defendant and his family. All but one of these

meetings occurred at McDonald’s, a public restaurant, without the privacy required to discuss



       2
         Jackson testified when asked if he met with Johns when his father wasn’t with him that he
believes he “met him one time somewhere...I know we met at McDonald’s a number of times. . . But we
met somewhere else, I just can’t remember where.”

                                                12
with a client a case of this magnitude, let alone to maintain the integrity of the attorney-client

privilege.

¶34.         There is absolutely no documentary evidence that Jackson even undertook the

minimal task of creating and maintaining a file on Oliver Johns. He admits that he got

discovery from the state, but he never brought it to McDonald’s, nor did he ever bring any

other sort of paper. Jackson never showed his client any documents or evidence related to

his defense. Jackson cannot affirmatively state that he showed Johns any documents or even

took time to prepare him for the trial.3 However, both Johns and his father remember that

he did not. The only documents Jackson ever had were those other people had given him,

discovery from the state and a list of witnesses from Johns. Jackson even admitted, and the

record supports, that he did not file a single pre-trial pleading.

¶35.        The Court of Appeals reasoned that John Jackson’s testimony at the evidentiary

hearing contradicted many of the assignments of error that Johns alleged; particularly that

Jackson only met with Johns a few times, that Johns never had the opportunity to review the

discovery materials, that Jackson never discussed with Johns whether Johns would testify at

trial, that Johns did not know when the trial would be held until the evening of the trial, and

that Jackson failed to discuss trial strategy with Johns. Johns v. State, 2005 WL 89423, *6


        3
          Questioning at the evidentiary hearing regarding whether Jackson prepared Johns to testify:
         Q.        . . . Based on that, wouldn’t you agree that it would be prudent and effective use of your
                  time to always prepare your client to testify. . . .
         A.       If you’re making the assumption that I did not testify [sic] my client, that might be so,
                  but I always prepare my client to testify. . . .
After stating it might be so that he did not prepare Johns to testify, he stated that he did recall specifically
preparing Oliver Johns to testify, but he did not remember when or where. After that, he stated the
following: “One of his parents might have been there, I just don’t know. I just don’t know. But I always
do that.”

                                                      13
(Miss.App. 2005). The Court of Appeals reasoned that Jackson “refuted each of these

allegations, although he was unable to remember many of the details concerning his

representation of Johns. The circuit court judge’s decision to hold Johns’s counsel to be

effective was based largely on credibility.” Id. at *7.

¶36.    We recognize that the trial judge, sitting in a bench trial as the trier of fact, has sole

authority for determining credibility of the witnesses. Mullins, 515 So.2d at 1189. Jackson’s

testimony was not reliable. The only fact of which Jackson was certain was that he did not

remember. Jackson could provide testimony on his “standard procedure” when preparing

for trial, but could hardly provide any specifics as to what he did when preparing for Johns’s

trial. He testified strictly from his recollection, without the aid of any documents, and stated

numerous times that he only vaguely remembered things or that he did not remember things

at all. A finding of fact is “clearly erroneous” when, although there is evidence to support

it, the reviewing court, on the entire evidence, is left with the definite and firm conviction

that a mistake has been made.            Bryan, 589 So.2d at, 659 (Miss.,1991) (citing

UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754

(Miss.1987)). We have a definite and firm conviction that a mistake has been made and find

that the trial court judge’s reliance on Jackson’s testimony as credible is clearly erroneous.

¶37.    The Johns family remembered things very well. Among the list of things they

remembered were: each meeting they had with Jackson, giving Jackson the list of alibi

witnesses, repeatedly asking Jackson whether he had spoken to the alibi witnesses, statements

Jackson made regarding interviewing the witnesses, statements Jackson made regarding



                                               14
evidence that the State had, and when and how much Jackson was paid. The Johns’ had

much invested in this trial. Oliver Johns, Jr. stood to lose his freedom, and his parents

invested time, support and money into this trial. In light of these factors, it is clear they were

extremely involved in their son’s defense and that their recollection of events was certainly

sharper than Jackson’s.

¶38.     Johns’s primary argument was that Jackson failed to interview the alibi witnesses

that he provided Jackson before trial, which was, in effect, a claim that Jackson failed to

perform the proper pre-trial investigation. “[A]t a minimum, counsel has a duty to interview

potential witnesses and to make independent investigation of the facts and circumstances of

the case.” Payton v. State, 708 So.2d 559 (Miss. 1998)(citing Ferguson v. State, 507 So.2d

94, 96, 1987) (emphasis in original). The decision not to interview witnesses, particularly

your own, cannot be considered an effective strategic choice. When counsel makes choices

of which witnesses to use or not to use, those choices must be based on counsel’s proper

investigation. Counsel’s minimum duty is to interview potential witnesses and make an

independent investigation of the facts and circumstances of the case. State v. Tokman, 564

So.2d 1339, 1342; Ferguson, 507 So.2d, 96.

¶39.    Jackson did not meet the minimum duty required of him. Both Johns and his father

agree Jackson was given the names and addresses of the alibi witnesses and was asked to

contact those witnesses. In fact, they made several attempts to press him to do so. Johns

testified Jackson told him the witnesses were not important, even though they remembered

seeing Johns and his young daughter very close to the time the crime was committed. The



                                               15
Court of Appeals reasoned that “Johns’s attorney indicated that he had a very good reason

for declining to interview these particular witnesses. . . . he believed the witnesses testimony

was perjured testimony, based on the information Johns gave his attorney.” Johns, 2005 WL

89423 at 5. There is a question as to how Jackson could have believed the witnesses

testimony was perjured when he never talked to them, and the only information Johns gave

him was the names and addresses.

¶40.       Jackson claims he talked to two people that Johns brought to him, but he could not

remember who they were. Neither of the Johns’ ever says that they brought any witnesses

to Jackson, only that they provided him with the names and addresses. Jackson testified he

believed those two people were of no help and were going to provide perjured testimony.

Based on that, he did not speak to any more witnesses. Those two witnesses had absolutely

nothing to do with the three alibi witnesses. In fact, Jackson was unable to identify those

alleged witnesses.4

¶41. This case closely resembles Payton v. State,708 So 2d 559 (Miss. 1998) In Payton,

a private investigator was hired to investigate the background of a rape victim, but the

attorney himself never talked to her (the victim). Id. At 562. He went to the scene of the


       4
          The dissent reasons that Johns talked to two of the three alibi witnesses and
refused to offer them because he believed they would offer perjured testimony. In the
dissent, it is said that “Jackson further testified that he interviewed these people [alibi
witnesses] prior to trial.” Jackson never said that he remembered interviewing either of
the alibi witnesses. Even as Jackson sat in the evidentiary hearing, listened to them
testify, and looked them in the eye, Jackson still could not testify that he ever spoke to
either of those witnesses. He did say that Reginald Nunnery looked familiar to him, but
when Johns’s counsel pointed out that Nunnery was very good friends with Jackson’s
brother, Jackson admitted that that may be why Nunnery looked familiar.


                                              16
crime, but did not take any photos. Id. He did not do any other investigation because he did

not feel it necessary after the investigators had completed their jobs. Id. Payton, in his

motion for post-conviction relief, asserted that the attorney should have tried to interview

people at the scene and people who worked with the victim at her workplace who also had

important information. We recognized there was no attempt to take statements from the

homeowners at the scene of the incident or from the victim’s roommate. This Court reasoned

that “ such attempt had been made, these people could have been called to testify.... Even

after two years of delay between the time of arrest and trial, Payton’s attorney failed to

conduct a scintilla of discovery other than go to the crime scene one time and request the

state to turn over it’s discovery.” Id.

¶42.    Jackson failed to conduct any discovery other than his alleged visit to the crime scene

and his request that the state turn over discovery. Assuming Jackson went to the scene, he

went on a blind mission, looking for people who looked like they might have known

something or seen something. There were homeowners on the street where the shooting

occurred. As a matter of fact, some evidence was found in their yards. Jackson did not even

talk to them about what they saw. Jackson knew that Johns was going to testify that he was

at home with his daughter. That was Johns’s sole defense. However, Jackson never did an

independent investigation of any area or individuals in relation to the alibi defense. The

decision not to use the alibi witnesses was not based on proper investigation; it was not based

on any investigation whatsoever. Jackson’s minimum duty was to interview potential




                                              17
witnesses and to make an independent investigation of the facts and circumstances of the

case. He did neither.

¶43.    “There is no question that the defendant is entitled to a basic defense.” Hill v. State,

850 So.2d 223,266 (Miss.App. 2003) (citing Triplett v. State, 666 So.2d 1356 (Miss. 1995)).

As to what a basic defense may entail, the language from the Triplett Court is instructive:

       Basic defense in this case required complete investigation to ascertain every
       material fact about this case, favorable and unfavorable. It required familiarity
       with the scene, and the setting. It required through his own resources and
       process of the court learning the names of, and interviewing every possible
       eyewitness, and getting statements from each. It required prior to trial learning
       all information held by the state available to the defense through pre-trial
       discovery motions.

Triplett, 666 So.2d at 1361. The facts of this case clearly show this basic defense was not

provided to Johns.

¶44.   According to the dissent, we have failed to address the critical point that the jury did

not convict Johns of shooting into a motor vehicle, and he was acquitted on that count. The

dissent suggests that because Jackson assisted Johns in an acquittal, he could not have been

ineffective. It certainly seems inconsistent that Johns could have been convicted for assault

and yet acquitted on the charge of shooting into the vehicle. That would seem to suggest the

victim was injured by some means other than a shot being fired into the vehicle. At the trial

of this matter, no one testified that Oliver Johns fired any shots. The testimony from each

witness was that they did not know nor could they determine who fired the shots. In fact, the

police could not even determine that shots were fired from Johns vehicle at all. Jackson

could literally have been asleep and still established this point. An equally plausible theory



                                              18
as to why he was convicted is that the evidence was insufficient to support a conviction on

either of the two charges, and the jury compromised and convicted him on one of the charges.

¶45.    Johns has met the first requirement of Strickland, as he has shown his counsel’s

performance was deficient and that Jackson was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment.

                                  Prejudice to the Defense

¶46.    To overcome the presumption that counsel is competent, “[t]he defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Schmitt, 560 So.2d at, 154 (Miss. 1990)

(quoting Strickland, 466 US at 694). To show reasonable probability, the mover must

merely show “a probability sufficient to undermine confidence in the outcome.” Davis v.

State, 743 So.2d 326, 334 (Miss. 1999)(quoting Mohr v. State, 584 So.2d 426, 430 (Miss.

1991)). If Jackson had simply been prepared for the trial; if he had asked for more time to

prepare instead of going forward in less than two months; if he had questioned the alibi

witnesses that he should have questioned; if he had talked to the mother of Johns’s daughter;

if he had taken time to prepare his client to testify; if he had done anything to help Oliver

Johns there is certainly a reasonable probability that the outcome of the proceeding would

have been different.

¶47.   Having overcome the presumption of competent counsel, the defendant must now

show that the deficient performance prejudiced the defense. This requires showing that




                                              19
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result

is reliable. Strickland, 466 US at 687.

¶48.   Failing to find that Jackson’s performance was deficient, the court of appeals did not

address Strickland’s necessary element that the defendant show that Jackson’s errors were

so serious as to deprive him of a fair trial.

¶49.    The testimony at trial showed that the aggravated assault for which Johns was

convicted happened some time between 8:00 and 8:30. Reginald Nunnery, one of Johns’s

neighbors, testified that he saw Johns with his daughter and invited them to a cookout. He

asked Johns to go to the convenience store and purchase something for him. Johns walked

to the convenience store and returned fifteen to twenty minutes later. Nunnery was sure he

saw Johns after 8:00. Reginald Nunnery’s wife, Patricia, also testified that she saw Johns

between 8:15 and 8:30 p.m. because she noted the time on her watch. Patricia Nunnery saw

Johns after he arrived back at her house from the convenience store. Katie Magee, another

neighbor, said she saw Johns coming from the direction of the convenience store shortly after

8:00 p.m. She remembered this because they were getting ready to celebrate a friend’s

birthday that evening. Katie Magee had a conversation that lasted about three or four

minutes with Johns, and she did not notice anything unusual about his demeanor or his

behavior.

¶50. The trial court found the testimony of these witnesses suspicious based on the amount

of time it should have taken the chicken to cook. Further, the trial court reasoned that

because the alibi witnesses could not remember specific dates and times of events which



                                                20
occurred after the night they saw Johns, they must have faulty memories. The question is not

whether they could remember when they signed affidavits or when they spoke to attorneys,

the question is whether they could remember events that occurred at or about the time of the

shooting. Each could remember the date and the times they saw Johns. Each of these

witnesses put Oliver Johns in his neighborhood with his young daughter during the time the

crime was committed.

¶51.   Had the witnesses been asked in October of 1996 if they remembered what happened

in March of 1996, then certainly their recollection would have been fresher at that time. The

determination to be made is whether these witnesses could have offered reliable testimony

at the time they should have been asked.

¶52.   The testimony of the alibi witnesses was not rebutted by the prosecution. The

prosecution was successful in proving that the memory of the witnesses was faulty when

remembering months and years that they spoke to attorneys regarding this incident and in

remembering when they signed affidavits. However, at no time did the content of the

affidavits come into question; at no time did the veracity of the witnesses come into question;

at no time was it established that any of them had motive to do anything other than state the

truth. Johns’s alibi defense raises an issue of fact to be resolved by the jury. Hughes v.

State, 724 So.2d 893 (Miss.1998).

¶53.    The dissent spends an inordinate amount of time pointing out flaws in the testimony

of the alibi witnesses. The problem is not with what the witnesses said or did not say. The

problem is that Jackson never talked to them. Johns was entitled to an alibi defense. The



                                              21
jury should have been given an opportunity to hear, assess, and evaluate the testimony of

these alibi witnesses. That did not happen because Johns’s attorney was ineffective. Again,

Johns’s alibi defense raises an issue of fact to be resolved by the jury. Id.

¶54.     The failure to investigate this case by Jackson prejudiced Oliver Johns. The

testimony of the alibi witnesses, coupled with the fact that there was absolutely no physical

evidence to convict Johns, could very well have changed the outcome of the trial. Johns has

surpassed his obligation under Strickland to prove that Jackson’s performance, or in this

case, Jackson’s non-performance prejudiced his defense.

                                         Conclusion

¶55.    We find the trial court clearly erred in finding that Jackson provided effective

assistance to Oliver Johns. There are ample facts to support our conclusion that counsel’s

performance was deficient and that there is a reasonable probability the outcome of the trial

would have been different if some type of pre-trial investigation and preparation had been

done. See Strickland v. Washington, 466 U.S. 668. Therefore, we reverse the judgments

of the Court of Appeals and the Pike County Circuit Court, and we remand for a new trial.

¶56. REVERSED AND REMANDED.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ.,
CONCUR. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
DIAZ AND EASLEY, JJ., NOT PARTICIPATING.

       RANDOLPH, JUSTICE, DISSENTING:

I. This Writ of Certiorari has been improvidently granted




                                              22
¶57.   The decision to review vel non, a decision of the Court of Appeals is controlled by

Mississippi Rule of Appellate Procedure 17. M.R.A.P. 17(a) unequivocally declares,

“[s]uccessive review of a decision of the Court of Appeals by the Supreme Court will

ordinarily be granted only for the purpose of resolving substantial questions of law for

general significance.” Review will ordinarily be limited to:

       1) cases in which it appears that the Court of Appeals has rendered a decision
       which is in conflict with a prior decision of the Court of Appeals or published
       Supreme Court decision;
       2) cases in which it appears that the Court of Appeals has not considered a
       controlling constitutional provision;
       3) cases which should have been decided by the Supreme Court because:
              i) the statute or these rules require decision by the Supreme Court, or
              ii) they involve fundamental issues of broad public importance requiring
              determination by the Supreme Court.

M.R.A.P 17 (a)(1)(2)(3)

¶58.   Accordingly, the Court of Appeals decision should be final and non-reviewable. The

record before this Court clearly reveals this case fails to meet any of the aforementioned

prerequisites, and therefore, this petition fails to satisfy the standard of review required under

Mississippi Rule of Appellate Procedure 17(a). Johns was charged with aggravated assault

(Count I) and shooting into a motor vehicle (Count II). The jury was unable to reach a verdict

on Count II of the indictment, and convicted Johns of Count I only. The verdict of the Pike

County Circuit Court was unanimously affirmed on direct appeal by the Court of Appeals.

The denial by the trial court of Johns’ motion for post-conviction relief was also affirmed by

the Court of Appeals without dissent.




                                               23
¶59.   The majority fails to address this fatal flaw. The petitioner never sought to establish,

and the majority fails to reveal, good cause to suspend the requirements or procedures of

these rules. See M.R.A.P. 2(c). We are bound to follow our rules, notwithstanding we may

disagree with a lower court in the result. This Court should find the Writ of Certiorari was

improvidently granted, as the requirement for a review under M.R.A.P 17(a)(1) is

nonexistent, and alone should be dispositive.

II.    Johns’ claim is illusory

¶60.   Johns asserts his case is analogous to Payton v. State, 708 So.2d 559 (1998).

However, this case is clearly distinguishable from Payton. As such, the Court of Appeals’

decision is not in conflict with Payton. Payton satisfied the appellate court he was prejudiced

due to the lack of any pre-trial investigation, based on uncontroverted testimony that no pre-

trial investigation was conducted. Id. at 561. In this case, the testimony is in conflict. Johns

alleges prior to trial he presented to his attorney, Jackson, the names of three witnesses. At

the post-conviction relief hearing, Jackson testified that he determined the witnesses were

not credible and that if he called the witnesses, their testimony could well be perjurous.

III.   History of the Proceeding

¶61.   The victim of an aggravated assault, Kendall Jefferson, testified that in the weeks

prior to the shooting, his life had been threatened by Johns. Jefferson further testified after

this incident, he and Johns were involved in a fight. Johns countered that he had been

threatened by Jefferson.




                                              24
¶62.    According to Jefferson, prior to the shooting incident, he went to Johns’ place of

employment to speak to Johns to work out their differences. Jefferson stated that Johns told

him, “[w]e ain’t leaving nothing alone and tell your grandma she ain’t got to worry about

keeping you out after you dead. Just tell her you’re already dead.”

¶63.    On March 28th, the date of the shooting, Jefferson and Johns had encountered each

other on two separate occasions, at local convenience stores. One of these convenience stores

was B.J.’s, where Jefferson testified he was again threatened by Johns. Johns’ alleged

witnesses testified at the PCR hearing that Johns went to B.J.’s on the evening of March

28th.

¶64.    Accompanying Jefferson to B.J.’s and witnessing the conversation between Jefferson

and Johns was Rushard Haynes. Haynes’ testimony conformed with Jefferson’s testimony.

that at approximately 8:00 p.m., March 28th, Johns, in his vehicle, followed Jefferson’s car

from B.J.’s and that multiple gun shots5 were fired from Johns’s vehicle at and into

Jefferson’s vehicle. The victim, Jefferson, and the eyewitness, Haynes, testified conclusively

they were certain Johns was the driver of the following vehicle. However, neither Jefferson

nor Haynes testified they could be certain Johns fired the shots. A passenger in Jefferson’s

vehicle was wounded, but he disappeared after the incident and was never found. No weapon

was found. The trial court found the state put on a prima facie case Johns’ vehicle was the

source of the shots.




        5
            The shots were fired from an AK-47 assault rifle.

                                               25
¶65.    At trial, Johns denied he followed Jefferson and further denied anyone from his car

fired a shot. Johns testified he was home with his daughter at the time of the shooting.

       This conflicting evidence was presented to a Pike County Circuit Court jury, which

convicted Johns of aggravated assault, but did not convict Johns of shooting into a motor

vehicle. Johns fails to highlight this outcome and the dichotomy it presents when claiming

the ineffectiveness of his counsel, who evidently succeeded in convincing a jury Johns was

not responsible for firing the actual shots.

¶66.   Johns asserted in his PCR his conviction was the result of ineffective assistance of

counsel at trial. The burden of proof rests upon Johns. The actions of Johns’ attorney must

be measured within the totality of the circumstances. See Strickland v. Washington, 466 U.S

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶67.    Johns asserted Jackson was ineffective because he failed to interview his alibi

witnesses. Jackson testified he never received an actual list, but that Johns furnished him

names of putative alibi witnesses. Jackson further testified he interviewed these people prior

to trial. At the PCR hearing, approximately seven years after the trial, he was unable to recall

their names. When Jackson interviewed the first witness, prior to trial, Jackson stated this

witness told him, “I’m gonna say what you want me to say.” When presented with

inconsistencies and the offer to manufacture testimony, Jackson was faced with the decision

of whether or not to use these witnesses in Johns’ trial. Jackson testified after meeting with

these people, he determined their testimony “would have essentially been useless.” A review

of the original trial record, the affidavits of these putative witnesses and their conflicting



                                               26
testimony at the PCR hearing, satisfies this Justice the decision of Jackson was clearly sound

trial strategy.

¶68.   Johns’ ineffective assistance claim is totally reliant on Jackson’s failure to present

evidence of an alibi through these putative witnesses. At trial, Johns testified he was at home

with his daughter at the time of the shooting; however, his alleged eyewitnesses offer a

different and varying version of the events of that evening. Prior to the PCR hearing, Johns’

alibi witnesses offered affidavits Johns was not at home with his daughter as he asserted, but

rather he was walking around the neighborhood. At the PCR hearing, these putative

witnesses testified to the same, which conflicts Johns’ testimony.

¶69.   The testimony of the putative witnesses also conflicts with the testimony of Jackson.

These putative witnesses claimed they were not contacted by Jackson. Contrastingly, Jackson

testified at the PCR hearing that these putative witnesses were going to offer perjured

testimony, and that as an officer of the court, he determined they should not called.

¶70.   The majority opinion that Jackson was deficient in not calling these witnesses rests

upon a conflict in testimony. The circuit court judge in this matter is in the best position to

resolve these conflicts and it is our duty to afford him deference. This Court has held, “a

circuit court judge sitting without a jury is accorded the same deference with regard to his

findings as a chancellor, and his findings are safe on appeal where they are supported by

substantial, credible, and reasonable evidence.” Chantey Music Pub., Inc. v. Malaco, Inc.,

915 So.2d 1052, 1055 (Miss. 2005) (citations omitted). Assuming the truthfulness of

Jackson’s testimony, which the trial court and Court of Appeals did, the Rules of



                                              27
Professional Conduct require the action taken by Jackson. A lawyer may refuse to offer

evidence that the lawyer reasonably believes is false. See False Evidence Comment to

M.R.P.C. 3.3(c).

¶71.   Even if this Court were to ignore this prohibited conduct, and further consider the

Strickland test, Johns fails the second prong of the test. Under Strickland, in order to show

ineffective assistance of counsel, one must also show “that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S at 694.

¶72.   Applying Strickland to the case before us, the question becomes: would the result of

Johns’ trial have been different if Jackson put on the putative alibi witnesses with their

varying testimony? Reviewing each putative alibi witness’ testimony at the PCR hearing,

then comparing the testimony to their affidavits, and finally considering the contrasting trial

testimony of the defendant, Johns, leads me to conclude the result of this proceeding would

not have been different. In support of this conclusion, pertinent portions of the testimony and

affidavit statements of each of the three alleged witnesses is discussed infra.

A.     Reginald Nunnery

¶73.   Reginald Nunnery stated he is a “friend” and “used to do work for” Johns. Nunnery

did not tell anyone he had information regarding Johns’ whereabouts until after Johns had

been charged with the crime. Johns’ mother allegedly informed Nunnery not only that he was

charged with the crime, but also when and where the crime occurred. Upon learning this

information, Nunnery did not offer to share the “knowledge” with the police or district




                                              28
attorney that he had seen Johns at the time the crime occurred at a place other than the crime

scene.

¶74.     In his affidavit, attached to the PCR, Nunnery claimed he saw Johns in the early

evening hours of March 28th, when he told Johns he would be cooking out and invited Johns

to dinner. Nunnery claimed Johns arrived at his home “a little bit after eight, about 8:12,

8:15.” Nunnery then sent Johns to BJ’s store to purchase beer, and Johns was gone fifteen

to twenty minutes. Portions of this testimony comport with that of the victim, Jefferson, and

the eyewitness, Haynes, who both testified they saw Johns at B.J.’s on March 28 th . Nunnery

stated at the PCR hearing he “always starts his fire [for grilling] at 8:00,” which he repeated

a second time, “always at 8:00.” Earlier, Nunnery stated that around 8:15 p.m., he was “busy

with my fire, getting it started for my grill.” Nunnery swore in his affidavit, that the food

would be ready at 9:30 p.m. at the latest.

B.       Patricia Nunnery

¶75.     Patricia Nunnery, Ronald Nunnery’s wife, asserted that Johns walked into her

backyard at 8:15 p.m. and that the purpose of Johns’s visit was to ask her husband to do some

work on Johns’s wife’s car. Patricia stated that Johns’s visit took place between 8:15 and

8:30 p.m., “the time when we just got through, about to get through with the food on the

grill.” She also stated Johns went to B.J.’s, but he “wasn’t even gone ten, fifteen minutes.”

¶76.     Contrary to her husband, Patricia stated twice during testimony she was certain the

food was through cooking around 8:15 p.m., because she specifically looked at her watch.

Patricia should have been aware her husband always started his grill at 8:00 p.m. She also



                                              29
stated her husband slow cooked the food, which takes “about an hour, hour and a half,” and

the food had been on the grill at least an hour before she spoke with Johns, as the food was

finished cooking when Johns came to their house.

C.     Katie Magee

¶77.   Katie Magee stated she and Johns’ father were raised together and she has known him

all her life. In her affidavit, Magee stated she grew up in the same neighborhood as Johns and

they were friendly. Magee stated no one contacted her during the course of Johns’ trial.

Magee claimed the first time she was aware that she had information which was helpful to

Johns was when she was discussing Johns’ conviction with his father. Magee did not come

forward with this story until after she was contacted by Johns’ appeal attorney, but she could

not recall when she met this attorney.

¶78.   At the PCR hearing, Magee stated she saw Johns walk by her backyard with his

daughter “a little after eight” and that she talked to him for “3 or 4 minutes,” and she was

“sure” about this time. However, in her affidavit, Magee asserted she first saw Johns “around

8:30 p.m.” and spoke with him for “several minutes.” Contrary to the testimony she had

given moments before, and contrary to her affidavit, Magee then stated that when she heard

from Johns’s father about the time the crime took place, she saw Johns hanging around the

Nunnery’s “all that evening and toward the night.”

¶79.   The majority opinion relies on Magee being able to remember the exact date and time,

as she was celebrating the birthday of a friend in her backyard. The crime took place on

March 28th. At the PCR hearing, Magee stated her friend’s birthday was on March 27th.



                                             30
Realizing the contradiction from her own testimony moments before, she then recanted and

said there was no birthday party. She then stated she remembered, from approximately seven

years before, that on the 28th of March, she just had people over to “hang out.” Magee

admitted she had been drinking the day of March 28th.

¶80.   The witnesses presented inconsistent statements regarding the time they saw Johns.

Each witness’s testimony at the evidentiary hearing conflicts not only with their personal

affidavits, but with the testimony of each other and most importantly, with Johns’s testimony.

Each witness stated Johns was at their home the night of March 28th, at the time of the

shooting. Johns told the jury he was home with his daughter the entire evening.

¶81.   According to Strickland, “a convicted defendant ... must identify the acts or omissions

of counsel that are alleged not to have been the result of reasonable professional judgment.”

Id. at 690. Jackson made the professional determination these witnesses would not be

credible; therefore, Jackson did not call them as alibi witnesses. Johns states that under

Strickland, counsel has a duty to make reasonable investigation. Jackson testified at the

evidentiary hearing he made the determination prior to trial these witnesses may offer

perjured testimony. Under Strickland, counsel has the right to make decisions regarding trial

strategy. Id. at 688-89. Jackson’s choice not to call witnesses lacking credibility and offering

testtimony inconsistent with the accused’s testimony can clearly be considered trial strategy.

       Assuming arguendo Jackson called the witnesses with their inconsistent testimony,

due to the overwhelming weight of other evidence presented against Johns, a reasonable juror




                                              31
could have reached a guilty verdict. There has been no showing the outcome of Johns’s case

would have been different had these witnesses testified.

¶82.   This case was decided by a jury, and this Court gives jury verdicts great deference.

Venton v. Beckman, 845 So.2d 676, 686 (Miss. 2003) (citing Ducker v. Moore, 680 So.2d

808, 811 (Miss. 1996)). This case was subsequently affirmed by a unanimous Court of

Appeals. Johns’s motion for post-conviction relief was denied by the trial court after a full

hearing. This decision was affirmed by the Court of Appeals without dissent. It is the duty

of this Court to give deference to these decisions and this conviction should not be disturbed.

¶83.   Johns has clearly not proved an ineffective assistance of counsel claim under

Strickland. Jackson testified in an evidentiary hearing that in his professional judgment, he

believed Johns’s alibi witnesses were going to offer false statements. Jackson took into

account the surrounding circumstances and made a tactical decision not to call these

witnesses.

¶84.   Johns further failed to prove Jackson’s defense prejudiced the outcome of his case.

The overwhelming weight of evidence presented against Johns would allow a jury to

reasonably conclude that Johns was guilty of the crime committed. Even if these alleged alibi

witnesses had testified, a different result would not have occurred.

¶85.   For these reasons, I respectfully dissent.




                                              32
