                        IN THE SUPREME COURT OF MISSISSIPPI
                                 NO. 95-CA-01029-SCT
JIMMY BASS
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:                            08/11/95
TRIAL JUDGE:                                 HON. JOHN LESLIE HATCHER
COURT FROM WHICH APPEALED:                   BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      PRO SE
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL

                                             BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                           LAWRENCE Y. MELLEN
NATURE OF THE CASE:                          CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                 AFFIRMED - 11/6/97
MOTION FOR REHEARING FILED:                  1/5/98
MANDATE ISSUED:




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

     MILLS, JUSTICE, FOR THE COURT:




This appeal comes from the Circuit Court of Bolivar County, which on August 11, 1995, denied
Jimmy Bass' motion to vacate and set aside his conviction and sentence for armed robbery and
aggravated assault. Bass assigns as error the following issues.

     I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GIVE A CAUTIONARY
     JURY INSTRUCTION.

     II. WHETHER THE JURY'S VERDICT WAS AGAINST THE OVERWHELMING
     WEIGHT OF THE EVIDENCE.

     III. WHETHER NEWLY DISCOVERED EVIDENCE ENTITLES BASS TO A NEW
     TRIAL.
     IV. WHETHER BASS' DUE PROCESS RIGHTS WERE VIOLATED RESULTING IN
     A MISIDENTIFICATION AT TRIAL.

     V. WHETHER BASS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

                                               FACTS

The facts of this case are set forth fully in our opinion affirming Bass' conviction and sentence on
direct appeal. Bass v. State, 597 So. 2d 182 (Miss. 1992). A brief summary of the facts is presented
below.

Mary Townsend was a cashier at the "61 Quiki" convenience store in Cleveland, Mississippi. On July
17, 1988, Townsend was shot twice during an armed robbery of the store by three black males. On
October 26, 1988, Jimmy Bass and Markius Thomas were indicted in the Circuit Court of Bolivar
County for armed robbery and aggravated assault. At trial beginning on December 7, 1988, Keith
Thompson testified that he was in the vicinity of the store immediately after the robbery occurred,
and that he saw Bass, Thomas and another black male running down the highway away from the 61
Quiki. He testified that he had known Bass and Thomas for a long time and recognized them
immediately. According to Thompson, Bass had what looked like a pistol in his hand and was trying
to put it into his pocket while he ran. Thompson also testified that the night before the robbery, Bass
let him hold a .38 revolver which Bass had in his possession.

Bass testified that he was with Thomas on the afternoon of July 17, 1988, but that he and Thomas
were both at their respective homes that night. Thomas did not testify. Bass and Thomas each called
witnesses who testified that they were at home on the night of July 17, 1988.

The jury found Bass and Thomas guilty of both counts, and the trial court sentenced them each to
serve thirty years for armed robbery and twenty years for aggravated assault. Bass and Thomas
appealed to this Court, which affirmed their convictions and sentences in Bass v. State, 597 So. 2d
182 (Miss. 1992). On May 15, 1995, Bass filed in the Circuit Court of Bolivar County a Motion to
Vacate and Set Aside Conviction and Sentence. On August 11, 1995, the circuit court denied the
motion.

                                           DISCUSSION


     I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GIVE A CAUTIONARY
     JURY INSTRUCTION.

Bass argues that because two of the State's witnesses, Keith Thompson and Anita Thompson, gave
contradictory and uncorroborated testimony on direct and cross examination, the trial court erred in
failing to instruct the jury to view the witnesses' testimony with caution. The record before us
contains no trial transcript, and Bass did not raise this issue on direct appeal. Because this issue
clearly was capable of determination at trial and/or on direct appeal, Bass is procedurally barred from
raising it in his motion for post-conviction relief. Miss. Code Ann. § 99-39-21(1) (1972).

     II. WHETHER THE JURY'S VERDICT WAS AGAINST THE OVERWHELMING
     WEIGHT OF THE EVIDENCE.

Bass argues that the evidence was insufficient to support a conviction of armed robbery and
aggravated assault. Again, because this issue was capable of determination at trial and/or on direct
appeal, it is procedurally barred.

     III. WHETHER NEWLY DISCOVERED EVIDENCE ENTITLES BASS TO A NEW
     TRIAL.

Bass attached to his motion for post-conviction relief an affidavit signed by Keith Thompson. The
affidavit, dated April 29, 1993, states that Thompson's testimony at Bass' trial was not true, that
Investigator George Serio of the Cleveland Police Department paid Thompson and his sister, Anita,
to give false testimony against Bass, and that Thompson in fact does not know who robbed the 61
Quiki on July 17, 1988. Citing Tobias v. State, 584 So. 2d 1276, 1278-79 (Miss. 1991), Bass argues
that Thompson's recantation of his trial testimony is newly discovered evidence, and that there is a
substantial probability that a different result would be reached if a new trial is had without it, thus
entitling Bass to a new trial. We find that this argument must fail.

In its answer to Bass' motion for post-conviction relief, the State attached a transcript of an interview
with Keith Thompson, dated June 6, 1995 and conducted by Investigator Serio. The transcript was
accompanied by an affidavit signed by Thompson stating that the contents of the transcript were true
and correct. In the interview, Thompson stated that when he testified against Bass at trial, he did not
lie for anybody, and that the statements he gave in his testimony were true. Thompson stated that
after the trial, he served some time in Parchman, during which time he had contact with Bass. He
stated that sometime in 1991, Bass asked him to sign a piece of paper, but he refused, telling Bass
that he would not sign any court papers. Bass told him that they were not court papers, so Thompson
signed the paper. According to Thompson, Bass approached him again in 1992 or 1993 and asked if
Thompson would go to court and testify that he was paid to lie at Bass' trial, which request
Thompson refused. Bass told him that he had already sent the papers in and Thompson's signature
was on the paper, so Thompson did not have a choice. Thompson told Bass that if Bass had
something with Thompson's name on it, Thompson would just go to court and tell what really
happened. Thompson maintained throughout the interview that he never signed any court papers for
Bass.

It appears that even if Thompson did in fact sign the affidavit filed by Bass, Thompson never intended
to recant his trial testimony and would give the same testimony if called to testify again, thereby
nullifying any substantial probability that a different result would be reached if a new trial were
granted. As it plainly appears from the face of the documents filed in this matter that Bass is not
entitled to any relief, the circuit court acted within its discretion in denying the motion. Miss. Code
Ann. § 99-39-11(2) (1972).

     IV. WHETHER BASS' DUE PROCESS RIGHTS WERE VIOLATED RESULTING IN
     A MISIDENTIFICATION.

Bass fails under this assignment even to mention any alleged misidentification which occurred at trial,
but instead again attacks the sufficiency of the evidence against him. Also, because the record before
us contains no trial transcript, we are unable to review the testimony in which Bass was allegedly
misidentified. In any event, because this issue was capable of determination at trial and/or on direct
appeal, it is procedurally barred.

     V. WHETHER BASS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

Bass argues that he received ineffective assistance of counsel in that his attorney failed to request a
cautionary instruction, for which proposition he cites Stringfield v. State, 588 So. 2d 438 (Miss.
1991), a case which makes mention neither of ineffective assistance of counsel nor of cautionary
instructions. Again, we have no trial transcript before us to aid our review of this assignment. Bass
has failed to make the showing required under Strickland v. Washington, 446 U.S. 668 (1984) that
he received ineffective assistance of counsel. Finding no merit among Bass' assignments of error, we
affirm the circuit court's denial of Bass' motion for post-conviction relief.

LOWER COURT'S DENIAL OF POST CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, ROBERTS AND SMITH, JJ., CONCUR. BANKS, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J., AND
McRAE, J.


     BANKS, JUSTICE, DISSENTING:




I respectfully dissent from the majority's conclusion in Issue III regarding the conflicting affidavits
from the State's main witness at trial, Keith Thompson. These affidavits are both apparently authentic
and raise a factual issue of whether Thompson was paid by the police to lie at Bass's trial. No
evidentiary hearing was granted on this issue in the circuit court, and I believe the trial court erred
when it dismissed Bass's petition on the ground that "it plainly appears from the face of the foregoing
records that the Petitioner is not entitled to any relief."

There is little question that Bass's assignment of error would have merit in his post-conviction relief
action. That is, assuming a genuine dispute as to the authenticity of the conflicting affidavits from
Thompson, his recantation would constitute new evidence that could not have been discovered prior
to trial by the exercise of due diligence. Tobias v. State, 584 So. 2d 1276 (Miss. 1991).

Of course, an evidentiary hearing is not to be granted every time there are conflicting affidavits. As
we stated in Harris v. State:

     In order for a contested fact to require an evidentiary hearing it must be material. Moreover,
     where an affidavit is belied by unimpeachable documentary evidence in the record such as, for
     example, a transcript or written statements of the affiant to the contrary, to the extent that the
     court can conclude that the affidavit is a sham, no hearing is required.

Harris v. State, 578 So. 2d 617, 620 (Miss. 1991). Here, the evidence would certainly appear to be
material. Thompson, who knew Bass before the robbery and identified him as the person who was
running from the store with a pistol, was the prosecution's main witness. See Bass v. State, 597 So.
2d 182, 183 (Miss. 1992). Further, I would submit that the State's counter-affidavit, which belies
Thompson's recanting affidavit put forth by Bass, is not "unimpeachable." In other cases which have
been dismissed on the record alone, at least one of the subsequent affidavits has been that of the
defendant, and has conflicted with testimony of the defendant himself--generally when entering a
guilty plea. See Taylor v. State, 682 So. 2d 359, 363 (Miss. 1996); Smith v. State, 636 So. 2d 1220,
1224 (Miss. 1994); Mowdy v. State, 638 So. 2d 738, 743 (Miss. 1994). This Court has dispensed
with those cases on the rationale that a great deal of emphasis is placed on testimony by a defendant
in front of the judge when entering a plea of guilty. See King v. State, 679 So. 2d 208, 211 (Miss.
1996). Here, we have new evidence by the prosecution's main witness suggesting that he lied at trial.
This is a far different situation than a petitioner who wants to contradict his own deliberate choices
made when entering a guilty plea.

In my view the trial court abused its discretion by not granting an evidentiary hearing on this issue.
This Court eschews trial by affidavit, and genuine issues of material fact should not be resolved in this
manner. Harris, 578 So. 2d at 619; Neal v. State, 525 So. 2d 1279, 1281 n.2 (Miss. 1987). Here,
there exist two conflicting and seemingly authentic affidavits from Thompson, involving a material
issue of fact. While the State's affidavit is later in time than the one offered by Bass, and appears to be
notarized and legitimate, it cannot be said to be "unimpeachable" on its face. It should also be noted
that the interview was held by the same police officer accused of paying Thompson for his perjured
testimony. Thus, I would remand this issue to the trial court for an evidentiary hearing, with
Thompson as a witness, to clear up the discrepancy between these two facially legitimate affidavits
and to allow a court to determine first-hand the issue of Thompson's credibility and its effect on the
issue of whether a new trial should be ordered.

SULLIVAN, P.J., AND McRAE, J., JOIN THIS OPINION.
