                   IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-CA-00882-SCT

                                CONSOLIDATED WITH

                                NO. 1999-DP-01185-SCT

                                           and

                                NO. 1996-DP-00943-SCT

WILLIE JEROME MANNING a/k/a FLY

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         05/21/2013
TRIAL JUDGE:                              HON. LEE J. HOWARD
TRIAL COURT ATTORNEYS:                    DAVID VOISON
                                          MARVIN WHITE
COURT FROM WHICH APPEALED:                OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  DAVID PAUL VOISIN
                                          ROBERT S. MINK
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: MELANIE DOTSON THOMAS
                                               MARVIN L. WHITE, JR.
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                              REVERSED AND REMANDED - 02/12/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC:

      RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Willie Manning is appealing the trial court’s order denying him post-conviction relief.

This appeal stems from Manning’s conviction of brutally murdering two elderly women in

Starkville, Mississippi. The only witness to testify that he saw Manning entering the
women’s apartment shortly before their bodies were discovered was Kevin Lucious, a

convict serving two life sentences without parole in Missouri. No witness testified to seeing

Manning leave the apartment. A more complete statement of the underlying facts can be

found in Manning’s failed direct appeal, Manning v. State, 735 So. 2d 323 (Miss. 1999).

Considerable evidence was presented to the jury, which found Manning guilty, and Manning

was sentenced to death. This Court affirmed Manning’s convictions and sentences.

¶2.    Manning filed a petition for post-conviction relief (PCR). This Court granted Manning

leave to proceed with post-conviction proceedings on three grounds: withheld evidence,

Kevin Lucious’s testimony, and ineffective assistance of counsel related to those two claims.

Manning v. State, 884 So. 2d 717 (Miss. 2004). The trial court denied Manning relief, and

Manning appeals from that order.

                                          ISSUES

¶3.    On appeal from the trial court’s denial of post-conviction relief, Manning raises the

following issues:

       I.     The State violated Manning’s due process rights by failing to provide
              favorable, material evidence, the cumulative effect of which puts the
              case in a different light and undermines confidence in the verdict.

       II.    The State violated Manning’s due process rights through its knowing
              use of false testimony.

       III.   Manning was denied his right to the effective assistance of counsel
              guaranteed by the Sixth and Fourteenth Amendments and the
              Mississippi Constitution.

       IV.    Manning is entitled to post-conviction relief due to the cumulative
              effect of these errors.




                                             2
       V.      Manning was denied his right to due process of law guaranteed by the
               Federal and State Constitutions due to the failure to allow him to
               inspect law enforcement files or admit portions of the files into
               evidence.

                                 STANDARD OF REVIEW

¶4.     “When reviewing a lower court’s decision to deny a petition for post conviction

relief, this Court will not disturb the trial court’s factual findings unless they are found to be

clearly erroneous.” Doss v. State, 19 So. 3d 690, 694 (Miss. 2009) (citing Brown v. State,

731 So. 2d 595, 598 (Miss. 1999)). 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. . . .’” Doss, 19 So. 3d at 694 (quoting Mullins v. Ratcliff, 515

So. 2d 1183, 1189 (Miss. 1987)). However, “‘where questions of law are raised the

applicable standard of review is de novo.’” Doss, 19 So. 3d at 694 (quoting Brown, 731 So.

2d at 598). “The burden of proof at an evidentiary hearing on a PCR case is on the petitioner

to show ‘by a preponderance of the evidence’ that he is entitled to relief.” Doss, 19 So. 3d

at 694 (quoting Miss. Code Ann. § 99-39-23(7) (Rev. 2007)).

                                          ANALYSIS

¶5.    We agree with the trial court’s decision to reject Lucious’s recanted testimony and

Likeesha Jones’s testimony, finding no abuse of discretion. A trial judge is responsible for

reviewing and evaluating the testimony of the witnesses, and this Court “will not overturn

a decision to grant or deny a motion for new trial based on recanted testimony unless the

circuit judge abused his discretion.” Russell v. State, 849 So. 2d 95, 107 (Miss. 2003). We



                                                3
also agree with the trial court on the ineffective-assistance-of-counsel claim, but for a

different reason. Manning’s counsel should not be deemed ineffective, as their preparation

and presentation was hamstrung from the beginning due to undisclosed favorable, material

evidence.

¶6.    This leads us to Manning’s claim that the State violated his due-process rights when

it failed to provide favorable, material evidence, upon request. A canvass of all residents of

Brooksville Gardens Apartments was initiated and conducted by the Starkville Police

Department during its investigation. Index cards recording the results of the canvass were

completed and maintained by the Starkville Police Department. An entry on the cards reveals

that the apartment from which Lucious testified he observed Manning enter the victims’

apartment was vacant at the time of the crime, and neither Lucious nor his girlfriend Jones

was listed as a resident of any of the apartments canvassed.1

¶7.    “[J]ustice is more nearly achieved when . . . each side has reasonable access to the

evidence of the other.” Box v. State, 437 So. 2d 19, 21 (1983). Brady v. Maryland instructs

“that the suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S.

83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). “The principle [] is not punishment

of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.




       1
        Other records, including a lease and affidavit testimony, were admitted into evidence
at the post-conviction-relief hearing supporting that the apartment was vacant the day of the
crime, January 18, 1993. The apartment was leased by Jones February 1, 1993.

                                              4
Society wins not only when the guilty are convicted but when criminal trials are fair[.]”

Brady, 373 U.S. at 87, 83 S. Ct. at 1197 (citing Mooney v. Holohan, 294 U.S. 103, 55 S. Ct.

340, 79 L. Ed. 791 (1935)).

¶8.    Our Court and numerous other courts have adopted the following four-prong test:

       To establish a Brady violation a defendant must prove the following: (1) that
       the government possessed evidence favorable to the defendant (including
       impeachment evidence); (2) that the defendant does not possess the evidence
       nor could he obtain it himself with any reasonable diligence; (3) that the
       prosecution suppressed the favorable evidence; and (4) that had the evidence
       been disclosed to the defense, a reasonable probability exists that the outcome
       of the proceedings would have been different.

King v. State, 656 So. 2d 1168, 1174 (Miss. 1995) (citing U.S. v. Spagnoulo, 960 F. 2d 990,

994 (11th Cir. 1992)).

¶9.    As to prong one, the State acknowledges that the Starkville Police Department had the

canvass cards in its possession. Uncontroverted testimony was adduced at the hearing that

(1) the cards were not provided to the district attorney’s office and (2) the cards were not

otherwise provided to defense counsel. We conclude the evidence was favorable to Manning

for impeachment of Lucious’s testimony. Prong one is satisfied.

¶10.   As to prong two, Manning’s primary attorney testified that the canvass cards were not

in the file provided prior to trial. The investigation of the January 18, 1993, crime

commenced that day, with a complete canvass of the apartment complex ordered within days.

Initially, Manning was not implicated as a suspect and was not indicted until more than a

year later. Manning’s attorneys were not appointed until May and August 1994. The trial

took place in 1996, three-and-a-half years after the crime. The likelihood that Manning’s

court-appointed attorneys could have diligently secured the same information by conducting

                                             5
a canvass of the apartment complex in the years after the crime defies computation of even

a minimal degree of success. Thus, prong two is satisfied. King v. State, 656 So. 2d at 1174.

¶11.   As to prong three, the United States Supreme Court has stated that, under a Brady

analysis, “suppression” does not encompass a determination of “moral culpability” or

“willfulness.” Spagnoulo, 960 F. 2d at 994-995 (quoting U.S. v. Agurs, 427 U.S. 97, 110,

96 S. Ct. 2392, 2400, 49 L. Ed. 2d 342 (1976)). The focus is on the “character of the

evidence,” not on the “character of the prosecutor.” Spagnoulo, 960 F. 2d at 995 (quoting

Agurs, 427 U.S. at 110, 96 S. Ct. at 2400). Suppression can be attributable to a state actor

who withholds material evidence. Spagnoulo, 960 F. 2d at 994-99 (quoting U.S. v. Antone,

603 F. 2d 566, 569 (5th Cir. 1979)) (“[T]his court has declined to draw a distinction between

different agencies under the same government, focusing instead upon the ‘prosecution team’

which includes both investigative and prosecutorial personnel.”) (emphasis added) (also

quoted by King v. State, 656 So. 2d at 1176).2

¶12.   The Police Chief of Starkville, who at the time of the crime was the captain in charge

of investigations and a lead officer in this case, testified at the PCR hearing that he ordered

the canvass of the apartment complex. The canvass cards were all present in the Starkville

Police Department file. The district attorney testified that he never saw the canvass cards and

that he would have investigated the discrepancy had he possessed the information. The


       2
        King may overstate who may be state actors, for the quoted language used is derived
from a footnote in the special concurrence of Box, joined by only two justices. King, 656 So.
2d at 1174-75 (quoting Box, 437 So. 2d at 25 n.4). For the purposes of Brady, the
“prosecution” depends on the particular facts of a case. Unquestionably, it encompasses the
primary investigative agency, the Starkville Police Department, the factual scenario found
in today’s case.

                                              6
record supports that neither the district attorney’s office nor the defense attorneys were aware

of the evidence. The reasons why the information was not disclosed is immaterial. However,

because there was suppression of material evidence by a state actor, prong three is satisfied.

Spagnoulo, 960 F. 2d at 995 (quoting Agurs, 427 U.S. at 110, 96 S. Ct. at 2400).

¶13.   “[T]he evidence is material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in

the outcome.” Spagnoulo, 960 F. 2d at 994 (quoting United States v. Bagley, 473 U.S. 667,

682. 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985)). Evidence “favorable to an accused”

includes both impeachment evidence and exculpatory evidence. Spagnoulo, 960 F. 2d at 994

(citing Bagley, 473 U.S. at 676, 105 S. Ct. at 3380). Both the defense attorneys and the

district attorney testified that their actions in preparing for the case and presenting the case

would have been different had they possessed the evidence. The defense attorneys testified

that the receipt of this favorable, material evidence would have altered their defense. There

is no question that defense counsel would have had the opportunity to meaningfully impeach

Lucious’s testimony that he lived in the apartment at the time of the crime and saw Manning

enter the victims’ apartment. Any attorney worth his salt would salivate at impeaching the

State’s key witness using evidence obtained by the Starkville Police Department. As stated

supra, the district attorney’s testimony that he would have investigated the discrepancy

between Lucious’s testimony and the cards is also crucial to prong four, bolstering that a

reasonable probability exists that the outcome of the proceedings would have been different.

Manning satisfies prong four. Spagnoulo, 960 F. 2d at 994; 656 So. 2d at 1174.

                                               7
                                        CONCLUSION

¶14.   Accordingly, the State violated Manning’s due-process rights by failing to provide

favorable, material evidence. We reverse the judgment of the Oktibbeha County Circuit

Court denying Manning post-conviction relief, and we reverse Manning’s conviction and

sentence and remand the case to the trial court for a new trial.

¶15.   REVERSED AND REMANDED.

      WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS AND COLEMAN, JJ.,
CONCUR. KING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN
OPINION. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY PIERCE, J.

       CHANDLER, JUSTICE, DISSENTING:

¶16.   I respectfully dissent. On our highly deferential standard of review, I would affirm the

trial court’s denial of post-conviction relief. I note the unlikelihood that justice for the victims

will be served, given the difficulties of retrying a case two decades after the date of the crime.

¶17.   We will not disturb the factual findings of a trial court in denying a petition for post-

conviction relief unless such findings are clearly erroneous. Rowland v. State, 42 So. 3d 503,

506 (Miss. 2010). I would defer to the well-reasoned logic of the seasoned trial judge as

stated in his order denying post-conviction relief:

       [T]hese [canvass cards] are insufficient to undermine confidence in the verdict
       reached at Petitioner’s trial. Neither Lucious’ trial testimony, nor any
       statement given by Lucious prior to 2010, mentioned Apartment 11-E, or
       indicated that there was an issue regarding where he lived at the time of the
       murders. Therefore, even if these canvass cards had been disclosed, there
       would have been no reason to introduce them for impeachment purposes,
       leading this Court to the conclusion that the canvass notes are insufficient to
       create a reasonable probability that, had they been disclosed, the proceedings
       would have been different.



                                                 8
¶18.   The majority would find a Brady 3 violation based on the purported impeachment

value of the canvass cards. But the canvass cards did not facially contradict Lucious’s

testimony at trial. Manning’s own trial attorney, Mark Williamson, acknowledged that

having had access to the canvass cards would not likely have triggered a red flag to

investigate Lucious’s residence, given that, like the State, Manning’s attorney had no

knowledge of the specific apartment number from which Lucious viewed Manning enter the

victim’s apartment.

¶19.   Lucious was known to frequent Brooksville Gardens at the time of the murders, and

no one disputes his frequent presence there prior to the official start of his girlfriend’s lease:

hanging out with the Mannings, buying beer from Dera Mae, and, I submit, likely squatting

or at least spending time in the vacant apartment on which his girlfriend was about to sign

a lease. Dolph Bryan had also personally observed Lucious at Brooksville Gardens during

the time of the investigation, further supporting that, to the State’s knowledge, Lucious’s

testimony that he was present at Brooksville Gardens at the time of the murders was true.

Forrest Allgood testified that:

       All I recall is him testifying that he looked out a window and this is what he
       saw. Quite frankly, that’s all I was interested in. I didn’t delve into which
       apartment he said he was in or anything of that nature . . . . The only thing that
       was important to me was did the man see what he saw.

The supposed impeachment value of the cards therefore is not as significant as the majority

would represent. Manning also has presented no evidence showing that defense counsel was

precluded from reviewing the original police file containing the canvass cards, and



       3
           Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

                                                9
Manning’s post-conviction counsel easily obtained the file from the police department. I

therefore agree with the trial court that Manning has failed to establish the requisite prejudice

for the finding of a Brady violation.

¶20.   Moreover, Lucious’s recantation came in stages and in an inconsistent manner that

supports that his recantation is not credible.4 We first have his statements to the police from

1994 and his 1996 trial testimony, in which he testified to witnessing Manning enter the

victim’s apartment on the day of the murder. He also testified to participating in or

overhearing conversations during the weeks after the murders in which Manning bragged

about how “it doesn’t take nothing to kill somebody” said that “if I had known that they

didn’t have any more than they had I wouldn’t have killed them mother*******.” Between

1994 and 2001, Lucious gave at least five statements implicating Manning in the murders.

His girlfriend, Likeesha Jones, also gave at least three statements during that time, also

implicating Manning.

¶21.   Then, in a 2002 affidavit, Lucious partially recanted his trial testimony and the version

of events he gave at trial. While still maintaining that he lived in the apartment across the

way from the murders, and that he saw a man enter the apartment the day of the murders, he

claimed that he could not positively identify the man as Manning due to poor eyesight.

¶22.   It was not until 2010 that Lucious claimed, for the first time, that he did not live at the

apartments the day of the murder, that he did not observe anyone enter the victims’

apartment, that he was not present at Brooksville Gardens at all that day, and that he did not



       4
       Lucious was only one of many trial witnesses who placed Manning at Brooksville
Gardens on the day of the murder, including Nancy Elliott, Barbara Duck, and Larry Harris.

                                               10
overhear any conversations whatsoever, at any time, regarding Manning’s involvement in

the murders.5

¶23.   Despite the official start date of the lease being a few weeks after the murders, the

circumstances support Lucious’s original testimony that he and Likeesha Jones were

physically present in apartment 11E by the time of the murders. The apartment records show

that the previous tenant had moved out several months prior to the January murders. This left

the apartment physically unoccupied for several months prior to the start of Jones’s official

lease. Testimony was presented at the PCR hearing that squatting was very common at

Brooksville Gardens.

¶24.   While Jones claimed at the PCR hearing that they were not living in 11E at the time

of the murders, she also testified that she had met with the apartment manager, Harold

Williams, some time prior to moving in, at the start of the application process, and that he

had informed her that the apartment had been empty, and therefore there would be no

problem with her moving in. This conversation further supports the opportunity and

likelihood that Jones and Lucious were physically in the apartment during the lease-

application process, which included a wait period for Jones’s income verification from the

welfare department. The record reflects that her lease application was in progress around the

time of the January 18 murders, including a January 20 stamped application for her income

verification.




       5
        At the time of this version of the story, Lucious was in Missouri serving life without
parole and three concurrent life sentences for first-degree murder, first-degree assault and
two counts of armed criminal action.

                                             11
¶25.   Jones’s credibility at the hearing was further discounted by the testimony of Mark

Williamson, one of Manning’s trial attorneys. Jones had testified that, around the time of

trial, she identified Williamson as Manning’s lawyer from either the newspaper or television,

and that she looked up his number in the phone book and called him twice to tell him that

Lucious’s eyewitness testimony would not be reliable because they did not live at the

apartments at the time of the murder. But Williamson testified at the PCR hearing that if he

had received such calls, he certainly would have followed up on them. Lucious was, without

question, an extremely important witness. But until his unreliable recantation, whether he

was living at Brooksville Gardens on the day of the murder was never a contested issue. And,

regardless of the technical start date of the lease, the testimony and evidence established that

Lucious frequented Brooksville Gardens before the lease start date.

¶26.   On post-conviction review, we owe high deference to the trial court’s determination

of the credibility of the witnesses. The record reflects that the trial judge took this task very

seriously, insisting, for example, that Lucious be transported to testify in person rather than

submit a video affidavit. Lucious’s gradual and inconsistent recantation of his trial testimony

is not credible, and Jones’s testimony was refuted by the testimony of Manning’s trial

attorney. Because I would affirm the trial court’s denial of post-conviction relief, I

respectfully dissent.

       PIERCE, J., JOINS THIS OPINION.




                                               12
