IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No CA COA STATE OF MISSISSIPPI BRIEF OF APPELLANT (ORAL ARGUMENT REQUESTED)

Transcription

1 E-Filed Document Jun :18: CA COA Pages: 27 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No CA COA KENNY WALTON APPLELLANT VERSUS STATE OF MISSISSIPPI APPELLEE BRIEF OF APPELLANT (ORAL ARGUMENT REQUESTED) Tim C. Holleman, Esquire (Ms Bar#2526) Boyce Holleman & Associates rd Ave./Boyce Holleman Blvd. Gulfport, Ms Office: Fax: tim@boyceholleman.com

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal: Honorable Albert Smith, III, Circuit Judge Honorable Kenneth L. Thomas, Circuit Judge Brenda Mitchell, District Attorney Leslie Flint, Assistant District Attorney Andrew Alexander Jasmond Matthews Kenny Walton Tim C. Holleman Damien Johnson Rosharwin L. Williams, Esquire William Wendell Martin, Esquire Boyd P. Atkinson, Esquire Ralph Tierce, III Carolyn B. Armstrong Respectfully submitted, this the 8 th day of June, /s/ Tim C. Holleman TIM C. HOLLEMAN ATTORNEY FOR APPELLANT, KENNY WALTON i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE SUMMARY OF LEGAL ARGUMENT LEGAL ARGUMENTS: WILLIAMS AS WALTON S ATTORNEY AT ALL TIMES HAD A DUTY OF CANDOR TO THE TRIAL COURT INCLUDING THE MOTIONS AND ARGUMENTS BEFORE THE COURT WALTON S COURT APPOINTED ATTORNEY S ACTIONS/REPRESENTATIONS BEFORE THE FILING OF THIS PCR ESTABLISHED THAT THE FAILURE TO RECEIVED CRITICAL EVIDENCE EFFECTED WALTON S PLEA WILLIAMS WAS GUILTY OF INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS REPRESENTATION OF WALTON..18 CONCLUSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES Cases: Brown v. State, 798 So. 2d 481 (Miss. 2001).19 Hannah v. State, 943 So. 2d 20 (Miss. 2006).20 Hibbler v. State, 115 So. 3d 832 (Miss. Ct. App. 2012).18 Leatherwood v. State, 539 So. 2d 1378 (Miss. 1989) 20 Lindsey v. State, 939 So. 2d 743 (Miss. 2005) 18 Walker v. State, 1997 Miss. LEXIS 618 (Miss. Nov. 13, 1997)...13 Walton v. State, 165 So. 3d 516 (Miss. Ct. App. 2015)..10 Statutes: Section MCA , 8 Rules: Miss. R. of Prof. Cond. Rule iii

5 STATEMENT OF THE ISSUES 1. WILLIAMS AS WALTON S ATTORNEY AT ALL TIMES HAD A DUTY OF CANDOR TO THE TRIAL COURT INCLUDING THE MOTIONS AND ARGUMENTS BEFORE THE COURT 2. WALTON S COURT APPOINTED ATTORNEY S ACTIONS/REPRESENTATIONS BEFORE THE FILING OF THIS PCR ESTABLISHED THAT THE FAILURE TO RECEIVE CRITICAL EVIDENCE EFFECTED WALTON S PLEA 3. WILLIAMS WAS GUILTY OF INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS REPRESENTATION OF WALTON 1

6 STATEMENT OF THE CASE Walton was indicted on September 17, 2008, along with Michael Magee, Corderal McKnight, and Jasmond Matthews for Armed Robbery, Aggravated Assault, Arson and Kidnapping. (See Vol 1/4: R Indictment). One month later, (October 16, 2008), Rasharwin Williams entered his appearance as Court appointed attorney for Walton. Barely, 36 days after his court appointed attorney entered an appearance for Walton, Walton pled guilty to all four counts on November 21, 2008 but sentencing was deferred. Approximately 3 weeks (October 29 and 30, 2008) before Walton s plea the State s investigator interviewed both co-defendants, Corderal McKnight, and Jasmond Matthews. Both at that time advised the State s investigator that Walton and Michael Magee were not involved in the Armed Robbery, Aggravated Assault, Arson and Kidnapping. Both also identified the two others that were, in fact, involved: Andrew Nukie Alexander and Damien Johnson. This information was NOT provided by the State to or received by Walton s Court appointed attorney before Walton s plea. Because Walton s court appointed attorney was not aware or made aware of such, he never questioned Walton or Matthews 1 about the others involved, he never attempted to interview McKnight at all 2, he never attempted to interview Magee at all, and more importantly he never attempted to locate or interview either Andrew Nukie Alexander 1 Walton s court appointed attorney claimed at the hearing on August 31, 2015 that he spoke to Matthew s attorney and to Matthews before Walton s plea and was aware Matthews was not going to testify for the State or inculpate Walton. Such testimony is contrary to his statements under oath as member of the Bar to the Trial Court prior to the PCR accusing him of ineffective assistance of counsel. 2 Or his attorney. 2

7 and Damien Johnson as potential witnesses or to investigate the facts and circumstances of their involvement. Corderal McKnight pled guilty on the October 24, 2008 to an amended charge of accessory, one charge of accessory after the fact, and one count of accessory after the fact. During the plea, McKnight was not asked to state the details of his involvement in these crimes or who was involved in said crimes with him. (See Vol 1/4: R , at p. 78). On October 29, 2008, Jasmond Matthews entered a plea of guilty to all four counts of the Indictment. During the plea, Matthews was not asked to state the details of his involvement in these crimes or who was involved in said crimes with him. (See Vol 1/4: R Transcript of Plea/Sentencing Hearing of Jasmond Matthews). After McKnight s and Matthews pleas the State s Investigators interviewed McKnight and Matthews, on October 29, 2008, and October 30, 2008, respectively. Strangely, the Investigator did not record these interviews, despite having recorded both of Walton s. Also no written report was made of the substance of these oral statements either. (See Vol 1/4: R. 111). It is undisputed 3 that at that time 4 both McKnight and Matthews told the investigator that Walton and Magee were not involved in these crimes and actually identified the other two people who were involved with them: Andrews and Johnson. On November 14, 2008, a supplementary report was made by the Investigator but such did not contain the substance of the oral statements made by McKnight and Matthews, did not state neither Walton nor Magee were involved and did not identify the other persons who were involved. All the report provided was the investigators 3 Both Matthews and McKnight testified they told the Investigators such. 4 October 29, 2008, and October 30,

8 observations of Matthews and McKnight during the interviews. (See Vol 1/4: R Supplementary Report Bolivar County Sheriff s Office). On Friday November 14, 2008, the State filed a Supplemental State's Report of Discovery Disclosure in which the State for the first time alluded: With written summary pending and to be submitted to our office, the State submits that its verbal knowledge of this date is that neither the codefendant Matthews or McKnight inculpate Michael McGee or Kenny Walton and instead name other accomplices. At the hearing on August 31, 2015, Walton s Court appointed counsel testified he did not receive any such discovery from the State 5. He also confirmed his previous statements to the Court in two separate hearings that he never received notice of the information contained in either the Supplemental State's Report of Discovery Disclosure or the Supplementary Report from the State or any one else. (Vol 1/1: R. 56 lns to R. 57 lns 1-10, R. 103, lns 9-17, and R. 108 lns to R. 109, lns 2-7). On May 22, 2009 just days before the Magee trial was set to begin on May 27, 2009, Walton s Court appointed attorney learned that Matthews and McKnight were going to testify that Walton was not involved. He reacted immediately by filing a Motion to Set Aside Defendant s Guilty Plea. (See Vol 1/4: R. 143; R. E. pp Motion to Set Aside Defendant s Guilty Plea). What Walton s Court appointed attorney stated under his oath 6 as attorney to the Trial Court (before being accused of ineffective assistance of counsel ) is very telling and important. The Motion to Set 5 The Court will recall from the previous appeal this is the document which appears to have an incorrect fax number for Williams. To this date the State has NOT produced a fax transmittal receipt showing the fax was received and Williams denied receiving such. 6 Section MCA, requires a lawyer to demean himself with all good fidelity to the Court as to the client, to use no falsehood nor delay any person's cause, and to support the Constitution of the State of Mississippi. 4

9 Aside Defendant s Guilty Plea was signed by Williams and he represented to the Court the following: Para. 8. That the Defendant has recently provided information that calls into question his former guilty plea which would therefore lend it to be set aside; Para. 9. That this information has not been shared with his counsel in the past and would now seriously impact and undermine the integrity of his former guilty plea. (Vol. 1/4: R. 143). On May 27, 2009, the trial of Michael McGee commenced in the Circuit Court of Bolivar County, Mississippi. (See Vol. 1/4: R ; Vol 2/4: R ; Vol. 3/4: R Transcript of Excerpts of Michael McGee Trial). At the trial, both Matthews (Vol. 2/4: R ) and McKnight (Vol. 2/4: R ) testified that neither Walton nor Magee were involved in the crimes charged and identified the others involved as Nukie Alexander and Damien Johnson. Matthews and Magee both testified that they had told the State s Investigator such when interviewed 7. Walton also testified under oath that he was not involved. (See Vol. 3/4: R Transcript of Walton s Testimony re State v. McGee). Walton s testimony under oath was consistent with his first statement to investigators. (See Vol 1/4: R First Statement of Walton). The Trial Court without hearing entered an order denying the Motion to Withdraw Guilty Plea filed by Walton s Court appointed counsel, Williams. (See Vol 1/1: R. 30- Order Denying Motion to Withdraw Guilty Plea). On July 8, 2009, Walton s Court appointed counsel, Mr. Williams, filed a Renewed Motion to Withdraw Guilty Plea. (See Vol 1/1: R 34-44; R.E The only interviews were done on October 29 and 30, 2008 previously referenced. 5

10 Renewed Motion to Withdraw Guilty Plea). This Renewed Motion to Withdraw Guilty Plea was signed by Walton s Court appointed counsel, Williams, and represented to the Court the following: Para. 8: That on or about May 20, 2009, Defendant shared his counsel information that differed from his previous guilty plea and would possibly absolve him from any criminal responsibility. Para. 11: That the Defendant has primitive learning ability and mental anxieties, often appears in a daze state all of which the defense believes may have impacted his ability to truly rationalize the totality of the criminal matters against the Defendant. (Vol. 1/4: R ; R.E ). Para. 13: That the Defendant was sworn and placed under oath and offered testimony that would substantiate a cognizable defense not previously shared 8 with his counsel. Para. 14: That there were additional witnesses offered by the State at the trial of Michael McGee which likewise offered sworn testimony that supported this Defendant's version of facts. (See Vol 1/1: R 34-44; R.E Renewed Motion to Withdraw Guilty Plea). (Emphasis added). At the PCR hearing on August 31, 2015, Mr. Williams testified that his statements above to the Court were still true. (See Trans Hearing 8/31/15 at p ; R.E ). On July 8, 2009, a Sentencing Hearing was held for Walton, and Williams represented to the Court the following: in addition to the testimony that was given in the trial [Magee] that differ from all the evidence that I received prior to him entering his plea 9. 8 Walton s first statement to detectives was consistent with his testimony at the trial of McGee so Walton s court appointed attorney was, in fact, aware of his defense. 9 This cannot be reconciled with Williams testimony at the August 31, 2015 PCR hearing. 6

11 (Vol 1/1: R. 55 lns 1-4). MR. WILLIAMS: The notes that I received, your Honor, was the first time that I received those prior to the trial of Michael McGee. I think it was two days prior to that trial. And in these notes there were statements made by one of the codefendants that my client had no involvement in it, that my client was virtually being pressured into the process of entering a guilty plea. During the trial (Magee), the other codefendants as well exculpated my client from any participation in the incident. And on those bases (sic), since it was new evidence that had not ever been disclosed to me either through my client or any one else 10, I thought it necessary to at least file the motion to withdraw his guilty plea on those bases (sic) (Vol 1/1: R. 56 lns to R. 57 lns 1-10). On July 13, 2009, the Court sentenced McKnight and, during course of sentencing, McKnight asserted that he had told the truth during the McGee Trial, including that Walton was not involved in the crimes committed by him, Matthews, Johnson, and Alexander. The State asserted he had not told the truth therefore had violated his plea agreement. Mr. McKnight responded to this allegation as follows: BY MR. McKnight: The whole truth is what I gave them. Like I said, if I m going to testify against my co-defendants, you know what I'm saying, one of them is in jail and one of them is still out. I didn t see my co-defendants nowhere in that courtroom or none of that. The truth that they say my co-defendants was Michael McGee and Kenny Walton. They ain t my co-defendants. I done, I done told the who they was. I gave the name of who they two people was. BY MR. McKnight: I think that, Your Honor, that I should get the plea that I took because at the time when I was taking the plea, y'all told me that I got to get on the stand and be truthful, tell the truth, tell everything what happened that night and that's what I did. BY THE COURT: Why did all that change at trial to what you told your lawyer up front? 10 This conflicts with Williams testimony at the August 31, 2015 hearing wherein he testified he talked to Matthews attorney or Matthews before Walton s plea and learned Matthews would not inculpate Walton. 7

12 BY MR. McKnight: I told my lawyer 11. (Emphasis added). What I said on the stand is what, is what (See Vol 1/1: R 77-95; R.E Transcript of Sentencing Hearing of Corderal McKnight). On August 4, 2009, Walton s Court appointed counsel, Mr. Williams, filed a Motion for Reconsideration of Sentence. (See Vol 1/1: R Motion for Reconsideration of Sentence). On August 5, 2009, the Court heard Walton s Motion for Reconsideration of Sentence and denied same. (See Vol 1/1: R Transcript of Hearing on Motion to Reconsider). During said hearing, Walton s Court appointed attorney, a licensed attorney, stated on his oath (see MCA ) as a member of this Bar: During the trial (Magee), the other codefendants as well exculpated my client from any participation in the incident. And on those bases (sic), since it was new evidence that had not ever been disclosed to me either through my client or any one else 12, I thought it necessary to at least file the motion to withdraw his guilty plea on those bases (sic). (Vol 1/1: R. 56 lns to R. 57 lns 1-10; R. E ). And to even add to that the State in its response stated that all of these matters were related to Counsel. But the statements of Mr. Matthews that would exculpate Mr. Walton the statements of Mr. McKnight that would exculpate Mr. Walton were never shared with Counsel 13. That s a great issue by itself. (Vol 1/1: R. 103, lns 9-17; R. E. 231). And again, there are some issues relating to Brady that are part and parcel of this matter. In particular, the State has not address the issue of the exculpatory statements that were made by their witnesses, Matthews and McKnight, as relates to Mr. Walton. All they stated was that Mr. 11 Williams never talked to McKnight s lawyer. 12 This conflicts with Williams testimony at the August 31, 2015 hearing wherein he testified he talked to Matthews attorney or Matthews before Walton s plea and learned Matthews would not inculpate Walton 13 Id. 8

13 Walton would be the sole witness at trial. There was no information shared with counsel 14 that those witnesses 15 that they pled and interviewed would exculpate this particular defendant at trial. And that raises the issue, again, as to Brady. (Vol 1/1: R. 108 lns to R. 109, lns 2-7; R. E. 231). (Emphasis added). There really cannot be stronger testimony by a member of the Bar under his oath as an attorney regarding the the effect any non-disclosure had on Walton's plea, than the multiple Motions and representations by Walton s Court appointed attorney, Mr. Williams, before being accused of ineffective assistance of counsel in these proceedings. Clearly, Williams, stated he would not have advised his client to plea guilty to the crimes involved if Matthews and McKnight s had been disclosed to me or shared with counsel that those witnesses that they pled and interviewed would exculpate this particular defendant at trial. Once Walton s Court appointed attorney learned of Matthews and McKnight s potential testimony from which had not ever been disclosed to me either through my client or any one else, he immediately understood the effect of such nondisclosure on his advice to Walton to plea and Walton s decision to plea. He set out to file not one but two Motions attempting to set aside Walton s plea. On June 12, , Walton filed Petition for Post-Conviction Relief and Motion to Vacate and Set Aside Sentencing Judgment, Sentence and to Withdraw Plea. See Vol 1/4: R. 11 to 150 and Vol 1/1: R. 28 to Id. 15 Id. 16 With a new attorney. 9

14 On July 24, 2013, a hearing was held on said Petition wherein testimony and evidence was taken. See Transcript of Hearing Volume 4 of 4. On September 9, 2013, the Circuit entered an Order Dismissing Walton s Motion for Post-Conviction Relief as a successive writ. See Vol 3/4: R On September 26, 2013, Walton filed Notice of Appeal to the Mississippi Supreme Court and it was ultimately assigned to the Mississippi Court of Appeals. (See Vol 3/4: R ). On May 19, 2015, the Mississippi Court of Appeals reversed and remanded this matter to the Trial Court to make findings of fact on whether Williams learned of Matthews' and McKnight's October 2008 statements, whether he reviewed these with Walton prior to entering his guilty plea, and the effect any non-disclosure had on Walton's plea. Walton v. State 165 So. 3d (Miss. Ct. App. 2015) On August 31, 2015, as directed the Court of Appeals, a hearing was held wherein Walton s Court appointed attorney was called to testify. Essentially Williams confirmed he did not received Matthews' and McKnight's October 2008 statements, he did not review these with Walton prior to entering his guilty plea. However he claimed 17 that he got some information before Walton s plea from Mathews attorney that Matthews was not going to testify for the State and he claimed he spoke to Matthews who told him Walton was not involved. He claimed that he conveyed such information to Walton and Walton made the decision to plea. However, Williams still asserted he had no such information regarding McKnight or the two other perpetrators: Anderson and Johnson. 17 Williams previous representations to the Trial Court on the record and in pleading does not support this claim. 10

15 On January 7, 2016, the Trial Court rendered its Order and Opinion of the Court denying post conviction relief to Walton. On February 2, 2016, Walton timely filed a Notice of Appeal to this Honorable Court and the case was again assigned to the Court of Appeals. 11

16 SUMMARY OF LEGAL ARGUMENT On May 19, 2015, this Honorable Court reversed and remanded this matter to the Trial Court to make findings of fact on whether Williams learned of Matthews' and McKnight's October 2008 statements, whether he reviewed these with Walton prior to entering his guilty plea, and the effect any non-disclosure had on Walton's plea. The Trial Court found that Walton s Court appointed Attorney did not know of Matthews and McKnight October 2008 statements and did not review these with Walton prior to his plea, however the Trial Court still denied post conviction relief erroneously finding that Williams had other information directly from Matthews and Matthews attorney and Walton s plea was based on direct communications with Walton. There is no stronger evidence of what Williams knew or didn t know and what effect such on his advice to Walton to plead guilty and Walton s decision to do, than William s actions and representations when he finally learned the information he and Walton were entitled to BEFORE making such decision. There really cannot be stronger testimony by a member of the Bar under his oath as an attorney regarding the the effect any non-disclosure had on Walton's plea, than the multiple Motions and representations by Walton s Court appointed attorney, Mr. Williams, before being accused of ineffective assistance of counsel in these proceedings. Once Walton s Court appointed attorney learned of Matthews and McKnight s potential testimony from which had not ever been disclosed to me either through my client or any one else, he immediately understood the effect of such non-disclosure on his advice to Walton to plea and Walton s decision to plea. He set out to file not one but two Motions attempting to set aside Walton s plea. 12

17 Clearly, Williams, stated in multiple ways and at multiple times he would not have advised his client to plead guilty to the crimes involved if Matthews and McKnight s statements had been disclosed to me or shared with counsel that those witnesses that they pled and interviewed would exculpate this particular defendant at trial. Any finding to the contrary is clearly erroneous and should be reversed. 13

18 LEGAL ARGUMENTS 1. WILLIAMS AS WALTON S ATTORNEY AT ALL TIMES HAD A DUTY OF CANDOR TO THE TRIAL COURT INCLUDING THE MOTIONS AND ARGUMENTS HE FILED OR MADE BEFORE THE TRIAL COURT The Mississippi Rules of Professional Conduct provide that an attorney has a duty to maintain candor to the tribunal even in matters where the attorney is actively representing the client. This duty of candor includes that an attorney shall not knowingly make a false statement of material fact or law to the Court, fail to disclose a material fact to the Court when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client or offer evidence that the lawyer knows to be false and may refuse to offer evidence that the lawyer reasonably believes is false. Miss. R. of Prof. Cond. Rule 3.3. The attorney's duty to the client must be qualified by the attorney's duty of candor to the Court. Walker v. State, 1997 Miss. LEXIS 618 (Miss. Nov. 13, 1997). There is no question that Walton s Court appointed attorney had a duty to maintain candor with the Trial Court when filing Motions and then arguing these Motions before the Court. It is important to consider these principles in light of Walton s Court appointed attorney s filing of pleadings and statements on the record before being accused of ineffective assistance of counsel. 2. WALTON S COURT APPOINTED ATTORNEY S ACTIONS/REPRESENTATIONS BEFORE THE FILING OF THIS PCR ESTABLISHED THAT THE FAILURE TO RECEIVED CRITICAL EVIDENCE EFFECTED WALTON S PLEA Walton was indicted on September 17, 2008 with Corderal McKnight, Michael Magee and Desmond Matthews, Williams entered his appearance at Walton s attorney on October 16, 2008, and Walton pled guilty to all counts of the Indictment on 14

19 November 21, 2008, barely 36 days after Williams entered an appearance. Ultimately, McKnight and Matthews also pled guilty either to an amended charge or the Indictment. After they pled guilty, McKnight and Matthews were interviewed by the State s Investigator on October 29 and 30, Both McKnight and Matthews separately told the investigator, that Walton and Magee were not involved in the crimes and actually identified Andrew Nukie Anderson and Damien Johnson as the other perpetrators. It is now undisputed that this was never 18 provided to Williams as Walton s Court appointed attorney by the State or any one else prior to his plea on November 21, Michael Magee proceeded to trial in May A few days before Magee s trial Williams received through some notes, information there were statements made by one of the codefendants that my client had no involvement in it, that my client was virtually being pressured into the process of entering a guilty plea. Williams immediate reaction to this information was to file a Motion to Set Aside Defendant s Guilty Plea. (See R. E. 9-10; EX J to Petition for PCR). In this Motion, Williams, under his oath as an attorney and with the duty of candor required of an attorney, asserted: 1. That Walton s guilty pleas should be set aside; 2. That the Defendant has recently provided information that calls into question his former guilty plea which would therefore lend it to be set aside. Para. 8; 3. That this information has not been shared with his counsel in the past and would now seriously impact and undermine the integrity of his former guilty plea. Para Williams did testify at the PCR hearing that Matthew s attorney and Matthews told him before Walton s plea that Matthews would not testify for the State and Walton was not involved, but such is all he was told, if such is credible. Williams testimony is irreconcilable with is action/statements before the PCR was filed as related herein. 15

20 (Motion to Set Aside Vol. 1/4: R. 143; R. E. 9-10). This Motion was summarily denied by order entered on May 26, 2008 without hearing just before the Magee trial commenced. (See Exhibit N to Petition for PCR). On May 27, 2008, Magee s trial commenced. Walton testified he was not involved in the crimes consistent with his first statement to the investigator. Additionally, McKnight and Matthews both testified that neither Walton nor Magee were involved and both identified Andrew Nukie Anderson and Damien Johnson as the other perpetrators. The effect of this testimony was Magee was found not guilty!!! William s reaction to learning of McKnight and Matthews testimony is even more telling. After the Magee trial, Williams filed a Renewed Motion to Withdraw Guilty Plea. (See Vol 1/1: R 34-44; R. E Renewed Motion to Withdraw Guilty Plea). This Renewed Motion to Withdraw Guilty Plea was signed by Williams himself and represented to the Court the following: 1. That Walton s guilty pleas should be set aside; 2. That on or about May 20, 2009, Defendant shared his counsel information that differed from his previous guilty plea and would possibly absolve him from any criminal responsibility. Para. 8; 3. That the Defendant has primitive learning ability and mental anxieties, often appears in a daze state all of which the defense 16

21 believes may have impacted his ability to truly rationalize the totality of the criminal matters against the Defendant 19. Para. 11; 4. That the Defendant was sworn and placed under oath and offered testimony that would substantiate a cognizable defense not previously shared with his counsel 20. Para. 13; 5. That there were additional witnesses offered by the State at the trial of Michael McGee which likewise offered sworn testimony that supported this Defendant's version of facts. Para. 14. (Emphasis added). (See Vol 1/1: R Renewed Motion to Withdraw Guilty Plea, R. E ). Not ever means Not ever!! Not only did Williams make the above representations in these two separate Motions 21, Williams then appeared before Court on July 8, 2009 and made even stronger representations to the Court (Tribunal) as follows: MR. WILLIAMS: The notes that I received, your Honor, was the first time that I received those prior to the trial of Michael McGee. I think it was two days prior to that trial. And in these notes there were statements made by one of the codefendants that my client had no involvement in it, that my client was virtually being pressured into the process of entering a guilty plea. During the trial (Magee), the other codefendants as well exculpated my client from any participation in the incident. And on those bases (sic), since it was new evidence that had not ever been disclosed to me either through my client or any one else, I thought it necessary to at least file the motion to withdraw his guilty plea on those bases (sic) (Vol 1/1: R. 56 lns to R. 57 lns 1-10; R.E ). (Emphasis added). 19 When confronted with this particular statement by Williams in the Motion, Williams testified at the August 31, 2015 PCR hearing that this was based upon others observations, not his personal observations. However, this Motion does NOT indicate such observations were based upon others information or even such was based upon information and belief. Such is clearly Williams observations and no one else s. 20 Walton s first statement to detectives was consistent with his testimony at the trial of McGee so Walton s court appointed attorney was, in fact, aware of his defense. 21 Both attempting set aside Walton s guilty plea!! 17

22 Before being accused of being guilty of ineffective assistance of counsel Williams clearly stated on his oath as an attorney: [d]uring the trial (Magee), the other codefendants as well exculpated my client from any participation in the incident. And on those bases (sic), since it was new evidence that had not ever been disclosed to me either through my client or any one else. Not ever means not ever!!! This cannot be reconciled with Williams testimony at the PCR hearing where he claimed Matthews 22 had told him Walton was not involved in the incident. Court: Never means Never!! Additionally, at a hearing on August 5, 2009, Williams represented again to Trial Mr. WILLIAMS: And to even add to that the State in its response stated that all of these matters were related to Counsel. But the statements of Mr. Matthews that would exculpate Mr. Walton the statements of Mr. McKnight that would exculpate Mr. Walton were never shared with Counsel. That s a great issue by itself. (R. E. p. 210, lns 12-17). (Emphasis added). MR. WILLIAMS:.And again, there are some issues relating to Brady that are part and parcel of this matter. In particular, the State has not address the issue of the exculpatory statements that were made by their witnesses, Matthews and McKnight, as relates to Mr. Walton. All they stated was that Mr. Walton would be the sole witness at trial. There was no information shared with counsel that those witnesses that they pled and interviewed would exculpate this particular defendant at trial. And that raises the issue, again, as to Brady. (R. E. p. 215, lns to p. 216, lns 2-7). (Emphasis added). Before being accused of being guilty of ineffective assistance of counsel Williams clearly stated on his oath as an attorney: But the statements of Mr. Matthews that would exculpate Mr. Walton the statements of Mr. McKnight that would exculpate Mr. 22 Or his attorney. 18

23 Walton were never shared with Counsel. Never means never!! This cannot be reconciled with Williams testimony at the PCR hearing where he claimed Matthews or his attorney had told him before the plea that Walton was not involved incident. When the Court denied both of these Motions, Williams directly appealed 23 such denial to this Honorable Court. Williams certainly did not file a Lindsey Brief as required for a non-meritorious appeal. See Lindsey v. State, 939 So. 2d 743 (Miss. 2005). Ultimately, Williams actions and statements speak volumes as to whether Williams himself believed he and Walton had been misled and if they had not been so misled, Walton would not have entered a plea of guilty barely 36 days after Williams entered his appearance in his defense. It is unimaginable Williams would not know that barely three (3) weeks before Walton pled guilty that Matthews and McKnight had given statements to the State Investigator on two very critical points: 1. Walton and Magee were not involved in the crimes and 2. Andrew Nukie Alexander and Damien Johnson were involved with Matthews and McKnight. Either the State misled Williams or Williams did not perform his basic duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case before Walton s plea. Hibbler v. State, 115 So. 3d 832 (Miss. Ct. App. 2012). The Trial Court s findings to the contrary were clearly erroneous and must be reversed. 3. WILLIAMS WAS GUILTY OF INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS REPRESENTATION OF WALTON There were four co-defendants involved in this Indictment. Williams entered his appearance on October 16, 2008 and barely 36 days later Walton pled guilty to all 23 This appeal was improper as such must be done by post conviction relief and not direct appeal. 19

24 counts. During this 36 days, Williams claimed for the first time 24 at the PCR hearing on August 31, 2016 that he talked one co-defendant, Matthews, and his attorney before Walton s plea. Matthews allegedly told him Walton was not involved and his attorney told him Matthews was not going to testify for the State. Of course, such is totally contrary to his multiple representations to the Trial Court in Motions and in hearings thereon. Based upon Williams testimony he did no further investigation, despite Matthews allegedly telling him Walton was not involved. Additionally, Williams made no attempt to determine why McKnight would not be testifying for the State. Williams did not testify, that before Walton s plea, he talked to Magee s attorney 25 or interviewed Magee or talked to McKnight s attorney or interviewed McKnight. He admitted he was unaware that on October 28 and 29, 2008, both Matthews and McKnight had given statements to investigators that neither Magee nor Walton were involved and both had identified the other two perpetrators as Andrew Nukie Anderson and Damien Johnson. He never attempted to talk to or locate Andrew Nukie Anderson and Damien Johnson as he was not aware of such. He could not talk to or look for potential witnesses that he was not aware of. (See Trans Hearing 8/31/15 at p. 24, lns 13-26; R. E. 246, lns 13-26). At a minimum Williams had a duty to interview potential witnesses and to make independent investigation of the facts and circumstances of the case. See Brown v. State, 798 So. 2d 481 (Miss. 2001). According to Williams he received information from Matthews which stated Walton was not involved. How much effort would it have been 24 Despite not ever means not ever and never means never!!! 25 Magee s attorney testified he talked to Williams but Williams did not testify to such only Matthews and his attorney. 20

25 to contact McKnight s attorney to find out if McKnight would state the same thing? Not much. How much effort would it have been to contact Magee s attorney to find out if Magee would state he was not involved? Not much. After all Williams had conflicting recorded statements from his own client and to use Williams own words, was dealing with a person with primitive learning ability and mental anxieties, often appears in a daze state 26. The Mississippi Supreme Court has held that a reasonable probability arises when the ineffectiveness is of such sufficient moment that the integrity of the proceeding or our confidence in the outcome has been shaken." Hannah v. State, 943 So. 2d 20, 24 ( 7) (Miss. 2006) (citing Leatherwood v. State, 539 So. 2d 1378, 1385 (Miss. 1989)). The Supreme Court then considered exculpatory material in hospital reports and other evidence indicating that someone other than Hannah may have committed the crime and observed that "[t]he question is whether the evidence and testimony, if properly investigated and presented, would have changed the outcome had the parties gone forward" with trial. Id. at 25 ( 9). The Court noted that, based on the conflicting evidence of guilt, "it [was] reasonable to conclude that the outcome of a jury trial may have been different." Id. at ( 10). Again, Walton s Court appointed attorney filing of the various Motions after he learned [for the first time ] of the exculpatory statements of Matthews and McKnight and Walton s Court appointed attorney statements to the Court support the finding that Walton s Court appointed attorney himself believed the pleas should be set aside and the case proceed forward with a trial. Additionally, unlike Hannah, above, the trial of the Co-Defendant, Michael Magee proceeded to trial on the same evidence, Matthews and McKnight both testified neither Magee nor Walton were 26 See Renewed Motion para 11. (Vol. 1/4: R ; R. E. 012). 21

26 involved in the crimes and identified the two other perpetrators who were. Magee was found not guilty. Here it is certainly reasonable to conclude that the outcome of a jury trial [for Walton] may [likewise be] different." Id. at ( 10). All of the above should raise serious questions regarding the integrity of the proceeding and shake the confidence in the outcome of Walton s guilty pleas. The Trial Court erred in denial of Walton request for Post Conviction Relief and the Trial Court s finding is clearly erroneous. This Honorable Court should forthwith reverse the Court Order and Opinion of the Court denying post conviction relief to Walton, grant relief, set aside the Sentencing Judgment and remand this case to the Circuit Court for a trial on the merits. CONCLUSION There simply is no issue in this matter that the post conviction relief should have been granted, Walton s guilty pleas and his sentencing judgment should have been set aside, and this Court should promptly reverse the Trial Court and remand this matter for a full trial on the merits. Walton s Court appointed counsel, Williams 27, should not be permitted to impeach or contradict his own previous representations in Motions and on the record before the Trial Court. Such is unconscionable. At the very least such testimony at the August 31, 2015 hearing should be viewed with great skepticism as the credible evidence is what he represented to Trial Court before he was accused of ineffective assistance of counsel. Respectfully submitted, this the 8 th day of June, KENNY WALTON, APPELLANT BY AND THROUGH HIS ATTORNEYS OF RECORD 27 Whom at the time of the PCR hearing worked for the same District Attorney s office who is prosecuting him. 22

27 BOYCE HOLLEMAN, A PROFESSIONAL ASSOCIATION BY /s/ Tim C. Holleman C E R T I F I C A T E I, TIM C. HOLLEMAN, do hereby certify that I have on this date forwarded a true and correct copy of the above and foregoing Brief of the Appellant to the following via United States Mail, postage prepaid: Albert B. Smith, III, Senior Judge Bolivar County Circuit Court Post Office Drawer 478 Cleveland, MS Attorney General Jim Hood MS Attorney General s Office Post Office Box 220 Jackson, MS Brenda F. Mitchell, Esquire District Attorney Bolivar County Post Office Box 848 Cleveland, MS Respectfully submitted, this the 8 th day of June, A. D., ATTORNEY FOR APPELLANT: TIM C. HOLLEMAN (MS BAR #2526) BOYCE HOLLEMAN, A PROFESSIONAL ASSOCIATION rd Ave./Boyce Holleman Blvd. GULFPORT, MISSISSIPPI FAX tim@boyceholleman.com /s/ Tim C. Holleman 23