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IN RE: WILLIE ALBERT SMITH

SEPTEMBER 26, 1984

IN RE: WILLIE ALBERT SMITH




ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF ERROR CORAM NOBIS

EN BANC.

HAWKINS, JUSTICE, FOR THE COURT:

Before us is the second petition for writ of error coram nobis of Willie Albert Smith. *fn1 It assigns a new and distinct ground for post-conviction relief, namely: that two eyewitnesses committed perjury when they made in-court identification of Smith as the person who abducted the victim later found murdered. Attached to this petition are the affidavits of these witnesses, Kenneth Thomas and James E. Wells, that they did indeed lie when they identified Smith as the person seen struggling with the victim. If their affidavits are true, they have both committed perjury under Miss. Code Ann. 97-9-59, and subjected themselves to a sentence of at least ten years in the state penitentiary under Miss. Code Ann. 97-9-61. *fn2

 These witnesses' identification of Smith at trial formed an integral part of our opinion affirming his conviction. *fn3

 In his original appeal Smith filed a Supplemental Assignment of Error that the in-court identification was invalid, which we rejected. Page 574. Smith renewed this contention in his first petition for writ of error coram nobis. We again rejected this contention as having been previously considered without merit on direct appeal, 434 So.2d Page 216.

 In York v. State, 413 So.2d 1372 (Miss. 1982), we set out the current holdings of the United States Supreme Court and this court concerning the problems relating to witnesses' identification of the accused. It is pertinent now to make more detailed observations about the trial record in this case, because we find from this record that the in-court identification of

 Smith by these witnesses was perilously close to violating even the lenient guidelines of York.

 On March 15, 1981, between 4:30 and 5 o'clock in the morning, James E. Wells went to Kenneth Thomas's house in Jackson to request Thomas to go with him to get a check cashed. It was a Sunday morning, and shortly after 5:00 (between dark and sunrise), as Wells drove by a Tote-Sum Store on Robinson Road in the City of Jackson, Thomas noticed a Black man struggling with a White woman in the parking lot. Thomas tried to get Wells to stop, but Wells was reluctant to get involved, and drove on.

 After Wells and Thomas had driven by, Sgt. George E. Otis of the Jackson Police Department stopped at the store to use the telephone. While he was there, Wells and Thomas returned around 5:30 o'clock, and reported to him what they had seen. Thomas did most of the talking.

 The black man struggling with the woman was described as having a "medium Afro, medium dark complexion, rather short stature." Page 132.

 The description of the vehicle was more detailed and specific. It was described as a red Pinto, approximately 1970 model, with a cracked or broken grill, some material resembling carpeting on the dashboard, and a decal of some type on the rear. Within an hour Smith was arrested driving a Pinto car of this description.

 Either one or two days after March 15, 1981, Thomas was called to the Jackson Police Station to identify Smith in a line-up as the man he saw struggling with the white woman on the store parking lot. He failed to point Smith out in the line-up, telling the officers he was unable to identify such person. Prior to trial Thomas was asked by representatives of the defendant if he could identify the man in the parking lot, and he said he could not.

 There was a pre-trial suppression hearing on the 7th day of July, 1981, with Smith present. Thomas saw Smith at this suppression hearing.

 Trial began on July 27, 1981. The day before Thomas took the stand as a witness, he was shown five photographs of Black males, one of which was of Smith. Thomas picked Smith's photo. The next day when Thomas took the stand as a witness, he made an in-court identification of Smith.

 Wells testified it was dark when he drove past the Tote-Sum Store, but not so dark that he could not see. After returning to the Tote-Sum Store and reporting what they had observed to Otis, Wells ...


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