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IN RE: ALVIN HILL

NOVEMBER 14, 1984

IN RE: ALVIN HILL




EN BANC

DAN LEE, JUSTICE, FOR THE COURT:

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

Alvin Hill was convicted of capital murder in the Circuit Court of DeSoto County and on November 21, 1980 he was sentenced to death. This Court affirmed Hill's conviction and sentence in Hill v. State, 432 So.2d 427 (Miss. 1983). We denied Hill's petition for rehearing on May 25, 1983 and his petition for certiorari to the United States Supreme Court was denied on November 7, 1983. On February 10, 1984, Hill filed this motion for leave to file petition for writ of error coram nobis. For the reasons stated below, we deny that motion.

 For purposes of orderly discussion, we have divided Hill's arguments into three parts: (1) newly discovered evidence; (2) constitutional issues; and (3) ineffective assistance of counsel.

 I.

 A.

 Hill's first claim is that" Newly discovered evidence reveals that the alleged murder weapon, which was placed in evidence and exhibited to the jury was unquestionably obtained as a result of petitioner's suppressed confession. "Hill claims that there was no independent source for the discovery of the revolver and that the admission of that weapon under such circumstances was a violation of his Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights.

 Hill states that he admitted during intensive interrogation that he committed the robbery and murder in DeSoto County. He claims that he further admitted only to Rick Ward, a DeSoto County investigator, and Bobby Gene Biffle, a DeSoto County Constable, that he returned the murder weapon to Robert Carter, a resident of Memphis, from whom he had borrowed it. That confession was suppressed at trial; however, the gun, which according to a ballistics examination and pathology test was the one used in the shooting of the victim, was admitted as evidence.

 Hill claims that the only source of evidence disclosing the whereabouts of the murder weapon aside from that obtained as a result of the confession, was" Sheriff Monteith's bald assertion that, as a result of interviewing Sammie Hampton, he informed the Memphis Police that the weapon was possessed by Robert Carter. "On affirmance of Hill's conviction,

 this Court noted Monteith's actual testimony as follows:

 When Sheriff Monteith was called as a witness by the state, the record reveals the following testimony relative to the source of his information about the murder weapon:

 QUESTION: Sheriff Monteith, in the course of your investigation, did you have occasion to interview Sammy Hampton?

 ANSWER: I did.

 QUESTION: As a result of those interviews, did you at any time inform officers of the Memphis Police Department where a possible gun could be found?

 ANSWER: I did.

 Hill v. State, 432 So.2d at 431, 432.

 Hill asserts, contra to the trial judge's decision on the issue, that this was not enough to establish an independent source of evidence for admission of the gun. In further addressing this issue on direct appeal, this Court stated:

 On the testimony which was before the circuit judge and the record as made, no one could ever know which of these two hypotheses is correct. Argument from now on till doom's day could never give the answer; from this record we are damned to an eternal suspense.

 Under these circumstances we are not about to fault a beleagured trial judge, nor can we say he abused his discretion in finding that the information about the gun came from an independent source. On the record before him at trial, and in the motion for a new trial, he had a right to believe the testimony of the officers, and we find no reversible error on this record in his having done so.

 432 So.2d at 437.

 Hill now comes before this Court claiming that newly discovered evidence based on statements by Monteith and Hampton ends the" eternal suspense "and" conclusively

 establishes that the firearm was obtained as a direct result of petitioner's suppressed confession. "Exhibit I provided by Hill is Hampton's affidavit which states that Hampton never told Monteith the firearm used in the murder of Robert Lee Watkins could be found in possession of Robert Carter or be found by contacting Carter, that he had no knowledge at that time of the weapon's whereabouts, that he was never personally acquainted with Robert Carter, and that he never suggested to Monteith that he speak to Carter in regard to the murder. Secondly, Hill asserts in paragraph 33 of his petition that" Sheriff Monteith is now willing to testify that he had little or no involvement in the investigation of the DeSoto County hi-jacking because the investigation into the Tunica County hi-jacking was his sole responsibility, he has no recollection of how the murder weapon was found, and in fact, he does not recall whether it was recovered at all. "There is no attached affidavit supporting Hill's assertion.

 The crucial question here is whether what Hill claims is newly discovered evidence actually falls into that category. Guidelines that have been followed by this Court in granting a new trial on newly discovered evidence were set forth in Lang v. State, 230 Miss. 147, 92 So.2d 670 (1957).

 We entertain and sustain the petition under Chapter 250, Laws of 1952, as being a petition for leave to file in a trial court a motion to vacate the judgment and for a new trial on the ground of newly-discovered evidence, and such leave is hereby granted. We recognize that there must be an end to litigation, and a judgment once solemnly entered must not be lightly opened or vacated, and never except for cogent reasons. Such a petition should be confined to the narrowest limits compatible with justice; it will be sustained only if newly-discovered evidence is of such nature that would be practically conclusive that it would cause a different result; it will not be sustained if the petitioner or his attorney knew of the existence of such evidence at the time of the trial, or could have discovered it by the exercise of due diligence; it will not be sustained if the newly-discovered evidence is merely cumulative, or additional to that adduced at trial; it will not be sustained if newly-discovered evidence merely tends to impeach other testimony offered at

 the trial; and it must be filed as soon as reasonably practical after the discovery of the new evidence.

 230 Miss. at 171, 172, 92 So.2d at 675, 676.

 In Entrekin v. State, 242 Miss. 262, 134 So.2d 926 (1961), an application for leave to present to the trial court a motion for a new trial on the ground of newly-discovered evidence was denied. Affidavits from three people were attached to the application asserting facts involving the conviction. This Court stated that with the" exercise of any diligence whatever "the asserted facts would have previously been disclosed. 242 Miss. at 266, 134 So.2d at 927.

 In Johnson v. State, 359 So.2d 1371 (Miss. 1978), this Court affirmed the lower court's denial of a writ of error nobis citing Lang. The applicant wished to establish that Willie James Riley and Raymond Simmons left him at a bus station in Georgia and that he did not return with them to Jackson County, Mississippi. The Court stated the following:

 Although appellant argues that testimony of Simmons was newly-discovered evidence which was unknown to him at the time of trial, and could not have been discovered with diligence, and that a different result could have been brought about by such testimony, the conditions of Lang were not met. Appellant knew that Raymond Simmons and Willie Riley went with him to Columbus, GA, knew that they were living in Moss Point and were available at the time of trial. He testified at trial that Lonnie Johnson left him at the bus station and the testimony of Simmons may be said to be cumulative."

 359 So.2d at 1375.

 On the basis of the above authorities, we hold that the appellant's allegations do not represent new evidence that could not have been discovered in the exercise of due diligence at or before the time of ...


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