IN THE SUPREME COURT OF MISSISSIPPI

NO. 07-KA-59203-SCT

JAMES ALBERT KING, HATTIE RAY KING AND JOHNNY WAYNE KING

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 12/10/87

TRIAL JUDGE: HON. GEORGE CARLSON

COURT FROM WHICH APPEALED: TALLACHATACHIE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANTS: PRO SE

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: CHARLES W. MARIS

DISTRICT ATTORNEY: NA

NATURE OF THE CASE: CRIMINAL - POST CONVICTION RELIEF

DISPOSITION: APPLICATION DENIED - 8/15/96

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

SMITH, JUSTICE, FOR THE COURT:

¶1. James Albert King (James) and Johnny Wayne King (Johnny) were indicted in the Circuit Court

of Tallachatchie County. James was convicted of conspiracy, obstruction of justice, and bribery.

Johnny was convicted of conspiracy and bribery. On appeal, this Court, in King v. State, 580 So. 2d

1182 (Miss. 1991), affirmed those convictions. They now apply to this Court, pursuant to the

provisions of Miss. Code Ann. § 99-39-1 to -29 (1992 and supp. 1995), as amended, for permission

to pursue post-conviction relief in the trial court. They claim ineffective assistance of trial and

appellate counsel, violation of Miss. Code Ann. § 47-3-1 (1972), weight and sufficiency of the

evidence and misstatements of the facts in the reported opinion of this Court. This Court finds that

the only issue which warrants discussion is whether the Kings are entitled to a hearing for the limited

purpose of determining whether certain witnesses should have been allowed to testify at trial. A

thorough review of this issue reveals no merit. All other issues raised by the Kings are also clearly

without merit. This Court must deny the requested relief.

FACTS
¶2. Johnny Wayne King was indicted for the sale of a controlled substance by the Grand Jury of

Tallahatchie County. At trial, after the jury was impanelled, Johnny and his father, James Albert King,

decided to "fix" this case by contacting several of the jurors. The contacted jurors reported the

contact by the Kings to the trial court, Hon. George Carlson. Judge Carlson declared a mistrial, and

ordered a complete investigation and search warrant of the Kings concerning the juror contact.

¶3. After the investigation was completed, the Kings were indicted for conspiracy, obstruction of

justice and bribery. The Kings, in a pretrial motion, asked Judge Carlson to recuse himself, but he

refused. The jury returned verdicts of guilty on all but one of the charges. James Albert King,

convicted of conspiracy, obstruction of justice, and bribery, was sentenced as an habitual offender to

fourteen years in prison and fined $6,500.00. Johnny Wayne King, convicted of conspiracy and

bribery, was sentenced as an habitual offender to ten years in prison and fined $6,500.00.

DISCUSSION OF LAW

¶4. The Kings claim that their attorneys advised them that it would be better to have witnesses other

than themselves testify since evidence of their prior convictions would be admissible. No witnesses

were in fact called. The Kings, citing as authority Culberson v. State, 412 So. 2d 1184 (Miss. 1982),

claim that had they known that their attorneys were going to rest their case and not call any

witnesses, they would have testified in their own defense.

¶5. The Kings now claim that their distinguished trial counselors, James D. Franks, James W.

Burgoon, Jr. and J.P. Coleman were ineffective because they should have allowed certain witnesses

to testify who in fact did not testify.

¶6. The defendants rely solely upon Culberson v. State, 412 So. 2d 1184 (Miss. 1982), wherein this

Court granted a petition for writ of error coram nobis and remanded the case because the defendant

claimed that he had been denied the right to testify. In Culberson, the single issue was "whether the

denial stems from the refusal of the court to let a defendant testify . . . or whether the denial stems

from the failure of the accused's counsel to permit him to testify." Id. at 1186.

¶7. Defendants seem to claim they have uttered magical words entitling them to a hearing on this

issue. The defendants have not uttered any magical words. Culberson addresses solely the denial to a

defendant of the right to testify, thus, it is not nearly so broad and sweeping as claimed by the Kings.

¶8. A close examination of this record reflects that the trial court repeatedly emphasized during three

full pages of the transcript the defendant's right to testify. Judge Carlson stated:

And, at the proper time, each one of you will have to make a decision as to whether or not you

wish to exercise your Constitutional Right to come forward and be sworn in and to take the

Witness Stand and give sworn testimony in your defense. . .and I want it clear for the benefit of

the three of you that you have this right to either testify or not testify so that we can clear up

any question that might crop up on down the road regarding whether or not you understood

that you had that right to testify . . . I am sure you'll talk to your lawyers about that, but the

final decision obviously will have to be yours. . . Now, if you should decide not to testify,

again, that will be a free decision that you will be able to make. And, I will take it, if you
should decide not to testify, any of you, that is a free and voluntary decision that you will be

making since I'm explaining to you you have that right to testify or not to testify. Do any of

you have any questions at all about that?

No response.

In other words, ia (sic) any of you should --not testify, then, I don't want you on down the road

to say, "Well, I wanted to testify, but my lawyer kept me off the Stand, or a relative of mine

kept me off the Stand. I'm explaining to you now you have that right and if you feel like

that right's being violated, then, you just let me know before it comes time for you to testify,

and I'll certainly make sure that you have that opportunity if that's the decision you make. I

don't want any problems to arise as far as somebody trying to keep you off the Witness

Stand against your will. Any questions at all about what I've said so far?

(James Albert King) No, sir.

(Johnny Wayne King) No, sir.

I take it then there is a clear understanding now. You understand everything I've said?

(James Albert King) Yes, sir. I appreciate it, Your Honor.

(emphasis added).

¶9. As noted, the record belies the Kings' contention. The excellent affirmative showing within the

record, made at the instance of the trial judge absolutely "slam dunks" any legitimate claim by the

Kings that they did not know of their constitutional right to testify. This is nothing more than a thinly

disguised back door approach by the Kings to "end run" a well documented record by claiming that

had they known that the three witnesses they had present were not going to testify, they themselves

would have elected to testify. Given the knowledge that Judge Carlson had clearly and repeatedly

conveyed to the Kings, when their counsel rested without putting on any witnesses, the Kings could

and should have objected, if in fact their counsel was indeed guilty of such egregious conduct. There

are several methods which could have been utilized by the Kings in accomplishing this feat, all out of

the hearing of the jury. During the trial, by side bar conference, the Kings could have asked to

approach the bench and directly conveyed their complaints to the trial judge. They could have asked

to go to chambers to discuss this sensitive subject matter. When both sides commenced going over

jury instructions, this was the ideal time to tell the trial court that they had been misled by counsel

and they wanted to offer other witnesses, or alternatively, testify themselves. And yet, the Kings

remained silent, letting this perfect opportunity to expose their counsel's supposed egregious

ineffective assistance go by without a word. At that time the mistake, if indeed it was a mistake, was

surely correctable by the trial court. All the Kings had to do was tell the trial court of their dilemma.

As Judge Carlson so apply noted, "You just let me know . . . if you feel like that right's being

violated . . . I'll certainly make sure that you have that opportunity." (emphasis added). Given the

lengthy extent of the trial court's comments on this subject matter, it is absurd to now believe the

Kings have met their Strickland requirements on the face of their documentation. An evidentiary

hearing is not required in such cases. This Court, in Harris v. State, 578 So. 2d 617, 620 (Miss.

1991), stated:
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. (emphasis added).

The Kings' claims are totally contradicted by the record on its face and as such renders their current

documentation a "sham." In Smith v. State, 636 So. 2d 1220, 1224 (Miss. 1994), this Court stated:

In contrast, Smith's current contentions and credibility are certainly suspect. When we compare

his previous sworn testimony during his guilty plea with his current affidavit, the latter is

practically rendered a "sham," thus allowing the summary dismissal of the petition to stand. See

Harris v. State, 578 So. 2d 617, 620 (Miss. 1991). At one time or the other Smith has

obviously committed perjury, which may warrant appropriate actions by a grand jury. See

Sanders v. State, 440 So. 2d 278, 289 (Miss. 1983) (Roy Noble Lee, J., specially concurring).

¶10. We must also take note of the emphasis which trial judges may place upon a defendant's prior

representations under oath during guilty pleas. This Court, in Mowdy v. State, 638 So. 2d 738, 743

(Miss. 1994), stated:

There should be a strong presumption of validity of anyone's statement under oath. However,

we are now faced with one statement or the other not being the truth . . . . "Where the

petitioner's version is belied by previous sworn testimony, for example, as to render his affidavit

a sham we will allow summary judgment to stand." If ever there was a sham, it is clearly within

these allegations through which Mowdy and Scrivner attempt to get this Court to order an

evidentiary hearing to set aside validly imposed sentences based upon what they both now claim

were involuntary pleas.

Mowdy, 638 So. 2d at 743 (citations omitted).

¶11. Judge Carlson's detailed communications to the Kings on this subject, prior to testimony

commencing, and the Kings' responses in return, totally belie their current claims now before this

Court, and as such, render their affidavits and other documentation a sham. We decline to order an

evidentiary hearing to set aside validly imposed sentences based upon these claims.

¶12. This Court must agree with the State. This is nothing more than an attempt by the Kings to have

the Court second-guess trial strategy decisions by competent counsel, made with the Kings apparent

approval when viewing this record as a whole. Decisions regarding which witnesses to call are

peculiarly within the gambit of trial strategy. Alexander v. State, 503 So. 2d 235, 240 (Miss. 1987);

Buckelew v. United States, 575 F. 2d 515, 521 (5th Cir. 1978).

¶13. The Kings have not even come close to meeting the two-prong test announced in Strickland v.

Washington, 466 U.S. 668 (1984), and adopted by this Court in Gilliard v. State, 462 So. 2d 710,

714 (Miss. 1985). Defendants have wholly failed to demonstrate that their attorney's conduct was so

deficient as to compromise their Sixth Amendment right to counsel and that they were prejudiced by

counsel's performance. Id. More importantly, Strickland also mandates that:

[t]he defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694. The Kings' habitual offender status certainly highlights their "unlikely

status as candidates for the witness stand," and gives added credibility to counsel's strategy. We do

not undertake this opportunity to second guess obvious trial strategy, nor is this Court inclined to

extend the Court's holding in Culberson. Nor are we enlightened by the affidavits of the three

supposed ready, willing and able other witnesses. We hold that there is no showing under the second

prong of Strickland that their distinguished counsel's decision not to call witnesses constitutes

deficient performance or that prejudice resulted from that trial strategy decision. There is no merit to

this issue. This Court, therefore, denies the application for leave to file a motion to vacate the King's

convictions.

¶14. APPLICATION FOR LEAVE TO FILE MOTION TO VACATE CONVICTIONS AND

SENTENCES IN LOWER COURT DENIED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN AND ROBERTS, JJ., CONCUR.

McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, J.

MILLS, J., NOT PARTICIPATING.

McRAE, JUSTICE, DISSENTING:

¶15. Although I agree with the majority that most of the issues raised by the Kings are without merit,

an evidentiary hearing should have been granted for the limited purpose of determining whether

certain witnesses should have been allowed to testify at trial. Accordingly, I dissent.

¶16. The Kings claim that their attorneys advised them that it would be better to have witnesses other

than themselves testify since evidence of their prior convictions would be admissible. None of the

attorneys, however, called the witnesses who were present at trial and ready to testify on behalf of

the defendants. In support of their allegations, the Kings have provided their affidavits along with

those of Hattie Ray King, Johnny Wayne's mother and James Albert's wife, and Ricky Grantham.

¶17. Applicants state that had they known that their attorneys were going to rest and not call any

witnesses, they would have testified in their own defense. In Culberson v. State, 412 So. 2d 1184

(Miss. 1982), where this Court granted a petition for writ of error coram nobis and remanded the

cause to the lower court for an evidentiary hearing, we stated:

Section 26 gives an accused the right to testify in his own behalf. The denial of the right of an
accused to testify is a violation of his constitutional right regardless of whether the denial stems

from the refusal of the court to let a defendant testify . . . or whether the denial stems from the

failure of the accused's counsel to permit him to testify.

Culberson, 412 So. 2d at 1186.

¶18. The Kings were advised by the circuit court of their right to testify. Indeed, they do not assert

that the circuit court abridged their rights in any way. Rather, they assert that their attorneys' advice

to them that they not testify coupled with the failure to call the other witnesses the Kings thought

would be testifying on their behalf MAY constitute ineffective assistance of counsel. Affidavits filed

with the motion for post-conviction relief indicate that the Kings anticipated that other witnesses

would be called on their behalf and that they predicated their decisions to accept the attorneys'

recommendations against testifying on the expectation of the other witnesses' testimony. James

Albert King stated that his attorney had told him it would be in his best interest not to testify because

of his prior convictions and that if he did not testify, other witnesses would be called to build his

defense. He further stated that he told his attorney that if the witnesses that had been subpoenaed

were not called to the stand, he wanted to testify. Likewise, Johnny Wayne King stated that he told

his attorney that if the other witnesses were not called, he wanted to testify. Ricky Grantham stated in

his affidavit that he was subpoenaed, but was unable to testify on the Kings' behalf because he was

not called. In her deposition, co-defendant Hattie Ray King wanted to testify on behalf of her

husband and son, but was told that her testimony was irrelevant and would jeopardize her own

chances for acquittal. She further stated that she heard both Johnny Wayne King and James Albert

King advise their attorneys that they wanted to testify, and furthermore, that their attorneys advised

them that they could not.

¶19. From the record, the question of whether the defendants' attorneys prevented them from

testifying remains unanswered. The affidavits raise questions about whether more than trial strategy

was involved. The Kings, therefore, should be afforded the opportunity for an evidentiary hearing on

the limited issue of whether trial counsel was deficient in not allowing the Kings to testify on their

own behalf after not calling the expected witnesses. Accordingly, I dissent.

BANKS, J., JOINS THIS OPINION.