IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01182-COA JOHN RAY KIDD APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 07/02/2015 TRIAL JUDGE: HON. ANDREW K. HOW ORTH COURT FROM W HICH APPEALED: UNION COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W I LLIAM C. STENNETT ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 11/08/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ. CARLTON, J., FOR THE COURT: ¶1. John Ray Kid d a p p e a ls the Union County Circuit C ourt’s denial of his m otion f or postconviction r elief (PCR). K idd argues that he is entitled to a vacated conviction and new trial based on the existence of new evidence. Finding no error, we af f irm

. FACTS ¶2. On F e b r u a r y 8 , 1 998, Angela Allen accused Kidd of f orcibly raping and sexually assaulting her. Af

t er a trial held in June 1999, t he jury f ound Kidd guilty of o ne count of sexual battery and two counts of rape. T he t rial c ourt then s entenced K i d d t o s e r v e twenty

- f ive y e ars in t he custody o f the Mississippi D e p artm ent of Corrections ( MDOC) f orsexual b attery and thirty y ears in the custody of the MDOC on each count of rape, with all sentences to be served consecutively

. ¶3. Kidd appeal e d his conviction and sentence, and in April 2001, this C ourt af f irm ed. Kidd v. State , 7 9 3 S o. 2d 675, 677 (¶¶1-2) ( Miss. C t. App. 2001). K idd f iled a PCR m otion
in 2003, asserting t he existence of n ewly d iscovered evidence. Af ter conducting an evidentiary hearing, t he trial court ultim ately d enied Kidd’s PCR m otion, f inding that Kidd
f a i l e d to o btain perm ission f rom the Mississippi Suprem e Court. See Miss. Code Ann. §
99-39-7 ( Rev. 2015). On S eptem ber 10, 2014, t he suprem e court granted K idd leave to f ile this c urrent m otion t o vacate his conviction and f or a new trial based on h is claim of the discovery of new, exonerating evidence not known or reasonably discoverable at trial. 1 ¶4. The record shows that upon f iling his present PCR m otion , K i d d p r o v ided the trial

court with an af

f i davit f r om Dawn P annell w ritten on May 15, 2014, stating th a t o n the evening of February

8, 1998, Pannell was at Dodger’s B ar in Tupelo, M ississippi. Pannell stated that while at the bar that evening, she overheard Angela Allen and Roger Grim es plot

to “ set u p” Kidd f o r rape in a n attem

pt to extort m oney f

rom Kidd. Pannell claim ed that she cautioned Allen, “Don’t d o that.” According to Pannell’s a f f idavit, A llen r esponded that she inten d e d t o “get[ ] that m o n ey ,” and advised Pannell “f or [ her] own good to s tay out of [ Allen’s] business.” Pannell s tated that when she lef t the bar, s he observed Allen and Kidd sitting together. Pannell f urther s tated that y ears later, during the sum m er o f 2005, she saw Allen at W alm art and “told her that [ Kidd] went t o p rison because of [ her] and [ Grim es].”

1 T h e reco r d sh o w s th at th is co n stitu t es K id d ’s sev en th P C R m o tio n . 2Pannell claim ed that Allen adm i tted that Kidd would n ot “pay w hat we wanted” and she also

adm itted that she and Kidd never had sex. Pannell then stated that Allen told her “[ D]on’t

ever m ention this to [ m e] again,” and walked away

. ¶5. O n April 9, 2 015, and June 15, 2015, the trial court held an evidentiary hearin g o n Kidd’s m otion to vacate his conviction a nd s entence and f o r a new trial, 2 which the trial court treated as a PCR m otion. At that hearing, the t rial court hear d t e s t i m o ny f rom Allen (the victim ), as well as f

rom s everal witnesses who did n ot testif y at Kidd’s 1999 trial: Pannell,
W a y ne Ray , Jim m y Putt, and O f f icer Chris Glasson of the New Albany Police Departm ent. At the hearing, t he State argued that Ray and Putt w ere a vailable to testif y at Kidd’s trial in
1999. ¶6. On July 2 , 2015, the trial court entered a n o r d e r d e n y i n g K i d d’s m otion. The trial court stated that Kidd f

iled a PCR m otion claim ing “he is entitled to relief b ased on newly discovered e vidence in the f orm of an af

f i d a v i t f r om Dawn Pannell, w ho claim s to have
f ir s t h a n d k n owledge that Kidd was f alsely accused” of s exual battery and rape. The trial

court observed t hat, although o ther alleged witnesses who did n ot testif y a t Kidd’s 1 999 trial provided testim ony a t the e videntiary heari n g , t h e asserted newly discovered evidence presented by Kidd “ is largely the testim ony of

. . . Pannell,” who “testif ied under oath that [ Kidd] was essentially ‘set up’ by the victim and that the victim ’s claim of being raped was f abricated.” In deny i ng K idd’s request to vacate his c o nviction and s entence and f or a new

2 T h e trial co u rt h eld th e ev id en tiary h earin g af ter th e su p rem e co u r

t’s S e p t e mb er 2 0 1 4 o r d e r g r a n t i n g K id d leav e t o f ile h is m o tio n to v a cate h is co n v ictio n an d f o r a n ew trial. 3trial, t he trial court explained that i t f ound Kidd’s witnesses at t he evidentiary hearing “totally devoid of credibility

and not believable in the least.” ¶7. Kidd now appeals, asserting that the trial court erred in deny ing h is m otion to vacate his c o nviction and f

o r a new trial. Kidd argues that the testim ony of the witnesses presented

at his evidentiary hearing am ounts to n ewly discovered evidence that establishes that he was f alsely accused by

Allen of rape and sexual assault.
STANDARD OF REVIEW ¶8. “The appropriate standard of review f or denial of [ PCR] af

ter an evidentiary

hearing is the clearly erroneous standard.” Davis v. S tate , 980 So. 2d 951, 954 (¶5) (Miss. Ct. App.
2 0 0 7 ) (quoting Johns v. State , 926 So. 2d 188, 194 (¶29) (Miss. 2 006)). Howeve r , w h e n reviewing issues of law, this Court’s proper s tandard o f review is de n ovo. Russell v. State , 73 So. 3d 542, 544 (¶5) ( M iss. Ct. App. 2011). The PCR m ovant has the burden of showing he is entitled to relief by a preponderance of the evidence. W atkins v. State , 170 S o. 3d 582, 585 (¶10) (Miss. Ct. App. 2014). ¶9. M i s s i s s i p p i C o d e A n n o t a t e d s e c t i on 99-39-23(6) (Rev. 2015) d e f i n e s n e w l y discovered evidence as “evidence, not reasonably d iscoverable at the tim e of trial, which is of such nature that it would be p ractically conclusive that, if it had been introduced at trial, it would have caused a dif f erent result in the conviction or s entence.” A m ovant seeking a new trial based on a newly -discovered-evidence claim m ust show: ( 1 ) t he new evidence was discovered af ter the trial; (2) it could not by due diligence have been discovered prior to trial; (3) it is m aterial to the issue and not me r e l y c um

ulative or im

p eaching; and (4) [ it] will probably produce a dif f erent result or verdict in the new trial.

4Van Norman v. State , 114 So. 3d 799, 801 (¶11) (Miss. Ct. App. 2013) (citing Crawford v.

State , 8 67 So. 2d 196, 2 03-04 (¶9) (Miss. 2003)). “Relief m ust be denied i f the m o vant f ails

to m eet any one of these f o ur elem ents.” Id

. ; see also W atkins , 170 So. 3 d at 587-88 (¶20) (In order “[ t]o prevail on a newly -discovered-evidence claim , [ Kidd] had t o s h ow evidence that is both newly

discovered and m aterial to the outcom e of his convictions.”). ¶10. In PCR c ases, w hen reviewing evidentiary hearings, “[ w]e will not set aside [ a trial court’s] f inding unless it is clearly erroneous. P u t otherwise, we will not vacate such a f inding unless, although there i s evidence t o support it, we are on the e ntire evidence lef t with the def i nite and f

i rm conviction that a m i stake has been m ade.” Meeks v
. State , 781 So. 2d 109, 111 (¶5) ( M iss. 2001) (quoting Rochell v
. State , 748 So. 2d 103, 109 (¶20) ( Miss. 1999)). ¶11. Thi s C o u r t w i l l a f f i rm a trial court where it reaches the c o rrect result, even if we disagree with the court’s reasoning f or that result. Ducksworth v. State , 174 So. 3d 323, 324 (¶6) (Miss. Ct. App. 2015).
DISCUSSION ¶12. Kidd argues that the testim ony of Pannell, supported by the t estim ony o f Ray and Putt, supports Kidd’s position that he should b e af f orded a new trial in this c ase based upon newly discovered e v i d e n c e . The record ref lects that the issue bef

o re us i s whether the testim ony of Pannell constitutes newly discovered evidence under controlling law, a nd if so, whether relief is theref

o re warranted. ¶13. A s stated, K idd f iled a PCR m otion in 2003 ass e r t i n g t h e e x i s t e n c e o f n e w l y

5discovered e vidence, which the trial court ultim a t ely denied af t er f inding that Kidd f

ailed to obtain perm ission f

rom the Mississippi S u

prem e C o u r t

. T he suprem e court’s Septem ber 2014 order granting Kidd leave to f ile the present PCR m o tion r eveals that t his c onstitutes Kidd’s seventh PCR m otion. Kidd’s prior m otions are not contained in the record. ¶14. Mississippi Code Annotated section 9 9-39-5(2) (Rev. 2015) p rovides that a m ovant

m ust f ile a PCR m otion “within three

. . . y ears af ter t he tim e in which [ his] direct appeal is ruled upon by the S uprem e Court of Mississippi.” Section 99-39-23(6) b ars petitioners f rom f iling second or successive PCR m otions. Section 9 9-39-23(6) provides a n exception to this rule w hen the petitioner can show the existence of newly discovered evidence, or “evidence,

not rea s o n a b l y discoverable at the t im e of trial, which i s of such nature that it w ould be practically conclusive t hat, if it had been introduced at trial, it would h ave c aused a dif f erent result in the conviction or sentence.” ¶15. Pertinent to o ur r eview, we acknowledge that precedent provides an analy sis to apply
in determ ining w hether evidence indeed c o nstitutes newly d iscovered evidence warranting relief f rom the successive-writ bar as set f orth in section 99-39-23(6). 3 This Court has f urther explained that newly discovered evidence ca n r e f er “to evidence, that is, an exhibit, testim o ny , or som e o the r inf orm ation that could h ave b een o f f ered as evidence in the def endant’s trial b ut w as not of f ered because it was not reasonably d iscoverable at the t im e of the trial.” McCoy v. State , 111 So. 3d 673, 676-77 ( ¶10) (Miss. C t

. App. 2012). As stated,

3 “M iss i s s i p p i C o d e A n n o tated sectio n 9 9 -3 9 -2 3 ( 6 ), in p ertin en t p art, h as an ex cep tio n f

o r n e w ly d isco v ered ev id en ce.” Jo h n so n v
. S ta te , N o . 2 0 1 5 -C P -0 0 2 3 4 -C O A , 2 0 1 6 WL 2 6 3 8 0 7 2 , at * 2 (¶1 0 ) (M iss. C t . A p p . M a y 1 0 , 2 0 1 6 ). 6in order to prevail on his newly -discovered-evidence claim , Kidd m ust show: “(1) the new evidence was discovered af ter the t rial; (2) it could not b y due diligence have been discovered prior to trial; (3) i t i s m a terial to the issue and not m erely c u mu l a t i v e o r im p eaching; and (4) [ it] will probably produce a dif f erent r esult or verdict in the new trial.”
Van Norman , 114 So. 3d a t 801 (¶11). Stated otherwise, “to const i t u t e newly discovered evidence the m ovant m

ust show the evidence: (1) will probably produce a d if f erent result or verdict, (2) has been discovered since trial and could not have been discovered bef ore trial by the exercise of due diligence, (3) is m aterial to t he issue, and (4) is not m erely cum ulative

or im p eaching.” R ussell , 73 So. 3d at 545 (¶9). If Kidd f ails to m eet any one of these f our elem ents, we m

ust deny relief

. Van Norman , 114 So. 3d at 801 (¶11). ¶16. In the present case, during the evidentiary h e a r i n g o n K i dd’s PCR m otion, the trial judge heard testim ony f

rom Allen, as well as other witnesses who did not testif y at Kidd’s
1999 t rial: Pannell, R ay , Putt, and O f f icer Chris Glasson o f t h e New A lbany Police Departm ent. P annell testif i ed regarding the a llegations set f orth i n her a f

f i davit. During the evidentiary hearing, Pannel l s tated that on the evening of February 8, 1998, she overheard Grim es tell Allen: “[ I]f y ou got h im of f s o me w h e r e a nd say he f orced him self on y ou, his daddy would p ay b i g to shut y ou up.” Pannell claim ed that Allen then told her, “I’ll get that

m oney .” Pannell testif

ied that she tried to talk Allen out of doing it, but Allen insisted that she was going t o go through w ith t he plan to accuse K idd of rape a nd then extort m oney f rom his f ather. W hen Pannell lef

t the bar to go hom e , she observed Allen “sitting [ i n] the back of the bar at the table with her arm around . . . Kidd.” Pannell f urther testif

ied that she ran

7into A llen at W alm art y ears later, in the sum m er of 2005. According to P annell’s testim ony ,

Allen a dm itted to her t hat sh e k new Kidd went to j ail af

ter being convicted of raping her.
In c ontrast to Kidd’s def

ense at trial of consensual sex, Pannell claim ed that Allen also told her that she and Kidd never had sex, and that Kidd’s f ather ref used to pay

her of f

. ¶17. During the evidentiary hearing, Pannell adm itted that s he had consum ed a f ew beers

on t h e e v e ning of February 8, 1998. Pannell also adm itted that she was currently in a rehabilitation p rogram f

or substance abuse. W hen asked to describe what Allen l ooks like, Pannell responded, “Are y o u s erious?

. . . As m a ny y ears as it’s been since I’ve seen her, I

m ean s eriously

. I spent f

ive seconds with her at W al-m art[ ,]” ref erring t o the 2005 encounter between her and Allen that Pannell alleged in her af f i davit. ¶18. Allen testif

ied t hat Kidd r aped her on the evening o f F e b r u a r y 8 , 1 9 9 8

. She also testif i ed t hat s he had “never laid

. . . ey es on [ Pannell] bef ore in [ her] lif

e.” Allen denied Pannell’s allegation t hat she engaged in a discussion with Grim es about “sh a k i n g down” Kidd. ¶19. W a y

ne Ray , who t e s t i fi e d a

t K i dd’s 2003 evidentiary hearing, also provided testim ony
at the evidentiary hearing on K idd’s present PCR m otion. R ay s tated that he knew both Allen and Kidd, and he had o b served them talking t o e ach other “10, 12, 15 tim es” at Dodger’s Bar. Like Ray , Jim m y Putt also testif ied f or Kidd at b o t h t h e 2 0 03 evidentiary hearing and the evidentiary hearing at issue. At the evidentiary h earing on the present PCR m otion, Putt stated that he saw Pannell and Allen talking to each other at Dodger’s Bar on the evening of
F e b r uary 8, 1998. Putt testif ied that he was threatened by an investigator nam e d Micke y

8Baker that if he cam e in and testif

ied at Kidd’s trial, Putt would be guaranteed jail tim e. 4 ¶20. D u r i n g c l o s i ng argum ents, the State argued that Pannell lacked credibility , expl a i n i n g : “W e had

. . . Allen in here a nd [ P annell] say s that in passing at a W a l-Mart entrance that she

was able to recognize [ Allen] im m ediately

. Yet in this c o urtroom she couldn’t pick [ Allen]

out and identif

y her f or the Court.” The State also argued that Ray and Putt, f riends of Kidd who testif ied a t the hearing to allegedly corroborate the proposed newly d iscovered evidence of Pannell’s testim ony , were a vailable to testif y at Kidd’s t rial in 1999, and b o t h m en also testif i ed at Kidd’s previous evidentiary hearing i n 2 003. The State claim ed that as a result, “this evidence that they ’re claim ing to be newly discovered doesn’t f it under that standard.” ¶21. The trial court ultim ately denied Kidd’s PCR m otion af ter f inding the testim ony

f rom all of Kidd’s witnesses, including Pannell, “totally devoid of

credibility

and n ot b elievable in the least.” The trial court explained that Kidd’s claim of newly discovered evidence “is largely the testim o ny of

. . . Pannell,” who “testif ied u nder o ath that [ Kidd] was essentially
‘set up’ by the victim and t hat the victim ’s claim of being raped was f ab r i c a t e d

. ” W e recognize that “the trial judge, sitting in a bench trial as the trier of f act, has sole authority
f or determ ining credibility of the witnesses.” Johns , 926 So. 2d at 196 (¶36). ¶22. As acknowledged, the record r e f lects t h a t t h e i s s u e b e f

ore this C ourt is whether Pannell’s af

f idavit and testim ony constitute n ew l y d i s c o vered evidence warranting relief

.

4 A s stated , th e r eco rd ref lects th at P u tt an d R ay a l so t estif ied a t K id d ’s 2 0 0 3 ev id e n t iary h ea r i n g h e ld as a resu lt o f a p rio r P C R m o tio n f iled b y K id d in 2 0 0 3 w h erein K i d d also alleg ed n ew ly d i sco v e red ev id en c e . T h e reco rd ref l ects th at th e trial co u rt d en ied K i d d ’s p rio r 2 0 0 3 P C R m o tio n a f ter realizin g th at K id d f

a iled to o b tain p erm i ssio n f ro m th e su p rem e co u rt to f

ile th e m o tio n . 9See Russell , 73 So. 3 d at 545 ( ¶ 9). In his PCR m otion, Kidd asserts that Pannell’s testim ony

should be considered in context with the other evidence in the case. ¶23. I n r e viewing Kidd’s c laim of newly discovered evidence, we a cknowledge that t h e alleged newly discovered e vidence pertains to im peachin g A l l en’s trial testim ony and asserting a f

inancial m otive. The c ontext o f the e vidence in the record in this case shows that the conviction was n ot based solely on Allen’s testim ony . T he record additionally shows that during the cross-exam ination of Allen at trial, t h e d e f e n s e questioned her credibility and

m otives. ¶24. T h e t r ial t ranscript f urther ref lects t hat Allen’s testim ony was c o rrob o r a t e d w i t h signif icant m edical testim ony . During K idd’s t r ial, the State presented m edical evidence from em ergency -room (ER) personnel, including an E R doctor, s howing that Allen p r e s e n t e d
in the ER with c ontusions and abrasions to her rectal a rea, and her a nus showed obvious signs of traum a. Allen also h a d a bruised and bloody n o s e a n d b ruised neck. An ophthalm o logist who subsequently exam ined A llen also provided testim ony opining that the injury to Allen’s ey es was consistent with slapping o r choking. A dditionally , t he trial record shows t hat Allen presented in the ER with a portion of rope still around o ne of her ankles. Rope f ibers a nd h air strands collected f rom A llen were consistent w ith hair strands a nd f ibers
f ound in Kidd’s truck. A s stated, t he record also shows that Kidd’s counsel cross-exam ined Allen at trial as to her credibility and alleged f i nancial m otives. ¶25. In reviewing Pannell’s te s t i mo n y i n l i g h t of the criteria applicable t o determ ining whether evidenc e constitutes newly discovered evidence, we f i nd that it f

ails to m eet the

1 0criteria necess a r y t o e s t ablish a c laim f or relief

. See Russell , 7 3 So. 3d at 545 (¶9). The transcript f

rom Kidd’s t rial ref

lects that the i s s ues of Allen’s credibility a n d m otives, including the issue of

a f inancial m otive on Allen’s part, were exam i ned by the def ense on

cross-exam ination o f Allen. As a result, we f ind that testim ony f

r om P annell would m erely be cum ulative im

p eachm ent e viden c e . M o reover, Kidd has f ailed to show that Pannell’s testim o ny would “probably produce a dif f erent result or verdict in t he new trial.” Van
Norman , 114 So. 3d at 801 (¶11). A s p rev i o u sly stated , th e P C R m o v a n t p o s s e s s e s th e b u rd en o f sh o w in g th at h e i s en titled to relief b y a p rep o n d eran ce o f t h e ev id en ce. C r a w fo rd , 8 6 7 S o . 2 d at 2 0 2 (¶7 )

. A s estab lish ed b y p reced en t , in order to prevail on his newly -discovered-evidence claim , Kidd m ust s how: “(1) the new e vidence was discovered af ter the trial; (2) it could not by d ue diligence have been discovered prior to t r i a l ; (3) it is

m aterial to the issue and n o t me r e l y cum ulative or im

peaching; and (4) [ it] will probably produce a dif

f erent r esult or verdict in the new trial.” Van N o rman , 114 S o. 3 d at 801 (¶11).
If Kidd f a i ls to m eet any one of t hese f our e l em ents, including proving that the n ew evidence

was m aterial to the issue, we m u st deny relief

. Id

. ¶26. Based o n the f

oregoing, we f

ind no abuse o f d i s c r e t i o n i n t h e t rial court’s order deny ing K idd’s P CR m otion. Accordingly , we af f irm the trial court’s denial of K idd’s PCR

m otion. 5 ¶27. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT DENYING T H E M O T I O N FOR P OSTCONVICTION RELIEF IS A FFIRMED. ALL COS T S O F THIS APPEAL ARE ASSESSED TO THE APPELLANT.

5 S ee O rm o n d v. S ta te , 5 9 9 S o . 2 d 9 5 1 , 9 6 2 ( M i s s . 1 9 9 2 ); Jo h n s o n v. S ta te , 3 9 S o . 3 d 9 6 3 , 9 6 5 -6 6 (¶9 ) (M iss. C t . A p p . 2 0 1 0 ). 1 1LEE, C . J., I RVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES,

WILSON AND GREENLEE, JJ., CONCUR.

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