Opposition Brief — Alan Dale Walker, Petitioner v. Mississippi

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Appendix B to

Respondent’s Brief in Opposition

Post-Conviction Evidentiary Hearing Transcript

IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

STATE OF MISSISSIPPI

CAUSE NO. 25,945

VERSUS

ALAN DALE WALKER

DEFENDANT

TRANSCRIPT OF THE PROCEEDINGS HAD AND DONE IN THE

RECORD OF THE ABOVE STYLED AND NUMBERED CAUSE, BEFORE

THE HONORABLE JOHN C. GARGIULO, CIRCUIT COURT JUDGE OF

THE SECOND CIRCUIT COURT DISTRICT OF THE STATE OF

MISSISSIPPI, ON APRIL 7, 2014.

APPEARANCES:

Present and Representing the State:

HONORABLE MARVIN LUTHER WHITE JR

Office of the Attorney General

PO Box 220

Jackson MS 39205-0220

Present and Representing the Defendant:

HONORABLE DAVID PAUL VOISIN

Attorney at Law

PO Box 13984

Jackson MS 39236-3984

HONORABLE JAMES W. CRAIG

The ~oderick & Solange MacArthur

Justice center

4400 south Carrollton Ave.

New Orleans, LA 70119

R. Michelle Stewart, CCR - official court Reporter

Alan Dale Walker - 2018-TS-01059

TABLE OF CONTENTS

PAGE

(April 7, 2014)

Style, Number and Appearances

Record

Reporter's Certificate

(September 3, 2015)

Style, Number and Appearances

Record

Reporter's Certificate

(October 30, 2015)

Style, Number and Appearances

Motion

Reporter's Certificate

(February 22, 2016)

Style, Number and Appearances

Preliminary Matters

Amanda Frederick:

Direct Examination by Mr. Voisin

Cross-Examination by Mr. White

Examination by the Court

Anita Frederick:

Direct Examination by Mr. Craig

101

Cross-Examination by Mr. White

139

Redirect Examination by Mr. Craig

152

Examination by the Court

156

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Alan Dale Walker - 2018-TS-01059

Nellie Richards:

Direct Examination by Mr. Voisin

160

Cross-Examination by Mr. White

172

Ronald Walker:

Direct Examination by Mr. Craig

179

Cross-Examination by Mr. White

195

Redirect Examination by Mr. Craig

204

Terry Walker:

Direct Examination by Mr. Voisin

205

Cross-Examination by Mr. White

219

Redirect Examination by Mr. Voisin

222

Examination by the Court

223

Further Redirect Examination by Mr. Voisin

228

Recross-Examination by Mr. White

229

Leon Frederick:

Direct Examination by Mr. Craig

230

Cross-Examination by Mr. White

246

Vera Faye Breland:

Direct Examination by Mr. Craig

248

Cross-Examination by Mr. White

259

Examination by the Court

260

Redirect Examination by Mr. Craig

261

Argument

261

Reporter's Certificate

270

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cabieone.net

iii

Alan Dale Walker - 2018-TS-01059

(December 1, 2016)

Style, Number and Appearances

Earl Stegall:

Direct Examination by Mr. Voisin

272

Cross-Examination by Mr. White

286

Redirect Examination by Mr. Voisin

290

Examination by the Court

294

Further Redirect by Mr. Voisin

296

Further Cross-Examination by Mr. White

297

271

Matthew Mendel, Ph.D.:

Direct Examination by Mr. Craig

298

Voir Dire Examination by Mr. White

302

Direct Examination by Mr. Craig

305

Cross-Examination by Mr. White

360

Robert Shaffer, Ph.D.:

Direct Examination by Mr. Voisin

406

Voir Dire Examination by Mr. White

413

Direct Examination by Mr. Voisin

416

Cross-Examination by Mr. White

443

Redirect Examination by Mr. Voisin

472

Reporter's Certificate

482

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Alan Dale Walker - 2018-TS-01059

Exhibit Index

EVD

(February 22, 2016)

D-1

D-2

212

D-3

265

(December 1, 2016 Hearing)

D-1

D-2

310

D-3

310

D-4

410

D-5

419

D-6

278

424

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

360

443

THE COURT: we're on the record cause

Number 25,945, State of Mississippi versus

Alan Dale walker. And I note for the record

that Mr. walker is present in the courtroom

with both of his counselors of record,

Mr. James Craig and Mr. David Voisin. Did I

pronounce that correctly?

MR. VOISIN: Yes, sir, Your Honor.

THE COURT: And the case is set for

status. If the defense could please just

give a short procedural posture before we

begin.

MR. CRAIG: Yes, Your Honor, very simply

this is a case that arises from an event in

1990. Mr. walker was originally tried,

convicted of capital murder, and sentenced to

death. He had appealed both his direct

appeal and his first state post-conviction

petition.

During the pendency of federal habeas

proceedings some new cases emerged from the

united States supreme Court and the

Mississippi supreme court. so Mr. Voisin and

I filed a successive or second petition for

post-conviction relief under those new

rulings.

The Mississippi Supreme court in, I

believe, January of this year entered its

opinion and order remanding the allegation in

R. Michelle Stewart, CCR - Official court Reporter

the second petition for post-conviction

relief to this court for an evidentiary

hearing.

As we appreciate the procedural posture,

what is now to be done is for Mr. Voisin and

myself to file a motion to vacate in this

court setting forth the factual legal grounds

of the petition that will track what we filed

in the Mississippi supreme court. The state

then has an opportunity to file -(BRIEF INTERRUPTION)

THE COURT: sorry to interrupt you. Go

ahead.

MR. CRAIG: Not at all. Thank you. So

as I appreciate the posture we're in now,

Your Honor, what should be done is for us to

set a time for defense to file a motion to

vacate which would contain the factual and

legal bases for the evidentiary hearing, that

the state would be given a number of days to

file a answer or reply, and then at that

point, there may or may not be other

procedural motions to take up.

I would note for the court in this

particular case the witnesses who had been

contacted on the claims in this petition are

almost all outside the State of Mississippi,

and so there will ultimately have to be

process issued or depositions taken.

R. Michelle Stewart, CCR - official court Reporter

so our position is that the court could

enter its order directing us to file the

motion to vacate two weeks from today, that

the state be given 30 days to file a

response, and then if the case be set for a

further status to see when it could be set

for evidentiary hearing, Your Honor.

Mr. Voisin and I also have filed today

an entry of appearance reaffirming that we

are serving as counsel for Mr. walker. That

is under the aegis of the Mississippi office

of Post-Conviction counsel, Your Honor. so

that be will paid by the state appropriated

funds to that agency, not by county funds.

Although, from time to time we may have to

request the court to approve invoices that

will then be sent to the state office for

payment.

THE COURT: All right. What says the

state?

MR. OWEN: Your Honor, it's my

understanding, and I'm standing in

momentarily for Mr. white with the attorney

general's office. I contacted him Friday.

He was unaware of this hearing because I

believe the ball, so to speak, was in the

defense's court like he said.

He's waiting for them to file their PCR

in order for him to properly respond. And he

R. Michelle Stewart, CCR - official court Reporter

is going to be handling that matter for the

attorney general's office, and I agree with

them. He's just waiting for them to file

theirs, and then he's going to respond

appropriately.

THE COURT: How much time do you think

you need to file your PCR?

MR. CRAIG: we'd ask for two weeks, Your

Honor. It's going to be based very largely

on what we've already filed.

THE COURT: I presume no objection on

behalf of the state?

MR. OWEN: NO, Your Honor.

THE COURT: All right. You've got two

weeks to file your PCR, and do we need to

get, for lack of a better word, a scheduling

order?

MR. CRAIG: we have done that in the

past, Your Honor, setting out a time for the

state to respond to the PCR, and then perhaps

setting a deadline if there are any motions

that go to anything beyond the merits of the

case.

THE COURT: Is that something you want

to meet with Mr. white to discuss?

MR. CRAIG: we have no objection to

that, Your Honor. we can present it to the

court through the court's staff attorney.

THE COURT: All right. So at this time

R. Michelle Stewart, CCR - official court Reporter

I'll order that the defense file its

successive PCR within two weeks of today's

date. Is that enough time for you?

MR. CRAIG: Yes, Your Honor.

THE COURT: Within two weeks of today's

date, and then also, as officer of court,

you're to contact sonny white and find out an

agreeable time in which he's to respond?

MR. CRAIG: That's absolutely acceptable

to us, Your Honor.

THE COURT: I won't unilaterally set

that. I'll at least give him a chance to be

heard on it.

MR. CRAIG: Yes, Your Honor.

THE COURT: And then you can propose or

present an agreement with that date and any

other dates that you want commemorated in

that order.

MR. CRAIG: Yes, Your Honor.

THE COURT: with that being said, is

there anything else required on the record on

behalf of the defense?

MR. CRAIG: No, Your Honor.

THE COURT: How about on behalf of the

state?

MR. OWEN: NO, Your Honor.

THE COURT: Okay. That will be the

order of the court.

(END OF PROCEEDINGS)

R. Michelle Stewart, CCR - Official Court Reporter

STATE OF MISSISSIPPI

COUNTY OF HARRISON

CERTIFICATE OF COURT REPORTER

I, R. Michelle Stewart, CCR 1305, Official Court

Reporter for the second circuit court District of the

State of Mississippi, do hereby certify that the

foregoing 6 pages constitute, to the best of my skill

and ability, a true and correct transcript of the

RECORD had on the 7 day of April, 2014, before the

Honorable John c. Gargiulo, circuit court Judge of the

second Circuit court District of the state of

Mississippi, being a regular day in the April Term of

Harrison county circuit court at Gulfport.

This is to further certify that I have this date

filed the original and one copy of said transcript,

along with one CD in PDF language, for inclusion in the

record on appeal, with the clerk of the circuit court

of Harrison county, Mississippi, and have notified the

attorneys of record and the Supreme court of my actions

herein.

I do further certify that my certificate annexed

hereto applies only to the original and certified

transcript and electronic disks.

WITNESS MY SIGNATURE, July 30, 2018.

COURT REPORTER'S FEE: $16.80

R. Michelle Stewart, CCR - official court Reporter

IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

STATE OF MISSISSIPPI

NO. 2018-TS-01059

CAUSE NO. 25,945

VERSUS

ALAN DALE WALKER

DEFENDANT

Transcript of the proceedings had and done in the above

styled and numbered cause before the Honorable Christopher

L. Schmidt, Circuit Court Judge of the Second Circuit Court

District of Mississippi, on September 3, 2015.

APPEARANCES:

Representing the State:

MARVIN WHITE, ESQUIRE

JASON DAVIS, ESQUIRE

Assistant Attorney General

P.O. Box 220

Jackson, Mississippi 39205-0220

Representing the Defendant:

JIM CRAIG, ESQUIRE

DAVID PAUL VOISIN, ESQUIRE

MacArthur Justice Center

4400 S. Carrollton Avenue

New Orleans, Louisiana 70119

Reported By:

Huey L. Bang, CSR #1147, RMR, CRR,

Official Court Reporter

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Record

THE COURT:

On the record in Cause Number

25,945, Harrison County Circuit Court, State of

Mississippi versus Alan Dale walker.

same time, Supreme Court Cause Number

2012-DR-102-SCT, Alan Dale Walker versus State

of Mississippi.

appearance for the record.

MR. CRAIG:

Counsel, please make your

Jim Craig, counsel for

petitioner Alan walker.

MR. VOISIN:

And at the

David Voisin, also counsel for

Mr. Walker.

MR. WHITE:

Marvin White for the attorney

general's office, special assistant attorney

general.

MR. DAVIS:

Jason Davis, also with the

attorney general's office.

THE COURT:

Good morning, everyone.

MR. WHITE:

One preliminary matter I must

bring up right at this time is Mr. Voisin cannot

participate in this case.

appearance in the original post-conviction case,

on 3/27/02 entered an appearance of counsel.

he cannot participate in this case.

involved in the case where counsel was held

ineffective.

MR. CRAIG:

He entered an

He was

Please the court, first, in the

first instance, I don't think that's an

automatic bar.

something the state was going to raise, we would

I think that is -- if that was

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cabieone.net

Record

have appreciated knowing it prior to this point.

Mr. Walker has the right to waive that conflict

under the rule.

THE COURT:

Let me stop you right there.

Mr. Walker is not present at this hearing.

MR. CRAIG:

That's correct.

THE COURT:

Please don't interrupt me.

I understand from correspondence with my

judicial assistant, is that you have an

affidavit or some type of personal waiver you

want to present to the court waiving his

appearance for this hearing?

MR. CRAIG:

We do not have the affidavit

yet, Your Honor, but we will get it to the

court.

me, Jim Craig attorney for the petitioner,

waived his appearance at this hearing.

not a problem.

He has, in personal conversation with

MR. WHITE:

That is

I don't believe we can proceed,

Your Honor.

MR. CRAIG:

That's not correct, Your Honor.

He can waive his appearance, and -THE COURT:

He can waive his appearance,

but can you waive his appearance on his behalf

is what Mr. White, I guess, is suggesting.

MR. WHITE:

You know, if he hasn't waived

it by affidavit or in person, waived his

appearance, I don't think we can proceed.

MR. CRAIG:

I don't know the authority that

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Record

requires that, Your Honor.

mistaken.

MR. WHITE:

Perhaps I'm

This seems to be a critical

stage of the proceeding.

they filed, he has asked to do a dispositive

ruling on part of the claim.

to be here or have affirmatively waived it with

a notice, or affidavit, or something.

THE COURT:

If he -- the motions

Mr. Walker has got

I can't disagree with that, Mr.

Craig.

order for your client to be brought from the

penitentiary here.

called the sheriff off because of the

announcement that you would be supplying -- or

have an affidavit to that effect at the hearing

according to an August 21st, 2015 e-mail from

you to Ms. Ingram, my law clerk.

status of the affidavit?

We had issued, I think, a transport

MR. CRAIG:

At some juncture, I guess we

What's the

We have sent it up to the

penitentiary.

We have not received it back from

Mr. Walker yet.

But that's only because of the

distance and the time, Your Honor.

in New Orleans, and I did not go all the way to

the penitentiary to get it myself.

-- I agree that Mr. Walker needs to waive his

presence.

saying that his presence may not be waived by

counsel, particularly in a hearing where no

evidence is to be taken.

I'm located

I don't know

I do not know the authority for

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Record

THE COURT:

I think that one of the motions

you have is a dispositive motion of summary

judgment on the claims that post-conviction

claim he received ineffective assistance of

counsel at his sentencing phase.

everything is reviewed with heightened scrutiny

on my rulings.

claim against you that he wanted to be here, but

for my direction to the sheriff not to pick him

up, that's caused some heartache and we have to

do this again.

MR. WHITE:

You know,

I wouldn't want him to later

And I'm a little more

concerned, too, because in a prior instance, Mr.

Walker tried to dismiss Mr. Craig as counsel.

So I don't -THE COURT:

Y'all have a lot more history

with this case, of course, than I do.

January 1st.

MR. WHITE:

I came on

That was in federal court.

had to have a hearing on whether or not he

wanted to dismiss him or not, actually.

know, Mr. Walker seems to be changeable about

that.

may be gaming the system.

penalty case, and it is way down the road.

don't think we can proceed without affirmative

notice that he has -- he has waived his

appearance.

So I don't know

MR. CRAIG:

So,

he is not a dummy.

So this is a death

So I

I'm deeply apologetic for that,

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Record

Your Honor.

I feel personally responsible for

having not made sure I had the affidavit in

hand.

to be able to proceed, but if that's the court's

belief, then we adhere to it.

I don't agree that we need the affidavit

THE COURT:

We have gathered for naught.

MR. CRAIG:

I'm very sorry about that.

THE COURT:

Well, is it his, your client's,

insistence not to be present for whatever

reason, doesn't want to come, travel to Harrison

County, or whether there is some personal reason

that he doesn't wish to be physically present in

the courtroom?

just in any of these post-conviction hearings?

MR. CRAIG:

is it just for this hearing or

It is for hearings that don't

involve the taking of testimony.

for the actual evidentiary hearing, he does want

to be present.

having to do with being at Parchman and not

wanting to be transported unless his presence is

necessary.

THE COURT:

For his own --

But it is personal reasons,

Short of -- does the state have

any objection to a properly executed affidavit

by Mr. Walker waiving his right to be present

for this non-evidentiary hearing, will that

suffice for the state?

MR. WHITE:

An affidavit?

THE COURT:

Yes.

MR. WHITE:

Yes.

Will you accept that?

As long as he has sworn

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Record

to something.

But, you know, as it stands right

now, we have nothing.

THE COURT:

Well, I'm not going to proceed.

I think it will be fool hearted at this

juncture, given the nature of the case and its

long history, that without an affidavit or him

present, we're not going to proceed.

Craig, only thing I ask you to do is when you

receive the affidavit, file it with the clerk,

and get with Mr. White and the court and we have

to reschedule.

MR. CRAIG:

And, Mr.

Everybody's got to come back.

I'm terribly sorry, Your Honor.

And we will tend to that immediately when we get

back to the office.

THE COURT:

Insofar as Mr. Voisin's

participation, this kind of hit me, of course,

this morning as it did you, Mr. Craig.

MR. WHITE:

The thing is, I didn't know Mr.

Voisin was involved in the case, really.

mean, he signed on to something, but it didn't

hit me until this morning that he had been with

the office of post-conviction counsel.

that's when, as soon as I could get to a

computer this morning, that's when I checked and

saw that he had entered an appearance of

counsel.

his office was held ineffective.

Which complicates the matter because

THE COURT:

Was it the office or the

individual attorney?

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Record

MR. WHITE:

Well, he was counsel on the

case.

They specifically mention Bob Ryan.

But

if his name is included on the pleadings, which

if memory serves me, his name was on the

pleadings, there is a conflict.

presumably, because they don't speak to that in

the context of a successive petition for

post-conviction relief, presumably Mr. Walker

can waive that, also.

waives any future claim of ineffective

assistance of this post-conviction counsel.

Now,

But if he does that, he

MR. CRAIG:

If I may respond.

THE COURT:

Yes.

MR. CRAIG:

In the first instance, Your

Honor, I think something of this seriousness, we

would, especially if we are reconvening, we

would appreciate it being done by written motion

to which we can file a response.

don't agree with counsel's last statement that

waiving a conflict under Tyler versus Schuler,

those kinds of cases, would necessarily waive

all post-conviction -- all possible ineffective

assistance of counsel remedies.

something we can research and present to the

court.

issue of ineffective assistance of counsel of

post-conviction counsel has already been -- that

issue has already been determined by the

Mississippi Supreme Court in its December 12th,

For example, I

But that's

The -- I would say, Your Honor, that the

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Record

2013 opinion.

They specifically found Mr. Ryan,

the director of the post-conviction office, to

have been ineffective.

hearing for which this matter has been remanded

to Your Honor is a claim of ineffective

assistance against trial counsel.

And the focus of the

So I don't know, in order for there to be a

conflict of interest, there would have to have

been some prior action of Mr. Voisin's that

would create a conflict of interest.

And since

the Supreme Court has already foreclosed that

issue by ruling in our favor,

I don't think

there really is a conflict.

I would also point

out that, and if given an opportunity to write a

counter-motion on this we would, that there is a

considerable body of case law about a party

allowing a purported conflict to take place for

a significant period of time before objecting to

it.

In this case, Mr. Voisin filed, with me,

the original successive petition for

post-conviction relief way back in 2012.

this three years later is the first we're

hearing this objection.

that.

And

And there are cases on

I'm not here to argue it.

THE COURT:

Well, let's

MR. WHITE:

If I may, Rule 22(d) (4), about

counsel have not previously represented the

capital petitioner in the case, either in the

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Record

trial court or the direct appeal, unless the

petitioner and counsel expressly request

continued representation and waive all potential

issues that are foreclosed by continued

representation.

THE COURT:

That's Rule 22(d) (4).

That's very familiar to the

court in the last couple of days.

We had

another hearing with another post-conviction

matter yesterday under Rule 22.

was present.

And the state

MR. CRAIG:

I understand, Your Honor.

THE COURT:

Well, Mr. White, Rule 22 (d) (4)

is what you are pointing the court to?

MR. WHITE:

Yes, sir.

THE COURT:

Did Mr. Voisin represent Mr.

Walker in the direct appeal?

MR. WHITE:

He represented him on the first

post-conviction.

that is true, that post-conviction is there,

this is a second post-conviction and he is

entitled to conflict free effective

post-conviction counsel under Grayson versus

State.

gets decided, then we get back into this circle

again of somebody corning in and saying, well,

they were not effective, raising another

successive.

counsel, because he represented him previously,

and was found to be -- the off ice was found to

But we would, you know, while

So if we have this, and then when this

And if there was conflict of

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Record

be ineffective.

THE COURT:

I think it would be prudent

that this is a preliminary matter we have to

resolve, inasmuch as the state has raised it

and, Mr. Craig, you are objecting to it,

although it's not been pled and memoranda have

not been submitted for the court's

consideration.

file -- I presume, Mr. White, are you going to

file a motion to disqualify him?

MR. WHITE:

How much time do you all need to

I will.

I will file one

tomorrow, as far as that goes, when I get back

to the office.

THE COURT:

So, Mr. Craig, how much time do

you need to -- why don't we say a week, in case

you get back to Jackson and you find termites in

your house or something.

a little time.

4th is tomorrow, so the 11th, Mr. Craig, can you

file a response by the 25th?

weeks?

Something to give you

On or before the 11th -- or the

Which is two

MR. CRAIG:

Yes, Your Honor, we can.

THE COURT:

And maybe within that time you

will receive the affidavit.

And if appearing

from the pleadings or the submissions, I feel

that it would be more appropriate to have Mr.

Walker present since we're dealing now with his

lawyers as opposed to discovery issues, I will

either accept the affidavit or direct that he be

Huey L. Bang, RMR, CRR

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transported for the hearing.

reschedule the hearing after the submissions are

in.

MR. CRAIG:

And we can

Yes, Your Honor.

And I will

inquire of my client whether -- it may be given

this issue, that he would prefer to be present

in terms of the question of whether he does

waive.

conflict, he would be in a position of waiving

the conflict and the court might want to conduct

a colloquy with respect to that.

If the court finds that there is a

THE COURT:

Exactly.

I agree.

So we will

look for everything to be briefed on or before

the 25th of September, and we will get a new

date.

the fall, October, November, December.

hopefully we can have something heard relatively

soon.

I'm back in this courthouse throughout

MR. CRAIG:

Yes, Your Honor.

And

And I have

hearings the second week of October in another

case, but other than that, anytime after that I

would be available.

THE COURT:

All right.

Do y'all want to go

ahead and get a date then now, Mr. White, Mr.

Davis, Mr. Craig?

allocated to my civil docket, but I don't know

what they are in October.

convenient to y'all?

much time to this case and not try to plow

Thursdays are generally

Is a Friday more

I would rather dedicate as

Huey L. Bang, RMR, CRR

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through while waiting on a bunch of judgment

debtor exams following.

October?

MR. VOISIN:

that date, Your Honor.

MR. CRAIG:

How about the 16th of

I believe I have a conflict on

I believe we both have the 29th

through the 30th.

THE COURT:

I have a senior in high school.

So I don't know if we're on the road that

weekend or not.

MR. CRAIG:

The 30th?

Yes, Your Honor, for the

petitioner.

THE COURT:

Mr. White?

MR. WHITE:

Resuming this hearing we're

having today, right?

THE COURT:

Pardon?

MR. WHITE:

That's the resumption of this

hearing?

THE COURT:

Correct.

The hearing scheduled

and we will have to take on the additional

preliminary matter of disqualification.

need to reduce this to another scheduling order?

MR. CRAIG:

We don't have to, Your Honor,

but we don't object to that.

wants to proceed.

THE COURT:

Do we

However the court

I will just enter an order

saying the dates so we're clear the 11th for the

state's motions, and any motions you want to

file, Mr. Craig, and then within two weeks the

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responses thereto.

MR. DAVIS:

Thank you, Your Honor.

And we

do anticipate needing a transport order for the

30th for Mr. Walker.

THE COURT:

We'll prepare one.

We'll be in

recess if there is nothing else.

(Whereupon the proceedings were concluded)

Huey L. Bang, RMR, CRR

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Re orter's Certificate

STATE OF MISSISSIPPI

COUNTY OF HARRISON

I, HUEY L. BANG, CSR No. 1147, Official Court

Reporter for the Second Circuit Court District of the

State of Mississippi, do hereby certify that the

foregoing 14 pages constitute, to the best of my skill

and ability, a true and correct transcript of my

stenographic notes of the Hearings had on the 3rd day of

September, 2015 before the HONORABLE CHRISTOPHER L.

SCHMIDT, Circuit Court Judge of the Second Circuit Court

District of the State of Mississippi, being a regular day

in the September Term of Harrison County Circuit Court at

Gulfport.

This is to further certify that I have this date

filed the original and one copy of said transcript, along

with one CD in PDF language, for inclusion in the record

on appeal, with the Clerk of the Circuit Court of

Harrison County, Mississippi, and have notified the

attorneys of record and the Supreme Court of my actions

herein.

WITNESS MY SIGNATURE on this, the 24th day of

August, 2018.

/~~~~···

HUEY L. BANG, CSR #114l

Official Court Reporter

Court Reporter's Fee:

$36.00

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

STATE OF MISSISSIPPI

NO. 2018-TS-01059

CAUSE NO. 25,945

VERSUS

ALAN DALE WALKER

DEFENDANT

-------------------------------------------------------

Transcript of the proceedings had and done in the above

styled and numbered cause before the Honorable Christopher

L. Schmidt, Circuit Court Judge of the Second Circuit Court

District of Mississippi, on October 30, 2015.

APPEARANCES:

Representing the State:

MARVIN WHITE, ESQUIRE

CAMERON BENTON, ESQUIRE

Assistant Attorney General

P.O. Box 220

Jackson, Mississippi 39205-0220

Representing the Defendant:

JIM CRAIG, ESQUIRE

DAVID PAUL VOISIN, ESQUIRE

MacArthur Justice Center

4400 S. Carrollton Avenue

New Orleans, Louisiana 70119

Reported By:

Huey L. Bang, CSR #1147, RMR, CRR,

Official Court Reporter

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Motion

THE COURT:

This is Alan Dale Walker versus

the State of Mississippi in Supreme Court Cause

Number 2012-DR00102-SCT, trial court Cause

Number 25,945.

make your appearance for the record.

Counsel for Mr. Walker please

MR. CRAIG:

Thank you, Your Honor.

I'm

James Craig from New Orleans, counsel for Mr.

Walker.

MR. VOISIN:

I'm David Voisin of Jackson.

MR. CRAIG:

And may the record reflect that

Mr. Walker is physically present.

THE COURT:

I see him this morning.

for the state?

MR. WHITE:

Marvin White, special assistant

attorney general.

special assistant attorney general.

And

THE COURT:

And then Cameron Benton, also

Good morning.

There are

several motions on the docket this morning which

was continued over from the hearing we had in

August, maybe, September, to allow the

petitioner, Mr. Walker, to be present because he

wasn't at the last hearing.

state made an observation that Mr. Voisin had

previously appeared in a post-conviction

petition which was ruled by the Supreme Court to

be -- he was of counsel or had entered his

appearance and had later left the office of the

indigent appeals, I think it was called.

MR. CRAIG:

At that time, the

State post-conviction.

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THE COURT:

Which was later ruled by the

Supreme Court to be ineffective on behalf of Mr.

Walker at that hearing.

observation that there could be a conflict.

has sense filed a motion to disqualify Mr.

Voisin from appearing in this matter.

the motion and the response.

Mr. White, you want to add beyond what you

filed?

MR. WHITE:

So Mr. White made that

And

I've read

Is there anything,

Other than to say that in his

reply he says he is willing to waive it.

So why

don't we just waive it.

there is a conflict otherwise.

make the argument, well, since the office has

already been found ineffective and remanded for

a hearing here, that whatever the office of

post-conviction counsel did, doesn't matter

anymore.

Mr. Voisin says in his motion that he was the

lead counsel up until two months before the

thing was filed, that that was the actions by

the post-conviction office were ineffective and

we're sticking somebody else, the same person

who has already been found ineffective in the

case, back in the case.

is a still a conflict.

THE COURT:

Because I still think

Once -- they

Well, it does, since the office where

And we think that that

Mr. Craig, have you had an

opportunity to speak with your client regarding

the alleged or potential conflict which may

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arise regarding this issue?

MR. CRAIG:

Yes, Your Honor.

And

obviously, for the record, since Mr. White

addressed a couple points on the merits, we

dispute those points for the reasons set forth

in our written pleadings.

Mr. Walker wants Mr. Voisin to remain on the

case.

respect to waiver, is that the

Mr. Walker is here.

And the issue for us, Your Honor, with

any waiver

that Mr. Walker gives is as to any conflict pre

Mr. Voisin and what was said about Mr. Voisin's

prior office with respect to the filing of the

prior post-conviction petition.

don't think those issues are in the case

anymore, but in any event, in order to move this

case along, Mr. Walker does want Mr. Voisin to

continue in the case with him, and is here.

THE COURT:

We frankly

Mr. Walker, will you please

stand.

face the clerk, and take the oath to tell the

truth.

(Oath administered by the Clerk)

I need you to raise your right hand,

THE COURT:

Mr. Walker, have you had an

opportunity to discuss with Mr. Craig the issues

we're talking about now about the state moving

to disqualify Mr. Voisin from your case?

THE DEFENDANT:

THE COURT:

Yes, sir.

Have you had sufficient time to

speak with him about that?

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THE DEFENDANT:

THE COURT:

Yes, sir.

Have you talked to anyone else

about that issue?

THE DEFENDANT:

THE COURT:

No, just these two.

Have you had time to reflect on

it and make a decision whether or not you want

Mr. Voisin to continue to represent you?

THE DEFENDANT:

THE COURT:

Yes, sir.

What's that decision?

THE DEFENDANT:

I would like David to stay

on my case.

THE COURT:

You understand that it could

create a conflict of interest in the future?

can't read into the future, but someone could

allege in the future that it was a conflict for

Mr. Voisin to represent you based upon the prior

post-conviction petition which was heard at the

Supreme Court.

THE DEFENDANT:

I understand it all.

THE COURT:

You understand that could

happen?

THE DEFENDANT:

THE COURT:

Yes.

You are willing to waive any

future conflict on that?

THE DEFENDANT:

THE COURT:

don't see where there would be a conflict.

Yes.

Does anyone wish to put

anything further on the record about the waiver?

MR. CRAIG:

No, Your Honor.

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THE COURT:

waiver on the record.

MR. CRAIG:

We agree with that, Your Honor.

THE COURT:

Okay.

I believe that's an adequate

So the motion will be

overruled then, based upon the waiver.

Now, that leaves us with the meat of the

matter why we're here, which were the motions

which were filed by Mr. Craig on June the 19th,

and the state's motion for disclosure, which was

filed sometime around there as well, June 19th

as well.

let me just say as a preliminary matter, I'm

looking at these motions against the backdrop of

the very narrow direction from the Supreme Court

that I'm to conduct a hearing to determine

whether or not counsel at the trial level was

ineffective on the sentencing phase only.

Supreme Court gave no further direction or

elaborated how any preliminary matters should be

addressed.

backdrop.

We'll take them up one at a time.

So I'm just traveling against that

So against that, Mr. Craig, I will allow

you to begin.

MR. CRAIG:

Let's hear them one at time.

Yes, Your Honor.

Does the

court have a particular order that the court

pleases?

And

THE COURT:

I have them in my mind and from

my notes in the manner in which you articulated

or itemized them in your cover letter, which is

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the first one.

well.

And you should have that as

The first one is your motion for access.

MR. CRAIG:

Mr. Voisin is going to address

the motion for access.

MR. WHITE:

Thank you.

Your Honor, as the Supreme

Court has fully instructed us, we don't have a

dog in that hunt.

But if it goes and if you rule in our favor, the

Supreme Court has said too bad, so sad, he has a

right to have access.

THE COURT:

So, you know, we can object.

Let me ask this then, Mr.

Voisin, and maybe we should just put all the

cards on the table.

that as I can appreciate from the directive of

the Supreme Court, the matters which were

attached and submitted to the Supreme Court are

the affidavits, the reports, et cetera.

those exhibits form the basis of the Supreme

Court to make a preliminary decision that a

hearing should be had wherein those people can

testify, subject to cross-examination, et

cetera.

that record, we'll call it that record, would be

expanded to include additional witnesses,

additional evaluations, additional information.

If I'm appreciating that wrong or if you have a

position other than that, I would like to hear

it.

we're going to go have this hearing based upon

From what I'm thinking is

All of

But I did not appreciate from that that

But I'm kind of tracking towards thinking

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what is the record now.

Craig?

MR. VOISIN:

Mr. Voisin or Mr.

Yes, Your Honor.

To respond

to that, when we filed our petition with the

Mississippi Supreme Court, we had a burden to

show that the claims were procedurally viable,

and also to make a substantial showing of the

denial of a state or federal right.

end, we attached a number of affidavits,

including a report from Dr. Mendel, who did an

evaluation of Mr. Walker, I believe in 2008.

And the Supreme Court found that we satisfied

that showing.

conducted that review, as it said in prior

cases, it's akin to a -- from a hybrid of a Rule

12 or a rule summary judgment motion to review,

it's looking to see that the claims are

substantial and that there's record support.

But the Supreme Court has never said that you're

strictly confined to the evidence presented.

And to that

But when the Supreme Court

The Supreme Court has said that, you know,

the circuit judge is limited to the issue on

remand, and as long as our evidence applies to

the specific grounds for which there has been a

remand, we could continue to develop the proof.

And the post-conviction statute also allows for

the expansion of the record to include

additional material.

So what we wanted to do here is, first,

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since Dr. Mendel has already seen Mr. Walker

back in 2008, we think he needs to see him one

more time before the hearing.

it's been so long since he's seen him, and also,

since when he saw him back then, he was not able

to have a contact visit and to explore.

In part because

THE COURT:

To do evaluation or testing.

MR. VOISIN:

Correct.

So we think with

respect to Dr. Mendel, this is entirely

encompassed within what we've pled before, and

it would enable him to prepare to give testimony

at the evidentiary hearing.

Dr. Mendel is a psychologist who

specializes in the effects of childhood abuse.

He is not a neuropsychologist, but based on his

review and evaluation of Mr. Walker, Dr. Mendel

recommended additional neuropsychological

testing.

but it's based upon Dr. Mendel's observations

that suggest Mr. Walker may have some

neurological impairment, and he noted evidence

in Mr. Walker's school records, and his early

alcoholism, drug abuse, things that could have

easily had an influence or adverse impact on his

neurological development.

like to do is have Dr. Shaffer come in and do

some neuropsychological testing to screen to see

if Mr. Walker has any of those problems.

then Dr. Mendel could also then incorporate

And that's a different type of expert,

And so what we would

And

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those findings to see if that would enable him

to develop his report further.

of those claims go to whether Mr. Walker

suffered prejudice as a result of trial

counsel's deficient performance.

But I think all

So I think they're both completely

encompassed within what the Mississippi Supreme

Court has asked this court to do.

determine whether Mr. Walker suffered prejudice

And that's to

at the penalty phase due to trial counsel's

performance.

THE COURT:

Let me ask Mr. White, not so

much as it pertains to the instant motion, but

on the overall issue on remand of whether or not

this court should proceed to allow petitioner's

counsel to expand the evidence, expand the

record by way of things such as Mr. Walker being

evaluated by a Dr. Shaffer, I believe.

MR. WHITE:

Shaker, Shaffer, what?

MR. VOISIN:

Shaffer.

THE COURT:

Et cetera.

So I will hear you

on that.

MR. WHITE:

Your Honor, he's been examined

by this Dr. Mendel, and I think it's, you know,

of course discovery in these cases is to the

extent that the trial court allows.

it's concomitant with our motion for disclosure

that we would want everything that they get.

the court grants this, we want --

You know,

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THE COURT:

I guess I'm asking more whether

or not you agree that -- with Mr. Voisin's

argument that, on remand, I have the authority

to open very widely where they -- petitioner's

counsel can go with further evaluations, further

discovery, versus having a hearing limited to

those matters which were pled at the Supreme

Court?

MR. WHITE:

I think clearly the rulings,

especially from that man right there, Judge

Grant, when all this started in a case of

Culberson said that it is strictly limited to

what is contained in the remand.

Now, the court was not real clear or not --

sometimes they are very specific as to what they

say, but -- right now I don't recall what the

exact words were that they used when they

remanded this.

THE COURT:

On this case?

MR. WHITE:

It says circuit court of First

Judicial District of Harrison County shall

conduct A hearing to determine whether Alan Dale

Walker's trial counsel was ineffective in

searching for and presenting mitigating evidence

during the penalty phase of the trial and

whether Walker suffered prejudice from such

deficient performance, if any, sufficient to

undermine the confidence in the outcome.

is only in this area of presenting and searching

So it

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for mitigating evidence.

Now, in this particular case, in our

defense, you know, he was examined prior to

trial.

Mendel, whatever it is, you know, he's already

examined him.

that's got to be compared as to what trial

counsel did prior to.

say, oh, we can go get this, and this, and this.

I think there is a limit to how far it can go.

And whether or not that includes going further

with, you know, you have to look at it in the

light of 25 years ago or whenever this case was.

Was that kind of testimony even available at

that time?

it's limited.

So -- and, of course, Mendelson or

And so what his -- you know,

They're going to go and

And so if these -- I would say that

THE COURT:

To the record presented to the

petition?

MR. WHITE:

Not necessarily to the record.

THE COURT:

Maybe that's a poor choice of

words.

But to say that the matters which were

submitted to the Supreme Court in support of

their petition?

MR. WHITE:

Yes, I would think so.

That

there -- I think we now, as we now know very

clearly from the Supreme Court, the state has

not had a right of discovery until now, under

the Carothers decision that they came down with

and said we don't have in a pre-petition, in

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other words, in his pre-petition, we could not

have gotten any information, we don't have any

way to rebut anything he said other than from

what's in the record.

course, we can get discovery and things like

that.

succinctly tailored to what was raised in the

Mississippi Supreme Court.

wheeling everything.

area of mitigation, it's not before this court.

So now, I mean, of

You know, I think it has to be pretty

THE COURT:

It's not just a free

If it didn't go into that

To that end, if it were

unlimited, I think you could -- any case, you

could go to the ends of the Earth to look for

evidence

MR. WHITE:

Oh, absolutely.

THE COURT:

-- which would be presented to

show that trial counsel didn't diligently look

for mitigating evidence, and argue prejudice as

a result thereof.

MR. WHITE:

And the thing is, it's, you

know, counsel, and of course this is an argument

on the merits, so I don't think I need to get

into that about that counsel is not charged with

knowing everything.

rely on the medical and psychological and

psychiatric personnel that they had at the time.

THE COURT:

That they have a right to

All right.

Mr. Voisin, Mr.

Craig, any reply?

I'm thinking more of the

global issue that the court brought up for you

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than just the limited doctor's evaluation.

MR. VOISIN:

quick points on that.

respect to Dr. Mendel, I think he's already

before the court, so I'm not really -- I don't

know if the court has a concern about him having

another opportunity to see Mr. Walker to prepare

for the hearing.

concern is with Dr. Shaffer and

neuropsychological testing.

THE COURT:

Sure, Your Honor.

A couple of

First, I believe with

As I understand it, the bigger

Who, as I understand, would do

the evaluation as Dr. Mendel said needed to be

done.

MR. VOISIN:

He would do some that Dr.

Mendel could not do because Dr. Mendel does not

have that specialty.

to point out that we did present to the

Mississippi Supreme Court Dr. Mendel's

affidavit, and in Dr. Mendel's affidavit, he

wrote in paragraph four of his affidavit, I

believe, additional psychological testing is

warranted.

school performance and lengthy history of

substance abuse, neuropsychological testing, and

assessment of his intellectual functioning is

also warranted.

additional testing along those lines was

presented, you know, to the Mississippi Supreme

Court.

But one point I would like

I also believe that Mr. Walker's

So that express need for

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Also, Your Honor, I could say from personal

experience, and also just from familiarity with

post-conviction decisions following evidentiary

hearings, that it is very common for petitioners

to present additional evidence that supports the

grounds that were raised.

theory is set by the Mississippi Supreme Court

when it remands, there is an allowance for

additional evidence so long as that evidence

supports the legal theory.

cases that have been decided by the Mississippi

Supreme Court, some granting relief and some

denying relief, where additional testimony was

taken, testimony that went beyond what was

initially presented.

which I believe the Mississippi Supreme Court

cited in its remand order here, at the

post-conviction hearing, Doss presented evidence

that was not in his initial petition.

So although the legal

And I know there are

In the Anthony Doss case,

I believe in the Jeff Davis case where the

Mississippi Supreme Court granted relief -THE COURT:

Was that perhaps because the

trial judge gave that ability to counsel to do

that versus was required by precedent or

statute?

MR. VOISIN:

As far as I'm aware, there was

no issue because the evidence went to the claims

that were pled.

hearing in Willie Russell's case in Sunflower

And I know just from -- I did a

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County, and the evidence we presented went

beyond what was in the initial petition, you

know, had different experts.

uncommon at all, in fact, as long as the

evidence goes to the claims pled, and I think it

goes back to the initial thing.

Court considers that the original submission

before it to be there to decide whether we've

made a prima f acie case.

summary judgment case, once it got past the

summary judgment stage, the parties in a civil

case are not confined to the evidence in their

summary judgment papers.

additional things, as long as they are -- the

evidence goes to the claims in the complaint.

So it's not

The Supreme

But it's like in a

They can include

THE COURT:

Let me hear Mr. White.

MR. WHITE:

The problem with the examples

Mr. Voisin gives us is that those were Atkins

you know, Atkins versus Virginia cases, where

the court specifically remanded for them to be

tested to see whether they have a hearing to

determine whether they were mentally retarded.

That's Willie Russell and the Doss case, both of

those, that was the situation.

us those where no such testing was -- had been

done in a previous time.

basically ordered to find out, and the only way

they could find out was to have them tested and

examined.

And he has given

So yes, they were

So this is a different situation.

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Dr. Mendel has already seen him.

there is any need for him to see him again.

THE COURT:

I don't see

Or to conduct further

evaluations by Dr. Shaffer?

MR. WHITE:

I think that's in the

discretion of the court.

THE COURT:

further argument?

MR. VOISIN:

Let me take that motion -- any

Yeah, Your Honor, just real

Anthony Doss, the Supreme Court granted

quick.

relief on ineffective assistance of counsel

claim, the Atkins claim they denied relief on.

Jeff Davis, Davis versus State, that was an

ineffective assistance of counsel claim.

another case, this Fred Spicer, that was an

ineffective assistance claim where the record

was substantially expanded.

that was appealed by the state after the circuit

court granted relief.

Jackson County case.

THE COURT:

I don't believe

I believe that was a

Let me review those cases and I

will issue an order on that.

Mr. Voisin, that the court grants the motion,

what type of -- because I'm looking calendar

wise for the hearing date, when do you -- would

you think that evaluation and report to be

prepared?

MR. VOISIN:

In the instance,

Your Honor, I would have to

check with Dr. Shaffer and Dr. Mendel, but I

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would guess within 90 days they could make

arrangements to come see him.

THE COURT:

To evaluate?

MR. VOISIN:

Evaluate.

THE COURT:

And prepare a report?

Sufficient time for state to have it and I guess

they would have the right to have a rebuttal

evaluation if they so chose.

MR. WHITE:

That's what I was standing up

for, Your Honor.

We want reserve the right, if

the court does that, to have him examined by our

own experts.

THE COURT:

I understand.

And I'm just

calendar thinking here.

This case is 26 years

old, and it's been remanded since January of

2014, and we're just now having a preliminary

motion hearing.

We'll come back to that.

So let's go to the second motion, which is

for leave of court to take out of state witness

depositions.

MR. CRAIG:

address that.

THE COURT:

Yes, Your Honor, I'm going to

Thank you, Your Honor,

Let me just confirm, this is

just to preserve the testimony, trial testimony

of the witnesses whose affidavits were

submitted?

MR. CRAIG:

Or, I think it's the same point

as with the expert witnesses, if there were

other witnesses, but who were going to testify

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specifically about mitigating evidence that they

could have testified to.

THE COURT:

Have you identified other

people beyond those?

MR. CRAIG:

Yes, Your Honor, there are

other people that could perhaps be selected for

testimony.

other witnesses.

to who to call, that -- I'm just pausing for the

We haven't -- we've interviewed

We haven't made a decision as

court.

THE COURT:

I think you cited to the out of

state witness subpoena statutes for criminal

prosecutions.

They don't apply here, this is a

civil matter.

And they're your witnesses, they

are the criminal defendant witnesses.

White, is there any other way to compel the

appearance of these out of state witnesses?

So Mr.

MR. WHITE:

None that I know of.

THE COURT:

Is the state objecting to

MR. WHITE:

Certainly.

This is just,

again, if we've got how many more?

THE COURT:

Limited to the witnesses who

gave affidavits, how else could he present them

if live testimony -- if they don't voluntarily

appear?

MR. WHITE:

That would have been the same

thing back at trial.

appear, they wouldn't have come to trial.

so how could counsel, our counsel, be held

If they won't voluntarily

And

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ineffective for not compelling them to be there.

They couldn't do it.

MR. CRAIG:

May I respond, Your Honor?

THE COURT:

Sure.

MR. CRAIG:

In the first instance, the

motion really covers two separate points.

really don't think any of the witnesses we would

like to call will fail to voluntarily appear.

We said if necessary, in paragraph five of the

motion, talking about that statute.

that's statute would have been available to

trial counsel.

White just made is not correct.

Of course,

So I think the point that Mr.

THE COURT:

I don't think that applies to

defense witnesses.

MR. CRAIG:

In any event, Your Honor, if I

may pass on that.

The point, I think, is that

we think it would be a matter of convenience for

the court for us to take what we used to call,

when I was first a lawyer, trial depositions,

where both sides could question the witness, a

transcript could be made, that witness then

would not have to attend here, and the hearing

before this court would be abbreviated by at

least that one witness.

Now, witnesses do travel and Mr. Walker's

family, in particular, have been in several

different places during their life and still

are.

So his mother, who is closer to the

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jurisdiction, is still around.

There are other

people who were available at the time, but who

aren't living in Mississippi now.

trying to find a way to ease the burden on those

witnesses, and to have testimony already

prepared which the state would have an

opportunity to examine and know who those people

were in advance.

depositions at the very beginning of the

evidentiary hearing.

them and then add them to the witnesses the

court hears through live testimony.

We're simply

And then present the

And the court would take

MR. WHITE:

May I respond to that?

THE COURT:

Yes.

MR. WHITE:

Your Honor, as the trier of

fact in this case, I want you to see those

people and make your own evaluation of them from

the stand.

sit in a room and talk to somebody where he has

control over the witnesses.

courtroom to testify.

evidentiary hearing is all about.

paper hearing.

I don't want to go to someplace and

THE COURT:

I want them in the

That's what an

This is not a

This is a live hearing.

I will admit that in reviewing

the motion, this is in my mind, this is not a

taking a deposition of a doctor in a medical

malpractice case, or a slip and fall, or

whatever it is.

emotional underlying case that the court needs

This is a highly charged very

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to evaluate the credibility of the witnesses and

judge their demeanor on the stand to give

whatever effect their testimony is to me.

agree with that state here that it's preferred

that the testimony be live.

petitioner has witnesses, family members, those

who voluntarily were to give testimony, I don't

know that it would be judicially efficient or

required that we allow deposition testimony to

take place at everyone's expense, the state's

expense, your expense, when it's preferred that

they appear voluntarily, but they appear they're

going to do that anyway, and present live

testimony.

evaluation of the claim that they appear live.

Now, if there is absolutely some witness

who by age or infirmity cannot travel and must

be -- their testimony must be preserved, I know

that has occurred in the past at the trial court

level that some type of videography takes place.

So that it's better than a cold read of the

record.

instances, if any.

asking you to tell me who you are going to call

right now, but if you want to reurge the motion

as to any particular witness because of

infirmity or that they cannot travel, I'll

reconsider the motion on that.

the motion for leave to take a deposition of out

So I

But if the

I think it adds to the overall

But I would limit it to just those

Can you designate -- I'm not

But right now,

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of state witnesses will be overruled in that

regard.

MR. CRAIG:

Yes, Your Honor, we understand.

THE COURT:

Number three is a motion to

leave to take discovery.

MR. CRAIG:

Yes, Your Honor.

There is a

motion that we filed and a motion that the state

filed.

up at the same time because the truth of the

matter is, I believe, with respect to everything

but one paragraph of the state's motion that

we're basically asking for the same information.

And if I may suggest that we take them

THE COURT:

Exchange of witnesses and --

MR. CRAIG:

We did, Your Honor, and we

grounded it slightly differently.

We grounded

ours in the civil procedure rules through the

post-conviction statute.

The state grounded

theirs through Rule 22.

As Mr. White pointed

out, Rule 22, which is really talking about

pre-petition discovery, has been found not to

apply to the state.

distinction without a difference at this point

because the statute really gives the court the

power to allow discovery, and we don't contest

that.

But it's really -- that's a

In fact, we want discovery, too.

The one paragraph in the state's motion

that does not -- that does not appear in ours

and that which we do object to, is paragraph

seven.

I don't see -- it looks to me that this

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paragraph seven, which is asking for -- I won't

read it, I see the court is looking at it,

parties including but not limited to people

working for the Office of Capital

Post-Conviction Counsel, but it's not limited to

that.

volunteer, or provide evidence, and to the

extent that that's asking for work product, in

other words, my talking to witnesses, Mr.

Voisin, an investigator, that sort of thing, I

just don't see where this is permissible under

the

The people who gather, elicit, obtain,

THE COURT:

Any rules.

MR. CRAIG:

Under any rules.

object to that.

we have asked for and would agree reciprocally,

for the names of witnesses, statements of

witnesses if they exist, and information about

experts, and that we set a time sufficient prior

to whatever hearing date the court designates

for that exchange to happen so both sides can

reasonably prepare for the evidentiary hearing.

We have no problem with that.

see in his motion, has said no less than 30 days

prior to the date set for the evidentiary

hearing.

We do not object, and in fact

THE COURT:

To exchange.

MR. CRAIG:

Yes, sir.

So we do

And Mr. White, I

And that's

acceptable to us as well.

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THE COURT:

Mr. White, any further comment

or comment about the objection of paragraph

seven in your motion?

MR. WHITE:

Other than in the past that we

have, when we've dealt with these, we have these

unnamed people going out and speaking to these

witnesses before, and basically schooling them

on how to respond when we try to interview them

or anything.

That's the only reason I want to

know who all has contact with, who their

investigator is, things like that.

that is not unreasonable to know who the

investigator --

THE COURT:

I think that

To identify the names of those

who may have interviewed the witness, but not to

get into the

MR. WHITE:

The substance of what they

interview -THE COURT:

That would be disclosed, but

the work product, or the impressions, or the

investigator's notes or anything of that nature?

MR. WHITE:

Yeah, I mean, the thing is,

some of these people are known to us and some of

them we don't think are too honest.

THE COURT:

That could be the subject of

cross-examination or things of that nature.

MR. WHITE:

Well, they will never hit the

stand, and we won't know that they are the ones

who -- you know.

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THE COURT:

Mr. Craig, do you object to

disclosing names of investigators or personnel

who were acting on your behalf or co-counsel's

behalf that may have interviewed these

witnesses?

MR. CRAIG:

As a matter of principle I do,

Your Honor.

cases for over 20 years, and I have never been

accused of having an investigator tell a witness

what to say, or that an investigator was less

than honest.

I've been doing these kinds of

THE COURT:

Mr. White, I don't need the

theatrics.

MR. CRAIG:

I mean, in an absence of a

showing of good cause for that, I don't really

think they're entitled to it.

But if the court

I think the court has discretion to order us

to disclose the names of people who interviewed

witnesses, and I don't -- as long as it is not

asking, you know, the work product of those

people because they're extensions of us as the

court knows.

THE COURT:

Yes?

MR. WHITE:

That will be fine.

THE COURT:

That's what I'll order.

MR. CRAIG:

Thank you, Your Honor.

THE COURT:

And we'll be thinking about

another scheduling order as we go through these.

MR. CRAIG:

Yes, sir.

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THE COURT:

Next motion is a motion for

partial summary judgment.

MR. CRAIG:

Yes, sir.

This motion, Your

Honor, is as the court knows, the court has the

authority under the post-conviction statute to

grant whole or part summary judgment in the same

manner as it could in a civil case under Rule

56.

standard.

knows it.

And I'm not going to belabor the Rule 56

We all know it and I know the court

The court also knows that the issue that

has been remanded to the court, ineffective

assistance of counsel, has two basic prongs.

The first one being whether trial counsel

performed deficiently, and the second being

whether the defendant suffered prejudice from

the deficient performance.

partial summary judgment focuses very narrowly

on the deficient performance prong.

At the time that we filed the

So this motion for

post-conviction petition in the Mississippi

Supreme Court, we had attached two affidavits

from lead counsel for the defendant, Mr.

Stegall.

says very forthrightly that he did very little

-- did little, not very little, sorry.

little preparation for the penalty phase prior

to trial because I believed that there was a

high likelihood of getting an acquittal."

And in the two affidavits, Mr. Stegall

"I did

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also said, "I did not interview anyone in Mr.

Walker's family until we were in Vicksburg for

the trial."

paragraph four of Mr. Stegall's 2012 affidavit,

Your Honor, Mr. Stegall says, this is on the

second page, "I would have wanted to develop the

type of information contained in Dr. Mendel's

psychological report.

excellent job of developing and explaining

factors that were important in shaping Mr.

Walker's life."

goes to prejudice, that's not before the court

in this motion.

THE COURT:

That's paragraphs one and two.

I believe he did an

Then he gives a statement that

Isn't Mr. Stegall's second

affidavit -- wasn't that prepared or provided

after Judge Starrett ruled on the habias and

ruled on this very claim, although it was not

properly before the federal court?

MR. CRAIG:

That's correct, Your Honor.

was after Judge Starrett raised the issue of

whether the first affidavit was ambiguous on the

question of when family members might have been

interviewed and whether Mr. Stegall had

considered putting on expert testimony in the

sentencing phase.

we went back to Mr. Stegall to ask him those

questions, and he gave this testimony.

So that's exactly right.

We have attached the other affidavits

simply for the purpose of the fact that those

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lay witnesses confirm Mr. Stegall's statement

that he did not interview them.

Dr. Mendel's affidavit strictly for the purposes

of the fact that Mr. Stegall says I've read it

and this is the kind of report I would have

liked to have had.

that testimony would have made a difference in

the sentencing phase goes to the second prong,

we're not concerned with that in this motion.

And we attached

So, again, whether those

Now, Mr. Stegall did move for a competency

evaluation, but he moved for that evaluation on

July 26th,

August 5th, a week later,

co-counsel, Robin Midcalf, but she was also

appointed on July 26th, 1991, just a week before

trial.

not prepare for the sentencing phase, he did

little to prepare for it, he did not interview

these family members, and then he would have

sought this expert and used this expert if he

had had the opportunity would -- is very highly

relevant.

that one would present under Rule 56, and the

state has not filed anything in opposition to it

that I know of since we filed the motion for

summary judgment.

'91 and, trial was set and began on

'91.

And there was a

So the fact that Mr. Stegall says he did

It is a sworn statement of the type

I'm just going to mention a couple of

Williams versus Taylor we

cases, Your Honor.

cited in our motion at paragraph 50, which is a

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US Supreme Court case as to deficient

performance.

because counsel began preparing for the penalty

phase in Williams against Taylor a week before

trial, presented a couple of witnesses, but the

United States Supreme Court said that that was

deficient performance.

It's on all fours with this case

The point really at the end of the day,

Your Honor, is where there is no response or

rebuttal by state to what Mr. Stegall has

testified to in affidavit, Rule 56 allows this

court to narrow the issues prior to trial.

will focus us at the hearing so we're starting

right away on the question of whether there was

mitigating evidence that could have been

presented and whether in the court's judgment it

undermines confidence in the outcome.

have to be trying both prongs when there's no

issue of material fact.

We don't

The last thing I would like to say is that

under the post-conviction statute, there is a

little wrinkle because the Mississippi Supreme

Court has made clear that because

post-conviction comes after a full trial, the

court is permitted to look at the whole rest of

the record to determine if there are genuine

issues of material fact.

that with respect to this narrow issue, there

are none.

We submit, however,

And that, certainly, it could have

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been incumbent upon the state to have pointed

those out under Rule 56 prior to today, at least

by yesterday, as I appreciate Rule 56, 24 hours

before.

is not required ever to grant summary judgment.

But

This court, though, as the court knows,

THE COURT:

There will be no real

prejudice, as I can appreciate it, if I don't,

so that the full hearing would be developed as

to first prong first, of the Strickland kind of

standard.

MR. CRAIG:

And that's why summary judgment

is rarely appealable, Your Honor.

It is

sometimes appealed in an interlocutory manner.

We would simply suggest that it would -- Rule 56

is an available mechanism to this court.

have a witness who has given two affidavits,

they're very clear.

Williams against Taylor, and this court should

enter partial summary judgment, in our view, and

narrow the issues so we can start right away on

the significant factual issue of prejudice.

There is going to be a lot on that.

think that would be helpful.

It lines up perfectly with

And we

THE COURT:

Mr. White?

MR. WHITE:

We go simply back to what the

Mississippi Supreme Court remanded this case

for.

trial counsel was ineffective in searching for

Was to make a determination of whether

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and presenting.

In other words, make that

determination of whether there was deficient

performance.

had an opportunity to cross-examine Mr. Stegall.

Two affidavits.

in this, as Mr. Craig says or one of them said,

20 something years, I've been in it for 38

years.

matter once that person, again, I want a live

witness, I want to be able to question Mr.

Stegall, what did he do, when did he do it, and

what his involvement was.

that is sufficient -- affidavits are sufficient

to determine this matter.

Supreme Court has said many times, you know, and

has ruled many times, if they can determine an

issue, and they determined some issues in this

case already, if they can determine an issue

themselves, they will.

sent it back for a mere hearing on prejudice.

They did not do that.

hearing to determine whether there was deficient

performance and prejudice.

And we submit that we have never

You know, that's

I've been

Affidavits are rarely conclusive on a

I don't think that

And, of course, the

So if they could have

They sent it back for a

So I submit that granting a motion for

summary judgment in this case would be contrary

to the mandate of the Supreme Court.

further, that as this Carothers case as I said,

there's been no opportunity for discovery on the

part of the state whatsoever at this point.

And also,

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We've had no entitlement to discovery, and in

the Carothers says if the petitioner is able to

demonstrate a substantial showing of denial of a

state and federal right, it is allowed to

proceed to the trial court.

allowed to access the full spectrum of civil

discovery, which it may employ to prepare and

defend the case.

even entitled to talk to Mr. Stegall prior to

this time, although I've known Mr. Stegall for

The state is then

We're not even -- I wasn't

since Junior college.

MR. CRAIG:

May I make a brief response?

THE COURT:

Yes, Mr. Craig.

MR. CRAIG:

Thank you, sir.

Well,

certainly the state did not have an opportunity

for discovery before the post-conviction

petition was filed.

the remand, that's also correct.

our motion to vacate sentence in this court on

April 29th, 2014.

summary judgment, as the court knows, June of

this year, and we interviewed Mr. Stegall.

those points are actually indistinguishable from

any summary judgment situation that a party can

go interview the witness and get a

counter-affidavit if they think the witness has

something more to say.

before.

don't think that's a pertinent point here.

That's correct.

And before

But we filed

And we filed our motion for

And that has been done

But -- so I don't think that's -- I

The

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post-conviction statute specifically provides

summary judgment can be moved for.

cited cases in our motion where, indeed, state

motions for summary judgment were granted even

after a remand.

not command a hearing if summary judgment is

moved for and is otherwise appropriate.

indeed, the treatise that the chapter of the

Mississippi Encyclopedia of Law that counsel

opposite authored points out, which we cited,

points out the summary judgment is available.

And so we

So the remand order itself does

And,

I think the real question is whether in the

court's discretion that summary judgment should

be granted, or whether in the court's discretion

that it should not be.

be because it will narrow the issues for the

evidentiary hearing, and enable the court to get

to the meat of this issue, which is the actual

mitigating evidence and whether that would have

made a difference or not.

real issue before the court.

the court for exercise of its discretion on that

issue.

THE COURT:

We submit that it should

I think that's the

And we submit to

I think that it's incumbent on

me to hear and have developed all issues, both

prongs of the Strickland standard.

point I think the motion for summary judgment as

to partial summary judgment, I'll deny that and

allow you to reserve making that argument,

So at this

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substantive argument, at the conclusion of the

hearing in the form of a judgment as a matter of

law, I guess, directed verdict, on that partial

directed verdict, however the rule plays out.

But allow you to reurge it then.

MR. CRAIG:

Thank you, Your Honor.

THE COURT:

I just out of an abundance of

caution, I want to hear everything.

MR. CRAIG:

Yes, sir, I appreciate that.

That's why we said it was within the court's

discretion.

THE COURT:

The last motion is to preserve

the right to file additional motions?

MR. CRAIG:

Yes, Your Honor.

And the way

that we structured that was to say there was a

pleading deadline.

filed motions, but if there is a showing of good

cause for why it could not have been filed by

that time, and I would also suggest that when

we're doing scheduling, which I think we'll

probably take up imminently, that we set a time

for some kind of prehearing or pretrial

conference at which any kind of issues can be

aired so that the date the court sets for the

hearing is the date that we have the hearing.

THE COURT:

We filed motions, the state

Any objection to that, Mr.

White?

MR. WHITE:

No, Your Honor.

THE COURT:

I'll grant that motion.

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MR. CRAIG:

Thank you, Your Honor.

THE COURT:

Regarding scheduling, we've had

one or two before, but does anybody object to

having telephonic conferences to discuss

administrative scheduling matters?

MR. WHITE:

Prefer it.

THE COURT:

Prefer it.

MR. CRAIG:

No objection.

THE COURT:

That leaves Mr. Walker out of

the earshot of what's going on, but since it's

strictly administrative matters, I don't see any

necessity that he be a party to the

conversations.

MR. CRAIG:

Yes, Your Honor.

And moreover,

Mr. Walker, you know, it can be very difficult

to be transported here back and forth.

was why he didn't want to be transported before.

And no evidence will be taken at a telephonic

conference.

necessary.

And that

So we don't think his presence is

THE COURT:

During this housekeeping

matters, y'all can remain seated during any

responses.

talking about dates until I make a decision on

the first motion about the doctor.

talk about spans of time.

saying 90 days to have an evaluation and get a

report to the state.

MR. VOISIN:

I'm thinking it's premature to start

But we can

You know, you are

Sounds reasonable?

Yes, Your Honor.

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THE COURT:

In the instance I grant the

motion.

MR. VOISIN:

Yes, sir.

THE COURT:

If it's not granted, let's just

talk about maybe two tracks here.

granted, when do you all think we could

reasonably prepare or have the hearing, and I'll

say that the 22nd of February is the date the

court is looking at as the date to conduct the

hearing.

MR. CRAIG:

If it's not

I'm going to look at my phone

for the purposes of looking at my calendar, Your

Honor.

MR. WHITE:

Your Honor, the only thing

about that is if they are going to have him

evaluated and

THE COURT:

No, this is if I deny that

motion.

MR. WHITE:

Oh, okay.

THE COURT:

That's the date I'm looking at.

If I grant it, then we're going to be further

into the spring.

MR. CRAIG:

We we're both available on the

22nd, Your Honor.

the court was looking at us first.

THE COURT:

I'm sorry, I didn't realize

Mr. White, is that date

available for the state?

MR. WHITE:

I'm looking right now, trying

to get to that point.

The only thing I would

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say, though, Your Honor, I'm sure I'm clear that

week, but if you -- even if you don't grant the

motion, since they have already, and we have not

had a right to have this done prior to this,

since Dr. Mendel has already examined him, we

would like our psychologist to examine him,

also, to rebut any kind of statement like that.

THE COURT:

You want to have Mr. Walker

evaluated regardless of whether I sustain their

motion?

MR. WHITE:

I mean, if further -- for

further testing with them, but since they've

already had him examined, I think we have a

right to have him examined by our psychologist

to rebut what Dr. Mendel has already said.

MR. CRAIG:

Please the court, we would

object to that in that the court has set

scheduling deadlines.

has been in the record for some time.

a June 19th deadline for filing motions, and

that would have been a motion for mental

examination under, I believe, Rule 35.

Certainly would have been available.

contours of that is all supposed to be set forth

by motion under Rule 35 and no motion has been

filed.

the court were going to entertain that motion,

there is no way that we would be ready by the

22nd of February.

Dr. Mendel's affidavit

There is

But the

And I certainly agree with Mr. White, if

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THE COURT:

evaluation, no matter who's it is?

Even just with one more

MR. CRAIG:

That would be our view, yes,

THE COURT:

Well, at this point, I think

sir.

conducting further conversation about a

scheduling order or scheduling a hearing is

futile until I rule on your written motion and

your ore tenus motion.

So I will take that

under advisement and get a decision to you

hopefully within week.

trial next week.

conference thereafter.

do you think this hearing, when ultimately it

kicks off, will last, two days, three days.

MR. CRAIG:

I don't think we're in

Then we'll schedule a phone

On the whole, how long

I would say three days if both

issues, given the court's denial on the motion

for summary judgment, I think three days.

don't know if counsel opposite agrees or

disagrees.

THE COURT:

For you to put on your proof?

MR. CRAIG:

I think so, Your Honor.

THE COURT:

Just for scheduling purposes,

trying to dedicate a whole week to this.

MR. CRAIG:

Your Honor, if I may inquire,

could we reserve that week, the week of the

22nd, just in the short term?

court's calendar is probably going to fill up.

THE COURT:

I know the

That is a week that I'm

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designated as what they call a second chair.

I'm not assigned to a courtroom, I have to go

reserve one to have the hearing.

have one in Gulfport, we can go to Biloxi, or

Bay St. Louis, or Wiggins or somewhere to sit.

But I have nothing calendared that week.

why I reserve those weeks for particular cases.

MR. CRAIG:

Thank you, Your Honor.

That's

We will

keep it on our calendar.

THE COURT:

So let's keep that date right

now.

from what we did today?

If we can't

Now, who is going to prepare the orders

MR. CRAIG:

We're happy to do a draft and

submit them to Mr. White for his review, and

then submit them to the court.

week for that?

THE COURT:

Could we have a

That will be fine.

Anything

further we need to take up?

MR. CRAIG:

There is only one matter, Your

Honor, it's entirely housekeeping in the literal

sense of the word.

being held on suicide watch in the custody of

the sheriff.

THE COURT:

I believe that Mr. Walker is

It's my understanding if we are

done before noon, the sheriff is going to

transport him back to Parchman this afternoon.

MR. CRAIG:

That will handle our problem,

Your Honor.

THE DEFENDANT:

That's fine.

In the

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future,

if they can't have the cells cleaned,

because when I go down there the cells are

extremely nasty and I'm sleeping on the floor.

THE COURT:

That's why they had a sheriff's

election this year to see if they could change

that.

THE DEFENDANT:

I mean, if they gave me

something to clean it with, I would clean it.

THE COURT:

We will get you back to where

you need to be in about an hour and a half.

MR. CRAIG:

Thank you, Your Honor.

THE COURT:

Anything else on the record?

MR. CRAIG:

No, Your Honor.

THE COURT:

We'll be in recess:

(Whereupon the proceedings were concluded)

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Re orter's Certificate

STATE OF MISSISSIPPI

COUNTY OF HARRISON

I, HUEY L. BANG, CSR No. 1147, Official Court

Reporter for the Second Circuit Court District of the

State of Mississippi, do hereby certify that the

foregoing 41 pages constitute, to the best of my skill

and ability, a true and correct transcript of my

stenographic notes of the Hearings had on the 30th day of

October, 2015 before the HONORABLE CHRISTOPHER L.

SCHMIDT, Circuit Court Judge of the Second Circuit Court

District of the State of Mississippi, being a regular day

in the October Term of Harrison County Circuit Court at

Gulfport.

This is to further certify that I have this date

filed the original and one copy of said transcript, along

with one CD in PDF language, for inclusion in the record

on appeal, with the Clerk of the Circuit Court of

Harrison County, Mississippi, and have notified the

attorneys of record and the Supreme Court of my actions

herein.

WITNESS MY

on this, the 28th day of

August, 2018.

HUEY L. BANG, CSR #11 ......._

Official Court Reporter

Court Reporter's Fee:

$100.80

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

STATE OF MISSISSIPPI

NO.

2018-TS-01059

CAUSE NO. 25,945

VERSUS

ALAN DALE WALKER

DEFENDANT

Transcript of the proceedings had and done in the above

styled and numbered cause before the Honorable Christopher

L. Schmidt, Circuit Court Judge of the Second Circuit Court

District of Mississippi, on February 22, 2016.

=======================================================

APPEARANCES:

Representing the State:

MARVIN WHITE, ESQUIRE

CAMERON BENTON, ESQUIRE

Assistant Attorney General

P.O. Box 220

Jackson, Mississippi 39205-0220

Representing the Defendant:

JIM CRAIG, ESQUIRE

DAVID PAUL VOISIN, ESQUIRE

MacArthur Justice Center

4400 S. Carrollton Avenue

New Orleans, Louisiana 70119

Reported By:

Huey L. Bang, CSR #1147, RMR, CRR,

Official Court Reporter

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Preliminary Matters

THE COURT:

This is Cause Number 25,945,

State of Mississippi versus Alan Dale Walker on

remand from the Mississippi Supreme Court in

Cause Number 2012-DR-00102-SCT.

remanded in January of 2014 after the

Mississippi Supreme Court, on a second

successive or a successive post-conviction writ

found that there was a need for an evidentiary

hearing to determine whether or not Mr. Walker

received effective assistance of counsel during

the sentencing phase after being convicted of

capital murder, rape, and kidnapping in August

of 1991, and received the death penalty and 65

years.

This matter was

Counsel for the state please make your

appearance for the record.

MR. WHITE:

Marvin White special assistant

attorney general for the state.

MS. BENTON:

I'm Cameron Benton, Your

Honor, also special assistant attorney general.

THE COURT:

And on behalf of the petitioner

defendant?

MR. CRAIG:

Yes, Your Honor, I'm Jim Craig.

I'm one of the lawyers for Mr. Walker.

MR. VOISIN:

David Voisin, V-0-I-S-I-N,

also representing Mr. Walker.

THE COURT:

Good morning, counsel.

Before

we begin the evidentiary hearing, is there any

housekeeping matters we need to take up before

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we take anything else up?

of the interlocutory appeal and the order, the

motion which was granted by the Supreme Court

granting Dr. Shaffer access to your client.

have not yet received an order from counsel in

that regard.

Do you have one with you today?

MR. VOISIN:

proposed order.

White.

Ms. Ingram.

There was the matter

Yes, Your Honor, we brought a

We've given a copy to Mr.

I can hand a copy to the Court, or to

THE COURT:

Mr. Craig, Mr. Voisin, looking

through the court file there were four subpoenas

issued for witnesses today.

during this first phase, we'll call it the

evidentiary hearing, witnesses beyond those four

people?

MR. CRAIG:

Do you anticipate

Yes, Your Honor, we believe we

will have six witnesses today.

seven.

witnesses, Your Honor, that we will be able to

complete in one day.

position to promise that, but that's our belief.

We may have

We do think, because they're fact

THE COURT:

Obviously, I'm not in a

And then we will follow at a

date which we'll look at later, at the

conclusion of these hearings today or tomorrow,

when we can relatively look at a new date for

the second phase or the second part of this

hearing.

MR. CRAIG:

Yes, Your Honor, we're prepared

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with our calendars for that.

THE COURT:

And so we are all on the same

page here, the mandate from the Supreme Court is

two-fold.

determine whether or not counsel was ineffective

in searching for and presenting mitigating

evidence.

defendant suffered prejudice from such deficient

performance, if any, sufficient to undermine the

confidence of the outcome actually at

sentencing.

the mandate?

One is an inquiry by the Court to

And the second part, whether the

Everyone agrees that's the scope of

MR. WHITE:

Yes, Your Honor.

MR. CRAIG:

Yes, Your Honor.

THE COURT:

And since this is a PCR

hearing, the burden of proof by the petitioner

is by a preponderance of the evidence.

MR. CRAIG:

Yes, Your Honor.

THE COURT:

And what's the standard on

review of my decision?

MR. CRAIG:

Factual findings, Your Honor, I

believe it's manifest error or clearly erroneous

factual findings on the application of the

Strickland standard, which is the standard Your

Honor referenced.

question, and so the Court looks at it as a

mixed question of law.

THE COURT:

It's, I believe, a mixed

So the heightened scrutiny does

not apply at this hearing as it would apply at

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trial.

Just going through my notes here.

you all have any exhibits you want to premark?

MR. VOISIN:

Honor, for today.

THE COURT:

We have one exhibit, Your

Has Mr. White seen it on behalf

of the state?

MR. VOISIN:

Yes, it's the map.

MR. WHITE:

I was just shown this this

morning.

timely.

It wasn't furnished in discovery

THE COURT:

I don't even know what it is.

MR. WHITE:

We will get to that when they

try to offer it.

MR. VOISIN:

Judge, I have another copy if

you would like.

(Defense Exhibit 1 marked for identification)

THE COURT:

We'll reserve talking about it

until we get there.

analysis, or maybe it could be considered both

parts, the testimony of the witnesses that you

present now, that petitioner's argument should

have been presented in 1991, or could have been

presented, what is the position of the parties

as to the application of the rules of evidence

to their testimony today versus what

application of the rules of evidence in 1991?

Considering that I'm the trier of fact here and

I can consider what I think is relevant and

whatnot, but just for the record,

Since the first part of the

to the

I would like

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to hear from the petitioner and the state as to

generally, sentencing hearings the rules are

somewhat relaxed.

me what your position is, Mr. Voisin.

MR. VOISIN:

But maybe you can just tell

Yes, Your Honor.

Our position

is that this should be treated as though it were

a sentencing hearing, what should have or could

have been presented.

Supreme Court has held that in a couple of cases

that the rules of evidence are not as strictly

applied as they are in an ordinary trial, for

example, rules about hearsay don't apply.

there are a couple of cases that the Mississippi

Supreme Court has held that with, including

Randall versus State, and I believe it was

Wilson versus State.

THE COURT:

open.

admissibility.

And the Mississippi

And

To be sure, it's not a wide

There are some parameters of

MR. VOISIN:

There are, but both the

Mississippi Supreme Court and the United States

Supreme Court have held that there's a very low

threshold to establish relevance, and it's very

broad.

or background can be admissible.

been viewed very broadly so that it allows a

wide range of information about a defendant's

background, family history, and so forth.

Anything about the defendant's character

THE COURT:

And it's all

I'm not necessarily asking or

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Preliminary Matters

thinking in terms of that not being admissible,

but the mechanism by which it -- is it admitted

by hearsay within hearsay, by speculation, by

affidavit, I mean, there has to be some

constraints upon which that evidence can be

admitted into the record, do you agree?

MR. VOISIN:

I'm sure there are.

THE COURT:

Maybe I'm getting too far

afield without even having heard the testimony

yet, because we may not get there.

trying to reconcile in my mind right now, I'm

going to be sitting as a fact finder and issuing

an opinion, but at the same time, I have to look

at it from the perspective of what that juror

might have heard in 1991.

MR. VOISIN:

Yes, Your Honor.

difficult to give a global answer.

should take it --

But I'm just

I guess it's

Maybe we

THE COURT:

As it arises.

MR. VOISIN:

As it arises.

THE COURT:

Mr. White?

MR. WHITE:

Well, I disagree with that, of

course.

The Mississippi Supreme Court has

clearly held on several instances that hearsay

is not admissible.

capital defendant's upbringing in mitigation can

properly be objected under Mississippi Rules of

Evidence 602, as Jordan versus State, which came

out of this district, by the way.

Hearsay evidence regarding a

And the

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defendant is not entitled to call family members

to testify to the impact of the death sentence.

The rules of evidence apply as far as hearsay

goes.

Now, he said United States Supreme Court

has relaxed that.

cite any cases, that he is talking about a case

called Green versus Georgia, which the

Mississippi Supreme Court has held in three

cases does not say that.

versus State, Ballenger versus State, and Connor

Versus State.

hearsay evidence is ruled inadmissible the

offering party must make a proffer what that

witness said in order to preserve any point for

appeal.

I presume, since he didn't

And that is Turner

And it says in Turner, it says if

So the rules of evidence apply.

And, you

know, I don't even know that they are relaxed in

that regard because I know there is even a case

that, you know, one of the rules I think says

something about them being -- not applying to a

sentencing hearing.

Mississippi Supreme Court has held that doesn't

apply in capital sentencing.

especially the hearsay rule, because we

anticipate hearing that objection coming up many

times today.

THE COURT:

The Supreme Court,

The rules,

I was going to say, you make

sure, if you find something to be objectionable,

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make your objection contemporaneous with the

question, and --

MR. WHITE:

Sure.

MR. VOISIN:

Your Honor, I do have the

specific case citation if the Court would like.

In Randall versus State, 806 So. 2d 185, at

Paragraph 131, the Court noted as the state

argues, Rules 101 and llOl(b) (3)

rules of evidence do not apply to sentencing

hearings.

Randall made is without merit.

state's position that the Court accepted in

Randall versus State.

21 So. 3rd 572, at Paragraph 42, the Court

reaffirmed that holding from Randall and wrote

in Randall versus State, this court succinctly

stated that Rules 101 and llOl(b) (3) state that

the rules of evidence do not apply to sentencing

hearings.

state that the

Thus, you know, the assignment that

So that was the

In Wilson versus State,

So we've got two decisions from the

Mississippi Supreme Court accepting the state's

position that the rules of evidence do not

apply.

Dr. Mendel, who is going to be observing the

witnesses.

but this will offer him an opportunity to see

the live testimony and the cross-examination.

And he is doing just what the state's expert

over here is doing.

Additionally, we have in the courtroom,

He has reviewed their affidavits,

And Dr. Mendel can rely on

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Preliminary Matters

a wide range of statements that are necessary

for him to reach his expert conclusions, even if

they would otherwise be inadmissible.

So because the Mississippi Supreme Court

has found that the hearsay rule does not apply,

because it's going to be necessary and important

as a basis for our expert opinion, we think that

the witnesses should be allowed to give

testimony even if it might be hearsay.

MR. WHITE:

As far as his argument about

Dr. Mendel or Mendel or whatever his name is, he

can -- if he can rely on hearsay, which he's

evidently done in his

furnished us, he -- you know, they can have him

talk to these witnesses outside this courtroom.

What we hear today from this stand is supposed

to be what would have -- the jury would have

heard, and the Jury would not have heard what

Dr. Mendel can rely on or anything like that as

far as hearsay and stuff like that.

submit that what they hear from there and that

the rules of evidence do apply, if he has a

conflict, we have a conflict of the thing

because these cases that I have here all say the

rules of evidence apply.

book.

THE COURT:

what they've already

But what we

And these are from the

I don't know what the book is,

but, Mr. White, make your objection timely and I

will decide whether or not to allow it into the

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record, but even if -- if there is something

that may be objectionable and may have been

the objection may have been sustained as to the

-- what a jury would have heard, I think the law

recognizes the trier of fact, if it's the Court,

can wade through those matters and exclude from

its consideration those things which are

otherwise inadmissible.

I don't want to exclude anybody from making

a record, but I will tell you that I will form

my opinion based upon those things that are only

admissible as if it were in front of a jury.

MR. WHITE:

May I ask this one thing

because we anticipate quite few of those

objections, do I have to be like a Jack In The

Box?

THE COURT:

You may remain seated.

MR. WHITE:

All right.

THE COURT:

Mr. Craig or Mr. Voisin, do you

have your witnesses in the courtroom?

MR. VOISIN:

Thank you.

They are not in the courtroom.

They are in a witness room down the hall.

THE COURT:

Why don't you bring them all

in, we don't have a clerk, so I would like to

swear them all in at one time.

MR. WHITE:

And then I would invoke the

THE COURT:

And then the rule will be

rule.

invoked.

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Preliminary Matters

MR. VOISIN:

going to happen.

THE COURT:

I will let them know what's

Otherwise, are y'all ready for

testimony?

MR. CRAIG:

Yes, Your Honor.

MR. WHITE:

We have six witnesses today,

and how many more?

MR. CRAIG:

I think we actually have more

than six people here today, but I think six is

what we're calling and then we'll stop at this

phase of the testimony.

duplicative, so I don't see a reason for us to

call more than one on different topics, Your

Honor.

MR. WHITE:

Some of them are

How long do we anticipate this

going?

MR. CRAIG:

this phase today.

I think we will be done with

How long, I don't know.

MR. WHITE:

What phase today?

THE COURT:

When I stated phase, I mean our

phone conference two or three weeks ago, we

decided to split the hearing up.

MR. WHITE:

Right.

I understand that.

THE COURT:

These lay witnesses will be

testifying today and/or tomorrow.

And then

after we have the report from Dr. Schaeffer and

if you have an opportunity to have a rebuttal

report prepared, then we will look at a calendar

for those witnesses and any other, Mr. Stegall,

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Preliminarv Matters

whoever else was supposed to have testified.

MR. WHITE:

I understand that, Your Honor.

What I'm asking, we've made reservations, not

knowing how long this was going to take, for

tonight and tomorrow night.

tomorrow night, that's what I need to know.

If we need to stay

THE COURT:

I don't think so.

MR. WHITE:

We will cancel those.

MR. CRAIG:

You can cancel them, I believe.

We will -- I can't predict your

cross-examination, obviously, but the -- but in

terms of what we're prepared to do, we have

every reason to think we will be done at the end

of the court day today with all of the lay

witnesses, excluding the attorneys who

participated in the trial, and the expert

witnesses from either side, Judge.

THE COURT:

All right.

MR. WHITE:

So no witnesses tomorrow?

MR. CRAIG:

If we get through these six

today, that's correct.

MR. WHITE:

Okay.

MR. CRAIG:

Judge, the witnesses are going

through the screening process to get into the

courtroom, so they're on their way.

MR. VOISIN:

Two of our witnesses went out

for a smoke break, but those weren't going to be

witnesses we intended to call in the morning.

THE COURT:

The clerk is stretched thin, so

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many dockets going, so I thought it would be

quicker to -- I will administer the oath to

everyone at one time.

referencing any of the exhibits that was part of

the PCR at the Supreme Court?

MR. CRAIG:

Will you all be

If we do, Your Honor, we have

them separately designated on our exhibit list

for this hearing, but I'm not sure we will even

be using any of those today.

THE COURT:

Line them up to your left, Mr.

Craig.

MR. VOISIN:

One of our witnesses --

THE COURT:

We can take it up.

would please stand.

MR. VOISIN:

If you all

One of our witnesses, since

she is local, we had told her we would call her

this afternoon.

THE COURT:

That's fine.

If you would

introduce yourself by name, starting on the

left.

AMANDA FREDERICK:

Amanda Frederick.

NELLIE RICHARDS:

Nellie Richards.

ANITA FREDERICK:

Anita Frederick.

RONALD WALKER:

THE COURT:

Ronald Walker.

I need each of you to raise

your right hand and take the oath to tell the

truth.

(Oath administered by the Court)

THE COURT:

For the record, all have

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Preliminary Matters

affirmed their oath.

MR. WHITE:

I would like you to instruct

these witnesses not to discuss, because I see

that they have people that they've come in with,

not to discuss anything that went on or the

people out here too not to discuss anything that

went on in this courtroom with these witnesses,

will talk together about what they've testified

to.

THE COURT:

I've got it.

Ladies and

gentlemen, the witnesses, as well as anyone in

the courtroom, the rule is being invoked, which

means that anyone who is a witness in this

hearing has to remain outside of the courtroom

until it's your turn to testify, okay.

further means that you are not allowed to talk

to each other or anyone else about your

testimony or anyone else's testimony, all right.

Are we ready?

MR. CRAIG:

That

Your Honor, this is the fifth

witness that we have that's not a local witness.

He needs to step forward and be sworn as well.

THE COURT:

TERRY WALKER:

THE COURT:

your right hand.

MR. VOISIN:

What's your name?

Terry Walker.

MR. Walker, I need you to raise

Your Honor, I'm sorry, we have

one other.

THE COURT:

Bring him up.

Mr. Leon

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Amanda Frederick - Direct Examination

Frederick.

Mr. Frederick your right hand.

(Oath administered by the Court)

THE COURT:

The same rule, listen to me,

the same rule applies to you all as these folks.

You will be excused from the courtroom until

it's your turn to testify.

outside the courtroom, you are not to discuss

your testimony or anyone else's testimony at

all.

be in the courtroom, to talk to you about what

they heard in the courtroom, understand?

all may be excused and petitioner call your

first witness.

And nor is anyone else allowed, who might

MR. VOISIN:

Amanda Frederick.

THE COURT:

While you are

So you

Our first witness will be

Everyone but Ms. Frederick will

be excused.

For the benefit of everyone in the

audience, so it's not to be a distraction to the

parties, the lawyers, the Court, staff, or

anyone else, please remain seated until there is

a break in the testimony.

MR. VOISIN:

Mr. Voisin.

Thank you, Your Honor.

AMANDA FREDERICK

Having been duly sworn testified as follows:

DIRECT EXAMINATION

BY MR. VOISIN:

the Court?

Ms. Frederick, would you introduce yourself to

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Amanda Frederick - Direct Examination

Amanda Frederick.

And.

THE COURT:

Scoot up close to the

microphone, and do this for me, allow the lawyer

to finish his question before you answer, so

that the court reporter only takes down one

person at a time.

verbally.

shake your head.

And try to relax.

BY MR. VOISIN:

Walker?

He is my brother.

Okay.

And you have to answer

You can't say uh-uh or uh-huh or

You have to say yes or no.

Amanda Frederick.

about yourself.

Amanda, how do you know Alan

I would like to ask you a few questions

Where are you currently living?

Colorado.

And how long have you lived in Colorado?

Almost ten years.

And where were you from originally?

Long Beach, Mississippi.

And what's your occupation now?

MR. WHITE:

That's irrelevant, Your Honor.

What -- we need to talk about what she was 20

something years ago.

THE COURT:

Overruled.

BY MR. VOISIN:

What's your occupation?

I work with the mentally disabled.

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Amanda Frederick - Direct Examination

And that's in Colorado?

Correct.

And are you married?

I am.

And do you have any children?

How old are your children?

Nineteen, 16, 14, and 12.

Okay.

do.

Now,

you said you grew up in Long Beach

and that Alan Walker is your brother?

Correct.

Do you have other siblings?

Who are they?

Terry Walker and Leon Frederick.

And where are you in that order of your

siblings?

I'm the last one.

Okay.

He is the first one.

What's the age difference between you and Leon?

Seven years.

Okay.

Ronnie Walker.

Did you know Ronnie Walker?

No,

Did he play any part of your life when you were

young?

do.

Where is Alan?

And who is Terry and Alan's father?

I didn't.

No, he didn't.

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Amanda Frederick - Direct Examination

And who is Leon's father?

Winfred Frederick.

And was your mom married to Winfred Frederick?

She was.

Were they married when you were born?

No.

Did Winfred play any part in your life?

No,

How much contact did you have with him?

Hardly any that I know of.

Okay.

Michael Shavers.

Did your mother date him?

No.

What was your mother's relationship with him?

One night stand.

Was Michael Shavers involved in your life at

Not until I turned 18.

How far away from you did he live?

Two streets.

He was close by?

Correct.

Did you have contact with his family?

Sometimes.

Do you know a Paula Shavers?

And where is she now?

She is deceased.

sir.

And who is your father?

all?

do.

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Amanda Frederick - Direct Examination

Do you know when she died?

Almost three years ago.

When you were young, who grew up in the house

with you?

Alan and my brother Leon.

Where was Terry?

He was with his father in Alaska.

About how old were you when Terry went to

Alaska?

Around two.

What contact did you have with Terry after he

went to Alaska?

None.

Did he visit?

have seen him one time since he left.

That

was when my brother Leon got married.

So just to be clear, it was you, your mother,

Alan, and Leon in the house?

Correct.

Was your mother involved with any man at the

time?

No.

So it was just the four of you?

Correct.

Where did your mother work?

She worked at South Mississippi Regional Center

for one job, and she worked, I believe, at a casino for

her second job.

Was she holding down two jobs during your

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Amanda Frederick - Direct Examination

childhood?

That's correct.

What shifts did she work?

She worked ten to six, so ten at night until six

in the morning, and then she came home and rested a few

hours, and went to her second job.

THE COURT:

Mr. Voisin, what time reference

are you looking at here?

MR. VOISIN:

This is Ms. Frederick's

childhood from when, I guess, her earliest

memories up until the time of the -- Mr. Walker

was arrested.

THE COURT:

Which I've got to have some

years.

MR. VOISIN:

Okay.

BY MR. VOISIN:

You were born in 1980?

Correct.

MR. VOISIN:

So it would be roughly from

the early '80s up until 1990.

THE COURT:

Mr. White?

MR. WHITE:

We submit that her childhood is

not relevant to his background and character.

MR. VOISIN:

Your Honor, they were being

raised in the same household, so a lot of the

factors --

THE COURT:

If that's an objection, I will

overrule the objection.

BY MR. VOISIN:

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Amanda Frederick - Direct Examination

What kind of physical toll did working two jobs

have on your mother?

MR. WHITE:

Objection, Your Honor.

She was

less than 11 years old when this took place, and

I don't think she is competent to testify what

her mother was doing and what physical toll it

took on her.

medical expert.

MR. VOISIN:

BY MR. VOISIN:

She is not a doctor, she is not a

I will rephrase the question.

Did your mother help you become involved in

various activities outside of school?

She did.

And did you observe -- or what signs did you

observe from her that indicated that she was having a

hard time?

She was always sleeping.

Like where would she sleep?

In her car when I would do cheerleading

practice.

after you?

Alan and Leon.

What did Alan do?

Cooked, cleaned, took care of me.

Was he ever mean to you?

No.

Were you familiar, again, this is just based on

Now, when she was working these jobs, who looked

what you remember at that time, were you familiar with

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Amanda Frederick - Direct Examination

how much

whether Alan drank alcoholic beverages?

He did.

What did he drink?

Busch beer in a blue can.

How often did he drink?

When he was around his friends.

Now, did Alan work, also, at this time?

I'm not really for sure.

Okay, that's fine.

So going back to the

drinking, how often would his friends come around?

Quite often.

And what would they do when they came to your

house?

Drink, played volleyball, bonfires.

Did you ever see Alan drunk?

Yeah.

How often?

Not for sure.

Okay.

They would drink, too.

And who were some his friends?

The Maloney brothers.

Is that Dwayne and Donald?

Dwayne and Donald.

Okay.

Their father,

Quite a few times.

And what about his friends?

And who else?

Duke.

Jack Collins, Senior.

Billy Davenport.

Potter.

Okay.

Thank you.

Now, you mentioned Frank

Can you describe him?

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Amanda Frederick - Direct Examination

He was an older man, long beard, scruffy hair.

When you say older, was he Alan's age or older

than that?

He was older than Alan.

Can you give a ballpark?

Maybe in his 50s.

And what did he do when he came around the

house?

He drank.

With Alan and his friends?

Correct.

Did he do anything inappropriate?

Flashed my mother once.

And what do you mean by flashed?

MR. WHITE:

THE COURT:

BY MR. VOISIN:

Lay a foundation.

Did you see Mr. Potter do anything

inappropriate?

Yes, I did.

And what did you see?

Him flashing my mother.

Unless

she actually saw that, that's hearsay.

Objection, Your Honor.

And when you say flash, what do you mean,

dropped his pants?

Yes.

How did Alan respond?

He got upset about it.

What did he do?

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Amanda Frederick - Direct Examination

He,

I guess, talked to him, kind of got on to

him about how it was inappropriate.

Now, who is Jack Collins?

He was the,

I guess, neighborhood -- the older

man that had them do things that they probably shouldn't

have.

Like what types of things?

Steal stuff.

For him?

Correct.

MR. WHITE:

do that, it's hearsay.

THE COURT:

BY MR. VOISIN:

Unless she saw them

Lay a foundation.

Were you familiar

were you aware of this

going on of Alan stealing for Jack Collins at the time?

Objection.

MR. WHITE:

Objection of whether she was

aware of it.

THE COURT:

I overrule the objection.

BY MR. VOISIN:

Can you please answer the question?

What was it again?

Were you aware at the time that Jack Collins was

having Alan and his friends steal things for him?

Yes.

Did Jack Collins drink around Alan and his

friends?

Yes.

How often did that happen?

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Amanda Frederick - Direct Examination

Every time they were together.

And based on your recollection, at what point in

your life do you remember seeing Jack Collins being

around?

He was there quite often.

That was from when you were very young?

Uh-huh.

I want to ask you, did you know Robin Marroy?

I did.

What was her involvement with Alan?

That was his girlfriend at the time.

Did they have a child together?

They did.

Who is that?

Michelle Walker.

And when was Michelle born?

March the 20th, 1990.

And did Robin live close to you?

At one point she lived with us, but she did live

close to us.

When she was -- did you know Leroy Marroy?

Yes.

Where did he live?

Next to her parents.

Next to Robin's parents?

Yes.

And what was Leroy's relationship to Robin

before Alan started seeing Robin?

They were together, like husband and wife.

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Amanda Frederick - Direct Examination

And how old was Leroy?

Quite a few years -- he was probably in his 50s,

she was in her teens.

And how old was Robin?

In her teens.

And she lived next to his family?

Her family's house was on one side, and his

place was right next door.

Okay.

MR. WHITE:

relevancy.

THE COURT:

BY MR. VOISIN:

Overruled.

Do you know about how old Robin was when she

married?

Objection, Your Honor, to

In her teens.

I'm not exactly sure the exact

Now, after Michelle was born, who ended up with

age.

custody of her?

We did, my mother.

And how was Alan with Michelle?

He was fine with her.

Amanda, I would like you to -- may I approach

the witness?

Really attentive.

THE COURT:

Yes.

MR. VOISIN:

I would like to show her the

map.

BY MR. VOISIN:

I would like to show you, Amanda, what has been

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Amanda Frederick - Direct Examination

premarked as Exhibit 1 for identification, and I would

like to ask you a few questions about that.

Okay.

Are you familiar -- first,

can you identify

that?

It's the map that I drew.

You drew that?

I did.

When did you draw it?

Yesterday.

Okay.

Just showing you where everyone lived, proximity

What were you doing when you drew it?

in the neighborhood.

And what neighborhood was this?

Off of 28th Street.

And that's where your family lived in the 1980s?

I don't think we lived there in the '80s, but

I'm not for sure.

About how old were you when you moved to --

Six, five or six.

You were six when you moved here?

Yeah.

And what year were you born in?

I was born in

And I want to

MR. VOISIN:

80.

At this point, Your Honor, I

would like to introduce this, Ms. Frederick's

hand-drawn map into evidence to show the area

where she lived and the proximity of most of the

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Amanda Frederick - Direct Examination

people she identified in her testimony, for

example, Dwayne and Donald, Frank Collins -- I

mean Jack Collins, Frank Potter, the Marroys,

and all of that.

insular community this was.

It shows just what a close

THE COURT:

Mr. White?

MR. WHITE:

Objection.

Wasn't furnished in

discovery timely.

THE COURT:

Beyond that objection, do you

have any further objection?

MR. WHITE:

You know, I haven't had a

chance to have somebody who is familiar with

this area verify that this is even correct.

This woman hadn't lived here -- evidently she

lives in Colorado somewhere, and I don't live

here so I don't know if this map is anywhere

near correct.

THE COURT:

Mr. Voisin, why wasn't this map

prepared prior to the discovery cutoff?

MR. VOISIN:

I did not have a chance to

talk to Ms. Frederick face-to-face until

Saturday morning.

the phone, but she flew in Friday night.

just in the course of talking with her, she just

offered me -- we were trying to review where

everybody was living and just how close by

everything was, and she offered to draw a map,

and she took my pad of paper and produced this.

THE COURT:

She flew in -- we spoke on

And

Mr. Ladner, let me see that

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Amanda Frederick - Direct Examination

exhibit.

MR. VOISIN:

I thought it would be helpful

to the Court.

THE COURT:

I understand.

I will overrule

the objection, even though it is untimely

produced, and for what it's worth, I think her

testimony about the proximity of the parties or

rather the witnesses and the families living

near each others, to me, is more -- has greater

impact than a hand-drawn map some 20 plus years

later.

evidence at this time.

the court reporter.

(Defense Exhibit 1 marked into evidence)

BY MR. VOISIN:

Ms. Frederick, did you know a Jason Riser?

I did.

And how often did he come around your house?

As often as everyone else did.

What did he do when he was there?

He would drink.

Now, Ms. Frederick, do you remember in 1991 when

But I will allow you to mark it into

Mr. Ladner give it to

you testified at your brother's trial?

Uh-huh.

You have to say yes or no.

Yes.

How old were you at the time?

I was 11.

Did anyone -- any of your brother's lawyers come

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Amanda Frederick - Cross-Examination

talk to you at your house?

No, they didn't.

When was the first time you remember meeting

with them?

When we were in Vicksburg.

And who was there?

My mother, myself, and my brother, Leon.

Did they talk to you one on one?

No.

What did they tell you before trial about your

testimony?

Nothing.

If they had spoken to you, would you have

answered their questions?

Yes.

And would you have been willing to testify as

you've done today?

Yes.

MR. VOISIN:

Indulge.

THE COURT:

All right.

MR. VOISIN:

No further questions.

THE COURT:

All right.

CROSS-EXAMINATION

BY MR. WHITE:

Cross-examination.

Ms. Frederick, I'm sorry, I've forgotten your

married name, your last name?

Frederick.

It's still Frederick?

Uh-huh.

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Amanda Frederick - Cross-Examination

So you are not married?

Well,

And you were how old when this happened?

When it happened or I went to trial?

common law married.

don't care about Colorado because it has

nothing to do with this.

I'm talking about when this

murder occurred, when your half brother murdered Kanya

Edwards, how old were you?

I was ten.

And what do you remember about that?

That the police officers came to our house and

was looking for my brother.

Did you get the black dress?

No.

Tell me,

you said you were aware,

term "aware," I think was the question.

they were stealing goods?

you used the

How did you know

house.

How did you know where they were from?

They said they were stolen.

They what?

They said they were stolen.

Because they would bring them to my mother's

So you didn't know,

you didn't see them steal anything, did you?

No,

Okay.

drank,

I did not.

Now, and everybody that came there just

is that all they did?

Smoked pot, too.

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Amanda Frederick - Cross-Examination

things.

I didn't ask you that.

You answer my questions.

THE COURT:

Mr. White,

You are volunteering

They just drank beer?

you asked them is

that all they did, and she said smoked pot, too.

That's a fair answer to your wide open question.

BY MR. WHITE:

Okay.

Smoked pot.

So what else did they do?

Did they just sit there and smoke pot and drink beer all

the time, all of them, everybody that came to your house?

Pretty much.

Didn't do anything else, huh,

just sat around

and smoked and drank pot -- I mean drank beer and smoked

pot?

Played volleyball.

Okay.

Bonfires.

Hung out at the house.

Just hung out in the house.

They played volleyball.

What else?

And what did you do

all this time?

I was there,

You drank beer and smoked pot, too?

No.

No?

too.

Well, reading your declaration, everybody

just drinks, everybody in your family drinks all the

time; is that correct?

You could say that.

Your mother drink?

No, my mother does not drink.

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Amanda Frederick - Cross-Examination

Did she then?

No, she didn't.

Did you?

No.

You never had anything to drink, huh?

No, sir.

Uh-huh.

And now, you said that nobody came to

see you and talk to you about your testimony; is that

correct?

That's correct.

I am not for sure.

You don't know whether they talked to your

Did they talk to your mother?

mother without you.

Wouldn't it kind of stand to reason

that they weren't looking or discussing legal matters

with an 11 year old?

No, no one did.

So as far as this -- now, you're not really,

other than your mother, you all have different fathers,

right?

Correct.

You don't have the same father as any of the

rest of them?

No, I do not.

Okay.

So you were 11 years old -- 10 years old

when this happened and 11 years old when you testified?

Correct.

Okay.

MR. WHITE:

I don't have any further

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cab1eone.net

Amanda Frederick - Examination bv the Court

questions of this witness, Your Honor.

THE COURT:

Any redirect?

MR. VOISIN:

No, Your Honor.

THE COURT:

Does either party object to the

Court asking some follow-up questions?

MR. WHITE:

No, Your Honor.

MR. VOISIN:

No, Your Honor.

EXAMINATION

No objection.

BY THE COURT:

Ms. Frederick, this Frank Potter that you talked

about, is this a boyfriend of your mother's?

No.

Who was he again?

Alan's friend.

Correct.

And you said you witnessed Mr. Potter flash your

mother?

Correct.

And I think you said that -- or did that upset

But he was older than Alan?

Alan?

It did.

Such that he had a talk with him?

Yes.

Did he get physical with Mr. Potter?

No, he didn't.

So he was -- is it fair to say that from your

perspective, your brother was protective of your mother?

Correct.

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100

Amanda Frederick - Examination by the Court

And he knew that that type of behavior towards,

at least his mother, was inappropriate?

Correct.

Would you say that your brother knew that that

type of behavior would be inappropriate towards any

female?

I would believe so.

All right.

Was that type of -- that type of

behavior on Alan's part, your brother's part, taught at

home, how to treat people right, not how to do people

wrong?

I believe so.

Okay.

THE COURT:

If my questions spurred any

questions by either counsel, you may follow up

at this time.

Mr. Voisin?

MR. VOISIN:

No questions, Your Honor.

THE COURT:

Mr. White?

MR. WHITE:

No questions, Your Honor.

THE COURT:

You may step down.

next witness.

MR. CRAIG:

Call Anita Frederick, Your

Honor.

THE COURT:

room off to the side.

MR. CRAIG:

Call your

There used to be some witness

That's where they are, Your

Honor.

THE COURT:

So they don't have to go

through security every time?

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101

Anita Frederick - Direct Examination

MR. CRAIG:

I assume so, Your Honor.

THE COURT:

This is Anita?

MR. CRAIG:

Yes, Your Honor, Mr. Walker's

mother.

THE COURT:

Ms. Frederick, come forward.

Ms. Frederick, sit up close to the microphone,

try to relax so that your testimony comes out

such that everybody can hear you in the

courtroom.

questions before you answer.

speak when someone else is speaking so that the

court reporter only takes down one person at a

time.

yes or no, he can't take down head shakes or

uh-huhs or uh-uhs, you understand?

Allow the lawyers to finish their

And try not to

And make sure that you answer audibly,

Mr. Craig.

ANITA FREDERICK

Having been duly sworn testified as follows:

DIRECT EXAMINATION

BY MR. CRAIG:

Frederick.

And remember, you've been sworn already, Ms.

THE COURT:

Keep your voice up.

Please introduce yourself to the Court.

My name is Anita Frederick.

And where do you live, Ms. Frederick?

I didn't hear you.

Yeah, because I coughed.

you live?

I apologize.

I live in Grand Junction, Colorado.

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

Where do

102

Anita Frederick - Direct Examination

And how do you know Alan Walker?

Alan Walker is my son.

MR. CRAIG:

Your Honor,

I'm moving just a

little bit closer so she can hear me, and I will

try to speak up.

BY MR. CRAIG:

Are you married, Ms. Frederick?

No.

Have you been married before?

Yes.

To whom have you been married?

To Alan's dad, Ronnie Walker.

And to Leon and

them's dad, Winfred Frederick.

Do you have children?

Four.

Please tell us the names of your children and

their fathers.

Alan Walker, Terry Walker, Ronnie Walker is the

dad.

Leon is Winfred Frederick.

Michael Shavers.

And Amanda Frederick is

Where did you grow up?

Pensacola, Florida.

How did you meet Alan's father?

I used to sell magazines all over the United

States, and I met him that way.

How old were you when you started selling

magazines?

About 16.

And why were you selling magazines for a living?

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Anita Frederick - Direct Examination

Just to get away from home.

When did you leave home, how old were you?

About 16, 17.

Why did you leave home at age 16?

MR. WHITE:

Objection.

Relevancy, Your

Honor.

Why she left home at 16 has nothing to

do with Mr. Walker.

THE COURT:

Mr. Craig?

MR. CRAIG:

Yes, Your Honor.

Dr. Mendel's

report, which has been furnished to all parties

and was also furnished to the Mississippi

Supreme Court, talks about the background of

this family.

background of Ms. Frederick, the way she was

raised, and the way that she raised her children

is directly relevant to the formation of her

son, and is admissible, would have been

admissible in 1991.

THE COURT:

for what it's worth.

MR. CRAIG:

Thank you, Your Honor.

THE COURT:

You might need to re-ask your

It's commonly recognized as the

I will overrule the objection

question.

MR. CRAIG:

Yes, thank you, Your Honor.

BY MR. CRAIG:

So tell us again why you left home at age 16?

Just to get out and make some money.

Did your morn know you were leaving home?

No.

Huey L. Bang, RMR, CRR

Circuit Court Reporter hueybang@cableone.net

104

Anita Frederick - Direct Examination

How long were you gone?

Three months.

And when you came back, was there any discussion

with your mother about where you had been?

No.

What was your mother's name?

Marie Richards.

What was -- and you had siblings.

siblings?

Howard.

and then my sister Nellie.

My oldest sister was Ruth.

Who were your

My brother was

And then it was me, and then my brother John,

And who took care of you all at home during the

We went to school.

What about when you weren't in school?

My sister, Ruth, was in California.

day?

married.

my sister and my brother.

She got

My brother was -- left, and it was just me and

Where was your mom?

Out running the roads.

For how many days at a time would your mom be

gone from the home?

MR. WHITE:

Honor.

THE COURT:

BY MR. CRAIG:

Objection to relevancy, Your

I sustain that objection.

Was your mom around when you got injured or when

you needed her?

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No.

Do you remember an occasion when you went to the

hospital and your mom wasn't around?

Well, I cut my foot open and the neighbors took

me to hospital.

some buttons.

And I had 48 stitches, two cat guts, and

Did your mom eventually show up at the hospital?

Yes.

And were the doctors trying to do something more

severe than the stitching?

MR. WHITE:

Objection, Your Honor.

This is

just not relevant.

THE COURT:

Sustained.

MR. CRAIG:

Please the Court, if I can make

a record.

This is in her affidavit that was

submitted to the Supreme Court.

directly to her mother's lack of treatment, lack

of being present in the home, which Dr. Mendel

is going to talk about in terms of the overall

dynamic under which Mr. Walker was raised.

think it is relevant, but -THE COURT:

It goes

As to whether or not a

physician wanted to do additional type medical

procedure on this witness?

MR. CRAIG:

Yes, Your Honor, because I'm

going to go through what happened after that.

mean, obviously, I'm asking one question at a

time.

know, there then was a later discussion that

But as the affidavit points out, you

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related to Ms. Frederick's father.

MR. WHITE:

First, it's not an affidavit.

THE COURT:

Pardon?

MR. WHITE:

First, it's not an affidavit so

it's not competent in a post-conviction in this

state.

court, but they are not recognized as support of

a PCR in the State of Mississippi.

You might have a declaration in federal

MR. CRAIG:

That's not correct, Your Honor.

Mr. White was given, and the Court was given,

with the motion to vacate, these same statements

in affidavit form.

whatever that's worth.

MR. WHITE:

They are affidavits for

Well, I mean, the thing is, you

know, the fact -THE COURT:

Let me just say this, Mr. White

go ahead, finish your objection.

MR. WHITE:

The fact that he is relying on

what some doctor is going to testify to at some

later date, that's not what he can do here.

can have that and get that stuff with the doctor

outside the court, but that's not relevant to

the character and background of this capital

defendant.

background and character, but it's not relevant

to his background and character, which is the

core of what we're looking at here.

That might be relevant to her

THE COURT:

I understand that.

I will just

note that I had a preliminary understanding of

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Anita Frederick - Direct Examination

what my task was and how I thought I was going

to frame the issues for this hearing, and in

doing so, I overruled Mr. Craig's motion to

allow Dr. Schaeffer access.

obviously told me I was wrong in an

interlocutory order.

going to sustain your objection to elicit

testimony if it was contained in the affidavit

or the declaration, or whatever it was that was

filed in the successive writ at the Supreme

Court which caused this remand and this

evidentiary hearing.

reaching a decision, but I will allow a record

to be made.

objection, I apologize.

So at this point, I'm not

I can wade through it in

So I will sustain -- overrule your

MR. WHITE:

The Supreme Court

May I continue to make the

objection or will you overrule everything I do?

THE COURT:

I want you to make your

objection so it's noted so that when I review

back on the transcript I see the state has

objected.

You can continue.

MR. CRAIG:

Thank you, Your Honor.

BY MR. CRAIG:

Who was your father, Ms. Frederick?

Ezekiel Richards.

What do you know about him?

I don't know much about him.

He had one leg

that was cut off.

MR. WHITE:

Objection, relevancy.

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THE COURT:

Overruled.

BY MR. CRAIG:

separated?

About seven or eight.

Do you have any clear recollections of what it

And how old were you when your mom and dad

was like to live with your father?

MR. WHITE:

Objection, relevancy.

THE COURT:

Overruled.

BY MR. CRAIG:

You can answer it.

tell us what you remember about

Do you have

living with your mother and your father?

Well, when I was three years old,

kerosene.

They took me to the hospital.

MR. WHITE:

Objection relevancy.

THE COURT:

Overruled.

And I had my foot messed up.

I drank

My mother always

said that the meanest man in the world is a one-legged

man.

MR. WHITE:

Objection, hearsay.

THE COURT:

Overruled.

MR. CRAIG:

It's not offered for the truth

of the purpose asserted.

THE COURT:

It's overruled.

MR. CRAIG:

Thank you, Your Honor.

BY MR. CRAIG:

Did that relate to the operation that you had on

your leg, Ms. Frederick?

Yes.

My mother said my leg couldn't be cut off.

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109

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Okay.

Did you have occasion to take care of

your siblings later in life?

Yes.

And who did you take care of?

Alan and Terry, when they was little.

Yes, ma'am.

I was asking about your brothers or

sisters?

I took care of my sister, Nellie.

And how old were you when you took care of her?

MR. WHITE:

Objection.

THE COURT:

Overruled.

How old was she, about 15.

BY MR. CRAIG:

Why was it that you were asked to take care of

your sister, Nellie?

She went to jail because she got drunk or

something in a car wreck and everything.

And I took the

responsibility for her because my mother said she

couldn't -- you make your bed, you sleep in it.

Was that pretty much her attitude toward raising

all of you?

Yes.

I want to ask you about Ronnie Walker and your

relationship with him, Alan's father.

How old were you

when you and Alan's father were married?

About 18, 19.

Where did you live?

Panama City, Florida.

When was Alan born in relation to when you were

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married?

'65.

And you were -- how old were you when Alan was

born?

About 20, 21, something like that.

Okay.

Terry born?

He was born in '67.

So that would be two years?

Two years,

Did any of Ronnie Walker's family live with you

And then how much later than that was

14 days.

when you were a young married person with the two

children?

His brother Kenneth Walker, he lived with us.

And was that -- was Kenneth Walker Ronnie

Walker's full brother, they shared both parents?

Yes.

Thank you.

And did you notice any strange

behavior on the part of Kenneth?

Yes.

MR. WHITE:

Objection, relevancy.

THE COURT:

Overruled.

BY MR. CRAIG:

What kind of behaviors did you notice?

We lived in South Carolina, and when I was

pregnant with Terry and -- he locked himself up in his

bedroom with a dog And didn't want me to come in because

he thought I was going to kill him.

Did he only lock the door with a lock or did he

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do anything else?

No, he put a chest of drawers on it where nobody

could get in.

Was there any reason why -- had you done

anything to give him reason to think you were going to

hurt him?

No.

Do you remember any other incident in public

regarding Kenneth when he was living with you?

He left South Carolina and come down to

Pensacola and stayed with my mother.

K-Mart's or Wal-Mart's and acting crazy.

MR. WHITE:

And he was at

Objection, relevancy.

I didn't know what was wrong with him.

schizophrenia.

BY MR. CRAIG:

Were you told that he had schizophrenia?

His dad did, told me.

MR. WHITE:

Objection, hearsay.

His brother did.

THE COURT:

BY MR. CRAIG:

He had

I sustain that objection.

Where was Mr. Walker, Ronnie Walker, when

Kenneth was living with you all?

In Hawaii.

What was he doing in Hawaii?

He was a meat cutter.

But why was he in Hawaii cutting meat?

His job took him all over the place.

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So was he present in the home during the time

that Alan and Terry were very small?

Yes.

What about after Terry was born?

He went back to Hawaii.

At some point you and Ronnie Walker split up; is

that correct?

Yes.

What happened, why did that happen?

Well, he just traveled all over the place, and

we didn't, you know, see each other.

Okay.

And at some point, did you and Mr. Walker

file for divorce?

Yes.

How old was Alan when his dad and you divorced?

I think he was around four.

And then how old was Terry?

Two.

Where did you go after the divorce?

I stayed with my mother for a couple of days or

a week or something.

Then my mother told me to get up

off my hmmph and go to work and support my own kids.

didn't have them, so I had to support them.

She

So what did you do?

Well, Ronnie paid child support for one month.

I didn't see or hear anything else and so I left

Pensacola and went down to New Orleans.

New Orleans back up here to Mississippi and got me a job.

Then I went from

Where in Mississippi did you end up?

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Long Beach, Mississippi.

And --

Well, Gulfport, really.

First I came to

Gulfport, and we stayed on the beach.

When you say stayed on the beach, where exactly

did you sleep?

In the car.

What kind of car was it?

A station wagon.

So that was you and your four year old son and

your two year old son?

Yes, and two other people.

The two other people who were with you in New

Orleans?

Yes.

Eventually, did you get a more secure place to

live on the Gulf Coast?

Yes.

And how did that come about?

I worked at Moody's Restaurant for a year, and

the lady in back of me told me I could move in over

there.

moved back to Pensacola.

me and the two boys.

And the lady that was living with me at the time

And I had a one-room place for

And during that time, after that first month,

did you receive any financial support from Alan and

Terry's father?

No.

During that time when the boys were very young,

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did you hear at all from Ronnie Walker, Alan and Terry's

father?

No.

When I left Pensacola, I went on my own.

did not ask for Alan -- I did not ask for Ronnie to

support us because he did not know where I was at.

Okay.

Now, when Alan was very young, did you

have a baby sitter named Ms. Woodcock?

Yes.

And do you remember an incident that occurred

when Alan was young involving Ms. Woodcock?

Yes.

And tell us what that incident was.

He was just little, running around, and he --

she pulled his pants off or something like that.

Okay.

And --

MR. WHITE:

actually saw it.

THE COURT:

BY MR. CRAIG:

Objection, hearsay.

Unless she

Lay a foundation.

Were you later told by Alan -- let me ask you

this, how did you know that that happened?

Alan told me.

And when Alan told you, what was his attitude

towards it?

He was kind of scared.

Okay.

happened?

I don't remember.

Was he in school yet?

And about how old was he when that

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Yes.

Okay.

Well, he was like in kindergarten and things.

Okay.

So older than five?

When was -- I'm sorry, and did you say

anything to Ms. Woodcock about that, about that

you have any conversation with her about it?

No,

I didn't know anything about it until a

little later.

Okay.

And ultimately, whenever you did find out

about it, you never spoke to Ms. Woodcock?

No.

Okay.

did

She didn't watch him anymore.

At some point, did Alan and Terry's

father make an appearance in their life?

Yes.

Tell us the first time that that happened, how

old were the boys when their father saw them again?

They was about seven, six, some years old.

That would be Alan would have been six or seven

years old?

Yes.

And what was that occasion, what was the contact

with their father then?

I called him up to let him know where I was at.

If he wanted to see the boys he could.

So he came over

from Alaska.

He brought them a

big box of toys.

He was living in Alaska.

How long did he stay and spend time with his

sons that time?

Not very long.

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Did ultimately he -- tell us about the next time

that Alan had contact with his father after that time

when he came and gave him the presents.

Well, one time he come and he said he had to

stay for about a year over in Alaska because it cost so

much money to bring them back and forth like that.

MR. WHITE:

That didn't make any

sense, Your Honor.

MR. CRAIG:

BY MR. CRAIG:

I didn't.

I'll rephrase it, Your Honor.

Did there come time when Alan went to live in

Alaska with his father?

Yes.

And was that one time or more than one time?

More than one time.

So let's talk about the first time.

Where was

Alan's father living the first time that Alan went to

live with him?

In Alaska.

Okay.

And how did it come about that Alan lived

with his father in Alaska?

He said that he had to go up there and stay for

at least a year where, you know, bring them up there,

bring both of the two boys up there.

send him back.

And then they would

And so did Alan stay there in Alaska with his

dad for a year?

Yes.

Ultimately, did he come back?

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Yes.

Was there a second time then, you testified

already,

I think, that Alan and Terry went to Alaska; is

that correct?

Yes.

And how long was Alan there that second time?

A year.

What about Terry?

He stayed with Alan that year, and then he come

Around a year.

back.

Terry came back the second time, too?

Yes.

Did there come a time when Terry did not come

back from Alaska?

stayed.

Yes.

The last time, Alan came back and Terry

Did you remarry anybody after you divorced

Ronnie Walker?

Yes.

And who did you marry?

Winfred Frederick.

And you already testified you have one son with

Winfred Frederick named Leon?

Leon.

Where did you and Winfred live?

We lived off of Marosa

Gulfport.

house built.

LaRosa Road in

And then we moved to Langridge Road.

And that was in Long Beach?

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Long Beach.

Did Winfred play a role in your sons' lives?

In the beginning he did.

And what happened after the beginning?

He was there as a father,

and then later on, he

just worked all the time and never did have anything else

to do with them.

THE COURT:

Give me a frame of reference in

the petitioner's age at this time.

MR. CRAIG:

Yes, thank you, Your Honor.

BY MR. CRAIG:

What year did you marry Mr. Frederick?

'72, I think.

1972.

Yes.

So Alan would have been seven then?

Uh-huh.

You have to say yes or no,

Yes.

Thank you.

And Alan was born in 1965?

I'm sorry.

And then just to give the Court a

reference, what year did you and Mr. Frederick divorce?

7 9.

So in '79, Alan would have been 14; is that

correct?

Yes.

So from the time he was seven until time he was

14 you were married to Winfred Frederick?

Yes.

Did Winfred have a drinking problem, ma'am?

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Yes.

How much did he drink?

A whole case of beer every day.

Every day?

Every day.

That would be after he came home from work?

Yes.

And what was he like when he drank that much?

He was okay.

He drank.

When he got tired he

went to sleep, went to bed.

Okay.

Sometimes -- at one time he hit the wall, put a

hole in it.

What do you mean by hit the wall?

He just hit the wall, you know, put a hole in

it.

I put a picture over it where nobody could see it.

Okay.

How -- did he strike it with his fist or

some other way?

Yes, he hit it with his fist.

Okay.

And put a hole in the wall.

You have to

say yes or no, I'm sorry.

Yes.

Or something anyway.

So when he was drunk, was

he -- and was sleeping, what contact did he have with

your sons Alan and Terry?

He didn't bother them.

Did he have any influence in terms of the

day-to-day discipline of your sons?

No.

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Let me turn to that.

Did you -- how many jobs

were you working from the time that Alan -- at the same

time when Alan was younger until you married Mr.

Frederick?

working at Moody's until Alan was seven, did you just

work at Moody's or did you have more than one job?

So from the time you moved here and was

At that time I just had that one job.

every day for one year without a day off.

And then later on, did you work just one job or

more than one job?

I worked two or three jobs.

Okay.

I worked

Was there a time when you were working at

the South Mississippi Regional Center?

MR. WHITE:

Your Honor, he is just leading

and leading and leading, you know.

He would not

be allowed to do this at the sentencing hearing.

I object on that basis.

THE COURT:

Don't lead the witness.

MR. CRAIG:

Thank you, Your Honor.

BY MR. CRAIG:

What jobs did you have after you left Moody's?

Well, I worked at McDonald's for five years, off

of 49.

And I worked at a clothing factory that you make

new pants and pull strings and stuff like that out.

also worked at a 7-11 store.

And did you sometimes work -- did you work those

jobs like one at time, or were there times when you

worked more than one job at a time?

Well, when I was working at the retardation

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center, I was also work

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