LUSTER v. STATE (2025)

¶1. James Luster was convicted of first-degree murder in 2013. This Court unanimously affirmed his conviction on direct appeal. Luster v. State, 143 So. 3d 636 (Miss. Ct. App. 2014). In 2022, Luster filed an application for leave to seek post-conviction collateral relief (PCR). The Mississippi Supreme Court granted Luster leave to proceed in the circuit court and ordered an evidentiary hearing for the circuit court to consider Luster's claim of newly discovered evidence, which included the recantation of one of the primary witnesses who testified against Luster at trial. After the hearing, the circuit court denied Luster's PCR motion. Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

 Facts as Developed at Trial

¶2. On direct appeal, this Court summarized the facts as developed at trial as follows:

On March 6, 2012, around 11:00 p.m., Carlos “Moe” Wright was shot multiple times while at home. Moe's neighbor, David Ross, heard the gunshots and saw two men run across his backyard. Ross could not identify either man. He contacted the police.

Natchez Police Officer Elvis Prater was dispatched. While in route, Officer Prater spotted Cedrick Jones. Jones was loading a body into a vehicle. Jones waved at Officer Prater. Officer Prater stopped. Jones told Officer Prater that his friend, Moe, had just been shot and that he was about to take Moe to the hospital. Officer Prater noticed that Moe was unresponsive and had no pulse. Officer Prater called for an ambulance and back-up.

Investigator Otis Mozique was also dispatched to the scene. Investigator Mozique testified that when he arrived, Officer Prater was already there. Investigator Mozique saw Moe lying face-up on the passenger seat of Jones's vehicle. Moe appeared to have been shot four or five times. The ambulance was there. Investigator Mozique asked Officer Prater to take Jones to the police station, because Investigator Mozique wanted to speak with him.

Investigator Mozique took photographs and processed the scene. Investigator Mozique also took photographs of Moe. Investigator Mozique then went to Moe's house and took photographs of the bullet casings he found. One empty casing was on the porch and was a .40 caliber. Investigator Mozique noticed blood around the side of the house. Investigator Mozique found a .40 caliber casing and two spent projectiles on the ground and took photographs of them. Investigator Mozique then went to the police station to speak with Jones. Investigator Mozique could not testify to what Jones told him but did state that after he spoke with Jones, Investigator Mozique and several other police officers went to an address that belonged to Luster. At the address, the officers found Robin Tyler but did not find Luster. Tyler was questioned.

On March 7, Luster voluntarily turned himself in after he learned that the police were looking for him. Luster was accompanied by his girlfriend, Alexis Williams, Ethel Williams, and Ethel's boyfriend, [Casey] Campbell. Luster told Investigator Mozique that he had been in Vidalia, Louisiana, with Alexis, at the time of the homicide.

Alexis testified that Ethel, Luster, Campbell, and she were all at Ethel's home in Vidalia. Luster arrived there between 4:30 p.m. and 5:00 p.m. Luster asked to borrow Alexis's Chevrolet Malibu between 10:30 p.m. and 11:00 p.m. Luster told Alexis that he was going to meet “Tiger, [Gerald Davis], and [Frederick Hunt].” Alexis testified that Luster returned to the house between midnight and 1:00 a.m. Alexis overheard Luster tell Campbell that “he had killed someone by the name of Moe.” Alexis testified that she heard Luster confess that he had gone to Moe's house, had knocked on the door, and told Moe to “give up everything he had.” Moe started to wrestle with Luster, and Luster shot Moe. Davis and Hunt were present afterwards. Alexis also testified that the next day, Luster asked Ethel, Campbell, and her to take him to the police department. Before they arrived, Luster told them to tell the police that he had not left Vidalia the day before.

Initially, Alexis told Investigator Mozique that Luster never left the house the night of the murder. Investigator Mozique was not satisfied with the alibi that Alexis provided for Luster. Alexis and Ethel were questioned again between March 17 and March 20. Alexis changed her story and told Investigator Mozique that she had lied to him, because Luster told her to lie, and she was scared of Luster. Alexis gave information to Investigator Mozique that incriminated Luster. Luster was arrested and formally charged with Moe's murder.

Ethel testified that Luster came to her house to visit his cousin, Campbell. Luster arrived before Ethel went to work at 5:00 p.m. Ethel returned to her house after she got off work at 9:30 p.m. When she got home, Ethel ate, got her son ready for bed, and went to sleep around midnight. Luster was at Ethel's house when she returned from work. Ethel testified that Luster left her house around 10:30 p.m., and she did not see him again until the next day. Ethel also testified that she, Alexis, and Campbell took Luster to the police station on March 7. Luster did not tell Ethel why he needed to go to the police station.

Hunt testified that he had not known Luster for very long. Hunt testified that on March 6, between 10:00 p.m. and 11:00 p.m., he, Davis, and a few others were shooting dice. Luster arrived in a Malibu. While there, Luster got a .40 caliber gun from Gerry Byrd. Hunt wanted some “weed,” so he and Davis got in the car with Luster and drove to Moe's house. Luster got out of the Malibu, and Moe came outside. Luster and Moe started to talk. Hunt testified that he saw Luster pull out a gun and heard Moe tell him that his landlord lived next door. Moe tried to run, but Luster started to shoot. Hunt got out of the vehicle and ran up and down the street. Hunt testified that he got back in the vehicle because he was afraid. Luster told Davis that Moe was not dead and that Moe had seen their faces. Hunt jumped out of the vehicle and started to run. Hunt heard more shots and turned to see Davis running behind him. Davis threw a gun in the bayou. Hunt testified that he and Davis met up with Luster on Alabama Street. Luster drove Hunt and Davis back to where they played dice.

Davis testified that he had known Luster for five or six years. On March 6, Davis, Hunt, and others were shooting dice. Luster told them, “I'm fixing to hit a lick.” Davis and Hunt wanted some money, so they got in the Malibu with Luster. Hunt had a .38 caliber gun with him. Luster drove to Moe's house. Luster and Moe got into an argument, and Luster shot Moe. Luster walked to the car and told Davis to get out. Luster told Davis to shoot Moe or else Luster would shoot Davis. Davis testified that he shot Moe twice in the buttocks. Davis did not know if Moe was alive or dead. Davis testified that he ran back to the vehicle and then ran up the street with Hunt. Davis and Hunt ran behind Ross's house and through the bayou, where Davis threw his gun. Davis testified that after they ran through the bayou, Luster saw them, picked them up, and dropped them off at a store. Luster told Davis and Hunt “not to say nothing, and if we did we would be killed too.” Davis testified that Luster gave him the .40 caliber pistol Luster used, so Davis could return it to Byrd. Davis admitted that he was in the Bloods gang.

On July 23, 2012, Luster, Davis, and Hunt were all charged with Moe's murder. Luster's trial was held on January 29-30, 2013. Luster was found guilty of Moe's murder and sentenced to life in the custody of the Mississippi Department of Corrections.

Luster, 143 So. 3d at 638-40 (¶¶2-12).

 Current Post-conviction Proceedings

¶3. In 2022, Luster petitioned the Mississippi Supreme Court for leave to proceed with a PCR motion in the circuit court, arguing he had newly discovered evidence under Mississippi Code Annotated section 99-39-7 (Rev. 2020).¹ In support of his application for leave, he attached affidavits from Gerald Davis, Casey Campbell, and Luster's fiancée Kayla Luster.² In his supporting affidavit, Davis, who had pled guilty to manslaughter and testified against Luster at trial, recanted his trial testimony. Campbell, who had not testified at trial, averred that Luster did not confess to him on the night of the crime (as Alexis Williams had testified). Kayla Luster averred that Williams had admitted to lying at trial. The Mississippi Supreme Court granted Luster's application, and the circuit court conducted an evidentiary hearing on the PCR claim.³ Frederick Hunt, who had pled guilty to accessory after the fact and testified against Luster at trial, was deceased at the time of the evidentiary hearing. Investigator Otis Mozique was also deceased.

¶4. Gerald Davis testified. Davis testified that Luster was not present for or involved in the shooting. He testified that he and Hunt formed the plan to rob Moe Wright and that after the shooting, they left on foot from Moe's house and discarded the pistols in a bayou. He said that he and Hunt then ran into Luster and “caught a ride” with him. When asked what transportation they had used to drive to the victim's house (if they were not with Luster in the car Luster had borrowed from Williams), Davis testified that he and Hunt “caught a ride” with an unidentified woman. The State questioned Davis about the inconsistencies between Davis’ trial testimony and previous affidavits in support of Luster's earlier PCR motions. Davis had previously submitted affidavits for Luster's earlier PCR motions, but the instant proceedings were the first time Davis represented that Luster was not present during the course of events and that Hunt had been the shooter.

¶5. Casey Campbell testified at the evidentiary hearing. Campbell had not testified at trial after neither the State nor Luster called him as a trial witness. However, Campbell was mentioned several times at trial. Williams spoke about Campbell during her testimony, and Luster's trial attorney pointed out to the jury during his closing statement that the State had not called Campbell to testify. At the evidentiary hearing, Campbell testified that if he had been called at trial, he would have testified that Luster did not confess to him on the night of the murder as Williams had claimed to overhear. Instead, Campbell said that when Luster arrived back in Vidalia in Williams’ car, Luster told Campbell that he had gone to see some women, and they had hung out. Campbell said that Williams was not present for this conversation and that she was presumably asleep. Campbell represented that Luster's trial attorney never reached out to him. However, he acknowledged that he went to the police the day after the shooting with Luster.

¶6. Kayla Luster testified that Alexis Williams had admitted to her that she had lied at trial about overhearing Luster confess to Campbell.⁴ Kayla was uninvolved in the course of events surrounding the murder. According to Kayla, Williams reached out to Luster to say that she was sorry for lying at trial. Kayla then reached out to Williams repeatedly, including showing up at her place of work, in an attempt to convince her to prepare an affidavit in support of Luster's post-conviction efforts. According to Kayla, Williams fabricated her testimony at trial due to pressure from Investigator Mozique, who threatened her with prosecution for allowing Luster to use her car on the night of the killing.

¶7. Alexis Williams did not testify at the evidentiary hearing or submit an affidavit in support of Luster's PCR motion.⁵ Luster submitted a recording of a phone call among Luster, Kayla, and Williams in which the Lusters asked Williams to provide an affidavit to support his petition. In the recording, Williams expresses reluctance to provide an affidavit or to testify. At points during the conversation, the three discussed what Williams’ new version of events would be if she provided an affidavit. Luster told Williams that she should say she had been “young and underage.” Williams said, “I get exactly what you saying ․ all I can do is ․ yea he did leave my car, I don't know where he went ․ brought the car right back ․ I was sleeping, you know what I'm saying, that's it, I was ly--, I was young ․ you got my car, took five or six police to get me, I was young ․ if [police] offer you fifteen years when you are seventeen, eighteen, what you going to do.” Luster then said, “[A]nd that's exactly what you supposed to say on the stand, period.” Luster reiterated that he wanted Williams to go ahead and prepare an affidavit because she might not have “this same attitude months from now.” Williams still refused to provide an affidavit.

¶8. Luster sought to admit the testimony of Dante Hawkins, who would have testified that Hunt told him a few months before Hunt died that Luster had nothing to do with the shooting. According to Hawkins’ affidavit,

[Hunt] said that he had heard [Davis], his co-defendant in the matter, was going to sign a sworn affidavit recanting his trial testimony. That prompted me to ask [Hunt] what really happened the night Moe was killed. [Hunt] explained that he had heard [Davis] and [Luster] were planning to say that [Hunt] was the only one who shot Moe. [Hunt] said he was surprised because he and [Luster] were friends and members of the same gang, but [Luster] and [Davis] weren't friends like that. [Hunt] said he went to [Davis] and that's when they came up with the story about James Luster being the shooter, knowing they would get lighter sentences if they testified against him. [Hunt] said [Luster] had nothing to do with it.

The court refused to permit Hawkins’ testimony on the ground that it would not be admissible at trial. The court distinguished the testimony of Kayla Luster and Dante Hawkins by noting that if a new trial were granted, Alexis Williams could be called as a witness and cross-examined. However, because Hunt was deceased, his purported statements would be inadmissible.

¶9. The circuit court ultimately denied Luster's PCR motion and a post-judgment “motion for new trial.” Luster now appeals pro se.⁶

STANDARD OF REVIEW

¶10. “On appeal, the appropriate standard of review for denial of post-conviction relief after an evidentiary hearing is the clearly erroneous standard.” Johns v. State, 926 So. 2d 188, 194 (¶29) (Miss. 2006). When questions of law are raised the standard of review is de novo. Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999).

DISCUSSION

¶11. Luster argues that the circuit court erred by not accepting Davis’ recantation as credible, by not accepting Campbell's testimony as newly discovered evidence, by not admitting the recording of Williams as newly discovered evidence, and by not allowing Hawkins to testify at the evidentiary hearing. Luster argues “that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.” Miss. Code Ann. § 99-39-23(6) (Rev. 2020). “[A]n evidentiary hearing is required when recanted testimony is raised in a PCR motion” Esco v. State, 102 So. 3d 1209, 1214 (¶13) (Miss. Ct. App. 2012). “Recanted testimony does not entitle a defendant to a new trial.” Russell v. State, 849 So. 2d 95, 107 (¶15) (Miss. 2003). “At the evidentiary hearing on a PCR motion, the [circuit] judge sits as the trier of fact and resolves any credibility issues.” Esco, 102 So. 3d at 1214 (¶13).

¶12. In PCR proceedings, the circuit judge is the “sole authority for determining credibility of the witnesses.” Corrothers v. State, 404 So. 3d 112, 118 (¶22) (Miss. 2024) (quoting Doss v. State, 19 So. 3d 690, 694 (¶4) (Miss. 2009)). As finder of fact, the judge “is free to accept all, part, or none of the evidence presented.” Id. at 118 (¶19) (internal quotation marks omitted) (quoting Keller v. State, 306 So. 3d 706, 714 (¶23) (Miss. 2020)).

¶13. We find that the circuit court did not clearly err in determining that Gerald Davis’ recantation was not credible and fell short of the standard requiring that it “be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction.” Miss. Code Ann. § 99-39-23(6). Davis’ current testimony is his fourth sworn version of events and the first in which he claims that Luster was not present at the crime. He also now claims for the first time that Hunt, a deceased person unavailable to testify at a new trial, was the shooter. “[A]s a general rule, recanted testimony is ‘exceedingly unreliable, and is regarded with suspicion; and it is the right and duty of the court to deny a new trial where it is not satisfied that such testimony is true.’ ” Esco, 102 So. 3d at 1214 (¶13) (quoting Bradley v. State, 214 So. 2d 815, 817 (Miss. 1968)).

¶14. We find that the circuit court did not clearly err in determining that Campbell's testimony was not newly discovered evidence. To constitute newly discovered evidence, Luster is required to show that Campbell's testimony was discovered after the trial and “could not by due diligence have been discovered before trial.” Pipkin v. State, 350 So. 3d 1147, 1151 (¶12) (Miss. Ct. App. 2022). Campbell was available and known at the time of trial. Campbell, along with Luster and other witnesses who eventually testified at trial, went to the police station the day after the shooting and with the initial story that Luster had not been in Natchez on the night of the shooting. Campbell was mentioned at trial several times, including by a key witness and by Luster's own attorney during closing arguments. Additionally, his testimony at the evidentiary hearing contradicted Williams’ trial testimony.

¶15. Luster argues that Williams’ new description of events in the secretly recorded phone call constitutes a recantation warranting a new trial. The State rebuts that Williams repeatedly expressed an unwillingness to prepare an affidavit and that on the phone call, she seemed to be appeasing Luster (whom she testified at trial she was afraid of) by talking through the version of events Luster wanted her to present. Moreover, unsworn statements recanting testimony are not given credence in PCR proceedings. Russell, 849 So. 2d at 119 (¶88). We find that the circuit court did not reversibly err in determining that the unsworn statements of Williams were not newly discovered evidence warranting a new trial.

¶16. Luster argues that the circuit court erred in refusing to hear the testimony of Hawkins, who had averred that Hunt, prior to his death, said that Luster had nothing to do with the shooting. Still, “testimony which only impeaches a witness's trial testimony does not constitute grounds for a new trial.” Meeks v. State, 781 So. 2d 109, 113 (¶11) (Miss. 2001). Additionally, the circuit court noted that Hunt would be unavailable to testify at a new trial. The testimony of unavailable witnesses can be admissible in certain circumstances, including if the testimony is a statement against interest. See MRE 804(b)(3). However, “[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Small v. State, 224 So. 3d 1272, 1276 (¶12) (Miss. Ct. App. 2017). Here, Luster did not present a Rule 804(b)(3) argument at the evidentiary hearing and, instead, improperly raises it for the first time on appeal. Additionally, any error in failing to allow Hawkins to testify would be harmless in light of our deference to the circuit court's factual determinations of credibility and the testimony and circumstances indicating whether the statement is trustworthy.

CONCLUSION

¶17. The circuit court did not reversibly err in determining that Luster failed to demonstrate that he had newly discovered evidence that would have caused a different result in his conviction. The circuit court did not err in determining that the testimony of Campbell and Williams did not constitute newly discovered evidence. Any error in failing to consider Hawkins’ testimony was harmless.

¶18. AFFIRMED.

FOOTNOTES

1.   The supreme court had previously denied two of his similar PCR filings.

2.   The application also included an affidavit from Dante Hawkins and affidavits from a juror and an alternate juror, neither of whom testified at the evidentiary hearing.

3.   Order, Luster v. State, No. 2022-M-00248 (Miss. Nov. 22, 2022).

4.   The State made a continuing hearsay objection to Kayla's testimony about what Williams said outside of court.

5.   While Luster issued a subpoena for Williams, she was served at the wrong address.

6.   Luster was represented by counsel at his PCR evidentiary hearing.

WESTBROOKS, J., FOR THE COURT:

BARNES, C.J., CARLTON AND WILSON, P.JJ., McDONALD, LAWRENCE, EMFINGER, WEDDLE AND ST. PÉ, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.