Jerry Undre Stewart a/k/a Duke a/k/a Jerry Stewart v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-CP-01094-COA

JERRY UNDRE STEWART A/K/A DUKE A/K/A APPELLANT
JERRY STEWART

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/14/2024
TRIAL JUDGE: HON. WILLIAM HUNTER NOWELL
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JERRY UNDRE STEWART (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 03/24/2026
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., WEDDLE AND LASSITTER ST. PÉ, JJ.

WEDDLE, J., FOR THE COURT:

¶1. Jerry Stewart appeals the Coahoma County Circuit Court’s order denying his sixth

motion for post-conviction collateral relief (PCR). Finding no error, we affirm the circuit

court’s order.

FACTS

¶2. On July 28, 1995, Stewart was convicted of murder and sentenced to life

imprisonment.1 On March 24, 1998, Stewart’s direct appeal was dismissed as untimely by

1
The circuit court noted in its order that Stewart was released on parole while serving
his sentence for this murder conviction. Stewart was eligible for parole due to the murder
occurring prior to July 1, 1995. See Pickle v. State, 369 So. 3d 94, 98 (¶15) (Miss. Ct. App.
2023); see also Miss. Code Ann. § 47-7-3(1)(d) (Rev. 2023). While out on parole, Stewart
this Court. Subsequently, Stewart filed five applications for leave to proceed in the circuit

court. Four of his applications were denied by our Supreme Court, and the circuit court

ultimately denied post-conviction relief after our Supreme Court granted Stewart leave to file

a PCR motion.

¶3. On February 26, 2016, Stewart filed a sixth application for leave from the Supreme

Court to proceed with a PCR motion in the circuit court. He claimed (1) ineffective

assistance of counsel; (2) the circuit court’s failure to individually examine jurors who

allegedly communicated during the examination of witnesses; and (3) newly discovered

evidence. On January 18, 2017, our Supreme Court dismissed Stewart’s motion on his claim

of ineffective assistance of counsel and jury misconduct but granted Stewart’s motion on his

claim of newly discovered evidence. Stewart filed his PCR motion in January 2017, and the

circuit court ordered an evidentiary hearing. Stewart argues in his claim of newly discovered

evidence that one of the jurors who served in his murder trial, Lawanda Tyler, was biased

due to her relationships with the State’s witness DeAngelo Fiser and Fiser’s family. In

support of his claim, Stewart submitted the affidavit of David Harvey. Harvey’s affidavit

states that he is John Fiser’s biological brother and that John Fiser and his wife, Catherine

Fiser, are Fiser’s grandparents. Harvey claims that Tyler had a close relationship with

Catherine Fiser and that Tyler had children with John and Catherine’s son. Harvey claims

was convicted of capital murder in the Bolivar County Circuit Court. On November 12,
2014, Stewart was sentenced to life imprisonment without eligibility for parole or early
release for the capital murder conviction.

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that after Fiser was sentenced to prison, John and Catherine Fiser were angry with Stewart;

blaming him for Fiser’s imprisonment. Crucially, in his affidavit, Harvey stated, “I witnessed

Tyler telling [Fiser’s grandmother] that she had been selected to serve as a [j]uror in Jerry

Stewart’s trial and that she would do everything within her power to make certain that Jerry

Stewart be found guilty and sent to prison like her grandson.”

¶4. Almost six months after Stewart filed his PCR, he filed a motion to supplement the

record to include an affidavit from DeAndre Malone, alleging similar connections between

Tyler and DeAngelo Fiser.2 Our Supreme Court denied his motion. During the evidentiary

hearing, Stewart’s attorney informed the circuit court that David Harvey was unavailable to

testify. However, out of an abundance of caution, the circuit court allowed Stewart to make

a proffer of the testimony of DeAndre Malone.3 Malone, the affiant in Stewart’s motion to

supplement, which was denied by the Mississippi Supreme Court, was present at the

evidentiary hearing and Stewart’s 1995 trial. Malone also claimed that Tyler had a personal

relationship with Fiser prior to Fiser testifying at Stewart’s 1995 trial. Malone testified that

he was childhood friends with Stewart and Fiser. He further testified that he had witnessed

Fiser and Tyler “interact with each other, like small talking, laughing, or whatever, like they

really know each other” at Fiser’s grandmother’s house. On cross-examination, he claimed

2
Malone did not allege that Tyler made statements ensuring Stewart’s conviction, as
was alleged in Harvey’s affidavit.
3
The circuit court also declined to hear testimony from Stewart’s former trial counsel
because it was deemed unnecessary.

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that although he was at the 1995 trial, he did not realize that Tyler was a juror until Stewart

asked him to do research on her twenty years after the trial.

¶5. On the first day of Stewart’s 1995 trial, his attorney asked for Tyler to be removed

because it would be impossible for her to be fair and impartial because she was related to a

victim. The court stated that a decision would be made after he questioned her. With all

attorneys present, the court called Tyler in chambers to ask about her relationship. Tyler

explained that she was not related to the victim, but her children were related to the State’s

witness, Fiser. She also stated that she did announce that her children were related to one of

the witnesses, but never specified which witness. She further explained that she did not

initially make the relationship known because the circuit court specifically asked the potential

jurors to raise their hand if anything about their relationship with any potential witness would

affect them. The court asked again whether Tyler could treat Fiser like any other witness, to

which she responded, “Yeah. I really don’t know him personally because he wasn’t living

here or something. But I just know him because of his uncle,” and Fiser was “just another

person.” Following the in-chambers conference, none of the attorneys, including Stewart’s

attorney, had any follow-up questions or raised any challenge to Tyler serving on the jury.

¶6. On August 14, 2024, the circuit court entered its order denying Stewart’s PCR motion.

On appeal, Stewart claims that the circuit court erred by (1) denying his PCR motion, (2)

failing to conduct the hearing in a timely manner, and (3) limiting evidence and witness

testimony.

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STANDARD OF REVIEW

¶7. “[T]he appropriate standard of review for [a] denial of [a PCR motion] after an

evidentiary hearing is the clearly erroneous standard.” Whitehead v. State, 299 So. 3d 899,

904 (¶15) (Miss. Ct. App. 2020). “[H]owever, we review the circuit court’s legal conclusions

under a de novo standard of review.” Mallard v. State, 395 So. 3d 1273, 1275 (¶5) (Miss. Ct.

App. 2024).

DISCUSSION

I. Order Denying PCR Motion

¶8. In reviewing Stewart’s PCR motion and supporting affidavit from Harvey, his

allegations regarding the statement Harvey overheard Tyler say to Fiser’s grandmother were

sufficient for the circuit court to grant Stewart an evidentiary hearing. To be entitled to an

evidentiary hearing on a post-conviction claim for relief, “a [defendant] must demonstrate,

by affidavit or otherwise, that there are unresolved issues of fact that, if concluded favorably

to the defendant, would warrant relief[;] [t]his may not be accomplished through the

defendant’s own unsupported allegations.” Crockett v. State, 334 So. 3d 1232, 1240-41 (¶26)

(Miss. Ct. App. 2022). However, once the hearing is granted the petitioner bears the burden

of proving “by a preponderance of the evidence that he is entitled to the relief.” Roberson v.

State, 354 So. 3d 422, 426 (¶23) (Miss. Ct. App. 2022) (quoting Miss. Code Ann. § 99-39-

23(7) (Rev. 2020)).

¶9. Due to Harvey’s absence, he was not available to testify under oath and therefore was

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not subject to cross-examination. The circuit court allowed Stewart to make a proffer of the

testimony of Malone. However, Malone’s testimony revealed more of the same allegations

that were dealt with during jury selection at the 1995 trial. The remaining content of Harvey’s

affidavit also contained matters sufficiently dealt with during the jury selection: Tyler’s

relationship to Fiser, Fiser’s family, and allegedly others. Following the hearing, the circuit

court determined that the newly discovered evidence was “nothing more than an attempt to

re[-]litigate the adequacy of voir dire under a new heading.” We agree.

¶10. To constitute newly discovered evidence, Stewart must show that “(1) the new

evidence was discovered after the trial; (2) it could not by due diligence have been

discovered prior to trial; (3) it is material to the issue and not merely cumulative or

impeaching; and (4) the new evidence will probably produce a different result or verdict in

the new trial.” Wilson v. State, 256 So. 3d 25, 27 (¶9) (Miss. Ct. App. 2018). “Relief must

be denied if the [Stewart] fails to meet any one of these four elements.” Id. Following the

evidentiary hearing, the circuit court found that the evidence Stewart submitted fell short of

“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.” See Kidd v. State, 221 So. 3d 1041, 1044

(¶14) (Miss. Ct. App. 2016) (quoting Miss. Code Ann. § 99-39-23(6) (Rev. 2015)).

¶11. Although Harvey did not testify and Malone’s testimony was proffered, the circuit

judge stated on the record that he would consider both Harvey’s affidavit and the proffered

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testimony in making his ruling and give the evidence the weight and credibility it deserves.

“[T]he [circuit] judge . . . sits as the trier of fact and assesses the totality of the evidence as

well as the credibility of witnesses.” Corrothers v. State, 404 So. 3d 112, 118 (¶19) (Miss.

2024). During his testimony, Malone asserted that Tyler and Fiser were friends, and he saw

them interact on a few occasions.4 Malone maintained that he witnessed them talking and

smiling at Fiser’s grandmother’s house after the trial.5 He also testified that he was at the

1995 trial but did not realize that Tyler was a member of the jury until Stewart asked him to

research Tyler in 2016. Again, Stewart discovered or could have discovered this information

that he claims is new evidence for his 1995 trial.

¶12. Here, we find that Stewart failed to meet his burden of proof and is not entitled to a

new trial on the alleged newly discovered evidence. Although portions of Harvey’s affidavit

were a sufficient basis for an evidentiary hearing, the credible proof presented at the hearing

was insufficient to meet the preponderance-of-the-evidence standard. It is clear from the

record the existence of a relationship between Tyler and Fiser was not newly discovered

4
Notably, our Supreme Court has held that “‘jurors take their oaths and
responsibilities seriously, and when a prospective juror assure[s] the court that, despite the
circumstance that raises some question as to his qualification, this will not affect his verdict,
this promise is entitled to considerable deference.’” Williams v. State, 61 So. 3d 981, 984
(¶19) (Miss. 2011) (quoting Parker v. State, 825 So. 2d 59, 64 (¶16) (Miss. Ct. App. 2002)).
Here, Tyler assured the court that she would not give Fiser any more or less credibility
because of her connection to him, and she was allowed to sit on the panel.
5
Our Supreme Court has also held that “mere acquaintance or even family
relationships with parties or those related to parties is not sufficient to require that a juror
be excused for cause.” Bell v. State, 879 So. 2d 423, 435 (¶49) (Miss. 2004).

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evidence, and Stewart is now attempting to impeach the sworn statement Tyler made in

chambers during Stewart’s 1995 trial. Accordingly, we find the circuit court properly denied

Stewart’s PCR motion.6

II. Delay of Evidentiary Hearing

¶13. Stewart next argues the evidentiary hearing was delayed for seven years, and because

of that, Harvey was unavailable to testify on the date the hearing was conducted.7 The

affidavit of Harvey was the sole basis for Stewart’s newly discovered evidence claim. During

the evidentiary hearing, Stewart failed to argue how the delay prejudiced his defense. Instead,

he offered the testimony of Malone as a “substitute witness.” On appeal, Stewart incorrectly

pointed out that the delayed evidentiary hearing could have been remedied if the trial court

had accepted Harvey’s affidavit as evidence. However, although the circuit court did not

admit the affidavit into evidence, it is clear from the record that the circuit did take the

affidavit into consideration. During the evidentiary hearing, the circuit court pointed out that

our Supreme Court granted leave for Stewart to file his PCR motion solely based on

Harvey’s affidavit. However, because Harvey was unavailable and Malone essentially

6
Additionally, the circuit court pointed out that Tyler was only one of twelve jurors
who voted to convict Stewart. She was not a foreperson, and there was no evidence
submitted that showed that the verdict would have been different if she had been replaced
by an alternate.
7
The evidentiary hearing was originally set for August 8, 2017, but Stewart’s PCR
motion was not heard until July 17, 2024. The reason for the delay is not clear from the
record. The circuit court and Stewart both pointed out that the reason for the delayed
evidentiary hearing is unknown.

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offered the same testimony, he allowed Stewart to make a proffer of Malone’s testimony

since he was present at the evidentiary hearing. Although we are concerned with the length

of delay, Stewart only contends that he was unable to procure Harvey for the hearing because

he moved, but he failed to argue that Harvey’s unavailability was due to the delay. See

Wheeler v. State, 164 So. 3d 501, 508 (¶20) (Miss. Ct. App. 2015) (finding that the record

reflects no abuse of discretion in the trial court’s finding that Wheeler failed to show a claim

of a denial of a state or federal right). Further, Stewart made no attempt to show what efforts

were made, if any, to preserve Harvey’s testimony by deposing him or having him present

at the hearing.

III. Testimony of 1995 Trial Attorney

¶14. Stewart alleges that the circuit erred by not allowing his 1995 trial attorney to testify.

The circuit court found that the testimony of the trial attorney is not necessary for the newly

discovered evidence claim. The newly discovered evidence became known in 2016, and his

1995 trial attorney would not have knowledge of the alleged newly discovered evidence.

Stewart essentially attempted to argue his claim for ineffective assistance of counsel by

claiming that his trial attorney could verify why he did not object to Tyler remaining on the

jury after he learned of her connection to Fiser. He also argued that his trial attorney would

have been able to testify about improper juror communication. However, our Supreme Court

dismissed the claim as time-barred and barred by res judicata. Therefore, the circuit court had

no jurisdiction to consider the issues of ineffective assistance of counsel and juror

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communications because they were outside the scope of the Supreme Court’s order. See

Havard v. State, 312 So. 3d 326, 341 (¶56) (Miss. 2020).8 Accordingly, we find that the trial

court correctly declined to hear testimony from Stewart’s 1995 trial attorney.

CONCLUSION

¶15. For the foregoing reasons, we affirm the circuit court’s order denying post-conviction

relief.

¶16. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS,
McDONALD, LAWRENCE, McCARTY, EMFINGER AND LASSITTER ST. PÉ, JJ.,
CONCUR.

8
Nonetheless, the trial attorney’s testimony would simply reiterate the fact that the
information about Tyler did not constitute newly discovered evidence because it was
addressed during Stewart’s 1995 trial.

10