
    Antonio JAMES v. Burl CAIN, Warden, Louisiana State Penitentiary.
    No. 95-KD-0960.
    Supreme Court of Louisiana.
    April 17, 1995.
    Order Staying Execution and Granting Evidentiary Hearing Hearing on Grant of Reconsideration April 17, 1995.
    As Amended May 12, 1995.
   WATSON, J.,

not on panel.

CALOGERO, Chief Justice, would grant the stay order and motion for an evidentiary hearing, assigning reasons.

Not until now in this lengthy litigation has there been presented a sufficiently plausible indication that Levon Price, rather than defendant Antonio James, was the trigger man who killed Henry Silver. Relator presents five affidavits to the effect that Price has at various times admitted being the trigger man and an additional affidavit supporting the witness who said that two men accosted Silver (contrary to Price’s sworn testimony at trial that he remained in the car.)

I would give Relator the opportunity at an evidentiary hearing to have his affiants tested, rather than have Relator executed where at the very least there is an equal chance if not a greater one that Price, not James, shot and killed the victim. The trial court was not correct when it granted the State’s Motion to Dismiss on Procedural Grounds because defense counsel presented nothing new.

In re Antonio James, applying for reconsideration of this Court’s Order dated April 17,1995; Parish of Orleans, Criminal District Court, Div. “H”, No. 271-107.

Reconsideration granted. Stay order and motion for evidentiary hearing granted. The stay of execution issued herein is to remain in effect after the hearing ordered herein and the judgment of the district court, pending further orders of this court. After the judgment of the district court, either side may apply to this court for appropriate relief.

LEMMON, J., concurs in granting a stay of the execution and granting an evidentiary hearing, and assigns reasons.

MARCUS, KIMBALL and VICTORY, JJ., would deny a reconsideration.

WATSON, J., not on panel.

LEMMON, Justice,

concurring.

The trial court erred in refusing to conduct a limited evidentiary hearing as to the evidence obtained by defense counsel over the past weekend. It is the province of the trial court to determine the credibility of that evidence, and the trial court should not have simply dismissed the application on procedural grounds. The refusal to conduct a hearing on this factual issue dictates a stay of execution. 
      
      . Previously, we were not prepared to grant relief on the Brady violation where it was shown that the State had testimony of a witness who saw two men jostling Silver and did not reveal it. In light of these additional affidavits, that Brady violation takes on greater significance in the present context. Furthermore, not only does Ms. Miller's testimony show either Price or James could have been the trigger man, the recently obtained affidavit regarding the plaid jacket is further support of her testimony that two men were on the street.
     