Appeals Court orders new look at county case

Published 5:00 am Thursday, May 31, 2001

A Lincoln County man convicted of aggravated assault and armedrobbery in 1995 will get an evidence hearing on the robbery chargeafter a witness recanted his earlier testimony, the state Court ofAppeals ruled Tuesday.

The court held that Antonio Hardiman, who was sentenced to 23years on the aggravated assault charge and 20 years on the robberycharge, was entitled to a hearing after witness Jimmy Whittingtonsaid he was coerced by then-Sheriff’s Investigator Robert Berry tosay Hardiman, 24, robbed him.

Whittington, 35, was wounded twice in the May 26, 1995, incidentin Bogue Chitto.

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“I refuse to allow Antonio Hardiman, and his family to sufferfor something he didn’t do,” Whittington said in a November 1999affidavit.

Hardiman’s original appeal of the trial verdict was denied in1998.

Judge Mike Smith denied Hardiman’s 1999 request for apost-conviction relief. Tuesday’s appeals court ruling reversedSmith’s earlier decision and granted Hardiman an evidentiaryhearing.

Assistant District Attorney Jerry Rushing said he wasdisappointed with the appeal court ruling.

A date for the evidentiary hearing has not been set. Based onhearing testimony, the judge may deny a new trial due toinsufficient new evidence, or a new trial may be granted on thearmed robbery charge alone.

“The aggravated assault charge is not being attacked,” Rushingsaid.

Regarding Whittington’s recanted statement, Rushing asserted thewitness perjured himself either at trial or in the 1999 affidavit.He did not say if perjury charges would be pursued.

“We’ll wait and see what happens at the hearing,” Rushingsaid.

The appeal court ruling said Whittington, currently serving afive-year sentence on a 1997 grand larceny charge, was the solewitness supporting the robbery claim. Rushing maintained there werecorroborating witnesses called at trial to support Whittington’stestimony.

At trial, Whittington testified that Hardiman tried to rob himand that he was injured during an altercation.

Testifying in his own defense, Hardiman denied that he tried torob Whittington.

Mentioning money Whittington owed from a previous drug deal,Hardiman said he wouldn’t sell the man any drugs, and an angryWhittington came at him with a knife. The defendant said twowarning shots were fired and a third was shot in self defense.