Murphy v. StateMurphy v. State
Appellant, Julian A. Murphy, filed two petitions for writ of error coram nobis. The first claims that he was convicted with the use of perjured testimony; the second is a claim of ineffective assistance of counsel. After a hearing, both petitions were denied. Murphy brings a consolidated appeal to this court.
For the writ to be an effective remedy, the basis of the petition must be grounded on facts unknown at the time of the trial, and the State must knowingly have used perjured testimony. Neither of these requirements has been met. From the time the original complaint was filed until the jury reached a verdict, the prose-cutrix changed her story at least three or more times. These inconsistencies were brought out at trial and known to the jury; it was not something newly discovered after the trial. Additionally, there was some physical evidence that supported the inference of Murphy’s guilt. We cannot say, under these circumstаnces, that the State knowingly used perjured testimony.
Although the testimony of the prosecu-trix at the hearing on petition for the writ appears to be sincere, the writ will not lie for that reason. See Echols v. State,
Murphy also raises the issue of ineffective assistance of counsеl. During the course of Murphy’s first trial (carnal knowledge of a female under twelve), there was brief testimony by the prosecutrix that her father had intercourse with her when she was eight or nine years old. She vaguely described the event by saying that her father сame to her room one morning (date not specified), made her remove her clothes, and had intercourse with her. The major portion of the remainder of the record deals with an incident that occurred after the prosecutrix was twеlve years old. That incident was the basis for the complaint that resulted in Murphy’s arrest and a separate trial in which he was found guilty of the carnal knowledge of a female over twelve, but under sixteen, years of age.
Murphy claims that he had inеffective assistance of counsel because his attorney failed to assert his claim of former jeopardy whеn the second trial commenced. In fact, however, the attorney did file a plea of autrefois convict at the beginning of the second trial; the plea was denied. Murphy was convicted under two different statutes, and the State, as desсribed earlier, made out a prima facie case on the offense charged in the first indictment.
Murphy, however, also urges that his representation was ineffective because there was no motion for a mistrial when the evidence оf the subsequent incident-was introduced, and no motion for a new trial at the conclusion of the proceedings, and beсause his counsel failed to raise the issue on appeal. We disagree.
The law in this State allows the “proseсutor to offer evidence of acts occurring after the alleged act on which the indictment is based as tending to sustain the principal charge by showing the relationship and intimacy of the parties.” Harrison v. State,
“The acts offered as corroborative may be so remote as to be irrelevant. Remotеness, however, does not necessarily result from mere lapse of time, which is not necessarily an element of it. Its essence is such a want of open and visible connection between the evidentiary and the principal facts that, all things considered, the former are not wоrthy or safe to be admitted in proof of the latter. If those acts are of a character or were done undеr conditions not tending to prove the illicit desire and willingness at the time of the offense charged, they should be rejected by the trial judge. If, on the other hand, he deems them so related, by brevity of time or continuity of lewdness or otherwise to the prinсipal act as to justify the inference or as to indicate that the mutual disposition of the parties evidenced by thеm existed at the time of it, they should be received and submitted to the jury_”106 N.E. at 79 . (Emphasis added.)
In the case sub judice, there was testimony that the acts of lewdness were cоntinuous from the first incident until the time of the complaint. Additionally, the testimony indicated that the various incidents were extremely similаr in nature; namely, they occurred in the same manner, in the same house, in the same room, and even in the same bed. The admission of evidence tending to prove an incident outside the scope of the indictment was not error.
Additionally, trial сounsel went through a full scale suppression hearing and vigorously objected several times to evidence that he felt was outside the scope of the indictment. Under the circumstances, we cannot say that the conduct of trial counsel reduced the trial to a farce, sham, or mockery of justice. Robinson v. State,
The judgment of the lower court is affirmed. ■>
AFFIRMED.