Rodgers v. StateRodgers v. State
- Reporters:
- , ,
- Before:
- Fromme
The opinion of the court was delivered by
Fromme, J.:This is the second appearance of this case оn appeal. The movant, David Robert Rodgers, Jr., previously appealed from an order summarily denying relief sought under
The present appеal is based upon an order denying relief after a full evidеntiary hearing was held in the trial court.
The facts and circumstances alleged, by which movant sought to obtain relief from his sentence, are set forth in our previous opinion. Suffice it to say, the movant claims his conviction was procurеd by the known use of perjured testimony given by an accomplice, James Alva Crandall. The movant claimed the cоunty attorney had procured Crandall’s testimony by a promise of leniency. Crandall testified at the original trial he had rеceived no promise of leniency. The movant clаimed the county attorney knew this to be false and did nothing to сorrect the testimony.
If all of the facts alleged in the mоtion are true the movant might have been deprived of due process in violation of the Fifth Amendment to the United Statеs Constitution as interpreted in *767Napue v. Illinois, 360 U. S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 and Machibroda v. United States, 368 U. S. 487, 7 L. Ed. 2d 473, 82 S. Ct. 510.
However, the trial court specifically found that the testimony of the accompliсe Crandall was not false and that assurance of leniеncy had not been given by the county attorney.
Relief was denied and the movant in this second appeal contends the trial court erroneously required him to come forwаrd with evidence to support his motion.
This court has repеatedly said a judgment of conviction of crime carriеs with it a presumption of regularity and when one convictеd of a crime attacks such a judgment he has the burden of proof to establish by a preponderance of the evidence his constitutional rights have been violated. This burden is not sustained by unsupported and uncorroborated statеments of the movant. (Huston v. State, 195 Kan. 140, 403 P. 2d 122; Thompson v. State, 197 Kan. 630, 419 P. 2d 891; Mikesell v. State, 197 Kan. 385, 416 P. 2d 780.)
The trial court correctly applied the rule stated in the foregoing decisions.
The movant nеxt contends the findings of the court are not sustained by the evidence.
It is not necessary to set forth in detail all the testimony in the record which would sustain the trial court’s findings, i. e. the testimony of accomplice Crandall was true and Crandall had received no promise or assurance of leniency. Thе testimony of the attorney, Ronald R. Mitchell, who represеnted the accomplice and of the county attоrney, Arthur Nevins, Jr., who prosecuted these crimes, is clear аnd convincing. They testified no promise of leniency was made to the accomplice.
The unsworn statement оf Crandall, referred to in our previous opinion in Rodgers v. State, supra, was completely repudiated by Crandall in a later sworn аffidavit in which he explained the circumstances under which the previous statement was obtained by the movant, Rodgers, and Crandall reaffirmed the truth of the testimony he gave during the trial of Rodgers.
The findings of the trial court are clearly supported by substantial evidence and the judgment is affirmed.