Duncan v. State, 35944
| Decision Date | 11 February 1975 |
| Docket Number | No. 35944,35944 |
| Citation | 520 S.W.2d 123 |
| Parties | Napoleon Jerome DUNCAN, Movant, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Preston Dean III, Asst. Atty. Gen., Jefferson City, K. Brendan Ryan, Circuit Atty., William C. Frain, Jr., Asst. Circuit Atty., St. Louis, for respondent.
This is an appeal from the denial of a motion to vacate a judgment pursuant to Rule 27.26, V.A.M.R. Movant had been convicted by a jury of second degree murder and was sentenced to ten years in the Missouri Department of Corrections. The judgment was affirmed on appeal to the Missouri Supreme Court. State v. Duncan, 467 S.W.2d 866 (Mo.1971).
Movant first contends that the circuit court erred in denying his motion because his conviction resulted from false testimony in that a witness falsely testified at defendant's trial that he, the witness, saw the shooting incident between defendant and the victim inside a restaurant. Movant's basis for alleging such testimony was perjured is based upon a police report which contained the information that this witness stated he was outside the restaurant at the time the shooting occurred and did not see what happened. To obtain a new trial because of perjured testimony, a defendant should show that the testimony at the criminal trial was deliberately false and known to be false; that the prosecution used the testimony knowing it to be false; and the conviction was obtained on account of the perjured testimony. Tyler v. State, 501 S.W.2d 189, 191 (Mo.App.1973). Here the variance occurred between testimony of the witness at the time of trial and a statement as to what that witness reportedly said in a police report. As indicated in the testimony in the hearing before the court, a police report contains statements written down by the reporting officer of what other officers have informed him a certain person said in regard to certain facts. It is a condensation, not a verbatim transcript. It contains much hearsay and interpretation by the various officers whose contributions make up the report. It is seldom supported by sworn statements. Such a report cannot even be used to impeach a witness on the basis that his testimony conflicted with what was reported by a police officer. State v. Williams, 473 S.W.2d 388, 390(3, 4) (Mo.1971). Additionally, two other witnesses testified that the shooting occurred in the same manner and place as was testified to by the witness. As to this contention, there is no merit.
Movant next advances three successive contentions which are based upon alleged ineffective assistance of counsel. The first in this category is premised upon the failure of counsel to present or endeavor to present newly discovered evidence on defendant's motion for new trial and his then failure to preserve this in the record for a ruling on appeal. In order for appellant to obtain a new trial on...
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...(Mo.banc 1974) Agee v. State, 512 S.W.2d 401, 403 (Mo.App.1974) State v. Stegall, 485 S.W.2d 414, 416 (Mo.1972) But see Duncan v. State, 520 S.W.2d 123, 125 (Mo.App.1975) E. Constitutional Rights Antedating a Voluntary Plea of Guilty 1. Improper identification on lineup when denied right to......
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State v. Mims, 65532
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