Howton v. State
Decision Date | 31 May 1983 |
Docket Number | 6 Div. 103 |
Citation | 432 So.2d 548 |
Parties | Roger Dale HOWTON v. STATE. |
Court | Alabama Court of Criminal Appeals |
Louis P. Moore of Holder, Moore & Grocholski, Fayette, for appellant.
Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
This is an appeal from the denial of a petition for writ of error coram nobis. Howton's underlying conviction for assault with intent to rape was affirmed by this Court in Howton v. State, 391 So.2d 147 (Ala.Cr.App.1980). His petition is based upon the recanted confession of George Arthur Brumfield.
In November of 1981, a hearing was held on the merits of the petition. Brumfield, who was serving a sentence of 385 years' imprisonment for various offenses, testified that he was in fact guilty of the assault for which Howton had been convicted. Judge James C. Brotherton granted the petition and ordered a new trial on the basis that "testimony taken from Mr. Brumfield would present a reasonable doubt to any jury's mind."
Sometime later Brumfield repudiated his confession. Based on this recantation, the State filed a motion to recall and vacate the order granting the petition. A hearing was held on this motion in January of 1982. Brumfield claimed the Fifth Amendment and refused to answer "any and all questions." This hearing was continued until February of 1982 at which time Brumfield elected to testify. Brumfield then admitted that he had nothing to do with the assault and that some of his testimony had been a "complete lie". He stated that he was "connected with the underworld" and had "messed up". He was given "one last chance" and was "doing a favor for the underworld" by confessing to the crime for which Howton had been convicted. In March of 1982, Judge Carlton F. Mayhall, Jr. granted the State's motion and "re-called and vacated, set aside and held for naught" the previous order granting the petition.
Even though Judge Mayhall did not hear or read Brumfield's original testimony upon which Judge Brotherton had granted a new trial, the petition was properly denied. Brumfield's testimony was the only evidence linking him to the assault. Since Judge Mayhall heard Brumfield state that his testimony at the first hearing was a lie and give a detailed account of how he had obtained the information necessary to fabricate that lie, Judge Mayhall had no reason or cause to review the prior testimony. Such a review would simply serve no useful purpose.
Howton argues that the weight of the evidence, when viewed in the cumulative testimony of all three hearings, is clear and convincing that Brumfield and not Howton committed the assault. We strongly disagree.
Howton did not even come near establishing his right to relief by clear, full and satisfactory proof. The degree of proof is
Summers v. State, 366 So.2d 336, 343 (Ala.Cr.App.1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala.1979).
" '(T)he well established principle (is) that to be entitled to the writ (of error coram nobis) the petitioner must aver and prove that he was innocent of the crimes of which he stands convicted.' " Seibert v. State, 343 So.2d 788, 790 (Ala.1977), quoting with approval Upshaw v. State, 50 Ala.App. 172, 277 So.2d 917, cert. denied, 291 Ala. 800, 277 So.2d 919 (1973).
"(T)he mere existence of a confession of guilt by one other than the applicant for the writ of error coram nobis will not furnish a sufficient reason for its issuance." Ex parte Fewell, 261 Ala. 246, 250, 73 So.2d 558 (1954); Ex parte Reliford, 37 Ala.App. 697, 698, 75 So.2d 90 (1954); Robinson v State, 419 So.2d 283, 285 (Ala.Cr.App.1982); Pitts v. State, 360 So.2d 736, 739 (Ala.Cr.App.1978); Ex parte Argo, 41 Ala.App. 442, 445, 137 So.2d 755 (1961).
Howton also argues that "(t)he testimony of George A. Brumfield in the form of a confession and the subsequent representation denying same should have been facts reviewed by a jury at a new trial."
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Bradley v. State, 7 Div. 185
...by the petitioner before he will be justified in granting relief. Seibert v. State, 343 So.2d 788, 790 (Ala.1977)." Howton v. State, 432 So.2d 548, 550 (Ala.Cr.App.1983). " ' "This Court cannot pass upon the credibility of witnesses," Grimes v. State, 24 Ala.App. 419, 136 So. 485 (1931), no......
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Wadsworth v. State
...trial judge must 'believe' the evidence offered by the petitioner before he will be justified in granting relief." Howton v. State, 432 So.2d 548, 550 (Ala.Cr.App.1983). This appellant has, in effect and in fact, requested the circuit court to believe the recanted testimony of McCullars on ......
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Boatwright v. State, 7 Div. 462
...trial judge must 'believe' the evidence offered by the petitioner before he will be justified in granting relief." Howton v. State, 432 So.2d 548, 550 (Ala.Cr.App.1983) (quoting Seibert v. State, 343 So.2d 788, 790 (Ala.1977). A review of the transcript demonstrates that the trial judge's f......
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Brumfield v. Bentley
...November 1981, he testified at as hearing on another Alabama inmate's petition for writ of error coram nobis. See Howton v. State, 432 So. 2d 548, 549 (Ala. Crim. App. 1983). He confessed to the assault for which this inmate, Roger Dale Howton, had been convicted. Id. He subsequently recant......