Jackson v. State, 49269

• Decision Date: 16 December 1977
• Docket Number: No. 49269,49269
• Citation: 1 Kan.App.2d 744,573 P.2d 637
• Parties: Kenneth Darrel JACKSON a/k/a Jesse Jackson, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

Page 637

573 P.2d 637

1 Kan.App.2d 744

Kenneth Darrel JACKSON a/k/a Jesse Jackson, Appellant, v. STATE of Kansas, Appellee.

No. 49269.

Court of Appeals of Kansas.

Dec. 16, 1977.

Review Denied Jan. 25, 1978.

Syllabus by the Court

1. Relief under K.S.A. 60-1507 is available only if the conviction or sentence is subject to collateral attack; guilt or innocence is not a justiciable issue.

2. Newly discovered evidence goes only to guilt or innocence. However, while not grounds for relief under K.S.A. 60-1507, it may constitute grounds for a new trial under K.S.A. 22-3501.

3. Pro se pleadings by a layman are entitled to a liberal construction so that relief may be granted if warranted by the facts alleged, without regard to the form of the pleading.

4. The granting of a new trial for newly discovered evidence is in the trial court's discretion. A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. The credibility of the evidence offered in support of the motion is for the trial court's consideration. The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion.

5. In a proceeding filed under K.S.A. 60-1507 based solely on allegedly newly discovered evidence it is held : (a) the trial court did not err in refusing to hold an evidentiary hearing under K.S.A. 60-1507, and (b) did not abuse its discretion in denying a new trial under K.S.A. 22-3501.

F. L. McGinley, of Whalen, McGinley & Fairbanks, P. A., Goodland, for appellant.

Perry D. Warren, County Atty., and Curt T. Schneider, Atty. Gen., for appellee.

Before SPENCER, P. J., and FOTH and SWINEHART, JJ.

FOTH, Judge:

In November, 1975, a jury convicted the appellant of the unlawful possession of a firearm; in November, 1976, the Supreme Court affirmed the conviction in an unpublished opinion. In March, 1977, the appellant filed a motion to vacate under K.S.A 60-1507, asking that he be granted a new trial. The trial court appointed counsel but denied the motion without an evidentiary hearing. This appeal followed.

The Supreme Court summarized the evidence against the appellant when it considered his direct appeal. The court stated:

"A .32 caliber pistol with a barrel less than twelve inches long was found in the glove compartment of an automobile rented by appellant. Appellant was driving the automobile at the time it was stopped by police and he possessed the key to the glove compartment. Two witnesses who had been in appellant's vehicle during the episode in question testified appellant had threatened to shoot a drug purchaser if he turned out to be a narcotic agent, that appellant stated he always carried a gun and that he then had a .32 pistol in the glove compartment. . . . "

The present motion is based on allegedly newly discovered evidence from three sources: (1) In an affidavit filed with appellant's motion his wife says that she is the sole owner of the gun found in the appellant's car, and that she placed it in the glove compartment without his knowledge. She explains that she did not come forward with the information at the trial because she was fearful of being arrested for owning an unregistered firearm and because she was having marital problems with the appellant. (2) Her story is partly corroborated by a handwritten, unsworn statement of a James R. Simmons that he sold the gun to her the day before the appellant was arrested. (3) An inmate incarcerated with the appellant at Lansing, one James Edwin Pooley, says that he was present during the conversation testified to by the state's witnesses and that he heard no mention of a gun by by the appellant. The appellant claims that not until he met Pooley in prison and talked with him did he become aware that Pooley witnessed the conversation in question.

The trial court was clearly correct in denying the motion under 60-1507. Relief under that section is available only if the conviction or sentence is subject to collateral attack; guilt or innocence is not a justiciable issue. See, e.g., Potts v. State, 214 Kan. 369, 520 P.2d 1259; Davis v. State, 210 Kan. 709, 504 P.2d 617; Wood v. State, 206 Kan. 540, 479 P.2d 889; Wolfe v. State, 201 Kan. 790, 443 P.2d 260.

Newly discovered evidence is, however, grounds for a new trial motion under K.S.A. 22-3501. Appellant's motion was timely under that section, and liberally construed could be read as requesting the relief provided for therein. Pro se pleadings of laymen are entitled to such a liberal construction so that relief may be granted if warranted by the facts alleged, without regard to the form of the pleading. Compare, e.g., Levier v. State, 209 Kan. 442, 497 P.2d 265. It is the substance of the motion that controls, not the form. Ten Eyck v. Harp, 197 Kan. 529, 533, 419 P.2d 922.

In the order below the court denied both a hearing under 60-1507 and a new trial, thus disposing of the motion in both its aspects. Our Supreme Court recently restated the principles governing motions under 22-3501 in State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993, 999:

"The granting of a new trial for newly discovered evidence is in the trial court's discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 94 S.Ct. 134, 38 L.Ed.2d 95.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the...