Johnson v. Cox

• Decision Date: 27 March 1963
• Docket Number: No. 7059,7059
• Parties: Vincent JOHNSON, a/k/a Skippy Kiwanucka, Petitioner, v. Harold A. COX, Warden of the State Penitentiary of the State of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 199

380 P.2d 199

72 N.M. 55

Vincent JOHNSON, a/k/a Skippy Kiwanucka, Petitioner, v. Harold A. COX, Warden of the State Penitentiary of the State of New Mexico, Respondent.

No. 7059.

Supreme Court of New Mexico.

March 27, 1963.

William B. Kelly, Santa Fe, for petitioner.

Earl E. Hartley, Atty. Gen., Santa Fe, for respondent.

COMPTON, Chief Justice.

This is an original proceeding in habeas corpus. Petitioner was tried and convicted in San Juan County of the crime of statutory rape. Immediately thereafter, on an information filed pursuant to Sec. 41-16-1, N.M.S.A., 1953 Comp., charging him with a previous conviction of a like felony in another state, a judgment of conviction of petitioner as a habitual criminal was entered and sentence imposed of not less than 49 1/2 nor more than 198 years in the state penitentiary. He is presently serving this sentence under an order of commitment which is directly attacked here.

This proceeding challenges the jurisdiction of the court (a) to enter the judgment convicting petitioner of statutory rape because of alleged fundamental error in the denial of due process and (b) to sentence petitioner as a habitual criminal because he was not represented by counsel at a hearing on the habitual criminal charge. It is well here to restate the office of writs of habeas corpus. Such writs are collateral attacks upon the judgments upon which commitments are issued and will lie only when the judgment attacked is absolutely void for the reason that the court rendering it was without jurisdiction to do so. Smith v. Abram, 58 N.M. 404, 271 P.2d 1010; Roehm v. Woodruff, 64 N.W. 278, 327 P.2d 339.

In determining whether the deprivation of constitutional rights amounts to a denial of due process the inquiry on habeas corpus is directed to a review of the entire proceedings, and if the total result was the granting to accused of a fair and deliberate trial, then no constitutional right has been invaded, and the proceedings will not be disturbed. Brock v. Hudspeth, 10 Cir., 111 F.2d 447; Graham v. Squier, 9 Cir., 132 F.2d 681; Thompson v. Harris, 107 Utah 99, 152 P.2d 91. Thus, our function here is to determine whether on all the records before us petitioner is being unlawfully imprisoned as the result of a deprivation of his constitutional rights.

The fundamental error complained of is the admission into evidence petitioner's purported confession, and the testimony of the principal witness, subsequently recanted by her. The recantation of the witness, as well as additional testimony of petitioner, the prosecuting attorney, witnesses at the former trial, and others, is before this court in the form of a transcript of proceedings in a previous hearing on a writ of habeas corpus.

The substance of the testimony of the recanting witness is that the statement which she signed admitting petitioner's guilt was obtained through fear and intimidation of the police officers who interrogated her; that she signed the statement without reading it and that its contents, as well as her testimony given at the trial, with minor exceptions, were fabricated by those officers; and that the petitioner had never touched or molested her.

So, what we have before us is not a mere repudiation of former testimony or admission of perjury, but a charge that this testimony was deliberately falsified by those seeking unlawfully to obtain petitioner's conviction. In habeas corpus proceedings such as this the burden is on the petitioner to prove not only that the testimony admitted was false but that it was knowingly, wilfully and intentionally used by the prosecution to procure the conviction. Cobb v. Hunter, 167 F.2d 888 (10th Cir.); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; Wagner v. Hunter, 161 F.2d 601 (10th Cir.); Tilghman v. Hunter, 167 P.2d 661 (10th Cir.). That burden has not been met here.

There is nothing in the records, except the testimony of the recanting witness herself, to indicate that her testimony at the trial was false, nor do we find any basis for her assertion that the story she told was fabricated for her by the interrogating police officers. On the contrary, a long and close relationship of petitioner and the witness was established. Her admission of the act came with no evidence of coercion or mistreatment. It is to be noted that in an appeal by petitioner from his conviction, State v. Johnson, 64 N.M. 83, 324 P.2d 781, this court affirmed the judgment of the lower court. We said there was substantial evidence and that the story of the prosecuting witness was not inherently improbable as contended. And our review here of all the proceedings convinces us that her subsequent recantation falls far short of affirmatively showing that the witness committed perjury at the trial, or, in any event, that perjuried testimony was wilfully and intentionally used by the prosecution.

Petitioner further claims that the recantation tends to prove that his signed confession, admitted into evidence over objection, was involuntarily obtained through fear and intimidation. This position is without merit. In determining whether there has been a denial of due process by the admission into evidence of a confession alleged to have been involuntarily obtained, we are not concerned with the motive of the petitioner in confession or whether the signed confession contained the truth, but only with whether the behavior of the law enforcement officers was such as to overbear petitioner's will to resist and bring about a confession not freely determined. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). See also...