Kitchens v. State
| Decision Date | 05 November 1981 |
| Docket Number | No. 62492,62492 |
| Citation | 287 S.E.2d 316,160 Ga.App. 492 |
| Parties | KITCHENS v. The STATE. |
| Court | Georgia Court of Appeals |
Duncan A. Roush, Atlanta, for appellant.
Jim Wiggins, Dist. Atty., C. David Gafnea, Asst. Dist. Atty., for appellee.
Based largely on the testimony of his alleged co-conspirator, appellant was convicted of arson in the first degree of a dwelling occupied by Bleckley County Deputy Sheriff Alvin Savage and his family. Appellant was sentenced to 15 years' confinement in the state prison and now seeks reversal of the trial court's denial of his amended motion for a new trial.
1. In his first enumeration of error, appellant asserts that the trial court's denial of his motion for a new trial was error because the conviction was based on the state's knowing use of perjured testimony. The state's key witness and appellant's alleged co-conspirator, George Herndon, testified that he and appellant, at the latter's insistence, set fire to the Savage house in April 1978. In an affidavit offered in support of appellant's motion for a new trial, Herndon swore that his trial testimony was false and had been the result of beatings and continued threats thereof administered by members of the Bleckley County Sheriff's Department, in whose custody he was at the time of appellant's trial. Herndon then recanted his trial testimony and averred that he had no knowledge of appellant's participation in the burning of Deputy Savage's home. An attorney, two cellmates of Herndon's, and a Herndon relative also made affidavits in which they corroborated Herndon's sworn statement that he had suffered beatings at the hands of officers in the Bleckley County Sheriff's Department while incarcerated in the Bleckley County jail. These affidavits were neither refuted nor denied by the state. In its order denying appellant's motion, the trial court stated that there was evidence that defense counsel had known at trial that Herndon had made allegations of physical abuse while incarcerated in the Bleckley County jail, and concluded that Herndon's credibility and the issue of perjury were matters for the jury.
Conviction of a crime following a trial in which perjured testimony on a material point is knowingly used by the prosecution is an infringement on the accused's Fifth and Fourteenth Amendment rights to due process of law. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Hysler v. Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed.2d 932; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed.2d 791. It is sufficient to show that police officers acting in behalf of the state in connection with the prosecution had knowledge of the perjured character of the testimony given by a witness for the state. See Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed.2d 214; Rivers v. Martin, 484 F.Supp. 162 (W.D.Va.1980); Curran v. Delaware, 154 F.Supp. 27 (D.C.Del.1957). It goes without saying that the allegedly perjured testimony was material--Herndon was the state's star witness against appellant. Thus, appellant's amended motion for a new trial and the affidavits attached thereto sufficiently charged a deprivation of a right guaranteed by the U. S. Constitution. Pyle v. Kansas, supra; Rivers v. Martin, supra.
2. However, as is true of any constitutional right, the right to claim a denial of due process on the ground that perjured testimony was used by the state may be waived. In cases where the court has found an effective waiver, it has been noted that the defendant knew at trial that the questioned testimony was perjured but did nothing to bring it to the attention of the court or the jury. See, e.g., Evans v. United States, 408 F.2d 369 (7th Cir. 1969); McGuinn v. United States, 239 F.2d 449 (D.C.Cir.1956). In the case at bar, defense counsel repeatedly attempted to get Herndon to acknowledge that he had made...
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Robinson v. State, s. 72265
...not recall the information appellant sought, and there is nothing in the record establishing otherwise. Compare Kitchens v. State, 160 Ga.App. 492(1), 287 S.E.2d 316 (1981). 9. For final consideration is the double jeopardy contention that defendant was acquitted by the jury of trafficking ......
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Arnold v. State
...This enumeration of error is not meritorious. (b) Defendant contends that under the recent decision of this court in Kitchens v. State, 160 Ga.App. 492(1), 287 S.E.2d 316, the knowing use of perjured testimony by the state was grounds for a new trial. However, the record here does not discl......
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Jackson v. State, No. A02A2238
...testimony is akin to perjured testimony and that, as such, its use violates due process of law. See generally Kitchens v. State, 160 Ga.App. 492, 493(1), 287 S.E.2d 316 (1981). A conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if t......
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Gates v. State
...ELDRIDGE, J., concur. 1.Grant v. State, 195 Ga.App. 463, 464(1), 393 S.E.2d 737 (1990). 2. (Citations omitted.) Kitchens v. State, 160 Ga. App. 492, 493(1), 287 S.E.2d 316 (1981). 3. Meredith v. State, 211 Ga.App. 213, 215(4), 438 S.E.2d 644 (1993). 4. (Citations and punctuation omitted.) W......