Taylor v. People, 20910
| Decision Date | 18 May 1964 |
| Docket Number | No. 20910,20910 |
| Citation | 155 Colo. 15,392 P.2d 294 |
| Parties | James Arthur TAYLOR, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
James Arthur Taylor, pro se.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., Denver, for defendant in error.
On April 23, 1958 James Arthur Taylor was convicted of murder in the first degree and was sentenced to life imprisonment in the state penitentiary. Taylor's co-defendant, one Miller, was similarly convicted and sentenced and his conviction was affirmed by this Court in Miller v. People, 141 Colo. 576, 349 P.2d 685. Taylor did not prosecute a writ or error to his conviction.
On February 13, 1963 Taylor, pro se, filed a 'Motion to Vacate, Set Aside, or Correct Judgment and Sentence' pursuant to Rule 35(b), Colo.R.Crim.P., which motion was denied by the trial court. From the denial of this motion, Taylor brings error.
Taylor's motion is based on essentially two grounds: (1) that he was convicted on the strength of 'perjured' testimony in that the testimony of the witnesses for the People was inherently incredible and not worthy of belief and (2) that his conviction was secured through the use of evidence obtained as a result of an unreasonable search and seizure.
We would initially point out that the post conviction remedy afforded under Rule 35(b), Colo.R.Crim.P., provides a convicted person with a means to attack any alleged violations of his constitutional rights which are 'of a sort not effectively subject to review on writ of error.' Where a party has not availed himself of the normal writ of error procedure, unless he has been effectively precluded from doing so, he cannot thereafter seize upon the Rule 35(b) remedy in order to seek relief from alleged grievances which are properly the subject of a writ of error. Swanson v. People, 154 Colo. ----, 390 P.2d 470. See also, Symposium on the Colorado Rules of Criminal Procedure, 35 Rocky Mt.L.Rev. 1, 72. Rule 35(b) was not intended to abrogate the plain direction of Rule 39(d) that no writs of error shall issue after six months from the date of final judgment nor was it intended to serve as an inducement for those convicted of a crime to delay in informing the courts of alleged violations of thieir constitutional rights until such time as the witnesses against them might suffer from hazy memories, or, indeed, be unavailable for trial.
Turning to the case at bar, Taylor asserts that he was unable to timely prosecute his writ of error after conviction because of his poverty. The record does not disclose and Taylor does not assert that he was denied either a free transcript or counsel in order to prosecute a writ of error. In short, Taylor's motion on its face contains no allegation which could support a conclusion that he was effectively precluded from prosecuting a timely writ of error.
Taylor claims that he was convicted upon 'perjured' testimony, but in reality his argument on that point is only an attack on the credibility of the witnesses for the People. This is patently a matter not reviewable by motion under Rule 35(b). It...
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...characterized five of Rodriguez' claims as attacks on the credibility of prosecution witnesses and held that, under Taylor v. People, 155 Colo. 15, 392 P.2d 294 (1964), such claims did not allege errors of constitutional magnitude. In Issue 35, Rodriguez contends that the district court err......
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