Tyler v. State, 35154
| Decision Date | 11 September 1973 |
| Docket Number | No. 35154,35154 |
| Citation | 501 S.W.2d 189 |
| Parties | Melvin Leroy TYLER, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Fordyce, Mayne, Hartman, Renard & Stribling, Gerald R. Ortbals, Clayton, for movant-appellant.
John C. Danforth, Atty. Gen., Daniel Parker Card II, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., J. Paul Allred, Asst. Circuit Atty., St. Louis, for defendant-respondent.
This is an appeal by movant-appellant Tyler from an overruling of his motion to vacate and set aside a judgment of conviction and sentence imposed pursuant to Rule 27.26 V.A.M.R. There was an evidentiary hearing before the Circuit Court of the City of St. Louis. We have examined the record and find that the court's findings and conclusions are not clearly erroneous and therefore we affirm.
Movant alleges four points of error. First, he contends that because of variances between the testimony of several police officers at his criminal trial, and their testimony later in a federal civil proceeding brought for alleged brutality, perjury has been committed and his conviction cannot stand.
New trials based on charges of perjury are not to be granted lightly. State v. Harris, 428 S.W.2d 497 (Mo.1968). In order to vacate a judgment claimed to have been procured by false testimony under Rule 27.26, it is a requirement that it be alleged and proved that the state used false testimony or failed to correct testimony which it knew to be false. '(W)here it appears from competent and satisfactory evidence that a witness for the prosecution has deliberately perjured himself and that without his testimony (the) accused would not have been convicted, a new trial will be granted.' State v. Harris, supra (1).
It is apparent from the record that certain variances exist within the testimony of the same witnesses at the defendant's criminal trial in April 1969, and his civil suit in December 1970. The thrust of movant's argument is that because of variances in the testimony at two different proceedings, there must be perjury somewhere. But that alone does not satisfy the heavy burden required for granting a new trial under Rule 27.26. Variances are not per se perjury. Some of the variances were explained; some could be attributed to a differing recollection caused by the passage of time; some were omissions attributable to the different issues involved in the two cases. Nor does the record warrant any conclusion that the testimony given in the federal court case was accurate and that in the criminal case was not. The opposite is just as likely true. The defendant has made no showing (1) that the testimony at the criminal trial was deliberately false and known to be false, (2) that the prosecution used the testimony knowing it to be false, and (3) that the conviction was obtained on account of the perjured testimony. The record does not support a conclusion that the hearing judge's ruling on this point was clearly erroneous.
The movant's second point of error is that the hearing judge erred in finding he had knowingly waived the opportunity to have an attorney present at a pre-trial identification and in finding that there...
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Neal v. State
...testimony at two different proceedings are not perjurious per se. Reynolds v. State, 575 S.W.2d 915, 916 (Mo.App.1978); Tyler v. State, 501 S.W.2d 189, 191 (Mo.App.1973). In order to obtain relief under point VI, it was Neal's burden to prove that Copher's testimony at Neal's trial was deli......
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State v. Mims, 65532
...State, 536 S.W.2d 190, 193 (Mo.App.1976) (new trial); Duncan v. State, 520 S.W.2d 123, 124 (Mo.App.1975) (new trial); Tyler v. State, 501 S.W.2d 189, 191 (Mo.App.1973) (new trial); see also DeClue v. State, 579 S.W.2d 158, 159 (Mo.App.1979) ("post-conviction relief"); Voegtlin v. State, 546......
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State v. Cooper, 10173
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State v. Burton
...that the state knowingly used perjured testimony or failed to correct testimony it knew to be deliberately false. Tyler v. State, 501 S.W.2d 189, 190--191 (Mo.App.1973). Nor is there anything with respect to the MMPI and sentence completion test results to call for a new trial to defendant ......