Opinion
No. 23355.
Decided November 25, 1968.
Defendant was convicted of murder. From a denial of his motion for post conviction relief, the defendant brought error.
Affirmed.
1. CRIMINAL PROCEDURE — Post Conviction Relief — Motion — Lack of Facts — Evidentiary Hearing — Attorney — Unnecessary. Where the motion for post conviction relief contains no allegations of facts upon which relief can be granted, under such circumstances there is no requirement that an evidentiary hearing be had or that an attorney be appointed to represent the defendant.
2. HOMICIDE — Motion to Vacate Judgment — Falsified Evidence — Trial — Defective Motion — Allegation of Facts — Absence. Where defendant moved to vacate judgment on ground that district attorney in good faith had offered falsified evidence at defendant's trial for murder, held, in the absence of allegation of facts defendant's motion could not be granted; actually, defendant's motion was fatally defective upon its face.
3. CRIMINAL LAW — Supreme Court — Judicial Notice — Records — Review — Denial of Motion to Vacate — Murder. Supreme Court will take judicial notice of its records on review of a denial of motion to vacate judgment under which defendant is serving a life sentence for the crime of murder.
4. Determination — Finality — Motion to Vacate Judgment — Second Review — Denial. Where a matter has been determined with finality against a defendant he will not be entitled to a second review thereof by way of motion to vacate judgment.
Error to the District Court of Jefferson County, Honorable Christian D. Stoner, Judge.
Plaintiff in error, pro se.
Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, John P. Moore, Assistant, for defendant in error.
Plaintiff in error will be referred to as to the defendant. The factual background which is involved in this in this proceeding has been before this court of three different occasions. Kostal v. People, 160 Colo. 64, 414 P.2d 123; Watson v. People, 155 Colo. 357, 394 P.2d 737; Kostal v. People, 144 Colo. 505, 357 P.2d 70.
Following the decision of this court in the case first cited, the defendant filed a motion under Colo. R. Crim. P. 35(b) the purpose of which was to vacate the judgment under which he is serving a life sentence for the crime of murder. His motion in substance alleges that "falsified evidence" was introduced at the trial in violation of due process of law. The alleged "falsified evidence" was an expended bullet cartridge which he alleges was substituted for the one actually found at the scene of the crime. His motion contains the following:
"* * * that on trial of the cause the doctored up 'test' cartridge case was offered into evidence by the District Attorney, Ronald Hardesty, acting in good faith and believing that it was the expended cartridge case found at the scene of the homicide."
The trial court, on the basis of the failure of the motion on its face to show facts which, it true, would warrant relief, denied the motion and refused the request for appointment of counsel to represent the defendant.
[1,2] If the motion contains no allegations of facts upon which relief can be granted, there is no requirement that an evidentiary hearing be had or that an attorney be appointed to represent the defendant. Brown, Jr. v. People, 159 Colo. 17, 409 P.2d 526; Saiz v. People, 156 Colo. 43, 396 P.2d 963. In the instant case the motion of defendant was fatally defective upon its face.
Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690, which is relied on by the defendant, is clearly distinguishable on the facts. In that case it was made to appear that the prosecution deliberately misrepresented the truth and obtained a conviction "by the knowing use of false evidence."
[3,4] Moreover, we take judicial notice of our own records from which it appears that the defendant in the case of Kostal v. People, 160 Colo. 64, 414 P.2d 123, assigned error upon admission of the shell casing in evidence, and urged at the time that it was "falsified evidence." The trial judge properly admitted the evidence and any inferences to be drawn from the claim of defendant that it was "falsified" were resolved against him. By this proceeding the defendant is attempting a second review of matters determined with finality in Kostal v. People, supra.
The judgment is affirmed.