State v. Rolax

529 P.2d 1078, 84 Wash. 2d 836, 1974 Wash. LEXIS 781

• Court: Washington Supreme Court
• Decided: December 26, 1974
• Docket: 43046
• Status: Published

Opinions

Finley, J.

— Petitioner Rolax, pursuant to CrR 7.7, filed a petition with the Court of Appeals, Division One, in which he sought post-conviction relief. The petition was dismissed by the Chief Judge of that panel. The petitioner by certiorari now seeks our review of the dismissal.

In October 1971, Rolax was convicted of second-degree assault upon his cousin, Hardison, and sentenced to a term of 10 years. At trial the four witnesses present at the time of the assault were called to testify. Hardison was subpoenaed by the State and testified that he was unarmed and stabbed by his cousin. Petitioner did not deny the stabbing but asserted that Hardison had attacked him with a broken glass ashtray. Petitioner thus claimed that his actions were in self-defense. The testimony of the other two witnesses supported the petitioner’s version of the incident. Apparently, no other testimony was presented corroborating Hardison’s version of the stabbing. The jury seemingly did not believe the claim of self-defense or the defense witnesses, and found the petitioner guilty. As his basis for post-conviction relief, petitioner offers the affidavit of the complaining witness Hardison executed in August 1973. Hardison deposes that his trial testimony was untrue and that Rolax had, in fact, acted in self-defense. In addition, Hardison alleges that he never desired to press charges against his cousin, but was coerced into testifying by a prosecution threat to jail him as a material witness should he refuse.

Washington, until the adoption of CrR 7.7, was without a systematic procedure of post-conviction relief. Recently adopted CrR 7.7 delineates the guidelines to be followed by the courts of this state in granting post-conviction relief. The progenitor of our rule is found in provisions of the ABA Standards Relating to Post Conviction Remedies (Approved Draft 1968). The standard for post-conviction relief in this instance is governed by CrR 7.7(g), which provides: If at the hearing on the petition the court finds:

(3) that material facts exist not theretofore presented and heard, which require vacation of the conviction, sentence or other order in the interest of justice; . . . . . . it shall order the appropriate relief.

(Substantially identical to ABA Standard § 2.1 (a)(v).) Rule 7.7 (b) requires that the Chief Judges of the Court of Appeals review petitions for post-conviction relief to determine whether the “petition appears to have any basis in fact or law, or is not on its face frivolous.” If there appears to be some basis for relief, the rule requires that the “petition ... be transmitted to the superior court in which the petitioner was originally tried for a prompt hearing on the merits of the petitioner’s claim.” The rule does not contemplate factual inquiry by an appellate court, but merely a screening of the petitions,. In short, the function of the Chief Judge, in review, is one of separating the wheat from the chaff, and not delving beyond the face of the petition. See Comments of the Criminal Rules Task Force to the Washington Judicial Council, Proposed Rules of Criminal Procedure 134-35 (1971).

In our opinion, the allegation contained in the petition for post-conviction relief and accompanying affidavit to the effect that the complaining witness perjured himself, if true, may constitute a material fact. Any reliance upon State v. Rhinehart, 70 Wn.2d 649, 424 P.2d 906 (1967) and State v. Wynn, 178 Wash. 287, 34 P.2d 900 (1934) is misplaced. These cases stand for the proposition that when there exists independent evidence corroborating that of the witness who later seeks to recant his testimony, it is within the sound discretion of the trial court to determine whether to grant a new trial. We think that essentially the same general rule is apropos to CrR 7.7: the new evidence may, if true, constitute a material fact and thus be grounds for granting a new trial. A refinement in the law also exists, however. When a defendant is convicted solely on the testimony of the now recanting witness, this court has squarely held that it is an abuse of discretion not to grant a new trial. State v. Powell, 51 Wash. 372, 98 Pac. 741 (1909). See also Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786 (1971); People v. Smallwood, 306 Mich. 49, 10 N.W.2d 303, 147 A.L.R. 439 (1943). We think this rule also is applicable to CrR 7.7.

On the record before this court, we cannot definitively ascertain whether the defendant was convicted solely upon the basis of Hardison’s now recanted testimony or whether there was independent corroborative evidence upon which the conviction could rest. This determination must be left to the trial court. In any event, there is sufficient basis on the face of the petition to require transmittal of the petition to the Superior Court.

After a hearing on the merits of the claim, that court shall determine whether the testimony was, in fact, perjured- and, if so, whether the jury’s verdict of guilty was likely to be influenced thereby. In the event that the court finds that the testimony was perjured and the jury influenced thereby, the judgment of the Superior Court in the second-degree assault conviction should be yacated and a new trial ordered. If the Superior Court determines that no perjury occurred or that such perjury was harmless error, the relief requested should be denied. .

Rosellini, Hamilton, Stafford, and Utter, JJ., concur.