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09/09/94 MACK KIRBY v. STATE

September 9, 1994

MACK KIRBY
v.
STATE



Appeal from Jackson Circuit Court. (76-CR-115). Loy Campbell, Trial Judge.

Rule 39(k) Motion Denied October 21, 1994. Rehearing Denied October 21, 1994. Certiorari Denied January 6, 1995. Released for Publication April 13, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Junior Mack Kirby, appeals the denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P. In 1977 the appellant was convicted of arson in the first degree. In 1978 the appellant attacked his conviction by filing a petition for a writ of error coram nobis. This petition was denied, and in 1979 this court affirmed the denial of the petition without opinion.

The current Rule 32 petition was filed in November 1993. The appellant contends in this petition that he is entitled to a new trial because newly discovered evidence exists. Attached to the petition is an affidavit of Linda Compton Phillips, a witness who testified at the appellant's 1977 trial. The affidavit states that her testimony at trial was coerced and that "to her knowledge" the appellant was not involved in the arson. The court held an evidentiary hearing on the petition, at which Phillips testified. The court, in a thorough order, denied the petition. The court stated the following in its order concerning Phillips's testimony:

"This court must first determine if this witness has, in fact, recanted her testimony at the trial and testified that it was not true.

"Nowhere in the affidavit, nor in her testimony in court on this petition, has she recanted her trial testimony. She has never said that it wasn't true. The only thing that she does say is that at this time, she cannot remember whether her testimony as she read it in the transcript is true, or not. She said, 'I can't say if it's facts, or if it's a dream. It all is somewhat like a dream to me.' The trial occurred 17 years ago.

"Obviously, Mrs. Phillips is very sympathetic to the defendant and would like to help him, at this time.

"She testifies that her memory is vague and that she was an alcoholic, but she had been in jail for 94 days at the time she gave her trial testimony. She attempts to allege coercion by her husband and George Tubbs, an investigator for the county.... However, she never says that any such coercion caused her to give false testimony. Although this trial occurred 17 years ago, this Judge tried the case and has an unusually vivid memory of it because of the attorneys involved....

"The court observed this witness at the trial and paid very close attention to her because of the very substantial question of whether she was an accomplice or not. The court submitted this issue to the jury as a question of fact, after defining in detail the term 'accomplice.' She was very coherent and clear of mind while testifying. She was subjected to extremely harsh cross-examination, but nothing in her demeanor at any time gave any indication that she did not have all of her wits about her at the time she was testifying. Certainly, she was not under the influence of alcohol or drugs at the time.

"This witness has never said that her testimony at the trial was not true. The jury believed her testimony, and this court believed her testimony at the time."

(Emphasis supplied.)

In order for a conviction or sentence to be vacated on the basis of newly discovered evidence, that evidence must meet the criteria set forth in Rule ...


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