Johns v. Warden

Hammond, J., delivered the opinion of the Court. Daniel Jacob Johns seeks leave to appeal under the Post Conviction Procedure Act from an order denying his petition for relief, which was filed by Judge Harris following a hearing in open court. The petitioner seeks relief on three grounds: (1) the State knowingly presented perjured testimony at the trial; (2) the State suppressed evidence of an oral exculpatory statement made by the petitioner to the police; and (3) his court-appointed counsel was incompetent. Judge Harris heard witnesses as to these contentions and filed a detailed opinion.

We think he was correct in denying relief. The basis of petitioner’s allegation of perjury is that Officer Marcinko, one of the arresting officers who testified at the trial that he had been an eyewitness, was actually not present, and so testified falsely. Petitioner did not take the stand, and the evidence he produced on this point negated his contention. Officer Marcinko repeated his testimony given at the original trial.

One of the other officers who arrested Johns completely corroborated the testimony of Officer Marcinko. The petitioner produced no evidence to prove perjured testimony. The testimony showed that there was some sort of an oral statement made to the police by petitioner after his arrest. Although none of the witnesses could remember exactly what he said, it was agreed by all parties that the statement was in substance a general denial by petitioner of participation in the offense for which he was arrested.

The statement was made to the police at the station house at the outset of the investigation, and it was accepted by them as the usual protestation of innocence or denial of guilt that is frequently made in criminal investigations. The police, who at that time knew that several officers had actually witnessed the commission of the offense, gave little credence to the statement, and proceeded with the investigation which led to petitioner’s subsequent conviction. ²¹¹ This Court has recently stated: “* * * that in order for the nondisclosure of evidence to amount to a denial of due process it must be such as is material and capable of clearing or tending to clear the accused of guilt or of substantially affecting the punishment to be imposed in addition to being such as could reasonably be considered admissible and useful to the defense. And, * * * in a situation involving passive nondisclosure an inquiry must be made into the question of whether the nondisclosure may have operated to the prejudice of the accused. Certainly there should be