Petition for Writ of Certiorari — Galloway v. Josey

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ae () [Goreme Coun, US

87-683 CBIDED.~

JOSEPH F. SPANIOL, JR.

CLERK

CASE NO. A-231

IN THE

SUPREME COURT OF THE UNITED STATES

DEAN GALLOWAY, SHERIFF,

Holmes County, Florida,

Petitioner,

vs.

JIMMY JOSEY

Respondent.

PETITION FOR WRIT OF CERTIORARI

AND APPENDIX -

ANDREA SMITH HILLYER

Assistant General Counsel

Office of the Governor

Room 209, The Capitol

Tallahassee, Florida 32399-0001

(904) 488-3494

QUESTIONS PRESENTED FOR REVIEW

WHERE A PETITIONER IN AN

ASYLUM STATE HABEAS CORPUS

PROCEEDING FILED TO CONTEST

EXTRADITION PRESENTS

EVIDENCE THAT HE IS NOT A

FUGITIVE, IS THE EXTRADITION

WARRANT AND ANNEXED

DOCUMENTATION, WITHOUT

MORE, SUFFICIENT TO CREATE

CONFLICTING OR CONTRADICTORY

EVIDENCE REQUIRING

REMAND?

WHETHER HEARSAY AFFIDAVITS,

UNSWORN STATEMENTS OF ABSENT

WITNESSES, AND EX PARTE

AFFIDAVITS ARE ADMISSIBLE

IN STATE HABEAS CORPUS

PROCEEDINGS FILED TO

CONTEST INTERSTATE

EXTRADITION.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PREFACE

OPINIONS BELOW

GROUNDS UPON WHICH JURISDICTION

IS INVOKED

FEDERAL CONSTITUTIONAL PROVISIONS .

AND STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

CERTIFICATE OF SERVICE

£ii-

TABLE OF AUTHORITIES

Appleyard v. Massachusetts,

203 U.S. 222, (1906)

Biddinger v. Commissioner

of Police,

245 U.S. 128, (1917)

California v. Superior Court

of California, Sir

U.S. , 107 S.Ct. 2433,

96 L.Ed.2 332 (1987)

Kentucky v. Dennison,

24 How. 66 (1861)

Lee Won Sing v. Cottone,

bee wee aoe 40.C. Cir. 1941)

Michigan v. Doran,

439 U.S. 282 (1987)

Munsey v. Clough,

196 U.S. 364 (1904)

Pakulski v. Hickey,

731 F.2 302 (6th Cir. 1984)

Puerto Rico v. Branstad,

U.S. (1987),

97 L.Ed.2d 187, 107 S.Ct. 2802

Smith v. Idaho,

S72 wae 240 (3th Cir.),

PAGE(S)

14, 18

16, 18

cert. denied 388, U.S. 919 (1967)

South Carolina v. Bailey,

gens. 412 (1932)

ise ae

United States v. Flood, 16

374 F.2 554,(2nd Cir. 1967)

Whaley v. State, 19

328 So.2 (Ga. 1985)

on l -

PREFACE

The Petitioner, Dean Galloway, as

Sheriff of Holmes County, Florida, ex.

rel the State of Florida, was the appellee

in the District Court of Appeal, First

District of Florida, and was the Petitioner

in the Supreme Court of Florida. The

Respondent, Jimmy Josey, was the Appellant

in the District Court of Appeal, First

District of Florida, and was the Respondent

in the Supreme Court of Florida. In this

petition, the parties will be referred

to as they appear before this Court.

The following reference is made in

this petition:

| (A) For the portions of the record

below, sufficient to show jurisdiction

in this Court, which are contained in

the Petitioner's appendix and consist

of pages A-1-128.

-2-

OPINIONS BELOW

The opinion of the Supreme Court

of Florida was rendered on April 16, 1987.

This decision is reported at 507 So.2

590, and is reproduced in Petitioner's

Appendix at A~3. Petitioner's Motion

for Rehearing (A-21) was denied by the

Supreme Court of Florida on June 24, 1987

and such order is reproduced at A-l.

The opinion of the District Court

of Appeal, First District of Florida,

was rendered on September 26, 1985. This

decision is reported at 482 So.2 376,

and is reproduced in Petitioner's Appendix

at A-73. :

The order of the State trial court

denying the petition for writ of habeas

corpus, rendered May 4, 1984, is not reported

but is reproduced at A-1lll.

-3-

GROUNDS UPON WHICH

JURISDICTION IS INVOKED

The opinion of the Supreme Court

of Florida was rendered on April 16, 1987.

The Petitioner's timely motion for rehearing

was denied by the Supreme Court of Florida

on June 24, 1987. The jurisdiction of

this Honorable Court is invoked pursuant

to the specific provisions of Title 28

U.S.C. § 1257(3) and Rule 17(1)(b) and

(c), Rules of the Supreme Court of the

United States. This is a civil case.

Due to the summary nature of extradition,

this case presents an issue which is capable

of repetition yet continually avoiding

review.

-4-

FEDERAL CONSTITUTIONAL PROVISIONS

AND STATUTES INVOKED

Article IV, Section 2, Clause 2,

of the United States Constitution, provides

as follows:

A person charged in any State

with Treason, Felony, or other Crime,

who shall flee from Justice, and

be found in another State, shall

on Demand of the executive Authority

of the State from which he fled,

be delivered up, to be removed to

the State having jurisdiction of

the Crime.

Title 18 U.S.C. §3182 implements the above

provision, and provides as follows:

Wherever the executive, authority

of any state or Territory demands

any person as a fugitive from justice,

of the executive authority of any

State, District or Territory to which

such person has fled, and produced

a copy of an indictment found or

an affidavit made before a magistrate

of any State or Territory, charging

the person demanded with having committed

treason, felony, or other crime,

testified as authentic by the governor

or chief magistrate of the State

or Territory to which such a person

has fled shall cause him to be arrested

and secured, and notify the executive

authority making such demand, or

the agent of such authority appointed

to receive the fugitive, and shall

cause the fugitive to be delivered

to such agent when he shall appear.

tate atti

-5-

Florida's adoption of the Uniform Criminal

Extradition Act (Section 941.01 - 941.29,

Fla. Stat. 1941) includes Section 941.02

which specifically provides:

§ 941.02 FUGITIVES FROM JUSTICE: DUTY

OF GOVERNOR

Subject to the provisions of this

chapter, the provisions of the Constitution

of the United States controlling,

and any and all Acts of Congress

enacted in pursuance thereof, it

is the duty of the Governor of this

state to have arrested and delivered

up to the executive authority of

any other state of the United States

any persons charged in that state

with treason, felony, or other crime,

who has fled from justice and is

found in this statc.

-6-

STATEMENT OF THE CASE

On March 8, 1984, the Governor of Alabama

issued a requisition warrant demanding

the extradition of Respondent Jimmy Josey

from the State of Florida (A-116). The

Requisition Warrant (or demand), certified

as authentic by the Governor of Alabama,

sought Respondent's extradition on the

basis that Respondent stood charged with

theft of property, second degree, committed

in Henry County, Alabama. The Alabama

governor represented in his warrant that

Respondent was a fugitive from justice.

Annexed to the Alabama Requisition

Warrant were the following documents:

1) a sworn application for requisition

executed by the District Attorney for

the 20th Judicial Circuit of Alabama,

alleging that Respondent committed the

crime on October 16, 1983 in the city

of Headland, Alabama and that Respondent

was present in Alabama at the time of

atte

the offense and thereafter fled to Florida

(A-118); and, 2) an indictment returned

by the grand jury of Henry County, Alabama

charging Respondent with the crime of

theft of property to wit, over ten tons

of fertilizer (A-124).

On March 26, 1984 the Governor of

Florida issued a rendition warrant for

the arrest of Respondent, pursuant to

the demand received from the Governor

of Alabama (A-113). Once the Florida

Governor's warrant was served on Respondent,

the Florida trial court set a hearing

to hear Respondent's previously filed

petition for writ of habeas corpus. Respon-

dent's petition contested extradition

by raising two issues: 1) that he was

not spietaskheliv thaceet with a crime,

and 2) that he was not a fugitive from

justice in that he was present in the

State of Florida at all times.

-s-

The Florida trial court held a hearing

on Respondent's petition on April 17,

1984. During the hearing, counsel for

the State of Florida introduced into evidence

the extradition warrants and annexed docu-

ments. Respondent testified that he was

not in Alabama on October 16, 1983.1

Respondent's wife testified that

Respondent was home (in Florida) all day

on October 16 except for thirty minutes.

Four other witnesses testified that they

saw Respondent in Florida on October 16

for varying periods of time between 8:30

a.m. and 5:30 p.m. On May 4, 1984 the

Florida trial court denied Respondent's

petition for writ of habeas corpus, finding

no legal reason to bar Alabama from returning

ae Jey, ~: —-

1 Respondent testified that he had been

at the Golden Plant Food Company (in Headland,

Alabama) in either March, April or May

of 1983. Respondent admitted he had been

employed by the Golden Plant Food Company

and that the company had shipped 3700

gallons of fertilizer to his home.

-9-

Respondent to answer the criminal charge

of theft of property (A-111). The writ

also stayed Respondent's extradition.

Respondent filed an appeal in the

First District Court of Appeal, or intermediate

appellate state court.: The First District

issued an opinion on September 26, 1985

reversing and remanding back to the trial

court with instructions for the court

to make a finding of fact as to whether

Respondent was a fugitive. The First

District certified conflict with another

intermediate state court decision to the

State Supreme Court on the issue of whether

merely conflicting or contradictory evidence

on” tha issue of fugitivity requires denial

of habeas corpus relief in an extradition

case (A-73). The Florida Supreme Court

accepted jurisdiction and issued an opinion

on April 16, 1987 (A-3).

The Florida Supreme Court rejected the

"conflict of evidence" standard espoused

-10-

by this court in South Carolina v. Bailey,

289 U.S. 412 (1933) and later cases, and

adopted the standard found in Walton v.

State, 566 P2 765 (Idaho, 1977), contrary

to established federal precedent found

in South Carolina v. Bailey, 289 U.S.

412 (1932) and Pakulski v. Hickey, 731

F.2 382 (6th Cir. 1984).

-ll-

REASONS FOR GRANTING THE WRIT

As will be demonstrated in this petition,

the questions involved present a federal

question decided by Florida's highest

court in conflict with various federal

court of appeals, and in. conflict with

established precedent of this Court.

The decision of the Florida Supreme Court

below undermines the purpose of Article

_Iv, Section 2 of the United States Consti-

tution and devastates the principle of

federalism inherent in the scheme of inter-

state extradition.

This Court recently reaffirmed that

the extradition clause contains mandatory

language with two intended purposes:

1) to enable each state to bring offenders

to trial as swiftly as possible in the

state where the alleged offense was committed,

and 2) to preclude any state from becoming

a sanctuary for fugitive from justice

-12-

of another state. Puerto Rico v. Branstad,

107 S.Ct. 2802 (1987). The Framers understood

that frustration of those objectives would

seriously impede national unity and endanger

the intecan safety of the states. Id.,

Biddinger v. Commissioner of Police, 245

U.S. 128 (1917); Appleyard v. Massachusetts

203 U.S. 222 (1906); Kentucky v. Dennision

24 How. 66 (1861). Likewise, Congress

in enacting 18 USC §3182 intended extradition

to be a summary procedure, and this Court

recently repeated that extradition proceedings

are to be kept within narrow bounds and

are emphatically not the appropriate time

or place for entertaining defenses or

determining the guilt of innocence of

the charged party. California v. Superior

Court of California, 107 S.Ct. 2433 (1987).

This Court again reemphasized that asylum

state courts are limited to the four issues

set forth in Michigan v. Doran, 439 U.S.

282 (1978):

-13-

a) whether the extradition documents

on their face are in order; b) whether

the petitioner has been charged with

a crime in the demanding state; c)

whether the petitioner is the person

named in the request for extradition;

and d) whether the petitioner is

a fugitive." 439 U.S. at 289.

In South Carolina v. Bailey, 289 U.S.

412 (1932), this Court held that a petitioner

raising the issue of fugitivity should

not be discharged unless he shows by clear

and satisfactory evidence that he was

outside of the demanding state at the

time of the offense. In clarifying the

above, this Court went further and stated

that a petitioner should prevail on that

issue unless it appeared beyond reasonable

doubt that he was not in the demanding

state when the offense was committed.

289 U.S. at 422. This Court explained

that when the record discloses only a

A aie

aa |

-14-

conflict of evidence, then the petitioner g

has not yet met his burden of clear and

satisfactory evidence beyond a reasonable

doubt.

Earlier, in Munsey v. Clough, 196

U.S. 364 (1904), this Court held that

a habeas court will not discharge a aetendiat

arrested under a governor's warrant where

there is-merely contradictory evidence

on the subject of presence in an absence

from the state, as habeas corpus is not

the proper proceeding to try the question

of alibi, or any question as to guilt

or innocense of the accused.

_ Since those decisions, state and

federal courts have uniformly applied

the 'mere conflict' or ‘merely contradictory'

standard in upholding extradition. These

courts have also applied variations of

the ‘clear and satisfactory evidence,

-15-

beyond a reasonable doubt' burden of proof

when faced with the fugitivity issue.l

1 State courts have utilized the following

standards: 1) “clear and convincing evi-

dence," Johnson v. Cronin, 690 P.2d 1277

(Colo. 1984); Vigil v. Martinez, 661

P.2d 1164 (Colo. 1983); Miller v. Debekker,

668 P.2d 927 (Colo. 1983); Langley v.

Hayward, 656 P.2d 1020 (Utah 1982); Lott

v. Bechtold, 289 S.E.2 210 (W.Va. 1982);

Kerr v. Watson, 649 P.2d 1234 (Idaho App.

1982); Light v. Cronin, 621 P.2d 309 (Colo.

1980); Walton v. State, 566 P.2d 765 (Idaho

1977); Baker v. Laurie, 375 A.2d 405 (R.I.

1977); 2) “clear and satisfactory evidence,"

Petition of Upton, 439 N.E.2d 1216 (Mass.

1982); Hill v. Houch, 195 N.W.2d 195 (Iowa

1972), People ex rel Evelord v. Harrell,

87 N.E.2d 765 (I1l. 1949); 3) “clear evidence,"

People ex rel Hall v. Casscles 378 N.Y.S.2d

813 (N.Y. App. Div. 1976); 4) “conclusively

or beyond a reasonable doubt,” Crumpton

v. Owen, 376 So.2d 641 (Miss. 1979); Johnson

v. Ledbetter, 348 So.2d 506 (Miss. 1976);

5) "clear and convincing or beyond a reasonable

doubt," Ex Parte Riccardi, 203 P.2d 627

(Ariz. 1949); 6) "beyond a reasonable

doubt," Barrila v. Blake, 461 A.2d 1375

(Conn. 1983), Balzudua v. Hannahan, 592

P.2d 512 (N. Mex. 1979), In Re Hart,

583 P.2d 411 (Montana 1978); People ex

rel O'Mara v. Ogilvie, 220 N.E.2d 172

(Ill. 1966); Reeves v. Thompson, 288

S.W.2d 451 (Tenn. 1956); People v. Boswell,

500 N.E.2d 116 (111. App. 1986); State

v. Barone, 486 N.E.2d 1157 (Ohio App.

1984); Bryson v. Warden, Baltimore City

Jail, 413 A.2d 554 (Ind. App. 1980); 7)

"substantial and convincing proof," TinaJero

\ '

-16-

However, regardless of which burden of

proof standard utilized, the courts have

routinely refused to deny extradition

where there is a conflict in evidence.

In short, the long established rule has

been that a mere conflict in evidence

is not sufficient to warrant a discharge

of custody. Pakulski v. Hickey, 731 F.2d

382 (€*h Cir. 1984); United States v.

Flood, F.2d 554 (2nd Cir. 1967); cert.

denied, 388 U.S. 919; Lee Won Sing v.

Cottone, 123 F.2d 169 (D.C. Cir. 1941).2

The fugitive's burden is heavy, but it

arises legitimately from the nature of

an extradition proceeding, since essentially

the habeas court is reviewing the factual

determination of the governor as to the

v. Schweitzer, 658 S.W.2d 38 (Mo. App.

1983); and 8) “conclusively,” People v.

Babb, 123 N.E.2d 639 (Ill. 1955); Manning

v. Commonwealth, 344 S.E.2d 151 (Va. App.

1983).

21d.

-l7-

presence of the accused in the demanding

state, and theguilt or innocence of the

accused is not in question. Smith v.

Idaho, supra at 156.

The Florida Supreme Court, in its

decision below, specifically rejected

the above established precedent:

"Based on our reading of Bailey and

the Florida Uniform Interstate Extra-

dition Act, we find that conflict

of evidence is not the appropriate

standard for testing a petitioner's

challenge. The sole question is

whether the petitioner has defeated

the presumption of validity with

clear and convincing proof he was

not in the demanding jurisdiction

when the crime occurred." (A-15)

The Florida Supreme Court further held

that if the state wishes to present evidence

to rebut the fugitive's evidence, the

use of affidavits and other hearsay not

-18-

based on firsthand knowledge is insufficient

to meet the state's burden of proof.

(A-16)

The result of that ruling is to turn

each extradition habeas hearing in the

state of Florida into a mini-evidentiary

hearing on the issue of presence in the

demanding state. Prior to this decision,

the courts in Florida followed the estab-

lished federal precedent in that once

merely conflicting or contradictory evidence

was presented on the issue of fugitivity,

any further inquiry into the weight or

quality of the evidence ended and the

fugitive was remanded for extradition.

Additionally, hearsay affidavits and ex

parte affidavits were considered, in accordance

with federal court pronouncements upon

that issue. See, Munsey v. Clough, supra;

Smith v. Idaho, supra. Now, under the

decision below, fugitives in Florida are

able to regularly defeat extradition simply

-19-

by presenting evidence contrary to the

presumption of fugitivity, since it is

extremely impractical, if not impossible,

for a demanding state to meet the technical

rules of evidence ina ‘trial' in Florida

on the issue of fugitivity.

The issue of fugitivity should not

operate to defeat extradition today since

the factual determination of absence from

the demanding state is essentially an

alibi defense which should only be decided

by the courts of the demanding state.

A fugitive should not be entitled to two

separate trials in two separate states.

Whaley v. State, 328 So.2 720 (Ga. 1983).

Testimony and evidence that a defendant

was not present in the demanding state

on the date of the offense is a defense

to the offense, and should not operate

to defeat extradition unless the evidence

is so clear and satisfactory beyond a

reasonable doubt that there is absolutely

-20-

no doubt that the defendant could not

have been in the demanding state on that

date. South Carolina v. Barley, supra.

A clear example of such evidence would

be asylum state prison records showing

that the accused was incarcerated in the

asylum state on that date. Given the

ease and frequency of air travel existing

today, it is possible for an accused to

eat breakfast in Florida, commit numerous

crimes in other states, and return home

to Florida for dinner the same day. Because

criminals today are able to travel widely

with more frequency, the fugitivity issue

often presents complex evidentiary problems

in asylum state habeas corpus hearings. \

As a result of the decision below,

extradition in Florida is no longer a

summary procedure. Florida prosecutors

now have to abide by stricter rules of

evidence in attempting to rebut a fugitive's

evidence, and a fugitive can now easily

oOo

-2li-

rebut the presumption of fugitivity estab-

lished by the governor's warrant and annexed

documentation. The Florida Supreme Court

ignored the wise statement of this Court

in Bailey at page 419, that "(i]t is not

possible to say with certainty where the

truth lies."

-22-

CONCLUSION

This court should accept jurisdiction

and grant certiorari in order to clarify

these issues, for the benefit of all fifty

states and the territories. The intent

of the Framers in constructing Article

IV, §2 was to establish a complete, straight-

forward and summary procedure for returning

a fugitive to the demanding state; the

Framers did not intend that asylum states

would conduct full-blown evidentiary judicial

proceedings to inquire into the merits

of the charges or alibi defenses. Clarifi-

cation of the fugitivity issue and the

proper evidentiary standard is essential

in“order to avoid a diversity of requirements

and procedures among the states, as well

-23-

as to correct the erroneous decision of

the Florida Supreme Court.

Respectfully submitted,

BOB MARTINEZ

GOVERNOR

oy re ey

ANDREA SMITH HILLYER

ASSISTANT GENERAL

COUNSEL

THE CAPITOL

TALLAHASSEE, FLORIDA

(904) 488-3494

COUNSEL FOR THE PETITIONER

=~2h—

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and

correct copy of the foregoing has been

forwarded by U.S. Mail to Counsel for

Respondent, W. PAUL THOMPSON, Post Office

Drawer 608, DeFuniak Springs, Florida

32433, this JQ day of October, 1987.

ANDREA SMITH HILLYER

Assistant General Counsel

Counsel for Petitioner

APPENDIX

INDEX TO APPENDIX

ORDER OF THE SUPREME COURT OF

FLORIDA, UNDER REVIEW HEREIN,

DENYING PETITIONER'S MOTION FOR

REHEARING, ENTERED JUNE 24, 1987. A-1

OPINION OF THE SUPREME COURT OF

FLORIDA, UNDER REVIEW HEREIN,

FILED APRIL 16, 1987. A-3

PETITIONER'S MOTION FOR REHEARING,

FILED MAY 1, 1987 IN THE SUPREME

COURT OF FLORIDA. A~Zi

OPINION OF THE UNITED STATES COURT

OF APPEALS, SIXTH CIRCUIT, IN

PAKULSKI V. HICKEY, 731 F 2d 382,

(6TH CIR. 1984). A-29

OPINION OF THE FIRST DISTRICT COURT

OF APPEAL, STATE OF FLORIDA, IN

JIMMY JOSEY V. DREW GALLOWAY,

AZ-233, FILED SEPTEMBER 25, 1985,

REVERSING AND REMANDING ON DIRECT

APPEAL FROM THE TRIAL COURT'S DENIAL

OF JOSEY'S PETITION FOR WRIT OF

HABEAS CORPUS FILED TO CONTEST

EXTRADITION. A-73

OPINION OF THE CIRCUIT COURT IN AND

FOR HOLMES COUNTY, FLORIDA, DENYING

THE PETITION FOR WRIT OF HABEAS

CORPUS FILED BY JIMMY JOSEY, DATED

MAY, 4, 1984. A-111

RENDITION WARRANT ISSUED BY THE

GOVERNOR OF FLORIDA ON MARCH 26,

1984.

REQUISITION WARRANT ISSUED BY THE

GOVERNOR OF ALABAMA ON MARCH 8,

1984, AND SUPPORTING DOCUMENTS

(APPLICATION FOR REQUISITION,

CERTIFICATE, INDICTMENT, WRIT OF

ARREST).

A-113

A-116

A-1

SUPREME COURT OF FLORIDA

WEDNESDAY, JUNE 24, 1987

DEAN GALLOWAY, as

sheriff, of Holmes CASE NO. 67,747

County,

DISTRICT COURT OF

Petitioner, APPEAL, 1ST DISTRICT

NO. AZ-233

vs.

JIMMY JOSEY,

Respondent.

On consideration of the motion for

rehearing filed by attorney for petitioner,

IT IS ORDERED by the Court that said

motion be and the same is hereby denied.

OVERTON, SHAW, BARKETT, JJ., and ADKINS,

J. (Ret.), Concur McDONALD, C.J., and

EHRLICH, J., Dissent

A True Copy

TEST:

Sid J. White

Clerk Supreme Court

cc:

A-2

Hon. Raymond E. Rhodes, Clerk

Hon. Cody Taylor, Clerk

Hon. N. Russell Bower, Chief Judge

Andrea Smith Hillyer, Esquire

Hon. Robert A. Butterworth

W. Paul Thompson, Esquire

A-3

SUPREME COURT OF FLORIDA

No. 67,747

DEAN GALLOWAY, as sheriff

of Holmes County, Petitioner

vs.

JIMMY JOSEY, Respondent.

[April 16, 1987]

BARKETT, J.

We have for review Josey v. Galloway,

482 So.2d 376 (Fla. lst DCA 1985),

certified as in conflict with Brunelle

v. Norvell, 433 So.2d 19 (Fla. 4th

DCA 1983). We have jurisdiction.

Art. V, §3(b)(4), Fla. Const.

We are asked to determine the burden

of proof a respondent must bear to

overcome an existing presumption that

he is a fugitive from justice and therefore

subject to extradition. We conclude

that when a warrant is based upon a

facially valid probable cause hearing

A-4

in the foreign state, the accused may

only defeat extradition as to this issue

by producing clear and convincing proof

that he is not a fugitive from justice.

On January 31, 1984, an Alabama grand

jury returned the indictment in this case

charging that:

Jimmy D. Josey, whose name is

to the Grand Jury otherwise unknown,

did knowingly obtain or exert

unauthorized control over ten tons

of nitrogen fertilizer, the property

of Don Johnson, of the value of,

to wit: $1500, with the intent to

deprive the owner of said property,

in violation of 13A-8-3 of the Code

of Alabama.

482 So.2d at 380 (footnote omitted).

Based on these charges Alabama authorities

issued a writ of arrest.

The District Attorney for the Twentieth

Judicial Circuit of Alabama then filed

a sworn application asking the governor

of Alabama to seek Josey's extradition.

In pertinent part, this petition alleged

A-5

that Josey had been charged with second-

degree theft, had been present in Alabama

at the time of the crime, and currently

was a fugitive from justice in Florida.

The governor of Alabama issued a demand

for extradition to the governor of Florida,

attaching copies of the indictment and

the writ of arrest. Honoring this request,

the governor of Florida issued a warrant.

After his arrest in Florida, Josey

filed a petition for writ of habeas corpus.

He challenged the allegation that he was

a fugitive from justice and argued that

he was present in Florida the entire day

of the alleged theft.

At the hearing on Josey's petition,

the state introduced the Alabama indictment

and writ of arrest, the Alabama district

attorney's application, and the Florida

warrant, and rested its case. Josey

A-6

responded to the charges by calling seven

witnesses, including himself and his wife,

who testified that he was not in Alabama

the day of the theft. The evidence reflected

that Josey had been a sales representative

for Golden Plant Food Company, a fertilizer

manufacturer in Henry County, Alabama.

On his own behalf, Josey testified that

he had not been in or near Headland, Alabama,

site of the theft, since attending a meeting

with Golden Plant Food representatives

sometime between March and May 1983.

An eyewitness to the theft testified that

it occurred on October 16, 1983. At that

time, individuals purporting to be Golden

Plant Food Company employees loaded

fertilizer belonging to Don Johnson and

drove away. This eyewitness said that

he knew Josey and that Josey "was not

one of the individuals there with the

truck loading the fertilizer." Four

A-7

witnesses testified that they saw Josey

in Bonifay, Florida, during various times

of the day on October 16, 1983. Both

Josey and his wife testified that he was

in Bonifay the entire day.

After argument, the trial court denied

Josey's petition for habeas corpus, finding

that "there was no legal reason that would

bar Alabama authorities from returning

Jimmy Josey to that state to answer criminal

charges named in the governor's rendition

warrant." Josey obtained review in the

First District Court of Appeal, which

remanded for legally sufficient findings

of fact:

Since the trial court did not

find that appellant failed to

meet his burden of proof, but

stated simply that "no legal

reason" existed for denying

his return to Alabama, it

appears the court may have

denied the writ as a matter

of law.

482 So.2d at 382-83.

A-8

The First District below noted conflict

with Brunelle based on the latter's asser-

tion that extradition is mandatory when

the accused's evidence "does no more than

create a conflict" with the state's evidence.

433 So.2d at 20. Interpreting this language

to mean that any evidentiary conflict

requires extradition, the First District

rejected the reasoning of Brunelle and

found that an accused must be afforded

some meaningful opportunity to defeat

the presumption that he is a fugitive.

We agree with the First District's

reasoning, but decline to read Brunelle

so narrowly. To do so would render mean-

ingless the guarantee of a habeas corpus

hearing and the accompanying right to

present evidence against the warrant under

Florida's Uniform Interstate Extradition

Act, sections 941.01-941.42, Florida

Statutes (1985), as well as under the

A-9

decisions of the United States Supreme

Court. See Michigan v. Doran, 439 U.S.

282, 288-89 (1978).

In Doran, the Court held that interstate

extradition is a summary and mandatory

executive proceeding and ruled that a

facially valid extradition warrant issued

by the governor may not be challenged

solely on the basis of a purported lack

of probable cause. 439 U.S. at 290.

However, Doran recognized four permissible

challenges:

(a) whether the extradition

documents on their face are in

order; (b) whether the petitioner

has been charged with a crime in

the demanding state; (c) whether

the petitioner is the person

named in the request for extra-

dition; and (d) whether the

petitioner is a fugitive.

Doran, 439 U.S. at 289. Only the last

of these factors is pertinent to the case

at bar, and the focus of our inquiry is

directed to the manner by which such a

challenge can be sustained.

| —

A-10

The principles governing this issue

were enunciated by the United States Supreme

Court in Illinois ex rel. McNichols v.

Pease, 207 U.S. 100, 109 (1907).

One arrested and held as a

fugitive from justice is

entitled, of right, upon habeas

corpus, to question the lawful-

ness of his arrest and imprison-

ment, showing by competent

evidence, as a ground for his

release, that he was not, within

the meaning of the Constitution

and laws of the United States, a

fugitive from the justice of the

demanding state, and thereby

overcoming the presumption to

the contrary arising from the

face of an extradition warrant.

In McNichols, the accused contended he

was in a different state on the day of

the crime, but could only account for

his presence there during a few hours

of the afternoon. The warrant did not

limit the time of the crime to the afternoon

hours, and the crime occurred approximately

one to one and one-half hours from the

place the defendant purported to be.

Based on these scant facts, the McNichols

A-1ll

court found that the accused had not defeated

the presumption that he was a fugitive

from justice.

In South Carolina v. Bailey, 289

U.S. 412 (1933), the Supreme Court again

spoke on the issue, using the language

later adopted by the Fourth District in

Brunelle. The Court in mid-thought stated:

", . . [T]he court will not

discharge a defendant arrested

under the governor's warrant

where there is merely contra-

dictory evidence on the subject

of presence in or absence from

the State, as habeas corpus is

not the proper proceeding to

try the question of alibi, or

any question as to the guilt

or innocence of the accused."

289 U.S. at 421 (quoting Munsey v. Clough,

196 U.S. 364, 374 (1905)). In the same

pen stroke, the Court echoed the language

of McNichols and reaffirmed the right

of a defendant to challenge the presumption

that he is a fugitive from justice:

"When a person is held in

custody as a fugitive from

Nd 1 2

justice under an extradition

warrant, in proper form, and

showing upon its face all

that is required by law to be

shown as a prerequisite to its

being issued, he should not be

discharged from custody unless

it is made clearly and satisfac-

torily to appear that he is not

a fugitive from justice within

the meaning of the Constitution

and laws of the United States."

289 U.S. at 421 (emphasis added). The

Bailey court then applied this principle

to its case:

[Wle may not properly approve

the discharge of the respondent

unless it appears from the

record that he succeeded in

showing by clear and satisfactory

evidence that he was outside the

limits of South Carolina at the

time of the homicide.

289 U.S. at 421-22 (emphasis added).

The Court then rephrased the principle:

Stated otherwise, he should

not have been released unless

it appeared beyond reasonable

doubt that he was without the

State of South Carolina when

the alleged offense was

committed and, consequently,

could not be a fugitive from

her justice.

A-13

289 U.S. at 422 (emphasis added). Despite

the use of somewhat inconsistent language,

the Bailey court plainly held that the

presumption arising from the governor's

warrant can be defeated by clear and convinc-

ing evidence that the accused was not

in the jurisdiction where and when the

crime occurred. See also Walton v. State,

98 Idaho 442, 566 P.2d 765 (1977). As

the Second District correctly observed

in State v. Cox, 306 So.2d 156, 159 (Fla.

2d DCA 1974):

The question of whether an

accused is a fugitive from

justice asks nothing more than

whether he was bodily present

in the demanding state at the

time of the offense and thereafter

departed from that state.

Partly because of the language in

Bailey, the Florida courts have shown

considerable confusion in their approach

to this issue. Under facts similar to

those of the present case, the Third District

A-14

in State v. Davila, 481 So.2d 486, 492

(Fla. 3d DCA 1986) (on rehearing), held

that a petitioner cannot defeat the governor's

warrant if the evidence "does no more

than create a conflict . . . on the question

of his whereabouts (during the crime)."

Earlier, that same court in State v. Scoratow,

456 So.2d 922, 923 (Fla., 3d DCA 1984),

had held that the burden is on the accused

to "'overthrow conclusively the presumption

against him'" (quoting State ex rel. Kimbro

v. Starr, 65 So.2d 67, 68 (Fla. 1953));

but the Scoratow court went on to say

that "merely contradictory evidence on

the issue of the accused's presence in

or absence from the demanding state" will

not defeat the warrant. 456 So.2d at’

923. Our own prior holding in Kimbro

may have added to the confusion by noting

that a court's "plain duty" is to deny

habeas corpus releif where the evidence

A-15

"is in direct conflict." 65 So.2d at

69. Based on our reading of Bailey and

the Florida Uniform Interstate Extradition

Act, we find that conflict of evidence

is not the appropriate standard for testing

a petitioner's challenge. The sole question

is whether the petitioner has defeated

the presumption of validity with clear

and convincing proof he was not in the

demanding jurisdiction when the crime

occurred.

We next turn to a related evidentiary

issue addressed by the court below. Based

on its reading of pertinent case law,

the First District concluded that the

state cannot meet its burden of proof

merely by submitting affidavits not based

on first-hand knowledge. 482 So.2d at

385. This holding, while essentially

correct, requires clarification. We agree

with the First District that affidavits

2 Te eee aT ae Ler,

A-16

not based on first-hand knowledge carry

little evidentiary value, either in the

state's or the petitioner's case. However,

other than to prove that the petitioner

is the same person named in the original

charges, the quality of the state's proof

becomes an issue only if the petitioner

comes forward with clear and convincing

evidence that he is not a fugitive. The

burden then shifts to the state to produce

competent evidence discrediting the peti-

tioner's proof to such a degree that it

ceases to be clear and convincing. While

the court may receive any evidence it

deems proper, affidavits and other hearsay

not based on first-hand knowledge, without

more, are insufficient to meet the state's

burden on this issue. We hasten to note,

however, that the evidentiary value of

any extradition paper has no effect on

the presumption that the petitioner is

A-17

a fugitive, which arises immediately upon

issuance of a valid warrant.

Adhering to these core principles,

the First District remanded the present

action to the trial judge to weigh its

evidence under the appropriate legal standard.

We concur and cite with approval a pertinent

analysis by the Supreme Court of Idaho:

If a petitioner presents no

evidence, the presumption operates

to mandate the extradition. If

a petitioner does present evidence,

the trial court must decide

whether the petitioner has estab-

lished by clear and convincing

evidence that he was absent from

the demanding state at the time

of the offense. The state, at

its option, may present evidence

or not. If [the state] chooses

to submit additional affidavits,

the court must view all evidence

presented and determine whether,

on balance, the petitioner has

carried his burden. ... If,

on the other hand, no evidence

is presented by the state, and

the court is faced with uncon-

troverted evidence from the

defendant, it must evaluate

that evidence alone to determine

whether the petitioner has

carried his burden by clear and

convincing proof.

}

A-18

Walton v. State, 98 Idaho 442, 445, 566

P.2a 765, 768 (1977). Our sister court

further explained that

uncontroverted evidence from

the petitioner does not automatically

mean that the petitioner has met

this burden,for the court might

disbelieve the credibility of the

witnesses. If the trial court views

all the evidence and determines

that the presumption was not

overturned, then it is not

necessary for the state to go

forward with evidence.

Id. at 445, 566 P.2d at 768.

We find that the Idaho court's analysis

correctly states the law pertaining to

this issue. The presumption and procedure

outlined above are founded, on one hand,

in our obligation under the constitution

and its supremacy clause to ensure the

integrity of the extradition process.

Florida may not provide sanctuary to those

fleeing justice in her sister states,

thereby turning this nation's criminal

justice system into a game whose outcome

rests largely on whether the accused can

A-19

cross a border. See Doran, 439 U.S. at

287. On the other hand, the constitution

forbids a state from exercising its extra-

dition powers based on false accusations,

simple ignorance of the law or wanton

abuse of process. Every state has an

equal obligation to see that no such attempt

is successful and, simultaneously, that

any corrective measures it takes will

preserve the constitutional policy underlying

extradition. Id. at 288.

Accordingly, we approve the district

court's opinion and its action in remanding

the matter to the trial court for further

proceedings consistent herewith.

It is so ordered.

OVERTON and SHAW, JJ., and ADKINS, J.

(Ret.), Concur

MCDONALD, C.J. and EHRLICH, J., Dissent

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED.

Application for Review of the Decision

of the District Court of Appeal - Certified

Direct Conflict of Decisions

A-20

First District - Case No. AZ-233

Robert A. Butterworth, Attorney General,

and Andrea Smith Hillyer, Assistant Attorney

General, Tallahassee, Florida

for Petitioner

W. Paul Thompson, DeFuniak Springs, Florida

for Respondent

ae ee Po ahs lain ‘

a i ee A ne ee ee ee ee Se ee es

A-21

IN THE SUPREME COURT OF FLORIDA

DREW GALLOWAY, as

Sheriff of Holmes

County,

Petitioner,

vs. CASE NO. 67,747

JIMMY JOSEY,

Respondent.

MOTION FOR REHEARING

COMES NOW, Petitioner, by and through

the undersigned counsel, and hereby moves

this court for rehearing in the instant

matter based upon the following grounds;

1. In the opinion issued by this

court, the majority wrote:

Based on our reading of Bailey

and the Florida Uniform Inter-

state Extradition Act, we

find that conflict of evidence

is not the appropriate standard

for testing a petitioner's

challenge. The sole question

is whether the petitioner has

defeated the presumption of

validity with clear and convinc-

ing proof he was not in the

demanding jurisdiction when

the crime occured.

App., p 6 (emphasis added)

A-22

The majority then quotes with approval

from a decision of the Idaho Supreme Court

in Walton v. State, 566 P.2d 765 (Idaho

1977), in support of the conclusions above.

2. This court misapprehended the

holding of the Idaho Supreme Court in

Walton v. State, supra. In Walton, the

court specifically recognized and held,

pursuant to federal case law, that "when

the record discloses a mere conflict in

evidence, it is not enough to defeat the

extradition." 566 So.2d at 768.

This Court's language in rejecting

the “conflict of evidence" standard yet

quoting with approval from Walton is incon-

sistent when the entire Walton opinion

is read. Additionally, in quoting from

Walton this Court omitted a very important

sentence contained in parentheses in the

quoted portion of the Walton opinion:

(We would note that the burden

placed on the state is not-an

A-23

onerous one; only slight

evidence is needed to rebut

the petitioner's showing.

State v. Limberg, 274 Minn. 3l,

142 N.W. 2d 563 (1963). This

Court has previously approved

the use of affidavits for this

purpose. Smith v.State, supra.

566 P.2d at 768)

The aobve important sentences were omitted

by this court despite the fact that the

above explains the true intent of the

Walton court.

3. Further, the majority of state

courts have followed the clear dictates

set forth by the federal courts in this

regard. Petitioner cited the case of

In Re Rowe, 423 N.E. 2d 167 (Ohio 1981),

in the initial brief on the merits as

stating the correct standard accepted

by the majority of state courts and the

federal courts. (See page 19 of Petitioner's

brief). The Ohio Supreme Court's opinion

in Rowe was specifically approved, as

stating the correct standard, by the United

fens

A-24

States Court of Appeals for the Sixth

Circuit, in Pakulski v. Hickey, 731 F.2d

382 (6 Cir. 1984). A copy of Pakulski

is attached for this court's convenience.

As stated in Pakulski (quoting from

Rowe) (and quoted in Petitioner's brief)

the correct standard is as follows:

We agree and conclude under the

ratio decidendi of Munsey v.

Clough and South Carolina v.

Bailey, first, the burden is

upon the petitioner to rebut

the presumption created by

the issuance of the Governor's

warrant that the petitioner is

a fugitive from justice by

proof beyond a reasonable doubt.

Secondly, that where’ there is

contradictory evidence upon the

issue of fugitivity and there is

substantial and credible evidence

placing the petitioner in the

demanding state on or about the

date of the offense, the

petitioner has not met the

burden placed upon him and the

habeas corpus court may not,

under the guise of passing upon

the credibility of witnesses,

resolve the fact of the petitioner's

presence in the

demanding state in favor of

the petitioner and discharge

him from custody. To conclude

otherwise and hold the court

A-25

possesses its ordinary unlimited

authority to pass upon the

credibility of witnesses and

resolve disputed questions of

material fact would not be

consonant with the summary

and unique character of

extradition proceedings

wherein issues of guilt and

innocence, including alibi,

are for resolution in the courts

of the demanding state.

Pakulski, 731 F.2d at 390, quoting from

In Re Rowe, 423 N.E. 2d at 173-174. As

explained in Petitioner's brief, the habeas

court is not denied its authority to pass

upon the credibility of witnesses, but

the court must do so only in conformance

with United States Supreme Court pro-

nouncements.

4. The result of this Court's opinion

it to turn every habeas corpus action

in an extradition case into a mini-

evidentiary hearing in the State of Florida,

contrary to the clearly expressed con-

stitutional design of extradition being

summary and mandatory. Evidence in extra-

A-26

dition proceedings is to be construed

liberally in favor of the demanding state.

The constitutional provisions are thwarted

by requiring the state to affirmatively

produce additional evidence every time

the fugitive testifies or produces evidence

that he was not in the demanding state

at the time of the crime. It would be

extremely impractical if not impossible

for the demanding state to meet the technical

rules of evidence in the asylum state

and carry on a full scale mini-trial with

witnesses brought from the demanding state

to the asylum state on such an issue as

alibi. The resulting delays and consequent

appeals will be substantial.

Wherefore, Petitioner respectfully

requests that this court reconsider the

majority opinion in light of the above

and in light of the following language

consistentiy utilized by the United States

_ Supreme Court regarding extradition:

A-27

The constitutional provision

relating to fugitives from

justice, as the history of its

adoption will show, is in the

nature of a treaty stipulation

entered into for the purpose

of securing a prompt and

efficient administration of

the criminal laws of the

several state, -- an object of

the first concern to the people

of the entire country, and

which each state is bound, in

fidelity to the Constitution,

to recognize. A faithful vigorous

enforcement of that stipulation

is vital to the harmony and

welfare of the states.

Appleyard v. Massachusetts, 27

§.Ct. 122, 124° ti9063.

This Court should remember that case law

concerning extradition must be uniform

nationwide or else certain states will

become havens for fugitives and the intent

of the constitutional provision will be

thwarted. Courts across the United States

have consistently followed the United

States Supreme Court's pronouncement that

merely contradictory or conflicting evidence

will not defeat extradition. See South

“2

A-28

Carolina v. Bailey, 289 U.S. 412 (1932);

Munsey v. Clough, 196 U.S. 364 (1905).

Respectfully submitted,

Andrea Smith Hillyer

Assistant General Counsel

Office of the Governor

Room 209, The Capitol

Tallahassee, Florida

32399-0001

(904) 488-3494

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and

correct copy of the foregoing has been

furnished by U.S. Mail to W. Paul Thompson,

Post Office Drawer 608, DeFuniak Springs,

Florida 32433, this lst day of May,

1987.

Andrea Smith Hillyer

Assistant General Counsel

A-29

Mitchell J. PAKULSKI, et al.,

Petitioners-Appellants,

Vv.

Donald T. HICKEY, Sheriff of Lucas

County, Ohio, et al.,

Respondents-Appellees.

No. 83-3143

United States Court of Appeals

Sixth Circuit

Argued March 8, 1984

Decided April 13, 1984

Defendants appealed from a judgment

of the United States District Court for

the Northern District of Ohio, Nicholas

J. Walinski, J., denying federal habeas

corpus relief from request for extradition.

The Court of Appeals, Harry Phillips,

Senior Circuit Judge, held that: (1) federal

habeas corpus relief from extradition

of defendants from Ohio to North Carolina

was not available on ground that defendants

were not fugitives where evidence on question

whether defendants were in North Carolina

A-30

on the date of alleged offense was contra-

dictory, and (2) federal habeas corpus

relief from extradition of one defendant

was not available on ground that second

_ extradition request based on additional

; charge subjected defendant to double jeopardy

' and violated due process since petitioner

_ could assert claims of prosecutorial miscon-

- duct and double jeopardy in North Carolina.

Affirmed.

1. Habeas Corpus 85.8(2)

Federal habeas corpus relief from

extradition of defendants from Ohio to

North Carolina was not available on ground

' that defendants were not fugitives where

evidence on question whether defendants

were in North Carolina on date of alleged

offense was contradictory. U.S.C.A. Const.

fart. 4, §2, cl. 2; 18 U.S.C.A. § 3182.

A-31

2. Habeas Corpus 45.3(7)

Federal habeas corpus relief from

extradition of defendant from Ohio to

North Carolina was not available on ground

that second extradition request based

on additional charge subjected defendant

to double jeopardy and violated due process

since petitioner could assert claims of

prosecutorial misconduct and double jeopardy

in North Carolina. U.S.C.A. Const. Art.

4, § 2, cl. 23 186 U.8.C.A. § 3182.

Henry B. Herschel, Paul Davis (argued),

Christopher C. Loyd, James C. Sass, Toledo,

Ohio, for petitioners-appellants.

James D. Bates, Asst. Lucas County

Prosecutor (argued), Toledo, Ohio, J.

Michael Carpenter, Asst. Atty. Gen. of

N.C. Dept. of Justice (argued), Jack L.

Cozort, Raleigh, N.C., for respondents-

appellees.

“ 2 ry op ty

ey aes a ee eee Te ee ee egy YB,

A-32

3 Before KEITH and MERRITT, Circuit

3 Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

The question in this case is whether

or not the three appellants are "fugitives"

from North Carolina and subject to extra-

dition. Extradition of appellants was

ordered by Ohio Governor James A. Rhodes

on May 18, 1979 upon the request of North

Carolina Governor James B. Hunt.

The extradition has been delayed

_ for a protracted period of time by a writ

of habeas corpus improvidently granted

by the Court of Common Pleas of Luca County,

on October 2, 1979. The decision

of the Common Pleas Court was reversed

by the Supreme Court of Ohio in a well-

reasoned opinion, In re Rowe, 67 Ohio

ea,

St.2d 115, 423 N.E.2d 167 (1981). The

appellants also filed a petition for a

writ of habeas corpus in the United States

A-33

District Court for the Northern District

of Ohio, Western Division.

The appellants are Mitchell Pakulski,

Elliot Rowe and Donna Rowe, who appeal

from the judgment of the district court

dismissing their petitions for a writ

of habeas corpus. We affirm. Following

oral argument on March 8, 1984, this Court,

from the bench on its own motion, terminated

the order staying the extradition pending

this appeal, entered by the district court

on February 24, 1983.

The Supreme Court Court of Ohio

summarized the facts as follows:

On September 17, 1978, the body

of Willard Setzer, who had been shot,

was discovered in Waynesville, Haywood

County, North Carolina. On November 27,

1978, Elliot Rowe III and Mitchell

John Pakulski, appellees herein,

were charged in the General Court

A-34

of Justice, Superior Court Division

of Haywood County, with the offense

of murder in the first degree, committed

on or about September 17, 1978, which

is a capital offense prescribed by

General Statutes Section 14-17 of

North Carolina. Arrest warrants

were issued by the magistrate of

the District Court Division of the

court. On December 6, 1978, Donna

Rowe, also an appellee herein, was

similarly charged and an arrest warrant

issued.

Appellees were thereafter arrested

in Lucas County, Ohio, upon fugitive

warrants issued by the Court of Common

Pleas of Lucas County pursuant to

‘ R.C. 2963.11. On December 6, 1978,

James B. Hunt, Jr., Governor of the

state of North Carolina, formally

requested of James A. Rhodes, Governor

A-35

of the state of Ohio, the arrest

and extradition of Elliot Rowe and

Mitchell John Pakulski as fugitives

from justice, followed, on December .

13, 1978, with a similar request

for the extradition of Donna Rowe.

On May 18, 1979, Governor Rhodes

granted extradition by the issuance

of an arrest warrant for appellees,

which warrants were executed by the

Sheriff of Lucas County. Thereafter,

each appellee fiied a complaint for

a writ of habeas corpus, pursuant

to R.C. 2963.09, to contest the legality

of their arrest. The respondent,

the Sheriff of Lucas County, filed

a “return" to the complaint averring, |

inter alia, that appellees were being |

held pursuant to a warrant of arrest

issued by the Governor of the state

of Ohio.

A-36

The complaints were joined for

hearing and evidence presented.

Essentially, by their complaint aver-

ments and evidence appellees asserted

they were not fugitives from justice

within the meaning of that term as

used in the federal Constitution

and federal and state extradition

statutes, for the reason they were

not in the demanding st#te of North

Carolina on or about the date the

offense charged was committed. By

oral pronouncement on September 7,

1979, followed on October 2, 1979,

by judgment entry, the. court granted

the writ of habeas corpus and discharged

appellees from custody. In its judg-

ment entry, the court inter alia,

found beyond a reasonable doubt that

appellees "were not in the state

A-37

of North Carolina on the date of

the alleged offense."

67 Ohio St.2d at 115-117.

In addition to the true bills of

indictment for first degree murder against

the three appellants previously returned

by the Haywood County, North Carolina

grand jury, the grand jury also returned

an indictment on November 6, 1979 charging

Pakulski with forgery and uttering certain

checks in August 1978 prior to the Setzer

murder. On November 5, 1980 Ohio's Governor

Rhodes, at the request of North Carolina's

Governor Hunt, granted extradition of

Pakulski on these charges.

Pakulski filed a second petition

for writ of habeas corpus in the United

States District Court for the Northern

District of Ohio, Western Division. This

petition is discussed in Part VII of this

opinion. The District Court granted a

A-38

stay order on November 20, 1980, staying

all proceedings in the Common Pleas Court

of Lucas County regarding the extradition

of Pakulski on the charge of forging and

uttering. The State of Ohio filed a aiaaky

motion to dismiss the petition for habeas

corpus and dissolve the stay order. The

District Court granted the motion to dismiss

the petition and dissolve the stay order

in a memorandum opinion and order dated

February 24, 1983.

The proceeding involving the charges

against Pakulski for forging and uttering

was consolidated by the District Court

with the original habeas corpus proceeding

involving the extradition of all three

appellants on the charge of murder. The

present appeal seeks reversal of the judg-

ments of the District Court in dismissing

both petitions for writs of habeas corpus.

On December 3, 1979 Pakulski was charged

by a United States Grand Jury for the

A-39

Western District of North Carolina with

the interstate transportation of the stolen

motor vehicle owned by the murder victim,

Willard Setzer, and with the theft of

checks stolen from the United States mail.

The United States Attorney for the

Western District of North Carolina agreed,

pursuant to Rule 20, Fed.R.Cr.P., toa

transfer of these federal charges. Pakulski

entered an Alford plea of guilty on March

28, 1980 before District Judge Nicholas

J. Walinski, who placed him on probation

for a period of three years.

Interstate extradition finds its

source in the Constitution of the United

States, and long has enabled a State to

bring alleged offenders to trial in the

jurisdiction where a crime took place.

Clause 2 of Section 2, Article IV

of the Constitution of the United States

provides:

A-40

Section 2, Clause 2. Extradition

A person charged in any State with

Treason, Felony, or other Crime,

who shall flee from Justice, and

be found in another State, shall

on Demand of the executive Authority

of the State from which he fled,

be delivered up, to be removed to

the State having Jurisdiction of

the Crime.

The Supreme Court has held that the

design of this Constitutional provision

"was, and is, to eliminate for this purpose

the boundaries of the States, so that

each may reach out and bring to speedy

trial offenders against its laws from

any part of the land." Biddinger v. Commis-

sioner of Police, 245 U.S. 128, 133, 38

$.Ce. 48 407 G2 Le. 193 (i9iF}.

Congress first implemented this consti-

tutional provision in 1793. 1 Stat. 302.

A-41

This principle is codified at 18 U.S.C.

§3182, which provides as follows:

§ 3182. Fugitives from State or

Territory to State, District or

Territory

Whenever the executive authority

of any State or Territory demands

any person as a fugitive from justice,

of the executive authority of any

State, District or Territory to which

such person has fled, and produces

a copy of an indictment found or

an affidavit made before a magistrate

of any State or Territory, charging

the person demanded with having

committed treason, felony, or other

crime, certified as authentic by

the governor or chief magistrate

of the State or Territory from whence

the person so charged has fled, the

executive authority of the State,

District or Territory to which such

287,

A-42

person has fled shall cause him to

be arrested and secured, and notify

the executive authority making such

demand, or the agent of such authority

appointed to receive the fugitive,

and shall cause the fugitive to be

delivered to such agent when he shall

appear. If no such agent appears

within thirty days from the time

of the arrest, the prisoner may be

discharged.

In Michigan v. Doran, 439 U.S. 282,

288-89, 99 S.Ct. 530, 534, 535, 58

L.Ed.2d 521, the Supreme Court stated:

The Extradition Clause was intended

to enable each state to bring offenders

to trial as swiftly as possible in

the state where the alleged offense

was committed. Biddinger v. Commis-

sioner of Police, 245 U.S. 128, 132-133

[38 S.ct. 41, 42-43, 62 L.Ed. 193]

(1917); Appleyard v. Massachusetts,

A-43

203° 0.8... 222, (327 (27 CiGhs 422,

123-24, 51 L.Ed. 161] (1906).

The purpose of the Clause was to preclude

any state from becoming a sanctuary for

fugitives from justice of another state

and thus “balkanize" the administration

of criminal justice among the several

states. It articulated, in mandatory

language, the concepts of comity and full

faith and credit, found in the immediately

preceding clause of Art. IV. The Extra- ;

dition Clause, like the Commerce Clause,

served important national objectives of

a newly developing country striving to

foster national unity. Compare Biddinger,

supra, with McLeod v. Dilworth Co., 322

U.S. 327, 330 {64 S.Ct. 2623; 1025-26,

88 L.Ed. 1304] (1944). In the administra-

tion of justice, no less than in trade

and commerce, national unity was thought

to be served by de-emphasizing state lines

A-44

for certain purposes, without impinging

on essential state autonomy.

Interstate extradition was intended

to be a summary and mandatory-executive

proceeding derived from the language of

Art. 2 IV59.$ 2, cis°2,-0f the Constitution.

Biddinger, supra, at 132; In re Strauss,

197 U.6.-324,> 332425 S.Ct. *535,°337;

49 L.Ed. 774](1905); R. Hurd, A Treatise

on the Right of Personal Liberty and the

Writ of Habeas Corpus 598 (1858). The

Clause never contemplated that the asylum

state was to conduct the kind of preliminary

inquiry traditionally intervening between

the initial arrest and betel.

Near the turn of the century this

Court, after acknowledging the possibility

that persons may give false information

to the police or prosecutors and that

a prosecuting attorney may act "either

wantonly or ignorantly," concluded:

A-45

"While courts will always endeavor

to see that no such attempted wrong

is successful, on the other hand,

care must be taken that the process

of extradition be not so burdened

as to make it practically valueless.

It is but one step in securing the

presence of the defendant in the

court in which he may be tried, and

in no manner determines the question

of guilt." In re Strauss, supra,

at 332-333 (25 :8.Ct. at.537i.

Whatever the scope of discretion

vested in the governor of an asylum

state, cf. Kentucky v. Dennison,

24 How. 66, 107 [16 L.Ed. 717](1861),

the courts of an asylum state are

bound by Art. IV, § 2, cf. Compton

v. Alabama, 214 U.S. l, 8 [29 S.Ct.

605, 607, 53 L.Ed. 885](1909), by

§ 3182, and, where adopted, by the

A-46

Uniform Criminal Extradition Act.

A governor's grant of extradition

is prima facie evidence that the

constitutional and statutory require-

ments have been met. Cf. Bassing

v. Cady, 208 U.S. 386, 392 [28 S.Ct.

392, 393-94, 52 L.Ed. 540](1908).

Once the governor has granted extradi-

tion, a court considering release

on habeas corpus can do no more than

decide (a) whether the extradition

documents on their face are in order;

(b) whether the petitioner has been

charged with a crime in the demanding

state; (c) whether the petitioner

is the person named in the request

for extradition; and (d) whether

the petitioner is a fugitive. These

are historic facts readily verifiable.

Michigan v. Doran was quoted and

applied by the Supreme Court of Ohio in

A-47

In re Rowe, supra, 67 Ohio St.2d at 118-119,

423 N.E.2d 167, and by this Court in its

recent opinion in Camberlain v. Celeste,

729 F.2d 1071 (6th Cir. 1983).

Ohio has enacted the Uniform Criminal

Extradition Act, R.C. 2963.02. The Supreme

Court of Ohio began it's opinion In re

Rowe, supra, with this language:

We need not pause in this appeal

for a threshold inquiry as to whether

federal or state law is controlling

with respect to the matter before

us. It is definitively and conclu-

sively settled that when interstate

extradition is sought upon the basis

that one has committed an offense

in the demanding state and fled therefrom

to an asylum state, federal law,

both constitutional and statutory,

in so far as it is applicable, is

controlling. South Carolina v. Bailey,

4 4

A-48

(1933), 289 U.S. 412 [53 S.Ct. 667,

77 L.Ed. 1292]; Innes v. Tobin (1916),

240 U.S. 127 [36 S.Ct. 290, 60 L.Ed.

562]; Kentucky v. Dennison, (1860),

65 U.S. 66 [16 L.Ed. 717]; Prigg

v. Pennsylvania (1842), 41 U.S. 539

[10 L.Ed. 1060]. Further, it is

the duty of state courts to administer

the federal law as construed by the

United States Supreme Court. South

Carolina v. Bailey, supra.

. The controlling nature of federal

law with respect to interstate extradi-

tion was recognized by this court

in Ex parte Ammons (1878), 34 Ohio

St. 518.

The Uniform Criminal Extradition

Act (11 Uniform Laws Anno. 51) was

adopted by the General Assembly in

1937. 117 Ohio Laws 588. In obvious

recognition of the supremacy of federal

A-49

law, it was provided in R.C. 2963.02

as follows:

"Subject to section 2963.01 to

2963.27, inclusive, of the Revised

Code, the constitution of the United

States and all acts of congress enacted

in pursuance thereof, the governor

shall have arrested and delivered

to the executive authority of any

other state of the United States,

any person charged in that state

with treason, felony, or other crime,

who has fled from justice and is

found in the state." 67 Ohio St.2d

at 117, 423 N.E.2d 167.

III

Appellants sought to avoid extradition

by undertaking to prove that they are

not "fugitives" -- that they were in Ohio

at the time of the North Carolina murder

with which they are charged.

A-50

The Supreme Court of Ohio stated

In re Rowe:

The right to raise such issue

of fugitivity in a habeas corpus

proceeding in the asylum state is

always open to the accused, to be

determined as a question of fact,

as a federal constitutional right.

Michigan v. Doran, supra; Hyatt v.

People, ex rel. Corkran (1903), 188

U.S. 691 [23 S.Ct. 456, 47 L.Ed.

657]; Roberts v. Reilly [116 U.S.

80, 6 S.Ct. 291, 29 L.Ed. 544], surpa.

The right to file a writ of habeas

corpus is also provided in R.C. 2963.09

(Section 10 of the Uniform Criminal

Extradition Act.) This court has

held that fugitivity is a proper

issue for consideration both by the

Governor and the habeas corpus court.

In re Harris (1959), 170 Ohio St. 15l

[163 N.E.2d 762].

A-51

It is a fundamental proposition

from which there is no dissent that

guilt or innocence with respect to

the criminal charges is not a proper

area of inquiry either by the Governor

of the asylum state or the habeas

corpus court. The Ohio General Assembly

has by positive enactment prohibited

such inquiry "except as it may be

involved in identifying the person

held as the person charged with the

crime". R.C. 2961.18 (Section 20

of the Uniform Criminal Extradition

Act). Such rule, however, does not

foreclose inquiry into the fugitivity

defense if raised and evidence, if

probative of the fact that accused

is not a fugitive even though it

may also incidentally tend to prove

an alibi defense, is admissible.

A-52

See State, ex rel. Davey v. Owen

(1937), 133 Ohio St. 96 [12 N.E.2d

144].

The issuance of the Governor's

warrant herein, pursuant to R.C.

2963.07, raised a presumption that

appellees were in lawful custody

and the burden to overcome such prima

facie case in favor of North Carolina

by sufficient proof rested upon appel-

lees. Michigan v. Doran, supra (439

U.S. 282 [99 S.Ct. 530, 58 L.Ed.2d

521]); Sourth Carolina v. Bailey,

supra (289 U.S. 412 [53 S.Ct. 667,

77 L.Ed. 1292])). ’

To rebut the presunption of the

lawfulness of their arrests under

the Governor's warrant, appellees

called 14 witnesses whose testimony,

in combination, placed appellees

in Toledo, Ohio, in the September 14,

A-53

1978 time period. The witnesses

were primarily, but not wholly, friends,

relatives, and acquaintances of appel-

lees. 67 Ohio St.2d at 120, 423

N.E.2d 167.

The States of Ohio and North Carolina

introduced two witnesses who testified

unequivocally that they saw appellants

in North Carolina shortly preceding the

murder of the decedent. The Supreme Court

of Ohio summarized the testimony of these

two witnesses in 67 Ohio St.2d at 121,

footnote 2, 423 N.E.2d 167. The district

court summarized their testimony as follows:

Mr. Thomas Beck, a police officer

from Waynesville, North Carolina,

testified that he had been on routine

patrol from 6:00 p.m. to 2:00 aca.

on the evening of September 15, 1978

(Tr. 11). He was working with officer

Daniel Logan (Tr. 11). Mr. Beck

A-54

was making routine rounds of the

bars in Waynesville that evening

to check for underage drinkers (Tr.

12-13). He testified that he saw

Donna Rowe at approximately 8:00

or 8:15 ina bar known as the Casa

Grande Club in the town of Waynesville

and that she was accompanied by a

woman he identified as Marion Rupe

(Tr. 14). He had a conversation

with Marion Rupe regarding her age

and the consumption of alcohol (Tr.

16).

He later returned to the Casa

Grande Club between 11:30 p.m. and

11:45 p.m. where he again observed

Donna Rowe enter the bar with a man

he identified as Mitch Pakulski (Tr.

18-19). He testified that he could

not describe Donna Rowe's attire

at 8:00 p.m. but that later in the

A352

evening he remembered that she wore

blue jeans, a light-colored blouse

and knee-high boots. He further

indicated that each of the petitioners

was wearing a black riding hat with

a red feather in it. (Tr. 18-19).

The State next called Marion Rupe,

age 17, a resident of Waynesville,

North Carolina, to the stand. She

stated that Donna Rowe and Elliot

Rowe are her first cousins (Tr. 3-4).

She saw them on September 15, 1978

at the trailer home of her sister,

Frankie Rupe, in Waynesville at ap-

proximately 4:30 p.m. They discussed |

arrangements to go to the Casa Grande

Club that evening to celebrate the

witness's seventeenth (17th) birthday. 4

Both Donna and Frankie agreed to

go only after Marion provided them

with pants to wear. (Tr. 7-8).

A-56

That evening Marion's brother

Clyde and Elliot Rowe drove her to

the Casa Grande Club where she arrived

at about 7:10 p.m. Elliot Rowe never

entered the bar and Marion never

saw him again the rest of the evening

(Pe.- 8),

Donna Rowe and Frankie Rupe arrived

at the case Grande at about 7:30 p.m.

(Tr. 10). Marion described Donna's

attire as consisting of Wrangler

jeans, a red top with no sleeves,

and a black hat with a red feather

in it. The cuffs of Donna's jeans

were tucked inside her knee-high

boots (Tr. 10). Marion testified

that she remembered speaking to a

police officer that evening regarding

underage alcohol consumption but

she did not know the officer's name

(rr. 1 1i-13).

A-57

Marion stated that Mitch Pakulski

entered the club at about 8:15 p.m.

(Tr. 14). He was wearing blue jeans,

a Wrangler jacket and a black hat

with a red feather in it. The cuffs

of his pants weve tucked in the top

of his boots (Tr. 15). Donna came

back in after about 15 minutes but

Marion didn't see Pakulski the rest

of the evening (Tr. 17). Marion

left the bar at about 11:15 to go

home (Tr. 17). Donna Rowe returned

to the trailer at about 2:00 a.m.

(Fe. 233%

The next day, September 16, 1978,

Marion saw Donna Rowe, Mitch Pakulski

and Elliott Rowe when they drove

up to her house in the company of

a male stranger who she didn't know

at about 1:15 p.m. (Tr. 20). After

a short conversation they left her

ii cic ieai

A-58

home and she did not see them the

rest of the day (Tr. 20-22).

The general purpose of extradition

law was defined by the Supreme Court in

Appleyard v. Massachusetts, 203 U.S. 222,

22i~220, 27 B.Ce. i122, 124, Si 1.Bd. 161

(1906), as follows:

| The constitutional provision that

a person charged with crime against

the laws of a State and who flees

from its justice must be delivered

; up on proper demand, is sufficiently

comprehensive to embrace any offense,

whatever its nature, which the State,

consistently with the Constitution

and laws of the United States, may

have made a crime against its laws.

Kentucky v. Dennison, 24 How. 66,

69 [16 L.Ed. 717]; Ex parte Reggel,

114 U.S. 642, 650 [5 S.Ct. 1148,

1152-53, 29 L.Ed. 650]. So that

A-59

the simple inquiry must be whether

the person whose surrender is demanded

is in fact a fugitive from justice,

not whether he consciously fled from

justice in order to avoid prosecution

for the crime with which he is charged

by the demanding State. A person

charged by indictment or by affidavit

before a magistrate with the commission

within a State of a crime covered

by its laws, and who, after the date

of the commission of such crime leaves

the State -- no matter for what purpose

or with what motive, nor under what

belief -- becomes, from the time

of such leaving, and within the meaning

of the Constitution and the laws

of the United States, a fugitive

from justice, and if found in another

State must be delivered up by the

Governor of such State to the State

A-60

whose laws are alleged to have been

violated, on the production of such

indictment or affidavit, certified

as authentic by the Governor of the -

State from which the accused departed.

Such is the command of the supreme

law of the land, which may not be

disregarded by any State. The consti-

tutional provision relating to fugitives

from justice, as the history of its

adoption will show, is in the nature

of a treaty stipulation entered into

for the purpose of securing a prompt

and efficient administration of the

criminal laws of the several States

-- an object of the first concern

to the people of the entire country,

and which each State is bound, in

fidelity to the Constitution, to

recognize. A faithful, vigorous

enforcement of that stipulation is

A-61

vital to the harmony and welfare

of the States. And while a State

should take care, within the limits

of the law, that the rights of its

people are protected against illegal

action, the judicial authorities

of the Union should equally take

care that the provisions of the Consti-

tution be not so narrowly interpreted

as to enable offenders against the

laws of a State to find a permanent

asylum in the territory of another

State.

South Carolina v. Bailey, 289 U.S.

412, 53 S.Ct. 667, 77 L.Ed. 1292 (1933)

involved an extradition proceeding in

which the alleged fugitive claimed to

have been absent from the demanding state

when the murder was committed and conse-

quently that he was not a fugitive from

justice. A state court of the asylum

A-62

state, after hearing the testimony of

thirty or more witnesses and considering

a number of affidavits, concluded that

the petitioner was not a fugitive and

ordered his release from custody. The

Supreme Court of the asylum state affirmed.

The United States Supreme Court reversed

on the ground that there was a conflict

of evidence on the issue of fugitivity.

This decision held that a person who has

been arrested in one state as a fugitive

from justice, and who seeks discharge

by habeas corpus upon the ground that

he was not in the demanding state at the

time of the alleged crime, has the burden

of proving the alibi beyond a reasonable

doubt; and, if the evidence is conflicting,

he should not be released. 289 U.S. at

422, 53 S.Ct. at 671.

In Munsey v. Clough, 196 U.S. 364,

375, 25 S.Ct. 282, 285, 49 L.Ed. 515 (1905),

A-63

the Supreme Court wrote: "[T]he Court

will not discharge a defendant arrested

under the governor's warrant where there

is merely contradictory evidence on the

subject of presence in or absence from

the State, as habeas corpus is not the

proper proceeding to try the question

of alibi, or any question as to the guilt

or innocence of the accused."

In Pettibone v. Nichols, 203 U.S.

192, 206, 27 &.Ct. dll, 115, 51 L.Ed.

148 (1906), the Court, speaking through

Justice John Marshall Harlan, stated:

"The constitutional and statutory provisions

referred to were based upon the theory

that, as between the States, the proper

place for the inquiry into the question

of the guilt or innocence of an alleged

fugitive from justice is in the courts

of the State where the offense is charged

to have been committed."

siatnbiilaes cldy, h

nova ie she

A-64

Numerous decisions from the United

States Courts of Appeals are to the same

effect. For example, in United States

v. Flood, 374 F.2d 554 (2nd Cir. 1967),

the Second Circuit was presented with

a petition for writ of habeas corpus by

a person the State of Florida sought to

extradite from New York on a Florida murder

charge. Petitioner and a number of his

friends and relatives testified at a habeas

corpus hearing in a New York court that

he was in New York on the date of the

murder. Florida presented the testimony

of a police officer and one other witness

that the petitioner was seen in Dade County,

Florida, on the date of the crime. The

New York trial court dismissed the petition

and the Appellate Division of the New

York Supreme Court affirmed. A federal

writ of habeas corpus was denied by the

United States District Court. In affirming

A-65

the denial of the writ, the Second Circuit

stated:

There is no merit to the peti-

tioner*s~contention that the burden

of proof placed upon him was to heavy.

It was settled long ago that the |

burden of proving that the accused

was not present in the demanding

state at the time the crime was commit-

ted rests upon him and that, to meet

it, he must conclusively establish

his absence by clear and convincing

proof. State of South Carolina v.

Bailey, supra, 289 U.S. at 421, 53

S.Ct. 667 [671]; People of State

of Illinois ex rel. McNichols v.

Pease, ‘207 U.S. 100, 112, 28 §.Ct.

58 [62], 51 L.Ed. 121 (1907); Munsey

v. Clough; supra. In the present

. J 4 .

case there was conflicting evidence,

and*so~tong as there was sufficient

A-66

state's @€vidence to support the court's

finding of probable cause its conclu-

sions must stand and New York is

obligated to surrender the petitioner

to Florida for trial. Hyatt v. People

of State of New York ex rel. Corkran,

supra, 188 U.S. at 710-711, 23 S.Ct.

456 [458-59], 47 L.Ed. 657; Moncrief

v. Anderson, supra, 342 F.2d at 904.

374 F.2d at 558.

In Smith v. Idaho, 373 F.2d 149 (9th

Cir.) cert. denied 388 U.S. 919, 87 S.Ct.

2139, 18 L.Ed.2d 1364 (1967), the Court

of Appeals for the Ninth Circuit ruled

that mere conflicts in the evidence relating

to fugitivity do not provide a basis for

denying extradition.

Courts of a number of states have ioe

enunciated principles similar to the federal

cases just recited. See, e.g., People

ex rel Dragon v. Trombley, 79 A.D.2d 768,

as A-67

435 N.Y. S.2d 60 (1980); Bazaldua v.

Hanrahan, 92 N.M. 596, 592 P.2d 512 (1979);

People v. Swisher 60 I11.App.3d 452, 17

I11.Dec. 651, 376 N.E.2d 797 (1978); Clark

v. Warden, 39 Md.App. 305, 385 A.2d 816

(1978); Walton v. Idaho, 98 Idaho 442,

566 P.2d 765 (1977); Reeves v. State ex

rel Thompson, 199 Tenn. 598, 288 S.W.2d

451 (1956); and Ex Parte Rabinwitz, 6l

Okl.Cr. 83, 65 P.24.1236 (i937).

[1] With respect to the appellants

in the present appeal, the Supreme Court

of Ohio reversed the judgment of the Court

of Common Pleas and remanded custody of

appellants to the Sheriff of Lucas County

for surrender to the proper agents of

the State of North Carolina, stating:

We agree and conclude under the

ratio decidendi of Munsey v. Clough

and South Carolina v. Bailey, first,

A-68

the burden is upon the petitioner

to rebut the presumption created :

by the issuance of the Governor's

warrant that the petitioner is a

fugitive from justice by proof beyond

a reasonable doubt. Secondly, that

where there is contradictory evidence

upon the issue of fugitivity and

there is substantial and credible

evidence placing the petitioner in

the demanding state on or about the

date of the offense, the petitioner

has not met the burden placed upon

him and the habeas corpus court may

not, under the guise of passing upon

the credibility of witnesses, ekatve

the fact of the petitioner's presence

in the demanding state in favor of

the petitioner and discharge him

from custody. To conclude otherwise

and hold the court possesses its

A-69

ordinary unlimited authority to pass

upon the credibility of witnesses

and resolve disputed questions of

material fact would not be consonant

with the summary and unique character

of extradition proceedings wherein

issues of guilt and innocence, including

alibi, are for resolution in the

courts of the demanding state.

67 Ohio St.2d at 123-124, 423 N.E.2d

167.

In dismissing the petition for writ

of habeas corpus filed by the three appel-

lants, District Judge Nicholas J. Walinski

stated:

This Court finds that the Ohio

Supreme Court's determination is

"fairly supported by the record."

Summer v. Mata, 449 U.S. 539 [101

S.Ct. 764, 66 L.Ed.2d 722] .(1981).

The state of North Carolina presented

A-70

credible evidence which is in conflict

with the evidence presented by the

petitioners as to their presence

in North Carolina at the time of

the alleged homicide. Such being

the case, the crefible evidence being

in conflict, the petitioners have

failed to sustain their burden on

the issue of proving beyond a reasonable

doubt their absence from the state

of North Carolina at the time of

the alleged homicide.

This Court concludes that the foregoing

decision of the district court is correct.

Appellants will have an opportunity at

their trial and North Carolina to introduce

any available evidence to support their

alibi that they were in Ohio at the time

the alleged murder was committed.

[2] As pointed ont in Part I of

this opinion, appellant Pakulski individually

A-71

filed a second petition for writ of habeas

corpus resisting the extraditition order

by Ohio's Governor Rhodes with respect

to his indictment for forging and uttering

stolen checks. Pakulski charged that

the second extradition request by North

Carolina subjected him to double jeopardy

and that North Carolina's repeated attempts

to extradite him violated due process.

The district court dismissed this

petition for habeas corpus and dissolved

its stay order previously issued which

restrained proceedings in the Court of

Common Pleas of Lucas County on authority

of Summer v. Mata, 449 U.S. 539, 101 S.Ct.

764, 66 L.Ed.2d 722 (1981), Michigan v.

Coran, supra, 439 U.S. 282, 99 S.Ct. 530,

58 L.Ed.2d 521 (1978) and Younger v. Harris,

401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d

669 (1971).

District Judge Walinski correctly

stated:

RE SOE NS A ee

A-72

The Court finds that federal inter-

vention at this time to resolve the

petitioner's claims would be premature.

The petitioner may assert any claims

cf prosecutorial improper conduct

and double jeopardy in the state

courts of North Carolina and, if

appropriate and necessary, he may

seek habeas corpus remedies in the

federal courts.

We agree with the conclusion of the

district court.

The judgments of the district court

dismissing the petitioner for writs of

habeas corpus are affirmed.

A-73

IN THE DISTRICT COURT

OF APPEAL, FIRST DISTRICT,

STATE OF FLORIDA

JIMMY JOSEY, NOT FINAL UNTIL TIME

EXPIRES TO FILE MOTION

Appellant, FOR REHEARING AND

DISPOSITION THEREOF

vs. IF FILED

DREW GALLOWAY, CASE NO. AZ-233

as sheriff of

Holmes County,

Appellee.

Opinion filed September 26, 1985.

Appeal from the circuit court of Holmes

County, Warren H. Edwards, Judge.

W. Paul Thompson, DeFuniak Springs, for

Appellant.

Gregory C. Smith and Andrea Smith Hillyer,

Assistant Attorneys General, Tallahassee,

for Appelee.

ZEHMER, J.

Jimmy Josey appeals an order denying

his petition for writ of habeas corpus

and directing his return to the custody

of the state of Alabama pursuant to properly

issued extradition papers. The issue

A-74

presented is whether Josey met his burden

of overcoming the presumption of fugitive-

ness arising from the governor of Florida's

warrant of arrest and whether the appellee

produced corroborating evidence of fugitive-

ness sufficient to create a conflict in

the evidence requiring denial of habeas

corpus relief as a matter of law. We

reverse and remand for further proceedings.

Appellant filed in the Circuit Court

of Holmes County a petition for writ of

habeas corpus alleging he was improperly

being held in jail in the state of Florida

by the appellee sheriff, that he had not

been properly charged with any crime,

and that he was in the state of Florida

at all times on the date the crime charged

in Alabama allegediy occurred. On February

9, 1984, the District Attorney for the

Twentieth Judicial Circuit of Alabama

filed a sworn application for extradition

A-75

with the governor of Alabama alleging

that Josey had been charged in the Henry

County Circuit Court with the offense

of second-degree theft, as shown by attached

copies of an indictment and writ of arrest.

The district attorney's application stated

that the crime was committed on October 16,

1983, in the City of Headland, County

of Henry, Alabama, and that Josey was

present in the state of Alabama at the

time of the commission of the crime and

was a fugitive from justice in the state

of Florida, in or near Bonifay. The indict-

ment attached to the application for extra-

dition charged in its entirety that:

Jimmy D. Josey, whose name is

to the Grand Jury otherwise unknown,

did knowingly obtain or exert unautho-

rized control over ten tons of nitrogen

fertilizer, the property of Don Johnson,

of the value of, to wit: $1500,

with the intent to deprive the owner

of said property, in violation of

13A-8-3 of the Code of Alabama.1

A-76

The indictment had been returned

by the Alabama grand jury on January 31,

1984, and the writ of arrest issued by

the state of Alabama on that same date.

On March 8, 1984, the governor of Alabama

issued a demand for extradition upon the

governor of Florida representing that

Josey had been charged by indictment with

the crime of second-degree theft in Alabama,

that Josey was personally present in Alabama

at the time of the alleged offense, and

that Josey had fled from Alabama and taken

refuge in Florida. Certified copies of

the indictment and the writ of arrest

were attached to the demand. On March 26,_

1984, a warrant of arrest was executed

by the governor of Florida commanding

the sheriff of Holmes County to arrest

Jimmy Josey. There is no mention of the

record of the date Josey was arrested

by the sheriff.

A-77

On April 17, 1984, a hearing was

held on Josey's petition for writ of habeas

corpus. The state, on behalf of the sher-

iff, introduced the extradition documents

in evidence and rested its case. These

documents consisted of the district attor-

ney's sworn application for extradition,

the indictment, the writ of arrest, the

demand from the governor of Alabama, and

the warrant of arrest executed by the

governor of Florida.

Appellant then introduced the testimony

of seven witnesses, including himself

and his wife, which, if believed, proved

that appellant was not in Alabama on the

alleged date. The evidence revealed that

appellant, between March and May 1983,

was a sales representative for Golden

Plant Food Company, a business that manu-

factured fertilizer in Henry County, Alabama.

Sometime between March and May 1983 appellant

A-78

was in the vicinity of Headland attending

a meeting with representatives of Golden

Plant Food Company. According to petitioner,

that is the last time he was in or near

Headland. The testimony of an eyewitness

reveals that the alleged theft occurred

on October 16, 1983, when certain indivi-

duals purporting to be representatives

of Golden Plant Food Company loaded ferti-

lizer owned by Don Johnson onto a truck

and drove away. This eyewitness testified

that he knew Jimmy Josey and that Mr.

Josey "was not one of the individuals

there with the truck loading the fertilizer"

(R. 37). Four witnesses testifying for

appellant, three of whom were unrelated

to Josey, stated they saw him in Bonifay

during various parts of the day on October

16, 1983. This testimony accounted for

petitioner's presence between 8:30 a.m.

and 5:30 p.m. Petitioner and his wife

al eet —— ee et

A-79

testified that petitioner was in Bonifay

during all hours of October 16.

At the close of Josey's case, counsel

for Josey argued that he had presented

competent, uncontradicted evidence that

Josey was not in Alabama at the time of

the alleged offense and that the petition

for writ of habeas corpus should be granted.

The state argued that Mr. Josey's evidence

was not persuasive enough to overcome

the presumption arising out of the extradi-

tion documents and carry his burden of

proving that he was not in Alabama on

the date~of~the crime. —The state also

relied on the district attorney's applica-

tion as sworn proof that Josey was present

in Alabama. Josey's attorney noted the

district attorney's lack of personal know-

ledge of Josey's presence in the state.

The court requested legal memoranda and

~ took the petition under advisement. On

A-80

May 4, 1984, the court denied the petition

for writ of habeas corpus, concluding

"there is no legal reason that would bar

Alabama authorities from returning Jimmy

Josey to that state to answer criminal

charges named in the governor's rendition

warrant." Josey has appealed this final

order.

The power to extradite fugitives

from justice derives directly from Article

IV, Section 2, United States Constitution,

and its implementing federal statute,

18 0.8.C.A. § 3182. Roberts v. Reilly,

116 U.S. 80, 94, 29 L.Ed. 544, 6 S.Ct.

291 (1885). To implement this federal

law, the state of Florida has adopted

the Uniform Interstate Extradition Act.

Ch. 941, pt. 1, Fla. Stat. (1983). Section

941.02 directs the governor of Florida

"to have arrested and delivered up" to

another state "any person charged in that

A-81

state with treason, felony, or other crime,

who has fled from justice and is found

in this state."

The power of the judiciary to issue

writs of habeas corpus from English law

and Article I, Section 9 of the United)

States Constitution, Fay v. Noia, 372

U.S. 391, 9 L.Bds 2d 837,. 83.$.Ct. 822

(1963), and Article V, Section 5(b) of

the Florida Constitution. It is a state

court's duty in habeas ee proceedings

challenging extradition to administer

the federal law prescribed by Article

IV, Section 2, United States Constitution,

and 18 U.S.C.A. § 3182, as construed by

the United States Supreme Court. South

Carolina v. Bailey, 289 U.S. 412, 419-20,

77 ts BQ. 2292, 59: 3.Co.. 667 (1933). A

habeas corpus proceeding challenging extra-

dition involves a "federal question" of

whether the accused is a fugitive from

A-82

bio i

justice, and such question is controlled

by the federal constitution and laws as

interpreted by the United States Supreme

Court. Id.,; State v. Shelton, 8 So.2d

216, 218 (Ala. 1942).

Interstate extradition is intended

to be a summary and mandatory executive

proceeding designed to enable each state

to bring offenders to trial as swiftly

as possible in the state where the alleged

crime was committed. Michigan v. Doran,

439 U.S. 282, 287-88, 58 L.Ed.2d 521,

99 S.Ct. 530 (1978). Section 3182 requires

that the governor of the demanding state

deliver to the governor of the asylum

state a demand for extradition and an

indictment found or affidavit made before

a magistrate of the demanding state charg-

ing the accused with commission of a crime

in the demanding state. See § 941.03,

Fla. Stat. (1983). 2 The governor of

the asylum state must then determine,

A-83

as a matter of law, whether the accused

has been substantially charged with a

crime in the demanding state and whether,

as a matter of fact, upon such evidence

as is satisfactory to him, the accused

is a fugitive from justice. Munsey v.

Clough, 196 U.S. 364, 372, 49 L.Ed. 515,

25 S.Ct. 282 (1905). If the governor -

determines that extradition is proper,

he issues a warrant of arrest directing

the appropriate law enforcement officers

of his state to arrest the accused. 18

U.S.C.A. § 3182; § 941.07, Fla. Stat.

(1983); Marbles v. Creecy, 215 U.S. 63,

67, 54 L.Ed. 92, 30-8.Ct. 32 (1909).

Once arrested and held as a fugitive

from justice, the accused has a federal

constitutional right to question the law-

fulness of his arrest and custodial impri-

sonment by petitioning the circuit court

for a writ of habeas corpus and showing

A-84

upon competent evidence that he was not

a fugitive from justice of the demanding

state. Illinois ex rel. McNichols v.

Pease, 207 U.S. 100, 109, 52 L.Ed. 121,

28 S.Ct. 58 (1907); Roberts v. Reilly,

116 U.S. 80, 94-95; Crumley v. Snead,

620 F.2d 481, 483 (5th cir. 1980). See

section 941.10, Florida Statutes (1983).

To be a fugitive from justice within the

meaning of Article IV, Section 2, >United

States Constitution, and 18 U.S.C.A. §3182,

it is necessary that the accused have

been in the demanding state when the crime

was committed and that he thereafter fled

that state and was found in another state.

Appleyard v. Massachusetts, 203 U.S. 222,

231-32, 51 L.Ed. 161, 27 S.Ct. 122 (1906).

This is also true in the case of a proceed-

ing under section 941.03, Florida Statutes

(1983). In a habeas corpus proceeding

challenging the governor's determination

A-85

that extradition is proper, the warrant

of arrest is prima facie proof that peti-

tioner is a fugitive from justice and

may be overcome only by contrary proof

presented by the petitioner. Illinois

v. Pease, 207 U.S. at 109. In order to

overcome the presumption of fugitiveness

arising from the governor's warrant of

arrest, the petitioner must present clear

and satisfactory evidence establishing

beyond any reasonable doubt that he was

not in the demanding state on the date

of the alleged offense. South Carolina

v. Bailey, 289 U.S. at 421-22. The issue

of fugitiveness is one of fact to be deter-

mined by the trial judge upon all the

evidence. Michigan v. Doran 439 U.S.

at 289. If competent evidence on the

issue of fugitiveness is contradictory,

the petitioner will be denied discharge

on writ of habeas corpus as a matter of

A-86

law. Munsey v. Clough, 196 U.S. at 375.

South Carolina v. Bailey, 289 -U.S. at

421.

In the present case the state properly

introduced the Florida warrant of arrest

which established a prima facie showing

that appellant was a fugitive from justice.

State v. McCreary, 165 So. 904 (Fla. 1936).

Appellant then introduced contrary evidence

proving, if believed, that he was not

in Alabama on the date of the offense

and was not a fugitive from justice.

It was the trial court's duty at this

point to evaluate the competent evidence

presented by the state and appellant and

determine whether there was conflicting

evidence on the issue of fugitiveness.

If the court found such a conflict in

the evidence, it would have been required

to deny appellant's petition for writ

of habeas corpus as a matter of law.3

A-87

Munsey v. Clough, 196 U.S. at 375. If,

however, the court had determined there

was no competent evidence in the record

conflicting with appellant's evidence,

then it would have been the trial court's

duty to judge the credibility and persua-

Ssiveness of appellant's witnesses and

determine whether appellant proved by

clear and satisfactory evidence beyond

a reasonable doubt that he was not in

Alabama on the date of the offense. South

Carolina v. Bailey, 289 U.S. at 421-22.

Since the trial court did not find that

appellant failed to meet his burden of

proof, but stated simply that "no legal

reason" existed for denying his return

to Alabama, it appears the court may have

denied the writ as a matter of law. It

is therefore necessary for us to examine

the documents introduced by the state

to determine whether they contain competent

A-88

evidence of fugitiveness sufficient to

create an evidentiary conflict requiring

denial of habeas corpus as a matter of

law.

Intitially, the state introduced

the demand for extradition from Alabama

which alleged that appellant was in Alabama

on the date of the offense. Although

it was only necessary that the state intro-

duce the Florida warrant of arrest to

establish its prima facie case, State

v. McCreary, 165 So. at 906, a valid demand

for extradition from Alabama is a necessary

predicate to the jurisdictional validity

of that warrant of arrest. Section 941.03,-

Florida Statutes (1981), requires that

the governor of Florida have before him

a valid demand for extradition from a

foreign state before issuing a warrant

of arrest. Undeniably, one of the grounds

upon which a prisoner may attack the valid-

A-89

ity of extradition is by showing that

the warrant of arrest is invalid because

it is not properly based on the required

statutory documents. State v. McCreary,

165 So. at 906. The state may rely upon

the demand for extradition to prove the

jurisdictional validity of the warrant

of arrest, but even assuming the arrest

warrant is valid, the prisoner also has

a right to attack, in a habeas corpus

proceeding, the governor's factual determi-

nation that he was in the demanding state

on the date of the alleged offense. If

the demand for extradition from a foreign

jurisdiction, which is a statutorily required

document, is treated as sufficient evidence

of fugitiveness to create an evidentiary

conflict requiring denial of habeas corpus

as a matter of law, the state need never

adduce more proof than the demand and

appellant's constitutional right to challenge

7”

A-90

the governor's factual conclusion of fugi-

tiveness in the warrant of arrest by presen-

ting evidence of his presence elsewhere

amounts to littie more than a sham. We

note that the United States and Florida

supreme courts have clearly recognized

that not only does a petitioner such as

appellant have the right to challenge

the jurisdictional validity of the warrant

of arrest, i.e., that it is not based

upon the required statutory documents,

but the petitioner also has the right--even

assuming the warrant of arrest and under-

lying documents are proper--to challenge

the factual determination of fugitiveness.

In order to give substance to this funda-

mental constitutional right, we hold that

the demand for extradition required by

section 941.03 cannot, standing alone,

be deemed competent evidence to create

a conflict on the factual issue of fugi-

tiveness.

A-91

The Second District Court of Appeal

has held that a prisoner challenging extra-

dition who presented evidence showing

he was not in the demanding state at the

time of the alleged offense was entitled

to habeas corpus relief when the state

failed to offer any "testimony" to refute

the prisioner's evidence. Trice v.

Blackburn, 153 So.2d 32 (Fla. 2d DCA 1963).

The court so held even though the Seneten

executive's demand and an indictment of

the prisoner were introduced by the state

and alleged the prisoner's presence in

the demanding state at the time of the

offense (unlike the indictment in the

instant case). We agree with the rationale

of the Blackburn decision. We note, how-

ever, that the fourth district's decision

in Brunelle v. Norvell, 433 So.2d 19 (Fla.

4th DCA 1983), appears to suggest that

a foreign executive's demand is, standing

A-92

alone, sufficient competent evidence to

create a conflict in the evidence requiring

denial of habeas corpus relief. This

reading of Brunelle, if correct, is not

consistent with the fundamental right

of a prisoner to challenge’ the factual

issue of fugitiveness in a habeas corpus

proceeding. Since the facts in Brunelle

were not fully stated in the opinion,

we cannot be certain hint our reading

of the decision was the intended holding

of the court; however, the opinion on

its face appears to conflict with our

holding in this case, and we so certify

such conflict to the Supreme Court.

The second evidentiary document relied

on by the state is the indictment of appel-

lant by the Henry County grand jury.

This document is not competent evidence

of fugitiveness for several reasons.

First, it does not allege that appellant

A-93

was present in Alabama on the date of

the alleged offense. It does not, in

fact, even allege the date of the offense.

Second, as with the demand for extradition,

the indictment is required by statute

as a jurisdictional prerequisite to the

valid issuance of an arrest warrant.

To odieadides it competent, and therefore

conclusive, evidence of fugitiveness would

render meaningless appellant's right to

challenge the governor of Florida's factual

determination that appellant was in Alabama

at the time of the offense. Third, in

Blackburn the court held that the prisoner

was entitled to habeas corpus relief upon

proof that he was not a fugitive even

though the demanding state's indictment

was in evidence, thereby indicating that

an indictment, standing alone, is not

sufficient to create an evidentiary conflict

on the issue of fugitiveness.

¢ A-94

Finally, the state relies on the

sworn application for extradition made

by the Alabama district attorney as creat-

ing an evidentiary conflict. This applica-

tion contains an allegation that petitioner

was in Alabama at the time of the alleged

offense. It does not appear, however,

that this allegation is based upon the

personal knowledge of the district attorney;

presumably, it is based upon his investi-

gation of the case and is pure hearsay.

For the following reasons, this affidavit,

being otherwise uncorroborated by competent

evidence and not reciting the evidentiary

facts upon which the affiant's conclusion

of presence in Alabama was based, is not

sufficient to create the requisite conflict

in evidence to mandate denial of the writ

of habeas corpus as a matter of law.

In State v. McCreary, 165 So. 904

(Fla. 1936), the accused, Florio, was

being held pursuant to a warrant of arrest

A-95

and filed a petition for-writ of habeas

corpus alleging he was not in the demanding

state at the time of the alleged offense.

The petition was denied by the trial court.

On appeal the Florida Supreme Court noted

a patent legal deficiency in that the

demand of the governor of Connecticut

had not been introduced in evidence and

the record contained no certificate by

thé governor authenticating the supporting

affidavits which had been introduced into

evidence. Florio failed, however, to

properly prove that the governor of Florida

did not have the missing documents before

him when he issued his warrant of arrest;

therefore, the Supreme Court assumed that

such documents were properly before the

governor and concluded that he had valid

jurisdiction to issue the warrant of arrest.

Nevertheless, the court went on to

state that it appeared the circuit judge

A-96

had admitted the supporting affidavits

as evidence of petitioner's presence in

the demanding state at the time of the

alleged offense. The court held that

if the affidavits were admitted for this

purpose:

The error in admitting them was

probably prejudicial in its nature,

thus requiring a reversal of the

order for further proceedings not

inconsistent with the holding herein-

above made, for the petitioner intro-

duced some substantial testimony

tending to prove that he was not

in the demanding state at the time

the offense was committed. This

testimony was given before the circuit

judge by witnesses who resided in

Miami, and who were subjected to

cross-examination. The petitioner

had no opportunity to cross-examine

the parties who signed the affidavits

introduced in evidence by the respon-

dent and which tended to show the >

contrary. While it is well settled

that, upon habeas corpus proceedings

in behalf of one held under an execu- =

tive warrant of rendition, the courts

of this state will not try the question

of the guilt or innocence of the

accused of an offense charged against

the criminal laws of another state,

yet the question of whether the accused

is or is not a fugitive from justice

is a question of fact, and it is

competent for the accused to prove,

A-97

if he can, that he was not bodily

present in the demanding state at

the time the offense is alleged to

have been committed. The decision

of the Governor on this point, as

shown by the issuance of his warrant

of rendition, is sufficient to justify

his arrest and extradition unless

the presumption in its favor is over-

thrown by contrary proof.

For the error pointed out, the

order remanding the petitioner to

custody is reversed, and the cause

remanded for further proceedings

not inconsistent with the foregoing

opinion. It may be that upon another

hearing further legal evidence may

be available and may be introduced

in evidence by either or both sides

on the question last discussed.

We reverse the case because on that

issue the circuit judge may have

considered, and probably did consider,

the affidavits erroneously admitted

in evidence.

165 So. at 906-07 (citation omitted).

McCreary strongly suggests, if not

holds, that affidavits do not constitute

competent proof to controvert a prisoner's

live testimony in a habeas corpus proceed- ~

ing challenging extradition because the

prisoner is denied his right to cross-

examine the affiants. We would accept

A-98

this reasoning and reach such holding

were McCreary the controlling case ad-

dressing this issue. As noted above,

however, habeas corpus proceedings chal-

lenging extradition are governed by the

federal constitution and implementing

statutes as construed by the United States

Supreme Court and circuit courts of appeal.

The Fifth Circuit Court of Appeal has

held that affidavits containing competent

and otherwise admissible evidence are

sufficient in habeas corpus proceedings

to raise disputed factual issues. United

States v. Williams, 12 F.2d 66 (5th Cir.

1926). Accord Smith v. Idaho, 373 F.2d

149 (9th Cir. 1967). See also Escobedo

v. United States, 623 F.2d 1098 (5th Cir.

1980), cert. denied, 449 U.S. 1036, 66

L.Ed.2d 497, 101 S.Ct. 612 (1980), holding

\ We

— ;

that hearsay evidence which recited the

evidentiary facts upon which the affiant

A-99

based the conclusion that the accused

was present in the state when the offense

was committed, is admissible in extradition

proceedings. These relaxed rules of admis-

sibility simply excuse the asylum state

from having to produce live testimony

by witnesses having personal knowledge

in extradition proceedings, a requirement

which would obviously be unnecessarily

expensive and time-consuming to demonstrate

only that a factual controversy does exist.

With the exception of Brunelle v. Norvell,

433 So.2d 19, which we decline to follow,

we have found no cases finding an eviden-

tiary conflict on the issues of fugitive-

ness that did not involve either live

testimony produced by the state, physical

evidence properly authenticated, or affi-

davits based on personal knowledge or

reciting the evidentiary facts supporting

the conclusions stated therein. E.g.,

A-100

State v. Scoratow, 456 So.2d 922 (Fla.

3rd DCA 1984); Bonazzo v. Michell, 221

So.2d 186 (Fla. 4th DCA 1969); Turiano

v. Butterworth, 416 So.2d 1261 (Fla. 4th

DCA 1982); State v. Starr, 65 So.2d 67

(Fla. 1953). We agree, therefore, that

affidavits are admissible to create eviden-

tiary conflict in habeas corpus proceedings

challenging extradition, but conclude

that such affidavits, in order to be compe-

tent to create such conflict, must be

based on the personal knowledge of the

affiant or, if based on hearsay known

by the affiant, must recite the evidentiary

facts upon which the affiant's conclusion

is based. We hold that the sworn applica-

tion for extradition in the instant case

is not competent evidence to prove the

petitioner was in Alabama at the time

of the alleged offense because it was

not based on the personal knowledge of

A-101

the district attorney and did not contain

the necessary recitation of evidentiary

facts upon which the district attorney

based his conclusion.

To summarize, the petitioner presented

competent evidence showing he was not

in Alabama on the date of the offense,

and the state presented no competent con-

flicting evidence. Because there was

no conflict in the evidence, it was the

trial court's duty to evaluate the testimony

of appellant's witnesses, judge their

credibility and persuasiveness, and make

a finding of fact on whether petitioner

had proven by clear and satisfactory evi-

dence beyond a reasonable doubt that he

was not in Alabama on the date of the

alleged offense. South Carolina v. Bailey,

289 U.S. at 421-22. It appears from the

order in the instant case that the trial

court concluded only that no legal reason

A-102

existed for denying Josey's return to

Alabama without making any finding of

fact on whether Josey's evidence was suffi-

ciently trustworthy to carry his burden

of proof. Although unstated, the court

likely based its conclusion on the Fourth

District's decision in Brunelle v. Norvell,

which we decline to follow.

As did our Supreme Court in State

v. McCreary, 165 So. at 907, we reverse

and remand for the trial court to make

the appropriate finding of fact on whether

petitioner has met his burden of proof,

with leave to take additional evidence

if necessary.

REVERSED AND REMANDED.

BARFIELD, J., CONCURS: SMITH, J., DISSENTS

WITH WRITTEN OPINION.

A-103

FOOTNOTES

lfhe allegations of "unauthorized

control" over the property alleged to

have been stolen is consistent with either

physical presence or absentee control;

hence, the indictment cannot be construed

as unequivocally alleging that Josey was

present in Alabama when the alleged offense

was committed. Section 941.06, Florida

Statutes (1983), governs extradition of

persons not present in the demanding state

at the time of the commission of the crime.

No attempt has been made to extradite

Josey under this section, and this decision

is limited to extradition under section

941.03, Florida Statutes (1983).

2Section 941.03, Florida Statutes

(1983), states:

Form of demand.--No demand for the

extradition of a person charged with

crime in another state shall be re-

cognized by the Governor unless in

writing alleging, except in cases

arising under s. 941.06, that the

accused was present in the demanding

state at the time of the commission

of the alleged crime, and that there-

after he fled from the state, and

accompanied by an authenticated copy

of an indictment found or by informa-

tion supported by affidavit in the

state having jurisdiction of the

crime, or by a copy of a warrant

supported by an affidavit made before

a committing magistrate of the deman-

ding state; or by a copy of a judgment

A-104

of conviction or of a sentence imposed

in execution thereof, together with

a statement by the executive authority

of the demanding state that the person

claimed has escaped from confinement

or has broken the terms of his bail,

probation, or parole. The indictment,

information, or affidavit made before

the magistrate must substantially

charge the person demanded with having

committed a crime under the law of

that state; and the copy of indictment,

information, affidavit, judgment

of conviction, or sentence must be

authenticated by the executive author-

ity making a demand.

30n cross-examination of appellant,

the state elicited testimony concerning

appellant's past connections with Golden

Plant Food Company in Headland, Alabama,

approximately six months before the charged

offense was committed. This testimony,

along with other evidence produced on

cross-examination, did not create a conflict

in the evidence requiring denial of habeas

corpus as a matter of law. Such testimony

could, however, be deemed relevant to

the court's consideration of the credibility

and persuasiveness of appellant's witnesses.

SMITH, L., J., dissenting.

I respectfully dissent.

That the appellant had a recent connec-

tion with the State of Alabama, a recent

A-105

connection with the place in Alabama where

the property was alleged to have been

stolen (a mere 50 miles or so from his

Florida home), and recent possession of

the specific kind of property alleged

to have been stolen, is established by

appellant's own testimony. Furthermore,

the evidence by one of appellant's witnesses

that appellant was not in the state of

Alabama when certain property of the same

description was allegedly taken — the

same owner, Don Johnson, does not eliminate

appellant as the perpetrator of the crime

charged in the indictment. The testimony

regarding the loading of certain fertilizer

belonging to Don Johnson by individuals

purporting to be representatives of Golden

Plant Food Company, is of little or no

probative value in this case. It is noted

that the indictment charges that the accused

unlawfully "obtained" or “exerted un-

authorized control" over the fertilizer.

A-106

The language used conforms to the require-

ments of Alabama law, under which the

offense of theft may be committed in several

different ways, including by means of

what was formerly known as embezzlement.

See, Alabama Criminal Code, § 13A-8-2,

and Commentary. Thus, the mere fact that

other persons took possession of certain

Similar property on a certain occasion

does not warrant a finding that appellant

could not have been in Alabama when he

exerted unauthorized control over the

fertilizer in question, or other fertilizer

of the same kind. This could have occurred

earlier on the same day, on the day before,

or on some other prior date. A showing

that the accused was not in the demanding

state on the exact date when the crime

was alleged to have been committed is

not in itself grounds for discharge of

the accused on habeas corpus, unless the

arr ™

A-107

exact date or dates constitute a material

element of the offense charged. See,

People v. Lynch, 16 I11.2d 380, 158 N.E.2d

60 (1959); Campbell v. Shapp, 385 F.Supp.

305 (E.D. Pa. 1974); Commonwealth of

Pennsylvannia, ex rel Kelly v. Aytch,

385 A.2d 508 (Pa. 1978).

It is true, as noted by the majority,

that the Alabama indictment here does

not allege a specific date on which the iz

offense allegedly was committed. Alabama

law does not require it. Alabama Criminal

Code, § 15-8-30. The indictment may allege

that the seta aan committed on any specific

day before the finding of the indictment,

or it may allege generally, as this one

does, that the crime was committed "before

the finding of the indictment." Id.

This particular language has been approved

as sufficient to state when the crime

was committed for purposes of extradition.

A-108

Ex Parte Drake, 363 SW 2d 781 (Crim.App.Tex.

1962).

Appellant's admitted connections

with Alabama, and with the Alabama ferti-

lizer dealership which apparently (if

appellant's witness is to-be believed)

was implicated (at least by name) ina

fertilizer theft, and appellant's own

admission that he came into possession

of the same type of fertilizer by delivery

in a truck bearing Missouri license plates

weigh heavily, in my opinion, against

appellant's purely technical defense based

upon a contention that he was not in Alabama

during a certain twenty-four hour period.

In any event, the critical testimony bearing

upon appellant's whereabouts was given

by appellant and his wife. This evidence

is hardly of the caliber that one would

expect a trial court to find persuasive

given the circumstances of this case.

A-109

Similar evidence was rejected by the court

in Ex Parte Sutton, 455 SW 2d 274 (Crim.App.

Tex. 1970) (testimony of the accused

and his wife that he was not in the deman-

ding state on the day the offense was

charged to have been committed is not

sufficient to defeat extradition).

I particularly take issue with the

majority's holding that “the demand for

extradition required by section 941.03

cannot, standing ebenk, be deemed competent

evidence to create a conflict on the factual

issue of fugitiveness." This is contrary,

I believe, to the authorities on the point.

But aside from the incorrectness of this

holding from a purely legal standpoint,

it is contrary to the majority's disposition

of this appeal, since by the express language

of the majority's opinion, on remand the

trial court may deny habeas corpus by

merely finding that upon evaluation of

A-110

the testimony of appellant and his witnesses,

the petitioner has failed to prove "by

clear and satisfactory evidence beyond

a reasonable doubt that he was not in

Alabama on the date of the alleged offense."

I believe the record already demonstrates

this failure on appellant's part, and

I would not disturb the trial court's

ruling.

I further disagree with the majority's

holding that the trial court's ruling

that there is "no legal reason" to deny

appellant's return to Alabama is insufficient

to dispose of the petition for habeas

corpus. I think the record discloses

a reasonable basis for the trial court's

ruling, which is all that is required.

I would affirm.

A-111

IN THE CIRCUIT COURT

OF THE FOURTEENTH

JUDICIAL CIRCUIT,

IN AND FOR HOLMES,

COUNTY, FLORIDA.

CASE NO. 84-43 cf

STATE OF FLORIDA,

vs.

JIMMY JOSEY,

Defendant,

ORDER

This Court having heard testimony

of witnesses presented by the Defendant

on April 17, 1984, and being fully advised

in the premises, does hereby order that:

1. There is no legal reason that

would bar Alabama Authorities

from returning Jimmy Josey to

the State to answer criminal

charges named in the Governor's

Rendition Warrant.

2. Extradition of Jimmy Josey is

to be stayed pending a prompt

appeal of this Order by the said

Jimmy Josey.

3. Jimmy Josey shall remain at liberty

on his present bond pending the

appeal of this matter.

A-112

DONE AND ORDERED in Bonifay, Holmes

County, Florida, this 4th day of May ,

1984. |

WARREN EDWARDS,

CIRCUIT JUDGE

A-113

THE STATE OF FLORIDA

To all and singular the Sheriffs and all

Peace Officers of the Several Counties

of this State to Whom This May Come,

Greetings:

WHEREAS, the Executive authority

of the State of Alabama has demanded of

the Executive authority of the State of

Florida the delivery and surrender of

the body of Jimmy D. Josey as a fugitive

from justice from said State of Alabama

to said State of Florida, and has produced

and filed with the Executive authority

of said State of Florida to which said

State Jimmy D. Josey has fled from the

State of Alabama a copy of Demand, & Indict-

ment charging the said person so demanded

with having committed in said State of

Alabama against the laws of said State

of Alabama the crime of Theft of Property,

Second Degree and which is certified as

authentic by the Executive of said State

of Alabama.

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NOW, THEREFORE, This is to command

you to apprehend and arrest the body of

the said Jimmy D. Josey and deliver his

said body to Sheriff J.F. Welcher and

Guard agent of the said State of Alabama,

duly authorized and empowered to receive

and convey the said Jimmy D. Josey to

the state of Alabama, then and there to

be surrendered to the legal authorities

of said State, to be dealt with according

to law;

PROVIDED, NEVERTHELESS, AND IT IS

EXPRESSLY UNDERSTOOD, That all fees, expen-

ses or charges in the execution of this

order be paid by the said State of Alabama.

Hereof fail not at your peril.

A-115

IN WITNESS WHEREOF, I have here-

unto signed my name, and caused to be

affixed the Great Seal of State, at

Tallahassee, Florida, this 26th day

of Marcn A.D., 1984.

(SEAL)

Governor

By the Governor:

Secretary of State

A-116

Executive Department

STATE OF ALABAMA

The Governor of the State of Alabama

To His Excellency, the Governor of Florida

Whereas, It appears by the annexed copy

of a CERTIFIED COPIES OF INDICTMENT AND

WRIT OF ARREST which is hereby duly certi-

fied to be authentic in accordance with

the Laws of this State, that JIMMY D.

JOSEY stands charged with the crime of

THEFT OF PROPERTY, 2ND DEGREE committed

in the County of HENTY in this State,

and it has been represented to me that

JIMMY D. JOSEY was personally present

in the State of Alabama at the time of

the alleged commission of said offense,

and has fled from justice of this State

and has taken refuge in the State of

FLORIDA.

Now, Therefore, pursuant to the pro-

visions of the Constitution and Laws of

the United States in such case made and

provided, I request that you cause the

said JIMMY D. JOSEY to be apprehended

and delivered to SHERIFF J.F. WELCHER

AND GUARD who is hereby authorized to

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receive and convey him to the State of

Alabama, there to be dealt with according

to law.

In Witness Whereof,

I hereunto set my

hand and caused the

(SEAL) Great Seal of the

State of Alabama to

be affixed by the

Secretary of State,

at the Capitol, in

the City of Montgomery

on this day.

March 8, 1984

Date

George C. Wallace

Governor

Don Siegelman

Secretary of State

A-118

APPLICATION FOR EXTRADITION

STATE OF ALABAMA, HENRY COUNTY

To His Excellency, GEORGE C. WALLACE,

Governor of the State of Alabama:

The undersigned THOMAS W. SORRELLS,

District Attorney of the 20th Judicial

Circuit of Alabama, respectfully represents

unto Your Excellency:

That one JIMMY D. JOSEY is charged

in the HENRY County CIRCUIT COURT with

the offense of THEFT OF PROPERTY, 2ND

DEGREE (as shown by the certified copies

of the Indictment and writ of arrest accoi -

panying this petition), alleged to have

been committed on, to-wit: October 16,

1983, at the city of Headland, in the

county of Henry, in the State of Alabama,

in that:

Jimmy D. Josey, did knowingly obtain or

exert unauthorized control over ten tons

of nitrogen fertilizer, the property of

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Don Johnson, of the value of, to-wit:

$1,500.00, with the intent to deprive

the owner of said property, in violation

of 13A-8-3 of the Code of Alabama.

That said Jimmy D. Josey was present

in the State of Alabama at the time of

the commission of the crime.

That said Jimmy D.-Josey is now a

fugitive from justice in this State and

is believed to have taken refuge in the

State of Florida and is at the present

time in or near Bonifay in that State.

That is is necessary for the ends

of justice that said fugitive should be

returned to the State of Alabama; that

this petition is made in furtherance of

the ends of public justice and not for

any private claim whatever, or for the

collection or enforcement of a debt, or

for any other improper purpose.

Your petitioner suggests to Your

Excellency the name of Sheriff J.F. Welcher

and guard, who resides at Headland Alabama,

and who has no private or personal interest

in the apprehension of said fugitive as

a suitable person to be commissioned as

agent of the State in said extradition.

Your petitioner hereby certifies

that he has investigated the facts in

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the above named case; that the testimony

in said case is accessible; and that in

his opinion a conviction will be had if

said case is brought to trial.

District Attorney

20th Judicial Circuit

of Alabama.

Sworn to and subscribed before me,

this the 9th day of February ,

1984.

(SEAL)

Clerk, Henry County

Circuit Court

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CERTIFICATE

DISTRICT/CIRCUIT COURT OF HENRY COUNTY

THE STATE OF ALABAMA.

HENRY COUNTY.

I, CONNIE BURDESHAW, Clerk of the

District/Circuit.Court, do hereby certify

that said Court is a Court of Record,

having a Clerk and a Seal, and that I

am the qualified Clerk of said Court,

and the keeper of said Seal. I further

certify that Honorable JERRY M. WHITE

is a duly commissioned Judge of the

District/Circuit Court, and under the

Laws of said State all of his official

acts as such Judge are entitled to full

faith and credit. I further certify that

his official signature to the certificate

below is his genuine official sigrature

and in due form.

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IN TESTIMONY WHEREOF, I hereunto

affix my official signature and Seal of

the Court, at the city of Abbeville, Alabama

this 9th day of February , 1984.

Clerk District/Circuit

Court

THE STATE OF ALABAMA,

HENRY COUNTY

I, JERRY M. WHITE, Judge of the

District/Circuit Court, do hereby certify

that the same is a Court of Record, having

a Clerk and Seal, and that CONNIE BURDESHAW

is the qualified Clerk of said Court,

and the keeper of the Seal thereof, and

that his official signature to the foregoing

certificate is his genuine official signature

with the Seal of said Court affixed.

A-123

Witness my hand and official signature

at the city of Dothan , Alabama, this

the 9th day of February , 1984.

Judge District/Circuit

Court

A-124

THE STATE OF ALABAMA CIRCUIT COURT

HENRY COUNTY SPRING TERM, 1984

The Grand Jury of said County Charge

that, before the finding of this Indictment

Jimmy D. Josey, whose name is to the Grand

Jury otherwise unknown, did knowingly

obtain or exert unauthorized control over

ten tons of nitrogen fertilizer, the property

of Don Johnson, of the value of, to-wit:

$1,500.00 with the intent to deprive the

owner of said property, in violation of

13A-8-3 of the Code of Alabama.

against the peace and dignity of the State

of Alabama.

THOMAS W. SORRELLS

DISTRICT ATTORNEY

of the 20th Judicial

Circuit re

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A TRUE BILL

Ray S. Reily

Foreman of the Grand Jury

presented to the Court by

the Foreman of the Grand

Jury in the presence of

18 other Grand Jurors.

Filed Lo J. , 1984

Connie Burdeshaw, Clerk

Writ of arrest ordered issued

and amount of bail to be

required of the Defendant

$1,000.00

, Judge

A-126

THE STATE OF ALABAMA

HENRY COUNTY

CIRCUIT COURT

dex THE STATE a

vs.

JIMMY D. JOSEY

INDICTMENT

THEFT OF PROPERTY, 1ST DEGREE

Prosecutor

STATE WITNESSES

Don Johnson

Carl Edmondson

J.R. Cox

Fred Mann

Holmes County, Florida

A-127

I, Connie Burdeshaw, Clerk of

the Circuit Court of Henry County,

Alabama, hereby certify that this

is a true and correct copy of the

original indictment with all the

endorsements theeon, in case of

the State of Alabama against

JIMMY D. JOSEY

This 6th day of February ,

1984

Connie Burdeshaw

Clerk of the Circuit Court of

Henry County, Alabama

A-128

writ of arrest

‘

THE STATE OF ALABAMA, HENRY COUNTY

CIRCUIT COURT

To any Sheriff of the State of Alabama --

Greetings:

An indictment having bade found against

Jimmy D. Josey at the Spring Term, 1984,

of the Circuit Court of Henry County,

for the offense of Theft, lst. You are

therefore commanded forthwith to arrest

said Jimmy D. Josey and commit him/her

to jail, unless he/she gives bail

($1,000.00) to answer such indictment

at the next term of our Circuit Court,

to be holden for said County, on the_

4th Tuesday in April (4-24-84) next,

and make return of this writ according

to law.

Witness my hand, this 3lst day

of January , 1984.

C. Burdeshaw , Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.