Opposition Brief — Galloway v. Josey

2

> IN THE

SUPREME COURT OF THE UNITED STATES

DREW GALLOWAY, SHERIFF

Holmes County, Florida,

Petitioner,

vs.

JIMMY JOSEY

Respondent.

" ANSWER TO

PETITION FOR WRIT OF CERTIORARI

W. PAUL THOMPSON

Attorney for Respondent

P. O. Drawer 608

DeFuniak Springs, Florida 32433

904 892 2117

CASE NO. A-231

IN THE

SUPREME COURT OF THE UNITED STATES

DEAN GALLOWAY, SHERIFF,

Holmes County, Florida,

Petitioner,

vs.

JIMMY JOSEY

Respondent.

ANSWER TO

PETITION FOR WRIT OF CERTIORARI

W. PAUL THOMPSON

Attorney for Respondent

P.O. Drawer 608

DeFuniak Springs, Florida 32433

904 @92 2117

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.

ii

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 DENYING THE WRIT

CONCLUSION

CERTIFICATE OF SERVICE

iii

iii

TABLE OF AUTHORITIES

PAGE

veel.

SMITH V. STATE OF IDAHO

363 F2d 149 (9th Cir. 1967)

ale

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

x 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 pleading,

the parties will be referred to as they

appear before this Court.

ate

OPINIONS BELOW

The opinion of the Supreme Court

of Florida was rendered on April 16,

1987. This decision is reported at 507

89.2 590, and is reproduced in Respon-

dent’s Appendix at A-l.

infin

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 re-

hearing was denied by the Supreme Court

of Florida on June 25, 1987. The juris-

diction of this Honorable Court is

invoked pursuant to the specific vbevi-

sions of Title 28 U.S.C. Sec. 1257(3)

and Rule 17(1)(b) and (c), Rules of the

Supreme Court of the United States.

This is a civil case.

le sane see iceman alias + ~ etn ei ie ee eee mre.

wien

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 juris-

diction of the Crime.

Title 18 U.S.C. Sec. 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 Terri-

tory, 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 auth-

ority appointed to receive the

fugitive to be delivered to such

agent when he shall appear.

-~

on aa ,

=

Florida’s adoption of the Uniform Crimi-

nal Extradition Act (Section 941.01 -

941.29, Fla. Stat. 1941) includes

Section 941.02 which specifically pro-

vides:

Sec.

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 state.

ilies

STATEMENT OF THE CASE

Respondent adopts Petitioner’s

Statement of the Case as set forth in

his Petition for Writ of Certiorari.

aa ka lle il i RB tea te

ates

REASONS FOR DENYING THE WRIT

Counsel for Respondent has re-

searched the cases cited in Petitioner’s

brief, and found not one single case

which states that the documents on which

a Warrant in Extradition is based and

the Warrant itself constitutes a conclu-

sive case against which there is no

defense. Granted, occasionally the

rules of evidence seemed strained as in

Smith v. State of Idaho, 373 F.2d 149

(9th Cir. 1967), in which the court

received six Affidavits and a Depo-

sition. Nothing in that case indicates

that using Affidavits was questioned.

If the State’s position in nthis matter

is upheld, it means simply that there is

no defense to extradition, other than

patent irregularity or insufficiency of

the documentation. The issue of whether

or not the accused is a fugitive is no

longer a defense to extradition in the

State of Florida.

aie

CONCLUSION

The decisions of the Florida

Supreme Court and the First District

Court of Appeal of the State of Florida

should be upheld, and the trial court’s

order denying Habeas Corpus was properly

reversed.

Respectfully submitted,

W. Paul Thompson

Attorney for Respondent

P.O. Drawer 608

DeFuniak Springs

Florida 32433

(904)892-2117

ain

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

Petitioner, Andrea Smith Hillyer, Assis-

tant General Counsel, The Capitol,

Tallahassee, Florida 32301, this 25th

day of March, 1988.

et: aoe

W. Paul Thompson °

Attorney for Respondent

A-1

SUPREME COURT OF FLORIDA

No. 67,747

DREW 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, S3(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 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.

A-2

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 |

rete, a | 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

pe eget in violation of 13A-8-3 of the

ode 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 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.

A-3

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 agrued 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

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.

A-4

An eyewitness to the theft

testified that it occured on October 16, 1983.

At that time, individuals purporting to be

Golden 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 ther with the truck loading the

fertilizer." Four 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:

A-5

Since the trial court did not find that

appellant failed to meet his burden of

proof, but stated simply that " no sega

reason” existed for d nying his retur

to Alabama, it appears he court may have

denied the writ a matter of law.

482 So.2d at 382-83.

The First District below noted conflict

with Brunelle based on the latter’s assertion

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 meaningless

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),

A-6

as well as under the 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 summmary 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

pet tioner has been charged with a crime

n the demanding state; (c) whether the

petitioner is the person named in the

request for extradition; 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.

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).

A-7

One arrested and held as a fugitive from

ustice is entitled, of right, upon

abeas corpus, to estion the lawfulness

of his arrest and imprisonment, 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

ustice of the demanding state, an

hereby ab ey Pog the resumption 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 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:

re

A-8

", . « [T]he court will not discharge a

defendant arrested under the governor’s

warrant where there is merely ?

contradictory evidence on the subject of

resence in Or absence from the State, as

abeas corpus is not the proper ne

process to t the eh 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 presuption that he

is a fugitive from justice:

"When a person is held in custody from.

justice under an extradition warrant, in

proper form, and showing upon its face

all that is required 24 law to be shown

as a prerequisite to its being issued,

he should not be discharged from custody

unless it is made clearly and :

SALISTACTOrily TO-appear-tnat 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 eee a The Bailey

cose then applied this principle to it

e:

Wje may not properly approve the

\Tésharbe of fhe’ respon Ent unless it

a a Re the record that he succéeded

I in clear and satisfacto 1

its

Carolina at the time of homicide.

evidence

A-9

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

reasonabl u Was W1 ut tase

ege

offense was committed and, consequent Ly,

: _could not be a fugitive from her

justice.

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

convincing 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 cebenee = |

more than whether he was ging f wee

in the demanding state at the time of

the offense and there-after departed

from that state.

Partly because of the language in Bailey,

the Florida courts have shown considerable

confusion in their approach to this issue.

A-10

Under facts similar to those of the present

case, the Third District in State v. Davila,

481 $0.2d 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 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 evidnce "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

A-11

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 caselaw, 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 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 foward with clear

and convincing evidence that he is not a

fugitive. The burden then shifts to the state

a

A-12

to produce competent evidence discrediting the _

petitioner’s proof tosuch a degree that it

ceases to be clear and convincing. While the

court may receive any evidence it deems proper,

affidavits and other heresay 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 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 titioner does present

evidence, the trial court must decide

whether the petitioner has established by

clear and Coty {nang evidence that he was

absent from the deman

time of the offense.

ding state at the

A-13

The state, at its option, may resent

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. . .

f, on the other hand, no evidence is .

resented by the state, and the court is

aced with uncontroverted evidence from

the defendant, it must evaluate that

evidence alone to determine whether the

titioner has carried his burden

y clear and convincing proof.

Walton v. State, 98 Idaho 442, 445, 566 p.2d

765, 768 (1977). Our sister court further

explained that:

uncontroverted evidencr from the

titioner does not automatically mean

hat 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 necessa for

the state to go foward 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

A-14

nation’s criminal justice system into a game _

whose outcome rests largely on whether the

accused can cross a border. See Doran, 439

U.S. at 287. On the other hand, the

constitution forbids a state from exercising

its extradition 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.,

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED, DETERMINED.

BBE F(t Court of Kppeal - ‘Certified Direct =

Conflict of Decisions vs ert eres

First District - Case No. AZ-233

Robert A. Butterworth, Attorney General, and

Andrea Smith Hillyer, Assistant Attorney

General, Tallahassee, Florida

for Petitionerr

W. Paul Thompson, DeFuniak Springs, Florida

for Respondent