In re Haynes

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-109


In re Thomas Haynes                          Supreme Court

                                             On Appeal from
                                             Franklin Superior Court

                                             June Term, 1990




Richard W. Norton, J.

Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate
   Defender, Montpelier, for petitioner-appellant

Jeffrey L. Amestoy, Attorney General, and David E. Tartter, Assistant
   Attorney General, Montpelier, for respondent-appellee



PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.



     GIBSON, J.   Thomas A. Haynes (petitioner) brought a habeas corpus
proceeding  in Franklin Superior Court to prevent his extradition to Ohio.
The court denied his petition, and he now appeals to this Court.  The sole
issue on appeal is whether the rendition request from Ohio sufficiently
identified Mr. Haynes.  We affirm.
     Petitioner was arrested on November 20, 1989, in Barre, Vermont and
brought before the Barre District Court later that day.  On December 13,
1989, a governor's warrant was served on petitioner pursuant to an inter-
state rendition request by the State of Ohio.  The rendition request
included identification documents such as fingerprints, photographs, and a
"prisoner's description" providing information about height, weight, eye
color, hair color, and scars.  Each of the identification documents bears
the name "Thomas Andrew Haynes."  There was, however, nothing in any of the
documents that specifically linked the Thomas Andrew Haynes in the identi-
fication materials to the Thomas A. Haynes named in the indictment and
cover letter.
     At the 13 V.S.A. { 4950 hearing held on December 19, 1989, petitioner
indicated that he intended to challenge the governor's warrant.  His habeas
corpus petition, filed on January 19, 1990, was heard on February 9, 1990.
Throughout the hearing, petitioner maintained that the "warrant itself must
make a prima facie case of identity."  The court rejected this argument and
concluded that there need only be an identity of names between the prisoner
and the warrant.  Over petitioner's objection, the court also allowed the
State to introduce evidence extrinsic to the warrant and rendition request
on the issue of identity.  This supplemental evidence included testimony of
petitioner's father-in-law, Terrence Hamlin (who identified petitioner as
Thomas A. Haynes (FN1)), and an affidavit of petitioner's co-indictee, Damon
Harp, with photographs appended, identifying petitioner as the person in the
photographs.  At the conclusion of the hearing the court denied the habeas
corpus petition.
     Petitioner does not appeal from the superior court's conclusion that he
is, in fact, the person sought by Ohio.  Instead, he argues that the
"paperwork" provided by the State of Ohio in its rendition request inade-
quately identified him.  Petitioner argues for a rule requiring that the
governor's warrant be supported in the rendition request by some identi-
fication information in addition to identity of name.  In support, he
contends that the identification material supplied by Ohio in its interstate
rendition request cannot be considered because there is no document that
specifically links the Thomas Andrew Haynes named on the identification
documents to the  Thomas A. Haynes named in the rendition request and
accompanying indictment.  He adds that there is more than one "Thomas
Haynes" in the greater Cincinnati area, as indicated from telephone,
drivers' license, and vehicle registration records from Ohio, Indiana, and
Kentucky.
     In Vermont, there is no statutory requirement that a demanding state's
rendition request include proof of identity.  See 13 V.S.A. { 4943.  We have
recently upheld the constitutionality of { 4943.  In re Lovejoy, 150 Vt.
588, 590, 556 A.2d 79, 80 (1988) ("An early opportunity to appear before a
judicial officer to contest the arrest fulfills any constitutional require-
ments.").  Cases from other jurisdictions have held that a rendition request
does not need to include proof of identity, other than the name of the per-
son to be arrested.  See Torrey v. Williams, 388 A.2d 921, 922 (Me. 1978)
("identity of names gives rise to a rebuttable presumption of identity"); A
Juvenile, 396 Mass. 116, 121-22, 484 N.E.2d 995, 999 (1985) (although
identity of names must be combined with "slight additional evidence" in
order to establish identity of person, it is not necessary that the addi-
tional evidence be a part of the rendition request); Dovel v. Adams, 207
Neb. 766, 769, 301 N.W.2d 102, 103 (1981)(identity of names is sufficient to
establish prima facie case of identity); Thomas v. O'Brien, 98 N.H. 111,
113, 95 A.2d 120, 121 (1953) (omission of personal description of accused or
other identification, other than name and date and place of crime, did not
invalidate the rendition); see generally Annotation, Necessity and
Sufficiency of Identification of Accused as the Person Charged, to Warrant
Extradition, 93 A.L.R.2d 912 { 11 (1964 & Supp 1983 & Supp 1990) (collecting
cases on presumption of identity arising from identity or similarity of
names).  Accordingly, we hold that Ohio's rendition request adequately
identifies the petitioner.
     Petitioner's reliance on Ayers v. Ratshesky, 213 Mass. 589, 101 N.E. 78
(1913) and Petition of Hamel, 8 Mass. App. Ct. 877, 391 N.E.2d 962 (1979) is
misplaced.  Ayers did involve an issue of identity, but in the totally dif-
ferent context of a negligence suit.  Ayers, 213 Mass. at 593-94, 101 N.E. 
at 80.  In Hamel, the issue was the sufficiency of the evidence at the
hearing that occurred subsequent to the arrest.  Hamel, 8 Mass. App. Ct. at
877, 391 N.E.2d  at 963.  In contrast, the issue here is the sufficiency of
the paperwork supplied by the demanding state, an earlier event in the
statutory framework.  We note that while Massachusetts requires the pro-
secution to establish identity at the rendition hearing, it does not
require, as petitioner asks of us, that the rendition request itself meet
the State's burden in establishing identity.  See A Juvenile, 396 Mass. at
122, 484 N.E.2d  at 999.
     In any event, Ohio's rendition request contained considerable
identification material, including fingerprints, a physical description, and
photographs, to support its request.  Upon being arrested, the petitioner
was given an early opportunity to contest his arrest.  At his hearing, he
was unable to overcome the State's prima facie case or the additional
evidence presented by the State that he is the person sought by the State of
Ohio.  See In re Lovejoy, 150 Vt. at 590, 556 A.2d  at 80.
     Affirmed.


                                        FOR THE COURT:



                                        ________________________________
                                        Associate Justice





FN1.     Hamlin testified that he called the petitioner Andy Haynes, but
that he had been told by his daughter that the petitioner's full name was
Thomas Andrew Haynes.