In Re Graziani

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                                No. 91-024


In re Paul B. Graziani                       Supreme Court

                                             On Appeal from
                                             Chittenden Superior Court

                                             March Term, 1991


Frank G. Mahady, J.

E.M. Allen, Defender General, and William A. Nelson, Appellate Attorney,
  Montpelier, for petitioner-appellant

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


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


     DOOLEY, J.   Petitioner Paul Graziani appeals from the superior court's
denial of his petition for writ of habeas corpus.  We affirm.
     On the evening of May 29, 1990, a bomb exploded on the front porch of a
residence in Torrington, Connecticut.  Following an investigation by the
Torrington Police Department, the State of Connecticut charged petitioner
with arson, manufacture of a bomb, reckless endangerment, possession of a
sawed-off shot gun, and violation of probation.  On August 16, 1990, the
Governor of Connecticut requested extradition of petitioner from Vermont.
     The requisition warrant was accompanied by the following documents:
(1) an "Information," dated June 22, 1990, charging petitioner with arson,
manufacture of a bomb, and reckless endangerment; (2) an "Application for
Arrest Warrant," signed by an Assistant State's Attorney and dated June 22,
1990, including a six-page affidavit signed and sworn to by a Torrington
police officer before a police sergeant, who apparently is also a notary;
(3) a "Finding," pre-printed on the arrest warrant application and signed by
a Superior Court judge, stating that "there is probable cause to believe
that an offense has been committed and that the accused committed it and,
therefore, that probable cause exists for the issuance of a warrant for the
arrest of the above-named accused"; (4) an arrest warrant, signed by a
Superior Court judge and dated June 22, 1990; (5) an "Information," dated
June 29, 1990, charging petitioner with possession of a sawed-off shotgun;
(6) a form entitled "Application for Arrest Warrant," signed by a Deputy
Assistant State's Attorney and dated June 22, 1990, including a three-page
affidavit, signed and sworn to by a Torrington Police Department sergeant
before a police lieutenant, who apparently is a notary; (7) a "Finding,"
pre-printed on the application described in (6) and signed by a Superior
Court judge, stating that "probable cause exists for the issuance of a
warrant for the arrest of the above named accused"; and (8) an arrest
warrant, signed by a Superior Court judge and dated June 29, 1990.  On
September 13th, the Governor of Vermont issued a warrant for the arrest of
petitioner, who was subsequently apprehended.  Petitioner brought this
habeas corpus petition to prevent his extradition.
     Petitioner complained that the documents filed in support of
Connecticut's extradition demand failed to comply with Vermont's
codification of the Uniform Criminal Extradition Act, 13 V.S.A. {{ 4941 -
4969.  According to petitioner, the extradition demand was defective because
the accompanying affidavits were sworn to before a police officer, rather
than "before a magistrate," as required by { 4943.   The trial court
concluded that, taken as a whole, the materials accompanying the warrant
-- an "affidavit notarized by a police officer, a finding of probable cause
by a judicial officer and a warrant" -- satisfied the requirements of the
Act.  On appeal, petitioner claims that the trial court erred in ruling that
the documents satisfied the requirement of an "affidavit made before a
magistrate."  The State advances an alternative ground for affirmance under
{ 4943, that the requisition warrant included "an information supported by
affidavit."
     We have emphasized that review in this Court is limited to "the
validity of the demanding warrant and the procedural compliance with the
requirements for rendition.  If those are in order, we look no further in
this proceeding."  In re Everett, 139 Vt. 317, 319, 427 A.2d 349, 350
(1981).  Under 13 V.S.A. { 4943(a), an extradition demand for a person who
is charged with a crime in the demanding state must be accompanied by a copy
of one of the following documents:  (1) an indictment; (2) an information
supported by affidavit; or (3) an affidavit made before a magistrate.
Subsection (b) of { 4943 states that an extradition warrant shall not be
issued unless the accompanying documents "show that . . . [the person] is
lawfully charged by information found or by information filed by a
prosecuting officer and supported by affidavit to the facts, or by affidavit
made before a magistrate."  These two sections provide the bases for the
issuance of an extradition warrant and must be read together.  See Rayburn
v. State, 366 So. 2d 698, 702 (Ala. Crim. App. 1978), aff'd, 366 So. 2d 708
(1979) (applying identical provisions in Alabama Act).
     In this case, the two affidavits submitted with the extradition warrant
were sworn to by officers from the Torrington Police Department before
police officers who apparently were notaries.  Neither was "made before a
magistrate."  The trial court concluded that the accompanying arrest
warrant, signed by a Superior Court judge, vindicated the warrant.  We do
not decide whether these materials, viewed in their entirety, satisfy the
"affidavit made before a magistrate" ground of { 4943; rather, we conclude
that the denial of the petition must be affirmed because the extradition
demand included "an information filed by a prosecuting officer and supported
by affidavit to the facts."  See State v. Greenia, 152 Vt. 596, 597, 522 A.2d 242, 243 (1987) (decision of trial court may be affirmed on any legal
ground, even though trial court based its ruling upon another ground).
     The extradition demand was supported by two "Information" forms from a
Connecticut State's Attorney's office.  The first was signed by an Assistant
State's Attorney, the latter was signed by a Deputy Assistant State's
Attorney.  Either of these documents satisfy the "information filed by a
prosecuting officer" language of { 4943.  They are sworn to by the
prosecuting officer and are accompanied by detailed affidavits, sworn to by
Torrington Police Department officers.  These informations and affidavits
satisfy the "supported by affidavit" requirement of the statute.
     Petitioner makes two arguments against this conclusion.  The first is
that there is nothing to show that the informations were filed by the
prosecutor or anyone else, a specific requirement of { 4943.  At best,
petitioner is raising a "mere technical error" in the extradition documents.
See In re Ropp, 149 Vt. 269, 274, 541 A.2d 86, 90 (1988).  The information,
dated June 22, 1990, is accompanied by an affidavit of June 21, 1990 on a
form entitled "Application for Arrest Warrant."  On the bottom of the form
is a finding of a superior judge, dated June 22, 1990, that probable cause
exists for issuance of an arrest warrant.  An arrest warrant was issued on
that date.  To accept petitioner's argument, we would have to conclude that
the court ordered the arrest of petitioner based on an information that had
never been filed.  We believe that the action of the court was sufficient to
establish filing by a prosecuting officer.
     Petitioner's second argument is that the affidavit supporting the
information must be made by the prosecuting officer; an affidavit of a
police officer is insufficient.  He correctly points out that this Court, in
a previous case, appeared to construe { 4943 to require an information
filed by a prosecuting officer to be supported by "an affidavit of fact by
the prosecuting officer."  Deyo v. Snelling, 139 Vt. 341, 343, 428 A.2d 1117, 1119 (1981) (emphasis supplied). (FN1)
     The Deyo decision does not appear to rest on who authored the affidavit
in that case; the lower court found the affidavit "insufficient to support
the information charging plaintiff" with the crime.  Id. at 342, 428 A.2d  at
1118.  Thus, it should be taken as a holding that there was no supporting
affidavit.  We need not disturb that holding, but we agree with the State
that an affidavit from the prosecutor is not required.  Three reasons
support this conclusion.
     First, the express language of the Act is unambiguous.  Section 4943(a)
states that an extradition demand "shall not be recognized" unless accom-
panied by an indictment, an affidavit made before a magistrate, or "by an
information supported by affidavit in the state having jurisdiction of the
crime."  Section 4943(b)(3) states that the accompanying documents must
show that the accused "is lawfully charged . . . by information filed by a
prosecuting officer and supported by affidavit to the facts . . . ."   In
construing these statutes, we are bound in the first instance to use the
plain ordinary meaning of the words used.  See Burlington Elec. Dep't v.
Vermont Dep't of Taxes,     Vt.    ,    , 576 A.2d 450, 452 (1990).
Further, we ordinarily do not assume that words are used in a more limited
sense than their plain meaning.  See State v. Camolli, 2 Vt. L.W. 76, 77
(Feb. 19, 1991).  The legislature used the word "affidavit" here without
limiting the affidavit to a particular author.  If they intended such a
limitation they would have said so.  See id. (had the legislature intended
to limit the permissible type of DUI test "it would have used specific test
names rather than the generic term 'test'").
     Second, the statute itself makes it clear that the purpose of docu-
mentary support is to ensure that the demanding state has "substantially
charge[d] the person demanded with having committed a crime under the law of
the state."  13 V.S.A. { 4943(a); see Glover v. State, 257 Ark. 241, 243,
515 S.W.2d 641, 643 (1974) ("The only question involved here is the
sufficiency of the requisition, and the answer turns upon the question
whether there is a substantial charge of a violation of the laws of [the
demanding state].").  There can be no doubt that the informations and
affidavits -- along with the arrest warrant signed by a judicial officer --
accomplish that purpose.  See, e.g., id. at 244, 515 S.W.2d  at 644 (under
Arkansas extradition statute identical to Vermont statute, information
supported by affidavit was sufficient);  In re Ierardi, 366 Mass. 640, 646,
321 N.E.2d 921, 925 (1975) (information supported by police officer's
affidavit satisfied requirements of Massachusetts codification of the
Uniform Criminal Extradition Act); Salvail v. Sharkey, 108 R.I. 63, 69, 271 A.2d 814, 818 (1970) (same under Rhode Island codification of the Uniform
Criminal Extradition Act); Ex Parte Quinn, 549 S.W.2d 198, 201 (Tex. Crim.
App. 1977) (information supported by affidavit by complaining witness).
     Third, we can think of no reason why we would have a preference for an
affidavit of a prosecutor over that of an investigating police officer.
Indeed, an affidavit of a prosecutor is likely to be based on information
supplied by investigating officers and, thus, is further from the source of
the information.  In many instances it will have to be created solely for
extradition purposes because it will have no significance in a state's
criminal procedure.  We cannot accept that the legislature intended to
impose such a meaningless, technical requirement.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice

                     
FN1.  Although neither party argued the point, we do not wholly dismiss
the possibility that there is an adequate prosecutor's affidavit in this
case.  Both informations were verified.  According to the form, this was
done to obtain an arrest warrant apparently to comply with Conn. Gen. Stat.
Ann. { 54-2a (West 1985) (affidavit required to show probable cause for
arrest warrant).  We are unable to determine, however, whether under
Connecticut law the prosecutor is swearing to the general allegations made
in the information or to the specific facts as shown in affidavit of the
police officer.  Accordingly, we cannot conclude on this sparse record that
the verification of the informations was sufficient to create a complying
affidavit of the prosecutor.