In re Jones

In re Jones  (95-499); 164 Vt 619; 669 A.2d 1199

[Filed 02-Nov-1995]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-499

                             OCTOBER TERM, 1995


In re Fisher Jones                   }     APPEALED FROM:
                                     }
                                     }
                                     }     Chittenden Superior Court
                                     }
                                     }
                                     }     DOCKET NO. S1263-95Cnc


       In the above-entitled cause, the Clerk will enter:

       Appellant Fisher Jones appeals from a denial of a habeas corpus
  petition to prevent his extradition to Colorado.  We affirm. 

       Appellant was served with a Governor's warrant on August 7, 1995. 
  Appellant filed a habeas corpus petition on September 26, 1995, and the
  court held a hearing on the petition on the following day.  Attached to the
  Governor's warrant was an Affidavit for Arrest Warrant in which the
  ex-girlfriend of appellant states that she had been assaulted by the
  appellant in a liquor store parking lot in Boulder, Colorado.  Also
  attached to the Governor's warrant were a fingerprint card and a photograph
  of appellant.  The fingerprint card included the name of appellant, his
  date of birth, height, weight, and race. 

       Appellant argues that the Colorado governor's demand for extradition
  failed to meet the statutory requirements of 13 V.S.A. § 4943 because it
  did not show that appellant was in Colorado at the time of the alleged
  offense.  Appellant relies on our decision in Lovejoy v. State, 148 Vt.
  239, 531 A.2d 921 (1987), to support his argument.  Appellant's reliance on
  Lovejoy is misplaced, because Lovejoy involved an extradition demand where
  no Governor's warrant had been issued at the time of the habeas corpus
  hearing.  Id. at 241, 531 A.2d  at 922. That case explained the requirements
  of § 4955, the statute that governs in case of arrest prior to the issuance
  of a Governor's warrant, not the more limited requirements of § 4943, the
  statute involved here.  Id. at 243-44, 531 A.2d  at 924.  We note that the
  Governor's warrant is prima facie evidence that the constitutional and
  statutory requirements for extradition have been met. In re Ladd, 157 Vt.
  270, 274, 596 A.2d 1313, 1315 (1991).  Accordingly, our function in
  reviewing the legality of a sister state's extradition request is limited; 
  we will not look behind the documents included in the warrant or examine
  the merits of the charges against appellant. Id. at 272, 596 A.2d  at 1314. 

       Under 13 V.S.A. § 4943, a demand for extradition will be recognized if
  the Governor's warrant shows in writing that (1) the accused was present in
  the demanding state at the time of the commission of the alleged crime, and
  thereafter fled from the state;  (2) the accused is now in Vermont;  and
  (3) the accused has been lawfully charged by indictment or information,
  supported by an affidavit, with having committed a crime under the laws of
  that state, or has been convicted by the state and has escaped or broken
  terms of bail, probation, or parole. Section 4943(b) imposes only a minimal
  burden on the part of the demanding state.  Ladd, 157 Vt. at 272, 596 A.2d 
  at 1314;  see also In re Moskaluk, 156 Vt. 294, 299, 591 A.2d 95, 98 

 

  (1991) (holding that § 4943(b) does not require that documents show
  probable cause to believe that fugitive violated probation).

       Appellant argues that the first requirement has not been met because
  it has not been shown adequately that appellant is the same Fisher Jones
  who is alleged to have committed a crime in Colorado.  Appellant could make
  a similar argument about the second and third requirement.

       The controlling case is In re Haynes, in which we held that there is
  no statutory requirement that a demanding state's rendition request include
  proof of identity, other than the name of the person to be arrested.  155
  Vt. 256, 258, 583 A.2d 88, 90 (1990).  Although aimed at a different
  statutory requirement, the appellant's argument in Haynes was identical to
  that made here.  The appellant in Haynes argued that, although he was the
  person the demanding state sought, nothing in the paperwork showed that he
  was the person named in the indictment. He showed that other persons with
  his name lived in the area where the crime was alleged to have occurred. 
  We held that identity of name is sufficient to meet all § 4943
  requirements, unless the accused rebuts the presumption created by that
  identity by offering evidence that he is not the same person named in the
  indictment.  Id. at 259, 583 A.2d  at 90;  see also Ladd, 157 Vt. at 274,
  596 A.2d  at 1315 (once State puts into evidence supporting documents,
  defendant may present evidence to rebut prima facie case).

       Appellant argues that papers do not show that he is the Fisher Jones
  who was present in Colorado at the time of the commission of the crime. 
  Under Haynes, presence is presumed by identity of name.  With no evidence
  to rebut the presumption, the court correctly ruled that compliance with §
  4943 is shown.

       Affirmed.



     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice
   
     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice