In re Nason

In re Nason  (96-269); 165 Vt 582; 682 A.2d 955

[Opinion Filed 28-Jun-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 96-269

                              JUNE TERM, 1996


In re Joseph Nason and               }     APPEALED FROM:
Randy Lee                            }
                                     }
                                     }     Rutland Superior Court
                                     }
                                     }
                                     }     DOCKET NO. S0061-96RcCa


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

       Petitioners Randy Lee and Joseph Nason appeal from the Rutland
  Superior Court's denial of their habeas corpus petition seeking to prevent
  their extradition to Maine.  We affirm.

       Petitioners were arrested in Vermont on informations alleging that
  they were fugitives from the State of Maine on December 1, 1995.  They had
  been indicted by a Maine grand jury for burglary and receipt of stolen
  property and incarcerated in lieu of cash bail.  On January 19, 1996,
  petitioners were both served with a governor's warrant from the State of
  Maine and proposed rendition signed by the Governor of Vermont.

       On January 25, 1996, petitioners filed a joint petition for a writ of
  habeas corpus claiming that their restraint was unlawful for failure by the
  State to establish that they probably committed the crime.  See 13 V.S.A. §
  4950 ("legality of the arrest" must be tested by application for writ of
  habeas corpus).  On April 3, 1996, petitioners filed a supplemental habeas
  corpus petition challenging the extradition for the State's failure to show
  that they had violated their terms of bail, probation, or parole.  See 13
  V.S.A. § 4943(a).  The trial court denied both petitions.

       On appeal, petitioners raise two new arguments.  First, they claim
  that the governor's warrants fail to meet the requirement of 13 V.S.A. §
  4943(b) that the demanding jurisdiction establish that petitioners were
  "lawfully charged by indictment found or by information filed by a
  prosecuting officer and supported by affidavit to the facts . . . with
  having committed a crime under the laws of that state."  Petitioners argue
  that the supporting documents include an indictment but no supporting
  affidavits to the facts, as required by § 4943(b).  We disagree.

       As provisions in the Uniform Criminal Extradition Act, 13 V.S.A. §
  4943(a) & (b) provide the bases for the issuance of an extradition warrant
  and must be read together.  In re Graziani, 156 Vt. 278, 280, 591 A.2d 91,
  93 (1991).  Section 4943(a) requires that a demand for extradition be
  "accompanied by a copy of an indictment found or by an information
  supported by affidavit in the state having jurisdiction of the crime, or by
  a copy of an affidavit made before a magistrate therein."  That subsection
  clearly shows that the phrase "supported by affidavit" modifies only the
  term "information."  Read in pari materia, the provisions do not support
  petitioners' statutory construction.

       Moreover, in interpreting the same provision, other states have
  rejected petitioners' construction.  E.g., State v. Jackson, 502 P.2d 1106, 1108 (Colo. 1972) (affidavit not required

 

  when charge made by grand jury indictment); Sawyer v. State, 382 A.2d 1039,
  1042 (Me. 1978) (phrase "supported by affidavit" modifies "information"
  only).  Supporting affidavits to show probable cause are required only in
  the absence of an indictment.  See Sawyer, 382 A.2d  at 1043 (requiring
  demanding state to furnish affidavits with indictment would force demanding
  state to make unnecessary double showing of probable cause).

       Next, petitioners claim that their detainment by the State of Vermont
  and the proposed rendition are illegal because the State violated the
  requirement of 12 V.S.A. § 3964 that it file a return documenting its right
  to custody of petitioner "with a copy of the writ, warrant or other
  process, if any, upon which [they were] detained."  They argue that the
  State's failure to adhere to this procedural requirement requires releasing
  them from custody.

       Petitioners' claim, however, is being raised for the first time on
  appeal, and therefore must be subject to the plain error standard of
  review.  State v. Plante, ___Vt.___, ___, 668 A.2d 674, 678 (1995).  There
  is no dispute over the basis of petitioners' incarceration in Vermont or
  their status as fugitives from justice from the state of Maine, as stated
  in the governor's warrants and their supporting documents.  Petitioners do
  not dispute that they were served with the Governor's Warrants.  In fact,
  as a condition precedent to filing a habeas corpus petition, petitioners
  were required to attach to their complaint a copy of the governor's warrant
  underlying the detention.  The governor's warrants and supporting documents
  have been filed with the trial court, and petitioners make no allegation
  that the warrant or supporting documents are fraudulent or forged.

       Petitioners have failed to establish a defect of a kind and magnitude
  sufficient to defeat extradition.  See In re Mears, 124 Vt. 131, 136, 198 A.2d 27, 31 (1964).  There is no plain error.  See Plante, ___Vt. at ___,
  668 A.2d  at 678 (plain error only where error results in manifest
  injustice); cf. McFarland v. Carson, 504 So. 2d 429, 430 (Fla. Dist. Ct.
  App. 1987) (state's failure to introduce into evidence copy of governor's
  warrant not reversible error where supporting documents admitted and
  defendant failed to raise objection below).

       Affirmed.  The mandate shall issue forthwith.



     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