Sawyer v. StateSawyer v. State
- Reporters:
- Before:
- McKusick, Pomeroy, Wernick, Archibald, Godfrey, Nichols
We deny the appeal.
I. Proof of Fugitive Status
The petitioner testified on his own behalf that in February 1977 he was a resident of Mina Township, Chautauqua County, New York. He further testified that in the course of his business as a carpet installation subcontractor, he had worked periodically in Pennsylvania during the winter of 1977 and that he had been in Pennsylvania “around” February 11, 1977. On cross-examination, however, he admitted that he could have been in New York on that date. The State thereafter produced one Rasmussen, who testified that he had gone bowling with the petitioner in Jamestown, Chautauqua County, New York, on February 11, 1977.
The rendition warrant issued by the Governor of Maine alleges the fact that petitioner Sawyer is a fugitive from justice.3 That warrant, regular on its face, presumptively established that the petitioner was present in the demanding state at the time of the alleged offense, subject to rebuttal if the petitioner in the habeas corpus proceeding should prove otherwise by “clear and convincing evidence.” Walker v. State, Me., 315 A.2d 855, 856 (1974). The justice below found, not only that petitioner had failed to meet his burden, but also that the evidence affirmatively demonstrated that he had been present in New York, the demanding state, at the time of the alleged offense. Petitioner attacks the justice‘s factual findings on the ground that the testimony of the State‘s witness, Rasmussen, was not credible. Rasmussen‘s testimony was not, however, so inherently improbable and incredible as to be unbelievable as a matter of law.4 See State v. McFarland, Me., 369 A.2d 227, 229 (1977). In any event, the justice was clearly entitled to find that petitioner‘s own testimony was unworthy of belief, and, therefore, that petitioner had failed to carry his burden of proof by “clear and convincing evidence” that he was not present in New York, the demanding state, “on or about” February 11, 1977. Assessment of the credibility of witnesses was a task for the presiding justice who heard those witnesses, not for us who have before us only the cold printed pages of the transcript.
II. Sufficiency of Documentation
The requisition from the Governor of New York was accompanied by a copy of the Chautauqua County grand jury indictment and an affidavit by the Acting District Attorney for Chautauqua County attesting to certain facts,5 but not such as would constitute probable cause for the petitioner‘s arrest.
“[The] demand for the extradition of a person charged with crime in another state . . . shall be accompanied by a copy of an indictment found, or information, supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate in such state, together with a copy of any warrant which was issued thereupon, . . ..”
Pointing to the commas placed in the Maine Act around the words “or information” and to the absence of comparable commas in the parallel section 3 of the Uniform Criminal Extradition Act as adopted by the National Conference of Commissioners on Uniform State Laws,6 petitioner argues that an “indictment found” (as well as an information) must be supported by an affidavit sufficient to establish probable cause to believe that the fugitive committed the charged offense.
We disagree.
The legislature mandates, in no uncertain terms, that Maine‘s Act, expressly denominated the “Uniform Criminal Extradition Act,”
The federal act,
“It is clear that an affidavit is not required where the charge is made by action of the grand jury, as it was here. The indictment imports probable cause; it embodies a grand jury‘s judgment that constitutional probable cause exists.” (Emphasis in original) People v. Jackson, 180 Colo. 135, 138, 502 P.2d 1106, 1108 (1972).
Our examination of the relevant history of Maine‘s extradition statute shows that, despite the difference in punctuation, the legislature did not mean any substantive departure from the Uniform Act. The promptness with which Maine enacted both the original 1926 Uniform Act and the 1936 revision evinces our legislators’ eagerness to achieve and maintain uniformity in this important area of interstate cooperation. When the Maine legislature in 1929 first enacted the Uniform Act, it followed in section 3 the exact language and punctuation of the Commissioners’ Act, namely:
“No demand for extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing and 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 there, together with a copy of any warrant which was issued thereon.” P.L. 1929, ch. 124, § 3 (emphasis added). Compare Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings 592 (1926).
The 1926 report of the Commissioners’ committee that drafted the original Uniform Act leaves no doubt that they meant the phrase “supported by affidavit” to qualify “information” only. That report states:
“Following the instruction of the last conference, your committee have incorporated the provision [for extradition on information] in this draft, and suggest that it may be generally accepted on the theory of comity. But we provide that the information must be supported by somebody‘s affidavit to the facts, as otherwise it is sure to meet more or less objection in many legislatures.” Id. at 587.
The commas setting apart the phrase “or information” first appeared in the Maine statute when the legislature adopted the 1936 revision of the Uniform Act. P.L. 1939, ch. 10, § 1. That enactment was manifestly designed to track the revisions made in the uniform law, and not intended to produce any substantive difference. The
Under New York law the grand jury, by returning an indictment, has found probable cause.
To construe the Maine extradition statute to require a double showing of probable cause, whom most if not all other states including New York10 find the indictment adequate by itself, would violate the natural expectation of reciprocity among the law enforcement agencies of the several states. As a practical matter, when the tables were turned and Maine was the demanding state, Maine could well receive less than wholehearted cooperation from New York or another responding state. We are confident that the 1939 Maine legislature never intended, by placing commas around the phrase “or information,” to put our own law enforcement agencies at such a disadvantage.
The entry must be:
Appeal denied.
Judgment affirmed.
DELAHANTY, J., did not sit.
Notes
The Governor‘s rendition warrant was, in turn, based upon the requisition from the Governor of New York.
“No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging . . . that the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter he fled from the state . . ..” The allegations of the written demand or requisition in this case satisfied those requirements of section 203. See Walker v. State, Me., 315 A.2d 855, 856 (1974).
“Whenever 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 produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear.” (Emphasis added)