Johnson v. Warden, Montgomery County Detention Center

• Decision Date: 14 November 1966
• Docket Number: No. 462,462
• Citation: 244 Md. 384,223 A.2d 584
• Parties: Steven Gary JOHNSON v. WARDEN, MONTGOMERY COUNTY DETENTION CENTER.
• Court: Maryland Court of Appeals

Page 384

244 Md. 384

223 A.2d 584

Steven Gary JOHNSON v. WARDEN, MONTGOMERY COUNTY DETENTION CENTER.

No. 462.

Court of Appeals of Maryland.

Nov. 14, 1966.

John T. Bell and Charles W. Bell, Rockville (Bell & Bell, Rockville, on the brief), for appellant.

David T. Mason, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Leonard T. Kardy, State's Atty., for Montgomery County, Rockville, on the brief), for appellee.

Before HAMMOND, C. J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

HAMMOND, Chief Judge.

Steven Gary Johnson is sought by New Jersey as a fugitive charged with having committed a crime in that State. After a hearing upon the warrant of extradition issued by the Governor of New Jersey, Governor Tawes issued a warrant of rendition sending Johnson back to stand trial for the crime of housebreaking on September 5, 1965, and pursuant to Code (1957), Art. 41, § 25, Johnson was taken before Judge Anderson of the Circuit Court for Montgomery County and advised of his right to seek a writ of habeas corpus. A hearing then was held by Judge Anderson, at which Johnson's counsel produced six witnesses who testified that during the evening and night of September 4, all of September 5, and all of September 6 (Labor Day), 1965, Johnson was in or within a few miles of his apartment in Montgomery County. The State produced a policeman from the Town of Rio Grande, New Jersey, the location of the store, into which Johnson allegedly broke. The policeman testified that on September 5, 1965, a Sunday, he was on routine patrol at about six o'clock in the evening when word reached him that a burglar alarm had gone off from the Shop-Rite Market in Rio Grande. When he arrived at the store he saw a man standing by a 1965 red Chevrolet car with a white top, bearing Maryland tags, at the rear of the building. He pointed out Johnson from the stand as the man he had seen in New Jersey, declaring that he had no doubts as to the identity. The officer testified that Johnson had showed him a draft card on which was the name Steven G. Johnson and had told him he worked as a dry wall construction worker in Silver Spring. (Johnson testified that his last job prior to September 5, when he was unemployed, had been as a dry wall construction worker.) The policeman then released Johnson and an hour or so later arrested a man named McCook and a man named Clarke (who owned the red and white Chevrolet car), who were sharing a room at a nearby motel with, according to the motel register, a Steven Johnson.

The State also produced a Detective Sergeant of the Montgomery County police, who had known Johnson for some time, who testified that on September 10, 1965, at the Wheaton-Glenmont Station he told Johnson that his habeas corpus hearing would take place in the Silver Spring court on a named day and that Johnson replied that he had stopped smoking, and, pulling back his coat, added that he was getting heavy and 'they wouldn't be able to identify him by that time in New Jersey.'

Judge Anderson ruled that Johnson's evidence did no more than raise a conflict as to whether he was in New Jersey or in Montgomery County at the critical time of the commission of the crime. He denied the writ of habeas corpus because Johnson had not shown conclusively or beyond a reasonable doubt that he had not been in New Jersey when the police there said he was. As permitted by § 25 of Art. 41 of the Code (1965 Replacement Vol.) Johnson appealed.

He does not contend that he is not the individual New Jersey is seeking or that he is not charged in that State with an extraditable crime. His only contention is that the evidence at the hearing was sufficient to show that he was not a fugitive from New Jersey justice since it places him in Maryland at the time the crime was committed in New Jersey. This contention has two trusts. First, Johnson says the statement to the detective as to his increase in weight and the consequent inability of the New Jersey authorities to identify him amounted to a confession and was inadmissible because the State failed to meet its preliminary burden of establishing that it was freely and voluntarily made, and second, that it is a violation of his right to due process of law to require him to show beyond a reasonable doubt that he was not in the demanding State at the time of the offense with which he is charged.

The answer to the last thrust is that the decisions of the Supreme Court and this Court have established fully that it is not unconstitutional to require one resisting extradition to show conclusively or beyond a reasonable doubt that he was not in the demanding State at the critical time. The warrant issued by the Governor of the asylum State raises a presumption that the accused is the fugitive wanted and is sufficient to justify his arrest, detention and delivery to the agent of the demanding State unless he rebuts the presumption by showing beyond a reasonable doubt that he is not a fugitive. Only if he can show this conclusively is he entitled to his release. State of South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292; Audler v. Kriss, 197 Md. 362, 79 A.2d 391; State ex rel. Channell v. Murphy, 202 Md. 650, 96 A.2d 473; Koprivich v. Warden, 234 Md. 465, 200 A.2d 49. These cases also establish that mere contradictory evidence-and the number of witnesses on one side or the other is not conclusive-on the question of presence in or absence from the demanding State will not overcome the presumption.

In State of South Carolina v. Bailey, supra, twenty witnesses put the accused in the asylum State at the critical times and twelve put him the demanding State. The Supreme Court said (289 U.S. at 419, 53 S.Ct. at 670): 'The record presents an irreconcilable conflict of evidence. It is not possible to say with certainty where the truth lies,' and concluded (pp. 421-422 of 289 U.S., p. 671 of 53 S.Ct.):

'Considering the Constitution and statute and the declarations of this Court, we may not properly approve the discharge of the respondent unless it appears from the record that he succeeded in showing by clear and satisfactory evidence that he was outside the limits of South Carolina at the time of the homicide. Stated otherwise, he should not have been released unless it appeared beyond reasonable doubt that he was without the State of South Carolina when the alleged offense was committed and, consequently, could not be a fugitive from her justice.

'The record discloses only a conflict of evidence; the requirement which we have indicated has not been met; and the challenged judgment must be reversed.'

Koprivich put it in this wise (p. 467 of 234 Md., p. 52 of 200 A.2d):

'Moreover, an extradition hearing under writ of habeas corpus is not a proceeding in which an alibi (or other question of fact affecting the guilt or innocence of the accused except insofar as his identity is involved) may be inquired into.'

There are a number of answers to Johnson's argument that his statement to the Montgomery County detective was inadmissible. A habeas corpus proceeding is generally...