Luker v. Koch, 24676

• Decision Date: 04 October 1971
• Docket Number: No. 24676,24676
• Citation: 489 P.2d 191,176 Colo. 75
• Parties: Terrance William LUKER, Plaintiff in Error, v. William L. KOCH, Manager of Safety & Excise and Ex Officio Sheriff of the City and County of Denver, State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 191

489 P.2d 191

176 Colo. 75

Terrance William LUKER, Plaintiff in Error, v. William L. KOCH, Manager of Safety & Excise and Ex Officio Sheriff of the City and County of Denver, State of Colorado, Defendant in Error.

No. 24676.

Supreme Court of Colorado, En Banc.

Oct. 4, 1971.

Sol Cohen, Morton L. Davis, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.

HODGES, Justice.

Terrance William Luker filed a petition for habeas corpus in the trial court in connection with pending extradition proceedings commenced in accordance with C.R.S.1963, 60--1--1, et seq. After hearing, the trial court denied the petition and remanded Luker for extradition to the state of Kansas. On writ of error, petitioner urges reversal. He alleges that the trial court erroneously refused to rule in his favor on the following three propositions:

(1) The initial arrest of Luker was illegal and therefore the extradition proceedings were unlawful;

(2) The Colorado Governor's warrant was defective because it failed to specifically recite that Luker was in the demanding state at the time of the alleged offense; and

(3) Counsel represented to the trial court that Luker may be mentally incompetent. Therefore, the trial court should have stayed the extradition proceedings until a court ordered evaluation of his mental competency could be made.

We reject the arguments for reversal advanced by petitioner Luker. Consequently, we affirm the judgment of the trial court.

I.

Even if the original arrest of the petitioner was without probable cause, which we do not decide here, his argument that this renders the extradition procedures unlawful, including his subsequent arrest under the Governor's warrant, is without merit.

It is well established in Colorado case law that the illegality of an initial arrest cannot be challenged in an extradition proceeding growing out of that arrest. Capra v. Miller, 161 Colo. 448, 422 P.2d 636; Velasquez v. People, 154 Colo. 284, 389 P.2d 849; Travis v. People, 135 Colo. 141, 308 P.2d 997. Once the Governor's warrant is issued and filed along with the supporting papers from the demanding state, the only issues to be considered in a habeas corpus proceeding arising out of the extradition are whether a petitioner is a fugitive from justice and whether he has been substantially charged with a crime. Fox v. People, 161 Colo. 163, 420 P.2d 412; Wigchert v. Lockhart, 114 Colo. 485, 166 P.2d 988.

The reasoning which supports the foregoing rule of law is well expressed in McClearn v. Jones, 162 Colo. 354, 426 P.2d 192. We stated therein as follows:

'Implicit * * * is the principle that the process involved in the arrest in the first instance becomes moot and academic, when replaced and supplanted by the Governor's warrant, and that when a petitioner has already been arrested and is free on bond, it is unnecessary to execute the Governor's warrant by rearresting.'

Just as it is unnecessary to require the police to execute a warrant by rearresting in the McClearn situation, it would appear just as unnecessary to require the police to let a fugitive from justice go free because of some irregularity in his original arrest, and then have to search him out and rearrest him. To require this would in our view be ridiculous.

II.

Petitioner's second contention that the Colorado Governor's warrant was invalid because it did not recite that the petitioner was in the demanding state at the time of the alleged offense is without merit. This argument was adequately answered by this court in Harding v. People, 161 Colo. 571, 423 P.2d 847 wherein we said:

'The requirement of alleging presence in the demanding state is thus clearly imposed upon the requisition of the governor of the demanding state rather than upon the governor of the asylum state. * * * The presumption raised by a governor's warrant in an asylum state on a habeas corpus proceeding may be overcome either by a petitioner showing that he was not within the demanding state at the time the crime was committed or that he has not since left the state. * * * To create the presumption, however it is sufficient that the warrant recite that he is a fugitive from justice in the demanding state.'

The warrant from Kansas charged Luker with burglary and rape and it was accompanied by an affidavit sworn to by the sheriff of Barton County attesting to the crime charged. The Colorado Governor's warrant recited that Luker was a fugitive from justice. Therefore, the warrant created the presumption and the burden was therefore upon Luker 'to show by Clear and convincing evidence that he was absent from (the demanding state) at the time of the crime charged.' Dressel v. Bianco, 168 Colo. 517, 452 P.2d 756. Rather than requiring the Governor's warrant to recite that the accused was in the demanding state at the time of the alleged crime, absence from the demanding state is a defense which may be raised and proven by a petitioner in order to defeat extradition. Luker did not bring forth any evidence to rebut this presumption which attaches to the Governor's warrant. The burden was upon Luker to come forward with clear and convincing proof that he was not in the demanding state at the time of the crime charged or that he was not the fugitive from justice named in the extradition papers.

III.

Finally, we are asked to consider whether the competency of the accused is a proper matter in extradition...