Petition of Upton

• Decision Date: 02 September 1982
• Citation: 387 Mass. 359,439 N.E.2d 1216
• Parties: Petition of George UPTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1216

439 N.E.2d 1216

387 Mass. 359

Petition of George UPTON.

Supreme Judicial Court of Massachusetts Barnstable.

Argued May 5, 1982.

Decided Sept. 2, 1982.

Nancy Gertner, Boston, for petitioner.

William D. Luzier, Jr., Asst. Atty. Gen., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

The petitioner (Upton) appeals from an order denying his petition for a writ of habeas corpus. Upton brought the petition to challenge the legality of his arrest on a warrant issued by the Governor of this Commonwealth in response to a demand from the Governor of Arizona for his rendition to face criminal charges in Arizona. The judge who denied the writ purported to reserve and report to the Appeals Court the questions whether a petitioner could be admitted to bail (a) while his petition for a writ of habeas corpus is pending in the Superior Court and (b) while his appeal is pending from the denial of the writ. We transferred the appeal and the reported questions to this court on our own motion.

We affirm the order denying the writ of habeas corpus, and conclude that a judge may grant bail to a prisoner who has a petition for habeas corpus pending in the Superior Court or an appeal pending from an order denying the writ.

Upton's Appeal

The charges arise from an alleged break-in at the Automatic Nozzle Exchange in Mesa, Arizona, between October 19 and 20, 1980. In March, 1981, Upton was arrested in Massachusetts on a fugitive from justice complaint alleging that he was charged in Arizona with theft and burglary. He was released on bail pending arrest on a Governor's warrant. See G.L. c. 276, § 20D. On May 5, 1981, he was arrested on a warrant issued by the Governor of this Commonwealth and, on his arraignment that day in Barnstable District Court, he was advised of his right to challenge his arrest by filing a petition for a writ of habeas corpus. On May 7, 1981, Upton was released on $25,000 bail. On May 22, 1981, Upton filed a petition for a writ of habeas corpus in Barnstable Superior Court. After hearing, the petition was denied on September 3, 1981, and Upton was continued on the same bail pending his appeal from the denial of the writ. He argues that the papers presented in support of his rendition were not in order because an affidavit purporting to show his picture was defective and one count in the complaint failed properly to allege a crime. Upton further argues that the judge improperly treated the factual question whether Upton was in Arizona at the time of the alleged crimes.

We start our analysis by noting the limited nature of a rendition proceeding in an asylum State. In Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978), the Supreme Court said that "[o]nce the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive." The same issues were described as the relevant ones in the earlier opinion of this court in Maldonado, petitioner, 364 Mass. 359, 362, 304 N.E.2d 419 (1973).

Under G.L. c. 276, § 14, a part of the Uniform Criminal Interstate Rendition Law (Uniform Rendition Law) (see G.L. c. 276, § 20R), the demand for rendition must be accompanied by a copy of a judgment of conviction, a sentence, an indictment, an information supported by affidavit, or "a copy of an affidavit made before a magistrate of [the demanding] state, and by a copy of the warrant which was issued thereon." Here, there was a copy of a complaint made before a justice of the peace and a copy of the warrant for Upton's arrest issued by the same justice of the peace, reciting that he had "found reasonable cause to believe that such offense(s) were committed and that the accused committed them." A complaint sworn before an officer authorized to administer oaths is the equivalent of "an affidavit made before a magistrate" (G.L. c. 276, § 14). Murphy, petitioner, 321 Mass. 206, 213-214, 72 N.E.2d 413 (1947). Thus, the documents required by statute were submitted in proper form.

Upton argues, however, that the documents were not regular on their face because as to one affidavit, received from Arizona but not required by law, the affiant failed to complete the form of affidavit. The affidavit of a detective in the Mesa police department stated that an attached picture was that of Upton. He left blank the space on the form following the words: "This knowledge is based upon ______."

We have said that rendition papers may be regular on their face, even if accompanied by a superfluous affidavit that would not meet statutory requirements. Murphy, petitioner, supra at 212-214, 72 N.E.2d 413. See Fenton v. State, 91 Idaho 149, 151, 417 P.2d 415 (1966). The allegedly deficient affidavit was not required by law and in no way impeached the required documents. The judge was correct in ruling that the documents were proper on their face.

Upton also challenges the form of the complaint with respect to one charge against him, asserting that it does not charge a crime. The complaint for theft alleges, in part, that Upton "knowingly controlled property of [a named person] ... with the intent to deprive [that person] of such property, in violation of [Ariz.Rev.Stat.Ann. § 13-1802 (1978) and other statutes]." Section 13-1802 of the Arizona Revised Statutes defines theft by requiring that the prohibited conduct be "without lawful authority." The complaint does not allege that Upton acted without lawful authority, but it does assert that Upton's conduct violated § 13-1802. Upton cites no Arizona authority to the effect that such a theft count would not allege a crime.

Because Upton does not challenge the other count, alleging burglary, there is admittedly one valid charge set forth in the complaint. Even if we assume that a court in an asylum State may pass on whether a complaint charges a crime, when the request from the demanding State implies that it does (see Munsey v. Clough, 196 U.S. 364, 373, 25 S.Ct. 282, 284, 49 L.Ed. 515 [1905] ), any failure of the theft count to charge a crime would be inconsequential. Indeed, unless Arizona has a particularly strict view of criminal pleading, we would expect that an Arizona court would conclude that theft was properly charged in the challenged count.

Upton also challenges the judge's conclusion that he failed to meet his burden of showing that he was not a fugitive. Upton concedes that, once the papers are shown to be regular on their face, the burden rests on him to prove that he was not in the demanding State at the time of the offense. The Governor's grant of extradition is prima facie evidence that Upton is a fugitive. See Michigan v. Doran, supra, 439 U.S. at 289, 99 S.Ct. at 535 (Governor's grant of extradition is prima facie evidence that all constitutional and statutory requirements have been met); Bassing v. Cady, 208 U.S. 386, 392, 28 S.Ct. 392, 393, 52 L.Ed. 540 (1908) (warrant of arrest issued by Governor of rendering State is prima facie evidence that the accused is a fugitive); Murphy, petitioner, supra, 321 Mass. at 210-211, 72 N.E.2d 413 (rendition warrant prima facie evidence that all necessary legal prerequisites had been complied with and, hence, evidence of the presence of petitioners in the demanding State at the time of the crime alleged); Baker, petitioner, 310 Mass. 724, 729, 39 N.E.2d 762, cert. denied, 316 U.S. 699, 62 S.Ct. 1297, 86 L.Ed. 1768 (1942) (rendition warrant prima facie evidence that all legal prerequisites have been met). Upton's burden was to show by clear and satisfactory evidence that he was not a fugitive. Baker, petitioner, supra, 310 Mass. at 730, 39 N.E.2d 762. See Munsey v. Clough, supra 196 U.S. at 375, 25 S.Ct. at 285 (mere contradictory evidence does not warrant discharging a petitioner).

The judge considered evidence submitted by Upton which he contended showed that he was in Massachusetts at the time of the alleged offenses. We need not recite that evidence. Some of it the judge disbelieved; some she found to be inconclusive; and the rest did not exclude the possibility of Upton's presence in Arizona on the relevant dates. The judge reached her conclusion without considering evidence presented by a Commonwealth witness and, therefore, we need not consider whether Upton was improperly restricted in cross-examining that witness.

The judge ordered that the petition for a writ of habeas corpus be denied and continued Upton on $25,000 cash bail pending disposition of his appeal.

The Reported Questions Concerning Bail

The judge has reported two questions concerning the right of a person to be admitted to bail during the course of a habeas corpus proceeding challenging rendition. The first concerns the right to bail while the habeas corpus proceeding is pending in the Superior Court. The second raises the issue of the right to bail pending appeal from the denial of a writ of habeas corpus seeking release from custody pursuant to a Governor's warrant. ¹

The issues raised by the reported questions are moot because the Superior Court proceeding has ended and we have disposed of Upton's appeal. However, except as they may be presented (a) on report of an interlocutory order to an appellate court for determination while the Superior Court action is pending or before the appeal is decided, or (b) through the single justice session of this court on a request for interlocutory relief, the issues will always be moot when they reach an appellate court. Because the questions are fully briefed and raise matters of importance that are likely to arise again, but are unlikely to be capable of appellate review in the normal course before they become moot,...