Reynolds v. Conway

• Decision Date: 21 June 1971
• Citation: 161 Conn. 329,288 A.2d 77
• Court: Connecticut Supreme Court
• Parties: John P. REYNOLDS v. George H. CONWAY, Warden, Connecticut Correctional Center.

Page 77

288 A.2d 77

161 Conn. 329

John P. REYNOLDS v. George H. CONWAY, Warden, Connecticut Correctional Center.

Supreme Court of Connecticut.

June 21, 1971.

Andrew S. Liskov, Public Defender, for appellant (plaintiff).

Walter D. Flanagan, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, THIM, RYAN and SHAPIRO, JJ.

COTTER, Justice.

The plaintiff appeals from a judgment rendered for the defendant dismissing the writ of habeas corpus 'after a full hearing on all the evidence.' In his application for a writ of habeas corpus, the plaintiff alleged that his confinement, pursuant to our governor's warrant, issued under General Statutes § 54-163, authorizing rendition to the executive authority of the state of Colorado, was invalid because he was not a fugitive, and that the action by the Governor of Connecticut was improper under § 54-159 because Colorado 'has failed to produce sufficient evidence that the applicant has fled from justice in the demanding jurisdiction' and that the action by the Governor of Connecticut 'violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution in that the applicant's arrest was without probable cause as required by the Fourth Amendment of the United States Constitution.' In support of the last claim the plaintiff alleges that Colorado failed to include legally sufficient evidence of probable cause to justify the applicant's arrest in that state and that the Connecticut warrant 'is based solely on the previously mentioned legally insufficient information received from the state of Colorado.'

The Colorado governor's requisition on the Governor of Connecticut for the return of the plaintiff as a fugitive was introduced as an exhibit in the course of the trial and it included, inter alia, annexed, authenticated papers charging the plaintiff by complaint, warrant and affidavit with the felonious crimes of robbery and conspiracy to commit robbery. A photograph of the head and shoulders of the plaintiff, both in front face and profile, was attached to the affidavit of a police officer and detective employed by the Denver police department, in which he states that the plaintiff has been so identified from the photograph by the victims of the robbery.

The decisive issue as presented in the plaintiff's appeal is whether he is a fugitive from justice within the meaning of the federal constitution and the statutes permitting the extradition from one state to another of a person charged with crime. U.S.Const. art. 4 § 2; 1 Stat. 302, as amended, 18 U.S.C. § 3182. In this connection the plaintiff pursues three claims: (1) That although the plaintiff presented conclusive and uncontradicted evidence of his absence from Colorado at the time of the alleged crime, the defendant failed to produce any admissible evidence that he was in the demanding state at that time; (2) that the court in its decision and findings never made a determination as to the plaintiff's fugitivity; and (3) that the trial court failed to give the depositions of three alibi witnesses weight and consideration after the depositions had been offered and introduced in evidence by the plaintiff.

The plaintiff advances the first claim because of what purports to be an inconsistency in the evidential ruling of the trial court and its finding. On the introduction of the requisition papers from the state of Colorado, which included the affidavit of the police officer alleging the whereabouts of the applicant on the day of the alleged crime in Colorado, the plaintiff objected to the admission of the affidavit as part of the requisition papers on the ground that it was hearsay evidence and thereby inadmissible to prove the truth of the statements contained therein. The plaintiff, however, specifically did 'not object to the affidavit, per se, as an allied paper to the repuisition papers' but objected only 'to the affidavit going to the truth of the statements contained therein.' The court in sustaining the objection stated, inter alia, that it would 'make a finding that the papers are in proper order,' and remarked that without reading it the court 'will admit it as an affidavit which is a required paper that's necessary for extradition.' The court later stated that if it does read it, it 'will not give it credence as evidence.' No exceptions were taken to the preceding ruling.

In its finding the court found as facts that it accepted the affidavit from the demanding state wherein it is alleged that the applicant was in Colorado at the time of the commission of the crime; that it was accepted as a statement that the applicant was in Colorado at the time; and that it was marked as an exhibit.

The plaintiff agrees that it 'was incumbent on the defendant to produce the requisition papers in order to establish a prima facie case of fugitivity and shift the burden of going forward to the plaintiff,' in accordance with the rule of such cases as United States ex rel. Silver v. O'Brien, 138 F.2d 217 (7th Cir.), cert. denied, 321 U.S. 766, 64 S.Ct. 522, 88 L.Ed. 1062, Ross v. Crofutt, 84 Conn. 370, 373, 80 A. 90, Krutka v. Bryer, 150 Colo. 293, 372 P.2d 83, and see 35 C.J.S. Extradition § 16(d); and in addition the plaintiff concedes that the defendant established a prima facie case. Although the plaintiff complains that the police officer's affidavit attached to the requisition document of the Governor of Colorado was inadmissible for the truth of the statements contained therein because he claims it was predicated on hearsay information, in a similar set of circumstances the admissibility and validity of such an affidavit has been upheld, the court stating that 'in considering the sufficiency of the extradition warrant and the papers accompanying it to qualify under Title 18 U.S.C. § 3182, it is not for the asylum state on habeas corpus to pass upon the quality, persuasiveness or weight of the evidential matter on the basis of which the Governor * * * issued the extradition warrant, for it is solely a question of law whether on the face of the papers accompanying the warrant there was sufficient to say that a crime was 'substantially charged" against the plaintiff under the laws of the demanding state 'and that he was alleged a fugitive. * * * Appleyard v. State of Massachusetts, 203 U.S. 222, 27 S.Ct. 122, 51 L.Ed. 161 (1906); In re Strauss, 197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774 (1905); Munsey v. Clough, 196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515 (1905).' United States ex rel. Vitiello v. Flood, 374 F.,2d 554, 556 (2d Cir.). The affidavit was fully admissible as an exhibit and, therefore, the court's acceptance of the affidavit and its findings in connection therewith were proper. In proceedings of this kind the governor must decide the two questions presented to him: (1) Whether the person demanded has been substantially charged with a crime and (2) whether he is a fugitive from justice 'upon such evidence as is satisfactory to him. Strict common-law evidence is not mecessary. The statute does not provide for the particular kind of evidence to be produced before him * * * but it must at least be evidence which is satisfactory to the mind of the governor. Roberts v. Reilly, 116 U.S. 80, 95 (6 S.Ct. 291, 29 L.Ed. 544).' Munsey v. Clough,196 U.S. 364, 372, 25 S.Ct. 282, 49 L.Ed. 515.

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