Ross v. Hegstrom

• Decision Date: 09 January 1969
• Citation: 254 A.2d 556,157 Conn. 403
• Court: Connecticut Supreme Court
• Parties: Frank M. ROSS v. Harold E. HEGSTROM, State Jail Administrator.

Page 556

254 A.2d 556

157 Conn. 403

Frank M. ROSS v. Harold E. HEGSTROM, State Jail Administrator.

Supreme Court of Connecticut.

Jan. 9, 1969.

Joseph D. Harbaugh, Chief Public Defender, with whom, on the brief, was Joseph M. Shortall, Special Public Defender, for appellant (plaintiff).

Peter W. Gillies, Special Asst. State's Atty., for appellee (defendant).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

HOUSE, Associate Justice.

This is an appeal from the dismissal of an application for a writ of habeas corpus. The plaintiff's application complained that he was confined in the state jail in Haddam under an extradition warrant issued by the Governor of Connecticut, pursuant to § 54-163 of the General Statutes, authorizing his rendition to the executive authorizing of the Commonwealth of Kentucky. See General Statutes § 54-166. It is his claim that the confinement is illegal because the Commonwealth of Kentucky has failed to produce 'sufficient evidence' that he has fled from justice in that jurisdiction. The application was made to the Superior Court for Middlesex County on behalf of the plaintiff by the chief public defender of the Circuit Court, '(h)is attorney, pursuant to appointment under the provisions of Section 54-81a C.G.S., as amended by Public Act 189 (1967).' ¹ The requested writ was issued on October 20, 1967.

On the same day the plaintiff, still acting by the chief public defender of the Circuit Court, filed in the Superior Court a motion for expenses to take depositions. In this motion he moved, 'pursuant to Section 54-81a, C.G.S., for reasonable expenses to be incurred in the taking of depositions from witnesses in the State of West Virginia, the State of Ohio and the Commonwealth of Kentucky.' As grounds for the motion, the plaintiff alleged his confinement pursuant to the Governor's warrant, that Kentucky claimed he had committed the crimes of murder and armed robbery in Paducah, Kentucky, on or about May 12, 1967, at or about 10 p.m., that at the time of the alleged crime he was in West Virginia, that there are at least five witnesses who will testify to his presence in West Virginia at or about 7 p.m. and 11 p.m. on that date, that prior and subsequent to that date he was in Ohio and there are witnesses who will so testify, and that there are two witnesses incarcerated in Kentucky who will testify that he was not in Kentucky at or about the time of the alleged crime. The motion further asserted that the testimony of these witnesses is essential to the plaintiff's defense of the request for extradition by Kentucky. The motion concluded with the request that the Superior Court 'grant the Motion for the allocation of reasonable funds to defray the cost of transportation and other expenses for the applicant's counsel and the applicant's investigator.'

The defendant filed a return to the writ, pleading the confinement of the plaintiff pursuant to a warrant signed by the Lieutenant Governor, as acting Governor, on October 16, 1967, authorizing rendition of the plaintiff to the Commonwealth of Kentucky and denying the plaintiff's allegation that the confinement was illegal.

The judgment discloses that a hearing was held by the court on November 3, after which the court denied the plaintiff's motion for expenses to take depositions, found the issues for the defendant on the application for the writ of habeas corpus and ordered that it be dismissed. From this judgment the plaintiff has taken this appeal. The sole assignment of error relates to the denial of the plaintiff's motion for expenses to take depositions, the plaintiff claiming that the denial deprived him of due process of law and equal protection of law in violation of the fourteenth amendment to the United States constitution.

The court filed no memorandum of decision to explain either the basis of its ruling denying the motion or the ratio decidendi of the judgment. It did file a finding, no part of which has been attacked by either the plaintiff or the defendant. It contains several findings of fact relevant to the limited assignment of error made by the plaintiff: The extradition papers presented in Connecticut by the Governor of the Commonwealth of Kentucky were in proper order and properly authenticated pursuant to the requirements of the Uniform Criminal Extradition Act as adopted in Connecticut (see General Statutes c. 964); the plaintiff's present counsel represents him pursuant to § 54-81a of the General Statutes as it has been amended by Public Acts 1967, No. 189; the plaintiff's motion was filed pursuant to the provisions of this statute as amended, and it alleged that certain witnesses are essential to the plaintiff's defense to Kentucky's request for extradition; to grant the motion would have resulted in an attempt to try the merits of the Kentucky criminal case in this jurisdiction and, if, in fact, the plaintiff should not be guilty of any crime in Kentucky because he was not in that state at the time it was committed, a finding to that effect would ultimately be entered in the Kentucky tribunal; the defense presented the testimony of two witnesses to the effect that the alleged crimes mentioned in the extradition papers did in fact occur on May 12, 1967; the plaintiff had admitted to an agent of the Federal Bureau of Investigation that he had been in Kentucky sometime between April, 1967, and June 9, 1967; and during portions of that time the plaintiff was in the company of two individuals who were recently tried in Kentucky for murder and armed robbery.

The finding further includes a statement by the court that '(b)ased upon the testimony produced by the defendant, the court denied plaintiff's 'Motion for Expenses To Take Depositions." The finding also recites that the plaintiff failed to produce any testimony, including his own, that he was not in Kentucky at the time of the crimes cited in the extradition papers and 'in short, the plaintiff himself did not testify at the hearing on November 3, 1967.' It also found that the '(p)laintiff's failure to produce testimony of third parties sufficient to sustain his burden of proof on the question of fugitivity rested solely on his financial inability to defray the cost of producing out-of-state witnesses in court or their properly-obtained testimony be depositions' and that '(w)ithout testimony by the plaintiff on the question of fugitivity, the plaintiff failed to sustain his burden of proof on the writ of habeas corpus.'

On this record, we are unable to make a truly definitive disposition of this controversy. One of the difficulties arises from the fact that none of the extradition papers or copies thereof were made exhibits in the case, nor have any of them been included in the record or in an appendix to either brief. We therefore have no way of knowing what claim or evidence of fugitivity Kentucky supplied to the Governor of Connecticut, a matter of major importance since the plaintiff's petition for habeas corpus is based on the allegation that it was not sufficient.

It does appear from the finding that the court denied the motion on two grounds: (a) to grant it would result in an attempt to try in this hearing in Connecticut the merits of the criminal case pending in Kentucky and (b) on the basis of 'the testimony produced by the defendant.'

The first-mentioned ground for the court's denial is obviously predicated on the principle that Kentucky is the proper jurisdiction to determine the plaintiff's guilt or innocence of the crimes charged against him, that his claimed objection to the validity of the extradition proceedings is in effect an alibi defense to those charges, which defense should properly be raised and determined on a trial in Kentucky, and that it is therefore not properly the subject of adjudication in these proceedings.

It is course true that Connecticut will not decide any of the issues involved in the criminal charges pending against the plaintiff in Kentucky, and this necessarily includes the merits of any alibi defense which might be raised in those proceedings. Rosenberg v. Slavin, 122 Conn. 304, 308, 309, 188 A. 272. '(T)he constitutionally required surrender is not to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place.' Drew v. Thaw, 235 U.S. 432, 440, 35 S.Ct. 137, 139, 59 L.Ed. 302; Cappola v. Platt, 123 Conn. 38, 42, 192 A. 156; see General Statutes § 54-176. The question of the merits of such a defense, however, if it should be raised on a criminal trial in Kentucky, while factually related to the question of fugitivity raised in these extradition proceedings, is separate and distinct from it. The issue of the status of the plaintiff as a fugitive from justice has clearly been raised in the proceedings in this state and must be determined in this jurisdiction.

Extradition proceedings arise from § 2 of the fourth article of the United States constitution, which in pertinent part provides: 'A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.' (Italics supplied.) See also 18 U.S.C. § 3182; Mandarano v. Tierney, 151 Conn. 155, 195 A.2d 48. Probable cause to find that a person sought to be extradited is a fugitive from justice in the demanding state is a condition precedent to valid extradition.

General Statutes § 54-159 provides: 'No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under section 54-162, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled...