Smith v. Helgemoe, 7605

• Decision Date: 31 January 1977
• Docket Number: No. 7605,7605
• Citation: 117 N.H. 91,369 A.2d 218
• Parties: Robert E. SMITH v. Raymond A. HELGEMOE, Wwarden, New Hampshire State Prison.
• Court: New Hampshire Supreme Court

Page 218

369 A.2d 218

117 N.H. 91

Robert E. SMITH v. Raymond A. HELGEMOE, Wwarden, New Hampshire State Prison.

No. 7605.

Supreme Court of New Hampshire.

Jan. 31, 1977.

Robert A. Stein, Public Defender, by brief and orally, for plaintiff.

David H. Souter, Atty. Gen., and Robert V. Johnson II, Asst. Atty. Gen., for defendant.

GRIMES, Justice.

In this petition for habeas corpus, plaintiff seeks to avoid extradition mainly on the basis that fourth amendment requirements of probable cause have not been met and that the evidence is not sufficient to support a finding that the plaintiff is the person named in the extradition papers. We uphold the trial court's dimissal of the petition, and its order for extradition.

Plaintiff is and was on August 5, 1976, an inmate of the New Hampshire State Prison where he is being held in lieu of bail on certain criminal charges alleged to have occurred in this State. On that date, fugitive warrants were lodged at the prison against the plaintiff in connection with extradition proceedings arising out of the murder in Massachusetts of three person on the evening of December 31, 1975. On August 26, 1976, plaintiff appeared before the Concord District Court (Marx, J.) and was informed of his rights under RSA 612:10 and counsel was appointed for him.

On September 10, 1976, this petition was filed in the superior court and after hearing, Flynn, J., denied motions to compel the attendance of a witness who was a prisoner in another state and to take depositions.

On September 27, 1976, a hearing was held on the merits of the petition during which the court had before it only the extradition documents. The plaintiff presented no testimony or evidence. The court, on the basis of the documents and treating the statements in the requisition documents to be prima facie true, found probable cause for believing plaintiff to be guilty of the crimes of murder in Massachusetts, denied habeas corpus and granted extradition. Plaintiff's exceptions were transferred by Flynn, J. A similar order was made in the case of a codefendant of plaintiff who did not appeal.

The extradition documents which were presented to the trial court all of which are included within the requisition request signed by the Governor of Massachusetts and which are certified by the Governor 'to be authentic and duly authenticated in accordance with the laws of the Commonwealth . . .' are as follows:

(a) Three Lowell District Court complaints.

(b) Three arrest warrants based upon the complaints.

(c) Affidavit by the Secretary of State, Massachusetts, certifying the Lowell District Court, Justice Cowdrey and the Clerk of the said court, as well as their signatures.

(d) Affidavit by the Secretary of State, Massachusetts, certifying the Superior Court of Massachusetts, Justice Cowdrey and the Clerk of the said court, as well as their signatures.

(e) Certification of records by the said Clerk, certification by Justice Cowdrey as to the sais Clerk, and certification by the said Clerk as to Justice Cowdrey.

(f) Affidavit by Detective Lieutenant William C. Nally, dated July 15, 1976, including a jurat by Joseph D. Neylon, a Justice of the Peace.

(g) Request for issuance of requisition to Governor Dukakis, dated July 15 1976, by John J. Droney, Esquire, District Attorney for the Northern District Middlesex County, Massachusetts.

(h) Requisition request by Governor Dukakis, dated July 16, 1976, to Governor Thomson.

We hold that the Governor's authentication covers all the documents included in the papers including the affidavit of Lieutenant Nally and that they meet the requirements of RSA 612:3.

Plaintiff argues that fourth amendment requirements have not been met because the documents do not show the evidence upon which an independent finding of probable cause may be made in this State and that the trial court did not make and the documents would not permit a determination that the evidence before the Massachusetts magistrates who issued the arrest warrant was sufficient to support a finding of probable cause.

In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), a case involving a warrantless arrest, it was held that the fourth amendment to the Constitution of the United States required that before there could be any 'significant pretrial restraint of liberty' there must be a judicial determination of probable cause. Ierardi v. Gunter, 528 F.2d 929 (1st Cir. 1976), held that because extradition imposed a significant restraint on liberty the principle of Gerstein was applicable and that a judicial finding of probable cause must precede extradition.

However, Ierardi held that this determination of probable cause could be made either by the damanding state or the asylum state and it was stated that the asylum state could rely upon the 'regularity of the demanding state's procedures' and that the asylum state would be 'entitled to rely on the official representations of its sister state that the requisite determination has been made' and that it 'may credit an arrest warrant shown to have been issued upon a finding of probable cause . . . just as it would credit a(n) . . . indictment.' Id. at 931; see Bracco v. Wooster, 91 N.H. 413, 20 A.2d 640 (1941); Fortier v. Frink, 92 N.H. 50, 24 A.2d 604 (1942).

Mass.Gen.Laws Ann. ch. 276, § 22 provides that when a complaint is made to a justice of a district court 'he shall examine on oath the complainant and any witnesses produced by him . . . and if it appears that a crime has been committed shall . . ....