Smith v. State of Idaho

• Citation: 373 F.2d 149
• Decision Date: 20 March 1967
• Docket Number: No. 20989.,20989.
• Parties: Charles E. SMITH, Appellant, v. STATE OF IDAHO and Paul W. Bright, Sheriff of Ada County, Idaho, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

373 F.2d 149 (1967)

Charles E. SMITH, Appellant, v. STATE OF IDAHO and Paul W. Bright, Sheriff of Ada County, Idaho, Appellees.

No. 20989.

United States Court of Appeals Ninth Circuit.

February 9, 1967.

Rehearing Denied March 20, 1967.

COPYRIGHT MATERIAL OMITTED

Allen R. Derr, of Derr & Derr, Boise, Idaho, for appellant.

Allan G. Shepard, Atty. Gen. for Idaho, M. Allyn Dingel, Jr., Deputy Atty. Gen., John S. Simko, Asst. Atty. Gen., Boise, Idaho, for appellee, State of Idaho.

Wayne L. Kidwell, Pros. Atty., Robert C. Youngstrom, Chief Deputy Pros. Atty., Ada County, Boise, Idaho, for appellee, Paul W. Bright, Sheriff of Ada County.

Before HAMLEY and JERTBERG, Circuit Judges, and BYRNE, District Judge.

JERTBERG, Circuit Judge:

Appellant appeals from an order of the United States District Court for the District of Idaho quashing a writ of habeas corpus sought by appellant after his arrest by authorities of the State of Idaho for extradition to the State of Missouri on a charge of first degree murder. We affirm the order.

The history of the case leading up to the filing by appellant of a petition for writ of habeas corpus in the United States District Court may be summarized as follows:

Early in 1963, appellant was arrested by the Sheriff of Ada County, Idaho, under authority of a rendition warrant of the Governor of Idaho. The warrant was issued pursuant to a request from the Governor of Missouri for the apprehension and extradition of appellant to Missouri on a charge of first degree murder, to wit, the murder of one Donna Jean Smith on or about October 26, 1961, at Kirksville, Adair County, Missouri.

The demanding papers from Missouri aver that appellant stands charged of the crime by an affidavit made before a magistrate. The complaint was sworn to by the county prosecuting attorney before the county magistrate and is dated April 8, 1963. The rendition warrant issued by the Governor of Idaho is dated April 16, 1963, and states that appellant "stands charged by the affidavit found in the County of Adair" in the State of Missouri.

After his arrest and during his confinement, appellant petitioned for writ of habeas corpus in the District Court of the Third Judicial District of the State of Idaho on May 9, 1963. The petition alleged that appellant was confined illegally because: 1) he was not a fugitive from justice; 2) the demanding papers did not substantially charge a crime; and 3) he was not the party sought. A writ of habeas corpus was issued the same day. The return to the writ, dated May 21, 1963, stated that appellant was being held under a warrant issued by the Governor of Idaho for extradition of appellant to Missouri. Attached to the return were the affidavits of six Missouri residents. In his answer to the return, appellant denied the validity of the rendition warrant and further alleged that: 1) he was not in the State of Missouri on or about October 26, 1961; 2) the rendition warrant was faulty on its face; 3) the documents supporting the warrant were faulty; 4) proper extradition procedures had not been complied with; and 5) he was not the person sought. In addition, in support of his allegation that he was not in Missouri on the date in question, appellant attached to his answer the affidavit of one Harry Lee Dodd.

A hearing was held on June 10, 1963. Appellant introduced into evidence the following:

1. A letter dated June 7, 1963, from the Missouri Department of Public Health and Welfare, Division of Health, certifying that there was no death certificate on file for the victim of the alleged murder (Donna Jean Smith);

2. A map showing cities of Missouri and Oklahoma;

3. Certified copies from the Secretary of State of Idaho of all original documents in connection with appellant's extradition papers; and

4. A letter dated May 17, 1963, to appellant's counsel from the Sheriff of Muskogee, Oklahoma, stating that appellant was incarcerated in the Muskogee County Jail on October 27, 1961, but that the Sheriff had no information as to appellant's whereabouts on October 25 and 26, 1961.

The State introduced the following evidence:

1. A copy of the Idaho rendition warrant;

2. The affidavits of six Missouri residents (over objection of appellant). Five of the affiants were residents of Kirksville, Missouri. The affidavit of Fern Miller stated that she lived across the street from appellant's residence and saw appellant at his home on the evening of October 25, 1961. The affidavit of Bruce Albertson stated that appellant visited Albertson's home in Kirksville on October 24, 1961. The affidavit of Betty Douglas stated that appellant visited on October 11, 1961, the bank in Kirksville where she was employed. The affidavit of Mrs. J. T. Fickel stated that she was a neighbor and acquaintance of appellant and his family and saw appellant at his home in Kirksville on October 25, 1961. The affidavit of Laura Cameron stated that she provided babysitting services for appellant's daughter on either October 24 or 25, 1961, and that appellant was personally in her home on that occasion. The sixth affidavit denominated "Affidavit of Principal Complaining Witness as to Identity", is that of Olin E. Johnson, the Sheriff of Adair County, Missouri. Attached to the affidavit is a photograph of a person which the affidavit states is contained on F.B.I. Wanted Poster bearing Identification Number 3633, dated December 19, 1962. The affiant avers that he identified said photograph as being one of Charles E. Smith; that the said Charles E. Smith is the identical and same person as the Charles E. Smith presently charged with the crime of first degree murder in Kirksville, Adair County, Missouri, for the murder of Donna Jean Smith on or about the 26th day of October, 1961.

Appellant read into the record the deposition of Harry Lee Dodd, taken on June 7, 1963. Dodd stated that he had known appellant since 1950; that on October 25, 1961, at about 9:15 P.M., appellant picked up Dodd in Kansas City, Missouri, and drove him, together with appellant's wife and baby, to Tulsa, Oklahoma; that appellant left Dodd there about 10:00 P.M. on October 26, 1961, and appellant's wife, the alleged victim, was still alive; that appellant's car, besides being heavily loaded and pulling a trailer, was in poor repair, and consequently, it would have been impossible for appellant to drive the 400 to 410 miles from Tulsa to Kirksville and then back to Tulsa by the morning of October 27, 1961.¹ Dodd further stated that he had been convicted of a felony in 1951, that he had been committed several times to mental institutions, was twice adjudged insane, was at the time of the deposition awaiting transfer to a mental institution, and had been appellant's cell mate in the Ada County Jail since April, 1963.

On June 12, 1963, the state district court found that appellant was lawfully in the custody of the Ada County Sheriff, under valid and proper warrants and documents, that appellant was properly identified as the person demanded by Missouri and was a fugitive from that state. The district court quashed the writ previously issued and remanded appellant to the custody of the Ada County Sheriff for extradition to Missouri.

Appellant appealed to the Idaho Supreme Court. On June 11, 1965, that court affirmed the district court, holding that the complaint charging the crime was sufficient for extradition purposes; that the affidavits of the Missouri residents were properly received as evidence of appellant's presence in the demanding state, and that appellant's evidence, i. e., the deposition of Harry Dodd and the letter from the Muskogee County Sheriff, failed to overcome the prima facie case established by the Governor's warrant. Smith v. State, 89 Idaho 70, 403 P.2d 221 (1965). The United States Supreme Court denied certiorari on February 21, 1966. 383 U.S. 916, 86 S.Ct. 906, 15 L. Ed.2d 669 (1966).

On February 24, 1966, appellant submitted to the Federal District Court for the District of Idaho his petition for a writ of habeas corpus. An order issuing the writ on February 23, 1966, was filed by that court on February 25, 1966. In his petition, appellant alleged that he was illegally confined in violation of his constitutional rights in that: (1) he was not in Missouri during the time in question; (2) the papers upon which the warrant was based did not substantially charge a crime; and (3) he was not the party sought. He further alleged that he had exhausted his state court remedies and had been denied certiorari by the U. S. Supreme Court.

Appellee filed a return to the writ on February 28, 1966. In it, appellee alleged that appellant was detained by authority of a rendition warrant from the Governor of Idaho, that appellant had previously filed a petition for writ of habeas corpus on identical grounds before Judge Clark of the same court on June 7, 1963, which petition was denied on June 17, 1963; that appellant's cause had been before the Idaho District and Supreme Courts and the U. S. Supreme Court and in each instance the decision was adverse to appellant, and therefore appellant had already received full hearings on all his asserted rights.

On February 28, 1966, the federal district court held a hearing on appellant's claims. Appellee Sheriff testified that he was holding appellant under authority of the rendition warrant issued by the Governor of Idaho. Said warrant was admitted into evidence. The record of appellant's case in the state district court, the opinion of the Idaho Supreme Court, and the record submitted to the U. S. Supreme Court were all admitted into evidence by stipulation of the parties. However, appellant reserved his objection to any affidavits offered in those proceedings to prove appellant's identity and presence in the demanding state. The hearing was then continued to allow appellant time to complete a traverse to appellee's return to the writ.

Appellant filed his traverse to appellee's return on ...