State ex rel. Holmes v. Spice, s. 452

• Decision Date: 06 May 1975
• Docket Number: 453,Nos. 452,s. 452
• Citation: 68 Wis.2d 263,229 N.W.2d 97
• Parties: STATE ex rel. Carl B. HOLMES, Appellant, v. Calvin SPICE, Outagamie County Sheriff, Respondent (two cases).
• Court: Wisconsin Supreme Court

Page 97

229 N.W.2d 97

68 Wis.2d 263

STATE ex rel. Carl B. HOLMES, Appellant, v. Calvin SPICE, Outagamie County Sheriff, Respondent (two cases).

Nos. 452, 453.

Supreme Court of Wisconsin.

May 6, 1975.

John M. Leonard, Outagamie County Public Defender, Appleton, Howard B. Eisenberg, State Public Defender, Madison, for appellant.

Robert W. Warren, Atty. Gen., and Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.

DAY, Justice.

These cases are appeals challenging the validity of extradition proceedings commenced to authorize appellant Carl B. Holmes' rendition from the state of Wisconsin to the state of Montana, pursuant to the Uniform Criminal Extradition Act, sec. 976.03, Stats. The first of the proceedings was commenced in the county court of Outagamie county by the filing of a petition for habeas corpus on November 9, 1973, and another on December 7, 1973 (case number State 453). The order of the county court denying the petitions was entered December 7, 1973. The second proceeding was commenced by the filing of a petition for habeas corpus in the circuit court for Outagamie county on December 8, 1973. The order of the circuit court denying the application made to it was entered December 10, 1973.

On November 9, 1973, an officer of the Appleton police department reported that he had observed an automobile with Montana license plates illegally parked at the same parking space two days in a row. The car had a meter violation ticket on the windshield. The officer radioed for a check of the license through the National Crime Information Center, which revealed the owner was wanted for a Montana parole violation and for questioning in a Montana homicide investigation. The issuing agency of this report was said to be Great Falls, Montana.

The Appleton police then sent a teletype message to the police in Great Falls, Montana, to determine if the owner was still wanted there. The reply message was sent by the chief of police, Great Falls police department, and stated that the individual, identified as Carl Benson Holmes, was still wanted for a parole violation on the orders of a named parole officer, and that Holmes should be picked up and held. The message stated the Montana attorney general's office would contact the Appleton police department later the same day about extradition and it supplied a description of Mr. Holmes.

Two officers went to a hotel where Mr. Holmes was thought to be residing. There they picked up appellant in his room. He was registered under the name of 'Carl Holmes.'

That same morning, November 9, 1973, one of the officers spoke to appellant and appellant informed him that the parole violation was only a matter of a simple mistake in addresses. Appellant also mentioned he might be questioned about a homicide.

These facts were elicited at a hearing conducted on November 9 in Outagamie county court before Judge Nick F. Schaefer. The assistant district attorney also stated that he had called an assistant county attorney for Cascade county, Montana, and was informed Carl Benson Holmes was wanted as an absconded parole violator and for questioning in connection with a homicide investigation. Appellant Holmes was also at this hearing but was without counsel. Appellant refused to identify himself and stated he was on probation, not parole, and that there had been no violation. He said the problem was only a mix-up on addresses. Appellant requested he be allowed to file a writ of habeas corpus that he apparently had prepared. The court stated that consideration would be given to it later. Holmes was found indigent and counsel appointed for him. The assistant district attorney requested that Holmes be retained in custody under sec. 976.03(15), Stats., ¹ of the Uniform Criminal Extradition Act, for a reasonable period not to exceed thirty days to permit extradition proceedings. This request was granted.

On November 9, 1973, a counsel appointed for appellant argued that there was no basis on which to make a warrantless arrest under sec. 976.03(14), Stats. ² The court upheld the appellant's detention under the statute.

Following the hearing there was sent from Cascade county, Montana, a certified order to show cause why appellant's suspended sentence should not be revoked, which was made returnable December 7, 1973; a certified but unsworn petition for revocation of suspended sentence signed by the deputy county attorney for Cascade county, Montana, setting out facts allegedly constituting the suspended sentence violation; and a certified arrest warrant issued by the district court for Cascade county, Montana, commanding the arrest of Carl Benson Holmes for violation of the terms of his suspended sentence.

Another hearing was held before the county court on November 23, 1973, and here the issue of appellant's initial writ of habeas corpus challenging the validity of his arrest and detention was considered. At this time no warrant for his extradition had been issued by the Governor of Wisconsin. The trial court denied the writ and ordered the appellant held for further proceedings.

On December 4, 1973, the Governor of Wisconsin's extradition warrant was issued after receipt of the Governor of Montana's requisition order and supporting documents. On December 6th another hearing was held before the county court. Appellant's counsel did not arrive at the scheduled time; the court adjourned the matter for a half hour, and after 8 minutes he had still not made an appearance. In the meantime the record would indicate that the appellant had been removed from the court room because of his obstreperous conduct and the court found the necessary documents to be in order and ordered extradition pending notice to Judge Myse of the circuit court. A hearing in county court was held on December 7 where counsel brought a new writ of habeas corpus and a motion to stay execution of the rendition order; both were denied. The issues raised at the hearing, to-wit: probable cause for arrest, alleged requirement for a preliminary-type hearing on probation revocation and the sufficiency of the documents on which the governor's rendition order was based, are discussed in this opinion. The following day, December 8th, the circuit court habeas corpus was filed. This did not challenge the appellant's arrest but went to only the issue of the sufficiency of the papers filed by the state of Montana upon which the Wisconsin Governor's December 4th rendition warrant was based. These documents are a part of the record. The hearing considered the circuit court's jurisdiction to hear the arguments on the writ and on December 10th those arguments were heard and the writ was denied.

The law is clear that we are restricted to examining the validity of the appellant's detention following the issuance of the extradition warrant by the governor of Wisconsin. This has been the law since the case of Stallings v. Splain (1920), 253 U.S. 339, 343, 40 S.Ct. 537, 539, 64 L.Ed. 940. In that case Mr. Justice Brandeis said:

'On the other hand, if the original arrest and detention had been illegal, Stallings would not be entitled to his discharge, if before final hearing in the habeas corpus proceedings legal cause for detaining him had arisen through the institution of removal proceedings. Where it appears that sufficient ground for detention exists a prisoner will not be discharged for defects in the original arrest or commitment.'

In Stallings, habeas corpus was filed for immediately upon arrest, well in advance of the 'institution of removal proceedings.' The principle enunciated in Stallings has also been expressed by this court in State ex rel. Keehn v. Capelle (1962), 17 Wis.2d 116, 115 N.W.2d 487. In Keehn, an argument was made following the rendition of the governor's warrant here in Wisconsin that the initial arrest had been illegal. This court in denying the writ quoted with approval from 35 C.J.S. Extradition § 12c, p. 402:

'A fugitive from justice from another state cannot urge, in opposition to proper extradition proceedings, the fact that his original arrest or detention was illegal. Once proper proceedings have been instituted, it is too late to claim that the preliminary detention was illegal.'

While it is true that in Keehn habeas corpus was not issued until after the governor's warrant, the cases are clear that when a habeas corpus is issued with respect to a valid governor's warrant is not the test. In the case of Lott v. Heyd (5th Cir. 1963), 315 F.2d 350, 351, the court noted that the United States Constitution mandates expeditious extradition. ³ The court there said that an asylum state's misbehavior cannot deprive the demanding state of its right to the fugitive upon presentation of the proper extradition papers, because to do so would amount to allowing the asylum state to amend the constitution.

The holding in Stallings that no discharge from custody is warranted for an illegal initial arrest and detention where the challenge to the validity of that detention is not finally heard and denied until after proper extradition proceedings have been formally instituted, by means of the issuance of the governor's warrant of extradition, is well-settled law. Bailey v. Cox (Ind.1973), 296 N.E.2d 422, 424. State ex rel. Brown v. Hedman (1968), 280 Minn. 69, 157 N.W.2d 756, 757--758; People ex rel. Gummow v. Larson (1966), 35 Ill.2d 280, 220 N.E.2d 165, 167; Applications of Oppenheimer (1964), 95 Ariz. 292, 389 P.2d 696, 700, cert. den., 377 U.S. 948, 84 S.Ct. 1359, 12 L.Ed.2d 311; Travis v. People (1957), 135 Colo. 141, 308 P.2d 997. If a rendition warrant has been properly executed, the accused is properly in custody and cannot be discharged for defects which may have occurred in earlier, preliminary proceedings. This is consistent with the recent Nebraska case of Bell v. Janing (1972), 188 Neb. 690, 199 N.W.2d 24, where it was held that the illegality of a prisoner's custody prior to the issuance...