State v. Champ
| Decision Date | 31 July 2001 |
| Docket Number | No. A-00-1296.,A-00-1296. |
| Citation | 10 Neb. App. 416,631 N.W.2d 557 |
| Parties | STATE of Nebraska, Appellee, v. Vinson Horace CHAMP, Appellant. |
| Court | Nebraska Court of Appeals |
Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott, Lincoln, for appellant.
Don Stenberg, Attorney General, and William L. Howland, for appellee.
Vinson Horace Champ is incarcerated under the jurisdiction of the Nebraska Department of Correctional Services (Department) under a 25- to 30-year sentence for sexual assault from Douglas County, Nebraska, which we affirmed without opinion in State v. Champ, 10 Neb.App. ___ (No. A-00-803, Mar. 27, 2001), as well as a 30- to 40-year sentence from Lancaster County for sexual assault, affirmed in State v. Champ, No. A-00-617, 2001 WL 273071 (Neb.App. Mar.20, 2001) (). While incarcerated on those sentences, Nebraska prison authorities received paperwork from the State of Iowa in July 2000, pursuant to the Agreement on Detainers, showing that kidnapping, sexual abuse, and robbery charges were pending against Champ in Scott County, Iowa. The papers showed that Iowa authorities wanted Champ transferred to their jurisdiction so that he could be prosecuted on the pending Iowa charges. Champ challenged the detainer by a petition for writ of habeas corpus, which was denied by the district court for Lancaster County, Nebraska. Champ appeals.
The district court for Scott County issued an arrest warrant on May 15, 1997, for Champ based upon a police officer's complaint and affidavit which alleged that Champ had committed three crimes in Davenport, Scott County: At approximately 9:10 p.m. on February 16, 1997, Champ allegedly committed the crimes of first degree kidnapping, second degree sexual abuse, and first degree robbery in violation of various Iowa statutes. The affidavit recounted an ongoing investigation in the Midwest of 10 attempted sexual assaults occurring on college campuses with specified commonalities and that in 4 cases, the suspect had been positively linked and identified by DNA analysis. The affidavit recounted that in one of the Midwestern cases, the fleeing suspect was seen getting into a newer, sporty, black 4-door vehicle and that on May 5, 1997, a sexual assault in Pasadena, California, was interrupted by a citizen who followed the assailant to a black 4-door BMW. The license plate on that vehicle established Champ as the owner.
On July 10, 2000, the Scott County sheriff filed his warrant with the Department on the three Iowa charges. The Department treated the paperwork as a detainer. The Scott County sheriff advised that they would extradite and transport Champ. On July 17, Champ was served with the detainer, including notice of untried indictment, information, or complaint and of right to request deposition. Champ refused to sign any of the papers. On October 27, Nebraska Governor Mike Johanns authorized the Department to honor Iowa's request for custody of Champ. The Governor authorized the Department to deliver Champ to Iowa authorities upon completion of the required pretransfer hearing in the district court for Lancaster County, as required by Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981). That hearing was held on November 14, and the district court judge authorized Champ's transfer. No issues are presented here concerning that hearing.
At the time of the Cuyler hearing, Champ advised the court of his intention to challenge the detainer by petition for writ of habeas corpus, which his counsel immediately filed, and a hearing was held thereupon on November 17, 2000. Champ has stipulated and agreed that he is the same person who is wanted in the State of Iowa and is referenced in the paperwork from the State of Iowa. Relying on this court's opinion in State v. Steele, 7 Neb. App. 110, 578 N.W.2d 508 (1998), the district court denied the petition for habeas corpus and authorized Champ's temporary transfer to the State of Iowa to stand trial. The court stayed its order pending this appeal, which stay remains in effect.
Champ's sole assignment of error is: "The District Court erred in denying the Appellant's petition for habeas relief due to the State's failure to establish fugitive status."
An appellate court's function in a habeas proceeding is limited to a review of the record to determine if reversible error was committed by the lower court. State v. Steele, supra.
Champ's argument has several layers. The first layer is that the district court erred in following this court's opinion in State v. Steele when the district court judge ruled that "based upon the ruling in Steele, his status as a fugitive is not applicable and his petition is without merit." Champ asks us to determine whether State v. Steele dictates the result reached by the district court. Champ argues that fugitive status is in fact at issue in this proceeding. While he appears to acknowledge that the warrant creates a presumption that he is a fugitive, as the next layer of his argument he claims that the contents of the affidavit behind the warrant from the Scott County District Court shows that there "was no evidence which would support any presumption that [Champ] was in the State of Iowa at the time the crime allegedly occurred." Brief for appellant at 14. The State's response relies upon our earlier opinion in State v. Steele to argue that fugitive status is not applicable in a detainer situation because the challenger is incarcerated.
State v. Steele involved a nearly identical situation where the State of Iowa requested temporary custody of Steele pursuant to the Agreement on Detainers, Neb.Rev.Stat. § 29-759 et seq. (Reissue 1995). The court in State v. Steele comprehensively discussed the Agreement on Detainers and the applicable procedure, as well as the prisoner's right to challenge the transfer to another state by a petition for writ of habeas corpus. We will not repeat that discussion here. The court in State v. Steele, citing Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978), said that the person against whom a detainer is lodged, or against whom extradition is sought, is limited to challenging (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether he or she is the person named in the request for extradition, and (4) whether he or she is a fugitive.
In State v. Steele, the only issue was whether the documents were in order. In dicta, the court discussed fugitive status in a detainer situation, stating as follows:
Based on the above case law [referencing Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981); Michigan v. Doran, supra;
and Radant v. Vargason, 220 Neb. 116, 368 N.W.2d 483 (1985)], a prisoner whose transfer is sought by a receiving state under the Agreement [on Detainers] may challenge through a petition for writ of habeas corpus whether the documents on their face are in order, whether the petitioner has been charged with a crime in the receiving state, and whether he or she is the person named in the request for temporary custody. A challenge to one's fugitive status is not applicable to a challenge to a detainer because the challenger is incarcerated.
State v. Steele, 7 Neb.App. 110, 114, 578 N.W.2d 508, 512 (1998). Although the statement that "a challenge to one's fugitive status is not applicable to a challenge to a detainer because the challenger is incarcerated" was only dicta because fugitive status was not at issue in the case, the statement is not entirely correct.
Fugitive status involves two elements: To be a fugitive, one need only have left the demanding state after having committed an act charged to be a crime under the laws of that state. Nash v. Miller, 223 Neb. 605, 391 N.W.2d 143 (1986). See Kujala v. Headley, 193 Neb. 1, 225 N.W.2d 25 (1975). To the extent the court in State v. Steele indicated by its dicta that whether a person has left the demanding state is incontestably proved when the person is incarcerated in an asylum state, the statement accurately reflects that that part of the fugitive status test will not be at issue in a detainer case. Incarceration in the asylum state obviously shows that the person has left the demanding state. However, whether the prisoner committed an act charged to be a crime under the laws of that state may be open to question. As such, the second part of the fugitive status test may be at issue in a detainer case and may be challenged by a habeas petitioner in a detainer case. To the extent the dicta in State v. Steele suggests otherwise, that dicta is incorrect. Fugitive status is the final matter which the prisoner may challenge according to the U.S. Supreme Court in Michigan v. Doran, supra.
Thus, to the extent noted above, the dicta in State v. Steele that fugitive status is "not applicable" in a habeas challenge to a detainer request is disapproved.
However, it is important to correctly articulate what challenge may be made to fugitive status, even when the person sought is incarcerated. It clearly does not involve a trial in Nebraska over whether Champ committed the crimes charged against him by the Scott County District Court. The question of whether one is charged with a crime and is therefore a fugitive is discussed in State v. Wallace, 240 Neb. 865, 484 N.W.2d 477 (1992). In that case, Wallace asserted that the extradition documents could not be "in order" unless they showed that the person being demanded was "substantially charged." In response to that argument, the Nebraska Supreme Court agreed and said:
We agree that in Michigan v. Doran, supra,
the Supreme Court implied that there must have been such a determination of probable cause by its holding that "when a...
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...proceeding is limited to a review of the record to determine if reversible error was committed by the lower court. State v. Champ, 10 Neb. App. 416, 631 N.W.2d 557 (2001); State v. Steele, 7 Neb. App. 110, 578 N.W.2d 508 (1998), disapproved on other grounds, State v. Champ, Jurisdiction. Be......