State v. Davila
| Citation | 481 So.2d 486,10 Fla. L. Weekly 2609 |
| Decision Date | 20 November 1985 |
| Docket Number | Nos. 85-1421,85-1641,s. 85-1421 |
| Parties | 10 Fla. L. Weekly 2609, 11 Fla. L. Weekly 59 The STATE of Florida, Appellant, v. Enrique DAVILA, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., and Michael Neimand, Asst. Atty. Gen., for appellant.
Fogle & Poole and Charles I. Poole, Miami, for appellee.
Before NESBITT, FERGUSON and JORGENSON, JJ.
This appeal is brought by the State of Florida from a writ of habeas corpus discharging petitioner from a Governor's warrant in an extradition proceeding. 1 The State contends that the court improperly weighed the evidence in an extradition proceeding.
The Governor's warrant, issued on request of the State of New York, sought the delivery of Enrique Davila Torres a/k/a "Kiki" to face charges on an indictment for second-degree murder. Attached to the warrant was a copy of the indictment, a photograph, and an affidavit of a New York detective who swore that:
On April 19, 1985, a person known by me identified Enrique Davilla Torrez, by photo, as the perpetrator of a homicide which occurred on February 11, 1984, in Kings County. This photograph was provided to the New York City Police Department by the United States Department of Immigration.
Petitioner challenged the warrant by petition for habeas corpus on grounds that (a) he was not the person named and described in the warrant, and (b) he was not in New York at the time and place of the crime.
The court heard petitioner's evidence at the extradition hearing. His first witness was the custodian of records at petitioner's place of employment in Miami. Her testimony, based on reports kept by petitioner's supervisor and not on personal knowledge, was that petitioner was at work on the date of the offense. Her records indicated that petitioner's birthdate was the same as that of the fugitive named in the warrant. On cross-examination she identified the photograph attached to the New York warrant as that of the petitioner.
Petitioner's second witness was his supervisor who testified on cross-examination that the photograph attached to the warrant was that of the petitioner. He further testified, based on employer's records, that petitioner worked in Miami the full week of the New York homicide. The supervisor, however, had no independent recollection of that fact.
Petitioner's wife testified that, to the best of her knowledge, her husband was never in New York, that she received hospital bills for another Enrique Davila, that petitioner's surname was Suarez not Torres, that his nickname was not "Kiki", and that she and petitioner, along with their small child, went out to dinner in Miami on the date of the New York incident. Other physical evidence was presented including (1) a passport showing petitioner's surname as Suarez, (2) a Miami telephone directory showing that another Enrique Davila was listed, and (3) commercial airline schedules offered to show that it was impossible for petitioner to have been in New York at the time of the offense and to have returned to Miami in time for work. In granting habeas corpus the court concluded:
[B]eing of the opinion and belief that the petitioner Enrique Davila Suarez is not one and the same as the fugitive from the State of New York ... it is hereby
ORDERED and ADJUDGED:
1. The petition for Writ of Habeas Corpus is granted and the petitioner is discharged from custody.
There are settled principles in the law of extradition which guide a resolution of this case. First, where there is a material discrepancy between the name contained in extradition documents and the actual name of the accused, the documents standing alone are not sufficient to make a prima facie case. Cf. State v. Perrera, 443 So.2d 1016 (Fla. 5th DCA 1983) (); Solano v. State, 417 So.2d 302 (Fla. 3d DCA 1982) (same). Where there is a discrepancy in the names but the extradition documents also include a photograph of the accused, along with an appropriate affidavit, a prima facie case may be established. Miller v. Debekker, 668 P.2d 927 (Colo.1983). The burden is on the petitioner to overcome the prima facie case. State ex rel. Kimbro v. Starr, 65 So.2d 67 (Fla.1953); Kohler v. Sandstrom, 305 So.2d 76 (Fla. 3d DCA 1974), cert. denied, 311 So.2d 669 (Fla.), cert. denied, 423 U.S. 934, 96 S.Ct. 289, 46 L.Ed.2d 264 (1975).
The threshold question raised by this appeal, which we find dispositive, is whether the appellee met his burden of overcoming the State's prima facie case by competent proof. See Kohler. We conclude that the trial court, in applying the above legal principles to the facts of the case, reached a correct conclusion. See Graziano v. State, 305 So.2d 867 (Fla. 3d DCA 1975) ().
A prima facie case is one which will suffice until contradicted or overcome by other evidence. Pacific Telephone and Telegraph Co. v. Wallace, 158 Or. 210, 75 P.2d 942, 947 (1938). In extradition proceedings a petitioner may overcome the State's prima facie case by competent proof that the Governor's warrant is invalid, or that it is not supported by competent evidence. State ex rel. Kimbro; Kohler. Petitioner showed by competent proof that his name was not the same as the person named in the extradition documents. The warrant then rested on the photograph and affidavit of the New York detective. They are lacking in substance and competency.
All that can be said of the photograph is that it is of a person with a similar name which was sent to New York authorities by the Department of Immigration upon request. 2 The affidavit of the New York detective attempts to link the person shown in the photograph to the offense by statements of one who is not identified. Although affidavits are admissible to create evidentiary conflict in habeas corpus proceedings challenging extradition, such affidavits, in order to constitute competent evidence, must be based on the personal knowledge of the affiant or, if based on hearsay, must recite the evidentiary facts upon which the affiant's conclusion is based. Josey v. Galloway, 482 So.2d 376 (Fla. 1st DCA 1985). 3 Cf. Miller v. Debekker (the State's prima facie case of identity was established by a photograph of the petitioner attached to two appropriate affidavits; one of the affiants was a victim of the alleged crime who, based on personal knowledge, positively identified the petitioner). The hearsay affidavit of the New York detective contained no evidentiary facts so as to establish the credibility and reliability of the unidentified informant. 4
The evidence which will justify remanding the accused must have at least the degree of certainty that would justify a magistrate in committing the accused. State ex rel. Kimbro, 65 So.2d at 68 (citing Ex parte Jowell, 87 Tex.Cr.R. 556, 223 S.W. 456 (Crim.App.1920)). The trial court did not weigh the evidence but found a lack of any competent evidence to support a remand. We cannot disagree.
Affirmed.
The majority in this case is sanctioning the trial court's action which was in direct contravention of section 941.20, Florida Statutes (1983). This section provides that the guilt or innocence of the accused may not be inquired into in any proceeding after the demand for extradition accompanied by a criminal charge in legal form is presented to the governor. The single and narrow exception to this mandate is when the issue of guilt or innocence is somehow involved in identifying the person held as the person charged with the crime. 1 § 941.20, Fla.Stat. (1983). The sole issue on this appeal, and which was before the trial court, is whether the petitioner is the same man charged with the offense in the New York indictment and sought by the New York authorities.
The law is well settled that an executive warrant which is regular on its face and complies with the essential statutory requirements establishes a prima facie showing of the propriety of extradition. State v. Scoratow, 456 So.2d 922 (Fla. 3d DCA 1984) and cases cited. The only "irregularity" in the documents in the present case is a slight variance in the name on the warrant and charging documents and the petitioner's name. It is generally held, however, that a charge is not insufficient as a basis for extradition because it does not allege the fugitive's true name. All that is necessary is that it appear that the fugitive is the particular person charged in the demanding state. See 35 C.J.S. Extradition § 14(9), (1960) and cases cited. Thus, a person held for extradition may be sufficiently identified by a photograph attached to the requisition papers. See 31 Am.Jur.2d Extradition § 67 (1967) and cases cited; Annot., 93 A.L.R.2d 912, 933, § 13 (1964). This is precisely the situation in the present case where a photograph of the person indicted in New York and sought by the New York authorities was attached and made a part of the New York detective's affidavit in support of extradition. This photograph was identified by all of the petitioner's witnesses on cross-examination as that of the petitioner. 2 Accordingly, the state has sufficiently proven identity, as it is quite clear that the petitioner is the person sought by the New York authorities and charged by the indictment in New York. 3
The majority, however, finds that the affidavit of the New York detective and the photograph made a part thereof "are lacking in substance and competency" and, thus, the executive warrant relying thereon to establish identity is invalid. This decision is based upon the fact that the petitioner's photograph is identified with the murder only through hearsay statements in the...
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...the extradition of Wayne Edmonds, Jr. even though the extradition papers requested "Wayne Edmunds"); see generally State v. Davila (Fla.Dist.Ct.App.1985), 481 So.2d 486 (upholding the extradition of Enrique Davila even though the extradition papers requested "Enrique Davila Torres a/k/a 'Ki......