Whittington v. Bray

• Decision Date: 19 May 1980
• Docket Number: 79SA130,Nos. 79SA77,s. 79SA77
• Citation: 612 P.2d 72,200 Colo. 17
• Parties: William WHITTINGTON, Jr., Petitioner-Appellant, v. Harold BRAY, Sheriff of Jefferson County, Colorado, Respondent-Appellee, and Stephen Edwin EBELT a/k/a Stephen Vance Parker, Petitioner-Appellant, v. Robert FARRIS, Sheriff of Summit County, Colorado, Respondent-Appellee.
• Court: Colorado Supreme Court

Page 72

612 P.2d 72

200 Colo. 17

William WHITTINGTON, Jr., Petitioner-Appellant, v. Harold BRAY, Sheriff of Jefferson County, Colorado, Respondent-Appellee, and Stephen Edwin EBELT a/k/a Stephen Vance Parker, Petitioner-Appellant, v. Robert FARRIS, Sheriff of Summit County, Colorado,

Respondent-Appellee.

Nos. 79SA77, 79SA130.

Supreme Court of Colorado, En Banc.

May 19, 1980.

Rehearing Denied June 23, 1980.

J. Gregory Walta, Colorado State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for petitioners-appellants.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Anthony M. Marquez, Asst. Atty. Gen., Litigation Section, Denver, for respondents-appellees.

DUBOFSKY, Justice.

Appellants William Whittington, Jr. and Stephen Edwin Ebelt contest their extraditions to Maryland and Michigan, respectively, on the basis that the Governor of Colorado did not review personally the requisition documents before issuing Governor's Warrants for extradition. In addition, each appellant raises individual issues. These appeals, which have been consolidated, are from orders of the district courts discharging the writs of habeas corpus. We affirm the orders in both cases.

Whittington challenges the sufficiency of the requisition documents as well as the Governor's review of the documents. Neither alleged insufficiency was brought before the trial court. Generally, an appellant must raise the insufficiency of the warrant in the trial court where an opportunity for correction is available. Fox v. People, 161 Colo. 163, 420 P.2d 412 (1966); Self v. People, 133 Colo. 524, 297 P.2d 887 (1956). In any event, a review of Whittington's extradition documents establishes compliance with section 16-19-104, C.R.S.1973 (now in 1978 Repl.Vol. 8). Miller v. Cronin, 197 Colo. 391, 593 P.2d 706 (1979).

In the district court proceedings, Ebelt challenged his identification and questioned the court's jurisdiction, but he did not challenge the adequacy of the Governor's personal involvement in the issuance of the Governor's Warrant. Both appellants requested that we remand their cases to the district court to take evidence about the procedures for issuing a warrant. We denied their requests.

The appellants maintain that they had no reason to question the Governor's procedures until the Attorney General's answer brief was filed in Massey v. Wilson, Colo., 605 P.2d 469 (1980), on May 14, 1979, admitting that the Governor has delegated the authority to review extradition papers and to issue warrants to an extradition secretary and assistant attorneys general who aid the Governor's office in extradition matters. The date of Whittington's habeas corpus hearing was January 16, 1979, and Ebelt's, February 21, 1979. Therefore, we have no indication in the records here whether the Governor personally reviewed the requisition papers or personally signed the warrants. Had this matter been raised before the trial court, such testimony could have been supplied and any necessary corrections made. Fox v. People, supra ; Self v. People, supra.

We note that the Uniform Criminal Extradition Act defines "Governor" to include "any person performing the functions of governor by authority of the law of this state." Section 16-19-102(2), C.R.S.1973 (now in 1978 Repl.Vol. 8). Federal law refers only to the "executive authority" of the asylum state. 18 U.S.C. § 3182 (1976). Neither the state nor federal law forbids delegation of the Governor's executive authority to employees in his office and assistant attorneys general.

In addition, it would not be proper for the judiciary to tell the Governor how to delegate his authority in extradition matters. The general rule is that "district courts do not have jurisdiction to interfere with the executive branch of the government in the performance of its statutory duties." Moore v. District Court, 184 Colo. 63, 68, 518 P.2d 948, 951 (1974).

Appellant Ebelt alleged that the requisition papers from Michigan failed to establish his identity in the trial court. He maintains that his name is not Stephen Edwin Ebelt, but Stephen Vance Parker, and that he signed Stephen Edwin Ebelt at the insistence of law enforcement officials. He also challenges the fingerprint comparison and description of Ebelt sent by the Michigan State Prison. The trial court heard Ebelt's testimony and evidence that when arrested, Ebelt listed his address as "17 Mile Road in Cedar Springs, Michigan." The same address was listed in the Michigan State Escape Notice for Stephen Ebelt. The trial court found the evidence sufficient to establish Ebelt's identity, and we see no reason to disturb that ruling. Ramos v. Bower, Colo., 602 P.2d 4 (1979); Lomax v. Cronin, 194 Colo. 523, 575 P.2d 1285 (1978).

Ebelt also challenges the jurisdiction of the trial court because he was held in the Summit County Jail longer than thirty days waiting issuance of the Governor's Warrant. Section 16-19-116, C.R.S.1973 (now in 1978 Repl.Vol. 8), provides:

"If from the examination before the judge it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under section 16-19-107 (extradition of persons not present where crime committed), that he has fled from justice, the judge shall, by a warrant reciting the accusation, commit him to the county jail for such a time not exceeding thirty days and as specified in the warrant as will enable the arrest of the accused to be made under a warrant of...