Opinion
No. CV 07-4032778
February 7, 2008
RULING RE PETITION FOR WRIT OF HABEAS CORPUS
This revised petition, filed December 19, 2007, challenges the validity of a fugitive extradition warrant under which petitioner is held for rendition to the authorities of the State of California. The Petitioner asserts that he is not a fugitive in that he was not in the demanding state on the date of the crime.
Respondent's return, filed December 27, 2007, leaves petitioner to his proof. The parties have agreed, on the record, that there has been satisfactory compliance with respondent's request for discovery, also dated 12\19\07. The parties further agree that the sole issue is whether Petitioner is a fugitive from the State of California.
The requisition application submitted by the State of California states that Petitioner stands charged in that state with the crimes of Failure to Update Registration Annually, Penal Code Section 290(a)(1)(D), a felony; Failure to File a Change of Address, Penal Code Section 290(f)(1)(a), a felony; and Failure to Register, Prior 290 Conviction, Penal Code Section 290(a)(1)(A), a felony. The rendition request includes a certified copy of an Amended Felony Complaint for Extradition and a certified copy of the Affidavit of the Los Angeles County District Attorney establishing probable cause, signed by the California prosecuting authority and a Judge of the Superior Court, Los Angeles County. Also annexed to the California request is a certified copy of the fingerprint card from the Los Angeles Police Department. Petitioner has refused to waive extradition, and return to the demanding state; a Governor's warrant issued based on the documentation, properly authenticated, submitted by California.
Immediately above the Judge's signature appears the following: "Subscribed, re-issued and sworn before me on June 6, 2007, at Van Nuys, County of Los Angeles, California, and it appearing to me that probable cause exists for the issuance of a warrant of arrest of the above named defendant(s), the warrant is so ordered."
Included in the extradition papers admitted, by agreement, as Respondent's Exhibit #1, is information that the Connecticut State Police have positively identified Petitioner as the person wanted by the State of California through date of birth, Social Security number, physical description, and positive fingerprint identification.
The procedures with regard to interstate extraditions are set forth in the Uniform Extradition Act, Conn. General Statutes, Section 54-157 et seq. The Act "implements the mandate of the Extradition Clause of the United States Constitution." Michigan v. Doran, 439 U.S. 282, 286-87 (1978); Clark v. Commissioner, 281 Conn. 380, 392-93 (2007); Barrila v. Blake, 190 Conn. 631 (1983). "In order to effectuate the act's purpose of providing a mechanism for the summary disposition of extradition cases, the controlling case law has established that hearings contesting extradition warrants are limited to a determination of `(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.'" Michigan v. Doran 439 U.S. at 289; Barrila, at p. 634. Petitioner contests only determination (d) above. Accordingly, and based on my review of the documentation contained in Respondent's Exhibit #1, I hereby find that determinations (a), (b), and (c) are satisfied.
"A person is a fugitive from justice if he commits a crime in one state and is thereafter found in another." Appleyard v. Massachusetts, 203 U.S. 222, 229 (1906); Barrila v. Blake, supra at 634; Moulthrope v. Matus, 139 Conn. 272, 275-76 (1952). "Fugitive status is a question properly to be decided in Connecticut, the custodial state." Barrila, at 634. This court has found that the extradition documents submitted by California are in proper order, and properly authenticated, pursuant to the requirements of the Uniform Criminal Extradition Act; as stated, those documents clearly indicate that a California judge found probable cause and issued a warrant for the Petitioner's arrest. Furthermore, the issuance of the Governor's warrant in this state constitutes prima facie evidence that the person named therein is a fugitive; the Respondent has introduced the Governor's warrant into evidence as part of its Exhibit #1 and, therefore, the burden shifts to Petitioner to establish, beyond a reason doubt, that he is not a fugitive.
General Statute Section 54-158 states: "Subject to the provisions of this chapter it is the duty of Governor of this state to have arrested and delivered up to the executive authority of any other state . . . any person charged in that state with [a] felony or other crime, who has fled from justice and is found in this state."
In Doran, the United States Supreme Court stated: ". . . the courts of the asylum state are bound to accept the demanding state's judicial determination since the proceedings of the demanding state are clothed with the traditional presumption of regularity. In short, when a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination. To allow plenary review in the asylum state of issues that can be fully litigated in the charging state would defeat the plain purposes of the summary and mandatory procedures authorized by Art. IV, Section 2.
"We hold that once the governor of the asylum state has acted on a requisition for extradition based on the demanding state's judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state." Michigan v. Doran, supra at p. 290.
The United States Supreme Court held that "a person contesting his fugitive status `should not have been released unless it appeared beyond a reasonable doubt that he was without the [demanding state] when the alleged offense was committed and, consequently, could not have been a fugitive from justice.'" South Carolina v. Bailey, 289 U.S. 412, 422 (1933); Barrila v. Blake, supra at 636. The Connecticut Supreme Court has stated: "[t]he inquiry whether or not the plaintiff is a fugitive from justice is one of fact, to be resolved by the chief executive of the state to whom the demand for extradition is made, and his judgment thereon is not subject to judicial impeachment by habeas corpus unless it conclusively appears that the person to be extradited could not be a fugitive from justice under the law." (Emphasis added) Moulthrope v. Matus, supra at 275; Barrila v. Blake, supra. In Barrila, our Supreme Court stated "[t]he trial court chose to apply the `beyond a reasonable doubt' standard . . . a standard no less favorable to the plaintiff than that of conclusiveness." Id. at 636-37.
The court conducted an evidentiary hearing. The Petitioner's claim is that he was not in California at the times the crimes alleged in the Felony Complaint For Extradition were committed. The Application For Requisition (as well as the Governor's warrant) indicates that the crimes were "committed in the County of Los Angles, State of California, on and between the 15th day of November 2005 and the 4th of May 2006." It is defendant's claim that he was not in California during that period.
At the conclusion of the trial (evidence and summations), Petitioner personally addressed the court stating that documentation could (and he felt should) be obtained from New York authorities confirming that he was present in that state during the subject time period. The matter was twice continued for the Public Defender's Office to undertake, again, to procure such information. At the second continuance date, the court entertained the motion of Petitioner's counsel to reopen the evidence; at that time, Petitioner's Exhibit A and Respondent's Exhibit #2 were admitted in evidence.
Neida Jimenez testified she is the Petitioner's sister and has resided in Manhattan her entire life (forty years); she stated Petitioner came to New York for her mother's funeral in December of 2004, and he continued living with her thereafter, to March of 2007, except for a few months when he lived with another sister, also in Manhattan. As to when Petitioner lived with the other sister, Sonja Dominguez, the witness, by her own words was not too sure of dates. Ms. Jimenez testified he went to live with the other sister after she (Jimenez) and Petitioner had a "fallout" (argument), stayed there a few months, and then came back to her home. The witness (Jimenez) testified: "I don't know the exact dates . . . I think that it was in 2005 or 2006." Neida Jimenez also testified that, to her knowledge, the Petitioner lived in California before he came to live with her in 2004.
The documentation received from California informs that the Petitioner has used different names: Hector Jimenez (same spelling as the witness' surname), Hector Jiminez, and Clifford Thomas Smith. The documents also indicate the Petitioner's use of different dates of birth: 9/26/1951, 9/26/1955, and 11/07/1958. Respondent's Exhibit #2 reflects use of several other aliases, as well as additional D\O\Bs.
On direct, the witness testified:
The Petitioner testified that he was in "custody" in California "from 1996 till June — I was released from parole on June of 2005." He stated that he was permitted to travel to New York to attend his mother's funeral in December 2004. However, he "overstayed" and was arrested in New York City in March 2005; he stated he remained in the "county jail until June of 2005," when he was released because he "only owed them about sixty-two more days." According to Petitioner, he went directly back to his sister's (Neida Jimenez) home upon his June 05 release. He stated that he remained in Neida Jimenez's home until March 8, 2007, when he moved to New Jersey. He stated he was living in Neida Jimenez's home from December 2004 until March 8, 2007, except for the "couple of months" he lived with Sonja Dominguez, but he cannot remember which months. He stated he could not remember because "between that time I had been back and forth into mental health hospitals."
Petitioner testified:
A. . . . because I signed the paperwork to be extradited . . . they let me go because my time was up. So I was released in New York City.
Q. . . . And the California authorities —
A. Dropped the warrant.
The Petitioner did not receive any Social security checks in New York. He states that he did receive benefits after he moved to New Jersey in March 07.
The Court has weighed and considered the evidence presented in its totality. I do not find the witnesses' testimony entirely credible, especially given the confusion and lapse of memories regarding dates. And, although the court granted Petitioner's request for additional time to obtain substantiating evidence, nothing particularly probative was obtained or presented. Petitioner's Exhibit A, a 1/31/08 letter from the New York City Department Of Corrections to the Public Defender's Investigator indicates that Petitioner was incarcerated in NYC from 2/11/05 to 5/11/05; however, that was several months before the time period set forth in the Application For Requisition and in the Governor's warrant, both of which state the crimes were "committed . . . on and between the 15th day of November 2005 and the 4th of May 2006." Additionally, Respondent's Exhibit #2 reflects arrests in Santa Ana, California, in April of 2006, within the subject time period in which Petitioner claims he was not in that state. Moreover, while Petitioner claims he was living in New York "at the time of the commission of the alleged crime(s)," there was no evidence of any filing of a change of address, residence, or location with the California registering agency at any time. And, there was no evidence of Petitioner's having registered in New York or New Jersey. Considering the nature of the crimes for which extradition is sought (Failure To Register, etc.), and the judicial determination of probable cause in the demanding state, the assertion that fugitive status is negated by absenting oneself from that state, during the time registration is required under its registry laws, is not sustainable, on the evidence presented here.
Petitioner states that California knew where he was since that state had "dropped" its extradition proceeding in June 2005, which proceeding was apparently initiated as a result of his "overstaying" his parole permission to attend the New York funeral. However, other than Petitioner's very brief testimony, and the statement of the New York Correction authorities regarding his 2005 incarceration (Petitioner's Exhibit A), no evidence was presented regarding the particulars or precise subject matter of that 2005 proceeding in New York, and, there is nothing to indicate that by "dropping" the violation proceedings in New York, California's registering agency was excusing Petitioner from compliance with that state's notice of change of address and registry requirements.
In making the necessary credibility assessments, I have applied the standard criteria, including the factors set forth in the Connecticut Selected Jury Instructions — Criminal, Revised to December 1, 2007, Sections 2.4-2 and 2.4-7. The criteria include any bias or interest of the witnesses in the outcome of the case. cf. Barrila v. Blake, supra at 639. It is the court's view that the petitioner did not establish, beyond a reasonable doubt, that he is not a fugitive with respect to the crimes charged in the Felony Complaint For Extradition.
Since Petitioner's burden is proof beyond a reasonable doubt, the court referred to the instructions commonly given to the trier of fact in criminal cases.
The Petitioner has not met the required burden of proof therefore, the court finds that he is a fugitive for purpose of extradition. Accordingly, the petition for a writ of habeas corpus is dismissed.
A. . . . He had just lived . . . with my sister for a couple of months. I think it was 2005 or 2006, I'm not too sure.
Q. . . . you say he went to live with your sister for just a couple of months, and then came back to live with you.
A. Yes.
Q. In 2005 or 2006. You can't be sure exactly what months.
A. Right.