HOPPER V. STATE EX REL. SCHIFF, 1984-NMSC-034,
101 N.M. 71, 678 P.2d 699 (S. Ct. 1984)
ROD HOPPER, Petitioner-Appellee,
vs.
STATE OF NEW MEXICO, ex rel. STEVEN H. SCHIFF, District
Attorney, Respondent-Appellant.
SUPREME COURT OF NEW MEXICO
1984-NMSC-034, 101 N.M. 71, 678 P.2d 699
Appeal from the District Court of
Bernalillo County, W. John Brennan, District Judge
Steven H. Schiff, District Attorney,
Dorothy Sanchez, Steven A. Slusher, Assistant District Attorneys, Albuquerque,
New Mexico, Paul Bardacke, Attorney General, Carol Vigil, Assistant Attorney
General, Santa Fe, New Mexico, for Appellant.
Query, Fairfield, Reecer, Strotz &
Stribling, Kenneth A. Hunt, Albuquerque, New Mexico, for Appellee.
Stowers, J., wrote the opinion. WE CONCUR:
DAN SOSA, JR., Senior Justice, WILLIAM RIORDAN, Justice.
{1} This appeal by the State
of New Mexico on behalf of the Bernalillo County District Attorney arose from a
habeas corpus proceeding held in the district court of Bernalillo County. The
appellee, Rod Hopper, had been served with a governor's warrant for extradition
from the State of Wisconsin. The district court found that the appellee had not
been charged with a crime
{*72} under
Wisconsin law. The district court quashed the governor's warrant, and released
the defendant. The State appeals. We reverse.
{2} The issue we decide on
appeal is whether the district court has the authority to go behind the
charging documents to determine the applicability of the demanding state's
criminal statute.
{3} The appellee is from the
State of Wisconsin where he was charged with the crime of felony theft of
property valued at $12,000 pursuant to WIS.STAT. Section 943.20(1)(a) (1979).
On February 16, 1983, the appellee was arrested and a fugitive complaint was
filed on February 17, 1983. A governor's extradition warrant was issued on
March 24, 1983. An arraignment held on the governor's warrant resulted in a
petition for writ of prohibition because the district court ordered that the
appellee continue to be released on bond. The writ was granted and made
permanent in
State ex rel. Schiff v. Brennan, 99 N.M. 641,
662 P.2d 642
(1983). On April 18, 1983, a hearing was held on the appellee's habeas corpus
petition. The district court found that the fugitive complaint and governor's
warrant were filed in a timely manner and properly executed by the governors of
New Mexico and Wisconsin. However, the district court went on to determine that
the acts that the appellee was alleged to have committed were not a crime under
Wisconsin law and therefore quashed the governor's extradition warrant.
{4} An issue of interstate
extradition is primarily governed by the federal constitution. The State's
obligation in this regard is found at U.S. Const. Article IV, Section 2, Clause
2 which states:
A Person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State, shall on
Demand of the executive Authority of the State from which he fled, be delivered
up, to be removed to the State having Jurisdiction of the Crime.
The Congressional enactment implementing this clause is found
at 18 U.S.C.A., Section 3182. Moreover, it has long been the rule that the
states may enact consistent ancillary and supplemental legislation. New Mexico
has adopted the Uniform Criminal Extradition Act, NMSA 1978, Sections 31-4-1
through 31-4-30 (Orig. Pamp. and Cum. Supp.1983). Pursuant to the terms of
Section 31-4-10, the prisoner or his counsel have the right to test the
legality of the detention under the governor's warrant of the asylum state by
making an application for a writ of habeas corpus.
{5} The State argues that the
district court's action was a redetermination of probable cause contrary to
Michigan
v. Doran, 439 U.S. 282, 99 S. Ct. 530, 58 L. Ed. 2d 521 (1978) and
therefore the district court was without authority to quash the governor's
warrant.
Michigan v. Doran is recognized as the case establishing what a
court in a habeas corpus proceeding, testing the legality of the detention, may
consider in making such a determination. In
Michigan v. Doran, the
Supreme Court determined that once the governor has granted extradition, a
court in the asylum state considering release on habeas corpus can do no more
than decide the following:
(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.
Id. at 289, 99 S. Ct. at 535. (Emphasis added.) This
Court adopted the rules announced in Michigan v. Doran in the case of Bazaldua
v. Hanrahan, 92 N.M. 596, 592 P.2d 512 (1979) and reaffirmed these rules in
State v. Sandoval, 95 N.M. 254, 620 P.2d 1279 (1980).
{6} Whether the accused has
been substantially charged with having committed a crime in the demanding state
is also one of the requirements of Section 31-4-3, which sets forth the form of
demand in an extradition proceeding:
{*73} No demand for
the extradition of a person charged with crime in another state shall be
recognized by the governor unless in writing, alleging... that the accused was
present in the demanding state at the time of the commission of the alleged
crime, and that thereafter he fled from the state, and accompanied... by a copy
of an affidavit made before a magistrate there, together with a copy of any
warrant which was issued thereupon.... The indictment, information or
affidavit made before the magistrate must substantially charge the person
demanded with having committed a crime under the law of that state.
(Emphasis added.)
{7} In the present case, the
Wisconsin criminal complaint and arrest warrant states that:
[O]n or about July 1, 1981,... [the appellee] did feloniously
and intentionally take and carry away, conceal and retain possession of the
property of another, Lucy Hopper, $12,000.00, without the consent of Lucy
Hopper contrary to Section 943.20(a) [sic].
Section 943.20 is titled "Theft," and Subsection
(1)(a) states that a theft occurs when one does the following:
Intentionally takes and carries away, uses, transfers,
conceals, or retains possession of movable property of another without his
consent and with intent to deprive the owner permanently of possession of such
property.
{8} The appellee contends
that pursuant to Wisconsin law he could not be charged with theft. The appellee
claims that he was charged with taking the one-half interest in the equity of a
home he owned with his former spouse, and that liabilities growing out of this
type of debtor-creditor relationship cannot be made the basis of the charge of
theft. We need not interpret the law of Wisconsin as it applies to this case.
Whether the acts of the appellee fall within the terms of the statute is a
matter to be determined by the courts in Wisconsin.
{9} Moreover, the appellee
did not take advantage of the governor's discretion not to extradite him to
Wisconsin. NMSA 1978, Section
31-4-4 provides:
When a demand shall be made upon the governor of this state
by the executive authority of another state for the surrender of a person so
charged with crime, the governor may call upon the attorney general or any
prosecuting officer in this state to investigate or assist in investigating the
demand, and to report to him the situation and circumstances of the person so
demanded, and whether he ought to be surrendered.
The appellee did not pursue this remedy. Consequently this
matter proceeded to a hearing without an investigation having been made.
{10} In the present case, all
statutory requirements as to the form of the demand of extradition have been
complied with. The district court found that the criminal complaint and warrant
charged the appellee with committing the crime of theft of property valued at
$12,000 in the County of Oneida, State of Wisconsin, contrary to Section
943.20(1)(a). The district court also found that the documents were in all
respects proper as to form and certification. Once a governor's warrant has
been issued, this is
prima facie evidence that the extradition statute
was complied with.
Bazaldua v. Hanrahan. Furthermore, to allow the New
Mexico court to review the issues that should be fully litigated in Wisconsin
would undermine the plain purpose of the summary and mandatory procedures
authorized by U.S. Const. Article IV, Section 2.
See Michigan v. Doran.
{11} In this case, we find
that the appellee has been charged with a crime in the State of Wisconsin. It
is now up to the demanding state to determine whether the acts of the appellee
fall within the proscriptions of the Wisconsin statute. We also hold that the
district court was without the authority to go behind the charging documents
and determine whether the actions of the appellee amounted to criminal behavior
in Wisconsin. The judgment of the district court is reversed. This case is
remanded to the district court with directions to reinstate
{*74}
the governor's warrant and to order the appellee returned to the State of
Wisconsin.
WE CONCUR: SOSA, Senior Justice, RIORDAN, Justice.