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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES EVANS, )
) Court of Appeals No. A-4046
Appellant, ) Trial Court No. 3PA-S91-41
Civ
)
v. )
) O P
I N I O N
STATE OF ALASKA and LLOYD HAMES, )
Comm'r of Corrections, )
)
Appellee. ) [No. 1177 - November 22,
1991]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: Robert M. Herz, Assistant
Public Defender, Palmer, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Eugene B. Cyrus, Assistant District Attorney,
Kenneth J. Goldman, District Attorney,
Palmer, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
The State of Montana filed a request under the Uniform
Criminal Extradition Act, AS 12.70, to have James Evans returned
to Montana to face a felony charge of issuing bad checks. Acting
upon Montana's request, the governor of Alaska issued a warrant
for Evans's arrest and extradition to Montana pursuant to AS
12.70.060-070. Exercising his rights under AS 12.70.090, Evans
filed a habeas corpus action in superior court to contest his
extradition. Superior Court Judge Beverly Cutler denied Evans's
petition for writ of habeas corpus and directed that Evans be
turned over to the Montana authorities. Evans appeals. We
affirm.
Alaska Statute 12.70.020(a) sets forth the required
contents of another state's request or "demand" for extradition
when the person sought has been accused but not yet convicted of
a crime in the demanding state:
Form of Demand (a) No demand for the
extradition of a person accused but not yet
convicted of a crime in another state shall
be recognized by the governor of this state
unless made in writing and containing the
following:
(1) an allegation that the accused
was present in the demanding state at
the time of the commission of the
alleged crime and that thereafter the
accused fled the demanding state ...
[and]
(2) a copy of an indictment found or
an information supported by affidavit in
the state having jurisdiction of the
crime or by a copy of a complaint, affi
davit, or other equivalent accusation
made before a magistrate there ... .
Evans asserts on appeal that Montana's extradition documents fail
to comply with either subsection (1) or subsection (2).
Evans first argues that the extradition documents are
inadequate because they do not show that any Montana judicial
officer ever determined that there was probable cause to believe
that Evans was present in Montana at the time of the offense. We
reject Evans's argument for two reasons.
First, the language of subsection (1) does not require
a finding of probable cause on this issue; rather, it requires
only an "allegation" that the accused is a fugitive from justice.
Courts have uniformly held that, once the governor of the asylum
state (in this case, Alaska) issues an extradition warrant, a
presumption is created that the accused was present in the
demanding state when the alleged crime was committed. The
accused can contest extradition by claiming that he was not
present in the demanding state at the time of the crime, but a
bare assertion of this claim is not enough to defeat extradition.
The accused has the burden of establishing this fact; some states
require the accused to prove this by clear and convincing evi
dence, while others require proof beyond a reasonable doubt.
State v. Babb, 393 N.W.2d 705, 707 (Minn. App. 1986); Emig v.
Hayward, 703 P.2d 1043, 1051 (Utah 1985); Miller v. Debekker, 668
P.2d 927 (Colo. 1983); Petition of Blackburn, 701 P.2d 715, 717
(Mont. 1985); Bazuldva v. Hanrahan, 592 P.2d 512, 514 (N.M.
1979); and Powell v. State, 507 P.2d 989, 991 (Ariz. App. 1973).
Evans presented no evidence to support his assertion
that he was not present in Montana when the crime charged against
him was committed. The superior court therefore correctly
rejected Evans's claim.
Moreover, even if the law did not create a presumption
that Evans was present in Montana when the alleged crime was
committed, the extradition documents in this case clearly reveal
good reason to believe that Evans was there. The extradition
packet includes a document titled "Refusal and Waiver of Prelimi
nary Examination" that memorializes court proceedings held in
Montana in which Evans, after being advised of the charge against
him and of his right to a preliminary examination (a judicial
determination of probable cause), waived his right to a
preliminary examination and consented to be bound over to face
felony proceedings in the Montana District Court (Montana's
equivalent of our superior court). This document is signed by
Evans, countersigned by the Missoula County Attorney, and
endorsed by a Montana judicial officer. Thus, even if an affirma
tive finding were necessary, the record in this case clearly
supports a finding that Evans was in Montana at or near the time
the crime alleged against him was committed.
Evans's second argument is that Montana's extradition
request is flawed because the information filed against him is
not supported by an affidavit sworn to before a magistrate.
Evans notes that the "Affidavit Supporting Extradition
Requisition" executed by the Deputy County Attorney of Missoula
County was sworn to before a notary public, not a judicial
officer. But Evans has misread subsection (2) of AS
12.70.020(a).
Subsection (2) of AS 12.70.020(a), derived from Section
3 of the Uniform Extradition Act (1936)1, provides three alterna
tive methods by which the demanding state can support its extradi
tion request: (a) by a copy of "an indictment found ... in the
state having jurisdiction of the crime", (b) by a copy of "an
information supported by affidavit in the state having
jurisdiction of the crime", or (c) by a copy of "a complaint,
affidavit, or other equivalent accusation made before a
magistrate [in the state having jurisdiction of the crime]".
Courts have interpreted the Act in the disjunctive: the
three types of supporting documentation are independent of each
other, each sufficient to support extradition. Shapiro v. State,
456 So.2d 968, 970 (Fla. App. 1984); Greenbaum v. Darr, 552 P.2d
993, 995 (Kan. 1976); In re Chenowith, 432 P.2d 132, 135 (Okla.
Crim. App. 1967). The requirement that an affidavit be executed
before a magistrate applies only to the third type of supporting
documentation. This requirement does not apply to the affidavit
supporting an information filed by a public prosecutor. Applica
tion of Hanson, 651 P.2d 543, 546 (Idaho App. 1982); Ex Parte
Quinn, 549 S.W.2d 198, 201 (Tex. Crim. App. 1977).2
Evans's claim falters on a second ground as well. In
most states, an "information" is a charging document filed by a
public prosecutor unsupported by either testimony or affidavits.
For this reason, subsection (2) forbids extradition upon an
information unless the information is supported by an affidavit.
But in Montana a prosecutor is not permitted to file a
felony information until a judicial officer has found that there
is probable cause to believe the defendant committed the crime or
crimes charged in the information. Montana law recognizes three
circumstances in which an information may be filed against a
defendant: (1) following a judicial determination of probable
cause at a preliminary examination, (2) following a defendant's
waiver of the right to a preliminary examination, or (3)
following a district judge's finding of probable cause from
affidavit(s) submitted in support of a direct application to the
District Court by the county attorney for leave to file an
information. Montana Statutes 46-11-101 and 46-11-201.
In the present case, Evans signed a "refusal and
waiver" of his right under Montana law to a preliminary
examination. Evans's waiver of the right to preliminary examina
tion authorized the Missoula County Justice Court to bind Evans
over for felony proceedings in the District Court without an
explicit finding of probable cause to believe Evans had committed
the crime charged. And, under Montana Statute 46-11-101(2),
Evans's waiver of preliminary examination also authorized the
County Attorney to proceed against Evans by information without
first obtaining a finding of probable cause either from the
Justice Court (at a preliminary examination) or from the District
Court (in an application for leave to file an information).
When the law of the demanding state requires a
prosecutor to demonstrate probable cause before he or she can
file an information, a judicial finding of probable cause can be
inferred from the fact that the information has been filed.
Because of this, courts adjudicating extradition requests from
these states treat an information as the equivalent of an
indictment or a sworn complaint. Christopher v. Cronin, 564 P.2d
424 (Colo. 1977), and In re Moore, 313 N.E.2d 893, 895-96 (Mass.
App. 1974). See also Sollinger v. McNeel, 656 P.2d 701 (Colo.
1983), holding that an information should be treated as the
equivalent of an indictment when, after the information was
filed, a judicial officer at a preliminary examination found
probable cause to believe the defendant had committed the crime
charged.
Evans asserts that this rule does not apply to him
because, in his case, the record affirmatively shows that no
Montana judge ever made a finding of probable cause. But this is
so only because Evans waived his right to require the government
to establish probable cause at a preliminary examination. By
waiving preliminary examination, Evans elected not to contest the
existence of probable cause to bind him over for felony
proceedings in the Montana District Court. Evans's waiver ended
the proceedings against him in the Justice Court and it served as
Evans's consent to have the government proceed against him in the
District Court by information.
Modern law has increasingly adopted the view that
consent decrees and settlement agreements, even though they have
not been reduced to a "final judgement" for purposes of appeal,
nevertheless preclude relitigation of the legal claims and
factual issues addressed in them when it is clear that the
parties intended to put to rest the particular claim or issue
involved. See California State Automobile Assn. Inter-Insurance
Bureau v. Superior Court, 788 P.2d 1156, 1159 n.2 (Cal. 1990);
Lancaster v. Carelli, 571 P.2d 899, 902 (Ore. 1977); Gordon H.
Ball, Inc. v. Oregon Erecting Co., 539 P.2d 1059, 1063 (Ore.
1975). Compare Matter of Herbert M. Dowsett Trust, 791 P.2d 398,
401 (Haw. App. 1990), holding that consent judgements only bind
the parties with respect to legal claims covered by the judgement
but not with respect to issues of fact underlying those claims.
In accordance with this modern view, the Restatement of
Judgments 2nd (1982), 13, declares that "for purposes of issue
preclusion (as distinguished from merger and bar), 'final
judgment' includes any prior adjudication of an issue in another
action that is determined to be sufficiently firm to be accorded
conclusive effect." The Restatement gives the example of a case
where issues of liability and damages are addressed separately in
bifurcated proceedings: the issue of liability, once determined
in the first half of the trial, cannot be relitigated in the
damages portion of the trial even though the verdict on the issue
of liability is not yet a "final judgement" for purposes of
appeal.
In the present case, we conclude that Evans's waiver of
preliminary examination in Montana must be given conclusive
effect on the limited issue of whether, for purposes of
proceedings under the Uniform Criminal Extradition Act, there is
probable cause to believe that the charge pending against him in
Montana is well-founded. We would hesitate to find that a
defendant's waiver of preliminary examination precluded the
defendant from later seeking suppression of evidence based on
lack of probable cause for an arrest or a search. These,
however, are matters for the courts of Montana. The issue facing
the Alaska courts is whether, in the context of extradition
proceedings, it is fair to hold Evans to his earlier decision not
to contest the existence of probable cause to support criminal
proceedings against him in the courts of the demanding state. We
hold that it is fair to preclude Evans from relitigating this
issue.
For these reasons, the superior court correctly denied
Evans's petition for writ of habeas corpus. The decision of the
superior court is AFFIRMED.
_______________________________
1 Section 3 of the Uniform Criminal Extradition Act of 1936
provides, in pertinent part:
No demand for the extradition of a person charged with
[a] crime in another state shall be recognized ... unless
... accompanied by a copy of an indictment found or by
information supported by affidavit in the state having
jurisdiction of the alleged crime, or by a copy of an
affidavit made before a magistrate there, together with a
copy of any warrant which was issued thereupon.
2 In Montague v. Smedley, 557 P.2d 774, 779 (Alaska 1976),
the Alaska Supreme Court made the broad statement that AS 12.70.
020(a)(2) requires "that the affidavit in support of an extradi
tion arrest must be made before a magistrate ... . An affidavit
made before a notary public is thus insufficient to authorize the
issuance of a requisition." However, the extradition request in
Montague was supported by the third type of documentation -- a
complaint as opposed to an indictment or information.
The Supreme Court correctly stated the law on the facts of
the case before it. But the court's language should not be read
to cover extradition requests based on indictments or
informations. To do so would be contrary to the wording of the
statute and would, moreover, interpret Alaska's version of the
Uniform Extradition Act differently from the way other jurisdic
tions have interpreted the Uniform Act. See AS 12.70.270: "The
provisions of this chapter shall be so interpreted and construed
as to effectuate the general purposes to make uniform the law of
those states which enact it."
