Edward Rabie v. Hank Hillin, Sheriff ( 1995 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED AT NASHVILLE
JANUARY 1995 SESSION
October 4, 1995
Cecil Crowson, Jr.
EDWARD RABIE,
Appellate Court Clerk * C.C.A. # O1CO1-9310-CR-00341
Appellant, * DAVIDSON COUNTY
VS. * Hon. Seth W. Norman, Judge
HANK HILLIN, SHERIFF, * (Habeas Corpus)
Appellee. *
For Appellant: For Appellee:
Patrick T. McNally, Attorney Charles W. Burson
Hollins, Wagster & Attorney General
Yarbrough, P.C.
424 Church Street 22nd Floor Michael E. Moore
Third National Financial Center Solicitor General
Nashville, TN 37219
Jerry L. Smith
Geoffrey Coston, Attorney Deputy Attorney General
2813 West End Ave. 500 Charlotte Avenue
Nashville, TN 37203 Nashville, TN 37243-0497
(at trial court)
Jon Seaborg
Asst. Dist. Attorney General
102 Metropolitan Courthouse
Nashville, TN 37201
OPINION FILED:
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner, Edward Rabie, appeals from the trial
Court's denial of his petition for writ of habeas corpus. The
single issue presented for review is whether the extradition
documents were legally sufficient to authorize the governor of
this state to detain and return the petitioner to Kentucky.
We affirm the judgment of the trial court.
The petitioner had been indicted in Kentucky on
several counts of securities fraud related to his operation of
a health corporation. On January 15, 1993, the petitioner was
arrested in this state on a rendition warrant issued by the
governor of Tennessee for extradition to Kentucky. Seven days
later, the petitioner filed a petition for writ of habeas
corpus in Davidson County alleging that he had been unlawfully
taken into custody.
The case was transferred to the Criminal Court and
after reviewing the pleadings, briefs, and trial exhibits, the
trial judge denied the petition. The petitioner filed a
motion for a new trial, was denied relief, and then gave
notice of appeal. Later, the state filed a motion to consider
post-judgment facts and to dismiss the appeal based upon
Kentucky having recalled its previous requisition and having
submitted a second extradition warrant. Based on that, this
court remanded this cause to the trial court for the limited
purpose of reviewing its original denial of the writ in view
of the new extradition documents. See Tenn. Code Ann. § 40-9-
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117 (providing that the governor may "issue another warrant
whenever he deems proper"). The trial court made these
findings:
[T]he extradition documents issued by the
Governor of Kentucky and the Governor of
Tennessee are proper on their face and require
extradition of the Petitioner to Kentucky under
T.C.A. § 40-9-112 for his acts inside Kentucky
and under T.C.A. § 40-9-113 for his acts
outside Kentucky that resulted in crimes inside
Kentucky.
In his appeal of that order, the petitioner argues that the
documents failed to establish either of the two prerequisites
for extradition: (1) that he committed the offense while in
Kentucky; or (2) that he performed acts while in another state
(presumably in New York) which caused the commission of crimes
in Kentucky.
The authority to extradite originates in the federal
constitution:
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.
U.S. Const., art. IV, § 2. In 1951, Tennessee adopted the
Uniform Criminal Extradition Act. See Tenn. Code Ann. § 40-9-
101 thru -130. Pursuant to that act, "it is the duty of the
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 treason, felony or other crime, who has
fled from justice and is found in this state." Tenn. Code
Ann. § 40-9-109; see also Yates v. Gillese, 841 S.W.2d 332,
335 (Tenn. Crim. App. 1992).
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The demand from another state, however, may only be
honored by the governor of Tennessee when (1) it is in
writing; (2) authenticated by the executive authority making
the demand; and (3) in compliance with the requirements of
§ 40-9-112. Tenn. Code Ann. §§ 40-9-110 and -112; see also
Earhart v. Hicks, 656 S.W.2d 873, 876 (Tenn. Crim. App. 1983).
Tenn. Code Ann. § 40-9-112 governs those cases in which the
accused was present in the demanding state at the time of the
offense; it provides as follows:
Allegations required in demand for
extradition.-- A warrant of extradition must
not be issued unless the documents presented by
the executive authority making the demand show
that:
(1) Except in cases arising under § 40-9-
113, the accused was present in the demanding
state at the time of the commission of the
alleged crime, and thereafter fled from the
state;
(2) The accused is now in this state; and
(3) He is lawfully charged by indictment
found or by information filed by a prosecuting
officer and supported by affidavit to the
facts, or by affidavit made before a magistrate
in that state, with having committed a crime
under the laws of that state, or that he has
been convicted of a crime in that state and has
escaped from confinement or broken his parole.
When the accused is not actually in the demanding
state at the time of the offense, but rather committed acts in
another state which resulted in a crime in the demanding
state, Tenn. Code Ann. § 40-9-113 applies; that section
provides as follows:
Acts resulting in crime in state in which
accused is not present.-- The governor of this
state may also surrender, on demand of the
executive authority of any other state, any
person in this state charged in such other
state in the manner provided in § 40-9-112 with
committing an act in this state, or in a third
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state, intentionally resulting in a crime in
the state whose executive authority is making
the demand. The provisions of this chapter not
otherwise inconsistent shall apply to such
cases, notwithstanding that the accused was not
in that state at the time of the commission of
the crime, and has not fled therefrom.
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Extradition proceedings are summary in nature and
are designed only to test whether the rendition warrant is
valid. E.g., de la Beckwith v. Evatt, 819 S.W.2d 453, 456-57
(Tenn. Crim. App. 1991). This state's authority to review the
propriety of the transfer to the demanding state is limited to
the following issues:
(1) whether the extradition documents are in
order on their face;
(2) whether the petitioner has been charged
with a crime in the demanding state;
(3) whether the petitioner is the person named in
the request for the extradition; and
(4) whether the petitioner is a fugitive.
Sneed v. State, 872 S.W.2d 930, 934 (Tenn. Crim. App. 1993)
(quoting de la Beckwith v. Evatt, 819 S.W.2d at 456); see also
Michigan v. Doran, 439 U.S. 282 (1978). Here, the
petitioner's only claim is that the extradition documents are
facially invalid.
The state initially argued for a dismissal on the
basis that this court should not take any action because the
petitioner had requested a hearing before the governor. The
state claimed that Tenn. Code Ann. § 40-9-108(b) did not
provide this court with any authority to act until the
governor acted on the request. The state has asked us to
consider the hearing request as a post-judgment fact. Tenn.
R. App. P. 14. A supporting affidavit and a copy of the
letter requesting the hearing have been provided. In
response, the petitioner filed his own motion alleging that he
had withdrawn his request for a hearing before the governor.
Afterward, the state confirmed that the petitioner had, in
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fact, withdrawn his request for the hearing. In consequence,
whether the petitioner's request for a governor's hearing
precludes the exercise of jurisdiction by this court is no
longer at issue.
We now turn to the merits of the petition. The
purpose of our statutory scheme is to require the state to
establish a sufficient basis for extradition. Earhart v.
Hicks, 656 S.W.2d at 876. Here, all of the amended documents,
whether initiated in Kentucky or Tennessee, describe the
petitioner as a fugitive from justice in Kentucky. The
documents include allegations that the petitioner, who resided
in New York but had flown to Tennessee for business, was in
both Kentucky and another state during the times the crimes
were committed. Those allegations are sufficient on their
face. Whether or not the Kentucky indictments meet the
requirements of law or whether the petitioner is actually
guilty of the offenses are not appropriate questions for our
review. See State ex rel Bradford v. Thomas, 653 S.W.2d 755,
756 (Tenn. Crim. App. 1983); Tenn. Code Ann. § 40-9-114. The
extradition process does not deprive the petitioner of any
possible defense.
Accordingly, the judgment is affirmed.
Gary R. Wade, Judge
CONCUR:
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John H. Peay, Judge
William S. Russell, Special Judge
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