This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-1339

State of Minnesota, ex rel.

Charles Gordon Wilson, petitioner,

Appellant,

vs.

Erik Skon, Warden MCF-OPH,

Respondent.

Filed December 3, 1996

Affirmed

Huspeni, Judge

Washington County District Court

File No. K5961803

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Richard M. Arney, Washington County Attorney, 14900 61st St. N., Stillwater, MN 55082 (for Respondent)

Hubert Humphrey, III, Attorney General, W. Karl Hansen, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Norton, Judge.

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

This appeal is from an order denying appellant Charles Gordon Wilson's petition for a writ of habeas corpus challenging his transfer to Colorado under the Interstate Agreement on Detainers (IAD). We affirm.

FACTS

Appellant Charles Gordon Wilson is serving a 60-year New Mexico sentence in a Minnesota prison under an interstate compact agreement.

The state of Colorado filed a detainer against Wilson and sought his temporary custody to try him for first-degree murder and other charges in connection with a 1984 offense. Wilson refused to waive his challenge to the transfer of custody and filed a habeas corpus petition alleging that he was not the person named in the Colorado warrant and that surrendering him to the state of Colorado, where he could be subject to the death penalty, would be cruel and unusual punishment.

The prosecutor agreed with defense counsel that Wilson would not have to testify at the hearing before the state was put to its burden of proving identity. The state presented the testimony of a fingerprint technician who had compared a certified copy of Denver police department fingerprints of Charles Gordon Wilson with a certified copy of fingerprints taken at Oak Park Heights prison from Charles G. Wilson. The technician testified that in her opinion, to a reasonable degree of scientific certainty, the prints were from the same person. On cross-examination, the technician conceded that it was better to use original prints rather than photocopies. On redirect, however, she testified that the photocopies were sufficient to make a positive identification.

The trial court denied Wilson's petition for a writ of habeas corpus.

D E C I S I O N

The trial court's findings in considering a petition for writ of habeas corpus are entitled to great weight. State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).

A rendition warrant is presumptive evidence that the person named in the warrant is a fugitive. Perez v. Sheriff of Watonwan County, 529 N.W.2d 346, 349 (Minn. App. 1995). The trial court, however, may consider four types of challenges to the rendition warrant, including the claim Wilson presents that he is not the person named in the warrant. Id.

Generally, when a habeas petitioner adequately raises the issue, fingerprint evidence is sufficient to carry the state's burden of proving identity. See State ex rel. Kirkendoll v. Zacharias, 410 N.W.2d 56, 57 (Minn. App. 1987) (fingerprint comparison, and testimony that prints matched, satisfied state's burden of proving identity by clear and convincing evidence), review denied (Minn. Sept. 29, 1987). The BCA technician testified that the photocopies were sufficient to make a positive identification. Wilson presented no evidence to contradict this testimony. He merely elicited from the technician an admission that it would have been "preferable" to view the original prints. This admission does not significantly affect the weight of the positive expert testimony of a fingerprint match.

Even recognizing that under the parties' agreement the state apparently bore the burden of proof despite Wilson's failure to testify or present evidence contesting identity, the expert testimony established by clear and convincing evidence that Wilson is the person sought by Colorado. See State ex rel. Swyston v. Hedman, 288 Minn. 530, 531, 179 N.W.2d 282, 284 (1970) (petitioner must testify positively and unequivocally that he is not person sought in extradition demand before state has burden of proof).

Wilson argues that the use of photocopies of fingerprints, rather than original records, undermines the state's proof. See State v. Caldwell, 322 N.W.2d 574, 575 (Minn. 1982) (ordering a new trial in a homicide case based in part on erroneous expert fingerprint testimony). But in Caldwell, the expert fingerprint identification was later shown to be incorrect. Id. at 582. Because the original print had deteriorated, appellant's expert had to use a photographic enlargement, not knowing that the state's expert had a negative of the original print. Id. at 581. Although the court quoted expert testimony that "photographs, especially enlargements" are not used for fingerprint identifications, id. at 581 n.4, the court also noted that the photographic enlargement in that case had been mounted at an incorrect angle. Id. at 582. Moreover, the opinion indicates that the negative of the photograph of the original prints was the only remaining reliable evidence from which to make a fingerprint comparison. See id. at 582 (only the negative "was sufficiently accurate for use in [appellant's] trial"). Thus, Caldwell does not hold that photographs of fingerprints are insufficient as a matter of law to establish a reliable fingerprint identification.

Wilson claims that this court should scrutinize more closely the extradition request because Colorado is a death penalty state. But a defendant's possible punishment is not one of the permissible grounds for a challenge to extradition. See Michigan v. Doran, 439 U.S. 282, 289, 99 S. Ct. 530, 535 (1978). The extradition clause was intended to enable states to bring offenders to trial as swiftly as possible, and to ensure full faith and credit, and principles of comity, between states in matters of criminal justice. Id. at 287-88, 99 S.Ct. at 534-35. A challenge to extradition was not intended to permit non-death-penalty states[1] to pose a barrier to death penalty states' right to rendition of fugitives charged with offenses punishable by death.

Affirmed.

[ ]1We note further that appellant is serving a New Mexico sentence in Minnesota. New Mexico, like Colorado, is a death penalty state; Minnesota is not.