Driskell v. Goerke, P--77--173
| Decision Date | 24 March 1977 |
| Docket Number | No. P--77--173,P--77--173 |
| Citation | 562 P.2d 157 |
| Parties | Clifton Leroy DRISKELL, Petitioner, v. Earl E. GOERKE, District Attorney of District Number Four, State of Oklahoma, et al., Respondents. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
In this original proceeding the Petitioner filed his verified Petition in this Court asking that the Court assume or exercise original jurisdiction for the purpose of issuing a Writ of Prohibition, or alternatively a Writ of Mandamus, to the Respondents, prohibiting Earl E. Goerke, District Attorney, from allowing the participation of Stephen Jones from appearing as a Special Prosecutor for the State of Oklahoma, or Special Assistant District Attorney, in the case of State of Oklahoma v. Clifton Leroy Driskell, No. CRF--76--1084, pending in the District Court of Garfield County, Oklahoma, in which case the defendant (Petitioner herein) stands charged by Information with the crime of Murder in the First Degree; or, alternatively, to issue a Writ of Mandamus directing Respondent Earl E. Goerke, District Attorney, to perform his duties in the prosecution of said case without the assistance of the said Stephen Jones either in the asserted capacity of Special Prosecutor, Special Prosecutor of the State of Oklahoma or Special Assistant District Attorney and/or directing Respondent Stephen Jones to cease participation in either of said capacities. Separate Responses were filed by the Respondents and this Court proceeded to hear the case pursuant to Order with Petitioner's attorneys of record and Respondents present.
This Court will assume or exercise original jurisdiction herein but for want of the District Court of Garfield County being named as a Respondent herein, this Court will treat the Petition as praying for a Writ of Mandamus for the purposes above enumerated.
The facts reflect substantially as follows:
On November 1, 1976, Earl E. Goerke, the duly elected and qualified District Attorney of Garfield County, Oklahoma, filed an Application for Appointment of a Special Prosecutor in Garfield County, Cas. No. CRF--76--1084, stating inter alia, a heavy case load, reduced number of assistants due to budgetary problems, the complexity of the case at bar and that the control of the case would remain in the hands of the District Attorney's Office. On this same date the Honorable James W. Musser, Special District Judge, acting as Magistrate, issued a written order '. . . that the name of Stephen Jones is entered of record in This cause (CRF--76--1084) to serve as Special Prosecutor, unpaid . . .'. An oath of 'Special Prosecutor' was then administered and signed by Stephen Jones.
On November 4, 1976, immediately before preliminary hearing, Petitioner orally objected to the appointment of a Special Prosecutor stating the lack of statutory authority in Oklahoma for such appointment and the failure of the State to follow existing statutory authority to obtain assistance if needed. After a hearing and argument the Court overruled defendant's objection apparently relying on Miller v. State, 94 Okl.Cr. 198, 232 P.2d 651 (1951), and 19 O.S.Supp.1974, § 215.15.
On November 18, 1976, Petitioner filed before the District Court a Motion to disqualify the Special Prosecutor stating that the Constitution and statutes of Oklahoma do not permit such appointment. On January 12, 1977, after arraignment the Honorable J. Russell Swanson, District Judge overruled the Motion, thus permitting the participation of the Special Prosecutor.
It is to be noted, the record herein also indicates that the State asserts, to some degree, that Stephen Jones appeared or appears as a Special Assistant District Attorney. But the facts before this Court do not establish that he has, in fact, been so appointed.
After reviewing the record of the District Court, listening to the arguments of counsel before this Court, reading the proceedings with Exhibits filed in this case, we find that Stephen Jones, at all times to present, in matters pertaining to the case at bar, has been acting as a Special Prosecutor, not as an Assistant District Attorney, meaning that he has been appointed by the District Court for the special and limited purpose of assisting the prosecution of Clifton Leroy Driskell in said cause.
We make no finding on the question of prejudice to the defendant resulting from the participation to date of a Special Prosecutor, since this issue is neither properly before us on an extraordinary writ nor sufficiently briefed with supporting record or argument by the parties; however, from the record that is before us we find no apparent prejudice by reason of his appearance and participation in the preliminary examination. See Vassaur v. State, Okl.Cr., 514 P.2d 673 (1973).
Having found Stephen Jones is acting as Special Prosecutor we do not reach the issue of and make no finding on the District Attorney's authority to appoint additional part or fulltime assistants; however, it is inherent from our decision today that the mere changing of the name from Special Prosecutor to Assistant District Attorney, relying on the temporary increased work-load brought about by a single case is not in compliance with 19 O.S.Supp.1974, § 215.14 and § 215.15, which must be strictly complied with.
We now consider the issue before u...
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Smith v. State
...allowed to try this case in violation of Oklahoma statutes which do not permit the appointment of a special prosecutor. Driskell v. Goerke, 562 P.2d 157 (Okl.Cr.1977) and Driskell v. State, 659 P.2d 343 (Okl.Cr.1983). The record reveals that Assistant District Attorney Michael Daffin had te......
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Driskell v. State
...the district court appointing Mr. Jones as an unpaid "special prosecutor" to assist in this case. But prior to trial, in Driskell v. Goerke, 562 P.2d 157 (Okl.Cr.1977), we held that the Oklahoma statutes do not permit the use of special prosecutors. The district attorney then hired Mr. Jone......
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State ex rel. Barton v. Veley
...are controlled by statute and nothing can be done in these proceedings which is not ordained or sanctioned by statute. Driskell v. Goerke, 562 P.2d 157 (Okl.Cr.1977) is also cited for the principle that the district court may not appoint a special prosecutor to assist the district attorney ......
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Board of Governors of Registered Dentists of Oklahoma v. Spiva
...The quoted portion of 19 O.S.1981 § 215.4 has been literally construed and determined to be mandatory by the courts. In Driskell v. Goerke, Okl.Cr., 562 P.2d 157 (1977), it was held that the mandatory language of § 215.4 prohibits the district court from appointing a special prosecutor in a......