State v. Callaway

• Decision Date: 26 July 1978
• Docket Number: No. 60296,60296
• Citation: 268 N.W.2d 841
• Parties: STATE of Iowa, Appellee, v. Robert D. CALLAWAY, Appellant.
• Court: Iowa Supreme Court

Page 841

268 N.W.2d 841

STATE of Iowa, Appellee, v. Robert D. CALLAWAY, Appellant.

No. 60296.

Supreme Court of Iowa.

July 26, 1978.

Donald C. Wilson and James C. Wilson, of Lundy, Butler, Wilson & Hall, Eldora, for appellant.

Harold A. Young, Asst. Atty. Gen., Jim R. Sween, County Atty., and James P. Walters, Asst. County Atty., for appellee.

Considered by MOORE, C. J., and RAWLINGS, UHLENHOPP, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

The trial court entered judgment removing defendant Robert D. Callaway from office as sheriff of Hardin County on the ground of willful misconduct or maladministration in office under § 66.1(2), The Code. The sole question on defendant's appeal is whether the State carried its burden of proof. Upon our De novo review of the evidence, we affirm the trial court.

The removal petition, which was filed in the name of the State by the Hardin County attorney on January 21, 1977, alleged defendant should be removed from office because of physical assaults on prisoners in five separate incidents.

Under § 66.1(2), The Code, an elective officer may be removed from office by the district court "(f)or willful misconduct or maladministration in office." The petition may be filed by the county attorney when the official is a county or municipal officer. § 66.3(5), The Code. When the petition is properly supported the officer may be suspended from office pending determination of the merits. § 66.7, The Code. That procedure was followed here.

The removal proceeding is summary in nature and triable in equity. § 66.18, The Code. The burden is on the State to prove the alleged ground for removal by evidence which is clear, satisfactory and convincing. State v. Bartz, 224 N.W.2d 632, 638 (Iowa 1974).

Removal is drastic and penal. State ex rel. Fletcher v. Naumann, 213 Iowa 418, 427, 239 N.W. 93, 97 (1931). The object "is to rid the community of a corrupt, incapable or unworthy official." State v. Welsh, 109 Iowa 19, 21, 79 N.W. 369, 370 (1899).

In order to establish "willful misconduct" as a ground for removal, it is necessary to show a breach of duty committed knowingly and with a purpose to do wrong. State ex rel. Barker v. Meek, 148 Iowa 671, 127 N.W. 1023 (1910). This requires proof of grave misconduct. State ex rel. Cochran v. Zeigler, 199 Iowa 392, 202 N.W. 94 (1925). Of course, such misconduct would also be "maladministration in office" within the meaning of § 66.1(2).

The State relies on five incidents which it contends demonstrate such misconduct in the present case. In each instance the State offered the testimony of law enforcement officers who were eyewitnesses to the events. We believe the facts found by the trial court were established by clear, satisfactory and convincing evidence and therefore adopt them as our own. They are as follows:

1. The Rotgers incident. "At approximately 2:00 a. m. on the morning of April 12, 1975, Brian Rotgers, then nineteen years old, was driving north toward Iowa Falls on U.S. Highway 65 and very substantially exceeding the speed limit. Prior to this, he had consumed a large quantity of alcoholic beverages. The defendant was on patrol and in following Rotgers clocked his speed at 76 miles per hour. He followed Rotgers for a short distance and turned on his flashing red lights to indicate that Rotgers should stop. Rotgers 'panicked' and attempted to elude the defendant. He drove at a very high speed towards Iowa Falls and turned to the east on a gravel road just at the southern edge of town.

"The defendant had radioed for help in this high speed chase and received assistance from deputy sheriff Warren Crosser and chief of police Jerry Sunken and officer Richard Newgaard of the Iowa Falls police department.

"In response to radio instructions from the defendant, Deputy Crosser set up a road block, which Rotgers ignored. When Rotgers 'ran' the roadblock, on instructions from defendant, Deputy Crosser shot at Rotger's vehicle with his shotgun. This shot struck the left front portion of the automobile and deflated the left front tire. Several miles past the roadblock, Rotgers lost control of his car and it went into the ditch without injuring him. At this point the road was situated so that there was no shoulder and the ditch was very steep and approximately twelve feet deep.

"The Iowa Falls officers arrived first and brought Rotgers out of the ditch, placing him under arrest, and handcuffed his hands behind his back. The defendant then arrived and got out of his car, and approached Rotgers who was standing 'looking scared' between two peace officers. Rotgers was standing within a foot or so of the edge of the steep ditch with his back to the ditch. As the defendant approached Rotgers, he recognized him as he knew him by sight and also knew that Rotgers had no criminal record.

"The defendant said 'something' that none of the officers present could remember, brought his foot up and kicked Rotgers in the chest, knocking him backward into the twelve-foot ditch. He landed within eighteen inches of his automobile.

"All of the officers involved testified that Rotgers said nothing nor did he make any movements of any kind toward the defendant, nor did he threaten the other officers in any way. Chief Sunken stated, referring to Rotgers, 'he was just standing there looking scared.'

"With reference to the instructions to deputy Crosser to fire on the fleeing vehicle, the defendant testified that in his training, apparently in the military police, this was a recommended method to 'mark a vehicle' so that it could be identified in the event the chase was unsuccessful and the vehicle had to be located later. Chief Sunken testified that although he had attended the Iowa Law Enforcement Academy and undergone training at the University of Iowa in law enforcement, he had never heard of any approved police practice of firing a shotgun at an automobile to 'mark a vehicle.' * * *."

2. The McStockard incident. "On December 16, 1975, Danny McStockard, who was not a large person physically, was arrested by deputy sheriff Loren Goodknight on a charge of terrorizing the inhabitants of a dwelling. Deputy Goodknight brought him to the sheriff's office without handcuffs and was seated at a table in the kitchen of the sheriff's office talking to McStockard and 'trying to calm him down'.

"McStockard had a considerable history with the sheriff's department, and on a previous occasion had been physically arrested by deputy Warren Crosser who had been forced to subdue him, handcuff him, and finally put him in leg irons because of his kicking. It was known to the defendant and his deputies that McStockard had a bad temper, especially when he had been drinking. Deputy Crosser made the statement that the only thing for McStockard when he had been drinking was physical force.

"The defendant and deputy Crosser came into the kitchen where deputy Goodknight and McStockard were seated at the table. The Defendant asked if McStockard had been searched and was told by Goodknight that he had not. He then directed Crosser to 'frisk' McStockard. McStockard stood up and deputy Crosser was in the act of 'patting him down' when, as all three officers agree, McStockard 'went for his pocket' with his right hand. He was grabbed and thrown to the floor, and held down by Goodknight, Crosser and the defendant.

"There was abundant ground for the officers to take the action they did under the circumstances and with their knowledge of McStockard's background.

"What happened next is in dispute. The defendant testified that McStockard was kicking and cursing and that he (defendant) hit McStockard twice on his back to bring him under control.

"Deputy Crosser testified that after McStockard's sudden move 'for his pocket', 'we all wound by on the floor'. He then testified that he, deputy Goodknight, and the defendant were holding McStockard down and defendant hit McStockard in the chest area several times with his fist.

"Deputy Goodknight testified to the same circumstances and stated that when McStockard was down and held by the two deputies, the defendant struck three to six blows with his fist to McStockard's chest and neck area. Deputy Goodknight also stated that 'McStockard was subdued when he was struck'.

"On cross-examination, the defendant testified that he knew deputy Crosser had subdued McStockard alone without any blows from his fist a month before the incident and stated that he was 'not denying that it could have happened' that he hit McStockard in the neck and chest with his fist.

"The Court finds the facts to be in accord with the basic testimony of deputy Crosser and deputy Goodknight that the defendant did strike Danny McStockard in the chest and neck area with his fist when McStockard was subdued and held by the two deputies."

3. The Schories incident. "On February 19, 1976, Tony Schories, now a 22-year old resident of the Men's Reformatory at Anamosa, Iowa, was arrested in Hardin County on suspicion of breaking and entering. He was questioned for some time in the sheriff's office by the defendant and deputy Warren Crosser. At about 3:00 a. m., the defendant instructed deputy Jerry Kadner to take Schories upstairs to a cell and get his consent to search his motor vehicle.

"Deputy Kadner placed Schories in a cell, and when asked for the consent, Schories replied that he wanted some cigarettes. Kadner asked the defendant if he could give him cigarettes, and the defendant stated that he could if Schories would cooperate in the matter of the search. Deputy Kadner took cigarettes to Schories, and asked some questions, but Schories refused to answer or cooperate.

"When Deputy Kadner reported this to the defendant, he was instructed to retrieve the cigarettes. Schories refused to surrender them to Kadner who reported this to the defendant. The defendant took the cell keys from deputy Kadner, opened the cell and asked Schories for the cigarettes.

"The defendant had...