State v. Price (In re Pawnee Cnty. Grand Jury)

• Decision Date: 05 June 2012
• Docket Number: No. 109,039.,109,039.
• Citation: 280 P.3d 943,2012 OK 51
• Parties: In the Matter of Pawnee County Grand Jury. STATE of Oklahoma, Plaintiff/Appellee, v. Roger Lee PRICE, Defendant/Appellant.
• Court: Oklahoma Supreme Court

280 P.3d 943

2012 OK 51

In the Matter of Pawnee County Grand Jury.STATE of Oklahoma, Plaintiff/Appellee,

v.Roger Lee PRICE, Defendant/Appellant.

No. 109,039.

Supreme Court of Oklahoma.

June 5, 2012.

APPEAL FROM PAWNEE COUNTY DISTRICT COURT, GRAND JURY PROCEEDINGS OUSTING OF ELECTED OFFICIAL; P. THOMAS THORNBRUGH, TRIAL JUDGE

¶ 0 The appellant, State of Oklahoma, pursuant to Grand Jury Proceedings in Pawnee County, Oklahoma, accused the appellant, Roger Lee Price, the elected Sheriff of Pawnee County, (Price/sheriff) of wilful neglect of duty and sought his removal from office. A jury trial was held and the jury unanimously determined that Price was guilty of two accusations of wilful neglect of duty. Pursuant to the jury verdict, the trial judge, Honorable P. Thomas Thornbrugh, ordered that the Sheriff be removed from office. Price filed a motion for a new trial which the trial court denied. Price appealed alleging numerous errors and this Court retained the appeal. We consolidate the issues and hold that: 1) there was no error under the facts presented in allowing the State to prove only two of the three alleged acts of wilful conduct when seeking removal of the sheriff; 2) the trial court properly modified the proposed jury instructions to conform to the evidence presented; and 3) the trial court did not err in denying the motion for a demurrer to the evidence/directed verdict.

MOTION TO RETAIN PREVIOUSLY GRANTED; TRIAL COURT AFFIRMED.

Danny G. Lohmann, Assistant District Attorney, Fairview, Oklahoma, for Plaintiff/Appellee.

Stanley D. Monroe, Stephen G. Layman, Tulsa, Oklahoma, for Defendant/Appellant.

KAUGER, J.:

¶ 1 The three issues presented on certiorari are ¹ whether the trial court: 1) properly allowed the State to prove two of the three factually alleged inappropriate acts in the grand jury's accusation for removal of an elected state official from office for wilful neglect of duty; 2) improperly modified the jury instructions regarding wilful neglect of duty; and 3) erred in denying the motion for a demurrer to the evidence/directed verdict.

¶ 2 We hold that: 1) there was no error under the facts presented in allowing the State to prove only two of the three alleged acts of wilful conduct when seeking removal of the sheriff; 2) the trial court properly modified the proposed jury instructions to conform to the evidence presented; and 3) the trial court did not err in denying the motion for a demurrer to the evidence/directed verdict.

FACTS

¶ 3 The voters of Pawnee County, Oklahoma, elected the defendant/appellant, Roger Lee Price (Price/sheriff), Sheriff of Pawnee County. He first assumed office in January of 2005. By 2010, District Judge Jefferson Sellers requested a grand jury be convened regarding the sheriff's conduct. In September of 2010, the grand jury convened and, on September 29, 2010, it filed an “Accusation for Removal” in the District Court of Pawnee County.

¶ 4 The grand jury determined that Price knowingly, wilfully, and unlawfully committed misconduct in office through acts of wilful neglect of duty. ² One act was alleged to have occurred on September 11, 2006. It involved a female prisoner whom the sheriff released from jail without any bond or judicial authorization in violation of 21 O.S.2011 § 532.³

¶ 5 Another act was alleged to have occurred on July 25, 2007, when a person who was being sought on an arrest warrant issued by the trial court attempted to surrender himself at the Pawnee County Jail. Under the sheriff's direction, the suspect was turned away and was not booked into the jail in violation of 21 O.S.2011 § 533.⁴ A third act was also alleged but this allegation was later dropped/not pursued by the State.

¶ 6 On September 29, 2010, the District Judge, pursuant to 22 O.S.2011 § 1195 suspended Price from office, pending a jury trial of the accusations. ⁵ The trial was held on November 1–3, 2010. At the conclusion of the trial, a unanimous jury found the sheriff guilty of wilful neglect of duty for his conduct involving each of the alleged acts. Consequently, the trial court entered a final order and judgment on November 10, 2010, pursuant to 22 O.S.2011 § 1192,⁶ removing the sheriff from office effective immediately. Price filed a motion for new trial which the trial court denied in an order filed on December 7, 2010.

¶ 7 The sheriff appealed on December 27, 2010. We retained the cause on February 15, 2011, before the briefing cycle was complete. The briefing cycle was completed on September 27, 2011, but the trial court record delivered to the Court did not contain the trial transcripts of the November 2010 trial as designated by Price. The trial transcripts were finally received by this Court on March 29, 2012.⁷

¶ 8 I.

THERE WAS NO ERROR UNDER THE FACTS PRESENTED IN ALLOWING THE STATE TO PROVE ONLY TWO OF THE THREE ALLEGED ACTS OF WILFUL CONDUCT WHEN SEEKING REMOVAL OF THE SHERIFF.

¶ 9 The accusation for removal states three different acts or incidences/offenses which were the basis of the allegations of misconduct. ⁸ Price argues that the grand jury intended that all three allegations be considered together as the basis for removal. He argues that all three acts taken together must support the wrongful conduct for removal from office, or there is no basis at all to support any wrongdoing. Consequently, Price insists that the trial court erred in allowing the State to sever and eliminate one of the allegations on the eve of trial. The State, relying on the civil nature of the indictment process and pleadings contends that the sheriff's argument is meritless. We agree.

¶ 10 The Oklahoma Criminal Code, 22 O.S.2011 ch. 23, provides the procedure to remove an elected official from office. The proceedings are governed pursuant to 22 O.S.2011 §§ 1181–97,⁹ and removal proceedings are jury trials conducted as a misdemeanor criminal trial.¹⁰ Nevertheless, this Court has recognized that removal proceedings are not to be judged as strictly as a criminal indictment.¹¹

¶ 11 Historically grand jury accusations have been divided into separate counts much like a criminal indictment. For example, in Bowles v. State, 1923 OK 226, 215 P. 934, the State sought removal of the mayor of the city of Durant pursuant to a grand jury accusation of wilful neglect of duty. The accusation contained five separate counts of various offenses. During the trial, the trial court ruled in favor of a demurrer to the evidence concerning two counts, leaving three remaining counts for the jury to decide. The jury found the mayor guilty of one of the alleged counts. The mayor was removed from office for failing to file statutorily required monthly reports detaining fines and costs collected by the City.

¶ 12 In Hutchison v. State, 1957 OK 300, 318 P.2d 885, four separate counts were allegedagainst the county attorney which included: 1) habitual and wilful neglect of duty; 2) gross partiality in office; 3) corruption in office; and 4) wilful maladministration. Under each count various “charges” or “acts” of misconduct were alleged. The jury found the attorney guilty of gross partiality in office.

¶ 13 However, in State v. Scarth, 1931 OK 561, 3 P.2d 446, in the attempted removal of a board of county commissioner, the Court, relying on examples from California and North Dakota and noting support from other jurisdictions as well, explained in ¶¶ 8–9 that:

1) an accusation of a public officer for offenses brought for the purpose of removal was not an indictment and was not objectionable on the grounds that it contained more than one offense;

2) such an action is neither civil nor criminal, but a special practice to protect the public from corrupt officials;

3) the purpose is not to punish the offender as the case would be in a criminal prosecution for a crime;

4) due process is provided within the statutes governing the proceeding;

5) a defendant cannot stand on the technicalities which have been or may be devised in the testing and trial of a criminal indictment; and

6) unlike a criminal charge, there is no arrest, bail, fine or imprisonment, merely a speedy, accessible relief, on behalf of the people who have elected the official who is charged.

The Court concluded that a proceeding to remove an official from office is a special proceeding.¹² It also noted that the statutes for removal specify the procedure leading up to trial and where the procedure is not fully explicit, the civil procedure used by the courts is invoked. These cases predate the rules of pleading at the trial and appellate level which have been liberalized to allow courts to focus on the substantive merits of the dispute, rather than the procedural niceties.¹³

¶ 14 The statutory framework for cases brought under 22 O.S.2011 § 1181 has remained essentially the same since statehood. In this cause, the sheriff was accused of wilful neglect of duty.¹⁴ The grand jury's accusation may include either a single act or multiple acts on which the removal proceedings are based.¹⁵ There is no statutorily required form or format for an accusation of removal that must be used. Rather, the only guidelines are that the accusation must be written in ordinary, plain, non-repetitive, understandable language.¹⁶ The accused may deny the truth of the allegations¹⁷ or may object to their legal sufficiency,¹⁸ and/or answer to the allegations.¹⁹

¶ 15 The Court thoroughly re-visited the accusation process nearly 50 years after State v. Scarth, supra, in Russell v. Henderson, 1979 OK 164, 603 P.2d 1132 when the grand jury of Wagoner County returned an accusation against the District Attorney alleging habitual or wilful neglect in office and gross partiality. Under the allegations of habitual or wilful neglect were seven instances/acts of neglect which were listed in addition to the one allegation of gross partiality in office. After a motion to dismiss was treated as a demurrer, the trial court sustained the motion but struck one paragraph of the...