State v. Oren

STATE_V_OREN.92-113; 160 Vt. 245; 627 A.2d 337


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-113


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 3, Washington Circuit

 Wanita Oren                                  September Term, 1992




 Alan W. Cheever, J.

 Jeffrey L. Amestoy, Attorney General, and David E. Tartter, Assistant
 Attorney General, Montpelier, for plaintiff-appellee

 Charles S. Martin of Martin & Paolini, P.C., for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      JOHNSON, J.   This interlocutory appeal presents the question of
 whether a person may be found guilty of hindering a law enforcement officer,
 where the officer's commission has expired at the time of the offense.  We
 agree with the trial court that the technically unqualified officer was an
 officer de facto.  Therefore, we affirm the trial court's denial of
 defendant's motion to dismiss for lack of a prima facie case.
      Defendant was charged with hindering a law enforcement officer in
 violation of 13 V.S.A. { 3001.  The situation arose out of a deputy
 sheriff's attempt to serve civil process upon defendant at her home on
 February 8, 1989.  Defendant was tried and convicted by a jury.  A judgment
 of guilty was entered, and defendant was sentenced.  After these events,
 defendant discovered that the deputy sheriff's commission had expired on
 February 1, 1989, seven days before the incident with which defendant was
 charged.  Defendant moved for a new trial on the grounds of newly discovered
 evidence, contending that the deputy sheriff had ceased to be a law enforce-
 ment officer as of February 1, 1989, and that this "new" evidence would
 change the result of the trial.  Despite the fact that the error in the
 commission was easily discoverable prior to trial, the motion was granted
 because the trial court viewed the issue of de facto officer status as a
 question for the jury.
      Defendant then moved to dismiss the charges because the State would be
 unable to prove that the deputy sheriff was a law enforcement officer, an
 element of the offense.  This motion was denied by a different judge, who
 made findings of fact using the testimony from the hearing on the motion for
 new trial.  The trial court found that the deputy sheriff, Jackie Cholewa,
 had been appointed a Washington County Deputy Sheriff by Sheriff Edson on
 August 11, 1988, with a commission to expire on February 1, 1989; that
 Sheriff Edson intended to have the commission expire on February 1, 1991;
 that the 1989 date was a mistake; and that Cholewa had been continuously
 working as a deputy sheriff since 1988 and was reappointed in 1991.  The
 court concluded, as a matter of law, that Cholewa was a de facto officer at
 the time of the incident involving defendant.  It denied defendant's motion
 to dismiss, and defendant took an interlocutory appeal to this court.
      We conclude that the motion to dismiss was properly denied.  "Under the
 de facto officer doctrine, long recognized by this Court, an officer coming
 into possession of his office under the forms of law and assuming to act
 under a proper commission is a de facto officer whose acts are binding as to
 third persons, despite some infirmity in the qualifications of the officer."
 In re G.V., 136 Vt. 499, 501-02, 394 A.2d 1126, 1127 (1978).
      The purpose of the de facto officer doctrine is to protect the public's
 reliance on an officer's authority and to ensure the orderly administration
 of government by preventing technical challenges to an officer's authority.
 Equal Employment Opportunity Comm'n. v. Sears, Roebuck & Co., 504 F. Supp. 241, 260 (N.D. Ill. 1980).  To satisfy the doctrine, the officer must be "in
 the unobstructed possession of the office and discharging its duties in full
 view of the public, in such manner and under such circumstances as not to
 present the appearance of being an intruder or usurper."  Waite v. Santa
 Cruz, 184 U.S. 302, 323 (1902).  Third persons are entitled to rely on the
 actions of such public officers without the necessity of investigating their
 title.  State v. Levy, 113 Vt. 374, 377, 34 A.2d 370, 372 (1943).  The
 exception to the doctrine, not relevant here, is that an officer with
 defective title may not invoke the doctrine when a party to the suit.  In
 re G.V., 136 Vt. at 502, 394 A.2d  at 1127-28.
      Under the de facto officer doctrine, we concluded that a petition to
 terminate parental rights was valid even though the state's attorney who
 signed it had failed to file her appointment and oath with the county clerk,
 as required by statute.  Id. at 502, 394 A.2d  at 1128.  We have also upheld
 a conviction for impeding a law enforcement officer even though the officer
 had not completed all statutory training requirements.  State v. Mitchell,
 142 Vt. 517, 519-20,  458 A.2d 1089, 1090 (1983).  Mitchell is analogous to
 the case at bar.
      The trial court properly determined that the deputy sheriff was a de
 facto officer at the time of the incident involving defendant.  The deputy
 sheriff had been properly appointed and had assumed to act under the
 appointment.  The only infirmity in her qualifications was the result of a
 typographical error in the expiration date of her appointment, a fact
 unknown to her or the appointing authority.  Her belief in her authority to
 act as a deputy sheriff when she served process on defendant was genuine.
 The deputy sheriff has since been reappointed.  Thus, the absence of
 appointment did not, as defendant contends, deprive Deputy Cholewa of
 authority under the circumstances.  See Sears, Roebuck & Co., 504 F. Supp.  at 262 (acts of commissioner valid during period after expiration of
 appointment and before appointment of new commissioner).  Nor did the
 expiration date operate as a jurisdictional limit on her authority.  In
 short, none of the facts found by the trial court suggests that the deputy
 sheriff was acting other than in the "unobstructed possession" of the
 office.
      Defendant argues, however, that the deputy sheriff in this case
 appeared to be an "intruder or usurper" because she was not in uniform and
 was driving an unmarked sheriff's department cruiser.  The State counters
 that defendant has confused the requirements of the de facto officer
 doctrine with an element of the offense, namely, that the State must prove
 that defendant knew or reasonably should have known that the person serving
 process on her was acting as a law enforcement officer.  The State is
 correct.  Whether the officer with defective title appeared to be an
 intruder or usurper depends on whether other government officials and the
 public reasonably believed that the officer was entitled to exercise the
 powers of her office during the period of defective title.  Id. at 261.
 Under the de facto officer doctrine, it is irrelevant whether defendant
 understood the deputy sheriff was a law enforcement officer on the occasion
 in question.
      The State attempts to cross-appeal the decision granting defendant's
 motion for a new trial.  There is, however, no procedural avenue to appeal
 the granting of a new trial motion, other than by pursuing a petition for
 extraordinary relief when the circumstances present a usurpation of judicial
 power.  State v. Forte, 154 Vt. 46, 47-48, 572 A.2d 941, 941-42 (1990).
 Thus, whether the trial court abused its discretion in granting defendant's
 motion is not properly before us; however, the motion was granted on the
 mistaken understanding that the de facto officer issue was a question of
 fact for the jury.  See Waite, 184 U.S.  at 322-23 (question of de facto
 officer status is a mixed question of law and fact); Levy, 113 Vt. at 379,
 34 A.2d  at 373 (question of de facto officer status decided in Supreme
 Court).  Now that we have held that defendant was a de facto officer as a
 matter of law, the typographical error in the commission has no bearing on
 any factual issues for another jury.
      The separate issue of whether defendant understood that Deputy Sheriff
 Cholewa was a law enforcement officer was fully litigated at the first trial
 and resolved against defendant.  A second trial would be superfluous.  On
 remand, the trial court may entertain a motion to reconsider its decision
 to grant a new trial.  See United States v. Spiegel, 604 F.2d 961, 971-72
 (5th Cir. 1979)(trial court had jurisdiction to reconsider decision to grant
 new trial); Christian v. State, 522 A.2d 945, 949 (Md. 1987) (it is "utterly
 illogical" to preclude trial court from reconsidering its order granting new
 trial following ruling by appellate court that earlier order granting new
 trial was based on erroneous interpretation of a rule).

      The order of the trial court is affirmed and the cause is remanded for
 further proceedings not inconsistent with this opinion.



                                    FOR THE COURT:



                                    __________________________
                                    Associate Justice