STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, ) DEPARTMENT OF LAW ENFORCEMENT, )

)

Petitioner, ) CASE NO. 85-1533

)

vs. )

)

THOMAS K. MORGAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on July 23, 1985, at Tampa, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32301

For Respondent: William S. Lancaster, Esquire

13539 North Florida Avenue Tampa, Florida 33612

By Administrative Complaint dated March 20, 1985, the Criminal Justice Standards and Training Commission, Petitioner, seeks to revoke, suspend, or otherwise discipline the certification of Thomas K. Morgan, Respondent, as a law enforcement officer. As grounds therefor it is alleged that on the evening of April 28, 1984, Respondent made inappropriate comments of a sexual nature to a stranded female motorist and thereby demonstrated lack of good moral character.

At the hearing Petitioner called five witnesses and Respondent called three witnesses, including himself. There is

no dispute regarding the physical facts surrounding the incident. Respondent denies only that he made the inappropriate comments as alleged. At the hearing ruling on the admissibility of testimony relating to the taking of polygraph examinations was deferred. The objection to that testimony is now sustained.

Proposed findings submitted by Petitioner have been considered. Those findings consistent with the findings below are adopted; otherwise, they are rejected as not supported by the evidence, immaterial, or unnecessary to the conclusions reached. Petitioner's proposed conclusions of law are supported by no cited cases and it attempts to justify the testimony regarding polygraph tests on the sole ground that a reasonably prudent person would accept the refusal of Respondent to submit to a polygraphic examination as a consciousness of guilt and fear of detection.

FINDINGS OF FACT

1. At all times relevant hereto Thomas K. Morgan was a trooper with the Florida Highway Patrol and was certified as a law enforcement officer by Respondent.

   
   

2. On April 28, 1984, Brenda Liles, a 22-year-old woman, was returning to her home in Ruskin when she ran out of gas and pulled off on the shoulder of U.S. 41 in a rural area. Before leaving from her departure point, she realized her gas gauge was on empty and she called her father to ask him to come look for her if she was not home in 15 minutes.

   
   

3. Trooper Morgan saw the AMC Concord parked along U.S.

   41 and pulled up behind the car. Miss Liles was in the car with the doors locked and the windows rolled up. When Respondent approached her car he shined his flashlight inside the car to look for weapons or anything suspicious. Seeing the trooper, Miss Liles lowered the window to tell him she had run out of gas but her father would be along momentarily.

   
   

4. Respondent stayed alongside Miss Liles' car and they held a general conversation for several minutes before Mr. Liles arrived. Miss Liles was dressed in shorts and tee shirt. When her father arrived he found his daughter calm and he suggested she get into his pickup truck and he would return for the AMC the following day. Respondent told Liles that he (Morgan) had a gas can he could borrow to get gas and the car could then be driven away rather than be left alongside the highway all night. Liles took the gas can and departed. He planned to stop by his

   home for a funnel but, even so, the round-trip for gas was expected to take no more than ten minutes.

   
   

5. When Liles left, Respondent continued talking to Miss Liles and suddenly started shining his flashlight over her body and said, "Pussy, pussy, let me see that pussy," or "I want that pussy; open it up," or words of similar import. Miss Liles initially did not understand him and asked him what he had said. He repeated the words while shining his flashlight over her body. She immediately rolled up the window through which they had been talking (the doors had remained locked) and became very frightened and started crying. Respondent returned to his patrol car and started filling out reports. Approximately five minutes later Mr. Liles returned with the gas, saw his daughter was crying, and that she was visibly upset. After putting gas in the car, he returned the gas can to Respondent and asked his name and badge number.

   
   

6. When the AMC was started Liles told his daughter to follow him and he drove to the sheriff's substation in Ruskin. Although Liles did not ask his daughter what had happened, he sensed it had something to do with Respondent. Upon arrival at the Sheriff's Office they encountered Trooper Donna L. Middleton who was told by Liles that they wanted to make a complaint. At this time Miss Liles was either still crying or showed visible evidence of having been crying and was quite upset. Trooper Middleton took father and daughter into an office to inquire as to the nature of the complaint. Miss Liles was having some difficulty getting the words out so Mr. Liles excused himself and went outside. Trooper Middleton gave Miss Liles complaint forms and asked her to write down what had happened. She assisted Miss Liles in the correct spelling of some of the words.

   
   

7. As soon as she realized the nature of the complaint, Middleton called her supervisor to come to the Ruskin office. The Lileses remained at the substation until the then-Corporal Shriver arrived approximately one hour after the Lileses had arrived. At this time Miss Liles still gave the appearance of being upset and of earlier crying. Shriver took custody of the statement and the Lileses returned home. The complaint was duly processed by the Florida Highway Patrol, referred to the investigation branch, and investigated by Lieutenant Brown. Brown interviewed all the parties above named including Respondent. Following this investigation Respondent was dismissed from his employment with the Florida Highway Patrol.

8. Respondent presented his wife and a female friend of his wife to testify that they had never heard Respondent make comments about the anatomical parts of the female body, and that such comments would be inconsistent with their impression of Respondent's character. In his testimony Respondent confirmed all of the testimony of the Lileses except Respondent's use of the language complained of, which he denied. Although all witnesses had testified that the weather was mild on the evening in question, Respondent testified Miss Liles rolled up her window because she was cold and he then returned to the patrol car. Respondent also testified that he had always been interested in work as a law enforcement officer and was very proud of his position as a trooper in the Florida Highway Patrol.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.

   
   

10. Respondent is here charged with violating Section 943.1395(5), Florida Statutes (1984 Supp.), which provides:

    
    

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of s.943.13(1)-(10) and shall by rule, adopt revocation-of-certification procedures pursuant to Chapter 120. For the purpose of revocation, the chairman of the commission shall appoint one or more panels of three commissioners each to determine probable cause.

    
    

11. Section 943.13 (1984 Supp.) establishes qualifications for certification of law enforcement and correctional officers. Subsection (7) thereof provides:

    
    

    Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

12. It is noted that Section 943.1395, Florida Statutes, became effective October 1, 1984. Prior thereto, grounds for revocation or suspension of certificates of certification were

    contained in Section 943.145, Florida Statutes (.983). Subparagraph (3)(a), thereof provides:

    
    

    Failure of the certificate holder to maintain qualifications established in s.

    943.13 or specific standards promulgated thereunder as rules.

    
    

13. Section 943.13(7), Florida Statutes (1983), was not changed in the 1984 revision of Chapter 943.

    
    

14. The 1983 statutory provisions, which were in effect at the time the conduct occurred which forms the basis for this complaint, are identical to these provisions as reenacted effective Oetober 1, 1984. Accordingly, charging Respondent with violating the provisions of Section 943.1395 instead of Section 943.145 is a harmless error.

    
    

15. The sole issue to be resolved is whether the language which Respondent addressed to Miss Liles on the evening of April 28, 1984, demonstrates lack of good moral character. Conduct or language cannot be taken out of context to reach this conclusion. Here, we have a young woman stranded on a highway at night in a car out of gas-and an armed state trooper in full uniform from the Florida Highway Patrol. Being stranded on a highway at night is not a situation without some perceived peril to a young woman. That sense of danger should certainly have been allayed by the arrival of Respondent with the aura of protection vested in his uniform and clearly marked patrol car. Under these circumstances one who shatters the illusion of safety by use of such language as was employed by Respondent toward this stranded young woman has demonstrated lack of good moral character.

    
    

16. Evidence that Miss Liles had taken a lie detector test and Respondent had declined to do so following the investigation conducted by the Florida Highway Patrol was objected to and ruling on that objection was reserved. That objection is now sustained. Although Respondent's refusal to take a lie detector test may not be admissible in evidence against him because of his rights under the Fifth Amendment, this evidence is also inadmissible for the purpose offered. That is so because the evidence was offered to corroborate Miss Liles' propensity for truth before her credibility had been challenged. Evidence of reputation for truth and veracity of a witness is not admissible before the truthfullness of the witness is called into question.

    As stated in West's Florida Practice Vol. 5, Florida Evidence at Section 609.1:

    
    

    Evidence of a witness' good reputation for truth and veracity is inadmissible until the credibility of the witness is attacked, per Section 610.2 infra.

    
    

17. Accordingly, all evidence regarding polygraph examinations is rejected and has not been considered in arriving at the conclusions reached.

    
    

18. From the foregoing it is concluded that charging Respondent with violating the provisions of Section 943.1395. Florida Statutes (1984 Supp.), was harmless error since the underlying charge, to wit: Section 943.13(7), Florida Statutes (1983), was unchanged in the 1984 revision and that the language used by Respondent to Miss Liles demonstrates lack of good moral character under the circumstances extant at the time these words were uttered. It is

RECOMMENDED that the certification of Thomas K. Morgan as a law enforcement officer be revoked.

ENTERED this 29th day of August, 1985, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985.

COPIES FURNISHED:

Joseph S. White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

William S. Lancaster, Esq.

13539 North Florida Avenue, Suite 1

Tampa, Florida 33612

Daryl G. McLaughlin, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32802

Robert R. Dempsey, Executive Director Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 85-001533

Orders for Case No: 85-001533