STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0716

)

JOHN J. MELTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on September 6, 1989 in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John Rosner

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Rodney W. Smith, Esquire

Post Office Box 628 Alachua, Florida 32615

STATEMENT OF THE ISSUES

Whether or not Respondent is guilty of violating Sections 943.1395(5) and

(6) and Section 943.13(7) F.S. and Rule 11B-27.0011(4) (a) F.A.C. so as to subject his certification to discipline by the Criminal Justice Standards and Training Commission.

PRELIMINARY STATEMENT

At formal hearing, Petitioner presented the oral testimony of Jimmie Collins, Franklin Kaymore, Willie Johnson, Princess Robinson, Connie Hodges, and Elbert Michael Grant. Respondent testified on his own behalf. Hearing Officer's Exhibit A was the only exhibit admitted in evidence.

Various motions to dismiss are discussed within the Conclusions of Law, infra.

A transcript was provided. Neither party timely filed proposed findings of fact.

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice Standards and Training Commission on March 26, 1976 and holds Certificate No. 02-16273. At all times material hereto, he has been a certified law enforcement officer in the State of Florida.

   
   

2. At the request of the Putnam County Sheriff's Department, the Florida Department of Law Enforcement (FDLE) conducted an independent investigation into suspicions and allegations that Respondent, a Putnam County Deputy Sheriff, had knowingly and unlawfully as a public servant requested, solicited, accepted, or agreed to accept pecuniary or other benefits not authorized by law, for performance or non- performance or an act or omission of an act within Respondent's discretion as a law enforcement officer or in violation of his public duty. Specifically, the Sheriff had a tip or a rumor to the effect that the Respondent had failed to enforce Chapter 893, "The Florida Comprehensive Drug Abuse Prevention and Control Act," for pecuniary compensation or other benefit and that the Respondent did unlawfully agree, conspire, combine or confederate with Franklin Kaymore and others to commit the crime of "unlawful sale or delivery of, or unlawful possession with intent to sell or deliver cocaine" at some unspecified time or times between May 1, 1985 and December 20, 1985.

   
   

3. The FDLE investigation was spearheaded by Special Agent Jimmie Collins and focused on Franklin Kaymore, a dealer in narcotics in Palatka, Putnam County. When approached by Collins' confidential informer (CI), Kaymore told the CI to get away from him. Investigator Collins made two cognitive leaps of faith based on this reaction of Kaymore's: First, that Kaymore knew the CI was associated with law enforcement, and second, that Respondent or another "leak" in the Putnam County Sheriff's Department had tipped off Kaymore to the drug investigation and to the CI's true identity as a "narc." However, there is no direct evidence to support either of Collins' inferences.

   
   

4. The initial tipster concerning both Kaymore and Respondent as conspiring to sell or deliver drugs and concerning Kaymore paying Respondent not to enforce Florida drug laws was one Waddell Johnson, and Collins conceded that Waddell Johnson had admitted at their initial interview that it had been Respondent who had arrested him and Kaymore had given evidence to convict him or at least had not been prosecuted for Johnson's and Kaymore's joint offense.

   (See Finding of Fact 9, infra.) Collins further conceded that Waddell Johnson, two members of the Putnam County Sheriff's Office, and Collins' Palatka Police Department contact could have "leaked" information on his investigation as easily or more easily than Respondent. Collins' investigation revealed nothing to involve Respondent with Kaymore's drug dealing money, and Collins never recovered any unlawful contraband or money or specific benefits that could be shown to have flowed from Kaymore to Respondent. Kaymore testified that he actually got his information concerning drug enforcement from some of his own street salesmen of drugs who were doubling as police "snitches."

   
   

5. Franklin Kaymore, the admitted drug dealer, now incarcerated on fraud and forgery charges, had been a neighborhood acquaintance of Respondent in Palatka, Florida, for approximately 20 years. Throughout this period of time, Kaymore was one of those community characters without visible steady employment but who always had money to spend or to loan to others. Many people borrowed money from him over the years, including Respondent. For years, Kaymore's employments were transient and unsteady but existed sporadically, and he was known in the community to be a proficient and extraordinarily successful dog

   track gambler, pool hustler and crap shooter. Presumably, he also collected interest on his various loans. Occasional legitimate jobs in demolition, electronics installation, and migrant labor and in the foregoing borderline activities camouflaged Kaymore's true income sources, but he was also widely rumored to be dealing in illicit drugs.

   
   

6. At some point in 1984 or 1985, Kaymore "took up" with Celestine Cross a/k/a Lisa Cross, the Respondent's goddaughter. This brought Kaymore and Respondent into a much closer relationship than before. On one occasion, the Respondent and his wife visited Kaymore because their goddaughter had moved in with him, and in Respondent's presence, Kaymore denied a point-blank question from Respondent's wife as to whether or not he was dealing drugs.

   
   

7. By the time in 1985 that the whole of Kaymore's income was derived from drug dealing, he and Respondent's goddaughter were openly living together in a new house, rented from Respondent's cousin. Respondent and his wife helped them move and settle in, and Respondent then often visited in their home. Kaymore testified that he warned his drug customers and street salesmen not to come to his house when they saw the Sheriff's car which Respondent drove or Respondent's wife's car in his driveway; that he "always have had respect for [Respondent about] doing my business" and did his drug sales out of Respondent's sight; and that he often sent potential drug customers to his street operatives just to keep them away from his house. On the other hand, Kaymore assumed that although Respondent never saw money or "boosted," i.e., stolen, goods exchanged to Kaymore for drugs, Respondent "must have known" Kaymore was selling and trading for drugs. Therefore, after he was "busted" in 1986, in his quest for a "deal," Kaymore expressed this latter opinion to law enforcement officers in the course of negotiating his and "Lisa's" plea bargain.

   
   

8. In 1985, Respondent had borrowed approximately $300-$400 from Kaymore, and Respondent's wife accepted some dresses as a gift from Kaymore. The details of the loan or its repayment, if any, are not in evidence, but there is also no evidence that Respondent did anything or refrained from doing anything either personally or in his official capacity as a law enforcement officer in order to get the loan from Kaymore. Kaymore had also previously loaned Respondent money before Respondent entered law enforcement and before Kaymore began to deal drugs for a living. Kaymore categorically denied that Respondent ever offered him protection or threatened prosecution in exchange for the loan in 1985. The only inference possible from all the evidence is that the dresses were "boosted" by one of Kaymore's drug customers, were accepted by Kaymore in exchange for drugs, and were then passed off by Kaymore to Respondent's wife because the dresses were not "Lisa's" size. However, there is insufficient credible evidence to show that either Respondent or his wife could be certain of the origin of these dresses.

   
   

9. On one occasion, Kaymore bought a stolen cassette player from Waddell Johnson. Kaymore assumed the cassette player was stolen because Johnson delivered it to Kaymore in the original Sears box with all its original paperwork. When Respondent came to Kaymore's house and viewed the cassette player, he told Kaymore that it was stolen and later returned with a detective. After questioning Kaymore, Respondent and the detective impounded the stolen cassette player and told Kaymore he would have to be a witness against Johnson. Apparently, Kaymore admitted he knew the cassette player was stolen, and the detective, not Respondent, made a deal for his testimony against Waddell Johnson. Kaymore was not charged or prosecuted, and he did not have to testify, but there is no evidence Respondent had anything to do with that result.

10. Willie Johnson, a former runner and drug customer of Kaymore's during the period of time material to these proceedings, also was once arrested by Respondent. In Willie Johnson's view, the arrest was "for something I didn't do," and he was in fact released after seven days. Nonetheless, Willie Johnson presented no evidence to clearly show Respondent had knowledge of any drug dealing. According to Johnson, he had bought drugs in Kaymore's house while the Respondent was there, but he did not fear arrest by Respondent since the drug transaction occurred out of Respondent's sight in another part of the house. Elbert Grant knew Kaymore sold "reefer and cocaine" from his house but Respondent was never present when Grant was buying drugs at Kaymore's house, and Grant had no knowledge of whether Respondent ever saw any outside drug transactions.

    
    

11. The testimony of Princess Robinson, a convicted felon with a long history of retail theft convictions, was not directed to the charges within the four corners of the Administrative Complaint. It was also not credible.

    
    

12. The testimony of Connie Hodges was internally unreasonable and not credible upon the application of simple logic and further was not credible because of Ms. Hodges' clear bias against Respondent due to prior arrests he had participated in either directly or peripherally. The external credibility of Hodges' testimony was utterly destroyed by her observable lack of candor and demeanor on the stand, which demeanor clearly demonstrated Hodges' current substance abuse. Moreover, Hodges, who maintained she is currently "clean", acknowledged that her former drug ingestion had affected her reason and judgment and that her memory as of the date of formal hearing was unclear.

    
    

13. The criminal charges filed against Respondent in connection with all events material hereto have been heard before the Circuit Court in Putnam County and have been either dismissed or tried by jury trial with a verdict of "not guilty".

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See Section 120.57(1) F.S.

    
    

15. The charges of the Administrative Complaint specifically read as follows:

    
    

    1. a) On or about the first day of May, 1985, and continuing up to the 31st day of December, 1985, Respondent John J. Melton, did knowingly and unlawfully as a public servant, to wit: a Putnam County Sheriff's Deputy, corruptfully request, solicit, accept, or agree to accept pecuniary or other benefits not authorized by law, for past, present, or future performance, non- performance, or violation of any act or omission which the person believed to be or John J. Melton represented to be either within his official discretion as a law enforcement officer, or in violation of his public duty, to wit: did fail to enforce Florida Statute, 893, the Florida Comprehensive Drug Abuse Prevention and

       Control Act and did receive pecuniary compensation.

       1. On or between the 1st day of May, 1985 and the 31st day of December, 1985, Respondent John J. Melton, did knowingly and unlawfully as a public servant, to wit: a Putnam County Sheriff's Deputy, corruptly request, solicit, accept, or agree to accept for himself or another a pecuniary or other benefit with an intent or purpose to influence the performance of any act or omission which the person believed to be, or the law enforcement officer represented as being within his official discretion as a public servant, in violation of his public duty, or in performance of his public duty, to wit: did receive pecuniary benefits for acts of omission or violations of his public duty.

       2. Between the 1st day of May, 1985, and the 20th day of December, 1985, the Respondent John J. Melton did unlawfully agree, conspire, combine or confederate with Franklin Kaymore and others to commit the crime of Unlawful Sale or Delivery of or Unlawful Possession with Intent to Sell or Deliver Cocaine.

       3. On or about the 30th day of October, 1986, the Respondent John J. Melton did assist or aid Charles Harris knowing that he had committed a felony, to wit: Kidnapping and Aggravated Assault with a Deadly Weapon, by receiving a firearm used in the said crimes and unlawfully and intentionally keeping the said firearm in his possession, with the intent that Charles Harris avoid or escape detection, arrest, trial or punishment.

          
          

16. At the close of all testimony, Petitioner moved to dismiss Count 2d), which was treated as a voluntary dismissal with prejudice which requires no ruling. By operation of law Count 2d) is therefore dismissed. There is no evidence at all supporting this charge, anyway. Respondent moved to dismiss Count 2c), to which motion Petitioner agreed, and should accordingly be dismissed with prejudice. There is insufficient evidence to sustain this charge, also.

    
    

17. Respondent moved to dismiss Counts 2a) and b) and upon the foregoing findings of fact that motion is well-taken.

    
    

18. This case demonstrates the classic situation in which "everybody" in the community "knew" that "something" was going on and "assumed" the law enforcement officer knew it, too. Clearly, drug-dealing or trafficking was going on, and one may argue that Respondent morally should have known about it and taken steps to end it, but there is no evidence whatsoever to prove clearly and convincingly, as required by Ferris v. Turlington, 510 So.2d 292 (Fla. 1987), that the Respondent took money or benefits to look the other way or even

    that he had any "usable" evidence to back up any charges, had he brought them. Also, even if Respondent morally "should have known" what was going on, it remained a judgment call as to how soon and under what circumstances he could have proceeded to do more than he did.

    
    

19. There is simply insufficient credible evidence in this record to support any of the charges against Respondent.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Administrative Complaint.

DONE and ENTERED this 13th day November, 1989, at Tallahassee, Florida.

ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1989.

COPIES FURNISHED:

John Rosner

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Rodney W. Smith, Esquire Post Office Box 628 Alachua, Florida 32615

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 89-000716

Orders for Case No: 89-000716