STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3891

)

EDWARD K. WHITE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held on February 15, 1995. The parties, attorneys, witnesses, and court reporter attended the hearing in Ft. Myers. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Attorney Nancy C. Waller

Regional Legal Advisor

Florida Department of Law Enforcement 4211 North Lois Ave.

Tampa, Florida 33614-7774

For Respondent: Douglas L. Wilson

The Wilson Law Firm 680 Sanctuary Road

Naples, Florida 33964-4837 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent lied to investigators during an internal investigation with the intent of misrepresent his off-duty activities.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 2, 1993, Petitioner alleged that Respondent, while a certified law enforcement officer with the Florida Highway Patrol, lied to investigators during an internal investigation with the intent to mislead as to his off-duty activities. Petitioner alleged that Respondent thereby violated Sections 943.13(7) and 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code, in failing to maintain good moral character.

By Election of Rights filed May 11, 1993, Respondent contested the allegations and demanded a formal hearing.

At the hearing, each side called three witnesses. Petitioner offered into evidence five exhibits, which were all admitted. Respondent offered into evidence six exhibits, which were all admitted except for Respondent Exhibits 5 and 6.

The transcript was filed March 6, 1995. Rulings on timely filed proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. Respondent is a certified law enforcement officer, holding certificate number 08-90-002-02, which was issued December 7, 1990.

   
   

2. Respondent was born June 12, 1966. He was raised in the Harlem area of Clewiston. Everyone knows each other in the Harlem area, which contains a predominantly black population of 3000-4000 persons.

   
   

3. Since he was six years old, Respondent's best friend was

   John Gowdy. They are the same age and grew up in the same neighborhood. Together, they went to school, worked, and played sports. Respondent was a well-known football player when younger. Respondent and John entered the military at about the same time.

   
   

4. Once he finished high school, Respondent realized that there was not enough money for him and his sisters to go to college, so he joined the Air Force. He served for nearly six years without any problems and received an honorable discharge. He immediately entered the Florida Highway Patrol academy. In the meantime, John Gowdy had entered the banking profession and moved to the Miami area.

   
   

5. Respondent successfully completed the academy on December 7, 1990. He was immediately assigned to the Florida Highway Patrol post in Ft. Myers and began the required one-year probationary period.

   
   

6. On August 14, 1991, about eight months after joining the Florida Highway Patrol, Respondent's sister told him that their mother was ill with heart trouble. Respondent had been working evenings, so, after work, he drove from Ft. Myers to Clewiston, arriving at his mother's house in the morning. After taking her to the doctor's office and getting her medicine, Respondent was at home with her when Shelton Gowdy drove up and asked if he could service the transmission on Respondent's car.

   
   

7. Shelton was John's younger brother. Shelton has twice served time in prison. Though they were not friends, Respondent

   allowed Shelton to earn some money by working on Respondent's car whenever he was in Clewiston visiting his mother or the mother and family of Shelton and John Gowdy.

   
   

8. Respondent told Shelton he could take Respondent's car and service the transmission. Shelton drove the car to his mother's house to work on the car.

   
   

9. Later in the day, Respondent went to the home of Shelton's mother and checked on his car. Shelton said that he needed a light bulb to fix a parking light, so Respondent allowed Shelton to drive the car downtown to get the bulb.

10. In the meantime, Respondent talked to Shelton's mother and sister, with whom Respondent has remained close over the years. Respondent watched television with them and was not particularly concerned that Shelton was gone several hours with the car.

    
    

11. While driving Respondent's car, Shelton picked up Norman Banks and, while cruising, noticed a white couple driving a pickup truck in the Harlem area, near the home of Respondent's mother. Respondent, Shelton, and Mr. Banks are black. The white couple were undercover deputies of the Hendry and Collier County Sheriff Departments.

    
    

12. The pickup truck and Respondent's car pulled over to the side of the road, side by side. Respondent's car was mostly still in the road. The two vehicles were about three or four feet apart.

    
    

13. The driver of the truck remained in his seat, which

    was considerable higher than the seats of the passenger car. The driver of the truck was closest to the car's front passenger window.

    
    

14. Shelton got out of the driver's side of the car, walked behind the car, and approached the driver of the truck. Quickly, they negotiated the sale of crack cocaine from Shelton to the undercover deputy. Just as quickly, the transaction ended and the deputy drove away.

    
    

15. The deputy driving the truck later identified Respondent as the passenger in the car driven by Shelton. The deputy on the passenger side of the truck could not see Shelton's passenger.

    
    

16. The lighting was poor. The deputy driving the truck could not closely scrutinize the passenger because he had to remain alert to possible trouble from the approaching driver, as well as possible unseen assailants elsewhere in the vicinity.

    
    

17. The deputy who identified Respondent did not seem credible as a witness. He seemed ill at ease and nervous while testifying. He originally identified Respondent in a photo lineup. When shown a photocopy of the same photo lineup during his deposition, the deputy declined to identify Respondent, though he claimed that the quality of the photocopy did not prevent him from identifying Respondent. Even after being assured by Respondent's counsel that Respondent would not hold the deputy liable for a misidentification, the deputy continued to refuse to make the identification and insist on the original photographs, despite claiming that he recognized the passenger from the photocopies of the photographs.

    
    

18. Although the deputy who identified Respondent denies seeing a baseball cap on the passenger, someone besides Respondent mentioned a cap to the Florida Highway Patrol internal investigator who later conducted the internal investigation. He recalls that someone said that the passenger wore a baseball cap, possibly turned around backwards. Mr. Banks typically wears a baseball cap backwards.

    
    

19. The internal investigator reports reliably that Respondent was very nervous during an interview. However, Respondent was still on probation and aware that he was under investigation for some offense, but he was unsure of the nature of the offense. The internal investigator reports less reliably that Respondent was evasive during the interview. In fact, Respondent's inability to

    recall what he was doing on August 14 was because he had not been previously told of the specific allegations, including the date of the alleged offense.

    
    

20. The important facts of the case are that the passenger in the car with Shelton was very dark skinned. Respondent is very dark skinned. The identification by the white deputy, in poor lighting, is further undermined by the different heights of the vehicles, the brevity of the transaction, and the urgency of remaining alert to possible dangers from any direction. The identification by the deputy is also undermined by his refusal to identify Respondent in a photocopy of the photo lineup, despite

    saying that he could do so. The uneasiness of the deputy during testimony could be due to any of a number of factors, such as growing concern over the accuracy of the identification.

    
    

21. Respondent's testimony was straightforward and honest. His alibi witnesses were obviously biased in his favor and may have supplied facts that they never knew or no longer recall. For instance, they both testified that Shelton returned before 9:00 pm when the transaction likely did not take place until shortly after 10:00 pm.

    
    

22. Petitioner's case is not aided by the general circumstances. Respondent does not appear to have gotten into much trouble during his life, including for nearly six years under close supervision in the Air Force. To the contrary, by all indications, he appears to have been an honest, hard-working, and purposeful young man.

    
    

23. Yet, Petitioner suggests that Respondent, having recently become a Florida Highway Patrolman, would sit as a passenger in his own car, allowing a twice-convicted person to drive in search of a drug deal. Moreover, Petitioner suggests that Respondent, with his side window open, would accompany Shelton on his criminal errand in the neighborhood where Respondent's mother lives and where Respondent is known to most of the residents. Petitioner never deals with the incongruity of this proposed behavior by a person of Respondent's apparent character. A person so stupid or disturbed as to attempt what Petitioner suggests almost surely would have stumbled much

    earlier in life.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

25. Section 943.13(7) requires that a law enforcement officer maintain "good moral character."

    
    

26. Section 943.1395(6) provides that the Criminal Justice Standards and Training Commission, upon a finding of the failure to maintain good moral character, may impose revocation, suspension, or probation, require additional education, or issue a reprimand.

    
    

27. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

28. The Administrative Complaint charges that Respondent "did . . . unlawfully and knowingly make false statements, concerning material matters, to

    investigators from the Florida Highway Patrol, during an internal investigation, with the intent to mislead said investigators in regard to this off-duty activities." During discovery, Petitioner made it clear that the allegations involved Respondent's denial of being present during the drug sale by Shelton.

    During the hearing, Petitioner attempted to add another off-duty activity-- association with suspected felons. However, Petitioner had not given Respondent adequate notice of this charge, and Petitioner was limited to the question whether Respondent lied about being present during the drug deal.

    
    

29. Petitioner has failed to prove that Respondent was present and thus failed to prove that Respondent lied to the internal investigator about his involvement in the drug deal between Shelton and the undercover deputy.

RECOMMENDATION

It is hereby

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint against Respondent.

ENTERED on April 21, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on April 21, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-2: adopted or adopted in substance. 3-5: rejected as subordinate.

6-7 (except last sentence): adopted or adopted in substance.

1. (last sentence): rejected as irrelevant as this fact was not known to Respondent.

2. (except last sentence): rejected as recitation of evidence.

8 (last sentence)-12: adopted or adopted in substance. 13: rejected as subordinate.

14 (first sentence and first clause of second sentence): adopted or adopted in substance.

14 (remainder)-15: rejected as unsupported by the appropriate weight of the evidence.

16: rejected as unsupported by the appropriate weight of the evidence, subordinate, and recitation of testimony.

17: adopted or adopted in substance. 18-23: rejected as subordinate.

24: adopted or adopted in substance. 25: rejected as subordinate.

26: rejected as unsupported by the appropriate weight of the evidence. 27: rejected as subordinate and recitation of testimony.

28: adopted or adopted in substance.

29-34: rejected as recitation of evidence. 35-36: rejected as subordinate.

37: adopted except to the extent that she and Respondent were together during the time of the drug deal watching television.

38 (first sentence): adopted or adopted in substance.

38 (remainder): rejected as unsupported by the appropriate weight of the evidence, subordinate, and recitation of testimony.

39: rejected as recitation of evidence. 40: rejected as subordinate.

41-43: adopted or adopted in substance except that the evidence is that he was nervous but not evasive. The information received indirectly from Officer Gary was enough only to alert Respondent that he was in some sort of trouble, not enough to alert him to the specifics of the allegations so that he could have been prepared to rebut the charges. By this time, Respondent probably knew that Shelton had used Respondent's car for a drug transaction and thought that Respondent would be in trouble for that.

44-55: rejected as recitation of evidence and subordinate.

56: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence.

57-58: rejected as irrelevant.

59: rejected as unsupported by the appropriate weight of the evidence and subordinate.

Rulings on Respondent's Proposed Findings

1-9: adopted or adopted in substance.

10-11: rejected as subordinate and recitation of testimony. 12-15: adopted or adopted in substance.

16-17: rejected as subordinate.

18-19: rejected as recitation of evidence and subordinate. 20-22: adopted or adopted in substance.

COPIES FURNISHED:

A. Leon Lowry, II Director

Division of Criminal

Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302

Michael Ramage

Acting General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

Attorney Nancy C. Waller Regional Legal Advisor

Florida Department of Law Enforcement 4211 North Lois Ave.

Tampa, FL 33614-7774

Douglas L. Wilson The Wilson Law Firm 680 Sanctuary Rd.

Naples, FL 33964-4837

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

CRIMINAL JUSTICE STANDARDS AND TRAINING

COMMISSION

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs CASE NUMBER: L-325

DOAH NUMBER: 94-3891

EDWARD K. WHITE,

Certificate No.: 08-90-002-02

Respondent.

/

FINAL ORDER

This matter came before the Criminal Justice Standards and Training Commission (the Commission) at a public meeting on October 27, 1995, in Daytona Beach, Florida. It was alleged by Administrative Complaint that the Respondent had violated specified sections of Chapter 943, Florida Statutes, and Chapter 11B-27, Florida Administrative Code. In accordance with s120.57(1), Florida Statutes, a formal hearing was held on this matter, and a Recommended Order was submitted by a Hearing Officer from the Division of Administrative Hearings

(DOAH) to the Commission for consideration. Petitioner and Respondent filed exceptions to the Recommended Order, a copy of which is attached and incorporated herein by reference.

The Commission has reviewed the Administrative Complaint, the Recommended Order, the exceptions filed by Petitioner and Respondent, the transcript of the formal hearing, the documentary evidence introduced at the formal hearing, and other pertinent documents in the case file; has heard arguments of counsel: and is otherwise frilly advised in the matter. The Commission finds as follows:

1. Standards for Review

   
   

   Under s120.57(1)(b)10, Florida Statutes, the Commission may reject or modify the Hearing Officer's conclusions of law and interpretations of administrative rules in the Recommended Order. The Commission, however, may not reject or modify the Hearing Officer's findings of fact unless the Commission determines from a review of the complete record that 1) those findings of fact were not based on competent substantial evidence or 2) the proceedings on which the findings of fact were based did not comply with the essential requirements of the law.

   
   

   The Florida Supreme Court, in De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957), defined "competent substantial evidence" to be evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached."

   
   

   Additionally, the Commission may not reweigh the evidence, resolve conflicts in the evidence, judge the credibility of witnesses or otherwise interpret the evidence anew simply to fit its desired conclusion. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).

   
   

   Nor may the Commission reduce or increase the recommended penalty in the Recommended Order without first reviewing the complete record. s 120.57(1)(b)10, Florida Statutes.

   
   

2. Rulings on Exceptions

   
   

   1. Petitioner filed a number of exceptions to the Hearing Officer's findings of fact in the Recommended Order. Before the Commission, Petitioner narrowed its exceptions to particular findings of fact in paragraphs 17 and 20 as they relate to the credibility of the deputy who identified Respondent as being a passenger in his own car when a drug transaction was conducted by another person driving that car. The Commission agrees that, while the Hearing Officer could properly give Respondent's testimony whatever weight the Hearing Officer deemed appropriate, the record before the Commission demonstrates that the deputy was forthright and honest in his testimony. The Commission, however, is bound by the standards for review outlined above. Therefore, the Commission will not reject the Hearing Officer's ultimate factual finding that Respondent was not in his car when the deputy made a drug buy from the car's driver.

      
      

   2. Respondent filed a number of exceptions to the Hearing Officer's rulings on Respondent's proposed findings of fact. The Commission, finding that these exceptions are not relevant to the Commission's disposition of this case, rejects Respondent's exceptions.

3. Finding of Fact

   
   

   The Hearing Officer's findings of fact in paragraphs 1 through 23 of the Recommended Order -- with the above-noted exception of the findings regarding the deputy's credibility in paragraphs 17 and 20-- are approved, adopted and incorporated herein by reference.

   
   

4. Conclusions of Law

The Hearing Officer's conclusions of law in paragraphs 24 through 29 of the Recommended Order are approved, adopted and incorporated herein by reference.

It is therefore ORDERED AND ADJUDGED that the Administrative Complaint filed in this matter is hereby DISMISSED with prejudice.

This Final Order will become effective upon filing with the Clerk of the Department of Law Enforcement.

SO ORDERED this 7th day of December, 1995. CRIMINAL JUSTICE STANDARDS

AND TRAINING COMMISSION

WILLIAM A. LIQUORI CHAIRMAN

NOTICE

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT OF LAW ENFORCEMENT, P.O. BOX 1489, TALLAHASSEE, FLORIDA 32302-1489, AND BY FILING A SECOND COPY OF THE NOTICE OF APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL IN ACCORDANCE WITH RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE. SUCH NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to EDWARD K. WHITE, 8700 North 50th Street, Apartment 1422, Tampa, Florida 33617, and Douglas L. Wilson, Esquire, 680 Sanctuary Road, Naples, Florida 33964-4837 by U.S. Mail on or before 5:00 P.M., this 7th day of December,

cc: Florida Department of Highway Safety and Motor Vehicles

Docket for Case No: 94-003891

Orders for Case No: 94-003891