Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on December 9, 2009, in Tallahassee,
Florida.
For Petitioner: Keith W. Weidner, Esquire
Taylor, Warren & Weidner, P.A. 1823 North 9th Avenue Pensacola, Florida 32503-5270
The issue presented is whether Petitioner Amber Renae Baker has met her burden of proving actual innocence, thereby entitling her to compensation under the Victims of Wrongful Incarceration Compensation Act.
Petitioner Amber Renae Baker filed with the Circuit Court in and for Escambia County, Florida, a Petition alleging that she is eligible for compensation under the Victims of Wrongful Incarceration Compensation Act, Chapter 961, Florida Statutes. The Petition remains pending in that Court as Case No. 2006 CF 001468 A.
As required by Section 961.04, Florida Statutes, Circuit Judge Nickolas P. Geeker determined that Petitioner is eligible for compensation because she is not ineligible due to other felonies. Because Respondent State of Florida contests the nature, significance, or effect of the evidence of Petitioner's actual innocence or the facts related to the Petitioner's alleged wrongful incarceration, the Circuit Judge on May 9, 2009, entered an Order transferring Petitioner's Petition to the Division of Administrative Hearings for findings of fact and a determination as to whether Petitioner's evidence of actual innocence, based upon clear and convincing evidence, establishes that she is a wrongfully incarcerated person.
Petitioner's attorney filed a copy of that Order with the Division on October 21, 2009. Thus, the December 9, 2009, hearing was conducted, as required by Section 961.03(6)(a), Florida Statutes, within 120 days after the Order was filed with
the Division but not within 120 days after the Petition would have been transferred by the Court if such had occurred.
Section 961.03(6)(c), Florida Statutes, requires this Recommended Order setting forth findings of fact and a recommended determination to be entered within 45 days after adjournment of the hearing and filed with the Circuit Court. This Recommended Order is entered timely pursuant to that statutory deadline.
Petitioner testified on her own behalf. The State of Florida presented no witnesses. Joint Exhibits numbered i-x were admitted in evidence, as was State's Exhibit numbered 1. The parties agreed that no court reporter would attend the evidentiary hearing, and, therefore, there is no transcript.
Petitioner Amber Renae Baker was born on November 25, 1963. At the time of her conviction, she was 43 years of age.
On March 28, 2006, Petitioner was charged with racketeering, in violation of Section 895.03(3), Florida Statutes, relating to her participation in her brother's escort service, which was in fact an organized prostitution ring.
On April 16-20, 2007, Petitioner was tried before a jury in Escambia County, Florida, on one count of racketeering. She stood trial along with her brother, Dallas Baker, who was tried on a count of racketeering and for procuring a person
under the age of eighteen for prostitution, and her mother, Mary Helen Baker, who was tried for racketeering as well.
During the trial, Petitioner made a motion for judgment of acquittal, arguing that the State did not produce evidence that Petitioner knowingly participated in a pattern of racketeering activity, to wit: that the State of Florida did not produce any evidence that Petitioner knew that any of the women hired by her brother to provide escort services (a legal activity) was also providing prostitution services. Petitioner further argued that the State did not produce sufficient evidence that Petitioner intended to assist in perpetuating anything more than an escort service. The trial court denied Petitioner's motion for judgment of acquittal.
The jury convicted all three defendants on all charges.
Petitioner was sentenced to thirty-four and one-half months of imprisonment.
On September 22, 2008, the First District Court of Appeal issued an Opinion reversing the trial court's denial of Petitioner's motion for judgment of acquittal. Baker v. State of Florida, 990 So. 2d 1221 (Fla. 1st DCA 2008). The District Court found, as a matter of law, that the State failed to present sufficient evidence to prove that she agreed to secure another person for prostitution or otherwise violated Section 769.07, Florida Statutes.
Petitioner was released from incarceration on October 9, 2008. By the time she was released, Petitioner had been incarcerated for 540 days.
Petitioner has never been convicted of any other felony in any jurisdiction.
From 1995 through at least 2005, Petitioner answered the telephone for her brother's escort service from 1:00 p.m. until 3:00 a.m. seven days a week, arranging dates for the callers with the women who worked for her brother. When a call came in, she would describe the different girls that were available by height, weight, hair color, and bra cup size. Then Petitioner would call the woman in whom the caller expressed interest and give her the customer's phone number. The woman would decide if she wanted to go.
Petitioner quoted to the customer, as she describes the men who called to hire a woman, the price of $150 to $200 per hour. During the "date," Petitioner would call the woman every hour to ask her if she was alright. After the "date," the woman would bring the money to Petitioner at her brother's trailer where she lived and answered the telephone.
She knew that each of the women who worked for her brother had and was required to have a "dance card," which is the slang term for an occupational license for an exotic dancer.
Petitioner contends that she did not know that her brother, with her help and her mother's help, was operating a prostitution ring. She contends that she believed that the women were simply going on dinner dates and were being paid by the customer $150 to $200 per hour to accompany a man who was also paying for dinner. She contends that she also thought that sometimes the women were hired for topless dancing or to attend a bachelor party, which meant charging the customer for four hours.
Petitioner did not testify at her criminal trial on the advice of her lawyer and of her co-defendant brother. Because she did not testify, the State was not able to offer two documents into evidence. Those documents are a letter she wrote to her mother before her arrest and the transcript of an interview of her after she was arrested.
The typewritten letter is undated and was confiscated from her home by the police when they executed a search warrant upon arresting her. In the letter she complains bitterly about her mother not loving her as much as she loved Petitioner's brother. Primarily, though, she complains bitterly that she has worked in the business for years without being paid even minimum wage. The letter also contains the following statements: (1) "And you have never cared that I could lose my kids because of this business. . . ." and (2) ". . . but I am gonna [sic] be
left in the dirt as usual answering phones that could cause me to lose my kids. "
Those statements are contrary to Petitioner's position in this proceeding that she did not know she was answering the phones and scheduling appointments for prostitution. There would be no danger of having her children removed from her custody for working in a legitimate business answering telephones and scheduling appointments. Further, photographs admitted in evidence show the condition of the trailer where Petitioner lived with her children. The conditions are deplorable and clearly unsafe. Although not obvious in the photographs, Petitioner admitted during the hearing that she allowed dog feces to remain in the trailer without removing them. Yet, she does not appear to have been worried that her children would be removed from her custody for unsafe living conditions, only for her answering the telephone for the business.
The recorded and transcribed interview of Petitioner was conducted on March 27, 2006, after her arrest. The following questions and answers are relevant to this inquiry:
Q. Did girls ever try to talk about sex with you? People having sex or people wanting some weird things?
A. They, a couple of them would try to start talking about some weird things
and I would say, I don't want to hear it.
Q. What kind of weird things?
A. I don't know, like walking on hot dogs. (Laughing)
Q. Walking on hot dogs? Were girls allowed to talk to you about, I mean, if a girl tried to talk to you about sex what would you do?
A. I would just tell them I don't want to hear about it.
* * *
Q. Okay. Do you believe the girls were having sex for money? Did you have a pretty good idea they were having sex for money?
A. Well, I guess that's what everybody assumes.
Q. Did you assume it?
A. No Audible Answer.
Q. Is that a 'yes'
A. Um, what else can you assume?
* * *
Q. Really? Okay. Is there anything that you can think about that you can tell me why you would believe or what would make you think that Dallas knew the girls were having sex for money?
A. I don't know. I, that's the way it's done on t.v.
Q. What's, what's how it's done on t.v.?
A. Services.
Q. That are involved in prostitution?
A. I was hoping he wasn't doing it.
Q. Really? Did you feel he was?
A. I guess.
Q. Yes?
A. I said I guess.
* * *
Q. . . . can you think of any conversations you and your mother had about customers or the things they liked or anything like that?
A. No, just made jokes about the hot dog thing. We thought that was funny.
Q. Really? What did, what did, what did he want her to do after she walked on the hot dogs?
A. Let him eat them from between her toes.
* * *
Q. Men with feet fetishes? Never heard nothing like that?
A. I don't know, they would call and ask for somebody with pretty feet sometimes.
Petitioner, who professes to have had "a little bit of college," may well have avoided direct conversation regarding the real services offered by her brother's "escort service," but it is evident by her statements both in the letter she wrote to
her mother and in her transcribed interview that she in fact knew that sex was involved in the "dates" she arranged and that she was at risk answering the telephones because she was participating in an illegal activity.
Petitioner contends that she was an unwilling participant in her brother's business and that she was coerced into answering the telephone for the business because her brother emotionally and physically abused her and threatened her with harm. Petitioner takes two approaches in supporting her position that she was coerced by her brother into answering the telephone.
First, Petitioner testified in this proceeding that her brother abused her when she was a child by calling her names and years later by beating her. Interestingly, her letter to her mother describes her brother as a "lying, back stabbing, whore hopping, white trash dog. . . ." It appears that name- calling was not a one-way street in Petitioner's family. Similarly, in her recorded interview she explained that her brother "always beat her up," but then admitted the last time was 16 years earlier. She also explained that when he had recently started cussing at her, she "told him to go to hell." The dynamic between Petitioner and her brother does not suggest duress or coercion, as Petitioner alleges.
Petitioner's other approach to proving duress in this proceeding (rather than in the criminal proceeding where it can constitute an affirmative defense) is by the affidavits admitted in evidence by stipulation of the parties. One affidavit is that of Petitioner, which alleges her brother continuously beat and threatened her, a version not consistent with her testimony at the evidentiary hearing in this cause.
The other affidavit is from a psychologist with solid credentials who saw Petitioner twice after her release from prison. Petitioner's attorney referred her to him for a psychological evaluation. The affidavit is accompanied by the psychologist's report. Although the evaluation showed Petitioner to have "significant emotional problems," it was clear to the psychologist that Petitioner exaggerated her symptoms for the benefit of the evaluation, and her test profiles were, therefore, only marginally valid. Even with his awareness that Petitioner was not an accurate reporter as evidenced by his several references to Petitioner's obvious attempt to influence the evaluation, the psychologist opined that Petitioner needs extended treatment and medication. There is no evidence that Petitioner has followed his recommendations.
The holding in Dixon v. United States, 548 U. S. 1 (2006), makes it clear that duress is an affirmative defense and that to invoke it, a defendant must admit the crime and then
affirmatively prove that the defendant was coerced by threatened unlawful and imminent harm to commit the crime. In this proceeding, Petitioner argues, inconsistently, that she did not commit a crime and that she was forced to repeatedly perform the act which constituted the crime, i.e., arranging "dates" between customers and prostitutes over a period of approximately ten years.
Petitioner does not make a credible witness. Her varying explanations given at different times to different persons undermine her credibility. The purpose of this proceeding is not to determine whether Petitioner is guilty beyond a reasonable doubt of the crime of racketeering by participating in a prostitution ring, the determination that was made in her criminal trial and the test before the appellate court which overturned her conviction.
Rather, in this proceeding wherein Petitioner is seeking monetary compensation for her wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to establish by clear and convincing evidence that she committed neither the act nor the offense that served as the basis for her conviction and incarceration and that she did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. Further, she must prove her actual innocence by
verifiable and substantial evidence in order to meet the definition of wrongfully incarcerated person.
A review of the appellate court opinion overturning Petitioner's conviction reveals that the State presented insufficient evidence that Petitioner knew of the unlawful nature of the "dates" she arranged. It is appropriate, therefore, that Petitioner’s conviction and sentence based upon that insufficient evidence should have been vacated, and they were. However, the inability or failure of the State to prove Petitioner guilty beyond a reasonable doubt does not prove that Petitioner is actually innocent of the act or offense that served as the basis for the conviction and sentence and does not prove that she did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense.
The evidence which the State was prevented from offering at her trial by her decision not to testify-- Petitioner's letter to her mother and her statements during her recorded interview--and which, therefore, was not before the appellate court conflicts with Petitioner's testimony that she is innocent. That evidence is not verifiable and substantial evidence of Petitioner's actual innocence, which is the quality of evidence the Statute requires in this proceeding. Further, Petitioner's statements to the psychologist and his conclusions regarding her mental health are not verifiable and substantial
evidence of Petitioner's actual innocence. Lastly, Petitioner’s own testimony denying her guilt is not verifiable and substantial evidence of her innocence.
Petitioner argues that since Chapter 961, Florida Statutes, does not provide a definition of “actual innocence,” the definition should be the one found in Black's Law Dictionary. Petitioner's argument is not persuasive. The statutory scheme under which Petitioner seeks monetary compensation in this proceeding requires more than meeting a definition in a dictionary; it requires a certain quality and quantity of evidence.
The Statute regulating this proceeding does not consider the legal sufficiency of the evidence as did the appellate court when it reversed Petitioner's conviction and as does Black's Law Dictionary. Rather, the Statute seeks a determination of the factual sufficiency of the evidence by requiring the undersigned to make findings of fact as to Petitioner’s actual innocence if proven by verifiable and substantial evidence. In other words, proof of factual innocence is required. Perhaps the reason the Statute does not contain its own definition of actual innocence is that the Legislature intended the words to have their plain, ordinary meaning.
Based upon the evidence before the trial court, the appellate court found insufficient evidence proving Petitioner guilty beyond a reasonable doubt. Based upon the evidence in this proceeding, including evidence not presented to the jury in Petitioner's criminal trial and, therefore, not reviewed by the appellate court, there is no verifiable and substantial evidence proving that Petitioner is actually innocent. Accordingly, Petitioner has failed to meet her burden of proving actual innocence by clear and convincing evidence and, thus, has failed to establish that she is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act.
RECOMMENDED that an order be entered by the Circuit Judge determining that Petitioner has failed to meet her burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing her Petition.
DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2010.
Honorable Nickolas P. Geeker Escambia County Circuit Judge
M.C. Blanchard Judicial Building
M.C. Blanchard Judicial Building
Keith W. Weidner, Esquire Taylor, Warren & Weidner, P.A. 1823 North 9th Avenue Pensacola, Florida 32503-5270
