vs.
Respondent.
Case No. 13-3877PL
On December 10, 2013, Administrative Law Judge Lisa Shearer Nelson of the Florida Division of Administrative Hearings conducted a duly-noticed hearing in Marianna, Florida.
For Petitioner: Linton B. Eason, Esquire
The issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a), and if so, what penalty should be imposed.
On June 21, 2013, Petitioner, the Criminal Justice Standards and Training Commission (Petitioner or the Commission), filed an Administrative Complaint against Respondent, Ashley Bradie, charging her with violating section 943.1395(7) and rule 11B- 27.0011(4)(a). The factual basis for the charge is that Respondent allegedly committed a battery upon Marques White by striking him and cutting him with a box cutter, which is considered a deadly weapon.
Respondent timely filed an Election of Rights form disputing the allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1), Florida Statutes (2013).
Respondent states on her Election of Rights form that she was the victim in this case. On October 8, 2013, Petitioner forwarded the case to the Division of Administrative Hearings for the assignment of an administrative law judge.
On October 22, 2013, the case was noticed for hearing on December 9, 2013, and the case proceeded as scheduled.
Petitioner presented the testimony of George Dodson and Richard Johnson, and Petitioner‟s Exhibits 1-9, 11, and 12 were admitted into evidence. Petitioner‟s Exhibit 10, a recorded interview with the alleged victim, was rejected as hearsay. Respondent testified on her own behalf but presented no exhibits.
The one-volume Transcript of the hearing was filed with the Division on January 6, 2014. At Petitioner‟s request, the deadline for proposed recommended orders was extended to
January 24, 2014. Petitioner timely filed a Proposed Recommended Order by that date. To date, Respondent has not submitted a proposed recommended order. All references are to the 2010 codification of the Florida Statutes unless otherwise indicated.
Respondent is a certified corrections officer in the State of Florida, to whom Petitioner has issued certificate number 249713.
On or about April 9, 2011, at approximately 2:00 a.m., Officer George Dodson of the Cottondale Police Department responded to a disturbance call at the Cottondale Villas at 3111 Willow Street in Cottondale, Florida.
Officer Dodson found a group of people in the parking lot, including Respondent. There was a large amount of blood on the ground. Ms. Bradie had a cut on her hand that was wrapped in a cloth, and denied knowing how her hand was cut.
Officer Dodson spoke to several people at the location, and the consensus was that Ms. Bradie had cut Mr. Marques White with a box cutter. None of the people with whom he spoke testified at hearing. No box cutters were found at the scene.
Mr. White was not present at the scene. He returned at approximately 4:00 a.m., but was still bleeding and could not really speak.
Officer Dodson did not take statements from anyone at the scene because, other than Ms. Bradie, all of them appeared to be intoxicated. He did recall Ms. Bradie saying she was struck in the face, but does not recall her face being swollen.
The next day, Officer Dodson learned that Mr. White had returned to the hospital because of his injuries, which were serious. Pictures taken of Mr. White show a scar on his lip and arm, and a scar resulting from the performance of a tracheotomy. However, there is no evidence to indicate whether Mr. White had any of these scars prior to the incident, or that all of the injuries evidenced by the scars occurred as a result of Respondent‟s actions. Officer Dodson was able to interview
Mr. White on April 15, 2011, and a witness statement/affidavit was prepared on April 17, 2011. The statement of Mr. White is hearsay, and he did not testify.
On April 15, 2011, Officer Johnson filed an affidavit/complaint and application for warrant against
Ms. Bradie for aggravated battery. An information filed June 15, 2011, charged her with aggravated battery in violation of section 784.045(1)(a)1., Florida Statutes, a second-degree felony. A warrant for Ms. Bradie‟s arrest was issued that same day.
Ms. Bradie resigned her position at the Jackson Correctional Institution on June 27, 2011.
Ms. Bradie entered a pretrial intervention program, and the charges against her were nolle prossed on February 25, 2013.
Richard Johnson is an assistant warden at the Charlotte Correctional Institution. In April of 2011, he worked in the Inspector General‟s Office at the Florida Department of Law Enforcement. Mr. Johnson investigated an administrative case against Respondent stemming from the April 2011 incident. He spoke to Mr. White, and recorded an interview with him. He did not speak with Ms. Bradie.
In sum, Petitioner proved that on April 9, 2011, Respondent was present at an altercation at the Cottondale Villas. She had a cut on her hand, and there was a large amount of blood on the pavement. All of the other people present smelled of alcohol or admitted to drinking. Petitioner presented no testimony from anyone who was present during the altercation to describe the events leading to the charges against Respondent. Further, Petitioner presented no competent evidence regarding the item allegedly used to cut Mr. White, as there was no evidence regarding the discovery of any item found at the scene.
Respondent‟s Story
Ms. Bradie testified on her own behalf. She is the only person who testified that was present during the
altercation. She testified that she went to Cottondale Villas to pick up her child from her mother, who cared for the child while Ms. Bradie was at work. When she was leaving her mother‟s apartment, she heard her brother, Lesidney, outside arguing with Marques White. According to Ms. Bradie, she put her baby in the car and told her brother to go inside, because Marques White was “not worth it.” This apparently angered Mr. White, who started arguing with her.
Ms. Bradie‟s mother came out of the apartment and tried to break up the argument. Mr. White swung around her mother in order to try to hit Lesidney, and continued arguing with both
Ms. Bradie and her brother. A bystander, Marcus Bellamy, pulled Lesidney away from the argument. At that point, Marques White jumped on Ms. Bradie and started hitting her in the face.
Ms. Bradie is five feet, one-inch tall. She testified that Mr. White had pushed her down to the ground. While she was close to the ground, she picked something up off the pavement and started swinging to try and get him off of her. While she believes she probably cut him in her effort to get free, she could not identify the object she picked up (which was never located) or say that all of his injuries were a result of her actions. There is no evidence that she deliberately tried to cut him at all, much less that she meant to cut his face.
Ms. Bradie‟s account of the events is the only evidence from a witness who was actually present at the scene, and her testimony was credible. The most persuasive and compelling testimony presented is that Ms. Bradie acted in self-defense. No evidence was present to rebut her testimony.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1).
This is a proceeding to discipline Respondent's certification as a corrections officer, in which Respondent is seeking revocation. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence “requires more proof than a „preponderance of the evidence‟ but less than „beyond and to the exclusion of a reasonable doubt.‟” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court, the standard:
Entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and
without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). “Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
The factual allegations in the Administrative Complaint to support the imposition of discipline are that Respondent “did unlawfully commit a battery upon Marcus White [sic], by actually and intentionally touching or striking said person against said person‟s will, or by intentionally causing bodily harm to said person, and in committing said battery did use a box cutter, a deadly weapon.”
Based upon this factual premise, the Administrative Complaint charges Respondent with violating section 784.045(1)(a)2. or any lesser included offenses; section 943.1395(7), and Florida Administrative Code Rule 11B- 27.0011(4)(a), by failing to maintain the qualifications established in section 943.13(7), which require that a correctional officer in the State of Florida have good moral character.
Because this is a disciplinary proceeding, the version of the statute and rules in effect at the time of the alleged actions giving rise to the disciplinary proceeding controls. Childers v. Dep‟t of Envtl. Prot., 696 So. 2d 962, 964 (Fla. 1st DCA 1997). The applicable statutory provisions have not changed since the events giving rise to this action. Rule 11B-27.0011, however, has been amended.
Battery is defined as when a person “1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person.” § 784.03(1)(a), Fla. Stat. Aggravated battery is defined in section 784.045 as follows:
(1)(a) A person commits aggravated battery who, in committing battery:
Intentionally causes great bodily harm, permanent disability, or permanent disfigurement; or
Uses a deadly weapon.
* * *
(2) Whoever commits aggravated battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Section 943.1395(7) and (8) provides:
(7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
(8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7). (b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for
prohibited conduct. The penalties must be consistently applied by the commission.
The Commission has defined the failure to maintain “good moral character” for purposes of section 943.1395(7) in Florida Administrative Code Rule 11B-27.0011(4). At the time of the alleged offense, rule 11B-27.0011(4) provided in pertinent part:
For the purposes of the Criminal Justice Standards and Training Commission‟s implementation of any of the penalties specified in section 943.1395(6) or (7), F.S., a certified officer‟s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:
The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.
Petitioner did not establish the factual basis alleged in the Administrative Complaint by clear and convincing evidence.
Petitioner sought to prove that Ms. Bradie stabbed Mr. White using a box cutter through the hearsay statements of Mr. White, who did not testify, and through the testimony of Officer Dodson, who simply reported what others had told him.
While Petitioner represented that Mr. White was not available and possibly in prison in another state, it did not offer any evidence regarding efforts to serve him or efforts to arrange for his testimony by telephone. See Fla. Admin. Code R. 28-106.213(5)(b). Moreover, Petitioner offered no exception to
the hearsay rule by which his recorded statement could be admitted. Likewise, while his written statement is admissible to show that Officer Dodson spoke to him in the course of his investigation, the content of his statement is hearsay.
Section 120.57(1)(c) provides that “hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
§ 90.801(1)(c), Fla. Stat. Statements contained in an investigative report or in a police report are ordinarily considered hearsay. Burgess v. State, 831 So. 2d 137, 140 (Fla. 2002); Harris v. Game & Fresh Water Fish Comm‟n, 495 So. 2d 806, 809 (Fla. 1st DCA 1986).
Here, Officer Dodson‟s testimony consists of what actions he took to investigate the altercation and what he was told based upon his inquiries to others. The bulk of his testimony regarding the incident cannot support a finding of fact because he was simply relating, both in his testimony and in the police report, what others told him. He had no personal knowledge of what actually happened during the altercation because he was not there. Reichenberg v. Davis, 846 So. 2d 1233,
1234 (Fla. 5th DCA 2003); Harris, 495 So. 2d at 809. The witness statement obtained as part of Officer Dodson‟s police investigation (Petitioner‟s Exhibit 4) cannot be used to prove the truth of the allegation that Ashley Bradie is the person who cut Mr. White. Avalon‟s Assisted Living, LLC v. Ag. for Health
Care Admin., 80 So. 3d 347, 351 (Fla. 1st DCA 2012); Juste v.
Dep‟t of HRS, 520 So. 2d 69, 72 (Fla. 1st DCA 1988).
Petitioner also attempted to introduce a statement of Mr. White taken by Richard Johnson as part of his investigation of the incident. This statement was not admitted, as Petitioner attempted to use it to corroborate the testimony of Mr. Johnson. However, the only thing it would corroborate is the fact that Mr. Johnson took the statement. Petitioner was not offering it for that purpose; it was offering it for the truth of the statements made by Mr. White regarding the incident.
Moreover, there was no competent evidence that Respondent used a deadly weapon in the commission of a battery. Box cutters were not found at the scene of the incident. The only evidence regarding the use of box cutters was inadmissible hearsay. Ms. Bradie admitted picking “something” up off the ground, but did not know what it was and it was never identified further. “Something” does not transform into clear and convincing evidence of the use of a deadly weapon.
Simply put, all of the evidence presented by Petitioner regarding the altercation on April 9, 2011, was hearsay. Petitioner did not establish by clear and convincing evidence that Respondent committed a battery, much less aggravated battery.
Respondent admitted hitting Mr. White during the altercation. However, her admission does not establish the violation charged for two reasons: 1) her testimony was not presented as part of the Department‟s case; and 2) her testimony presented a defense of self-defense to the charge, which the Department did not rebut.
Respondent had no burden in this case. Petitioner did not call her as a witness in its case-in-chief. It is Petitioner‟s burden, not Respondent‟s, to prove the allegations in the Administrative Complaint. State ex rel. Vining v. Fla. Real Estate Comm‟n, 281 So. 2d 487 (Fla. 1973). Regardless of whether presented in Petitioner‟s case-in-chief or during Respondent‟s defense, the Respondent‟s testimony clearly raises a self-defense claim.
Self-defense claims are not generally presented in an administrative context. However, the charge against Respondent is based upon the commission of a battery as defined in the criminal statute, so resorting to the criminal definitions and
procedures related to the prosecution of battery is instructive. Self-defense is described in section 776.012 as follows:
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other‟s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
Under those circumstances permitted pursuant to s. 776.013.
Respondent‟s testimony establishes a prima facie case of self-defense. She testified that Mr. White was fighting with her brother, and while she was trying to break up the fight,
Mr. White started beating her, knocking her down, and hitting her in the face.
When a person claims that they acted in self-defense, he or she need only raise a reasonable doubt concerning self- defense. Respondent need not prove the victim guilty of the aggression asserted. “When a defendant claims self-defense, the State maintains the burden of proving the defendant committed the crime and did not act in self-defense.” Alexander v. State, 121 So. 3d 1185, 1188 (Fla. 1st DCA 2013)(quoting Montijo v. State,
61 So. 3d 424, 427 (Fla. 5th DCA 2011)); see also Stieh v. State,
67 So. 3d 275, 278 (Fla. 5th DCA 2011)(when the defense presents a prima facie case of self-defense, the State has the burden of proving that the defendant did not act in self-defense). While these criminal cases indicate that the State‟s burden is to prove the defendant did not act in self-defense beyond a reasonable doubt, in this proceeding, the burden would be one of clear and convincing evidence. Osborne Stern, supra.
Here, that burden was not met.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint.
DONE AND ENTERED this 5th day of February, 2014, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2014.
Linton B. Eason, Esquire
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
