STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ANDREW ANTHONY TAYLOR,
vs.
Petitioner,
Case No. 17-2295VWI
STATE OF FLORIDA,
Respondent.
/
RECOMMENDED ORDER
This case came before Administrative Law Judge Darren A. Schwartz of the Division of Administrative Hearings for final hearing by video teleconference on June 22 and August 8, 2017, with sites at Miami and Tallahassee, Florida.
APPEARANCES
For Petitioner: Robert A. Rossano, Esquire
Law Offices of Robert Rossano, P.A.
999 Ponce de Leon Boulevard, Suite 1010 Coral Gables, Florida 33134-3079
For Respondent: Laura Adams, Esquire
State Attorney's Office 1350 Northwest 12th Avenue Miami, Florida 33136-2101
STATEMENT OF THE ISSUES
Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and
convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
PRELIMINARY STATEMENT
On June 30, 2015, Petitioner filed a Petition to Establish Wrongful Incarceration in the Eleventh Judicial Circuit in and for Dade County, Florida, in the underlying criminal case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928.
On July 31, 2015, Respondent, State of Florida (“Respondent”), filed a response contesting the petition. On January 25, 2017, Petitioner filed an amended petition.
On March 17, 2017, Circuit Court Judge Diane Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to
Section 961.03, Florida Statutes.” Because Respondent contested Petitioner’s actual innocence, the case was transferred to the Division of Administrative Hearings (“DOAH”) on April 7, 2017, to assign an Administrative Law Judge (“ALJ”)to conduct a de novo final administrative hearing.
On April 24, 2017, the undersigned entered an Order setting the final hearing for June 22, 2017. The final hearing commenced as scheduled on June 22, 2017. At the outset of the hearing, Petitioner’s Exhibits 1 through 24 and 26 through 28 were received in evidence based on the stipulation of the parties.
Petitioner then proceeded with an opening statement followed by the presentation of the testimony of Roy Kahn.
At the conclusion of Mr. Kahn’s testimony, Petitioner rested his case. Despite having stipulated to the receipt into evidence of the aforementioned Petitioner’s exhibits at the outset of the hearing, and failing to raise any prior hearsay objection, Respondent then moved, ore tenus, for a “summary judgment.” In support of its motion, Respondent argued that Petitioner failed to meet his burden during his case-in-chief of establishing actual innocence by clear and convincing evidence because the only alleged evidence that could potentially support his position (i.e. Petitioner’s Exhibit 12, affidavit of C.J.; Petitioner’s Exhibit 13, C.J.’s deposition in 2014 in Case No. F90-009928; and Petitioner’s Exhibit 14, which includes C.J.’s testimony at the evidentiary hearing before Judge Ward in Case No. F90-009928) is hearsay, not within any exception to the hearsay rule, and therefore, cannot be used by the undersigned as the sole basis of a finding of fact.1/
Although a motion for “summary judgment” is inapplicable to administrative proceedings and the undersigned denied the motion at the hearing, the undersigned nevertheless allowed and encouraged the parties to argue and address the hearsay objection at the hearing, in subsequent memoranda filed within 20 days, and in their proposed recommended orders. In addition, without
objection, Petitioner was granted a continuance and allowed to re-open his case-in-chief at a later date (August 8, 2017), for
the purpose of calling additional live witnesses, including C.J.2/ In the meantime, Respondent presented the testimony of
Dr. Valerie Rao at the June 22nd hearing.
On July 5, 2017, Respondent filed a memorandum of law regarding the unconstitutionality of section 90.803(22), Florida Statutes, and a motion that Petitioner’s Exhibits 11 through 14 could not form the basis of a finding that Petitioner is actually innocent under chapter 961. On July 11, 2017, Petitioner filed a memorandum addressing the admissibility of former testimony under section 90.803(22). Respondent e-filed a “PDF” copy of the one- volume final hearing Transcript from the June 22, 2017, final hearing to DOAH on July 17, 2017.
The hearing reconvened and completed on August 8, 2017. At the August 8th hearing, Petitioner testified on his own behalf, but he did not present any additional live witnesses. Respondent presented the testimony of Robert Fielder, Dawn Horn, Merci Restani, and Hubert Walker. Respondent’s Exhibits 1 through 10 were received in evidence.
At the hearing, the undersigned took official recognition of: (1) the record of the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v.
Andrew Anthony Taylor, Case No. F90-009928; (2) the court docket
sheet in the case of State of Florida v. Chantel Taylor, Case
No. 90-009753, for aggravated child abuse; (3) certified copy of Order Placing Chantel Taylor on Community Control for Aggravated Child Abuse of C.J.; (4) Judgment in Case No. 90-009753 for aggravated child abuse of C.J.; (5) Arrest Affidavit in Case
No. 90-009753; and (6) certified copy of Probation Warrant in Case No. 90-009753.
At the conclusion of the final hearing, the undersigned set a deadline of September 8, 2017, for the parties to file proposed recommended orders. The undersigned also requested of the parties that the official versions of the transcripts from both hearing dates be mailed or federally expressed to DOAH expeditiously because of the 45-day statutory deadline for the undersigned to issue a recommended order following the conclusion of the hearing.
However, due to the impacts of Hurricane Irma, on September 7, 2017, the undersigned sua sponte entered an Order extending the deadline to September 15, 2017, for the parties to file proposed recommended orders. On September 18, 2017, Respondent filed a motion for extension of time to file its proposed recommended order based on the impacts of Hurricane Irma. On September 18, 2017, the undersigned entered an Order granting the motion. The parties timely filed proposed recommended orders, which were considered in the preparation of
this Recommended Order. A copy of the one-volume final hearing Transcript from the August 8, 2017, final hearing was filed at DOAH on September 20, 2017.3/
Unless otherwise indicated, all statutory references are to the 2016 version of the Florida Statutes.
FINDINGS OF FACT
Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner.
On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao.
Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house.
According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8,
1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her.
After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast.
The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse.
Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty.
Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination.
According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen.
Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today.
Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old.
On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the
office of the State Attorney, interviewed C.J. at the children’s center.
C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone.
Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat.
On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of
the interview was to assess C.J.’s current mental status and emotional therapeutic needs.
According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify.
C.J. provided a detailed history to Dr. Alvarez.
Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell
Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting:
He would get on me.
He would start moving fast on me.
He would take out his private part.
On my private part and In my mouth.
C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it.
On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she
lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that:
Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told.
My mother asked me if anyone was messing with me. For several days I wouldn’t tell her.
When I did tell her what Andrew did, she beat me with a baseball bat.
In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court.
On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he
did so. She testified it happened at the new house and at the old house.
Petitioner’s criminal jury trial was held in
March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew
Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them.
Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her.
C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.”
C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house.
C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her.
C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control.
Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him.
Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of
C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam
affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d
DCA 1992).
After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner.
In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator.
In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks.
On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.”
C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped.
However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted:
A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent.
My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right.
On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner.
On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward.
At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner.
During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner.
C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In
response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex.
At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room.
C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat
C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent.
C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them.
At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.”
On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated:
There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred.
With regards to the beating, but with a baseball bat, although at some times she did
acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her.
And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person.
There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child.
The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief.
We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes.
Pet. Ex. 14, pp. 245-247.
On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was
scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner.
On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition.
After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes.
C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance.
After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition.
On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges.
Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of
establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying.
In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief.
In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence.
Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation.
To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how
Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast.
She said it hurt when he did so.
Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history.
C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner.
Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner.
From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life.
Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant.
C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned
18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation.
C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter.
The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her.
Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
CONCLUSIONS OF LAW
DOAH has jurisdiction of the subject matter of and the parties to this proceeding pursuant to sections 120.569, 120.57(1), and 961.03(4)(b), Florida Statutes.
The Act, section 961.01, et. seq., was enacted in 2008,
because of criminal cases in which DNA evidence had exonerated criminal defendants. Fessenden v. State, 52 So. 3d 1, 6 (Fla. 2d
DCA 2010).
Before a person is deemed entitled to compensation under the Act, the person must first obtain a determination that he or she is a “wrongfully incarcerated person” and “eligible for compensation.” Id. at 3; see also §§ 961.02(4) and 961.03, Fla.
Stat.
A person who is found to be “wrongfully incarcerated” and “eligible for compensation” is entitled to monetary compensation calculated at a rate of $50,000 for each year of imprisonment (adjusted for inflation), plus other specified costs, not to exceed two million dollars. § 961.06, Fla. Stat.
The Act provides an unusual framework for determining whether a person is “wrongfully incarcerated” and “eligible for compensation.”
First, in order to meet the definitions of a “wrongfully incarcerated person” and “eligible for compensation,” upon entry of an order based on exonerating evidence and vacating
a conviction and sentence, a person must file a petition with the original sentencing circuit court within 90 days after the circuit court’s order vacating a conviction and sentence becomes final. § 961.03(1)(b)1., Fla. Stat. The petition must state, at a minimum, that “verifiable and substantial evidence of actual innocence exists and state with particularity the nature and significance of the verifiable and substantial evidence of actual innocence.” § 961.03(1)(a)1., Fla. Stat.4/
The prosecuting attorney must respond to the petition within 30 days. The prosecuting attorney may respond pursuant to section 961.03(2)(b) by contesting the petitioner’s actual innocence. If the prosecutor contests the petition, the original sentencing court:
shall make a determining from the pleadings and supporting documentation whether, by a preponderance of the evidence, the petitioner is ineligible for compensation under the provisions of s. 961.04, regardless of his or her claim of wrongful incarceration. If the court finds the petitioner ineligible under the provisions of s. 961.04, it shall dismiss the petition.
§ 961.03(4)(a), Fla. Stat.
If the prosecuting attorney contests the petition and facts regarding the petitioner’s actual innocence, and the original sentencing court determines that the petitioner is eligible for compensation under the Act, the circuit court must set forth its findings and transfer the petition to DOAH “for
findings of fact and a recommended determination of whether the petitioner has established that he or she is a wrongfully incarcerated person who is eligible for compensation under this act.” § 961.03(4)(b), Fla. Stat.
Section 961.03(5) expressly provides:
Any questions of fact, the nature, significance or effect of the evidence of actual innocence, and the petitioner’s eligibility for compensation under this act must be established by clear and convincing evidence by the petitioner before an administrative law judge.
The “clear and convincing evidence” standard, which is higher than a preponderance of the evidence standard, requires that the evidence be found credible, the facts to which the witnesses testify must be distinctly remembered, the testimony must be precise and explicit, and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such 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); Slomowitz v. Walker, 429 So. 2d 797, 800
(Fla. 4th DCA 1983).
The Act contemplates a typical chapter 120.57(1) formal de novo administrative hearing before an ALJ where any prior decision is not entitled to any presumption of correctness. Miles v. Fla. A&M Univ., 813 So. 2d 242, 247 (Fla. 1st DCA 2002).
The rules of evidence do not strictly apply in administration proceedings. Fla. Indus. Power Users Grp. v. Graham, 209 So. 3d 1142, 1145-46 (Fla. 2017). Chapter 120 contains its own guidance regarding the admissibility of evidence. Id. Section 120.569(2)(g) provides:
Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other relevant evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath.
§ 120.569(2)(g), Fla. Stat.
The formal administrative hearing must be conducted within 120 days after the transfer of the petition to DOAH. Within 45 days after the conclusion of the hearing, the ALJ must issue an order setting forth his or her findings and recommendation. The ALJ must then file the recommended order with the original sentencing court. § 961.03(6)(a)-(c), Fla. Stat.
The original sentencing court must review the findings and recommendation of the ALJ and, within 60 days, issue its own order adopting or declining to adopt the findings and recommendation of the ALJ. § 961.03(6)(d), Fla. Stat.
The Act constitutes a limited waiver of the state’s sovereign immunity, and therefore, the statute must be strictly construed. Fessenden v. State, 52 So. 3d 1, 6 (Fla. 2d DCA
2010).
As stated in Fessenden, “[t]here is a substantial
difference in our system of justice between the concept of ‘not guilty’ and that of ‘actual innocence.’” Id. at 6. Because the
Act was passed in response to DNA evidence exonerating criminal defendants, the Legislature was concerned about compensating persons who are actually innocent, but not necessarily paying people who were found not guilty. Id.
In the present case, Petitioner has not been exonerated based on DNA evidence. Rather, he seeks to prove, by clear and convincing evidence, that he is actually innocent based on a victim’s recantation.
Courts view victim recantations with suspicion. They are exceedingly unreliable and subject to exacting scrutiny and credibility determinations. Murrah v. State, 773 So. 2d 622, 624 (Fla. 1st DCA 2000).
Applying the foregoing legal principles to the instant case, Respondent first argues Petitioner’s petition was untimely. As detailed above, the petition was timely filed because it was filed within 90 days of the circuit court’s vacating of Petitioner’s judgment and sentence. Respondent’s reliance on
Bartek v. State, 198 So. 3d 1009 (Fla. 5th DCA 2016), is misplaced.5/
As to the issue of whether Petitioner is “actually innocent,” as detailed above, Petitioner failed to meet his heavy burden of establishing, by clear and convincing evidence, that he is “actually innocent.”6/
RECOMMENDED DETERMINATION
Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that a final order be entered by the Circuit Court Judge determining that Petitioner, Andrew Anthony Taylor, has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing his petition.
DONE AND ENTERED this 29th day of September, 2017, in Tallahassee, Leon County, Florida.
S
DARREN A. SCHWARTZ
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2017.
ENDNOTES
1/ Notably, at the June 22nd hearing, and after lodging the hearsay objection, Respondent attempted to move into evidence as Respondent’s exhibits the same exhibits she contended could not be used because they are hearsay and not within any exception.
Because the exhibits had already been received into evidence at the outset of the hearing based on the stipulation of the parties, it was unnecessary to additionally include the same documents already in evidence.
2/ Petitioner had not listed C.J. as a witness on his witness list.
3/ On September 20, 2017, Respondent actually filed two copies of the same one-volume final hearing Transcript from the August 8, 2017, final hearing. This Recommended Order is issued after the 45-day deadline due to the impacts of Hurricane Irma and the resulting delay in the Respondent’s filing of its Proposed Recommended Order and the final hearing Transcript.
4/ “‘Eligible for compensation’ means a person meets the definition of ‘wrongfully incarcerated person’ and is not disqualified from seeking compensation under the criteria described in s. 961.04.” § 961.02(5), Fla. Stat.
“‘Wrongfully incarcerated person’ means a person whose felony conviction and sentence have been vacated by a court of competent jurisdiction and, with respect to whom pursuant to the requirements of s. 961.03, the original sentencing court has issued its order finding that the person neither committed the act nor the offense that served as the basis for the conviction and incarceration and that the person did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense.” § 961.02(4), Fla. Stat.
5/ In Bartek, the defendant’s conviction was vacated, and a new trial was ordered. The State appealed, the appellate court affirmed, and the mandate was issued on December 20, 2013. On February 27, 2014, the State entered a nolle prosequi in the defendant’s case. However, the defendant did not file his petition under the Act until May 20, 2014, more than 90 days after the order vacating the conviction and sentence became final. The court recognized that the Act does not mention a state’s filing of a nolle prosequi, and that the plain language of the statute required the defendant to file the petition within
90 days after the order vacating the conviction and sentence, not
upon the State entering a nolle prosequi. Because the defendant’s petition was not filed within 90 days of the circuit court order vacating the conviction and sentence, the court held the petition was untimely.
In the present case, Petitioner timely filed his petition on June 30, 2015, within 90 days after the circuit court order vacating the conviction and sentence. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner with the same crimes. Bartek did not involve an intervening indictment. It is inconceivable that a defendant would be required to litigate a claim for compensation for wrongful incarceration with a pending indictment on the same charges. In any event, on December 12, 2016, the second set of charges were nolle prossed, and on January 25, 2017, an amended petition was filed.
6/ The undersigned rejects Respondent’s contention that Petitioner’s Exhibit 12, affidavit of C.J.; Petitioner’s
Exhibit 13, C.J.’s deposition in 2014 in Case No. F90-009928; and Petitioner’s Exhibit 14, which includes C.J.’s testimony at the evidentiary hearing before Judge Ward, cannot be used to support a finding of fact in the instant proceeding because they are hearsay.
“‘Hearsay’ is 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. Hearsay evidence is admissible in administrative proceedings. The question, however, is whether this hearsay evidence can be used to support a finding of fact.
Section 120.57(1)(c), provides: “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.” In the instant case, Petitioner’s Exhibits 13 and 14 consist of C.J.’s former sworn testimony in the underlying criminal proceeding, involving the same issues and parties as in the instant administrative proceeding. C.J. was subject to cross-examination when she testified in Petitioner’s Exhibits 13 and 14. Petitioner’s Exhibits 13 and 14 fall within the former testimony hearsay exception found in section 90.803(22).
Notably, in Grabau v. Department of Health, 816 So. 2d 701 (Fla. 1st DCA 2002), the Department brought a licensure revocation administrative proceeding against a doctor for sexual
misconduct against a patient. At the administrative hearing, the Department introduced in evidence the victim’s prior deposition testimony in a federal case. The doctor objected, contending that section 90.803(22) is unconstitutional because it allowed the Department to offer the deposition into evidence and use it against him without a showing of the victim’s unavailability.
The first district agreed finding the statute unconstitutional because it violated the doctor’s due process and constitutional right to confront the witness against him. In Abreu v. State, 804 So. 2d 442 (Fla. 4th DCA 2001), the fourth district also found section 90.803(22) unconstitutional where the state attempted to use a witnesses’ prior testimony against the defendant in a criminal case.
However, in Jones v. R.J. Reynolds Tobacco Co., 830 So. 2d 854, 856 (Fla. 2d DCA 2002), a personal representative brought a wrongful death action against R.J. Reynolds Tobacco. At trial, over R.J. Reynolds Tobacco’s objection, the plaintiff offered into evidence the transcripts of depositions of witnesses taken in other tobacco litigation pursuant to section 90.803(22). The second district held the trial judge was in the best position to evaluate any concerns over the use of the depositions and their potential impact on the trial and rejected any serious constitutional concerns about the statute. In reaching this conclusion, the second district distinguished Grabau because it involved the revocation of a professional license and Abreu because it was a criminal case.
Applying the foregoing legal principles to the instant case, this case is more analogous to Jones than it is to Grabau or Abreu. As in Jones, Petitioner seeks to recover monetary compensation, and Petitioner seeks to use the prior testimony of
C.J. to support his claim. Thus, the issues of concern in Grabau and Abreu are inapplicable to the instant proceeding. As to C.J.’s affidavit (Petitioner’s Exhibit 12), it can be used because it supplements or explains other evidence regarding C.J.’s recantation.
COPIES FURNISHED:
Manuel F. Fente, Esquire
Law Offices of Manuel F. Fente, P.A. 999 Ponce de Leon Boulevard, Suite 1010 Coral Gables, Florida 33134-3079
Robert A. Rossano, Esquire
Law Offices of Robert Rossano, P.A.
999 Ponce de Leon Boulevard, Suite 1010 Coral Gables, Florida 33134-3079 (eServed)
Honorable Diane V. Ward, Circuit Court Judge Eleventh Judicial Circuit of Florida
1351 Northwest 12th Street Miami, Florida 33125
Dedrianna Smith
Eleventh Judicial Circuit of Florida 1351 Northwest 12th Street
Miami, Florida 33125
Laura Adams, Esquire State Attorney's Office 1350 Northwest 12th Avenue
Miami, Florida 33136-2101 (eServed)
Harvey Ruvin, Clerk of Court Miami-Dade County
73 West Flagler Street Miami, Florida 33130
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 28, 2017 | Agency Final Order | |
| Sep. 29, 2017 | Recommended Order | Petitioner failed to prove by clear and convincing evidence that he is actually innocent; thus, Petitioner is not eligible for compensation under chapter 961, the Victims of Wrongful Incarceration Compensation Act.
 |
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