FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
vs.
Case No. 18-5490PL
TIMOTHY J. MARCHETTI,
Respondent.
Administrative Law Judge F. Scott Boyd, of the Division of Administrative Hearings (DOAH), conducted the final hearing in this case on November 26 and 29, 2018, by video teleconference at sites in Port St. Lucie and Tallahassee, Florida.
For Respondent: Timothy J. Marchetti, pro se
The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2016),1/ and Florida Administrative
imposed.
The Criminal Justice Standards and Training Commission (Petitioner or Commission) filed an Administrative Complaint against Timothy J. Marchetti (Respondent or Mr. Marchetti), alleging that he lacked good moral character in that he unlawfully, knowingly, and willfully resisted, obstructed, or opposed law enforcement officers in the lawful execution of the duty of serving an injunction against him by falsely identifying himself. Respondent disputed the allegations in the Administrative Complaint and, on June 18, 2018, requested a hearing pursuant to section 120.57(1), Florida Statutes. On October 17, 2018, the matter was referred to DOAH for assignment of an administrative law judge.
An Order of Pre-hearing Instructions was issued on October 25, 2018, directing the parties to provide each other with a list of the names and addresses of their prospective witnesses and copies of documents they intended to offer as
exhibits no later than seven days before the hearing. The Order advised the parties that witnesses or exhibits not disclosed might be excluded at the final hearing. Petitioner provided a list of witnesses to this tribunal not less than seven days before the hearing, as directed. Respondent did not provide a
list of witnesses. Five days prior to hearing, Respondent notified Petitioner, but not this tribunal, that he was attempting to secure the testimony of a witness for the hearing.
At the hearing, Respondent adopted his earlier responses to Petitioner's First Set of Requests for Admissions with amendment to admission number 9, which he had initially denied, but admitted at hearing. The amended admissions were accepted and have been incorporated among the Findings of Fact below.
Petitioner offered no exhibits and presented the testimony of St. Lucie County Sheriff's Office Deputies Danielle Lawhorn and Matthew Brewster. Respondent offered proposed Exhibit R-1, a composite exhibit consisting of copies of unauthenticated medical records of Respondent from various dates ranging from January 20, 2017, to February 24, 2017. Ruling was initially reserved on Petitioner's objections that the exhibit was irrelevant and hearsay. Respondent made an ore tenus motion to continue the hearing to allow him to introduce the telephone testimony of Mr. Damien Fernandez, which he asserted would show the relevance of the exhibit. The motion was granted. The hearing was recessed until 9:00 a.m. on November 29, 2018. An Order was issued on November 26, 2018, to allow for the testimony of Mr. Fernandez by telephone, directing Respondent to ensure that the telephone connections would allow all persons to clearly hear all questions and testimony and to ensure that a
notary public was present with the witness so that he could be sworn.
When the hearing reconvened on November 29, 2018, Respondent was unable to provide a telephone connection to a location with a notary public, and the telephone communications were unclear. The start of the hearing was then delayed until 9:45 a.m. to allow Respondent additional time to make arrangements to present the testimony of Mr. Fernandez. At 9:45 a.m., Respondent advised that he was unable to provide a clear telephone connection to a location with Mr. Fernandez and a notary public. Respondent's Exhibit R-1 was thereafter rejected on grounds of relevancy, as further discussed below.
The Transcript was filed with DOAH in two portions, the first on December 4, 2018, and the second on December 14, 2018. Both parties timely filed proposed recommended orders that were considered in preparing this Recommended Order. Along with his proposed recommended order, Respondent submitted several documents that had not been offered or admitted as exhibits at hearing. These were not considered.
The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines.
Mr. Marchetti was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on August 30, 2008, and was issued law enforcement certificate number 278005.
Mr. Marchetti was not employed by a criminal justice agency on October 30, 2016.
On that date, in the early afternoon, Deputy Lawhorn was working as a road patrol deputy with Deputy Brewster, her field training officer (FTO), during an early phase of her training.
The deputies arrived at 108 Petals Road in Fort Pierce in their marked patrol unit to serve an injunction for protection, a civil restraining order, directed to Timothy Marchetti. The deputies were to identify the person to be served, provide him a copy of the injunction papers, explain what the order required, and advise of the court date.
The deputies knocked on the door, and Mr. Marchetti answered the door. The deputies, wearing St. Lucie County Sheriff's Office uniforms in plain view of Mr. Marchetti, announced that they were there to serve process on Timothy Marchetti and asked to speak with him.
Mr. Marchetti falsely identified himself as his brother, Mark Marchetti, with a date of birth of September 15, 1983. Mr. Marchetti added that he was often mistaken for his
brother. The deputies asked when Timothy Marchetti would be returning. Mr. Marchetti responded that Timothy was at church with his mother and should return shortly.
The paperwork that the deputies had been provided prior to serving the injunction included a driver's license photo, and that photo appeared to match the individual the deputies were talking to. The paperwork also indicated that Timothy Marchetti had an identifying mark, a tattoo on his biceps. When asked to see his biceps, Mr. Marchetti instead showed the deputies his triceps, which had no tattoo.
Believing that Mr. Marchetti had lied to them, but wanting to continue to investigate because sometimes brothers do bear close physical resemblance, Deputy Brewster asked Deputy Lawhorn to return to the patrol unit to run the name "Mark Marchetti" through the National Crime Information Center (NCIC) database. At the vehicle, she also pulled up a picture of Mark Marchetti from the DAVID website. That picture did not match the driver's license picture in the deputies' possession or the appearance of the individual that had answered the door.
Deputy Lawhorn returned to the doorway, told Deputy Brewster what she had learned and asked him to check the information.
After Deputy Brewster went to the vehicle,
Mr. Marchetti attempted to leave. Deputy Lawhorn blocked his
way and advised him that he could not leave. Mr. Marchetti had not yet been arrested. The deputies had a well-founded suspicion that Mr. Marchetti had lied to them about his identity, and they were continuing their investigation of that crime.
At this point, a woman who identified herself as Mr. Marchetti's mother came to the property and encountered Deputy Brewster. She confirmed that the individual in the doorway was her son, Timothy Marchetti. Deputy Brewster returned to the doorway and advised Mr. Marchetti that he was under arrest.
After his arrest, the deputies placed themselves on either side of Mr. Marchetti to handcuff him, and Respondent pulled away in "surprise or shock" as he was being handcuffed, but there was minimal, if any, active physical resistance. After his arrest, Mr. Marchetti apologized to Deputy Brewster for lying to him about his identity.
Through his deception, Mr. Marchetti resisted, obstructed, and opposed Deputies Lawhorn and Brewster in their execution of legal process.
Mr. Marchetti failed to maintain good moral character in that he willfully obstructed law enforcement officers in the lawful execution of their duty to serve an injunction against him by giving them a false name and date of birth.
No evidence of any prior disciplinary history was introduced for Mr. Marchetti.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569 and 120.57(1), Florida Statutes (2018).
Petitioner is responsible for the certification and regulation of law enforcement officers and instructors pursuant to section 943.12.
Petitioner seeks to take disciplinary action against Respondent's certification as a law enforcement officer. Disciplinary action constitutes a penal proceeding, and Petitioner bears the burden 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 has been said to
require:
[T]hat 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 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 Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Before considering the charges in this case, it is appropriate to review the exclusion on grounds of relevance of Respondent's proposed Exhibit R-1, consisting of certain medical records of Respondent dated from January 20, 2017, to February 24, 2017. In arguing for admission, Respondent asserted that these hearsay medical records corroborated
that Respondent had been injured during his arrest by
Deputies Lawhorn and Brewster. However, there was absolutely no evidence in the record suggesting such an injury. The uncontroverted evidence was that while Respondent did "pull away" as he was being handcuffed during his arrest, there was no actual physical resistance. There was no evidence in the record to even suggest that Respondent received any sort of injury and no reason to believe that medical treatment dated months after the arrest had any relationship to the events of that afternoon. Further, even if there had been evidence of injury to Respondent arising from his arrest, that evidence would be irrelevant to the allegation that prior to the arrest, Respondent had obstructed the law enforcement officers serving process on him, as discussed in more detail below. While Respondent was given every opportunity to present his defense, proposed Exhibit R-1 was simply not relevant to the record of this case.
Section 943.13 establishes the minimum qualifications for certification of law enforcement officers by the State of Florida. Among those qualifications is the requirement that a law enforcement officer possess good moral character, as determined by a background investigation under procedures established by the Commission. § 943.13(7), Fla. Stat.
Section 943.1395(7) provides that the definition of good moral character shall be adopted by rule and be established as a statewide standard.
Rule 11B-27.0011 is entitled "Moral Character." At the time of the alleged conduct, the relevant portion of the rule provided:
(4) 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:
* * *
(b) Except as otherwise provided in
Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or the perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:
1. Sections 316.193, 327.35, 365.16(1)(c),
(d), 414.39, 741.31, 784.011, 784.03,
784.047, 784.048, 784.05, 784.046(15),
790.01, 790.10, 790.15, 790.27, 794.027,
796.07, 800.02, 800.03, 806.101, 806.13,
810.08, 810.14, 812.014, 812.015, 812.14,
817.235, 817.49, 817.563, 817.565, 817.61,
817.64, 827.04, 828.12, 831.30, 31.31(1)(b),
832.05, 837.012, 837.05, 837.055, 837.06,
839.13, 839.20, 843.02, 843.03, 843.06,
843.085, 847.011, 856.021, 870.01, 893.13,
893.147, 901.36, 914.22, 934.03, 944.35,
944.37 and 944.39, F.S.
The Administrative Complaint alleged a violation of section 843.02, Florida Statutes, which provided:
843.02 Resisting officer without violence to his or her person.—Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1) . . . in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in
s. 775.082 or s. 775.083.
There was no evidence that Mr. Marchetti was found guilty in a criminal trial of resisting, obstructing, or opposing a law enforcement officer in the execution of legal process, but it was shown that Mr. Marchetti perpetrated acts that constituted commission of that offense.
Section 943.10(1) provided:
"Law enforcement officer" means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose
primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.
There was clear evidence at hearing that Deputies Lawhorn and Brewster were law enforcement officers employed by the St. Lucie County Sheriff's Office at the time of the acts.
While misidentifying yourself to a law enforcement officer is not, in and of itself, usually an offense, doing so in order to obstruct service of process does constitute a crime. State v. Legnosky, 27 So. 3d 794, 796-97 (Fla. 2d DCA 2010). It
is undisputed that the uniformed deputies were executing legal process, and it was clearly shown that Respondent gave a false name and date of birth for the purpose of obstructing them in the performance of that duty.
Respondent's unfocused argument that misconduct by the deputies in some way absolves him of the charges fails for several reasons. First, and most fundamentally, no evidence of any misconduct by the deputies was introduced at hearing. Respondent's temporary detention was completely appropriate while the deputies sought to verify or dispel their founded
suspicion, based upon the driver's license photo, that Respondent had committed the crime of giving a false name and date of birth to obstruct the service of process. State v.
Laina, 175 So. 3d 897, 899 (Fla. 5th DCA 2015)(founded suspicion in the mind of the detaining officer justifies temporary detention).
Second, even if temporary detention had been illegal under the circumstances, it would not have required suppression of Respondent's statements. The issue would have been whether the evidence came from exploitation of the illegality or instead by "means sufficiently distinguishable to be purged of the primary taint." State v. Venegas, 79 So. 3d 912, 914 n.1
(Fla. 2d DCA 2012)(quoting Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)). Respondent's false statements were given to the deputies in immediate response to their initial inquiry and were in no way the "fruits" of his subsequent investigatory detention.
Third, and finally, even should some sort of exclusion of evidence for violation of the Fourth Amendment or other constitutional liberties be appropriate in a criminal setting, the exclusionary rule is generally inapplicable to administrative proceedings. U. S. v. Janis, 428 U.S. 433, 96
S. Ct. 3021, 49 L. Ed. 2d 1046 (1976). While an exception to this rule is sometimes recognized under circumstances involving
egregious violations that might transgress "notions of fundamental fairness and undermine the probative value of the evidence obtained," there is no suggestion of such extreme conduct here. Valdez v. Dep't of Rev., 622 So. 2d 62, 63 (Fla. 1st DCA 1993).
Petitioner established by clear and convincing evidence that Respondent failed to maintain good moral character in that he obstructed law enforcement officers in the execution of process, in violation of sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(b).
Penalty
At the time of the offense, section 943.1395(7) prescribed the penalties that may be imposed by the Commission in a case of this nature:
(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.
Section 943.1395(8) went on to provide that the Commission was required to set forth disciplinary guidelines, as well as aggravating and mitigating circumstances. It provided, in relevant part:
(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.
Consistent with the statute, the Commission established disciplinary guidelines in rule 11B-27.005(5), which provided, in pertinent part:
(5) When the Commission finds that a certified officer has committed an act that violates Section 943.13(7), F.S., the Commission shall issue a final order
imposing penalties within the ranges recommended in the following disciplinary guidelines:
* * *
(b) For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to paragraph 11B-27.0011(4)(b), F.A.C., but where there was not a violation of
Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from probation of certification to suspension of certification.
The Commission has established aggravating and mitigating circumstances in rule 11B-27.005(6):
The Commission shall be entitled to deviate from the disciplinary guidelines in this rule section, upon a showing of aggravating or mitigating circumstances by evidence presented to the Commission, if pursuant to Section 120.57(2), F.S., or to an Administrative Law Judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one or more of the following:
Aggravating circumstances:
Whether the certified officer used official authority to facilitate the misconduct.
Whether the misconduct was committed while the certified officer was performing other duties.
The number of violations found by the Commission.
The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the preceding eight years or received a Letter of Guidance within the preceding five years.
The severity of the misconduct.
The danger to the public.
The actual damage, physical or otherwise, caused by the misconduct.
The lack of deterrent effect of the penalty imposed by the employing agency.
The pecuniary benefit or self-gain to the officer realized by the misconduct.
Whether the misconduct was motivated by unlawful discrimination.
Any behavior constituting "domestic violence" defined by Section 741.28(2), F.S.
Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.
The certified officer has not filed any answer to the Administrative Complaint or otherwise responded to the allegations of misconduct alleged by the Commission.
Mitigating circumstances:
The officer's employment status in a position requiring Commission certification at the time of the final hearing before the Commission.
The recommendations of character or employment references.
The lack of severity of the misconduct.
The length of time the officer has been certified by the Commission.
Any effort of rehabilitation by the certified officer.
The effect of disciplinary or remedial action taken by the employing agency or recommendations of the employing agency administrator.
The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.
Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.
While Respondent's failure to maintain good moral character was an effort to obtain personal benefit by evading service of process, there is no evidence that prior discipline has ever been imposed. None of the circumstances warrant deviation from the wide discretion already vested in the Commission within the penalty guidelines.
The conduct alleged and proven is serious; the public has a right to expect that those certified to enforce the law will not obstruct its enforcement. City of Palm Bay v. Bauman,
475 So. 2d 1322 (Fla. 5th DCA 1989). Petitioner recommends a prospective suspension of five days, followed by six months of probation, and attendance at an ethics course.
Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
The Florida Criminal Justice Standards and Training Commission enter a final order finding Timothy J. Marchetti in violation of sections 943.1395(7) and 943.13(7),
Rule 11B-27.0011(4)(b), and suspending his certification for a period of five days, followed by a one-year period of probation subject to terms and conditions imposed by the commission.
DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2019.
1/ References to statutes and rules are to versions in effect in October of 2016, the time of the alleged conduct, except as otherwise indicated.
Timothy J. Marchetti (Address of Record)
Ray Anthony Shackelford, Esquire 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.
