vs. ) CASE NO. 89-2768
Respondent. )
On October 16, 1989 a hearing was held in this case pursuant to notice in Crawfordville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The Criminal Justice Standards and Training Commission alleged that the Respondent had failed to maintain good moral character by committing a series of assaults with a deadly weapon but without the intent to kill and by possessing an explosive device in 1986.
For Petitioner: Joseph S. White, Esquire
P.O. Box 1489
For Respondent: Harold S. Richmond, Esquire
P.O. Box 695
Whether the Respondent committed the acts alleged in the Administrative Complaint and Amended Administrative Complaint. Whether the acts constituted a failure to maintain good moral character.
Whether the Respondent has maintained qualifications for certification based upon evidence developed at the hearing.
Whether any conditions should be placed upon the Respondent's certification.
This case was heard on October 16, 1989. Because of a delay in ordering the transcript, it was not received until November 16, 1989. The parties requested and received permission to file their proposed findings late, and the
Petitioner filed its proposed findings on December 6, 1989. These were read, considered, and were adopted without substantive change. Respondent did not file any proposed findings.
Respondent, Roxie E. Vause, was certified by Criminal Justice Standards and Training Commission on September, 1979 and was issued Certificate No. 99- 2566.
On August 30, 1986, Roxie E. Vause was Chief Investigator with the Wakulla County Sheriff's Department (WCSD).
At Approximately 11:00 a.m., on August 30, 1986, Eric Hindle, Chief of Paramedics and Ambulance Services in Wakulla County, was contacted by his dispatcher who reported Roxie Vause had called stating he had been in an automobile accident and requested Hindle's assistance. Hindle, who was a neighbor of Vause, had known Vause for many years and had had many years experience as an Emergency Medical Technician (EMT). As an EMT, he had dealt with many individuals who were injured and who were suffering from psychotic episodes.
Hindle drove to the Vause home with two of his employees where he spoke with Vause's wife and learned that Vause was not at his house. While Hindle was talking with Vause's wife, Patrick Kennedy, a uniformed Wakulla County Deputy Sheriff, also arrived. Kennedy and Vause's wife left in Kennedy's patrol car to visit a house where Vause's wife thought he might be. Hindle decided to drive in the direction of Hindle's house searching for Vause.
At approximately 12:00 noon, Hindle viewed Vause walking along the side of the unpaved road in the vicinity of Hindle's home. Vause had his hands and arms held across his stomach as though he were in pain. Hindle radioed that he had found Vause and their location. Hindle then drove his car along side Vause, stopped, and abruptly approached Vause, who reacted as though he were frightened and drew his pistol, pointing it at Hindle. Although they were neighbors and had worked together professionally for years, it was Hindle's opinion that Vause did not recognize him at that time and was having a psychotic episode. Hindle was of the opinion that Vause had been drinking alcohol and did not know where he was or what he was doing.
Hindle quieted Vause down and Vause responded to Hindle, putting his pistol away. Hindle was talking with Vause, continuing to pacify him and attempting to place him in Hindle's care for transportation to the hospital when Kennedy arrived in his patrol car with Vause's wife.
Kennedy approached Vause from the rear and placed his hand on Vause's shoulder. Kennedy was dressed in uniform and had worked with Vause before. When he was touched, Vause turned towards Kennedy and when he saw his uniform, he began to shout incoherently and redrew his pistol. Kennedy grabbed Vause's hands, holding the gun down between them, and Hindle, Kennedy, and another EMT wrestled Vause to the ground where Kennedy handcuffed him. Hindle was of the opinion that Vause did not know who Kennedy was or what was happening.
After he was handcuffed, Kennedy talked with Vause; and as he talked with Vause, it seemed that Vause recognized Kennedy and calmed down again. When he was calm, Kennedy took the handcuffs off and continued to discuss what was going on with Vause. When Kennedy discussed sending Vause to the hospital,
Vause went wild again, striking Kennedy in the face with his fist. Kennedy again subdued Vause and rehandcuffed him. Kennedy observed that Vause appeared to go wild; and when in that state, Vause did not appear to recognize Kennedy or others whom Vause should have known. According to Kennedy, Vause did not act normal.
Kennedy placed Vause in a vehicle and Vause was transported to the emergency room at Tallahassee Memorial Regional Medical Center. Margorie Landers Smith was a Registered Nurse in the emergency room when Vause was brought in on the afternoon of August 30, 1986. She had known Vause when she had worked for the ambulance service in Wakulla County. She took his medical history and charted his vital signs upon admission. Vause appeared to Smith to have been drinking and was in a highly excited state.
Dr. Cohen (phonetic), Vause's doctor, arrived and examined Vause and ordered various tests. Upon receiving the results, Dr. Cohen advised Vause to voluntarily admit himself for psychiatric observation. Vause angrily refused and Dr. Cohen told Vause that he, Cohen, would admit Vause involuntarily. Cohen and Smith were both in an examining room in the hospital's emergency room during this confrontation, and Vause refused to let either of them leave the room. Smith talked with Vause and convinced Vause to let Dr. Cohen leave. Vause admitted to Smith that he was drinking too much and had family problems. Vause eventually allowed Smith to leave the examining room.
Dr. Cohen called hospital security and a psychiatrist obtained an involuntary admission order for Vause. Eventually, the Tallahassee Police Department was called to remove Vause to the psychiatric center because the hospital security lacked jurisdiction.
Vause had rummaged through the medical supplies in the room and found two very large cardiac syringes with barrels approximately four inches long and heavy gauge needles three to four inches long. When Smith returned to the examining room, Vause threatened her with these syringes, holding them up in her face. Smith continued to try and calm Vause, but he was very upset. Vause kept saying he was going to leave and was not going to the psychiatric center.
In response to the hospital's call, two female officers from the Tallahassee Police Department (TPD) arrived on the scene and attempted to talk Vause into letting Smith go and going to the psychiatric center. They succeeded in getting Smith free, but he used the syringes to threaten the officers and Smith, who remained and continued to try and work with Vause. The officers requested backup and Officer Peavey, a K-9 officer, arrived at the scene. After attempting to reason with Vause unsuccessfully, Peavy broke the syringes with a night stick and, together with the TPD officers, hospital security officers, orderlies and nurses, subdued Vause, who was handcuffed and transported to the psychiatric center.
On the evening of August 30, 1989, Officer Peavy was called back to the hospital psychiatric center where he arrived to find that Vause had broken free of his four-point restraints. He, again, quieted Vause down and the nurses gave Vause additional medication to calm him down. Peavy observed that Vause's behavior was erratic and Vause would shift rapidly from rational and non- aggressive behavior to irrational and aggressive behavior.
On September 12, 1986, officers of the WCSD were called to the residence of Ronnie Kilgore by Kilgore's wife. Vause was one of the officers who responded to the call. Donald Crum, formerly a deputy with WCSD and then
with the Florida Department of Law Enforcement, also responded to this call and saw Vause, whom Crum had formerly known well. Crum was shocked at Vause's appearance and struck up a conversation with him about Vause's problems. Vause had been drinking and acted suicidal.
Crum was joined by David Harvey, Sheriff of Wakulla County, and together they left Kilgore's house and returned to the Sheriff's office where they continued to discuss Vause's problems and tried to talk Vause into surrendering his weapons. Vause was very agitated, stated he was afraid of people who were out to get him, and refused to surrender his weapons. Several times during his conversation with Crum and Harvey, Vause pulled his weapon and waived it around before reholstering it.
Both Crum and Harvey felt that Vause needed to be disarmed for his own good, but that to do so in the Sheriff's office at that time would be courting disaster. They let Vause leave and put a plan into effect to disarm and subdue Vause away from town in order that uninvolved persons would not get hurt.
The Leon County Sheriff's Department (LCSD) Special Weapons and Tactics Team (SWAT) was alerted and deployed around the areas in which it was felt Vause could be arrested that evening because Harvey had concluded it was necessary to arrest Vause for Vause's own safety.
On the evening of September 12, 1986, a call was received from Ronnie Kilgore, who reported that Vause was at Kilgore's house; however, when the deputies arrived at Kilgore's house, Vause had left. Vause's vehicle was found wrecked in a water filled drainage ditch, and Vause was arrested at a nearby convenience store and returned to the scene of the automobile wreck. When Vause was disarmed, the officers could not account for all of the weapons which he was known to carry and they felt these weapons were in Vause's truck. When they asked Vause about this, Vause advised them that if they entered his truck, they were liable to get hurt because there was a "bomb" in the truck.
Joseph Doyle, the bomb expert for the LCSD SWAT and a friend of Vause, was called to the scene. He did not know that it was Vause's vehicle, but he was told that there was possibly an explosive device in the truck and weapons which the WCSD wished to secure. Doyle entered the truck, which was two-thirds full of water, and found several firearms and a one pound can of black powder with a M-120 hand grenade fuse screwed into the top of it. The pin was in place in the fuse and the device was wet.
Doyle had worked with Vause on many occasions and had instructed Vause on explosive devices. In Doyle's opinion, the device which he removed from Vause's truck was not as dangerous a device as Vause was capable of making, even with essentially the same materials. Doyle felt the device he had found was probably designed as a signalling device to alert one of the approach of others.
Subsequently, Vause was charged with several felonies; however, he plead guilty only to several misdemeanors, receiving two years probation. One of the conditions of this probation was that Vause not drink alcoholic beverages. Vause admits violating this condition of his probation on November 29, 1988 but asserts that he has not violated the condition since that time. For violation of that condition, Vause was sentenced to eight months in the county jail which he has finished serving. Vause admits that he is an
alcoholic. He attends meetings of Alcoholics Anonymous and has completed a drug rehabilitation program.
Vause has no independent recollection of the events of August 30 and September 12, 1986. Vause feels that his service as a patrol officer contributed to his personal problems and does not desire to return to those duties. He felt that his experience could be put to use as a corrections officer or bailiff.
All of the sworn officers who knew Vause praised his service and professionalism prior to the events of August and September 1986. Many of them indicated a willingness to serve with Vause if he had received treatment, was well, and had demonstrated his rehabilitation.
Vause experienced a psychotic episode during the period August 30, 1986 and September 12, 1986, during which he was irrational, suffered from violent mood shifts, and exhibited aggressive and suicidal behavior. He was hospitalized during a portion of this period for assessment of his mental competence. No evidence was presented by either party concerning the findings of Vause's admission to determine Vause's competency. However, based upon the testimony of those who observed the Respondent during this period, the Respondent Roxie E. Vause is found to have been psychotic during the period from August 30 to September 12, 1986 to such an extent that he could not form the requisite intent to commit a criminal act.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapter 120 and Chapter 943, Florida Statutes, pursuant to which this Order is entered.
The Criminal Justice Standards and Training Commission charges that the Respondent violated Section 943.1395(5) and (6), Florida Statutes, by failing to maintain good character as defined as a statewide standard by Rule 11B-27.0011, Florida Administrative Code, specifically subsection (4)(a). Subsection (4)(a), supra, provides that failure to maintain good moral character is defined as "The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not..." The Respondent was not charged under subsection (b) of Rule 11B-27.0011(4), supra, relating to misdemeanor offenses. Therefore, the Commission must show that the Respondent perpetrated an act or acts which would constitute a felony.
Regarding the charge of possession of an explosive device made in the amended complaint, Section 790.161, Florida Statutes, relating to the making and possession of destructive devices states:
"A person who makes, possesses, throws, places, discharges, or attempts to discharge any destructive device, with intent to do bodily harm to any person or with intent to do damage to property:
Shall be guilty of a felony in the second degree..
This provision requires intent. Officer Doyle stated that had Vause desired to build a device to harm people or property, he had the requisite knowledge. Clearly, Vause had the requisite tools. However, the device he had constructed was more suited to signaling than destruction. To the extent that the device was potentially dangerous, Vause advised the officers of the presence of the device in his truck and the potential danger it presented. Vause's
warning is inconsistent with an intent to do bodily harm and it is highly unlikely that he wished to destroy his truck. The device, although fused, had the pin in place and was in a safe condition. All these facts indicate the absence of an intent to hurt anyone or anything. In the absence of intent, there is no violation.
The remainder of the charges are a succession of assaults with a deadly weapon without the intent to kill. Section 784.011, Florida Statutes, defines assault as an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent. The key again is intent.
In the episode on August 30, 1986, Vause was not mentally capable of forming the requisite intent to assault Hindle, Kennedy, Smith, or Peavy. Each of them stated that Vause was not himself, did not recognize them, shouted incoherently, and acted irrationally. Hindle and Kennedy, among others, stated Vause seemed to instantly loose touch with who they were and what was going on.
In the episode on September 12, 1986, it appears from their testimony that Crum and Sheriff Harvey were (1) concerned about Vause's suicidal comments and actions; (2) wanted to disarm Vause for his own protection; and (3) were afraid about the conflict which they felt would ensue if they attempted to disarm him at the Sheriff's office. Neither sworn officer would have permitted a person who they felt was dangerous to others to leave the Sheriff's office. The plan to disarm Vause was designed to protect Vause and others by arresting him out in the woods; however, it did not work, and Vause apparently surrendered his weapons at a convenience store without any violence contrary to Crum's and Sheriff Harvey's concern and warned the officers of the presence of an explosive device in his truck if they were planning to enter it.
Vause stated he had no recollection of the events of August 30 or September 12, 1986. Taken as a whole, the evidence indicates that for a period of time in August and September 1986, Roxie E. Vause was emotionally disturbed and was not capable of forming the intent necessary to violate Section 784.021 or Section 790.161, Florida Statutes. However, the Respondent admits that he has failed to maintain his technical qualifications, as required by the rules, and that he needs to retrain and requalify for certification. According to the rules, the Respondent's certificate is in inactive status.
All of the sworn officers who were asked stated that they would serve with Vause if he were rehabilitated. The evidence indicates that Vause has a drinking problem for which he has had rehabilitation but that on one occasion, he had relapsed into this behavior.
Alcoholism is a disease, and untreated alcoholism is a condition which would impair the ability of an officer to properly perform his duties as a sworn officer. However, this is a matter relating to Section 943.13(6), Florida Statutes, and not an issue of "good moral character," as alleged in the Administrative Complaint. Nevertheless, the evidence indicates that the Respondent is an alcoholic and has had one relapse although he has been in treatment and attends AA meetings. The Commission does not have an impaired officer program similar to those created by many professions; however, the Respondent's alcoholism and his treatment of it must be considered by the Commission in evaluating his continued certification. The Commission is charged with establishing minimum standards; and Section 943.13(6), Florida Statutes, provides that any person employed as a law enforcement or correctional officer
shall pass a physical examination by a licensed physician based upon specifications established by the Commission. Control of alcoholism is as important to the physical ability of a sworn officer to perform his or her duties as control of diabetes or asthma. There is statutory authority for the Commission to establish physical criteria for employment and to establish conditions.
Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission reactivate the Respondent's certification
DONE AND ORDERED this 18th day of December, 1989, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1989.
Joseph S. White, Esq. Florida Department of
P.O. Box 1489 Tallahassee, FL 32302
Harold S. Richmond, Esq.
P.O. Box 695 Quincy, FL 32351
P.O. Box 1489 Tallahassee, FL 32302
James T. Moore, Commissioner Florida Department of
Respondent, Roxie E. Vause's certification as a Law Enforcement Officer, Certificate Number: 99-2566, is hereby REVOKED.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the clerk of the agency and by filing the filing fee and one copy of a Notice of Appeal with the District Court of appeal within thirty (30) days of the date this Order is filed.
The Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.
DONE AND ORDERED this 3rd day of October, 1990.
MICHAEL A. BERG, CHAIRMAN
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to ROXIE E. VAUSE, Route 6, Box 8992, Crawfordville, Florida 32327, by
U.S. Mail on or before 5:00 P.M., this 3rd day of October, 1990.
