STATE OFF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0919

)

DARYL BRANTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on June 5, 1990, in Miami, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Joseph S. White

Assistant General Counsel Florida Department of

Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302-1489

For Respondent: Rashad El-Amin

Attorney at Law 4300 S.W. 92

Davie, Florida 33328 STATEMENT OF THE ISSUES

The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated January 11, 1990; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on January 11, 1990, when the Criminal Justice Standards and Training Commission (Commission) filed an administrative complaint against the Respondent, Daryl Branton, and alleged violations of Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, which, it was alleged, established Respondent had failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes. More specifically, the complaint charged that Respondent had observed the commission of a sexual battery and had failed to assist the victim and had unlawfully and intentionally touched that victim against her will.

Respondent filed an election of rights which disputed the allegations of fact

and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was forwarded to the Division of Administrative Hearings for formal proceedings on February 12, 1990.

At the hearing, the Commission presented the testimony of the following witnesses: Linda MacArthur, the alleged victim of the sexual battery; Sean Mahon, an investigator with the City of Miami Police Department, sexual battery/child abuse unit; Michael G. Bryant, an investigator with the City of Miami Police Department, internal affairs section; and Edward Westby, a radio patrol sector sergeant for the City of Miami Police Department. The Commission's exhibits numbered 1 through 3 were admitted into evidence. The Respondent testified in his own behalf and presented the testimony of the following witnesses: Jessie Wilkins, a patrol field training officer with the City of Miami Police Department; George Law, spokesperson for the City of Miami Police Department; and Gerald Darling, a sergeant on the street narcotics unit for the City of Miami Police Department. Respondent's exhibit number 1 was admitted into evidence.

The transcript of the proceedings was filed with the Division of Administrative Hearings on June 21, 1990. After the hearing, the Commission filed a proposed recommended order and the Respondent submitted a written closing argument which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact submitted by the Commission are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. On August 28, 1987, Respondent was certified by the Commission as a law enforcement officer and was issued certificate number 19-87-002-04.

   
   

2. At all times material to this case, Respondent was employed as a law enforcement officer with the City of Miami Police Department.

   
   

3. Respondent was born in Marianna, Florida, but was reared in Miami, Dade County, Florida. Respondent has lived and worked in the Liberty City and Overtown areas of Miami for many years.

   
   

4. Prior to becoming employed with the City of Miami Police Department, Respondent was graduated from Florida A & M University with a bachelor's degree in criminal justice. Additionally, he had completed police academy training and had served as a reservist in the U.S. Navy. According to Respondent, he is a natural leader and has acquired discipline from his military experiences.

   
   

5. During the early morning hour of September 18, 1988, Respondent was on duty in a marked police vehicle patrolling an area of Miami in the vicinity of 22nd Street and Biscayne Boulevard. Respondent was armed, dressed in his police uniform, and accompanied by another uniformed officer, Efrain Grillo. At approximately 12:00 a.m. on that date, Respondent observed a white female standing in the curb area along Biscayne Boulevard. The Respondent later learned that the female's name was Linda MacArthur. At that time, however, he recognized her from a prior encounter he had had with her in the Overtown area approximately a month before. At that time, Respondent believed Ms. MacArthur to be a prostitute.

6. Officer Grillo pulled the police car over to the curb where Ms. MacArthur was standing. Respondent directed her to enter the back seat of the vehicle and she complied. Prior to being directed to enter the vehicle, Ms. MacArthur was not placed under arrest, was not advised that she was being transported for questioning, and had not committed a criminal offense in the officers' presence. Neither Respondent nor Officer Grillo notified police dispatch that they were transporting a female passenger. Such notification is required by police policy.

   
   

7. After Ms. MacArthur entered the police vehicle, the Respondent and Officer Grillo took her to a dead end street located at approximately 23rd Street and 2nd Avenue. Once there, the three individuals exited the police car and walked over to a dumpster that blocked the end of the paved street.

   
   

8. After exiting the vehicle, Respondent obtained Ms. MacArthur's purse and went through it. Among the items enclosed in the purse were condoms and a small bottle of perfume. Officer Grillo took the perfume bottle and emptied it over Ms. MacArthur's upper torso. Next, Respondent asked Ms. MacArthur how she used the condoms. While the police officers observed, Ms. MacArthur opened the condom package, placed the condom in her mouth and began a sucking action. After a few seconds, she threw the condom down on the ground.

   
   

9. While Officer Grillo spoke with Ms. MacArthur, the Respondent went to the police car and retrieved his flashlight. Officer Grillo asked Ms. MacArthur if she had underwear on. When she replied she did not, Respondent asked her if they (the officers) could see. Ms. MacArthur pulled her pants down to reveal her naked backside. When he returned from the car with the light, Respondent attempted to illuminate Ms. MacArthur's lower body but was unable to do so since the batteries in the flashlight failed. Officer Grillo then went to the police car and obtained a surgical glove which he placed on his hand.

   
   

10. With Respondent present, Officer Grillo placed his hand in Ms. MacArthur's vagina and anal areas. Respondent observed Officer Grillo rub his hand in Ms. MacArthur's vagina and anal areas and saw her fidget at one point. Officer Grillo inserted his finger into Ms. MacArthur's vagina and rectum without her consent.

    
    

11. The touching that is described in paragraph 10 was not done to effect a cavity search of someone under arrest nor was it performed for a bona fide medical purpose.

    
    

12. Following the acts described above, the Respondent and Officer Grillo placed the Respondent into the police car and transported her back to the vicinity of Biscayne Boulevard.

    
    

13. Ms. MacArthur then located an undercover police officer and disclosed the activities which had taken place.

    
    

14. As part of the follow up investigation performed by the police, the perfume bottle and condom were retrieved from the site.

    
    

15. Also in connection with the investigation of the allegation, an investigator went to the location of Respondent's day job and asked him to return to the police station for questioning. Respondent drove himself to the sexual battery office and spoke with Detective Mahon and Sgt. Sparrow. Prior to giving a statement, Respondent was advised of his rights by the officers.

    Respondent executed a written Miranda warning form. Respondent then gave an account of the activities which had occurred with Ms. MacArthur and Officer Grillo. This statement was given at approximately 3:21 p.m., September 18, 1988.

    
    

16. Respondent gave a second statement to an assistant state attorney and Detective Mahon at approximately 5:41 p.m., September 18, 1988. That statement was made under oath and mirrored the one previously given by him.

    
    

17. While Respondent did not see penetration of Ms. MacArthur's vagina and anal areas by Officer Grillo's hand, it is undisputed that he observed the gloved hand being placed in those specific areas as described above.

    
    

18. The police did not coerce Respondent into making the statements given on September 18, 1988. Respondent was not placed under arrest, was not charged with a criminal offense, and has not been prosecuted for any alleged wrongdoing. Further, there is no evidence that Respondent is likely to be prosecuted for any alleged criminal act. In contrast, Officer Grillo was charged with criminal offenses related to the incident with Ms. MacArthur.

    
    

19. Subsequent to the incident described above, Respondent resigned his employment with the City of Miami Police Department. Prior to that action, he had received several commendations for specific acts of excellent service, and had obtained satisfactory or very good performance evaluations for his work as a police officer. All acts which gave rise to the allegations of this case occurred during Respondent's rookie year as a police officer.

    
    

20. Prior to being asked to return to the police station to give a statement regarding the allegations of this case, Respondent had not disclosed the acts perpetrated by Officer Grillo to another police officer.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

22. Section 943.1395, Florida Statutes, provides, in pertinent part:

    
    

    1. The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2)

       * * *

    2. 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 in lieu of revocation of certification:

       1. Suspension of certification for a period not to exceed 2 years.

       2. Placement on a probationary status for a period not to exceed 2 years,

          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.

       3. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       4. Issuance of a reprimand.

          
          

23. Section 943.13(7), Florida Statutes, requires that any person to be certified as a law enforcement officer have good moral character as determined by the Commission.

    
    

24. The Commission has promulgated Rule 11B-27.0011, Florida Administrative Code, which provides, in pertinent part:

    
    

    1. For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(5) or (6), a certified officer's, failure to maintain good moral character, as required by Subsection 943.13(7), is defined as:

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:

          . . . 794.027, . . .

       3. The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime.

    1. Section 794.027, Florida Statutes, provides: A person who observes the commission of the crime of sexual battery and who:

       1. Has reasonable grounds to believe that he has observed the commission of a sexual battery;

       2. Has the present ability to seek assistance for the victim or victims by immediately reporting such offense to a law enforcement officer;

       3. Fails to seek such assistance;

       4. Would not be exposed to any threat of physical violence for seeking such assistance;

       5. Is not the husband, wife, parent, grandparent, child, grandchild, brother, or sister of the offender or victim, by consanguinity or affinity; and

       6. Is not the victim of such sexual battery

    is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.(e.s.)

    
    

25. Section 794.011(1)(h), Florida Statutes, defines the term "sexual battery" as the:

    
    

    oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

    
    

26. The Commission has established by clear and convincing evidence that the Respondent failed to maintain a qualification for certification. Specifically, based upon the evidence presented in this case, it is established that the Respondent failed to maintain good moral character as that term as been defined by rule. Moreover, the Respondent has not presented a credible explanation for those activities which occurred with Ms. MacArthur. The transporation of the female was performed contrary to police policy. The discussions and touching performed by Officer Grillo (with Respondent present) were contrary to her rights and unconsented. Respondent has not explained why he failed to prevent Officer Grillo from pursuing an inappropriate course, and Respondent has not shown why he failed to immediately advise another officer of the activities. His misplaced loyalty to his partner cannot excuse his conduct.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification.

DONE and ENTERED this 25th day of July, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this

25th day of July, 1990.

APPENDIX TO CASE NO. 90-0919

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION:

1. Paragraphs 1 and 2 are accepted.

2. The first two sentences of paragraph 3 are accepted; the balance is rejected as irrelevant.

3. Paragraphs 4, 5, and 6 are rejected as irrelevant.

   It is accepted that the Respondent and his partner intimidated the victim, Linda MacArthur and that she was fearful of being arrested.

4. Paragraph 7 is rejected as contrary to the weight

   of the evidence. The victim complied with Respondent's directive to enter the police vehicle.

5. Paragraphs 8 through 12 are accepted.

6. Paragraph 13 is rejected as contrary to the weight

   of the evidence. It is accepted that Respondent asked the victim as to how she normally used the condom; it is not accepted that he made her suck it. See finding of fact paragraph 8.

7. Paragraph 14 is rejected as contrary to the weight

   of the evidence. Respondent did, however, make the request described at a later time (prior to releasing the victim).

8. The second sentence of paragraph 15 is accepted. The balance of that paragraph is rejected as irrelevant.

9. Paragraphs 16, 17, 18, and 19 are rejected as contrary to the weight of the evidence or irrelevant.

10. Paragraph 20 is accepted.

11. Paragraph 21 is accepted.

12. The first sentence of paragraph 22 is accepted; the balance is rejected as contrary to the weight of the evidence.

13. Paragraph 23 is rejected as contrary to the weight

    of the evidence. Respondent's account (that he did not touch the victim) is accepted. If the flashlight was pressed against the victim, the inference that Officer Grillo did that also is more credible.

14. Paragraph 24 is rejected as contrary to the weight

    of the evidence. See, however, finding of fact paragraphs 10

    and 17.

15. Paragraphs 25 and 26 are rejected as irrelevant.

16. Paragraphs 27 through 32 are accepted.

17. Paragraphs 33 through 36 are rejected as irrelevant.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

None submitted. Respondent submitted a written closing argument.

Copies to:

Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore Commissioner

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy General Counsel

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Joseph S. White

Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rashad El-Amin Attorney at Law 4300 S.W. 92

Davie, Florida 33328

Docket for Case No: 90-000919

Orders for Case No: 90-000919