vs. ) CASE NO. 92-6591
RUSSELL W. DORAN, )
Respondent. )
On February 18, 1993, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
For Petitioner: D. David Sessions, Esquire
Assistant General Counsel Department of Law Enforcement Division of Criminal Justice
For Respondent: Bruce G. Howie, Esquire
St. Petersburg, Florida 33743 STATEMENT OF THE ISSUES
The Amended Administrative Complaint in this case, Criminal Justice Standards and Training Commission Case No. L-2767, alleges essentially that the Respondent, Russell W. Doran, violated Sections 943.1395(5) and (6) and 943.13(7), Fla. Stat. (1991), and F.A.C. Rule 11B-27.0011(4)(b) and (c), by
unlawfully and knowingly giving false information to members of the Clearwater Police Department concerning the alleged commission of a crime.
The Respondent requested formal administrative proceedings on this matter, and the matter was referred to the Division of Administrative Hearings on November 3, 1992. By Notice of Hearing issued on November 25, 1992, the case was scheduled for final hearing in Clearwater on February 18, 1993.
At the outset of the final hearing, the parties had Joint Exhibit 1 admitted in evidence. The Petitioner then called eight witnesses and had Petitioner's Exhibits 1 through 7 admitted in evidence. (Petitioner's Exhibit 3 consists of six photographs marked "a" through "f." Petitioner's Exhibit 4 is a videotape.) The Respondent testified in his own behalf and also called four other witnesses. Respondent's Exhibit 1, the curriculum vitae of the Respondent's expert witness, was admitted in evidence, but the Petitioner objected to the introduction of Respondent's Exhibit 2, the videotape of a sodium brevital interview, and the objection is sustained. See Conclusions of Law.
At the end of the hearing, the Petitioner ordered the preparation of the transcript of the final hearing, and the parties were given ten days from the filing of the transcript for filing proposed recommended orders, which were to include any further arguments the parties wished to make on the admissibility of Respondent's Exhibit 2. The transcript was filed on March 22, 1993, but only the Petitioner filed a proposed recommended order. The proposed findings of fact contained in the Petitioner's proposed recommended order are accepted and incorporated to the extent not subordinate or unnecessary.
The Respondent, Russell W. Doran, was certified as a law enforcement officer by the Petitioner, the Criminal Justice Standards and Training Commission, on November 19, 1982. He holds Certificate Number 02-32144. He was employed as a police officer by the City of Clearwater Police Department from July 12, 1982, through December 6, 1990.
On the evening of November 10, 1990, at approximately 8:06 p.m., while on duty patrolling by himself in a squad car in the Clearwater Beach area, the Respondent radioed the police dispatcher to advise that he was at 1198 Mandalay Point, which is in an exclusive residential area at the north end of the beach called Carlouel, and that he had seen a black male slipping from the the front of the house there towards the side and back of the house. The Respondent advised that he was going after the suspect and asked the dispatcher to call for backup.
After his initial transmission, the Respondent did not call back, and the radio dispatcher was unable to raise the Respondent on the police radio. Several officers in the area who overheard the dispatcher's transmissions, in addition to those specifically asked to respond, headed for the Respondent's location.
The first officers to arrive saw the Respondent's empty squad car parked in front of the driveway to 1198 Mandalay and began looking for the Respondent. While they were looking, they heard an emergency radio transmission coming from the Respondent's squad car. When they got back to the squad car, they saw the Respondent lying on the front seat of the car with his head towards the steering wheel and his legs out the passenger-side door. He was apparently unconscious. Apparently, he had returned to the car, opened the passenger side of the car, leaned into the car, put the keys in the ignition and pushed the emergency radio signal.
The first officers at the scene pulled the Respondent out of the car and laid him on his back in the street. His shirt was soaked with a liquid that smelled like, and was, gasoline. He had a small cut and a small amount of blood on the back of his head. The officers called the dispatcher to report what had
happened and to ask for emergency medical technicians and for more help to the seal off the area and search for the apparent assailant while the Respondent was being attended.
Immediately, a Morton Plant Hospital ambulance was dispatched to the scene, and as many units from the west side of Clearwater as possible were sent at high speed to the Carlouel area. When they arrived, they sealed off the area from the south, where a wall separated Carlouel from the rest of Clearwater Beach. The only other ways to escape from the scene would have been by boat-- either to the west to the Gulf of Mexico, to the east to the Intracoastal Waterway, or to the north towards Caladesi Island--or by walking or swimming across the shallow water to Caladesi Island, from which one would have to leave by boat or swim approximately a half mile across the Intracoastal Waterway to Dunedin.
To apprehend the apparent suspect, the Clearwater Police sent two K-9 units to the scene to trail the freshest scents. The also had them search the house at 1198 Mandalay and all the nearby houses in Carlouel. Other officers scoured the area. They searched the immediate area and searched the beaches to the north and west of 1198 Mandalay, both by foot and by all-terrain vehicle. They went door to door throughout Carlouel to ask residents for information. They searched every dock and every boat in Carlouel. In addition, the police helicopter was dispatched to the scene and participated in the search. Meanwhile, a road block was set up at the entrance to Carlouel and all vehicles going north or south were stopped, checked and questioned. Clearwater Police also enlisted the help of the United States Coast Guard to stop and search boats in the Intracoastal Waterway, and the rangers on Caladesi Island were alerted. Crime scene investigators also were dispatched to the scene.
As the searches were put in motion, the Respondent opened his eyes and looked at the officer helping him. Although he had worked with all of the officers at the scene and knew them well, he acted as if he did not know any of them, acted scared of them, and tried to get away from them. The officers were required to physically restrain them. The Respondent acted incoherent and confused. He did not communicate with any of the officers and continued to act as if he did not know who any of them were. The officers assumed that he had incurred a concussion and had amnesia.
Out of concern for the Respondent's apparent medical condition, the officers were insisting that the Bayflight emergency medical helicopter also be dispatched to the scene to transport the Respondent to Bayfront Hospital to be seen as soon as possible at its neurological unit for head trauma. The emergency medical technicians vetoed this request. They saw no medical reason to helicopter the Respondent to Bayfront. There was little of the bleeding and swelling that would be consistent with a concussion or any blow to the head hard enough to cause a concussion or amnesia. They also observed that the Respondent's combativeness and other behaviors were not consistent with "retrograde amnesia," which frequently is seen with head trauma patients. With "retrograde amnesia," the patient is more likely to simply repeat questions over and over. The ambulance transported the Respondent to the Morton Plant emergency room, where he was admitted to the hospital.
Meanwhile, the search for the Respondent's supposed assailant continued until approximately 11:30 p.m., but no one was apprehended, and there were no suspects. There were no footprints leading away from 1198 Mandalay. The dogs picked up no trails other than the Respondent and the first officer to arrive at the scene. There were no witnesses to anything suspicious. At the
crime scene, some bushes had been trampled in the front of the house where the dogs indicated the Respondent had been. There also was a broken beverage bottle on the side of the house, where some cloth soaked with gasoline also was found, and where there was a strong odor of gasoline. The bottom and neck of the bottle were intact; the middle of the bottle had been shattered. The officers also found two beverage bottles under a palm tree on the front law of the house at 1198 Mandalay. The beverage contents had been decanted, and the bottles were filled with gasoline and wrapped together in a black T-shirt.
While the investigation continued, the Respondent remained in the hospital. At first, he seemed to have total amnesia and not recognize anyone. But while he still acted as if he did not know some people, and acted towards them as if he did not even know who he was, he acted towards a select two as if he knew exactly who they were and who he was. Specifically, while still acting towards others as if he had amnesia, the Respondent had normal conversation with Christine Collin, a fellow police officer who was his former girlfriend, and with Alan Whitacre, another fellow police officer who was Collin's current boyfriend.
The Respondent had known Collin for approximately three years. She was a police aide when he first met her. Later, she got her certificate and was sworn as an officer in the Clearwater Police Department. They became friends, and the relationship became romantic and intimate. The two discussed at length the problems in the Respondent's marriage and the Respondent's ambivalence about staying married. The Respondent indicated to Collin that he was still married only for the sake of his young son.
In September, 1990, Collin decided to end the affair with the Respondent and to begin dating others. In approximately October, 1990, she made it known to the Respondent that she was seeing Whitacre. The Respondent acted as if he understood Collin's decision, in view of his marriage, and as if he was supportive of Collin. But on November 10, 1990, the Respondent called Collin and asked her to lunch. He said that his wife had gone to a wedding even though he had not been invited and it was his birthday. He indicated that this upset him and, to him, underscored the weakness of his marriage. He then told Collin that he was in love with her. He still was ambivalent about his marriage but professed that he was ready to end it. Collin was surprised and did not react as the Respondent had hoped. Eventually, she told the Respondent that she did not want him to be in love with her and that she did not want to resume their affair.
When he heard Collin's response, the Respondent became even more depressed about the entire situation in which he found himself. The Respondent felt trapped in his marriage. His wife's father is a former major in the Clearwater Police Department. During the course of the rest of the day, in bits and pieces, the Respondent hatched an ill-conceived scheme to extricate himself from the situation. He decided to fake an arson attempt and fake being assaulted and hit over the head, hard enough to be knocked out or injured, with a bottle containing gasoline supposedly being used by the arsonist. He hoped that this would be enough to get himself out of the situation at least for a few weeks. It is possible that he also planned to fake amnesia, thinking that somehow this would enable him to get out of his marriage and pursue his love interest with Collin.
After dinner, between approximately 7:30 and 8:00 p.m., the officer who was riding with the Respondent that day returned to the local police substation. The Respondent used this opportunity to stop and get three empty
beverage bottles out of a trash dumpster. He then went to a service station and filled the bottles with gasoline. He stopped at a store and bought a T-shirt.
He used the T-shirt to wrap together two of the bottles of gasoline so that he could carry them in one hand. He then drove north to a secluded area of the beach and 1198 Mandalay, a house the Respondent knew from previous patrols probably was vacant. The Respondent parked his squad car and got the bottles and T-shirt out of the trunk. He placed the two bottles he had wrapped together at the base of a palm tree on the front lawn. He then went up to the side of the house, which appeared to be unoccupied. At this point, he began to have second thoughts about what he was about to do, thinking that it was "ridiculous." He gave some thought to just "eating a bullet" instead. But, following his plan, he telephoned the dispatcher and falsely reported sighting a black male in front of the house. See Finding 2. He then attempted to crack himself in the head.
To the Respondent's great dismay, after calling the dispatcher, he found that it was not as easy as he had hoped to knock himself out or injure himself. It also hurt more than he planned. Instead, he decided to hold the bottle over his head in one hand and break it with his police flashlight with the other hand. The glass shattered, spilling gasoline over the Respondent's neck and upper back. The Respondent took a shard of glass and cut himself in the back of the head to make it look like the bottle shattered when it struck him in the head. He then walked back to his squad car.
Back at his squad car, the Respondent saw that another police vehicle already had arrived at the scene. He decided to push the emergency call button in the car and fake unconsciousness. If he had not already decided to do so, he also decided to fake amnesia.
Once he initiated his scheme, the Respondent found that, rather than getting himself out of a stressful dilemma, he had gotten himself into another one that was just as difficult to get out of. Between November 10 and December 5, 1990, the Respondent made various false statements to various people, including investigating law enforcement officers. At times during this time period, especially at first, the Respondent professed that he had total amnesia. Later, he said he had partial memory. Some of the false statements he made to law enforcement officers investigating the matter were under oath; some were not. Some of the statements he made were inconsistent, as his story changed to meet contradictory evidence that had been obtained and to explain prior inconsistent statements with which he was confronted. Eventually, on December 6, 1990, as part of an agreement under which the Clearwater Police Department would allow the Respondent to resign and not have him prosecuted, the Respondent made a tape-recorded and written statement, under oath, in which he essentially admitted to what he had done.
In this case, the Respondent is taking the position essentially that neither his admissions to nor his denials of false statements to law enforcement authorities were true. He claims that, in truth, he never has had, and still does not have, any actual present memory of what happened on or about November 10, 1990. He claims that, initially, he had temporary total amnesia. He claims that the false statements he initially made about what happened on that day were the product of his efforts to piece together, and make sense of, bits and pieces of information that were "leaked" to him. Essentially, he states that he now believes he "created" a memory for the police to help them solve the crime, and to help him make sense out of what everyone was telling him. Essentially, he says the same process was at work when he later admitted to his false statements. He claims that, when investigators disclosed to him their
difficulties with the inconsistencies and illogic of some of the Respondent's statements, they essentially convinced him that his earlier statements must have been wrong and that the Respondent "must have done it." The Respondent claims that, in actuality, he has no present recollection of what happened on November 10, 1990.
As reflected in these Findings of Fact, the Respondent's assertions are rejected as being the next in a series of fabrications and falsehoods invented by the Respondent in an attempt to extricate himself from the circumstances he created for himself.
The Respondent attempted to base his latest fabrication on the expert testimony of a psychiatrist. But, at bottom, the psychiatrist's opinion is based on the assumption that the Respondent's selective amnesia results from an actual traumatic incident on the evening of November 10, 1990, in which the Respondent actually was assaulted by an arsonist whom the Respondent caught in the act. It has been found that no such assault ever occurred. If the Respondent was under stress from trauma resulting from the events of November 10, 1990, it was from the stress of recognizing the foolishness of what he had done, and from the personal and career repercussions that would result if was caught in his lie.
The Respondent offered in evidence the videotape of an interview given by the Respondent to his expert witness while the Respondent was under the influence of Brevitol, a drug which is known to some as "truth serum." It is found that the Respondent's evidence did not establish that the results of Brevitol interviews are the kind of evidence commonly relied upon by reasonably prudent persons in the conduct of their affairs. At best, the expert established that Brevitol and similar drug-assisted interviews are useful in obtaining certain information from persons who actually have some kind of
trauma-induced amnesia. For example, it is used with some success by health care professionals trying to diagnose and treat patients who present with amnesia and are unable to give their identity or the identity of their next of kin, friends or neighbors, or any other necessary personal information. The evidence did not establish that these interviews are commonly used to ascertain whether someone claiming amnesia is telling the truth. Nor was it established to the satisfaction of this Hearing Officer that these kinds of interviews separate fact from fantasy. (It also is possible that, if not conducted properly, the interview can result in suspect, sleepy affirmations to leading questions, but this defect probably could be detected from a review of the interview itself.)
CONCLUSIONS OF LAW
Section 120.58(1)(a), Fla. Stat. (1991), provides that, in formal administrative proceedings:
Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably 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.
As found, it was not established that the Brevitol interview sought to be introduced in evidence by the Respondent meets the requirement of Section
120.58(1)(a) that it be "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs." The Petitioner's objection to Respondent's Exhibit 2, a videotape of the interview, is sustained.
Section 943.13(7), Fla. Stat. (Supp. 1992), provides that any person employed or appointed as a law enforcement officer or correctional officer shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."
Section 943.1395(7), Fla. Stat. (Supp. 1992), provides in pertinent part:
(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
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.
F.A.C. Rule 11B-27.0011(4)(b) includes, as an example of a certified officer's failure to maintain a good moral character, as required by Section 943.13(7), the perpetration by the officer of an act which would constitute an offense under Section 837.05, Fla. Stat. (1991), whether criminally prosecuted or not.
Section 837.05, Fla. Stat. (1991), provides in pertinent part:
Whoever knowingly gives false information to any law enforcement officer concerning the alleged commission of any crime is guilty of a misdemeanor of the first degree . . ..
F.A.C. Rule 11B-27.0011(4)(c) also includes, as an example of a certified officer's failure to maintain a good moral character, as required by Section 943.13(7):
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 . . ..
The facts in this case establish violations under all of the cited statutes and rules. In view of the facts and circumstances of the violations, revocation would be the only appropriate disciplinary response.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking the certification of the Respondent, Russell W. Doran.
RECOMMENDED this 27th day of April, 1993, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1993.
D. David Sessions, Esquire Assistant General Counsel Department of Law Enforcement Division of Criminal Justice
Bruce G. Howie, Esquire Battaglia, Ross, Hastings & Dicus 980 Tyrone Boulevard
St. Petersburg, Florida 33743
A. Leon Lowry, II, Director Criminal Justice Standards
James T. Moore Commissioner
All parties have the right to submit to the Criminal Justice Standards and Training Commission written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Criminal Justice Standards and Training Commission concerning its rules on the deadline for filing exceptions to this Recommended Order.
