STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING, )

)

Petitioner, )

)

vs. ) Case No. 96-5330

)

MICHAEL D. MITTELMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on April 17, 1997, in Daytona Beach, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul D. Johnston, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Craig S. Boda, Esquire

444 Seabreeze Boulevard Suite 780

Daytona Beach, Florida 32118 STATEMENT OF THE ISSUES

1. Is Respondent guilty as charged in the Administrative Complaint of violations of Sections 943.1395(6) and/or (7) and Section 943.13(7), Florida Statutes, and/or Rule 11B- 27.0011(4)(a) Florida Administrative Code?

2. If found to have violated any of the named statutory or rule provisions, what is the appropriate penalty?

PRELIMINARY STATEMENT

On August 29, 1996, Petitioner Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint seeking to discipline Respondent's law enforcement certification. The Administrative Complaint alleged that Respondent failed to maintain the qualifications of a law enforcement officer, i.e. good character, because Respondent, "knowing that a criminal trial or proceeding or an investigation by a duly prosecuting authority or law enforcement agency of this state was pending or was about to be instituted, did alter, destroy, conceal, or remove any record or document, or thing with the purpose to impair its verity or availability in such proceeding or investigation, to wit:

removed a traffic citation . . . and replaced it with another traffic citation."

At the commencement of formal hearing, inquiry was made on the record and an oral order was entered substituting Attorney Craig Stephen Boda for Attorney Richard Siwica as Respondent's counsel of record. That oral order is memorialized here.

Joint Exhibit A, the parties' joint prehearing stipulation, was admitted in evidence. Petitioner presented the oral testimony of Laverne Irving and Michael Citro and had one exhibit admitted in evidence.

At the close of Petitioner's case-in-chief, Respondent moved for a summary recommended order in Respondent's favor. In the absence of an opportunity to fully research the statutes, rule, and case law, the motion was denied, subject to revisitation within this Recommended Order.

Thereafter, Respondent elected to stand mute and present no evidence.

A transcript of proceedings was filed in due course, and Petitioner's Proposed Recommended Order was timely filed.

Respondent's motion to enlarge the time for filing Respondent's Proposed Recommended Order was filed beyond the date established for filing proposals and was denied.

FINDINGS OF FACT

1. The parties stipulated as follows:

   
   

   1. Respondent was certified by the Criminal Justice Standards and Training Commission on September 12, 1988 as a Law Enforcement Officer, and was issued certificate number 106711.

   2. At all times relevant to this matter, Respondent was certified in the above area and was employed by the Daytona Beach Public Safety Department.

   3. On January 25, 1996, Officer Christopher N. Jones issued Florida Uniform Traffic Citation No. 552339-P to Donald W. Culmer.

   4. On January 28, 1996, Respondent approached Records Clerk Laverne Irving and asked to see Citation No. 552339-P. Ms.

      Irving retrieved Citation No. 552339-P from a stack of citations she had just sorted. She crisscrossed the stack, marking the location for Citation No. 552339-P to be returned. Ms. Irving then handed Citation No. 552339-P to Respondent. Respondent left with Citation No. 552339-P and returned a short time later.

      Respondent retained personal possession of Citation No. 552339-P.

      
      

   5. Citation No. 552339-P, retained by Respondent, was a record document involved in the investigation and prosecution of Donald W. Culmer for a traffic violation.

2. Before Ms. Irving gave Citation No. 552339-P to Respondent, she had already entered the citation number, the driver's name and address, and the charges against the driver into the computer. This computer entry makes a transmittal form for the Clerk of Court. The transmittal form, however, only lists the citation number and date. (TR 25-26, 31)

3. Officers often make corrections on their own citations in Ms. Irving's cubicle. (TR 23) Citation No. 552339-P was not issued by Respondent, but sometimes officers ask to look at other officers' citations. It is not normal to request to remove another officer's citation, but Respondent's request was made openly. (TR 23-24) Respondent gave Ms. Irving Mr. Culmer's name, and she looked up the citation on the computer system, in order to locate the original citation for Respondent. (TR 24) Therefore, Respondent knew the contents of the original citation were already entered in the computer.

4. Citation No. 552339-P alleged that Mr. Culmer had violated Section 316.075(3)(a), Florida Statutes, "violating a traffic control device," by running a red light, "an infraction which does not require appearance in court." (P-A)

   
   

5. Ms. Irving asked Respondent if he wanted her to delete Citation No. 552339-P from the computer. He told her not to delete it. (TR 26-28)

6. If she had deleted the citation information from the computer, Ms. Irving would have copied the citation itself, so that she could re-enter it in the computer when the original was returned, but under those circumstances, her current transmittal list to the Court Clerk would never have reflected Citation No. 552339-P. (TR 27)

7. Ms. Irving let Respondent take the original citation because he told her he wanted to look at it "for corrections" and make a copy of it. (TR 25)

8. When Respondent returned in about 30 minutes, Ms. Irving believes she watched him put a citation back in the stack. However, she concedes they both could have handled the stack.

   (TR 19, 28)

   
   

9. Another thirty minutes later, Ms. Irving found Citation No. 550611-P in place of Citation No. 552339-P. The wrong citation was not Officer Jones' citation or Respondent's citation

   but the citation of a third officer (TR 37-38)

   
   

10. The wrong citation was easy to spot because it was not in numerical order and did not have a check mark on it.

    Ms. Irving customarily put a check mark on each citation and stacked it in numerical order as she entered it in the computer. (TR 18-19)

11. Ms. Irving also determined that the wrong citation was not even from the stack with which she had been working. This record does not explain how Respondent or anyone else would have had the third officer's citation to substitute for Mr. Culmer's citation.

12. However, since no one else was in her cubicle at that time, Ms. Irving further concluded that Respondent had put the third officer's citation in the place of Officer Jones' Citation No. 552339-P, which had related to Mr. Culmer. (TR 18-20, 28)

13. As standard operating procedure, once Ms. Irving processes traffic citations, they go to the Clerk of the Court for prosecution. If a citation is removed from the stack of originals, prosecution does not occur. However, when Ms. Irving's computer list reaches the Clerk, if a citation number which is on the transmittal slip is not also physically present, the Clerk would know that an original citation was missing. The system allows the Clerk or anyone to know the missing citation number and the date it was entered, but not the nature of the traffic offense charged. (TR 21, 26, 31)

14. When paperwork is lost, Ms. Irving's standard operating procedure is to try to track it down. (TR 30-31)

15. The substitution of a different citation number clearly would incite inquiries by the Clerk and Ms. Irving. (TR 26, 30-31)

16. Ms. Irving had been in her position for fourteen years. (TR 22-23) Respondent had previously worked in the vicinity of her records cubicle. (TR 30)

17. Respondent never asked Ms. Irving to delete Citation No. 552339-P from the computer so that it would not be prosecuted or tracked/located. (TR 26-28, 31)

18. The Daytona Beach Public Safety Department has an official "voidance procedure" in place. This voidance procedure requires the citing officer's participation so as to drop the traffic charges on a citation. The usual procedure is for the citing officer to approach his supervisor with the original citation or request Ms. Irving to do so. (TR 29-30, 42-43)

19. Respondent admitted to Daytona Beach Public Safety Department Internal Affairs Investigator Michael Citro on March 21, 1996, that Mr. Culmer's employer had asked Respondent to speak to Officer Jones, the officer who had issued Citation No. 552339-P, about dropping the charges against Mr. Culmer. Respondent admitted to having Mr. Culmer's copy of the citation and to taking the original citation from Ms. Irving's desk to show to Officer Jones when he could discuss the matter with him.

    Respondent denied to Investigator Citro that he had substituted a different citation. (See, Findings of Fact 8-15) However, he admitted that he had shuffled Ms. Irving's stack of original citations on January 28, 1996. Respondent admitted he never spoke to Officer Jones, although he had next worked with Jones on January 31, 1996. Respondent explained that he had put the original citation in his briefcase and forgotten about it. (TR 35-38, 45)

20. Mr. Culmer is a college student. (TR 44)

    
    

21. There is no evidence that Respondent ever received any monetary or other benefit from his actions with regard to Mr. Culmer's traffic citation. (TR 45)

22. Respondent returned Citation No. 552339-P to Internal Affairs officers when they asked him for it in March 1996. At that time, he returned all three original parts, but not Mr. Culmer's copy. (TR 43-44)

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.

24. Section 943.13(7), Florida Statutes, provides a minimum qualification for law enforcement officers to include:

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

25. Section 943.1395(6) authorizes the Commission to revoke the certification of any officer who is not in compliance with certain named statutes, but none that affect this case. Section 943.1395(7) permits imposing revocation or lesser penalties for failure to maintain good moral character pursuant to agency rule.

26. Rule 11B-27.0011(4)(a), Florida Administrative Code, as in effect on January 28, 1996, defined "good moral character" in pertinent part, as follows:

    1. For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.1395(6) or (7), a certified officer's failure to maintain a good moral character, as required by Section 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

    
    

27. Section 918.13, Florida Statutes, provides, in pertinent part, as follows:

    1. No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:

       1. Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceedings or investigation; or . . .

    2. Any person who violates any provision of this section shall be guilty of a felony of the third degree, . . .

28. The Commission has the duty to go forward and must establish its case by clear and convincing evidence. See, Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

29. Herein, the agency frankly acknowledges that in order to determine Respondent is guilty, his intent or "purpose" to impair Citation No. 552339-P's availability in court proceedings against Mr. Culmer must be inferred.

30. In a criminal forum, tampering with evidence is a "specific intent" offense requiring proof that the accused committed the act with the requisite specific intent to impair the verity or availability of the evidence. See, McNeil v. State, 438 So. 2d 960, (Fla. 1st DCA 1983). Intent is usually proven by circumstantial evidence and may be inferred from the actions of the accused. See, Plantation Village Ltd. v. Aycock, 617 So. 2d 729, (Fla. 2d DCA 1983); State v. Norris, 384 So. 2d 298, (Fla. 4th DCA 1980). Be that as it may, inferences are dangerous, and in license disciplinary proceedings, the case law takes a dim view of them. Usually, "clear and convincing evidence" commentaries shun them.

31. "Clear and convincing 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. See, Smith v. Department of Health and Rehabilitative Services, 522 So. 2d 956 (Fla. 1st DCA 1988); Slomowitz v. Walker, 429 So. 2d 797, 806 (Fla. 4th DCA 1983). Unlike the criminal standard, the "clear and convincing" standard does not require that

    every fact, material or otherwise, must be proven beyond and to the exclusion of a reasonable doubt, but it does mean that if, after carefully considering, comparing, and weighing all the evidence, there is not an abiding conviction of guilt based upon clearly established material facts, or if, having a conviction, it is a conviction which wavers and vacillates, the evidence is neither "clear" nor "convincing."

32. The record herein might support a determination of criminal or "immoral" intent if there were evidence unfavorable to Respondent of how soon it was necessary to get the original citation to the Court Clerk in order to prosecute Mr. Culmer's citation at the same time as similarly dated citations (those citations in the same "stack") or evidence of the prosecutor's standard operating procedure when a discrepancy between the stack of original citations and the transmittal number list occurred, or evidence of what was permissible to occur within the "voidance procedure" process and how long such a process legitimately might be drawn out, or evidence of some motive of Respondent for preventing or delaying Mr. Culmer's prosecution, but the record is silent on each of these matters.

33. Herein, there was a citation voidance procedure in place which required possession of the original citation

    and participation by the citing officer, Jones, and the supervisor. Respondent's explanation to Officer Citro, admitted in evidence at the agency's request, as a "party admission" pursuant to Section 90.803(18), Florida Statutes, is the only evidence of Respondent's intent in taking the original citation, and it is exculpatory to the effect that Respondent took the original citation in order to discuss it with Officer Jones and then simply forgot about it. It is reasonable to infer from all the evidence that Jones would need the original citation if Respondent had convinced Jones to "make corrections" on it or if Respondent had persuaded Jones to institute the voidance procedure. It is not reasonable to infer that Respondent, who had previously worked in, or near, the records department, was unaware that once Ms. Irving had put the driver's name, address, charges, and citation number data from the original citation into the computer, some effort would not be made to locate the missing original, as indeed, happened here. Also, Respondent was clearly aware, from what passed between himself and Ms. Irving on January 28, 1996, that such information was already in the computer. He also must have known that inquiries from the Clerk's office would be made of Ms. Irving if the citation numbers on her transmittal list did not match the stack of original citations received by the Clerk. Indeed, he must have known that there was

    enough information from Ms. Irving's computer entry to recreate the citation, if necessary. Since Respondent did not have the citation data in the computer deleted, even when Ms. Irving offered him that option, and he did not destroy the original citation, although he could have, the more reasonable construction of his actions is that his purpose or intent was not to render evidence unavailable for ultimate prosecution.

34. Finally, no benefit was shown to accrue to Respondent if he assisted Mr. Culmer, a stranger, in avoiding prosecution for a traffic infraction. No money changed hands. No quid pro quo of any kind was demonstrated to flow from either Mr. Culmer or Mr. Culmer's employer to Respondent for "services rendered." While "motive" and "intent" are not synonymous, without a showing of a criminal or self-serving motive, Respondent's volitional act of

    taking the citation does not demonstrate a criminal or immoral intent.

35. Respondent was clearly less than candid with Ms. Irving in how he went about securing the original citation, but neither an intent to ultimately impair the availability of the evidence nor of bad moral character sufficient to penalize Respondent's certification has been proven by clear and convincing evidence.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order that dismisses the Administrative Complaint against Respondent.

RECOMMENDED this 24th day of July, 1997, at Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.

COPIES FURNISHED:

Craig S. Boda, Esquire

457 South Ridgewood

Daytona Beach, Florida 32114

Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice

Standards and Training Post Office Box 1489 Tallahassee, Florida 32302

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 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.

Docket for Case No: 96-005330

Orders for Case No: 96-005330