DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
vs. ) Case No. 01-1276PL
FRANCIS J. FOLEY, JR., )
Respondent. )
Pursuant to notice, a formal hearing was held in this case on June 7, 2001, via video teleconference, with Petitioner appearing in Tallahassee and Respondent appearing in Tampa, Florida, before Lawrence P. Stevenson, the duly- designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Philip W. Lindley, Esquire
For Respondent: Jeffrey A. Blau, Esquire
Whether Respondent committed the offenses set forth in the Administrative Complaint dated July 14, 2000, and, if so, the penalty which should be imposed.
In an Administrative Complaint dated July 14, 2000, the Criminal Justice Standards and Training Commission ("Commission") charged Francis J. Foley, Jr. with: a violation of Sections 837.02 and 837.06, Florida Statutes, or any lesser included offenses; a violation of Subsections 943.1395(6) and/or (7), Florida Statutes, and/or Rules 11B-27.0011(4)(a) and/or (b), Florida Administrative Code; and having "failed to maintain the qualifications established in Subsection 943.13(7), Florida Statutes, which require that a Law Enforcement officer in the State of Florida have good moral character." These charges are based on allegations in the Administrative Complaint that Respondent "did unlawfully make a false statement, which he did not believe to be true, under oath" in a deposition taken on November 19, 1997, in the criminal prosecution of Erron Evan Matthews, and that Respondent "did unlawfully and knowingly make a false statement in writing with the intent to mislead the Hillsborough County Sheriff's Office and the State Attorney's
Office, Thirteenth Judicial Circuit, Tampa, Florida," in the same case.
The Administrative Complaint was served on Respondent on July 17, 2000. He timely disputed the facts in the Administrative Complaint and requested a formal hearing. The Commission transmitted the matter to the Division of Administrative Hearings in a Request for Assignment of Administrative Law Judge dated April 3, 2001. Pursuant to notice, a final hearing was held on June 7, 2001.
Prior to the hearing, on June 4, 2001, Respondent filed a motion seeking to suppress the transcript of the March 11, 1998, proceeding before Circuit Court Judge Mitcham. The Commission filed a response to the motion, also on June 4, 2001. Argument was heard on the motion at the final hearing, and the undersigned ordered that the transcript be suppressed. During the course of the proceeding, counsel for the Commission contended that certain areas of inquiry by Respondent's counsel opened the door for admission of the transcript and of an internal affairs report conducted after the charges against Mr. Matthews were dismissed. The undersigned afforded the parties the opportunity to file written argument on the motion to admit these documents.
After considering the written submissions, the undersigned entered an order, dated June 20, 2001, granting the motion to
suppress both documents. The Commission was allowed to complete the record by submitting the proffered documents under seal. The suppressed documents have not been reviewed by the undersigned and played no role in this Recommended Order.
At the hearing, the Commission presented the testimony of Terri Oster, who at the times pertinent to this proceeding was an assistant state attorney for the Thirteenth Judicial Circuit in Tampa, and Noel McDonell, who at the times pertinent to this proceeding was an assistant state attorney for the Twelfth Judicial Circuit and who acted as appointed conflict prosecutor in the prosecution of Respondent that followed the dismissal of charges against Mr. Matthews. The Commission's Exhibits 1 through 3 were offered and received into evidence. Two of the Commission's proposed exhibits were suppressed, as discussed above. Respondent testified in his own behalf, and offered no exhibits.
The Transcript of the proceedings was filed with the Division of Administrative Hearings on June 15, 2001. The Commission timely filed proposed findings of fact and conclusions of law. Without objection, Respondent was granted an extension and filed a Proposed Recommended Order on
August 3, 2001.
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of law enforcement
officers. Subsection 943.12(3), Florida Statutes.
Respondent was certified by the Commission as a law enforcement officer on May 8, 1992, and was issued Correctional Certificate No. 35929. Respondent was issued Law Enforcement Certificate No. 149629 on February 13, 1995.
Respondent was employed by the Hillsborough County Sheriff's Office as a deputy sheriff when the events in controversy took place.
On July 12, 1997, Respondent was on duty and dispatched to 802 Bama Road in Brandon to conduct a criminal investigation of vandalism to an automobile. The complainant was Joseph Ouellette, owner of the vehicle. All of the windows of the car had been smashed out, and there was damage to the hood of the car.
On the scene, Respondent interviewed Mr. Ouellette, his daughter Jennifer Ouellette, and Mary Miller,
Ms. Ouellette's grandmother, all of whom listed 802 Bama Road
as their address of residence. Respondent took photographs of the damaged vehicle and obtained written witness statements from Ms. Ouellette and Ms. Miller. Based upon the information he received on the scene, Respondent proceeded to the residence of Erron Matthews, in order to arrest him.
Mr. Matthews was not at home. Respondent arrested Mr. Matthews two days later.
On July 12, 1997, Respondent filed an Incident Report and a document titled "Criminal Report Affidavit/Notice to Appear." The former document contained Respondent's narrative of his investigation and the written witness statements. The latter document, sworn to by Respondent as to its correctness, summarized Respondent's investigation, concluded that
Mr. Matthews was the perpetrator, and charged Mr. Matthews with felony criminal mischief.
Mr. Ouellette was listed as the complainant because he owned the damaged vehicle. Though Mr. Ouellette owned the vehicle, the witnesses referred to it as his daughter's car. Mr. Ouellette did not witness the damage being done.
Ms. Ouellette also did not witness the damage being done to the vehicle. Her statement detailed an altercation she had with Mr. Matthews earlier in the evening at a friend's house, which culminated in Mr. Matthews making repeated threats to "kick my ass, or do some damage." Ms. Ouellette
stated that she went home and went to bed, but was awakened by noises outside the house. She got up and went to the front door. She heard a car speeding away, then went outside to find that her car had been vandalized.
Ms. Miller's written statement was as follows, without correction:
I was awakened by unexplained sounds from outside my apartment around 4:15 a.m. I got up & looked out my window which looks out on the drive-way. I saw a young man dressed in shorts & white t-shirt baseball bat breaking out the windshield of my
grand-daughters car. He had a white bat in his hands, larger than standard baseball bat hitting and shattering the windshield. I never saw him hit the windows only the windshield. He suddenly turned & ran & I heard car start up but did not see the car. I went & informed my daughter next door to my apartment.
Ms. Miller's written statement gives no indication that she knew the identity of the perpetrator, though the physical description generally matched that of Mr. Matthews. Respondent's Incident Report states that Ms. Miller told him that "she looked outside of her bedroom window and observed SP Erron Matthews breaking the windows of the car with a bat or an ax handle."
Respondent's sworn Criminal Report Affidavit states, "The witness identified the defendant as the perpetrator."
Ms. Miller was the only witness to the vandalism, thus the only person who would have been in a position to identify Mr. Matthews as the perpetrator.
At some point after the incident and before Mr. Matthews' scheduled trial, Ms. Miller suffered a
debilitating stroke. Terri Oster, the prosecutor, interviewed family members, all of whom asked that she not press
Ms. Miller to attempt to testify. Ms. Oster testified that her reading of Ms. Miller's statement and her conversations with the family led her to conclude that Ms. Miller did not identify Mr. Matthews as the perpetrator. In particular, Ms. Ouellette told Ms. Oster that her grandmother had never met Mr. Matthews and did not know his name.
On November 19, 1997, Respondent gave a sworn deposition at the instance of Mr. Matthews' defense counsel. Ms. Oster was also present at the deposition. During the course of the deposition, Respondent unequivocally testified that Mr. Matthews admitted the crime during the ride to the police station after Respondent placed him under arrest:
Q. When you picked him up two days later did he make stay [sic] statements to you?
A. Yes, he did. He made a spontaneous statement that he did the damage to the car. And I specifically told him that he didn’t have to say anything because I hadn’t Mirandized him yet, all right?
Q. So -–
A. But he apparently has a friend that is a son of a deputy, and the deputy had advised him to go ahead and admit to the crime. He was thinking it was a misdemeanor criminal mischief, which it was a felony criminal mischief.
Q. Right.
A. But he admitted to me that he had done the damage.
* * *
Q. Okay, when did he make the statement to you?
A. He was in the back seat of my car.
* * *
Q. So during these questions that he is asking you at what point does he make the statement?
A. He made the statement even before he started asking the questions about the legal process, because he assumed that all he was being charged with was misdemeanor criminal mischief based on what his friend hold [sic] him who was the son of a deputy.
Q. So he is engaging in conversation relating to the legal process and stuff, makes this statement. And, again, what is the statement?
A. That he, in fact, did the damage to the vehicle.
Q. So he told you, "I damaged the vehicle."
A. Uh-huh.
Q. Anything else?
A. (Witness shook head side to side.)
Q. Then what do you say to him at that point?
A. That he didn’t have to say anything else.
Q. So he didn’t proceed to tell you why or anything like that?
A. No. He didn’t give me a reason.
* * *
Q. Do you ever take him by Ms. Miller for her to identify him?
A. No.
Q. Did you do anything else in the course of your investigation?
A. That was the end of it.
Q. Just so I get this straight, Jennifer and Joseph did not see anything?
A. No.
Q. Jennifer based it on the earlier confrontation?
A. Yes.
Q. Mary Miller gave you the description; a general description?
A. Yes.
Q. You picked up Erron Matthews at his home at 2:00 a.m. He makes a spontaneous statement to you. And then he is read his Miranda rights at the transport sight [sic].
A. Yes.
Q. Did I miss anything?
A. No. That is pretty much it.
Despite the lack of an eyewitness able to identify Mr. Matthews as the perpetrator, and despite learning that Mr. Matthews intended to produce alibi witnesses placing him
elsewhere at the time of the crime, Ms. Oster decided that she had enough evidence to take the case to trial. Her basis for this decision was the fact that Mr. Matthews had admitted to Respondent that he committed the crime.
On March 9, 1998, two days before the trial,
Ms. Oster followed her normal routine, contacting her witnesses to make sure they were aware of the trial date and were available at the prescribed time. Ms. Oster spoke to Respondent. She testified that he asked why the case was going to trial in light of Mr. Matthews' admission that he committed the crime. Ms. Oster testified that Respondent gave her no indication there was a problem with proceeding to trial.
On March 10, 1998, Ms. Oster met with Respondent to go over the questions she would ask him at the trial. When she asked Respondent whether the defendant made any statements, Respondent paused, then answered in the negative. Ms. Oster then refreshed Respondent's recollection with the questions and answers from his deposition concerning
Mr. Matthews' admission. After this prompting, Respondent confirmed that the deposition was correct and that
Mr. Matthews had admitted to the crime.
On March 11, 1998, the morning of the trial,
Ms. Oster met all of her witnesses at the state attorney's office. She separated them, and gave each witness a copy of his or her deposition to read before the case was called for hearing. She gave Respondent a copy of his deposition.
At that point, Respondent told Ms. Oster that his deposition testimony was not entirely accurate. She asked him what he meant. Respondent told her that Mr. Matthews did not admit doing the damage to the vehicle. Ms. Oster went over the deposition with Respondent and asked him why it said something different than what he was now telling her. After a lengthy pause, Respondent told her that he arrested
Mr. Matthews and told him why he was being arrested, and that Mr. Matthews did not deny doing the damage. Respondent told Ms. Oster that he took Mr. Matthews' silence as an admission.
Ms. Oster conferred with her supervisor, to get a second opinion on how to proceed with the case. The supervisor, Nick Nazaretian, met with Respondent and discussed the discrepancy between his deposition testimony and his current statements. Ms. Oster and Mr. Nazaretian then conferred and decided, based on the other facts of the case
and the defendant’s having alibi witnesses, that they could not go forward with the case. Ms. Oster entered a notice of nolle prosequi and the court dismissed the charges against Mr. Matthews.
At the hearing in the instant case, Respondent testified that when Ms. Oster interviewed him on March 11, he simply could not recall whether Mr. Matthews had made spontaneous statements about doing the damage to the vehicle. Respondent’s testimony is not credible on this point. Respondent’s deposition testimony states that Mr. Matthews affirmatively admitted to the crime. Ms. Oster testified that if Respondent’s problem had been a simple failure of memory, she could have taken steps to place his deposition testimony on the record and thereby save her case against Mr. Matthews. However, Ms. Oster stated that Respondent told her that
Mr. Matthews did not affirmatively admit to the crime. Thus, Respondent’s deposition testimony was not credible and Ms.
Oster could not ethically attempt to place it on the record, leaving her no choice but to dismiss the case.
Ms. Oster's testimony as to the events of March 11, 1998, is credited.
Respondent's false version of his encounter with Mr. Matthews on July 12, 1997, given under oath, was a statement that Respondent did not believe to be true when he
gave it. Respondent’s deposition testimony was material to the case against Mr. Matthews, intended to mislead his superiors and the state attorney’s office. Respondent’s actions in this instance demonstrate a lack of good moral character.
Respondent’s statement that Ms. Miller identified Mr. Matthews as the perpetrator was probably untrue, but the evidence was insufficient to demonstrate that Respondent made the statement with the intent to mislead his superiors or the state attorney’s office. Ms. Miller was unavailable to give her version of the conversation with Respondent, so there was no direct evidence to contradict Respondent's statement. Even if Ms. Miller did not tell Respondent that Mr. Matthews was the perpetrator, it cannot be said with the requisite degree of certainty that Respondent made his statement in the Criminal Report Affidavit with the intent to mislead the public servants involved. It is plausible that Respondent wrote his affidavit as a form of shorthand, given that he had already concluded that Mr. Matthews was the perpetrator and that Ms. Miller’s physical description generally matched that of Mr. Matthews.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.569 and
Subsection 120.57(1), Florida Statutes.
Subsection 943.13(7), Florida Statutes, requires that any person employed as a law enforcement officer "[h]ave a good moral character as determined by a background investigation under procedures established by the Commission." Subsection 943.1395(7), Florida Statutes, provides as follows:
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 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.
Rule 11B-27.0011, Florida Administrative Code, provides, in relevant part:
For the purposes of the Commission's implementation of any of the penalties enumerated 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:
The perpetration by the officer of any act which would constitute a felony offense, whether criminally prosecuted or not.
The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:
1. Section . . . 837.06 . . . .
Because the Commission seeks to revoke Respondent's certification as a law enforcement officer, the Commission must prove by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 933-34 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
The Commission has charged Respondent with failing to maintain good moral character on the ground that he committed acts prohibited in Subsection 837.02(1), Florida Statutes, by unlawfully making a false statement that he did not believe to be true under oath in an official proceeding. Violation of Subsection 837.02(1), Florida Statutes, constitutes a third degree felony, which brings it within the ambit of Rule 11B-27.0011(4)(a), Florida Administrative Code.
The Commission demonstrated by clear and convincing evidence that Respondent’s deposition testimony, quoted at length above, was false. The Commission demonstrated by clear and convincing evidence that Respondent could not have believed his deposition testimony to be true at the time he gave it. Respondent’s false testimony was material to the prosecution of Mr. Matthews. Indeed, Ms. Oster’s testimony established that Respondent’s deposition testimony that
Mr. Matthews admitted to the crime was the main reason she prosecuted the case.
The Commission has charged Respondent with failing to maintain good moral character on the ground that he committed acts prohibited in Sections 837.06, Florida Statutes, by knowingly making a false statement in writing with the intent to mislead the Hillsborough County Sheriff’s Office and the State Attorney’s Office of the Thirteenth Judicial Circuit. Violations of Section 837.06, Florida Statutes, are enumerated in Rule 11B-27.005(6), Florida Administrative Code.
The Commission failed to demonstrate by clear and convincing evidence that Respondent’s Criminal Report Affidavit stating, "The witness identified the defendant as the perpetrator" was knowingly false and intended to mislead the named public servants. Ms. Miller, who was without
question the "witness" referenced in Respondent’s affidavit, filed a written statement that did not identify Mr. Matthews as the perpetrator. Further, Ms. Ouellette told Ms. Oster that her grandmother did not know Mr. Matthews.
Nonetheless, Respondent’s Incident Report stated that Ms. Miller told him that she observed Mr. Matthews damaging the car, and there was no direct evidence contradicting Respondent's statement. Ms. Miller’s written statement included a physical description of the perpetrator that generally fit the description of Mr. Matthews. Given the burden of proof in this proceeding, it cannot be concluded that Respondent intended his statement to mislead. It is plausible that he concluded from Ms. Miller’s physical description that she was describing Mr. Matthews, and that Respondent’s statement in the Criminal Report Affidavit reflected that conclusion without intending falsity.
Rule 11B-27.005(5)(a), Florida Administrative Code, provides that the recommended penalty for violations of Section 837.02, Florida Statutes, is revocation of the offender’s certificate, absent mitigating circumstances.
Rule 11B-27.005(6), Florida Administrative Code, provides a catalog of aggravating and mitigating circumstances that may be considered in relation to the recommended penalty. The aggravating circumstances applicable to this case are the
severity of the misconduct and the actual damage caused by the misconduct. "[P]olice officers who are sworn to enforce the laws lose credibility and public confidence if they violate the very laws they are sworn to enforce." City of Palm Bay v. Bauman, 475 So. 2d 1322, 1326 (Fla. 5th DCA 1989). The
court's observation applies with special force when the violation reaches the core functions of a police officer's duties, such as the duty to testify truthfully about his investigations. Had Respondent told the truth from the outset of the case, it is likely the case would not have been prosecuted. None of the listed mitigating circumstances apply in this case.
In conclusion, the Commission has proven by clear and convincing evidence that Respondent did not maintain the qualifications required of a law enforcement officer with respect to being of good moral character.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint as they relate to his deposition testimony of November 19, 1997, and revoking Respondent's certification as a law enforcement officer in the State of Florida.
DONE AND ENTERED this 6th day of August, 2001, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2001.
Jeffrey A. Blau, Esquire 1511 South Church Avenue Tampa, Florida 33629
Phillip W. Lindley, Esquire Assistant General Counsel
Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
