The Issue Should Petitioner impose discipline on Respondent in association with his Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on May 19, 1984, and was issued Correctional Certificate No. 31730. On January 21, 1981, he had been issued Law Enforcement Certificate No. 31731. Finally, on September 18, 1997, Respondent was issued Instructor Certificate No. 207101. On May 7, 2002, Respondent was employed as a correctional officer at Hernando Correctional Institution (the facility) in Brooksville, Florida. He held the rank of sergeant. The facility has an area within its confines referred to as a control room. Within that control room are lock boxes containing keys. Those keys provide access to certain places within the facility. Only designated persons within the facility may open the lock boxes to obtain keys to gain access to the discrete areas within the institution. Other persons are not allowed to open the lock boxes to obtain the keys found in the lock boxes. On May 7, 2002, while in the control room, Respondent used channel lock pliers to manipulate the lock assembly on two separate lock boxes. Respondent was not entitled to access those lock boxes. The circumstances involving Respondent's attempt to access the lock boxes led to an investigation by the Department of Corrections Inspector General's Office. Inspector Cecil W. Rogers, II, an institutional inspector with the Department of Corrections was assigned to investigate the matter. As part of the investigation, Inspector Rogers interviewed Respondent using procedures consistent with the expectations of the interview process. In the interview Respondent was placed under oath before offering his responses. In the interview Inspector Rogers asked Respondent if the Respondent had attempted to unlock the lock boxes in any manner, or obtain entry into the lock boxes. Respondent replied that he did not enter the control room at the time he was accused of being there and did not try to access the boxes.
Recommendation Upon consideration of facts found and Conclusions of Law reached, it is RECOMMENDED that a final order be entered finding the violations of the statutes and rules and suspending the Respondent's Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate for 60 days. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Bob Bishop, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Rod Caswell, Program Director Division of Criminal Justice 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
Findings Of Fact Respondent, Marcel C. Johnson, is a certified law enforcement officer having been issued certification number 0235217 on March 2, 1982 by petitioner, Criminal Justice Standards and Training Commission. Until 1985 or early 1986, he was employed as a police office by the City of Miami. On or about April 15, 1986 Johnson pled nolo contendere to possession of a controlled substance - cocaine, a third degree felony. Adjudication of guilt was withheld and Johnson was placed on three years' probation and required to perform 150 hours of community service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's law enforcement certification number 0235217 be REVOKED. DONE AND ORDERED this 14th day of August, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1987. COPIES FURNISHED: Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302 Mr. Marcel C. Johnson 2105 Northwest 56th Street Miami, Florida 33142 Mr. Rod Caswell, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Mr. Robert R. Dempsey Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint dated July 14, 2000, and, if so, the penalty which should be imposed.
Findings Of Fact 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.
Recommendation 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 Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2001. COPIES FURNISHED: Jeffrey A. Blau, Esquire 1511 South Church Avenue Tampa, Florida 33629 Phillip W. Lindley, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice 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
