The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 16th day of February, 2004.
The Issue The issue is whether Respondent's certification as a Firefighter II Compliance should be permanently revoked for the reasons stated in the Administrative Complaint (Complaint), dated June 6, 2018.
Findings Of Fact The Department is the state agency responsible for licensing and regulating firefighters in the State. Respondent is certified in Florida as a Firefighter II Compliance. He holds Certificate No. 139586. Until the incident underlying this controversy arose, Respondent was employed by the Sarasota County Fire Department as a firefighter/paramedic. He now is working in the emergency room of a local hospital. The parties have stipulated that on March 21, 2018, Respondent entered a plea of nolo contendere to aggravated assault with a weapon, a third-degree felony punishable by imprisonment of one year or more under Florida law. Adjudication was withheld, Respondent was placed on probation for a period of two years, and he was ordered to pay court costs, fines, and fees in the amount of $1,525.00. See also Dep't Ex. 19. In response to the Complaint, Respondent essentially argues that: (a) he should not have been charged with the underlying criminal offense because he was defending himself against an aggressor in a road rage incident, and (b) he entered a nolo contendere plea based on bad advice from his attorney. At hearing, Respondent gave his version of the events resulting in his arrest. Also, two police officers involved with his arrest testified to what they observed and reported. Their testimony conflicts in many respects with Respondent's testimony. The undersigned will not attempt to reconcile the conflicts, as this proceeding is not the appropriate forum in which to relitigate the criminal charge. During the criminal case, Respondent was represented by a criminal law attorney who presented him with two options: enter into a plea arrangement or go to trial and risk a harsher penalty if he were found guilty. Respondent says he accepted his counsel's recommendation that he enter a plea of nolo contendere on the belief that he would not have a felony arrest on his record. After the plea agreement was accepted by the court, Respondent learned that the plea required revocation of his certification and loss of his job. Respondent also testified that even though he paid counsel a $15,000.00 fee, his counsel did little or no investigation regarding what happened, as he failed to depose a single witness before making a recommendation to take a plea.1/ In hindsight, Respondent says he would have gone to trial since he now believes he had a legitimate claim to the "castle defense," and the so-called victim in the incident (the driver of the other car) has a long criminal history and is now incarcerated. At this point, however, if Respondent believes an error in the legal process occurred, his only remedy, if one exists at all, is through the court system and not in an administrative proceeding. A felony plea constitutes noncompliance with the certification statute and requires permanent revocation of a certification. According to a Department witness, however, five years after all requirements of the court's sentencing have been met, the Department has the authority "in a formal process" to make a "felony conviction review" that may result in the reissuance of a certification. Except for this incident, Respondent has no other blemishes on his record. He served in the United States Marine Corps, with combat tours of duty in Iraq and Afghanistan, he was honorably discharged, and he was honored for saving a life at a Target store while off-duty. He has apologized for his actions, taken an anger management course, and received further treatment for Post-traumatic Stress Disorder at a local Veteran's Administration facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order permanently revoking Respondent's certification. DONE AND ENTERED this 15th day of February, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2019.
The Issue The issue presented is whether Petitioner Amber Renae Baker has met her burden of proving actual innocence, thereby entitling her to compensation under the Victims of Wrongful Incarceration Compensation Act.
Findings Of Fact Petitioner Amber Renae Baker was born on November 25, 1963. At the time of her conviction, she was 43 years of age. On March 28, 2006, Petitioner was charged with racketeering, in violation of Section 895.03(3), Florida Statutes, relating to her participation in her brother's escort service, which was in fact an organized prostitution ring. On April 16-20, 2007, Petitioner was tried before a jury in Escambia County, Florida, on one count of racketeering. She stood trial along with her brother, Dallas Baker, who was tried on a count of racketeering and for procuring a person under the age of eighteen for prostitution, and her mother, Mary Helen Baker, who was tried for racketeering as well. During the trial, Petitioner made a motion for judgment of acquittal, arguing that the State did not produce evidence that Petitioner knowingly participated in a pattern of racketeering activity, to wit: that the State of Florida did not produce any evidence that Petitioner knew that any of the women hired by her brother to provide escort services (a legal activity) was also providing prostitution services. Petitioner further argued that the State did not produce sufficient evidence that Petitioner intended to assist in perpetuating anything more than an escort service. The trial court denied Petitioner's motion for judgment of acquittal. The jury convicted all three defendants on all charges. Petitioner was sentenced to thirty-four and one-half months of imprisonment. On September 22, 2008, the First District Court of Appeal issued an Opinion reversing the trial court's denial of Petitioner's motion for judgment of acquittal. Baker v. State of Florida, 990 So. 2d 1221 (Fla. 1st DCA 2008). The District Court found, as a matter of law, that the State failed to present sufficient evidence to prove that she agreed to secure another person for prostitution or otherwise violated Section 769.07, Florida Statutes. Petitioner was released from incarceration on October 9, 2008. By the time she was released, Petitioner had been incarcerated for 540 days. Petitioner has never been convicted of any other felony in any jurisdiction. From 1995 through at least 2005, Petitioner answered the telephone for her brother's escort service from 1:00 p.m. until 3:00 a.m. seven days a week, arranging dates for the callers with the women who worked for her brother. When a call came in, she would describe the different girls that were available by height, weight, hair color, and bra cup size. Then Petitioner would call the woman in whom the caller expressed interest and give her the customer's phone number. The woman would decide if she wanted to go. Petitioner quoted to the customer, as she describes the men who called to hire a woman, the price of $150 to $200 per hour. During the "date," Petitioner would call the woman every hour to ask her if she was alright. After the "date," the woman would bring the money to Petitioner at her brother's trailer where she lived and answered the telephone. She knew that each of the women who worked for her brother had and was required to have a "dance card," which is the slang term for an occupational license for an exotic dancer. Petitioner contends that she did not know that her brother, with her help and her mother's help, was operating a prostitution ring. She contends that she believed that the women were simply going on dinner dates and were being paid by the customer $150 to $200 per hour to accompany a man who was also paying for dinner. She contends that she also thought that sometimes the women were hired for topless dancing or to attend a bachelor party, which meant charging the customer for four hours. Petitioner did not testify at her criminal trial on the advice of her lawyer and of her co-defendant brother. Because she did not testify, the State was not able to offer two documents into evidence. Those documents are a letter she wrote to her mother before her arrest and the transcript of an interview of her after she was arrested. The typewritten letter is undated and was confiscated from her home by the police when they executed a search warrant upon arresting her. In the letter she complains bitterly about her mother not loving her as much as she loved Petitioner's brother. Primarily, though, she complains bitterly that she has worked in the business for years without being paid even minimum wage. The letter also contains the following statements: (1) "And you have never cared that I could lose my kids because of this business. . . ." and (2) ". . . but I am gonna [sic] be left in the dirt as usual answering phones that could cause me to lose my kids. " Those statements are contrary to Petitioner's position in this proceeding that she did not know she was answering the phones and scheduling appointments for prostitution. There would be no danger of having her children removed from her custody for working in a legitimate business answering telephones and scheduling appointments. Further, photographs admitted in evidence show the condition of the trailer where Petitioner lived with her children. The conditions are deplorable and clearly unsafe. Although not obvious in the photographs, Petitioner admitted during the hearing that she allowed dog feces to remain in the trailer without removing them. Yet, she does not appear to have been worried that her children would be removed from her custody for unsafe living conditions, only for her answering the telephone for the business. The recorded and transcribed interview of Petitioner was conducted on March 27, 2006, after her arrest. The following questions and answers are relevant to this inquiry: Q. Did girls ever try to talk about sex with you? People having sex or people wanting some weird things? A. They, a couple of them would try to start talking about some weird things and I would say, I don't want to hear it. Q. What kind of weird things? A. I don't know, like walking on hot dogs. (Laughing) Q. Walking on hot dogs? Were girls allowed to talk to you about, I mean, if a girl tried to talk to you about sex what would you do? A. I would just tell them I don't want to hear about it. * * * Q. Okay. Do you believe the girls were having sex for money? Did you have a pretty good idea they were having sex for money? A. Well, I guess that's what everybody assumes. Q. Did you assume it? A. No Audible Answer. Q. Is that a 'yes' A. Um, what else can you assume? * * * Q. Really? Okay. Is there anything that you can think about that you can tell me why you would believe or what would make you think that Dallas knew the girls were having sex for money? A. I don't know. I, that's the way it's done on t.v. Q. What's, what's how it's done on t.v.? A. Services. Q. That are involved in prostitution? A. I was hoping he wasn't doing it. Q. Really? Did you feel he was? A. I guess. Q. Yes? A. I said I guess. * * * Q. . . . can you think of any conversations you and your mother had about customers or the things they liked or anything like that? A. No, just made jokes about the hot dog thing. We thought that was funny. Q. Really? What did, what did, what did he want her to do after she walked on the hot dogs? A. Let him eat them from between her toes. * * * Q. Men with feet fetishes? Never heard nothing like that? A. I don't know, they would call and ask for somebody with pretty feet sometimes. Petitioner, who professes to have had "a little bit of college," may well have avoided direct conversation regarding the real services offered by her brother's "escort service," but it is evident by her statements both in the letter she wrote to her mother and in her transcribed interview that she in fact knew that sex was involved in the "dates" she arranged and that she was at risk answering the telephones because she was participating in an illegal activity. Petitioner contends that she was an unwilling participant in her brother's business and that she was coerced into answering the telephone for the business because her brother emotionally and physically abused her and threatened her with harm. Petitioner takes two approaches in supporting her position that she was coerced by her brother into answering the telephone. First, Petitioner testified in this proceeding that her brother abused her when she was a child by calling her names and years later by beating her. Interestingly, her letter to her mother describes her brother as a "lying, back stabbing, whore hopping, white trash dog. . . ." It appears that name- calling was not a one-way street in Petitioner's family. Similarly, in her recorded interview she explained that her brother "always beat her up," but then admitted the last time was 16 years earlier. She also explained that when he had recently started cussing at her, she "told him to go to hell." The dynamic between Petitioner and her brother does not suggest duress or coercion, as Petitioner alleges. Petitioner's other approach to proving duress in this proceeding (rather than in the criminal proceeding where it can constitute an affirmative defense) is by the affidavits admitted in evidence by stipulation of the parties. One affidavit is that of Petitioner, which alleges her brother continuously beat and threatened her, a version not consistent with her testimony at the evidentiary hearing in this cause. The other affidavit is from a psychologist with solid credentials who saw Petitioner twice after her release from prison. Petitioner's attorney referred her to him for a psychological evaluation. The affidavit is accompanied by the psychologist's report. Although the evaluation showed Petitioner to have "significant emotional problems," it was clear to the psychologist that Petitioner exaggerated her symptoms for the benefit of the evaluation, and her test profiles were, therefore, only marginally valid. Even with his awareness that Petitioner was not an accurate reporter as evidenced by his several references to Petitioner's obvious attempt to influence the evaluation, the psychologist opined that Petitioner needs extended treatment and medication. There is no evidence that Petitioner has followed his recommendations. The holding in Dixon v. United States, 548 U. S. 1 (2006), makes it clear that duress is an affirmative defense and that to invoke it, a defendant must admit the crime and then affirmatively prove that the defendant was coerced by threatened unlawful and imminent harm to commit the crime. In this proceeding, Petitioner argues, inconsistently, that she did not commit a crime and that she was forced to repeatedly perform the act which constituted the crime, i.e., arranging "dates" between customers and prostitutes over a period of approximately ten years. Petitioner does not make a credible witness. Her varying explanations given at different times to different persons undermine her credibility. The purpose of this proceeding is not to determine whether Petitioner is guilty beyond a reasonable doubt of the crime of racketeering by participating in a prostitution ring, the determination that was made in her criminal trial and the test before the appellate court which overturned her conviction. Rather, in this proceeding wherein Petitioner is seeking monetary compensation for her wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to establish by clear and convincing evidence that she committed neither the act nor the offense that served as the basis for her conviction and incarceration and that she did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. Further, she must prove her actual innocence by verifiable and substantial evidence in order to meet the definition of wrongfully incarcerated person. A review of the appellate court opinion overturning Petitioner's conviction reveals that the State presented insufficient evidence that Petitioner knew of the unlawful nature of the "dates" she arranged. It is appropriate, therefore, that Petitioner’s conviction and sentence based upon that insufficient evidence should have been vacated, and they were. However, the inability or failure of the State to prove Petitioner guilty beyond a reasonable doubt does not prove that Petitioner is actually innocent of the act or offense that served as the basis for the conviction and sentence and does not prove that she did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. The evidence which the State was prevented from offering at her trial by her decision not to testify-- Petitioner's letter to her mother and her statements during her recorded interview--and which, therefore, was not before the appellate court conflicts with Petitioner's testimony that she is innocent. That evidence is not verifiable and substantial evidence of Petitioner's actual innocence, which is the quality of evidence the Statute requires in this proceeding. Further, Petitioner's statements to the psychologist and his conclusions regarding her mental health are not verifiable and substantial evidence of Petitioner's actual innocence. Lastly, Petitioner’s own testimony denying her guilt is not verifiable and substantial evidence of her innocence. Petitioner argues that since Chapter 961, Florida Statutes, does not provide a definition of “actual innocence,” the definition should be the one found in Black's Law Dictionary. Petitioner's argument is not persuasive. The statutory scheme under which Petitioner seeks monetary compensation in this proceeding requires more than meeting a definition in a dictionary; it requires a certain quality and quantity of evidence. The Statute regulating this proceeding does not consider the legal sufficiency of the evidence as did the appellate court when it reversed Petitioner's conviction and as does Black's Law Dictionary. Rather, the Statute seeks a determination of the factual sufficiency of the evidence by requiring the undersigned to make findings of fact as to Petitioner’s actual innocence if proven by verifiable and substantial evidence. In other words, proof of factual innocence is required. Perhaps the reason the Statute does not contain its own definition of actual innocence is that the Legislature intended the words to have their plain, ordinary meaning. Based upon the evidence before the trial court, the appellate court found insufficient evidence proving Petitioner guilty beyond a reasonable doubt. Based upon the evidence in this proceeding, including evidence not presented to the jury in Petitioner's criminal trial and, therefore, not reviewed by the appellate court, there is no verifiable and substantial evidence proving that Petitioner is actually innocent. Accordingly, Petitioner has failed to meet her burden of proving actual innocence by clear and convincing evidence and, thus, has failed to establish that she is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act. RECOMMENDED DETERMINATION Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Petitioner has failed to meet her burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing her Petition. DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2010. COPIES FURNISHED: Honorable Nickolas P. Geeker Escambia County Circuit Judge M.C. Blanchard Judicial Building 190 Governmental Center Pensacola, Florida 32502 Ernie Lee Magaha, Clerk of Court Escambia County M.C. Blanchard Judicial Building 190 Governmental Center Pensacola, Florida 32502 Keith W. Weidner, Esquire Taylor, Warren & Weidner, P.A. 1823 North 9th Avenue Pensacola, Florida 32503-5270 Russell Graham Edgar, Jr., Esquire State Attorney's Office Post Office Box 12726 Pensacola, Florida 32575-2726
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Henry A. Faircloth holds certificates as a correctional officer, No. 05-83-599-01, and as a law enforcement officer, No. 16-89-222-03, both issued by petitioner Criminal Justice Standards and Training Commission; and has held them at all pertinent times. In the spring of 1988, he worked for the Florida Department of Corrections at Holmes Correctional Institution, where he held the rank of major. On May 25, 1988, he was in a meeting about ongoing construction at the prison, when Glenda Parmer told him he was needed in his office, elsewhere in the same building. She had seen James T. Watson and Charles W. Pumphrey, correctional officers who worked as sergeants at Holmes Correctional Institution, escorting Samuel Collier, an unruly and, as it turned out, intoxicated inmate toward the security complex. After Ms. Parmer, a correctional officer who worked as an administrative lieutenant, recounted events to Major Faircloth and told him "that we had some problems," (T.224) she accompanied him on the walk back toward his office. Before they reached the hall onto which Major Faircloth's office opened, they encountered the obstreperous inmate, his hands in handcuffs behind him, (T.234) a sergeant on either side. Although she came within three or four feet of the inmate, Ms. Parmer did not observe any injuries. T.220. The mail room officer, who was also within three or four feet of the inmate about this time, saw no injuries on the inmate's face, either. T.233-4. Neither did Sergeant Pumphrey, at this point. T.541. Major Faircloth, both sergeants and the inmate started down the hall and Ms. Parmer "stepped out of the way so they could go down the hallway." T.220. As he walked by them, Major Faircloth turned to Sergeants Michael Sheppard and William Paul and Inspector William T. Nobles, who were in a group talking, and told them "to wait right there, [and not to] let any inmates come down" (T.66) the hall toward Major Faircloth's office. After he had given this order, Respondent Faircloth entered his office and closed the door. T.43. Messrs. Collier, Watson and Pumphrey had preceded him through the door into the office. From outside the office, the inmate was heard interrupting Major Faircloth, cursing loudly "and raising sand." Id. During the three or four minutes that elapsed before Major Faircloth came back out of his office, four to six noises that "sounded like licks being passed," (T.44) were audible through the closed door at intervals of 30 seconds to a minute. "It sounded like flesh meeting flesh." T.150; T.178. The inmate yelled, "[D]on't hit me anymore." T.235. Major Faircloth emerged from his office without the inmate or Sergeants Pumphrey and Watson, reentering the hall where Sergeants Sheppard and Paul and Inspector Nobles still stood. Sergeant Sheppard noticed spatters of blood on Major Faircloth's shirt, although Major Faircloth was not bleeding, as far as he could see. T.46. Ms. Hutching, the mailroom officer, told Major Faircloth he needed to change shirts, "[b]ecause he had blood spattered all over his shirt." T.238. Sergeant Paul was asked "to go get three shirts . . . two white shirts and one brown shirt . . . [o]fficers' uniform shirts." T.151. Major Faircloth walked toward the control room, then stopped in front of the mailroom and flexed his right hand. When the mailroom officer inquired about his swollen knuckles, Major Faircloth responded, "I knocked that son of a bitch's tooth out." T.238. Frederick Terrell Kirkland, a classification supervisor who is not related to the assistant superintendent, saw Major Faircloth that day and noticed his hand and his blood-spattered shirt. Deposition of Kirkland. When assistant superintendent Kirkland arrived, he spoke to respondent Faircloth, then accompanied him as he went back into the office where the inmate and sergeants Pumphrey and Watson remained. At some point Lieutenant Benny Chesnut entered Major Faircloth's office. After a few minutes, Mr. Kirkland, opening then closing the office door behind him, left to go down the hall to the bathroom. When he returned, Sergeant Sheppard opened Major Faircloth's office door to let the assistant superintendent back in. As he opened the door for Mr. Kirkland, Sergeant Sheppard "saw Major Faircloth slap the inmate in the face." T.482. Samuel Collier was seated in a chair at the time, his hands still behind him in handcuffs. Standing behind Mr. Collier, Sergeant Pumphrey rested his hands on the inmate's shoulders, facing Major Faircloth, who stood in front of inmate Collier. Sergeant Watson stood by the office door. Nothing obstructed his view of Major Faircloth's striking Samuel Collier, although he turned his head and looked at Sergeant Sheppard when the door opened. T.51. "[D]id you see the son of a bitch kick me?" Major Faircloth asked the assistant superintendent. T.83. He later apologized to Mr. Kirkland for hitting the inmate in front of him. T.330, 343. After Samuel Collier had been taken away, Major Faircloth asked William Paul "to get an inmate to go clean the blood up out of his office. But then he said, no not to get the inmate, that the inmate didn't need to see that mess, for [Paul] to clean it up [him]self." T.153. In order to place Samuel Collier in solitary confinement, which was the course decided upon, he had to be sent elsewhere, because appropriate facilities were not then available at Holmes Correctional Institution. Karen Roberts, a nurse who worked at Holmes Correctional Institution, was summoned. After she drew blood, took the inmate's temperature and pulse, and made notes recording his vital signs, Mr. Collier was driven in a van to Okaloosa Correctional Institution. When Michael G. Foley, M.D., chief health officer at Okaloosa Correctional Institution, saw him shortly after lunch on May 25, 1988, Samuel Collier still had "alcohol on his breath." The parties stipulated that laboratory tests on the blood Ms. Roberts took from the inmate "revealed a .17 blood alcohol content." T.10. He had reportedly been drinking "buck," a home brew concocted from prison foodstuffs. Ms. Roberts had noticed a laceration of the upper lip which she felt "did not need suturing" (T.111) and swelling around the eyes, which she testified she attributed to the fact that Mr. Collier was crying. She "[w]anted to put ice on his eyes . . . [but] it was impossible to keep ice" (T.113), or so she testified, so she did not try it. Samuel Collier's injuries, including loose teeth Ms. Roberts overlooked, are consistent with blows received in a fight and could not have been caused by a fall against a fence post coupled with a fall out of a chair onto the floor. T.188. Samuel Collier's injuries resulted at least in part from blows Major Faircloth administered. T.188, 196. When Dr. Foley examined Mr. Collier, both of the inmate's upper eyelids were swollen. An area of his scalp was swollen. There was "a massive hematoma to the upper lip, which is a massive swelling" (T.186) that made it protrude. He "had tenderness, abrasions and contusions to both cheeks. . . [and] some loose upper incisors." T.187. Dr. Foley ordered x- rays "to make sure there w[ere] no fractures." T. 184. The radiologist concluded that no bones were broken, according to Dr. Foley. Meanwhile, Major Faircloth told some correctional officers that they "were supposed to say that he had hurt his hand doing yard work." T.294. When Sergeant Sheppard asked about filing a report, Major Faircloth told him not to "worry about it, you didn't use force," (T.58) "you're not on the duty roster, they don't even know you were here" (T.94) or words to that effect. Major Faircloth's directive contravened Department of Corrections policy, which requires any correctional officer observing force being used against an inmate to prepare a "use of force report . . . and forward it to the Inspector General's office." T.59. The next day, Major Faircloth filed a written report, Petitioner's Exhibit No. 9, reciting that Sergeants Watson and Pumphrey and Lieutenant Chesnut had used force against Samuel Collier, but omitting any mention of the force he himself had used. On June 28, 1988, while he was interrogated by Inspector G. L. McLain, he falsely denied under oath that he had hit Samuel Collier and injured his own hand. Petitioner's Exhibit No. 6. Inspector McLain had authority to administer the oath in the course of his official duties, and did so to respondent before interrogating him on June 28, 1988, and on July 6, 1988. On July 6, 1988, respondent again answered questions under oath and falsely answered affirmatively when asked whether he had been truthful during the earlier interrogation.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondent's certificates both as a correctional officer and as a law enforcement officer. DONE AND ENTERED this 8th day of April, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1993. APPENDIX TO RECOMMENDED ORDER 92-1395 Petitioner's proposed findings of fact Nos. 1, 4-15, 17, 18, 20, 21, 22, 24-30 and 32-47 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 2, 3 and 31 are immaterial as to respondent Faircloth. With respect to petitioner's proposed finding of fact No. 16, it was not clear that a fence and gate were in place at the time. With respect to petitioner's proposed finding of fact No. 19, Major Faircloth first joined the group before they reached his office. With respect to petitioner's proposed finding of fact No. 23, the evidence did not clearly and convincingly establish the exact number of times respondent hit Collier. Sergeant Sheppard saw respondent slap Collier only once. But the evidence clearly and convincingly showed that respondent landed additional blow(s), causing his knuckles to swell. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 8, 9, 11, 12, 14, 15, 22 and 23 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, it was not clear that a fence was up and that there was a need to pass between those two posts. That Collier hit or fell into a post was not established by the weight of the credible evidence. With respect to respondent's proposed findings of fact Nos. 6 and 7, the weight of the credible evidence did not establish that Collier was bleeding when he reached the security complex. With respect to respondent's proposed finding of fact No. 10, credible evidence did not establish that Collier leapt from the chair and fell, striking a desk and the floor. With respect to respondent's proposed finding of fact No. 13, the nurse's testimony that she thought Collier's eyes were swollen because he had been crying has not been credited. With respect to respondent's proposed findings of fact Nos. 16 and 17, the nurse's findings were not "totally inconsistent." She apparently did not examine the inmate's teeth. Some of the swelling she anticipated evidently occurred. With respect to respondent's proposed finding of fact No. 18, Sheppard's testimony has been credited. With respect to respondent's proposed finding of fact No. 19, when Sheppard saw Faircloth slap Collier he might have been looking through the clear glass window. With respect to respondent's proposed finding of fact No. 20, the weight of the evidence did not establish that nobody saw Collier's injuries before he left HCI. Respondent's proposed finding of fact No. 24 is rejected as contrary to the weight of the evidence. COPIES FURNISHED TO: Joseph S. White, Esquire Gina Cassidy, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Roy M. Kinsey, Jr., Esquire Kinsey, Troxel, Johnson & Walborsky 438 East Government Street Pensacola, Florida 32501 James T. Moore, Commissioner Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Criminal Justice Standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302
