07-003431PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Bruce E. Taylor Status: Closed Recommended Order on Thursday, January 3, 2008.

Summary: Petitioner failed to establish that Respondent committed assault or battery or fired a gun in a private building. The evidence submitted was hearsay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

) Case No. 07-3431PL

vs. )

)

BRUCE E. TAYLOR, )

)

Respondent. )

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on October 2, 2007, in Bonifay, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Thayer M. Marts, Esquire

2869 Jefferson Street

Post Office Box 6366

Marianna, Florida 32447

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida

Statutes (2005), 1 and Florida Administrative Code

Rules 11B-27.0011(4)(a), 2 11B-27.0011(4)(b), and

11B-20.0012(2)(f), 3 and, if so, what discipline should be

imposed.

PRELIMINARY STATEMENT

On August 2, 2006, Petitioner, Department of Law

Enforcement, Criminal Justice Standards and Training Commission

(Commission), filed an Administrative Complaint against

Respondent, Bruce E. Taylor (Mr. Taylor), alleging that

Mr. Taylor violated Subsections 943.1395(6), 943.1395(7),

and 943.13(7), Florida Statutes, and Florida Administrative Code

Rules 11B-27.0011(4)(a), 11B-27.0011(4)(b), and 11B-

20.0012(1)(f). Mr. Taylor requested an administrative hearing,

and the case was forwarded to the Division of Administrative

Hearings on July 24, 2007, for assignment to an Administrative

Law Judge to conduct the final hearing. The case was originally

assigned to Administrative Law Judge Charles C. Adams, but was

reassigned to Administrative Law Judge Susan B. Harrell.

At the final hearing, the Commission called Michelle

Taylor, James Taylor, and Michael Raley. Petitioner’s

Exhibits 1 through 12 were admitted in evidence. At the final

hearing, Mr. Taylor testified in his own behalf. Mr. Taylor

offered no exhibits for admission into evidence.

The one-volume Transcript of the final hearing was filed on

October 16, 2007. At the final hearing, the parties agreed to

file their proposed recommended orders within ten days of the

filing of the Transcript. On October 22, 2007, the parties

filed a Joint Motion to Extend Filing Date, requesting that the

date for the filing of the proposed recommended orders be

extended to November 12, 2007. The motion was granted by Order

dated October 23, 2007. The parties filed their Proposed

Recommended Orders on November 13, 2007, and the submittals have

been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Mr. Taylor was certified by the Commission on March 21,

1990 and was issued Correctional Certificate No. 75624. On

May 12, 1999, Mr. Taylor was issued Instructor Certificate

No. 212961.

2. On August 7, 2005, Mr. Taylor went to the house where

his sister, Michelle Taylor (Ms. Taylor), and her boyfriend,

Dean Radney (Mr. Radney), were living. Mr. Taylor owned the

house and was allowing his sister to live in the house.

Mr. Taylor had been drinking heavily and was intoxicated when he

went to his sister’s home. An argument ensued between

Mr. Taylor and Ms. Taylor. Ms. Taylor called 911 and requested

the Holmes County Sheriff’s Department to intervene. Ms. Taylor

felt that if she called the sheriff that Mr. Taylor would leave.

3. Mr. Taylor did leave the house. Deputy Michael Raley

came to the residence in response to Ms. Taylor’s call. When

Deputy Raley arrived, James Taylor, the brother of Mr. and

Ms. Taylor, was at the home. James Taylor told his sister not

to press charges against Mr. Taylor. Deputy Raley asked James

Taylor to leave, and James Taylor complied with the request.

4. When Deputy Raley arrived at the home of Ms. Taylor,

she was upset and told him that there had been a family dispute.

Deputy Raley asked Ms. Taylor to walk him through the house, and

she did. At the back door, Deputy Raley observed that the back

door facing had been damaged. He saw a nine millimeter shell

casing lying on the floor of a rear room. There was a bullet

hole in the bathroom door and a fragmented bullet in the laundry

hamper. Ms. Taylor told Deputy Raley that there was a bullet

hole in the living room/kitchen area. He went to that part of

the house and saw a nine millimeter shell casing lying on the

kitchen floor and a hole in the window.

5. Deputy Raley took a sworn statement from Ms. Taylor,

but the statement was not submitted for introduction into

evidence. Although Ms. Taylor called 911 to summon assistance,

the tape of the 911 call was not submitted for introduction into

evidence.

6. At the final hearing, Ms. Taylor stated that she had

just come home from a drug rehabilitation facility when

Mr. Taylor came to her home, that she was under a lot of stress,

and that she did not remember what happened except that she and

her brother argued, and she called 911 for assistance. At the

final hearing, Mr. Taylor testified that on the day of incident

in question, he was too drunk to remember what happened.

7. Other than hearsay testimony, there is no evidence to

support the allegations that Mr. Taylor committed assault and

battery against his sister or Mr. Radney or that he fired a gun

in his sister’s home.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

9. The Commission has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996).

10. The Commission has alleged that Mr. Taylor violated

Subsections 943.1395(6) and (7), Florida Statutes, which

provides:

(6) The commission shall revoke the

certification of any officer who is not in

compliance with the provisions of s.

943.13(4) or who intentionally executes a

false affidavit established in s. 943.13(8),

943.133(2), or s. 943.139(2).

* * *

(7) Upon a finding by the commission that a

certified officer has not maintained good

moral character, the definition of which has

been adopted by rule and is established as a

statewide standard, as required by s.

943.13(7), the commission may enter an order

imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on 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.

(d) Successful completion by the officer of

any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

11. The Commission also alleged that Mr. Taylor violated

Subsection 943.13(7), Florida Statutes, which provides that all

correctional officers must “[h]ave a good moral character as

determined by a background investigation under procedures

established by the commission.” The Commission also alleged

that Mr. Taylor violated Florida Administrative Code

Rules 11B-27.011(4)(a), 11B-27.011(4)(b), and 11B-20.0012(1)(f).

12. Florida Administrative Code Rules 11B-27.011(4)(a) and

11B-27.011(4)(b) provide:

(4) For the purposes of the Criminal

Justice Standards and Training Commission’s

implementation of any of the penalties

specified 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:

(a) The perpetration by an officer of an

act that would constitute any felony

offense, whether criminally prosecuted or

not.

(b) The perpetration by an officer of an

act that would constitute any of the

following misdemeanor or criminal acts

whether criminally prosecuted or not:

1. Sections . . . 784.03 . . . F.S.

13. The Commission alleged that Mr. Taylor failed to

maintain good moral character by violating Subsection

784.021(1)(a) and Sections 784.03 and 790.19, Florida Statutes.

Subsection 784.021(1)(a), Florida Statutes, defines “aggravated

assault,” a third degree felony, as “an assault [w]ith a deadly

weapon without intent to kill.” “Assault” is defined in

Subsection 784.011(1), Florida Statutes, as “an intentional,

unlawful threat by word or act to do violence to the person of

another, coupled with an apparent ability to do so, and doing

some act which creates a well-founded fear in such other person

that such violence is imminent.”

14. Subsection 784.03(1)(a), Florida Statutes, defines

“battery,” as “[a]ctually or intentionally touch[ing] or

stik[ing] another person against the will of the other; or

[i]ntentionally caus[ing] bodily harm to another person.”

15. Section 790.19, Florida Statutes, provides:

Whoever, wantonly or maliciously, shoots at,

within, or into, or throws any missile or

hurls or projects a stone or other hard

substance which would produce death or great

bodily harm, at, within, or in any public or

private building, occupied or unoccupied, or

public or private bus or any train,

locomotive, railway car, caboose, cable

railway car, street railway car, monorail

car, or vehicle of any kind which is being

used or occupied by any person, or any boat,

vessel, ship, or barge lying in or plying

the waters of this state, or aircraft flying

through the airspace of this state shall be

guilty of a felony of the second degree,

punishable as provided in s. 775.082, s.

775.083, or 775.084.

16. The only testimony submitted for the purpose of

establishing that Mr. Taylor committed aggravated assault

against Ms. Taylor and Mr. Radney, committed battery against

Ms. Taylor, and shot a firearm in Ms. Taylor’s home was the

hearsay testimony of Deputy Raley concerning statements made by

Ms. Taylor when he responded to her 911 call. Ms. Taylor

testified at the final hearing that all she remembered about the

incident was that she and Mr. Taylor had an argument, and she

called 911 for assistance.

17. Hearsay testimony is admissible in an administrative

hearing “for the purpose of supplementing or explaining other

evidence, but it shall not be sufficient in itself to support a

finding unless it would be admissible over objection in civil

actions.” § 120.57(1)(c), Fla. Stat. (2007). The testimony of

Deputy Raley concerning Ms. Taylor’s statements was admitted to

supplement or explain the finding of shell casings and bullet

holes by Deputy Raley. However, Ms. Taylor’s statements only

supplemented Deputy Raley’s findings by showing that shots had

been fired in the house. The finding of the shell casings and

the bullet holes did not establish who fired the shots.

18. The Commission argues that Ms. Taylor’s statements to

Deputy Raley were exceptions to the hearsay rule and, thus,

admissible. First, the Commission argues that Ms. Taylor’s

statements to Deputy Raley were excited utterances, an exception

to the hearsay rule pursuant to Subsection 90.803(2), Florida

Statutes (2007), which defines “excited utterance” as “[a]

statement or excited utterance relating to a startling event or

condition made while the declarant was under the stress or

excitement caused by the event or condition.” The elements

necessary for an excited utterance to be admissible were set out

in Stoll v. State , 762 So. 2d 870, 873 (Fla. 2000).

[I]n order for an excited utterance to be

admissible, the following requirements must

be met: (1) there must have been an event

startling enough to cause nervous

excitement; (2) the statement must have been

made before there was time to contrive or

misrepresent; and (3) the statement must

have been made while the person was under

the stress of excitement caused by the

startling event.

The statements made to Deputy Raley were made after the incident

and were made in response to questions by the deputy. It is the

Commission’s burden to show that Ms. Taylor did not engage in

reflective thought before she made the statements to the deputy.

All the Commission demonstrated was that at the time Ms. Taylor

made the statements she was upset. In Charlot v. State , 679 So.

2d 844, 845 (Fla. 4th DCA 1996), the court stated, “A statement

as to what occurred does not become admissible merely because

the victim is still in an excited state.” Ms. Taylor’s

statements are not admissible as excited utterances.

19. The Commission's second argument on the admissibility

of Ms. Taylor’s statement is that the statements were not

hearsay because Ms. Taylor testified at the final hearing and

was subject to cross examination, and the statements were of

identification of Mr. Taylor made after perceiving the person.

Subsection 90.801(1), Florida Statutes (2007), defines “hearsay”

as “a statement other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” Subsection 90.801(2),

Florida Statutes (2007), provides: “A statement is not hearsay

if the declarant testifies at the trial or hearing and is

subject to cross-examination concerning the statement and the

statement is . . . one of identification of a person made after

perceiving the person.”

20. In Swafford v. State , 533 So. 2d 270, 276 (Fla. 1988),

the Florida Supreme Court stated that “[a]n ‘identification of a

person after perceiving him,’ subsection 90.801(2)(c), is a

designation or reference to a particular person or his or her

photograph and a statement that the person is the same as the

person previously perceived.” In the instant case, Ms. Taylor

testified at the final hearing that she could not recall what

happened at her home just prior to the deputy arriving. She did

not testify that anyone had shot a gun in her home or that

anyone had assaulted her or Mr. Radney or that anyone had

committed a battery against her. Although Deputy Raley found

bullet holes in the house and found empty shell casings, it does

not prove when the bullets were fired nor does it prove that

battery or aggravated assault occurred. In order for Ms.

Taylor’s identification of Mr. Taylor to be admissible to prove

that he is the person who committed the crimes alleged, there

must be evidence that the crimes occurred. There is no non-

hearsay evidence to establish that an aggravated assault,

battery, or the firing of a firearm in a private building

occurred. At best, Ms. Taylor’s identification is that

Mr. Taylor was at her home prior to the deputy arriving.

21. The Commission has failed to establish the allegations

in the complaint that formed the basis for the alleged lack of

good moral character.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Mr. Taylor did not violate Subsections 943.1395(6),

943.1395(7), and 943.13(7), Florida Statutes, and Florida

Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(b),

and 11B-20.0012(1)(f), and dismissing the Administrative

Complaint.

DONE AND ENTERED this 3rd day of January, 2008, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of January, 2008.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2005 version.

2/ The Administrative Complaint alleged that Mr. Taylor violated

Florida Administrative Code Rule 11B-27.0011(4)a,a,b,b.

Reading the Administrative Complaint as a whole, it is apparent

that the reference to Florida Administrative Code

Rule 11B-27.0011(4)a,a,b,b is a scrivener’s error, and the

correct citation is Florida Administrative Code

Rules 11B-27.0011(4)(a) and 11B-27.0011(4)(b).

3/ The Administrative Complaint alleged that Mr. Taylor violated

Florida Administrative Code Rule 11B-20.00112(1)(f). Reading

the Administrative Complaint as a whole, it is apparent that the

reference to Florida Administrative Code Rule 11B-20.0012(1)(f)

is a scrivener’s error, and the correct citation is Florida

Administrative Code Rule 11B-20.0012(2)(f).

COPIES FURNISHED :

Linton B. Eason, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Thayer M. Marts, Esquire

2869 Jefferson Street

Post Office Box 6366

Marianna, Florida 32447

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

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.