01-001276PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Francis J. Foley, Jr. Status: Closed Recommended Order on Monday, August 6, 2001.

Summary: Respondent`s deposition testimony, falsely stating that a criminal defendant had admitted to the offense, establishes lack of good moral character and merits revocation of certification as law enforcement officer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT , )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION , )

)

Petitioner , )

)

vs. ) Case No. 01- 1276PL

)

FRANCIS J. FOLEY, JR. , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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.

APPEARANCES

For Petitioner : Philip W. Lindley, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent : Jeffrey A. Blau, Esquire

1511 South Church Avenue

Tampa, Florida 33629

STATEMENT OF 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.

PRELIMINARY STATEMENT

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.

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:

1. 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.

2. 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.

3. Respondent was employed by the Hillsborough County

Sheriff's Office as a deputy sheriff when the events in

controversy took place.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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."

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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

23. 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.

24. 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:

(a ) Revocation of certification.

(b ) Suspension of certification for a

period not to exceed 2 years.

(c ) 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.

(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.

25. Rule 11B-27.0011, Florida Administrative Code,

provides, in relevant part:

(4 ) 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:

(a ) The perpetration by the officer of

any act which would constitute a felony

offense, whether criminally prosecuted or

not.

(b ) 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 . . . .

26. 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).

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

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 [phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any

exceptions to this R ecommended O rder should be filed with the

agency that will issue the F inal O rder in this case.