COUNTY OF MECKLENBURG / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
Eric Wendell Garrison
Petitioner,
v.
North Carolina Department of Justice Sheriffs’ Standards Division
Respondent. / )
)
)
) 10 DOJ 2596
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)
)
)
Eric Wendell Garrison
Petitioner,
v.
North Carolina Department of Justice Company Police Program
Respondent. / )
)
)
) 10 DOJ 5198
)
)
)
)
PROPOSAL FOR DECISION
On February 1-2, 2011, Administrative Law Judge J. Randall May heard this case in Charlotte, North Carolina. This case was heard after Respondent Sheriffs' Commission requested, pursuant to N.C.G.S. § 150B-40(e), the designation of an administrative law judge to preside at the hearing of a contested case under Article 3A, Chapter 150B, of the North Carolina General Statutes. This matter was consolidated for hearing with 10 DOJ 5198 when, in accordance with N.C.G.S. § 150B-23, Petitioner requested the designation of an administrative law judge to preside at an Article 3, N.C.G.S. § 150B contested case hearing of this matter.
APPEARANCES
Petitioner: Humphrey Cummings, Attorney at Law
Respondent: John J. Aldridge, III, Special Deputy Attorney General
ISSUE
Are Petitioner's applications for certification/commissioning properly subject to denial based on Petitioner lacking the good moral character required of a law enforcement officer?
The Findings of Fact are made after careful consideration of the sworn testimony, whether visual and/or audio, of the witnesses presented at the hearing, and the entire record in this proceeding. In making the findings of fact, the undersigned has weighed all the evidence, or the lack thereof, and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness; any interests, bias, or prejudice the witness may have; the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether the testimony is consistent with all other believable evidence in the case. From the sworn testimony and the admitted evidence, or the lack thereof, the undersigned makes the following:
FINDINGS OF FACT
1. Both parties are properly before this administrative law judge, in that jurisdiction and venue are proper; both parties received notice of hearing; and Petitioner received the Notification of Probable Cause to Deny Justice Officer Certification mailed by the Respondent Sheriffs' Commission on April 9, 2010. Petitioner received the finding of Probable Cause to Deny Company Police Officer Commission mailed by the Respondent Company Police Program on July 21, 2010, and an amended finding of Probable Cause (to correct a typographical error) to Deny Company Police Commission mailed by the Company Police Program on September 14, 2010.
2. Respondent Sheriffs' Commission has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to deny, revoke or suspend applications for certification as a justice officer. Respondent Company Police Program has similar authorities granted under Chapter 74E of the North Carolina General Statutes, Title 12 of the North Carolina Administrative Code, Chapter 2I.
3. Both Respondents found probable cause to deny Petitioner's justice officer certification application and company police officer commission application as a result of a determination to believe the Petitioner lacked the good moral character required of a law enforcement officer. Specifically, the Respondents found probable cause to believe the Petitioner lacks the appropriate good moral character based on an allegation that the Petitioner, on August 25, 2005, gave false and misleading testimony under oath during the criminal driving while impaired trial of Erin Alphin. Specifically, it is alleged the Petitioner gave false testimony under oath by denying the extent of his extra judicial contact with Alphin and his denial that he had promised Alphin that he would have her case dismissed in court if she were able to return a missing alco-sensor to him. The Respondent Sheriffs' Commission acted pursuant to 12 NCAC 10B .0204(b)(2) and 12 NCAC 10B .0301(a)(8). The Company Police Program acted pursuant to 12 NCAC 2I .0212(c)(1); 12 NCAC 2I .0202(a)(9); and N.C.G.S. § 17C-10(c).
Case History
4. Petitioner was appointed as a patrol officer with the Charlotte-Mecklenburg Police Department on July 21, 2004. Petitioner was terminated from the Charlotte-Mecklenburg Police Department on December 5, 2007 with a notation on Petitioner's separation form that the agency would not consider Petitioner for reappointment. Petitioner applied through the Equestrian Company Police Agency for a commission on January 28, 2009. Petitioner was also appointed as a part-time inactive deputy sheriff through the Gaston County Sheriff's Office on August 27, 2009. Petitioner resigned from the Gaston County Sheriff's Office on April 19, 2010.
5. Based on the Petitioner's termination from the Charlotte-Mecklenburg Police Department, staff for the Respondents utilized a release of information signed by the Petitioner to retrieve materials from the Charlotte-Mecklenburg Police Department addressing the reason for the Petitioner's termination. These materials disclosed that the Petitioner was the subject of both a criminal inquiry and an internal affairs investigation based on an allegation that the Petitioner on, August 25, 2005, committed perjury in Mecklenburg County District Court. The materials retrieved by staff for the Respondents, and submissions by the Petitioner, were each reviewed by the respective screening bodies of the Respondents prior to a determination being made that he currently lacked the good moral character required of a law enforcement officer in North Carolina.
6. The investigation revealed that on August 25, 2005, the Mecklenburg County District Attorney's Office complained to the Charlotte-Mecklenburg Police Department that Petitioner committed perjury while testifying on behalf of the State in a driving while impaired trial in Mecklenburg County District Court against Erin Alphin. While no transcript of the proceedings was made, witnesses to the trial alleged that Petitioner made false statements under oath concerning his contacting Ms. Alphin and statements he made to her. It was alleged that his false testimony damaged his credibility as a sworn law enforcement officer.
7. As a result of this complaint, Detective Mark Shelton and Sgt. Wendell Fox of the Charlotte-Mecklenburg Police Department initiated a criminal inquiry into the conduct of the Petitioner. On September 6, 2005, Detective Shelton and Sgt. Fox interviewed Erin Alphin about the Petitioner's interaction with her. A verbatim transcript of this interview is found at Respondent's Exhibit 8.
8. During her interview of September 6, 2005, Erin Alphin told Detective Shelton and Sgt. Fox that she was a resident of Charlotte, North Carolina. During the early morning hours of July 4, 2005, Petitioner conducted a traffic stop of Alphin. A friend of Alphin (J. R.) was also in the vehicle. Petitioner told Alphin that she was exceeding the speed limit. He also asked her if she had been drinking, to which Alphin responded that she had, “a couple of beers”. Petitioner ultimately asked Alphin if she would blow into his alco-sensor device to ascertain her alcohol concentration. After performing the test, Petitioner apparently took the alco-sensor with him back to his patrol vehicle. Thereafter, Petitioner asked Alphin to exit her vehicle and perform some field sobriety tests. Alphin was requested to blow again into the alco-sensor by Petitioner. At this point, Alphin was arrested by Petitioner and charged with driving while impaired. Petitioner's friend was allowed to walk home. Petitioner's vehicle remained on the side of the road.
9. Petitioner transported Alphin to the Mecklenburg County Detention Facility where she was processed. After seeing the magistrate, Alphin was released from custody. Alphin's arrest occurred on a Monday. Alphin recalls that the following Wednesday, Petitioner telephoned her on her cell phone. The call from Petitioner came up as “restricted” on Alphin's telephone.
10. Petitioner went on to tell Alphin in this initial telephone conversation that he had placed the “little black box” (alco-sensor) on the trunk of her vehicle and wanted to know if Alphin had the device. She responded that obviously she would not have the device because at the time the device went missing, she was in the back seat of Petitioner's patrol vehicle. Petitioner then attempted to have Alphin contact her friend to see if he had the device. Petitioner went on to state that he needed the device and if she (Alphin) had it he (Petitioner) would get her charges dismissed. Alphin stated that she would try to call her friend the next day. Alphin offered to telephone Petitioner back and he declined. Petitioner told her that he would call her back in an hour. After hanging up with the Petitioner, Alphin telephoned her lawyer (George Laughrun) and left him a message at his office.
11. Approximately forty-five minutes later, Petitioner telephoned Alphin again. At this point, a friend of Alphin showed her how to record her telephone conversation with Petitioner on her cell phone. During this second conversation, Petitioner asked Alphin if she had had an opportunity to talk with her friend. Alphin responded, No, she had not. Petitioner stated that he would call Alphin back the following morning. Petitioner again asserted to Alphin that he would dismiss her criminal charges if she could find the alco-sensor.
12. Petitioner began calling Alphin again at around 8:00 a.m. the following morning. Alphin stated that these telephone calls continued for two to three days. Alphin recalled the number of calls to be approximately ten times a day.
13. During her September 6, 2005 interview, Alphin stated that on one occasion, she had laid down for a nap and Petitioner called her every four minutes until she picked up the telephone. Alphin stated that she had four recorded conversations with Petitioner. Alphin eventually informed Petitioner that she had made contact with her friend and he did not have Petitioner's alco-sensor. Petitioner persisted in wanting the friend's address. Alphin declined to give it to him. When Petitioner was informed that neither Alphin nor her friend had his alco-sensor, Petitioner told Alphin that “I'm gonna have to go through with this. I'm gonna have to, you know ... pursue this, ...” (apparently referring to the pending DWI charge). (Respondent's Exhibit 8, Page 11)
14. Alphin went on to recount that the last time she recalled Petitioner telephoning her, he went on to tell Alphin that he worked out of “Remount” division. He told her that if she could find it, to take the device to that division and he would get her charges dismissed.
15. Alphin transferred the four recorded telephone conversations with Petitioner to a micro cassette tape. She in turn gave this micro cassette tape recording of her four conversations with Petitioner to her attorney, George Laughrun. Alphin's telephone conversations with the Petitioner generally only lasted a minute or two. At the time of these telephone calls, Alphin's cellular telephone number was “704-975-4576".
16. Alphin next saw the Petitioner when her case was called for trial in District Court on August 25, 2005. Alphin stated that she recalled during her criminal trial, while Laughrun was asking questions of Petitioner on the stand, Petitioner stated that he had told Alphin that he would try to work out a deal with the district attorney to have the charges dismissed and that he (Petitioner) had only called Alphin three times at the most. She recalled Laughrun then played several of the recorded telephone conversations and that is when the district court judge dismissed her criminal charges.
17. A subpoena for the release of Alphin's telephone records for the period in question was served by Detective Shelton on September 7, 2005. Alphin's telephone records disclose that Petitioner first called Alphin on July 6, 2005 at 10:30 p.m. Petitioner placed a second call to Alphin on July 6, 2005 at 11:13 p.m. Petitioner placed a total of ten telephone calls to Alphin's telephone number on July 7, 2005. These telephone calls ranged from 10:12 a.m. through 10:22 p.m. Petitioner placed a total of three telephone calls to Alphin's telephone on July 8, 2005. These telephone calls ranged between 10:47 a.m. and 12:04 p.m. Petitioner placed a total of fifteen telephone calls to Alphin's telephone number over a span of three days. These telephone records are compiled at Respondent's Exhibit 9.
18. The four recorded conversations between Alphin and Petitioner were transcribed by Detective Shelton and Sgt. Fox and made a part of the criminal investigation. These transcriptions are found at Respondent's Exhibit 10. The transcription of these conversations clearly reflects the Petitioner stating to Alphin that he was going to dismiss the criminal charge if she could find the alco-sensor. Petitioner stated, “we do that all the time, dismiss charges”; and “... I was set to help you out if you help me out.” There is no reflection in the transcription that Petitioner made any reference to working through the District Attorney's office to have charges dismissed. The clear inference from the Petitioner is that if Alphin will do Petitioner a favor (return the alco-sensor), then Petitioner will do Alphin a favor (dismiss her criminal charges). Alphin testified at the administrative hearing that she recognized the four recorded telephone conversations and that these conversations reflect the extent of their conversations on those four occasions. She testified that she had not altered or modified the tapes in any way. Alphin stated that in the other telephone conversations she had with Petitioner (independent of these four recorded conversations) that Petitioner never told her that he would work through the District Attorney's office to have her charges dismissed.