State of North Carolina s171

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BLADEN 01 DOJ 1420

JOSEPH RAY JOHNSON, )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

N.C. CRIMINAL JUSTICE )

EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

Respondent. )

On March 15, 2002, Administrative Law Judge Beryl E. Wade heard this case in Fayetteville, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. § 150B-40(e), 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.

APPEARANCES

Petitioner: Joseph Ray Johnson

49 Sunset Park Road

Bladenboro, North Carolina 28320-8917

Respondent: Brian L. Blankenship

Assistant Attorney General

NC Department of Justice

Raleigh, North Carolina 27602-0629

FINDINGS OF FACT

Stipulated Facts

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received Notice of Hearing, and that Petitioner received the Proposed Denial of Law Enforcement Officer Certification letter mailed by Respondent on August 21, 2001.

2. The North Carolina Criminal Justice Education and Training Standards Commission (Respondent) has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9, to certify law enforcement officers and to deny, revoke, or suspend such certification.

3. That 12 NCAC 9A .0204(b)(2) and 9B .0111(1)(a) provides that the Commission may suspend, revoke or deny the certification of a criminal justice officer when the Commission finds:

That the applicant for certification or the certified officer fails to meet or maintain one or more of the minimum employment standards required by 12 NCAC 9B .0111(1)(a), which requires that every law enforcement officer employed by an agency in North Carolina shall not have committed or been convicted of a felony.

4. That 12 NCAC 9B .0101(3) provides that every criminal justice officer employed by an agency in North Carolina shall:

Be of good moral character.

5. Petitioner was arrested on October 3, 1995 for Discharging Firearm into Occupied Property, which allegedly occurred on or about October 2, 1995, when Petitioner unlawfully and willfully discharged a Mossburg 500A 12 gauge shotgun into the house of Jimmy and Barbara Morris, a building located at Route 7, Box 158 (Nash Road) in Fayetteville, North Carolina, while it was actually occupied by Jimmy and Barbara Morris.

6. Discharging a Firearm into occupied property in violation of N.C.G.S. § 14-34.1 is a Class E felony.

Stipulated Testimony

A. The Petitioner and the Respondent stipulated that if Mr. Jimmy L. Morris did appear and testify under oath in this matter, his testimony would be substantially as follows:

1. On October 2, 1995, I received a phone call from Mr. Anthony Matthews. Mr. Matthews told me that I owed him $15.00 and that he wanted to come to the house and get it. Mr. Matthews became irate, so I hung up on him. Shortly thereafter, Mr. Johnson called and said that they were on the way to my house.

2. After I hung up with Mr. Johnson, my wife called the Sheriff’s Department and reported that Mr. Matthews had threatened me.

3. At approximately 9:00 p.m. on the evening of October 2, 1995, Mr. Anthony Matthews came to my house. When I answered the door, I saw Mr. Matthews’ brother, Joseph Ray Johnson, standing in my driveway holding a shotgun.

4. When I closed my door, Mr. Johnson began shooting at my house with his shotgun. Mr. Johnson fired twice, striking my house and nearly hitting my wife.

5. I told my wife to call the police. I then grabbed a shotgun that was against the wall near my front door. Standing on my porch, I fired towards Mr. Johnson. The shotgun jammed, so I grabbed a .207 rifle. With my rifle, I fired one shot when it also jammed.

6. After firing one shot from my rifle, Mr. Johnson and his brother left my property.

7. I understand that Mr. Johnson is now claiming that I shot towards him first. I did not shoot first. I did not even grab my shotgun until after Mr. Johnson had fired a shot towards my house.

B. The Petitioner and the Respondent stipulated that if Ms. Barbara Morris did appear and testify under oath in this matter, her testimony would be substantially as follows:

1. On the evening of October 2, 1995, my husband received several threatening phone calls from Mr. Anthony Matthews.

2. I called the Cumberland County Sheriff’s Department about the threatening phone calls, but was told that there was nothing the Sheriff’s Department could do.

3. At approximately 9:00 p.m. on the evening of October 2, 1995, Mr. Anthony Matthews came to my house. Mr. Matthews stood at our front door talking to my husband.

4. As Mr. Matthews talked to my husband, I saw Mr. Matthews’ brother, Joseph Ray Johnson, standing in my driveway holding a shotgun.

5. At some point, Mr. Matthews and my husband began arguing. When Mr. Matthews began running back to his vehicle, Mr. Johnson began firing at my house.

6. My husband told me to call the police. As I was calling the police, my husband grabbed a shotgun near the front door and fired towards Mr. Johnson.

7. While Mr. Johnson fired at my house, I was in the house.

8. I understand that Mr. Johnson is now claiming that my husband shot towards him first. My husband did not shoot first. In fact, my husband did not even grab his shotgun until after Mr. Johnson had fired a shot towards our house.

Adjudicated Facts

1. On October 2, 1995, at approximately 8:00 p.m., Petitioner’s mother called and asked if Petitioner would accompany her and Petitioner’s brother, Tony, to Tony’s former boss’ house to pick up some tools.

2. Tony and Petitioner’s mother arrived at Petitioner’s house to pick him up and Tony telephoned his former boss, Mr. Jimmy Morris regarding the tools. Tony and Mr. Morris got into a screaming match on the telephone. At one point, Petitioner heard his brother tell Mr. Morris, “I will get my tools or else.” Petitioner spoke to Mr. Morris and Mr. Morris agreed that they could come over and get the tools.

3. When Petitioner arrived at the Morris residence with his mother and Tony, Tony got out of the car and approached the Morris residence. Tony approached the side door of the Morris residence and shortly thereafter, began to back away. Petitioner got out of the car to see what was happening. As he approached the side of the house, he saw Mr. Morris holding a double-barreled shotgun. Mr. Morris told Petitioner that Tony was demanding fifteen dollars, to which Petitioner responded, “I’ll give [Tony] the money. Just give him the tools.”

4. As Petitioner was returning to his mother’s car, Tony yelled, “run”. Petitioner turned around to see Mr. Morris standing beside the house with a shotgun. Petitioner went to his mother’s car, retrieved a shotgun and chambered a round. At that point, Mr. Morris retreated into his house.

5. Petitioner testified that as he was getting into the car, he heard Mr. Morris yell, “You son of a bitch, I’ll kill you”, followed by a shotgun blast. Petitioner looked up to see a second shotgun blast fired from behind a tree. Petitioner then fired two shots towards the tree. According to Petitioner, the tree Mr. Morris was firing from was approximately ten to fifteen feet from the Morris house and approximately fifty feet from the car Petitioner was riding in. Petitioner testified the he only saw shots coming from behind the tree and only returned fire towards the tree. According to Petitioner, he never fired towards the Morris house.

6. Petitioner had a shotgun in his mother’s car because he was going to a turkey shoot later that evening. Petitioner admitted that at turkey shoots, participants pay for each shot they take and receive ammunition as pay for shots. When asked why he had ammunition in his mother’s car if he would purchase ammunition at the turkey shoot, Petitioner initially responded, “[m]y constitutional right.” Later, Petitioner said that he had the ammunition with him because he was going to practice shooting the next day.

7. Petitioner gave a statement to Lieutenant James Black of the Cumberland County Sheriff’s Department on October 3, 1995 shortly after the shooting incident at the Morris house. At the time he gave the statement to Lt. Black, Petitioner had been advised that he was under arrest for shooting into an occupied dwelling. Petitioner was asked to give a full and complete accounting of what had occurred on the evening of October 2, 1995. Petitioner was able to recall details of the evening, including the time Tony came to Petitioner’s mother’s house and the number of shots fired by Mr. Morris and Petitioner.

8. During the course of Petitioner’s statement to Lt. Black, he never mentioned that Mr. Morris fired at Petitioner from behind a tree, nor did Petitioner tell Lt. Black that he only shot towards a tree.

9. Petitioner pled guilty to the misdemeanor offenses of Assault with a Deadly Weapon and Injury to Real Property.

10. Lt. James Black received a call at approximately 9:45 p.m. on the evening of October 2, 1995 regarding an alleged discharge of a firearm into an occupied property. After receiving the call, Lt. Black proceeded to the Morris residence.

11. At the scene, Lt. Black observed a shotgun shell in the driveway and several shell casings on the front porch. He also observed the front windows of the house had been shot out. Inside the house, Lt. Black observed shotgun pellets in the wall of the house.

12. Lt. Black spoke with Mr. and Mrs. Morris about the shooting incident. Lt. Black spoke with petitioner on October 3, 1995 shortly after the shooting incident and took two statements from Petitioner, one prior to his arrest and another shortly after his arrest for shooting into an occupied dwelling.

13. Petitioner did not tell Lt. Black that Mr. Morris was shooting from behind a tree. Additionally, Petitioner never told Lt. Black that he only shot towards a tree. Further, Petitioner did not deny shooting into the Morris residence.

14. Petitioner’s version of the events of October 2, 1995 are not consistent with the physical evidence observed at the Morris residence.

15. Mr. Scott Perry, Director, North Carolina Criminal Justice Education and Training Standards Commission testified that the Commission received a Report of Appointment and Application for Certification on behalf of Petitioner in July 2001.

16. Petitioner’s Report of Appointment listed the offense of discharging a weapon into an occupied property in the criminal records section of the Report of Appointment.

17. Mr. Perry reviewed the documents attached to Petitioner’s Report of Appointment and determined that Petitioner had been charged with a felony and then later pled guilty to two misdemeanors.

18. Petitioner’s case was presented to the Commission’s probable cause committee. Mr. Perry was present at the probable cause meeting at which Petitioner’s case was presented. Mr. Perry later mailed the proposed denial of application letter to Mr. Johnson on August 21, 2001. The proposed denial of application letter accurately reflects the findings of the probable cause committee.

19. According to the proposed denial of application letter, the probable cause committee found that Petitioner had committed the felony offense of Discharging a Firearm into an Occupied Property on October 2, 1995. The probable committee also found that Petitioner lacks the good moral character required of every law enforcement officer based on this felony charge.

CONCLUSIONS OF LAW

1. The parties are properly before the undersigned Administrative Law Judge and jurisdiction and venue are proper.

2. The Administrative Law Judge has the authority to make recommendations to the Respondent as it relates to Petitioner’s law enforcement certification through the North Carolina Criminal Justice Education and Training Standards Commission.

3. 12 NCAC 9A .0204(b)(2) and 9B .0111(1)(a) provides that the Commission may suspend, revoke or deny the certification of a criminal justice officer when the Commission finds:

That the applicant for certification or the certified officer fails to meet or maintain one or more of the minimum employment standards required by 12 NCAC 9B .0111(1)(a), which requires that every law enforcement officer employed by an agency in North Carolina shall not have committed or been convicted of a felony.

4. Petitioner committed the felony offense of Discharging a Firearm into Occupied Property, on or about October 2, 1995, when Petitioner unlawfully and wilfully discharged a Mossburg 500A 12 gauge shotgun into the house of Jimmy and Barbara Morris, while it was actually occupied by Jimmy and Barbara Morris.

5. 12 NCAC 9B .0101(3) provides that every criminal justice officer employed by an agency in North Carolina shall:

Be of good moral character.

6. Petitioner demonstrated that he currently possesses the good moral character required of every law enforcement officer. Accordingly, Respondent’s proposed denial of Petitioner’s certification as a justice officer for lack of good moral character is not supported by substantial evidence.

7. Respondent’s proposed denial of Petitioner’s certification as a justice officer for commission of a felony is supported by substantial evidence.

PROPOSAL FOR DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Respondent deny Petitioner’s law enforcement certification for commission of a felony.