STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF JOHNSTON 05 DOJ 1405
______
STEVEN FORREST BRUBAKER, )
Petitioner, )
)
)
v. ) PROPOSAL FOR DECISION
)
NORTH CAROLINA CRIMINAL JUSTICE)
EDUCATION AND TRAINING )
STANDARDS COMMISSION, )
Respondent. )
)
______)
THIS MATTER came on for hearing on January 12, 2006 before the undersigned Administrative Law Judge (ALJ), Augustus B. Elkins II, in Fayetteville, North Carolina. This case is before the Office of Administrative Hearings (OAH) pursuant to N.C.G.S. § 150B-40(e), and heard upon 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. The record was held open to allow counsel for the parties to submit proposed findings and conclusions of law. Respondent’s attorney submitted their proposals by the due date. After a second reminder to Petitioner, the record was closed on May 15, 2006.
APPEARANCES
Petitioner: John P. O’Hale, Attorney at Law
Post Office Box 1567
Smithfield, North Carolina 27577
Respondent: Jane Ammons Gilchrist, Assistant Attorney General
N.C. Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 27699-9001
ISSUE
Is Respondent’s proposed revocation of Petitioner’s law enforcement officer certification supported by a preponderance of the evidence?
APPLICABLE STATUTES and RULES
N.C. Gen. Stat. §14-33(c)(1)
12 NCAC 09A.0103
12 NCAC 09A.0204(b)(3)(A)
12 NCAC 09A.0205(b)(1)
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearings, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following Findings of Fact. In making the Findings of Fact, the Undersigned has weighed all the evidence 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.
FINDINGS OF FACT
1. Petitioner received the notification of probable cause to suspend law enforcement officer certification letter mailed by the Respondent on August 22, 2005.
2. The North Carolina Criminal Justice Education and Training Standards Commission has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9A, to certify law enforcement officers and to revoke, suspend, or deny such certification.
3. Petitioner was appointed as a full-time law enforcement officer with the Clayton Police Department on April 2, 1998. Petitioner received a general certification as a law enforcement officer from the Respondent pursuant to this appointment. That certification is currently valid.
4. Petitioner was criminally charged by a warrant for arrest with the offense of Misdemeanor Breaking and Entering on November 21, 2004, in violation of N.C. Gen. Stat. § 14-54(b), alleging Petitioner “unlawfully and willfully did wrongfully break and enter a building of Steven James Ward located at 120 Primrose Lane, Clayton, NC.”
5. Petitioner was criminally charged by a warrant for arrest with the offense of Communicating Threats on November 21, 2004, in violation of N.C. Gen. Stat. § 14-277.1, alleging Petitioner “unlawfully and willfully did threaten to physically injure the person of Steven James Ward. The threat was communicated to Steven James Ward by stating in person ‘Your easy to find, I am going to kill you’ and the threat was made in a manner and under circumstances which would cause a reasonable person to believe that the threat would be carried out.”
6. Petitioner was criminally charged by a warrant for arrest with the offense of Assault with a Deadly Weapon on November 21, 2004, in violation of N.C. Gen. Stat. § 14-33(c)(1), alleging Petitioner “unlawfully and willfully did assault Steven James Ward with a deadly weapon, a motor vehicle, by trying to run the victim over.“
7. At a subsequent criminal proceeding in Johnston County (NC) District Court on this matter, the Misdemeanor Breaking and Entering charge was dismissed at end of the State’s evidence. Petitioner was found not guilty of the offenses of Communicating Threats and Assault with a Deadly Weapon.
8. 12 NCAC 9A.0204(b)(3)(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 has committed or been convicted of a criminal offense or unlawful act defined in 12 NCAC 9A .0103 as a Class B Misdemeanor and which occurred after the date of initial certification. 12 NCAC 9A .0103 (4) defines “commission of an offense” as a finding by the North Carolina Criminal Justice Education and Training Standards Commission or an administrative body that a person performed the acts necessary to satisfy the elements of a specified criminal offense. The criminal offense of Assault with a Deadly Weapon, in violation of N.C. Gen. Stat. §14-33(c)(1), constitutes a Class B misdemeanor pursuant to 12 NCAC 9A .0103(23)(b) and the Class B misdemeanor manual, as promulgated under the Commission’s rules.
9. Subsequent to Petitioner’s arrest in December, 2004, for the criminal charges of Misdemeanor Breaking and Entering, Communicating Threats and Assault with a Deadly weapon, the Criminal Justice Standards Division became aware of the charges through media reports. The first newspaper article was published on December 3, 2004 and indicated that Petitioner had been charged with Misdemeanor Breaking and Entering, Communicating Threats and Assault with a Deadly Weapon. A second newspaper article was published on January 19, 2005 and indicated that Petitioner had been acquitted in Johnston County District Court of Communicating Threats and Assault with a Deadly Weapon. The article indicated that the Breaking and Entering charge had been dismissed.
10. As a result of the first newspaper article, Richard Squires, an investigator with the Criminal Justice Standards Division, began an investigation into the charges. On January 24, 2005, Squires received a copy of the warrants and dispositions from the Johnston County Clerk of Court. The court records indicated that Petitioner was found not guilty of the Communicating Threats and the Assault with a Deadly Weapon charges. The Breaking and Entering charge was dismissed.
11. On January 31, 2005, the Criminal Justice Standards Division received from Thomas H. Lock, District Attorney for the Eleventh Prosecutorial District, a copy of the State’s Investigative file regarding Petitioner. This investigative file contained a copy of the Investigative Report prepared by the Detective Division of the Johnston County Sheriff’s Office, a copy of the 911 calls placed at the time of the incident, and a copy of crime scene photographs.
12. Mr. Squires contacted Petitioner by mail. By letter dated February 18, 2005, Petitioner responded to Mr. Squires' inquiry. In that February 18, 2005 letter, Petitioner stated that he was upset and angry when he was at Mr. Ward’s home. Petitioner understood that he had made a “dreadful judgment call”.
13. Mr. Squires also contacted by mail and telephone, Steven James Ward, and Tara Ann Kitts and Charles Gabriel Perez.
14. At the hearing of this matter, Steven Ward testified that “out of the blue,” on or about November 20, 2004, he got a call from Tara Kitts. Ward testified that he had been in a relationship with Ms. Kitts but that relationship had terminated some time before November. He told Ms. Kitts that he was going out to bar and she later on showed up there and then went to his house. On November 21, 2004 at two o’clock in the morning, Petitioner came to Ward’s house in Clayton, North Carolina. Petitioner came to Ward’s house looking for his (Petitioner’s) fiancée, Tara Kitts. Petitioner knocked loudly on the door of Ward’s house. Mr. Ward testified that the knocking caused “a little splintering” to the door. Ms. Kitts went to the door and let Petitioner in.
15. Petitioner had in his possession and at his side, a black tire changing tool that was a half inch in diameter and two and a half feet long. After Petitioner spoke to Ms. Kitts, Petitioner asked Mr. Ward if he was Steven Ward. Ward said no. Mr. Ward thought it would be prudent to say he was not Steven Ward. Petitioner appeared to be upset and this appeared to Mr. Ward to be a high tension situation. Ward testified that he believed Petitioner was justified to be upset. Mr. Ward stated that he was afraid that a scuffle might occur.
16. While Petitioner again talked to Ms. Kitts, Mr. Ward moved towards a door. At that point Mr. Ward’s roommate, Charles Perez came out of his bedroom. Petitioner turned his attention to Mr. Perez and asked Perez if he was Steve Ward. Mr. Ward then ran out of the door. When Ward ran out of the house, Petitioner followed. Petitioner and Mr. Ward had words with each other. When Ward got out of the house, Petitioner never got close to Ward. Petitioner got in his car and drove it in the direction of Ward. Ward testified that he was in between some cars. Petitioner left. Mr. Ward testified that he spoke with police the next day but that he did not “lodge any charges.”
17. Charles Perez testified that on November 21, 2004 he was living with Steven Ward. Perez was asleep when he was awakened by two loud bangs. He had been sleeping soundly having just recently smoked marijuana. He heard voices coming from the living room. He opened his bedroom door, walked out into the living room and saw Petitioner. Perez testified that Petitioner was holding a tire changing tool in his hand in the air. Mr. Perez testified that Petitioner asked Perez twice if he was Steve Ward. Perez told him no. About that time, Mr. Ward ran out of the house and Petitioner followed. Mr. Perez called 911. Mr. Perez stated that he had told the 911 operator that Petitioner had a hammer and that Petitioner and Ward were fighting. Perez testified that in fact Petitioner did not have a hammer and Ward and Petitioner were not fighting. He also stated at the criminal trial he had not recalled the tire changing tool being raised in the air. Perez testified that his mental faculties were clouded due to the effect of the marijuana he had been smoking.
18. Tara Kitts testified that she was at Ward’s house on November 21, 2004 when Petitioner came to Ward’s house. She stated that she and Petitioner have a child together and that at the time she was Petitioner’s fiancée. Kitts stated that Petitioner knocked loudly on the door. Ms. Kitts opened the door for Petitioner. Petitioner was upset and asked Kitts what she was doing there. Petitioner had a tire iron in his hand. Kitts told Petitioner to leave and that she was leaving. Ms. Kitts went out the door.
19. Ms. Kitts called 911. She told the 911 operator that her boyfriend, Petitioner, was trying to kill Steve Ward. She told the 911 operator that Petitioner showed up over at Mr. Ward’s house “flipping out”. She told the 911 operator that she had to leave because Petitioner was “going ballistic”. Petitioner was heard on the 911 tape yelling at Kitts. Petitioner loudly stated, “I thought it was over between you and fucking Steve. What the fuck are you still doing over there?” At that point, Petitioner got on the phone and told the 911 operator, “OK. Yeah. That’s fine. But you know my girlfriend she’s over at some guy’s house . . . It’s all good.” The call then ended. Ms. Kitts did not “press charges,” could not remember some of the night’s events, and was “ready for it all to go away.”
20. Petitioner testified that he went over to Steven Ward’s house at two o’clock in the morning on November 21, 2004. Petitioner went there to confirm that his fiancée, Tara Ann Kitts, was at Ward’s house when she had not come home after work. He had never been to Ward’s house before. Petitioner determined that Kitts was at Ward’s house because Petitioner’s car was parked outside of Ward’s house. Petitioner parked his car at the driveway of Ward’s house, took a tire changing tool from his back floor board and went to the front door of the house. Petitioner had the tool out earlier in the day to check a noise in one of his hub caps. He had put in on the floor board when he was through. Petitioner rang the door bell but got not response. Petitioner then knocked on the door very hard. Petitioner took the tire tool with him because he did not want anyone to attack him and had it with him in case he needed to defend himself. He did not know how many people were in the house. He had just recently had hernia surgery and was still recovering with staples still in the incision.
21. Petitioner stated he just wanted to confirm who Kitts was with. The tire tool was two feet long with a slight bend in it with a flat end and a lug nut on the other end. Petitioner kept the tire tool at his side. He took it with him in the event he may need to protect himself. Petitioner entered the house and asked Ward if he was Steve. Ward denied that he was Steve. Perez came out and Petitioner asked if he was Steve. Perez said he was not Steve. At that point Steve Ward went out the front door into the yard. Petitioner walked out on the front porch and then to his car. Words were exchanged between Ward and Petitioner. Petitioner testified that he was around 60 yards from Ward when they had words. Petitioner told Kitts to take his car home, and Petitioner then left the cul-de-sac. Petitioner stated that he never raised the tire tool, never swung at anyone and never threatened anyone with the tire tool.