State of North Carolina s80
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 11 DOJ 08989
Samuel Spencer Caldwell )
Petitioner )
)
vs ) DECISION
)
NC Department of Justice )
Campus Police Program )
Respondent )
PROCEDURAL BACKGROUND
The contested case of Samuel Spencer Caldwell, Petitioner herein, was heard before Senior Administrative Law Judge Fred G. Morrison Jr., on October 25, 2011, at the Office of Administrative Hearings in Raleigh, North Carolina.
APPEARANCES
For Petitioner: Kenneth J. Steinberg
NC State Bar #: 19631
Law Offices of Kenneth J. Steinberg, P.A.
4210 North Roxboro Street, Suite 120
Durham, NC 27704
For Respondent: Catherine F. Jordan
NC State Bar #: 34030
NC Department of Justice
PO Box 629
Raleigh, NC 27602
ISSUE
Whether the Respondent’s May 10, 2011, and July 14, 2011 Notice of Probable Cause, denying Petitioner’s application for Campus Police Officer Commission, should be affirmed or reversed?
STATUTES AND RULES AT ISSUE
N.C.G.S. § 14-27.3(a)(1)
12 NCAC 02J. 0200, et seq.
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, 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. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received Notice of Hearing required pursuant to N.C.G.S. § 150B-38, and Petitioner received the notification of probable cause to deny application for Campus Police Officer Commission letter mailed by the Respondent on May 10, 2011, and July 14, 2011 (Respondent’s Exhibits 13 and 14).
2. Respondent has the authority granted under N.C.G.S. § 74G-4(5) and 12 NCAC 2J .0200, et seq., to certify and commission Campus Police and to revoke, suspend or deny such certification or commission.
3. Petitioner Samuel Caldwell submitted an application for Campus Police Officer Commission with the Duke University Police Department on June 23, 2008 (Respondent’s Exhibit 1).
4. As part of the application process, Petitioner was required to sit for a Polygraph Examination. The Polygraph Examination was administered by Special Agent T.M. Phillips on September 23, 2008, at the State Bureau of Investigation, Capital District Office in Raleigh, NC. (Respondent’s Exhibit 4).
5. During the Polygraph Examination, Petitioner voluntarily described an incident that occurred approximately 2 years earlier with his girlfriend, who claimed that he had raped her. The individual that Petitioner was referring to was Chayvonna Peacock (hereinafter referred to as “Peacock”). Petitioner admitted that they had sexual intercourse, but did not realize or have reason to know in the beginning that she was wanting him to stop. Petitioner heard Peacock speaking very softly, and thought that she was moaning or mumbling in sexual gratification. Petitioner stated that he stopped vaginal penetration at the very moment that he realized that Peacock wanted him to stop having sex with her. (Respondent’s Exhibit 4). Petitioner left Peacock’s apartment shortly thereafter.
6. Petitioner and Peacock saw each other the following day. Peacock told Petitioner that he had raped her the night before. Petitioner adamantly denied that he raped her.
7. Petitioner was not charged with, or convicted of, any criminal offense cited by the Respondent in its notification of probable cause to deny Petitioner’s application.
8. During an investigation opened by Investigator Thompson, he and Officer Darren Young met with Peacock on October 14, 2008. The interview with Peacock was video and audio recorded with her knowledge and consent. During this interview, Peacock alleged the following:
a. That she was able to positively identify Petitioner from a photograph provided to her.
b. That she had a “platonic” relationship with Petitioner, and that no sexual advances, encounters, or activity had occurred between herself and Petitioner prior to the incident in question.
c. That Petitioner threw himself on her, held her down with all of his weight on her body, prevented her from yelling with an open-mouth kiss, removed her pants, and penetrated her vagina with his penis against her will.
d. That she verbally and physically resisted Petitioner’s actions by “knee[ing] him in the balls,” and saying “stop,” and “no.”
e. That Petitioner got up on his own and left after she told him to “stop.”
f. That Petitioner responded that “he thought it was consensual” when she told him that he had raped her.
g. That she did not report this incident to the police because she thought it needed to be reported within twenty-four hours.
9. Petitioner provided a seven-page letter/statement under oath with proper notary seal on October 21, 2008. (Respondent’s Exhibit 7). This statement is substantially similar and consistent with the testimony provided by Petitioner during the Hearing on October 25, 2011.
10. Petitioner met with Marvin F. Clark, Company Police Administrator, on February 10, 2011, and again provided a detailed accounting of the event in question and denied the allegations of Peacock. (Respondent’s Exhibit 10). This statement is also substantially similar and consistent with the testimony provided by Petitioner during the Hearing on October 25, 2011.
11. On May 10, 2011, Marvin F. Clark sent a letter to Petitioner by certified mail advising that his application for Campus Police Officer Commission was being denied, based upon a finding that Petitioner had committed the felony offense of second-degree rape in the summer of 2005, by engaging in vaginal intercourse by force and against the will of Chayvonna Peacock, in violation of N.C.G.S. § 14-27.3 (1) (sic) (Respondent’s Exhibit 13).
12. Peacock’s testimony on October 25, 2011 substantially differed with the interview that she provided to Investigator Thompson on October 14, 2008 in several respects:
a. That she and the Petitioner had engaged in sexual intercourse four-to-five times prior to the incident in question.
b. That she and Petitioner had been involved in a romantic relationship leading up to the incident in question.
c. That there were mutual feelings of affection immediately prior to the incident in question.
d. That she failed to verbalize non-consent to intercourse before and during the incident in question.
13. It is inconclusive whether Petitioner committed the offense of second-degree rape.
CONCLUSIONS OF LAW
1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties have received proper notice of the hearing in this matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.
2. Respondent has the authority granted under Chapter 74G of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 2J, to commission campus police officers and to revoke, suspend, or deny such certification.
3. 12 NCAC 02J .0209 states, in pertinent part:
(a) A campus police commission shall be revoked or denied upon a finding that the officer has committed or been convicted of:
(1) any felony…
4. N.C.G.S. § 14-27.3 states, in pertinent part:
(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
(1) By force and against the will of the other person;
(b) Any person who commits the offense defined in this section is guilty of a Class C felony.
5. Petitioner has the burden of proving by the preponderance of the evidence that the Respondent improperly found probable cause to deny his application for commission as a campus police officer.
6. The preponderance of the evidence presented fails to support the Respondent’s conclusion that Petitioner committed the felony crime of second degree rape under N.C.G.S. § 14-27.3(a)(1).
DECISION
NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned decides that the Respondent’s May 10, 2011, and July 14, 2011, Notice of Probable Cause denying Petitioner’s application for commission for campus police officer should be reversed.
NOTICE
The North Carolina Department of Justice, or its designee, will make the Final Decision in this contested case. That entity is required to give each party an opportunity to file exceptions to this Decision and to file proposed findings of fact and to present oral and written arguments prior to its final decision or order. N.C.G.S. § 150B-40(e). That entity is also required to serve a copy of the Final Decision on all parties, to the parties’ attorney of record, and to the Office of Administrative Hearings. N.C.G.S. § 150B-36(b).
This the ____ day of February, 2012.
______
Fred G. Morrison Jr.
Senior Administrative Law Judge
A copy of the foregoing was mailed to:
Kenneth J Steinberg
Law Offices of Kenneth J Steinberg PA
4210 North Roxboro Road
Suite 120
Durham, NC 27704
ATTORNEY FOR PETITIONER
Catherine F. Jordan
Assistant Attorney General
NC Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
ATTORNEY FOR RESPONDENT
This the 6th day of February, 2012.
______
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
(919) 431 3000
Fax: (919) 431-3100
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