ALJDEC

99A-019-POS · Peace Officers Standards and Training · 1999-09-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 16, 1999. The record remained open for submission of legal memoranda; the record closed on October 6, 1999 APPEARANCES: Assistant Attorney general Jeanne Galvin on behalf of the Arizona Peace Officer Standards and Training Board; Conrad Baran, Esq. on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT Franklin Tsosie III (“Respondent”) is the holder of a peace officer certification issued by the Arizona Peace Officer Standards and Training Board (“Board”). Respondent was at all times material to this matter and is currently employed with the Navajo Nation Division of Public Safety as a police officer and criminal investigator. On February 3, 1999, Respondent was terminated from the Navajo Division of Public safety because “[w]hile under the influence of spirituous liquor on 2/11/98, he recklessly discharge[d] his firearm in Phoenix, Az., on 12/06/98, he made interstate threats by phone to cause injury to another….” Subsequently, Respondent underwent an appeal of the termination through the Department of Personnel Management of the Navajo Nation and the appeal resulted in a hearing before a hearing officer. As a result of that hearing, the hearing officer determined that with regard to the discharge of a firearm incident, there was no intent to endanger the physical well being of another individual and no neglect of duty. However, the hearing officer did find that Respondent uttered threats of physical violence towards a police officer. The Order issued by the hearing officer reinstated his employment with the Navajo Division of Law Enforcement and imposed discipline against him The Findings of Fact and Conclusions of Law determined by the hearing officer of the Navajo Nation are not binding on this tribunal. The instant hearing is a disciplinary matter based on several allegations of misconduct by Respondent which is claimed to be in violation of A.A.C. R13-4-109 (A)(6),(7) and (8). Telephone Threats Against Peace Officer On December 6, 1997, Suzanna Smith (“Ms. Smith”) was acting as a radio dispatcher for the Navajo Nation Department of Law Enforcement in Chinle, Navajo Nation. On that date, she received three telephone calls from Respondent. Previously, she and the Respondent engaged in telephone conversations discussing their personal lives. At 2:00 a.m. on December 6, 1997, Respondent contacted Ms. Smith by telephone and a discussion ensued concerning an incident involving a stolen police vehicle that, during a police pursuit, resulted in Respondent’s uncle being hit and injured. Respondent had called Ms. Smith from a hospital in Albuquerque, New Mexico, where his uncle was recuperating. Respondent was upset over the incident and informed Ms. Smith during the conversation that he was intoxicated During the above-mentioned conversation, Respondent stated that Ms. Smith should not be surprised if he hurts Hank. Ms. Smith testified that based on the substance of the conversation, she knew Respondent was referring to Henry Platerio, the officer in charge of the police unit that had been engaged in pursuit of the stolen vehicle. Shortly after that statement, Respondent informed Ms. Smith that he did not intend to hurt anyone . The conversation was cut short because Ms. Smith received other incoming calls. At approximately 3:42 a.m. on December 6, 1997, Respondent telephoned Ms. Smith and asked to speak to Officer Dave Frank. Ms. Smith transferred the call to Officer Frank. At approximately 5:12 a.m. Respondent called a third time and requested Captain Francis Bradley’s (“Captain Bradley”) home telephone number, which Ms. Smith provided. Ms. Smith reported to Sergeant Dean Hadley, her superior, the substance of the first December 6, 1997 telephone conversation concerning Respondent’s alleged threat to Officer Platerio. Respondent telephoned Captain Bradley and had a lengthy conversation about a number of issues including Respondent’s anger towards Officer Platerio and that Respondent blamed Officer Platerio for causing his uncle’s injuries. Captain Bradley did not appear as a witness at this hearing. However, Captain Bradley’s affidavit, which was admitted into evidence (Exhibit 14), establishes that even though Respondent threatened physical harm towards Officer Platerio, in the same conversation Respondent represented that “ he knew what he was doing and that he would not do anything stupid. All he wanted (Captain Bradley) to do was listen to him….” Respondent contends that no threat occurred with respect to Officer Platerio because in the same conversations, the alleged threat was accompanied by statements that he did not intend to hurt or harm anyone, that all he wanted to do was talk it out. Respondent contends that the statement concerning Officer Platerio was him merely venting and sharing his feelings with a friend, Ms. Smith, and his superior, Captain Bradley. It is determined that Respondent’s statements made during his first conversation with Ms. Smith on December 6, 1997, establishes that the alleged threat was qualified and not an actual threat as Respondent represented that he did not intend to hurt or harm anyone. Further, taking into consideration that Respondent had been drinking alcoholic beverages, that he was calling out of state and under emotional stress, the qualifying statements as to his true intent show that, under the circumstances, he did not intend to harm Officer Platerio but was merely expressing his anger and frustration over the situation. Physical Assault and Verbal Threats of Physical Harm to Spouse 13. Conflicting testimony was presented concerning the events that occurred on November 16 and 17, 1998. Upon review of the evidence of record, the Administrative Law Judge determines the salient facts as to Respondent’s acts during that time period are as set forth below. 14. The evidence of record establishes that on November 16, 1998, Respondent traveled to Gallup, New Mexico. His wife, Concetta Tsosie (“Ms. Tsosie”) subsequently drove to Gallup to confront Respondent about his drinking alcoholic beverages. Upon arrival, Ms. Tsosie found Respondent at an establishment drinking an alcoholic beverage. They proceeded to argue in the parking lot of the establishment about who would drive Respondent’s truck home. Respondent did not want Ms. Tsosie driving him home and refused to turn over his keys. Respondent and Ms. Tsosie had a struggle over the keys while physically in the truck. During the struggle, Mr. Tsosie held Ms. Tsosie down by her shoulder, pressing against the passenger door, and took her keys to the truck. Ms. Tsosie pulled on Respondent’s hair, grabbed at her keys, hit Respondent, and then exited the truck. 15. After the above-mentioned incident, Ms. Tsosie left and drove her car home. At approximately 1:00 a.m. on November 17, 1998, when Ms. Tsosie arrived home, Respondent was sitting on the bumper of his truck. A call was dispatched over the Navajo Nation Police radio that Respondent was threatening to harm Ms. Tsosie and that the incident was occurring at Respondent’s home. Subsequently, Navajo Nation Police Officer Lynn Redhouse (“Officer Redhouse”) arrived at Respondent’s home and Respondent yelled at her not to have Ms. Tsosie come near him because he might hurt her. Respondent was upset because Ms. Tsosie had taken his checkbook from the truck while in Gallup. 16. Before other Navajo Police Officers arrived on the scene, Ms. Tsosie and Officer Redhouse spoke about the Gallup incident. Subsequently, Navajo Nation Police Officer Emmett Yazzie (“Officer Yazzie”), the officer in charge of the shift, arrived on the scene. Respondent told Officer Yazzie that he was not going to let Ms. Tsosie in the house. Ms. Tsosie informed Officer Yazzie that she did not want to stay next door at her sister’s house and wanted to have her and her children return to her house without Respondent being present. Officer Yazzie stated that he could not do anything to keep Respondent out of his house if Respondent was not doing anything wrong. At that time, Ms. Tsosie informed Officer Yazzie of Respondent’s threats of hurting her. Officer Yazzie informed her that he could obtain an emergency protective order and serve it on Respondent if she filed a formal complaint against him. Officer Yazzie told Respondent that he should leave Ms. Tsosie alone and that he would be filing for an emergency protective order. Respondent responded by stating that he will beat up Ms. Tsosie and that Officer Yazzie needs to protect her. Officer Yazzie observed that Respondent had been drinking alcoholic beverages, as evidenced by the smell of alcohol on his breath, watery eyes and the manner of speech. Officer Yazzie informed Respondent that he is threatening to harm Ms. Tsosie and that if it continues he will have to arrest Respondent. Respondent continued threatening to harm Ms. Tsosie and Officer Yazzie arrested Respondent. 17. Respondent contends that Ms. Tsosie signed a blank complaint form that Ms. Tsosie contends was later completed by the Navajo police. Regardless of the contention, the evidence of record establishes that Respondent made verbal threats against Ms. Tsosie and that Ms. Tsosie requested that a formal complaint be filed against Respondent for such action. 18. On November 17, 1998, after the above-mentioned incident, Ms. Tsosie made two withdrawals from the above-mentioned checking account. Subsequently, she went to the courthouse in Chinle to file paperwork concerning the protective order. While at the courthouse, Ms. Tsosie encountered Respondent who demanded to have his money returned. Ms. Tsosie testified she told Respondent she did not have the money and he left the courthouse. By that time, a clerk of the court had called the Navajo Nation Police Department. About 20-30 minutes later, a Navajo Nation Police Officer arrived at the courthouse to escort Ms. Tsosie from the courthouse to the police station. Ms. Tsosie testified that, during the above-mentioned period of time at the courthouse, Respondent made no threats directed at her. After being escorted to the police station, Navajo Nation Police Officer Harvey provided Ms. Tsosie with a complaint form to be filed against Respondent, which she signed. According to Ms. Tsosie, Officer Dempsey said he complete the form so he could pick up Respondent and assured her Respondent would remain in the station until his preliminary hearing. Subsequently, Respondent was arrested and released on bail. After his release, Respondent visited Larry Jones’ (“Mr. Jones”) home. While at Mr. Jones’ home, Respondent had another confrontation with Ms. Tsosie. Upon arrival at Mr. Jones’ home, Respondent noticed Ms. Tsosie’s car in the driveway. Respondent observed Ms. Tsosie’s car door open and saw Ms. Tsosie’s purse. Respondent picked up the purse and started looking for the money that Ms. Tsosie had withdrawn from the above-mentioned checking account. Noticing Respondent with her purse, Ms. Tsosie approached and attempted to retrieve the purse. During a struggle over the purse, Ms. Tsosie’s finger became caught inside the purse. Ms. Tsosie testified that she was not injured and that Respondent dropped the purse and left because he learned that her sister had called the Navajo Nation Police Department. Subsequently, Ms. Tsosie learned Respondent was arrested for this incident and would be kept in jail until hearing. Ms. Tsosie testified regarding the above-mentioned incident that she was not hurt nor afraid of Respondent. The evidence of record establishes that Navajo Police Officer Dempsey Harvey (“Officer Harvey”) interviewed Constance Tachine, Roberta Williams, Verna Williams, and Dennison Jones, who informed Officer Harvey that they were visited by Respondent on November 17, 1998, and that Respondent made verbal threats directed towards Ms. Tsosie. Ms. Tsosie’s testimony that she was not hurt by the above-mentioned acts of the Respondent and that no injury resulted from such acts is determined not to be credible. It is determined that the weight of the credible evidence of record, including the credible testimony of Officers Yazzie and Harvey, establishes that Respondent made threats of physical harm directed towards Ms. Tsosie and engaged in physical conduct that caused Ms. Tsosie to be concerned about her safety. It is also determined that even if the above-mentioned complaint forms were signed in blank by Ms. Tsosie and later completed by officers of the Navajo Nation Police Department, the essence of information in the complaint concerning threats of physical harm to Ms. Tsosie and actual injury to Ms. Tsosie as a result of Respondent’s actions are determined to be an accurate representation of statements Ms. Tsosie made to Navajo Nation Police Officers and that Ms. Tsosie requested that the formal complaints be filed against Respondent. Discharge of Firearm and Providing False Information 24. On February 11, 1998, Respondent while occupying a room at a Motel 6 located in Phoenix, Arizona, discharged his firearm while intoxicated. 25. The evidence establishes that while in Phoenix to meet with a United States Attorney concerning two matters, Respondent decided to stay overnight at the above-mentioned Motel 6. 26. Respondent admits to being intoxicated and the evidence of record establishes that he consumed 18 cans of beer and that he possessed but did not consume an opened half-filled 750 milliliter bottle of tequila. 27. The evidence establishes that after Respondent discharged his firearm while unloading it in his motel room, a bullet went through the mirror in his room and exited through a mirror in an adjoining room, traveling across the room, hitting the front door panel. At the time of the discharge, the adjacent room was occupied by a woman who was sleeping in bed. The discharge of the firearm caused damage to the adjoining room but did not cause injury to any person but potentially could have caused harm to the occupant of that room. The bullet was found in the adjacent room. Respondent contends that, rather than having acted in a reckless manner, his intent was to protect the public. He claims that prior to discharging the firearm, the firearm was in his vehicle in the parking lot of the motel. Because he had just seen a segment of a news program on television that involved a shooting incident, he became concerned about having a loaded firearm in his vehicle. Respondent retrieved the firearm from his vehicle and proceeded to unload it. Respondent admits that while unloading the firearm, he was intoxicated and watching television. Contrary to Respondent’s assertion, it is determined that the handling of a loaded firearm while intoxicated in a motel room where adjoining rooms may be occupied or where members of the public may be in the immediate area is a reckless act that potentially could cause injury to himself and others. 29. Phoenix Police Officers James Lawler (“Officer Lawler”) and Jerry Hester (“Officer Hester”) arrived separately at the above-mentioned motel in response to a priority one call. Upon arrival, the officers approached motel room number 6 from opposite directions with their guns drawn. Inside the room was the Respondent who was ordered to place his hands above his head and walk out of the room. Respondent was questioned by Officer Hester as to the discharge of a firearm. Respondent told Officer Hester the door to his motel room was open and a gun was fired from a car that had driven by. 30. Respondent contends that the above-mentioned statement was spontaneously made because Respondent was nervous and that within minutes of that statement, Respondent informed Officer Hester as to what actually occurred. 31. Officer Lawler cleared the motel room and observed a black International Association of Chief of Police Officers bag he recognized had been distributed during a recent convention. At that time, Officer Lawler informed Officer Hester that he thought Respondent was a policeman. 32. After Officers Lawler and Hester observed a shell casing inside Respondent’s motel room, Respondent was mirandized and then questioned him as to what had occurred. It was then that Respondent informed Officer Hester that his firearm had discharged in his hotel room while he was unloading it. Respondent provided information as to the location of the firearm in the motel room. Based on that information, Officer Lawler located the firearm. 33. No more than five minutes elapsed between Respondent’s initial statement to Officer Hester concerning a drive by shooting and Respondent’s admission that he had discharged a firearm in his motel room. 34. The evidence establishes that Respondent provided misinformation to the police officers concerning the above-mentioned incident. However, after providing such misinformation, Respondent cooperated with the officers and was not handcuffed or arrested. 35. The occupant of the adjoining room was a visitor from out of state who did not desire to be involved in the prosecution of Respondent. The manager of Motel Six informed Officers Lawler and Hester that if Respondent paid for the damage to the motel rooms that the Motel Six would not pursue filing charges against Respondent. The manager of the Motel Six made such representations after learning that Respondent was a peace officer. Officers Lawler and Hester testified that but for the lack of desire to have Respondent prosecuted by Motel 6 and the occupant of the adjoining room, Respondent would have been cited with an offense of endangerment. CONCLUSIONS OF LAW During the hearing, the Administrative Law Judge addressed the parties regarding the issue of whether the Administrative Law Judge has the authority to determine if offenses have been committed within the meaning of A.A.C. R 13-4-109. In particular, the Judge stated that he considered the “offense” to mean criminal offenses or crimes and the Judge questioned whether he had the authority to determine whether a crime had been committed by a “preponderance of the evidence” or whether it is more appropriate for a criminal court to determine that issue by applying the standard of proof of “beyond a reasonable doubt”. The parties were given an opportunity to address that issue with respect to the alleged endangerment offense as well as the alleged offense of being dishonest to a police officer. The parties filed memoranda and accompanying authoritative material on the above-mentioned issues. The Board bears the burden of proof in this proceeding. The standard of proof is “by a preponderance of the evidence”. See Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (Ariz. App. 1996). The Judge determines that a determination as to whether an offense has been committed is distinguishable from determining a conviction of an offense. The Judge is convinced that offenses can be committed that do not necessarily result in prosecution or conviction. Because A.A.C. R13-4-109 (D) provides for mandatory revocation upon receipt of a certified copy of a judgment of a felony conviction, it is determined that the Board intended to distinguish convictions from the commission of offenses in A.A.C. R13-4- 109(A)(6). It is determined based on a review of the submissions by the parties[1], that the Administrative Law Judge has the authority to determine whether the commission of an offense, meaning a criminal offense or crime, occurred. The evidence of record establishes that Respondent lied to Officers Lawler and Hester about what had occurred at the Motel Six concerning the discharge of a firearm. Despite the argument that Respondent ultimately informed the Phoenix police officers as to the discharge of a firearm in his motel room, such disclosure did not occur until after the police officers noticed a shell casing in Respondent’s motel room. Under the circumstances, it is determined that Respondent changed his initial statement to the police officers after it became apparent to Respondent that the police officers would conclude that the discharge of the firearm occurred in his motel room. A.R.S. §13-2907.01 provides that it is a class 1 misdemeanor to provide false information to a police officer. It is determined that Respondent’s actions in initially providing inaccurate information as to what occurred in his motel room on November 17, 1998 can be considered the commission of an offense within the meaning of A.R.S. §13-2907.01 and a violation of A.A.C. R13-4-109(A)(6). Endangerment is defined in A.R.S. §13-1201 follows: A. A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury. B. Endangerment involving a substantial risk of imminent death is a class 6 felony. In all other cases, it is a class 1 misdemeanor.

A.R.S. §13-105 (9)(c) provides:

“Recklessly” means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.

7. It is determined that the preponderance of the evidence establishes that Respondent acted recklessly in his handling of the firearm in his motel room on November 17, 1998, and the discharge of that firearm in the motel room, under all of the facts as determined above, constitutes the commission of the offense of endangerment within the meaning of A.R.S. §13- 1201.5. 8. Respondent’s acts as set forth above in paragraphs 13 through 23 of the Findings of Fact constitute the commission of an offense involving physical violence. 9. Respondent’s conduct, as set forth above, in paragraphs 13 through 35 of the Findings of Fact, constitutes violations of A.A.C. R13-4-109(A)(7) and (8). 10. It is determined that the evidence of record fails to support a finding that Respondent’s statement concerning Officer Platerio rises to the level of a threat of physical harm and does not constitute a violation of A.A.C. R13-4-109(A)(6)(7) or(8). Done this day, October 20, 1999

______________________________________ LEWIS D. KOWAL Administrative Law Judge

Original transmitted by mail this ____ day of October, 1999, to:

Rod Covey, Executive Director Police Officers Standards & Training 2643 East University Phoenix, AZ 85040

By _______________________________

----------------------- [1] The Board provided as exhibits to its legal memoranda a number of recommended decisions of Hearing Officers/Administrative Law Judges, some of whom are judges with the Office of Administrative Hearings in attempt to persuade this Judge that a Hearing Officer/Administrative Law Judge has the authority to determine whether a respondent has committed offenses within the meaning of A.A.C. R13-4-109(A)(6). This Judge is not bound by any prior recommended decision issued by any other Administrative Law Judge or Hearing Officer and did not consider the exhibits attached to the Board’s legal memorandum in issuing the instant Recommended Findings of Fact and Conclusions of Law.

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