CLOSE-OUT MEMO Criminal Investigation Public Corruption Unit

Luis S. Caso INVESTIGATION #: 64-10-27

DATE:

December 6,2010

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ORIGINATION DATE: February 5, 2010

SUBJECT(S): Officer Frankly Forte Officer Eliut Hazzi

EMPLOYMENT:

Miami Beach Police Department Miami Beach Police Department

INVESTIGATOR: AGENCY: PHONE:

INTERNAL AFFAIRS INVESTIGATOR: Sgt. Carolyn Chin AGENCY: Miami Beach Police Department PHONE: CONCLUSION

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CHARGES FILED CRIME

COURT CASE NUMBER: STATUTE DEGREE

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OTHER:

This investigation started when the media reported on February 5, 2010 that an individual named Harold Strickland was intending to sue the City of Miami Beach for what he claimed was false arrest that occurred on March 13,2009. Until Mr. Strickland made the City aware that he was intending to sue and the media reported on the incident on February 5, 2010, neither the City of Miami Beach Internal Affair nor the Office of the State Attorney knew of the allegations. Upon receiving the above information, an investigation was commenced. The investigation consisted of interviewing Mr. Strickland, another individual arrested named Oscar Mendoza, interviewing other civilians, interviewing other police officers who came in contact with Mr. Strickland on the

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night in question, review of a taped 911 call, subpoenaing various records from several phone companies and using many other investigative tools. Upon reviewing all of the evidence and the applicable law, this office has concluded that this matter should be handled administratively by the City of Miarni Beach Police Department. FACTS: Statement of Harold Strickland On March 13, 2009, Mr. Harold Strickland was visiting Miami Beach from California on business. He was staying at the Alvion Hotel located at 311 Lincoln Road, Miami Beach. The Alvion Hotel is located on the east side of Washington Avenue. Mr. Strickland was familiar with this area of South Beach because prior to moving to California, he lived in an apartment Alton Avenue and in another apartment on Collins Avenue. On that date, Mr. Strickland flew into Miami and was met by a potential client. The client drove him from the airport to the hotel and then they went to have dinner at the VanDyke Restaurant located at 846 Lincoln Road. After dinner, Mr. Strickland returned to the Alvion hotel aIld the potential cliel1t left. Mr. Strickland decided to visit an old friend who owns Twist nightclub located at 1057 Washington Avenue, so he changed clothes and walked to the club. Mr. Strickland stayed at the club for approximately one hour and had one cocktail. When leaving the bar, Mr. Strickland decided to walk to his former apartment located on Alton Avenue to see how the neighborhood had changed in the few years since he moved away. Mr. Strickland walked west on n" Street to Alton and then east on lih Street towards Michigan Avenue. During this time, Mr. Strickland was speaking to his sister, who lives in Utah, on his cellular telephone. This has been verified from the telephone records subpoenaed for this investigation. Mr. Strickland was walking north on Michigan Avenue and approaching is" Street by Flamingo Park and a parking lot. The parking lot is a metered lot which is adjacent to the Flamingo Park baseball Stadium. The parking lot is approximately 255 feet from east to west and approximately 176 feet from north to south. There are two openings for cars to enter and exit the park that open to Michigan Avenue. The parking lot is bordered by the Flamingo Park Baseball Stadium to the south, Michigan Avenue to the west and several apartment buildings on the north and east. There are grassy areas on the north, east and south borders of the park with a fence many bushes, hedges and trees. There are approximately 134 parking spaces in the lot with an additional 8 parking spaces on the east side of the stadium. As Mr. Strickland was walking north speaking with his sister, at approximately 1:06 AM he observed what he described as a young man running westbound from the park onto Michigan Avenue and across the street. According to Mr. Strickland, the young man appeared to be scared and yelling for help. He then observed a second man chasing the first man. The second man tackled the young man to the ground and appeared to place handcuffs on him. Mr. Strickland also stated that he observed the second man strike the young man in the face several times with his fist. Seconds later, a third man who was also chasing the young man came running up to the first two and, according to Mr. Strickland, the third man kicked the young man in the head and "then fell on his (the young man's) back with his knee." Of the second and third men, Mr. Strickland remembered that one was wearing shorts and the other long pants, but Mr. Strickland could not remember which of the two did what. Mr. Strickland could also see that at least one of the two men had a gun in a holster, which ledMr. Strickland to believe that the two men were police officers. When he observed this, Mr. Strickland was still on the phone with his sister. He got off the phone with his sister and dialed 9-1-1. According to dispatch records, the call was made at 1:06 AM. While on the phone with the dispatcher, Mr. Strickland described what he had just seen. He informed the dispatcher that he observed what he believed were two police officers battering another individual, using force which he considered excessive. During the incident, Mr. Strickland continued walking north on Michigan Avenue reaching 15th Street. Mr. Strickland also told the dispatcher that there was a motor vehicle parked in the middle \.1
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of the street, and that the two undercover police officers had the young man against the car. The dispatcher asked Mr. Strickland ifhe could see the license plate of that car. At that point, Mr. Strickland returned south to where the incident occurred to see if he could read the license plate. According to Mr. Strickland, the plate was covered with a sign that said "lost tag." While Mr. Strickland was on the phone with the dispatcher, the two officers approached him and asked him questions, which can be heard on the recording. At that point, the call went dead. According to Mr. Strickland, the officers snatched the telephone from him and ended the call. They told Mr. Strickland to sit down and to show them his driver's license. Mr. Strickland told the two officers that he was on the phone with 9-1-1 and that he saw what happened. Mr. Strickland related that one of the two police officers then said to Mr. Strickland "Oh, you think you saw what happened?" and then pushed him to the ground and tied his hands behind his back. At some point, the two officers saw Mr. Strickland's California driver's license, although Mr. Strickland did not remember whether he gave it to them or they took it from his pocket. When the officers saw that the driver's license indicated that he was from West Hollywood, California, they started saying that they "knew exactly what you are doing here. You're another one of these 'fags' and we're tired of you guys." Mr. Strickland tried to explain to them that he was on the phone with his sister and that he was walking back to his hotel, but the two just kept "spitting out abusive" words to him. They then told him to shut up and that it was very easy for them to make him disappear. They suggested that they would do to him what they did to someone else and make the "faggots" disappear, and that "no one is going to miss you because you're from West Hollywood. " After this, the two officers called a van to return for another prisoner. While waiting, they had Mr. Strickland sitting on the street with his hands tied behind his back. When the van arrived, they told him to get up but he was unable to do so because of the way he was seated. At that point, one of the two police officers kicked Mr. Strickland in the torso, causing him to fall back. Mr. Strickland stated that, during the time that the two police officers were in contact with Mr. Strickland, they called him or referred to him as a "fag" or "faggot" several times. Mr. Strickland was then placed in the transport van with the young man he had seen before. The young man asked him in broken English if he was the one who saw what happened, to which Mr. Strickland responded yes. The young man further stated to Mr. Strickland that he was very scared because he was "an illegal." Mr. Strickland was transported to the City of Miami Beach Police Department headquarters where he was processed before being taken to the Pre-Trial Detention Center. According to Mr. Strickland, while at the police station both of the officers were in a room with Mr. Strickland, and they continued to refer to him as a "fag" or "faggot" and continued to make other derogatory remarks to him. Mr. Strickland was charged by the offices via Arrest Affidavit with one count of Loitering and Prowling, in violation ofF.S. 856.021, a Misdemeanor in the second degree. The arrest Affidavit was signed and sworn to by Subject Officer Frankly Forte. Statement of Oscar Daniel Mendoza Mr. Mendoza was the individual that Mr. Strickland saw being arrested on the night in question. Mr. Mendoza resided at 1455 Michigan Avenue, Apartment # 9 when this occurred. The building where Mr. Mendoza resided is on the southeast comer of Michigan Avenue and 15th Street. The building backs onto the parking lot previously described. According to Mr. Mendoza, at approximately 12:30 AM, he decided to take his dog for a walk in the parking lot behind his home. The dog was not leashed but had a collar. Mr. Mendoza followed the dog around the bushes and hedges on the parking lot's perimeter as the dog did his business. Mr. Mendoza walked the dog all the way to the far end of the parking lot and then returned to his apartment. When he returned to his apartment, Mr. Mendoza noticed that the dog had lost its collar so he decided to go back to the parking lot to see if he could find it. He retraced the area where the dog had walked by the
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hedges and in between the parked cars. When Mr. Mendoza got to the far end of the parking lot, he observed two individuals sitting inside a parked car that was parked facing out. Since he did not know what the two men were doing, he kept walking. At one point, one of the men got out of the car and began chasing Mr. Mendoza. Fearing that they were going to attack him, Mr. Mendoza asked the man why he was chasing him, to which the man replied "fucking faggot mother fucker." The man ran after him and pushed him to the ground. While he was on the ground, he kept asking the man why he was doing this to him to which he responded "you fucking faggot mother fucker." The man began to hit and punch Mr. Mendoza about the head while still calling him a "fucking faggot mother fucker." Mr. Mendoza did not know what he was being hit on the head and back with because he was face down on the ground. At that point he was handcuffed and was still being hit about the head and back. Mr. Mendoza stated that all this occurred in the middle of the parking lot. After he was arrested, Mr. Mendoza was placed on the ground next to a car until the transport van arrived. When Mr. Mendoza was inside the transport van, he was able to retrieve his cellular phone from his pocket and made a telephone call to his ex-boyfriend. He told his ex-boyfriend that he had been arrested and did not know why. He also asked him to check up on his dog. This call was confirmed by reviewing subpoenaed telephone records ofMr. Mendoza's phone. After he was placed in the transport van, the van left, but returned to the scene where another individual was placed in the van. It was the same man he had seen on the sidewalk earlier when he was being placed in the van. They had a brief conversation where the man told him that he saw what they did to him. An Arrest Affidavit was prepared by Officer Eliut Hazzi charging Mr. Mendoza with Loitering and prowling in violation of F.S. 856.021, a second degree misdemeanor; Resisting Arrest Without Violence a violation of F.S. 843.02, a first degree misdemeanor and Escape in violation of F.S. 944.40 a felony in the second degree. After the prefile conference, the State of Florida charged Mr. Mendoza with Resisting Arrest Without Violence. Arrest Affidavit: Harold Strickland The Arrest Affidavit for Mr. Strickland was authored, signed and sworn to by Officer Frankly Forte. According to the affidavit, the two officers (Forte and Hazzi) were assigned to an undercover detail. They claim in the affidavit that they observed Mr. Strickland in the area of 1400 block of Michigan Avenue walking northbound going up to parked vehicles and attempting to open the doors. They claim that they approached Mr. Strickland and identified themselves as police officers at which time Mr. Strickland attempted to hide behind a Silver Toyota Tacoma parked in the parking lot. They claimed that they then read Mr. Strickland Miranda rights at which time Mr. Strickland claimed to be visiting a friend in the area. They also claimed that Mr. Strickland could not provide the friend's name or address. At that time they arrested him. The affidavit also claims that the above took place at 1:36 AM. Arrest Affidavit: Oscar Daniel Mendoza The Arrest Affidavit for Mr. Mendoza was authored, signed and sworn to by Officer Eliut Hazzi. According to the affidavit, the two officers (Hazzi and Forte) were working in an undercover capacity sitting inside their unmarked police vehicle which was parked in the parking lot at Flamingo Park. The affidavit states that they observed Mr. Mendoza in the parking lot looking into vehicles. Then Mr. Mendoza looked into their vehicle and then concealed himself in bushes. They then claimed that Mr. Mendoza approached the driver's door of their vehicle and attempted to start a conversation with them. Officer Hazzi then states that he exited his vehicle and identified himself as a police officer, at which time Mr. Mendoza took off running. The affidavit states that they were able to catch Mr. Mendoza and place him under arrest putting handcuffs on him. The affidavit then claims that Mr. Mendoza again started running while handcuffed at which time they were

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able to apprehend him again. While apprehending him, they claimed that Mr. Mendoza fell to the ground and suffered minor scrapes on his arms. Depositions Both Officer Forte and Officer Hazzi were subpoenaed for and were deposed separately in Mr. Strickland's case. From reading the depositions, it was evident that neither officer remembered the specific facts of the case and was referring to the Arrest Affidavit to answer questions. During the depositions, the attorney for Mr. Strickland played the 9-1-1 tape to each officer and questioned them about its contents. Neither could at that time explain what was said in the tape. In addition, neither could explain the discrepancy in the time that Mr. Strickland made the call to dispatch describing the officers' actions and the time that Officer Forte wrote on Mr. Strickland's Arrest Affidavit. Other Witnesses Other witnesses were interviewed by Detectives from Miami Beach and by this writer. None of them were eye witnesses. Ms. Teresa Strickland, Harold Strickland's sister, was able to corroborate that he was on the phone with her on the night in question. Mr. Mendoza's ex-boyfriend was able to corroborate the phone call from the transport van. Officer Michael Iadaresta was the transport officer on the night in question. Officer Iadaresta was able to confirm that he transported both men from the scene to the police station, but he had no independent recollection of what else occurred on that date. Officer Ralph Vera was the intake Officer at the Miami Beach Police Station that evening and he could only confirm that he processed both men into the station that night, but had no independent recollection of what else occurred that night. Proffer: Both Subjects Forte and Hazzi were invited, through their attorneys, to give a voluntary statement to this Assistant State Attorney regarding their actions on the night in question. Although they both declined, their attorneys proffered to me what their side of the story was. They denied that any offensive language or excessive force was used during either of the arrests. They also denied that they were targeting gay men in the park and parking lot that night. They did state that on the night in question, they were told to work in an undercover capacity targeting crime in the Flamingo Park and parking lot. They were given an unmarked city car and drove around and then proceeded to the parking lot. Before they parked their vehicle in the parking lot, they observed an individual who looked like Mr. Strickland walking around on Michigan Avenue and the parking lot looking into cars and attempting to open car doors. They also indicated that they briefly lost sight of that individual when confronted with Mr. Mendoza. They also said that Mr. Mendoza attempted to resist arrest when he was caught after the chase. After arresting Mr. Mendoza, they recognized Mr. Strickland as the individual who they saw earlier attempting to open car doors and arrested him.

CONCLUSIONS: There were several potential violations of Florida Statutes based on the facts that were presented in this investigation, including the possibility of charging the two Subjects with Perjury in an Official Proceeding in violation ofF.S. 837.02 a felony in the third degree; Official Misconduct in violation ofF.S. 839.25(3) a felony in the third degree, False Imprisonment in violation of F.S. 787.02 a felony in the third degree and Battery in violation of F.S. 784.03, a misdemeanor in the first degree. The latter two charges could potentially qualify for
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enhancement under F.S. 775.087 for possession of a firearm and under F.S. 775.085 for evidencing prejudice while committing the offenses. It is the opinion of this writer that it would be difficult for the State to meet its Constitutional burden and prove the Subjects guilty beyond a reasonable doubt of any of those crimes. The standard is a high one and based on the evidence in this case, unlikely to succeed at trial. The issue is not that the evidence presented by the two victims, particularly Mr. Strickland, is not credible, but that there is not sufficient corroborating evidence to support filing of charges. Also, the explanation provided by the proffer cannot be fully refuted by the facts in the case. Since there are no other independent witnesses, proving the intent to commit the crime beyond a reasonable doubt is not possible. There are other matters that complicate this case. First, the incident occurred on March 13, 2009. At that time, neither Mr. Strickland nor Mr. Mendoza came forward with this information. It was not until almost one year later that Mr. Strickland, through his attorneys, notified the City of Miami Beach of his intent to file suit against it for what the officers did to him. Likewise, it was not until the matter appeared in the various media after Mr. Strickland's notification that Mr. Mendoza came forward. Detectives with the City of Miami Beach were unable to locate Mr. Mendoza lil1til several mOrlths after the investigation commenced. In looking at what occurred to Mr. Mendoza and the allegations in the Arrest Affidavit, it is not unreasonable to believe that both sides are being truthful. The actions that Mr. Mendoza was taking immediately before his arrest are consistent with the allegations in the Arrest Affidavit authored by Officer Hazzi. The only inconsistencies are the abusive words and hitting that Mr. Mendoza and Mr. Strickland claimed happened. As to the hitting, there is sufficient evidence that a jury may infer that the officer's actions were consistent with attempting to restrain a person who had just attempted to escape custody. Mr. Strickland did indicate that he observed the officers repeatedly hitting and kicking Mr. Mendoza. The injuries that Mr. Mendoza sustained in the arrest are not necessarily consistent with the actions described. Mr. Mendoza's injuries were scrapes to the knees and legs that were consistent with someone who was tackled to the ground. This writer does not believe that Mr. Strickland was being untruthful or exaggerating, but the action occurred very quickly, per Mr. Strickland, and his perception of the events may not be completely clear. There is no question in my mind that something did occur between the officers and Mr. Mendoza similar to what Mr. Strickland described, but being able to prove the commission of a crime under the current facts without any further corroboration is not possible. As to the abusive language that Mr. Mendoza described, no other person can testify to that. Based on their actions, the Subjects may have used that language. However, the use of that language alone would only serve to enhance another crime. Under Florida law, simply calling another hateful names is not in and of itself a crime. If it could be proven that that was part of a crime and that the offenders arrested Mr. Mendoza because they perceived him to be a homosexual, then the crimes could be enhanced. Since no crime can be proven, then the actions do not apply. Neither of the two Subjects can be charged with Perjury. The Perjury charge would stem from their testimony in the depositions conducted by Mr. Strickland's attorney. As mentioned before it is quite evident that the two Subjects were not testifying from memory, but from what was written in the arrest affidavit. What further complicates this is that they were somewhat equivocal in their answers and stated that they did not remember much. This is particularly true for Officer Hazzi. Officer Hazzi did not write the arrest affidavit. His testimony in the deposition was based solely on what Officer Forte wrote. As to the actions relating to Mr. Strickland, it is believable that what he stated happened did occur. However, there is insufficient evidence for the State to meet its burden. The Subjects' proffer that they saw Mr. Strickland or someone resembling him try to open parked car doors casts a doubt on whether there was intent to commit the crime of False Imprisonment. If their defense is that they arrested the person that they thought they

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had seen earlier, no intent to commit a crime can be proven. Likewise, Official Misconduct for authoring a false arrest affidavit cannot be proven if the jury believes the statement of the Subjects. Since there is no other corroborating evidence to show intent, no crime can be proven. As to the abusive language, again, since no crime can be proven, the fact that the officers may have used that language when arresting Mr. Strickland does not come into play because there is no crime to enhance. Based on this investigation, although no crime can be proven, serious questions have been raised about the actions of the Subject officers during the incident in question that need to be addressed in an administrative forum. Accordingly, this investigation is now closed and referred back to the Miami Beach Police Department for appropriate administrative action.

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