HomeMy WebLinkAboutR-86-0154i
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J-85-186
2/21/86
A
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RESOLUTION NO.
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY TO THE LAW FIRM OF BLACK &
FURCI ON BEHALF OF THE FRATERNAL ORDER OF
POLICE THE SUM OF $205,750.00 AS COMPLETE AND
TOTAL PAYMENT OF ATTORNEYS' FEES AND COSTS
INCURRED FOR DEFENSE OF L13IS ALVAREZ IN A
CRIMINAL PROCEEDING ARISING OUT OF THE
PERFORMANCE OF HIS DUTY AS A CITY OF MIAMI
POLICE OFFICER.
WHEREAS, the Law Firm of Black & Furci on behalf of the
Fraternal Order of Police, has requested that the City of Miami
pay for the defense of Luis Alvarez in the indictment and
i acquittal for the charge of manslaughter arising out of the
i
performance of his duty as City of. Miami police officer; and
WHEREAS, it has been determined by the City Attorney's
Office that pursuant to Florida Statute 111.065, the City of
s Miami has the option to pay legal fees and costs for any officer
a
i
who is charged with a crime arising out of the course and scope
of his duty when the officer is found not guilty of the charges;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The Director of Finance is hereby authorized to
pay to the Law Offices of Black & Furci for the benefit of the
Fraternal Order of Police, the sum of $205,750.00 in complete
settlement of all claims for payment of attorneys' fees and
costs, past and future, and demands against the City of Miami
upon payment, execution of a release, releasing the City of Miami
of all past and future claims, expenses and demands for payment
of attorneys' fees and costs incurred for representation of.
Officer Luis Alvarez in a criminal proceeding arising out of the
performance of his duty as a Ctiy of Miami police officer.
Section 2. The above sum is hereby allocated from
ry cow-illsslON
MEETING OF
FES 27 W#
+-he- e1 f Insurance Trust -sand
PASSED AND ADOPTED this 27th day of FEBRUARY �, 1986.
XAT'1'
TY HIRAI
City Clerk
PREPARED AND APPROVED BY:
cr n � ,/-?,,- )
MARIA J. 'CHIAROO
Assistant City,Attorney
APPROVE
LLL I C1� .`�619F3PH E RT Y
City Attorney
MJC:bf:089
z I / I �/, �- Zkt -4-�
XAV ER L. SUARE7, Mayor
AND CORRECTNESS:
1-154
AGREEME14T
ARTICLE XXX
EMPLOYEES ACTING WITHIN THE SCOPE OF AUTHORITY
I. Whenever a*civil or criminal action is brought against a bargain-
ing unit employee, while in the course of his City employment as
a law enforcement officer and while acting within the scope of
his authority, the City shall have the option to pay the legal
cost and reasonable attorney's fee, not to exceed'seventy-five
($75.00) doll,-:,rs per hour or provide legal counsel where:
A. The bargaining unit employee is found not to be liable or
guilty, or
B. When the plaintiff requests dismissal of his suit.
II. When an allegation is brought against a bargaining unit employee
while in the course of his City employment as a law enforcement
officer and while acting within the scope of his authority, said
allegation may be presented to the City Attorney for review at
the request of the employee or the Chief of Police. The City
Attorney at his sole discretion shall do one of the following:
A. Authorize payment of legal costs and reasonable attorney
fees not to exceed seventy-five ($75.00) dollars per hr. Said
appointment of private counsel will be made by the City
Attorney. Should the employee wish he may submit a list
of five (5) Miami attorneys licensed to practice in the
State of Florida. In this situation, the City Attorney
{
will pick one of the five to be appointed counsel.
B. Provide legal counsel.
C. Advise the officer to seek outside counsel at the officer's
i
;
own expense. The employee may re -apply upon final deter-
a
mination by the City and resolution of the allegation. Said
i
re -determination shall be made at the sole discretion of the
City Attorney.
III. The City will not provide legal representation, pay any claim
1
S
or judgment entered against any bargaining unit employee, or
pay any legal fee, if the claim or judgment or legal fees arise:
4
1. from any unauthorized act;
2. from any intentional tort;
3. from gross negligence or misconduct; or 8Fi'"54
4. whale under the influence of intoxicating liquor or
IV. Should a civil or criminal action be brought by a sworn bar-
gaining unit officer against a fellow sworn bargaining unit
officer while in the course of his City employment as a law
enforcement officer and while acting within the scope of his
y
authority, the.City Attorney shall decide, at his sole discretion,
as to any legal defense the City may or may not provide in such
instances. Upon final adjudication of the issue, the affected
employee may ask for reconsideration by the City Attorney.
V. Notwithstanding any of the above sections, it is not the intent
of this Article for the City to provide money or counsel to sue
the City, its elected or appointed officials, or its agents.
ARTICLE XXXI
ILLNESS IN FAMILY
All employees covered by this Agreement may be allowed to use up
to forty (40) hours of accrued sick leave in any one calendar year when
needed due to serious injury or acute illness of any actual member of
the employee's household.
ARTICLE XXXII
DEATH IN FAMILY
Any employee covered by this Agreement may, in the case of death
in the immediate family, be authorized a maximum of forty (40) hours
leave with pay. The immediate family is.defined as father, mother,
sister, brother, husband, wife, children, father-in-law, mother-in-law,
grandparents, spouse's grandparents, stepfather and/or steprother if they have raised e
ployee from infancy regardless of place of residence and may include
3
any other person who is an actual member of the employee's household.
The circumstances of the employee's personal leave shall be endorsed
f
` by the Department Head and submitted by letter to the Civil Service Boar
i
and the Office of Labor Relations.
ARTICLE XXXIII
COMMENDATION PAID LEAVE
The Chief of Police, upon approval of the City Manager, may grant
f to forty (40) hours of paid leave to any sworn officer whose job perfor
mance is of such an exemplary or heroic nature as to warrant this speci
consideration. This Article shall not be subject to the Grievance Pro-
cedure or arbitration.
8F-154
-26-
4
N
i
CITY OF MIAMI. FLORIDA
INTEROFFICE MEMORANDUM
10 The Hono ble Mayor Xavier L. SuarE'and February 19, 1986 `ALE
Member o the City Commission
SUBJECT
FROM Lucia A. Dou herty REFERENCES: J-84-961
City Attorney Attorneys' Fees - Luis Alvaf—?
ENCLOSURES. State vs. Alvarez
You have asked the following questions of the City Attor;l,�,;
and to the City Manager regarding the above:
I. Is the bill for attorneys' fees for the
representation of- Luis Alvarez in the
case of State v. Alvarez reasonable and
appropriate as presented?
II. If the bill is appropriate as presented,
what is the precedent for payment by the
City of Miami of the attorneys' fees?
By way of background, Roy Black successfully defended Luis
Alvarez against a charge of manslaughter, in the shooting death
of Nevel Johnson. The trial was one of the most lengthy in the
history of Dade County. The issue of Mr. Black's attorneys fei-
arose by way of a request to the commission to pay his fees of
$312,000.00. This office opined in the attached memorandum that,
pursuant to Florida Statutes 111.065, (1976) the payment of .such
fees by you is discretionary. This opinion is reinforced by the
case of Florida Benevolent Police Association, Inc. and Renz,)
Fancellu v. C.W. Miller, 464 So.2d 236, (Fla. 5th Dist. 1985)
(copy attached).
I.
The attorneys' fees requested by Luis Alvarez for i Ls
attorneys Roy Black and Mark Seiden of the law firm of Black k
Furci are indicated on the attached accounting. According t,)
conversations with Roy Black, Mark Seiden and Frank Furci, the
total was reached by using documents files, diaries, calendar3,
depositions and reconstructing the time spent by all of th,=
attorneys involved by hour. The hourly rate was then applied.
The attorneys and staff did not keep time sheets. The hourly
rate applied by Roy black and by Mark Seiden (the only attorneys
for whom the hourly rate was billed) was determined through
conferring with attorneys in the community and computing an
hourly rate according to their expertise and experience in tht=
average range.
86-154 --
0
['he Honorable Mayor Xavier L. Suarez
and ,Member. t)t thN City Commis ion
0
Februar•,, 19, 19;6
Page 2
The agretiment by the law f i rrn of. Black & Furci to
Luis Alvarez was reached sometime prior to the Dade ;.aunty r �r
.Jury determining the charges would be filed against Luis
e agri_•_ment for representation at that time was, as seat �.i
Roy Black, $5,000 for representation at the Grand Jury
and 525,000 for representation if charges of manslau,3hter W, r•-
brought against Luis Alvarez.
Immediately after the Grand Jury proceeding, it oe,...r,.�
apparent to .Mr. Alvarez and to Mr. Black thatthe invear_ig r. ; �
required for trial would be well beyond what was anticipat-�t-3,
given the facts of the case and the parties agreed that
representation would exceed $25,000. At that time, the Fratar:ial
Order of Police agreed to assist in obtaining contribu-_i�-)ns
the payment of fees and/or costs, which would be determined at:.--r
the trial.
The files, documents and research, ma teriais na,.*, 0_•1..:
reviewed and it is apparent that the h»urs spent in prepay it i
foc obtaining the acquittal are accurately reflected In t:.�
billing presented by the law firm of Black & Furci. Howeve-r,
is the opinion of this office that while the bill submittea
the office of Black & Furci accurately accounts for 2,450 h ) .r.�
trial preparation time and investigation in addition to 1, 2''C
hours trial time, totalling 3,650 hours by two att,)rn�y.;, _..
hourly rate of $125.00 per hours for Roy Black and 575.01) :.
roar for Mark Seiden for trial time and $35.00 per hour for
preparation is consistent with local custom.
To arrive at this decision, inquiry was made to several Dau =
County defense .arms that indicated that representation of
Alvar-.z would have required a $100,000 to $150,000 fee
out of pocket costs according to custom and practice in the z_-�•..
Ccnsidering Disciplinary Rule 2-106(B) of the Codes
Pr jfessional Responsibility, the factors to be used as guide 3� .
determining the reasonableness of a fee include the followin : 1'
Tcie time and labor required, the novelty and difficul;.v
:questions involved, and the skill requisite to perform the
..ervice properly. 2) The likelihood, if apparent to t:ne
that acceptance of this particular employment will preclude
employment ay the lawyer. 3) Tne fee customarily charged in
locality for similar legal services Cor the amount invol•.-Zd an.i
t-ie results the circumstances. 5) The nature and length
pr•.f�.ssional rel-Aionship with the client. 6) The
reputation and ability of the lawyer or lawyers perforfrii n;
servi,;as and 7) Whether the fee is fixed or contingent.
86-154
The
Fornorable
Mayor
Xavier L. Suarez
February 19, 191h
and
;I1QMbNrs of
the
City Commissi�;j
Page 3
II.
Ili re.iponse to your que;:tion regarding precedent, 7t"l:r
1961 tr:e City of Miami and the Fraternal Order of Polic
governed by the attached agreement regarding represent.iti•-)ri
police -)fficers charged with criminal offenses. The
fee's prevision was removed in 1981 wnen Florida Statute 11 -_.u53
WaS enacted. While the agreement between the City and th
Frat(�rnal Order of Police is no longer in effect, it provi-af•=
back in 1981 a basis for an hourly rate of $75.00 per h,Dur to t)•_
maid t,,)r representation by outside attorneys for police ofLic,:!r.s.
Eve-n when the agreement Was in of fect, however, there was 11 t _j ._
Jr no precedent for payment of attorneys' fees for cri:;,ina:
representation by the City of Miami. Research of Fire Depar`_•n�n-
asL well. as Police Department records provide no further insi,�rt�.
Inquiry was also made as to representation �lici_.-� t
police officers charged with criminal offenses by Dade Curt..
The significant incident for Dade County was the repr-zsentat:.,j-I
of Officer Pellechio who was charged with manslaughter by =ne
Dade County Grand Jury. The officer requested representati .n o•!
the County Attorney. Officer Pellechio was advised that Dad•_
County would not undertake his defense; however, it was tacitly
;greed that shodld the defense be successful, the County
reimburse Officer Pellechio for the cost of his defense. T•-,
hill submitted by Pellechio's attorneys was based upon 2)51.�
hours. The County ultimately paid a total of $17,425 wh_cl:
included all costs.
Tile payment of attorneys' fees by Dade county, hcwever, i-
strictly governed by the agreement between the Police Sane.•;:le:i
Association and Dade County. This agreement require-s the County
to pay for legal defense costs if the named police officer i.i. n—)
disciplined or if the disciplin,� recommended by their
Security is ov«-r.tarned.
Ir other cases when th(.re is an agreement, the Count h::-3
the discretion to pay attorneys' fees even when th�r•: i.s
disciplinary proceeding and the charges are sustained. 0f ic'!r
Pellechio was not found to be in violation of d-par;:men.ta-_
pr,)cedures for use of deadly force.
The inves_igation by the Internal Security of =h 7
Miami Police Department is :separate and apart from any Stat•
Vederai criminal action initiated against Luis Alvarez.
policy of the Internal Security Division when ther.-? is
3
86-154
I
Yap e
4
r the city CO
iL
N
ME
J -
u a
R" G* ability of ct imi nAj. pvocee
a of the C el im th4
to stay ally in,e!ttigation until the Ou tC,-
ritv t)ivL.si'
it is the e role of the Internal 8ecu� I d
t I ar incident
L
icul
a particular t
jean t h salient facts 1) f -i ke
s and then n m,
rq owing witnesses and participant
eCoInmendation to t,
Division Disciplinary Review Board
investigation of the inc. ldel
DivisionThe internal Security
JUeroundinq the shooting death of ,level j,:)i-lnson by Ljis Alklat_t,
has been completed. There are two sets of findings of facts
rthe report. The findings related to the singular incident of t
:Aischarge of firearm by Luis Alvarez has been determined by th-
i s c h a r g e of Firearms Advisory committee and the Board 11 .5
violations of the rUl'i-s a tl "i
are in agreement that there were no P.4
:
regulations by officer Luis Alvarez. The Board r:-e c(_)nmend
rearms a :1
e reinforced in the areas of drawing of 5
training b Chapters 13.
discharge of firearms as per Departmental order 7,
and 13.6.
The findings of fact determined there were
tzrw
a
substantiated allegationsagainstofficer Luis Alvarez irlsofal,
violations of administrative policies and procedures. T
untruthfulness !legation against Officer Alvarez of unt r a' 0
a made by
statements
substantiatedbased upon conflicting
Alvarez immediately after the shooting incident and at trial.
v a r,:
boun
zThe allegation of improper procedureitOf ,Outof onearlies"
he procceded
substantiated in that procedure (UniaWf _11
allegation of improper P
his patrol unic. The iated in that :li.
of his service weapon) was substantiated
r 'Y�
plastic grips and was cleaned cutsiie
service weapon had
Police Department. The three substantiated allegations and t
departmental
e violated by Luis Alvarez'a actionl
--tmental orders which were
are described specifically on pages 44 through 48 of the
Security file case numb
er 7857 attached.
There has been no recommendedaction
disciplinary
Of er Luis Alvarez at this time but he has been removs,d f-
active duty since the date of the shooting. officer Alvarez
he City Of Mialm, i P'-)*"
desire to resign from t
d his
expressed
Department at
such time as he is returned to active duty.
In conclusion, the payment.2 A
of attorneys fee-, unier
pay for
t.1
discretionary. if you are inclined to
`Fla.Stat. Is
ME
z it is recommended that tn,�- f.:'
J�
defense of officer Luis Alvarez "Ap
'ne law firm of Black & Furci be computed as follow: M
for
N
86-154-
9
The Honorable
Mayor Xavier L. Suarez
February
19, 1986
and Members
i
t
of
the City Commi :Sion
Pag,: 5
Trial Time
for
Roy Black 600 hrs. ra
125.00 per hour
$ 75,O00
Trial Time
for
Mark Se iden 600 hrs. a
75.00 per hour
S 45,000
Preparation
for
Both Attorneys
and Law Ofrice
Staff,
2450 hours
at
$35.00 per hour
S 8517�c
TOTAL
$205,75C
Further, there is virtually no precedent in th-2 City 11,1Z
Miami for the payment of criminal defense fees, except t}iat t,�J
former agreement with the F.O.P. left: the de terminal-
whether to pay attorney's fees within the discretion of the Ci-.•:
Attorney and the amount was $73.00 per hour. Dade County has a:1
agreement that requires payment of such fees if the oftic-er
administratively cleared, and makes the payment discre.iunar:
the officer is not cleared. The closest precedent is th,� c.:,s� i-I
which Dade County paid $17,000 for the criminal deferise Df
Officer Pellechio for approximately 207 hours of attorneys'
From the standpoint of whether you should pay such tee: i-
is suggested that you consider the natura of the administrati•:-
charges and findings, the unlikelihood that said charges wog:-;
result in firing of officer Alvarez, and the expectation _f
' police officers that their employer will defend th=m againa
criminal charges arising from their justifiable actions w;i:.- ,r�
duty.
i
LAD/M,7C/wpc/pb/ab/P001
cc: Cesar H. Odio
j City Manager
8E-154-
236 Fla. 464 SOUTHERN REPORTER, 2d SERIES
• DAUKSCH, Judge.
FLORIDA POLICE BENEVOLENT
ASSOCIATION, INC. and R.enao
Fancellu, Appellants,
Y.
C.W. MILLER, Sheriff of Brevard
County, Florida, Appellee.
No. 84-258.
District Court of Appeal of Florida,
Fifth District.
Feb. 28, 1985.
The Circuit Court, Brevard County,
Tom Waddell, Jr., J., held that sheriff was
not required to pay attorneys fees and le.
gal costs of deputy, and deputy appealed.
The District Court of Appeal, Dauksch, J.,
held that sheriff was not required to pay,
out of public funds, for attorneys fees and
legal costs of one of his deputies who suc-
cessfully defended himself against criminal
charges arising out of his official conduct.
Affirmed.
1. Sheriffs and Constables a32
Sheriff was not required to pay, out of
public funds, for attorneys fees and legal
costs of one of his deputies who successful-
ly defended himself against criminal
charges arising out of his official conduct,
as statute merely gave option to sheriff to
provide costs and fees. West's E.S.A.
§§ 111.065. 111.07.
2. Constitutional Law 0-72
District Court of Appeal cannot re-
quire public official to perform discretion-
ary act.
Gene "Hal" Johnson and Dean B. Mor-
phonios, Tallahassee, for appellants.
John W. Costigan of Madigan, Parker,
Gatlin, Swedmark & Skelding, Tallahassee,
for appellee.
This is an appeal from a judgment ;n a
declaratory relief action.
11) The issue on appeal is whether a
sheriff must pay, out of public funds, for
the attorneys fees and legal costs of one of
his deputies who successfully defends a
criminal prosecution against the said depu-
ty.
Appellant urges that the holding in A*u-
zum v. Valdes, 407 So.2d 277 (Fla. 3d DCA
1981) is applicable and that the sheriff ;s
required under the common law to pay for
the fees and costs. ,Vuzum is not directly
on point for two reasons. One, because a
different statute applies, two, because a
different procedure applies.
The statute in Nuzum is section 111.07.
Defense of civil actions against public
officers, employees, or agents. —:fir_:
agency of state, or any count:, mu-
nicipality, or political subdivision of :he
state, is au--orized to provide an attor-
ney to defend any civil action atis:r.g
from a complaint for damage_ or
sufferer) as a result of am• act
sion of action of any of its officers. r-
ployees, or agents fur an act or
arising out f and in :he sc•3pe h:
employment or function, unless, in
case of a tort action, the officer, errpir.,
ee, or agent acted in bad faith. .;th
malicious purrose, or in a manner exhib-
iting wanton and willful disregard of h.;.
man rights, safety, or property. De-
fense of such civil action includes. but is
not limited to, any civil rights la%vsuit
seeking relief personally agair.zt the offi-
cer, employee, or agent for an act nr
omission un;'.er color of state law, cu;•
tom, or usage, wherein it is allegcl 'hat
such officer, employee, or agent has de-
prived another person of his rights se-
cured under the Federal Constitution or
laws. Legal representation of an officer.
employee, or agent of a state agency
may be provided by the Department of
Legal Affairs. However, any attorney's
fees paid from public funds for any offi-
cer, employee, or agent who is found to
be personally liable by virtue• oC acting
1.
86-154
'm a judgment in a
!peal is whether a
,f public funds, for
agal costs of one of
assfully defends a
unst the said depu-
the holding in Nu-
t 277 (Fla. 3d DCA
that the sheriff is
ion law to pay for
um is not directly
i. One, because a
; two, because a
es.
is section 111.07.
,ns against public
or agents. —Any
any county, mu-
ubdivision of the
provide an attor-
•il action arising
images or injury
any act or omis-
its officers, em-
n act or omission
he scope of his
unless, in the
-ifficer, employ -
dad faith, with
a manner exhib-
:lsregard of hu-
property. De-
mcludes, but is
rights lawsuit
against the offi-
for an act or
state law, cus-
s alleged that
r agent has de-
f his rights_ se -
Constitution or
'n of an officer,
! state agency
bepartment of
anv attorney's
is for any offi-
ho is found to
rtue of acting
K.J.G. v. STATE Fla. 237
Ctl• u 461 sold 2.37 (F1a.Am ! OW. 1983)
outside the scope of his employment, or (b) Such law enforcement officer is
was acting in bad faith, with malicious found to be not liable or not )guilty.
purpose, or in a manner exhibiting wan-
ton and willful disregard of human
rights, safety, or property, may be recov•
ered by the state, county, municipality,
or political subdivision in a civil action
against such officer, employee, or agent.
If any agency of the state or any county,
municipality, or political subdivision of
the state is authorized pursuant to this
section to provide an attorney to defend
a civil action arising from a complaint for
damages or injury suffered as a result of
any act or omission of action of any of its
officers, employees, or agents and fails
to provide such attorney, such agency,
county, municipality, or political subdivi-
sion shall reimburse any such defendant
who prevails in the action for court costs
and reasonable attorney's fees.
This statute permits the agency to provide
representation, it does not directly autho-
rize payment for a private lawyer, or pay-
ment after services have been rendered.
Appellant seeks that here.
The statute here is section 111.065:
Law enforcement officers, civil or crimi-
nal action against; employer payment of
casts and attorney's fees.—
(1) For the purpose of this act, "law
enforcement officer" means any person
employed full time by any municipality
or the state or any political subdivision
thereof or any deputy sheriff whose pri-
mary responsibility is the prevention and
detection of crime or the enforcement of
the penal, traffic, or highway laws of
this state.
(2) The employing agency of any law
enforcement officer shall have the option
to pay the legal costs and reasonable
attorney's fees for any law enforcement
officer in any civil or criminal action com-
menced against such law enforcement
officer in any court when the action
arose out of the performance of his offi-
cial duties and:
(a) The plaintiff requests dismissal of
his suit; or
As can be seen this statute gives an option
to the sheriff to provide costs and fees, it
does not require it. Appellant also urzez
the "common law" requires the reimburse.
ment. If the common law did require it,
then that has been changed by Aat.{te
[2) While we can readily understand
why a deputy would expect reimbursement
for expenses he suffered by having to de-
fend himself against criminal charges arm-
ing out of his official conduct, we cannot
require a public official to perform a discre-
tionary act. Perhaps at common law it x as
a sheriff's duty to provide a defense for his
deputies, as appellant alleges, but the legis-
lature has seen fit to change the common
law, as is its prerogative, and made the
duty an option. We must affirm.
AFFIRMED.
COBB, C J., and SHARP, J., concur.
Sfl�MUMflf S�tllw
r
KJ.G., a child, appellant,
V.
STATE, of Florida, Appellee.
No. 84-1010.
District lourt of .appeal of Florida,
Fifth District.
Feb. 28, 1985.
Appeal from Circuit Court, Marion Coun-
ty; Hale R. Stancil, Acting Circuit Judge.
James B Glb-�on. Public Defender, and
Daniel J. Schafer, A,st. Public Defender.
Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and
W. Brian Ba} ly, Asst. Atty. Gen., Daytona
Beach, for appellee.
86-154 -
TO Honorab f4emb
City mmi s' n
FROM Kcia A. Dougher
City Attorney
CITY OF MIAMI. FLORIDA
INTEROFFICE MEMORANDUM
,- -' N
s of the
DATE
SUBJECT
REFERENCES
ENCLOSURES
October 16, 1984 FILE
Attorney's Fees - Luis Alvarez
State v. Alvarez
There has been a question posed by way of the attached
letter from Roy Black, Esq., namely:
Whether the City has any obligation to pay
the legal fees and costs for Luis Alvarez,
who was charged with a crime arising out of
the course and scope of his duties and found
not -guilty of the charges.
Under the Florida Statutes cited, Section 111.065, the City
of Miami has the option to pay the legal fees and costs for Luis
Alvarez, either in woe or in part, but has no obligation to do
so.
I base my opinion on the well established'principle that the
legislature is aware of the plain meaning of the language and
there is no ambiguity in using the word "option" in the cited
statute. Option is defined as the exercise of the power of
choice, the power of choosing, the right of choice. It is
notable that the antonym of option is obligation or compulsory.
While the courts have some discretion to interpret statutes, it
is well established that words of common usage should be con-
strued in their plain and ordinary sense. The only time a
literal interpretation should not be accorded the statute is, if
it leads to an unreasonable conclusion, or to a result not
contemplated by the law -making body. If the legislature intended
for Florida Statute 111.065 to obligate a payment of legal fees
by an employing agency, it would have used the words "shall pay"
rather than "shall have the option to pay".
I find no oases which interpret the clause in the statute.
However, in the case of District School Board of Lake Count v.
Robert Talmadge 381 So. d 699 Fla. 1980 at page 703 and 7U4 0
the Supreme Court in dicta, cites to the statute and states that
Section 111.065 Florida Statutes "permits* a payment of all
defense costs and reasonable attorne s-fees. Here the court
does not obligate their payment.
86 -154
0- 0
Lucia A. Dougherty October 16, 1984
City Attorney Page 2
In the case of Rubin Askew v. Green, Simmons, Green
Hightower, 348 So.2d 1245 (1st DCA 1977), the question is raise
whether a county ordinance authorizing payment of public funds
for reasonable attorney's fees is permitted. The court found
that the local ordinance was not in violation of Florida Statutes
which prohibit payment of attorney's fees and costs unless
specifically authorized by statute. In Askew Florida Statute
111.065 is cited on page 1248 as being the en— abl ng statute which
would allow employing agencies to pay the legal costs and
reasonable attorney's fees.
There is no interpretation nor is there any language which
would require or obligate the City to pay the attorney's fees for
Luis Alvarez' defense against the state action. It must be noted
that if the City has an agreement with the Police Department to
pay for attorney's fees and costs, such agreement would be
permitted by way of this statute. But the statute on its face
does not compel the City to pay costs and attorney's fees.
In addition to the copy of the statement from the Law Firm
of Black and Furci detailing expenses for the defense of Luis
Alvarez in the criminal action, attached hereto is an open
resolution which authorizes payment in an unspecified amount
should the Commission determine that adoption of such resolution
is appropriate.
LAD/MJC/wpc/ab/070
0-
Lucia A. Dougherty
City Attorney
4)
October 16, 1984
Page 2
In the case of Rubin Askew v. Green, Simmons, Green &
Hightower, 348 So.2d 1245 (1st DCA 1977), the question is raise
whether a county ordinance authorizing payment of public funds
for reasonable attorney's fees is permitted. The court found
that the local ordinance was not in violation of Florida Statutes
which prohibit payment of attorney's fees and costs unless
specifically authorized by statute. In Askew Florida Statute
111.065 is cited on page 1248 as being the en— abTing statute which
would allow employing agencies to pay the legal costs and
reasonable attorney's fees.
There is no interpretation nor is there any language which
would require or obligate the City to pay the attorney's fees for
Luis Alvarez' defense against the state action. It must be noted
that if the City has an agreement with the Police Department to
pay for attorney's fees and costs, such agreement would be
permitted by way of this statute. But the statute on its face
does not compel the City to pay costs and attorney's fees.
In addition to the copy of the statement from the Law Firm
of Black and Furci detailing expenses for the defense of Luis
Alvarez in the criminal action, attached hereto is an open
resolution which authorizes payment in an unspecified amount
should the Commission determine that adoption of such resolution
is appropriate.
LAD/MJC/wpc/ab/070
8E-154
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j wOwKtw S COM ►tNSATION
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TRIAL wwACTICE -PERSONAL INJVwr t wIRIONGruL DtAT«
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LJL*Ow .A.
LOP) E DAPPIST
• ALSO ADMITTED IN MIC«IGAN
April 10, 1984
Jose Garcia -Pedrosa, Esq.
City Attorney, City of Miami
169 E. Flagler Street, #1101
Miami, Florida 33131
Re: State of Florida v. Luis Alvarez
Dear Mr. Garcia -Pedrosa:
►AOPTON J PCPLIN
Or COJNSEL
suiTs t oo woecwTs euILoG
2E IEST rLAG at?
STIrt CT IN
./fLL6Af�: ✓`�,l +vQ,a. ,f91L9C
r ROr NpwAwD (30S' Sd•-06Q9
Ip22 TTLCP 57RCC•
c>��.od. L�.fl� ,t,JC.9l•
Tt LCw«ONt (305) 920-IQ5?
rwoN DADC (305; 947-SS53
PLEASE REPLY TO
Hollywood
I am writing to you on behalf of the Fraternal Order
of Police which provided a defense to Luis Alvarez in his recent
indictment and acquittal for the charge of manslaughter arising
out of the performance of his duty as a City of Miami police
officer.
Under Florida Statutes, Section 111.065, the employer
shall have the option to pay legal fees and costs for any
officer or employee who is charged with a crime arising out of
the course and.scope of his duties when the officer is -found not
guilty 'of the charges.
I am enclosing a copy of a bill for legal services
presented by the law firm of Black & Furci, which represented
Officer Alvarez on behalf of the Fraternal Order of Police.
We believe that 111.065 obligates the City of Miami
either to provide a defense to a police officer in the situation
such as Officer Alvarez, or,'in the alternative, to expend
public monies to defend him. Having not provided legal counsel,
we then believe that the option to utilize public funds to
reimburse for his defense is the only appropriate alternative.
Should you have'any questions regarding the hours
spent ori•the charges incurred, please do not hesitate to call
roe.--
86--154
Your prompt reply regarding the City's position is
appreciated.
Sincerely,
RDK: eg
Enclosure
cc.: Walter Rodak, Pres.
FOP Miami Lodge 20
I
■
ROBERT D. KLAUSNER
86-JL54 -
f
I
ROY E. BLACK
FRANK C. FURCI
MARK 0. SEIOEN
MARCIA J. SILVERS
Robert Klausner, Esq.
1922 Tyler Street
Hollywood, Florida 33020
Dear Bob:
LAW O«ICES
BLACK & FU RCI
A PROFESSIONAL ASSOCIATION
SUITE 1300 MIAMI CENTER
100 CHOPIN PLAZA
MIAMI, FLORIDA 33131
April 2, 1984
RE: State v. Luis Alvarez
TELEPHONE 371-6421
AREA CODE 305
Pursuant to our discussion of last week, I am forwarding
herewith a bill for the legal services in the Alvarez case.
As you know, we had originally agreed to defend Luis Alvarez
for a fee of $25;000. Long before the trial commenced, we all realized
that this was not a realistic figure. Rather than insist upon
withdrawing from the case and requiring Mr. Alvarez to seek new counsel,
we agreed to go forward with the trial in the hope that sufficient funds
could be raised to compensate us for our time. Of the original $25,000
fee, we collected $15,000 from the Fraternal Order of Police. The -
enclosed bill shows the details of the time spent on this case by Roy
Black and Mark Seiden. The total legal fees comes to $312,500.
Deducting the $15,000 which we collected from the Fraternal Order of
Police, this leaves a balance due of S297,500. It is my understanding
that the Fraternal Order of Police, through your law firm, will seek to
collect this money from the City of Miami so that we can be reimbursed
for our services.
86- J4
Robert Klausner, Esq.
April 2, 1984
Page 2
In addition, there remains the matter of costs expended for
experts, investigation, court reporters, etc. The total costs in the
case were as follows. $56,736.61 expended from our trust account.
There remain unpaid bills in the amount of $11,140.44. we have billed
the State for $2,018.19, which should be reimbursed to our trust account
because Mr. Alvarez was declared indigent for the costs of depositions.
The City of Miami should reimburse the trust account for $54,718.42 plus
the outstanding bills of $11,140.44, making a total of $65,858.86. The
money expended from our trust account consists of contributions from the
Fraternal Order of Police and other individuals. The individual contri-
butions, most of which were $10, $20, and $30 checks, amounted to
S36,470. The Fraternal Order of Police contributed $22,500 to the trust
account for purposes of out-of-pocket expenses.
If you are able to collect our fees from the City of Miami, we
will refund the $15,000 to the Fraternal Order of Police.
Please advise me if it will be necessary to have an expert wit-
ness testify to the reasonableness of these legal fees.
Very truly yours,
. LAW orrlcts
SLACK & FURCI
• •R01'COSIONAL A66OCIA110N
&KITE IlOO MIAMI CCNtEp
100 CMOPIN PLAZA
MIAMI, FVOPkIDA 83121
April 2, 1984
STATE Y. LUIS ALVAREZ
Case No. 3-
fil.trNOM[ 3?1-6421
4k11tA CODE 205
for Professional Services Rendered:
BY ROY E. BLACK:
I. Pre -Trial Case Preparation
a. Case conferences with clients, Mark Seiden, Frank
Furci, Bob Klausner, Ralph Barreira
b. Interviews and consultations with expert and non -expert
witnesses
c. Supervision of Staff Attorneys and Law Clerks
d. -Reading and outlining of each deposition and review of
each topical file
i
e. Preparation and drafting of major pleadings, opening
statement, and final argument
200 hours @ S100/hour S 20,000
II. Trial
a. Lead counsel at 8-week trial, including evening and
weekend preparation of direct and cross examination,
conferences, etc.
600 hours @ S200/hour $120,000
TOTAL 3140,000
86 --154
STATE V. LUIS ALVAREZ
April , 1984
Page 2
BY MARK SEIDEN:
I. Pre -Trial Case Preparation
a. Research and drafting of motions and memoranda of law
b. Investigation - dictation of investigative memos
c. Case conferences with Mr. Black, Mr. Furci, Mr.
Klausner and Mr. Barreira
d. Motion hearings
e. Appeal of pre-trial order
f. Out of town investigations and depositions:
i. Tallahassee, Florida 1 day
ii. Columbia, Missouri 4 days
iii.. Baltimore, Maryland 2 days
iv. Dallas, Texas 4 days
g. Depositions and deposition preparation (over 100 depo-
sitions, some in excess of 300 pages each)
h. -Pre-trial reviews and outlines of depositions,
including:
i. Review of materials and preparation of outline
prior to each deposition
ii. The actual deposition
iii. Reading of each deposition subsequent to its
transcription
iv. Dictation of notes on each deposition
v. Assembling file on each person and/or topic
including the deposition, research materials,
articles, outline, trial notes, etc.
vi. Consultation and interviews with expert witnesses
1 ♦w orrlrri P11 tf N /. . . Slllrr s%mr1 ..1a..1 rC/JTCO Ir-sn rmnstipJ at &7. MI&VI rI npsn& \1171
86 -1Sg
STATE V. LUIS ALVAREZ
April 2. 1984'
Page 3
vii. Pre-trial interviews with defense witnesses
viii. Conferences with client
2,250 hours @ S50/hour
(5 months, full time at 60 hours
per week and 5 months, part time
at 30 hours per week) $112,500
II. Trial
a. Pre-trial motions, jury selection, and jury trial;
January 18, 1984 through March 15, 1984, including pre-
paration each evening and on Saturday or Sunday.
Breaks down to 75 hours per week for 8 weeks (less two
days for illness and hospitalization)
600 hours @ $100/hour S 60,000
TOTAL U72 0T
TOTAL FEES:
1 •W r.r r,rrc O• - v ! r„pri O • c•,,.r .,—,. ,,.. .. ��..�.._
$312,500
8Y-154
U
DISCE a�'"E OF FIREA'iM R.—EVIEW BOARD
�4PDr='
DATE
.0
nT ;CuA°+C, 1"-' rTVAQPA
LVTERML SECVO:""! CASE
F INDT14S :
'4I'I'E?IN DEPAR'P STrAL GL'IDF" '."MS
17 NOT WIMUN, DEPAR'PM•Et•PTAL GU17E c
Or OT!LFc Amy ctF rIT?,,..AT.roMS I i0"IM A-, D REV 1 BOARD'S ;SCO%*AeMATIO'4
.FD ? V
APR DATE
IBM # DATE
IBM N DA c
IBM # Dti:n
c
5 Je1
Fre'- - — , 7--rMT , t.AS TAF N:
8f -154 --
CITY OF MIAM1. FLORIOA v 7A 8�
INTER -OFFICE MEMORANOUM
.o. Major Raul Martinez oATL. June 14, 1985 PLC
Commander
Internal Security Unit wwcCT: I.S. Case 07857/R
M.P.D. Inc. 362376OG
'ROM:Sgt. Robert Hill "9►E"FNc9$Di3charge of Firearm
Investigator Off. Luis Alvarez
Internal Security Unit ENCLOs4"EI.IBM #0113
ALLEGATIONS:
Officer Luis Alvarez and Officer Louis Cruz, unit 238, entered thgk.
game room known as the "Recreation Establishment, Inc." located at
1495 N.W. 3rd Avenue, on 28 December 1982, at approximately 1800
hours.
During the time that the officers were inside the game room, Officer
Luis Alvarez approached a subject who later became known as Nevell
Johnson, Jr. At the time, Johnson was playing one of the numerous
video games located inside the establishment. It was during this
period that Officer Alvarez discovered a revolver concealed in the
waistband of Johnson's pants. Sometime after the discovery of
Johnson's weapon, a single round was discharged from Officer
Alvarez's service revolver. The projectile struck Johnson in the
forehead just above his left eye at the eyebrow line.
Nevell Johnson, Jr. died as a result of the gunshot wound on 29
December 1982, at approximately 1845 hours.
PERSONS INTERVIEWED BY HOMICIDE CITY OF MIAMI POLICE DEPARTMENT
by Detective pear:
1.
Deborah D. Glaster
1331
NW
65
St.
691-3119
2.
Marvin Brown
260
NW
8 St.
#6
No phone
3.
Yolanda Gadson
1674
NW
75
St. #3
691-3119
or
1775
NW
79
St.
696-6318
by
Detective Buhrmaster:
4.
Rose Regular
6803
NW
6
Ct.
751-3375
5.
Jimmy Jones, Jr.
1447
NW
3
Ave. #4
No phone
6.
Joanis Joseph
200
NW
77
St.
No phone
86 --154 -
Major
Raul Martinez., Commander
I.S Case No. 7857/R
Internal
Security Ubit
by Sgt.
Cheatham:
7.
Off. Louis Cruz
400
NW 2 Ave.
579-6540
by Detective Buhrmaster:
8.
Off. Luis Alvarez
400
NW 2 Ave.
579-6540
9.
Bruce Hester
1277
NW 58 St.
#4 758-1982
10.
Allison Elmore
215
NW 16 Terr.
573-1842
(Age 17)
11.
Harry Guible
1408
S. Bayshore
Dr. No phone
#1004
12.
Robert Fletcher Jr.
667
NW 8 St.
375-0589
13.
Sammy Lee Shelby
324
NW 19 St.
573-8994
(Age 16)
14.
Jeffrey Hoskins
1610
NW 4 Ave.
#14C 573-0959
15.
Thaddeus Harris
332
NW 19 St.
573-8461
16.
Off. Fred Yuen
400
NW 2 Ave.
579-6408
17.
Off. Ornel Cotera
400
NW 2 Ave.
579-6540
18.
Off. George Clayton
40-0
NW 2 Ave.
579-6540
19.
Angela Walker
1520
NW 4 Ave.
#17C No phone
( Age 16 )
20.
Aulder Rouse
670
NE 4 Ave.
#128 573-8472
(1st statement)
20(A)
Aulder Rouse
670
NE 4 Ave.
#128 573-8472
(2nd statement)
21.
Vondell Jackson
1620
NW 4 Ave.
#13F 573-0864
(Age 15)
- 22.
Terry Gillmore
1620
NW 4 Ave.
013F 573-0864
23.
Theotus Kendricks
1840
NW 5 Place
5T6-8483
PERSONS
INTERVIEWED BY INTERNAL SECURITY CITY OF MIAMI POLICE
DEPARTMENT
by Sgt.
Robert Hill:
24.
Off. Victor Rozier
IBM
6084
M.P.D. - S.P.U.
25.
Oft'. Alphonso Ervin&
IBM
1770
M.P.D. - S.P.U.
26.
Off. L. Kirkendall
IBtt
3682
M.P.D. - S.P.U.
27.
Off. Sherman George
IBM'2244
M.P.Q. - Communications
28.
Off. Jose Sao
IBM
0256
M.P.D. - Platoon "A"
Page (2)
86-154
Major Raul Martinez, -Commander
Internal Security Unit
6
I.S. Case No. 7857/R
29.
Off.
Julio Herrera
IBM
3005
M.P.D.
- Communications
30.
Off.
Fortune Bell
IBM
0339
M.P.D.
- Platoon "B"
31.
Off.
George Clayton
IBM
1084
M.P.D.
- Platoon "8"
32.
Off.
Carolyn Clarke
IBM
1075
M.P.D.
- S.I.U.
33•
Off.
Yves Fortune
IBM
2022
M.P.D.
- S.I.U.
34.
Off.
John Tomberlin
IBM
7110
M.P.D.
- S.P.U.
35.
Off.
Carole Dunn
IBM
1591
M.P.D.
- Off -Duty
36.
Sgt.
Ivan Fernandez
IBM
1931
M.P.D.
'-'Homicide
37.
Off.
Carlos Fernandez
IBM
1923
M.P.D.
-:Special Threat
Response Unit
38.
Off.
John Campbell
IBM
0808
M.P.D.
- Task Force
39.
Off.
Juan Inastrilla
IBM
3353
M.P.D.
- Training
40.
Sgt.
Patrick Burns
IBM
0736
M.P.D.
- Training
41.
Off.
Romel Bequer
IBM
0354
M.P.D.
- Enforcement
42.
Lt.
Russell Leasburg
IBM
3920
M.P.D.
- Int. Security
43.
Off.
Jose Seiglie
IBM
6370
M.P.D.
- Platoon "B"
44.
Off.
Luis Alvarez
IBM
0113
M.P.D.
- Int. Security
45.
Sgt.
Ina Miranda
IBM
481T
M.P.D.
- Court Liaison
46.
Off.
Gonzalo Miranda
IBM
4820
M.P.D.
- Enforcement
47.
Sgt.
John Chapek
IBM
1020
M.P.D.
- Enforcement
48.
Off.
M. Sharpsteen
IBM
6400
M.P.D.
- Enforcement
Expert witness testimony, not directly related to the scope of the
Internal Security investigation, is not addressed in this report.
For more details concerning trial testimony, refer to the synopsis of
.court testimony located in the case file.
SUMMARY OF THE INVESTIGATION:
At 1815 hours on' Tuesday, 28 December 1982, I was notified by the
Complaint Sergeant of a police officer involved in a shooting at 1495
N.W. 3rd Avenue, a game room. Myself and Lt. Kamenesh, who happened
to be present at the time of the notification, as well as being the
on -duty Patrol Commander, immediately responded to the scene. As we
were arriving at 1820 hours, I observed a City Fire Rescue Unit just
clearing the scene enroute to J.M.H., transporting the wounded
subject.
The shooting took place inside of the Recreation Establishment, Inc.;
an amusement game room consisting of pinball machines and video
games, as well as a snack bar and limited kitchen facility.
Proceeding inside I contacted Sgt. B. Cheatham, the Homicide team
supervisor; Detective J. Buhrmaster, the Homicide lead investigator;
and Sgt. N. Olon, Patrol supervisor of the unit involved in the
d130harge. I also observed and identified myself as the on -call
Internal Security investigator to unit 238, Officers L. Alvarez and
86--154
•
Major Raul Martinez, Commander
Internal Security Unit
6
I.S. Came No. 7857/R
L. Cruz. I' learned that it had been Officer Alvarez who had
discharged his service revolver i0td that Officer Cruz, Alvarez's
partner, had been present at the time of the shooting. The subject
shot was identified as black male Nevell Johnson, Jr. (DOB: 10/5/62).
After exchanging the basic identification information of those
persons involved, I proceeded to move away from the immediate area of
the southeast corner of the game room where Homicide was interviewing
Officer Alvarez; this was in an effort to avoid a possible "Miranda -
Garrity" conflict from being raised at a later time. During this
period of time, I observed various technicians processing and
photographing the scene.
Due to the escalating fervor of the citizens gathered outside the
game room, a command decision was made to conclude the on -scene
portion of the investigation at abc%?it 1930 hours and to continue the
effort at the station's Homicide Office. Officers Alvarez and Cruz
had been transported earlier to the station, therefore; no walk
through or similar on -scene activity was conducted. The processing
and investigative procedures witnessed on the scene of 1495 N.W. 3rd
Avenue resembled those activities observed on previous like scene;
only the length of the procedures and activities were shortened by
the withdrawal of the various departmental elements. At no time, did
this investigator observe any questionable aspect concerning the
effort and manner of those persons directly, or indirectly, involved
in the investigation into the shooting of Nevell Johnson, Jr.
As previously stated, the on -scene portion of the investigation was
concluded at approximately 1930 hours. However, due to tactical
developments experienced during the withdrawal from 1495 N.W. 3rd
Avenue, arrival at the station was delayed until approximately 2030
hours. Once I arrived at the station, I proceeded to the Homicide
Office where the principals, and various witnesses involved in the
investigation, had gathered. Office of Professional Compliance
representatives Joseph Ingraham, Julio Fanjul and Pam Burns, as well
as Assistant State Attorneys, Sam Rabin and Benton Becker, joined the
investigation at that point.
Homicide began to take statements from those persons identified as
possible witnesses on 28 December 1982. Deborah Denise Glaster,
Yolanda Gadson, Rose Regular., Jimmy Jones, Jr. and Joanis Joseph:
were all interviewed on the night of the shooting, however, it was
determined that not one of these people actually witnessed the
shooting and could offer no assistance in the investigation. (See
respective statements in the case file).
Page (4)
8E-JL54
i
Major Raul Martinez, Commander
Internal Security Unit
40
`J-
I.S. Case No. 7857/R
.y
On 28 December 1982, Homicide interviewed Marvin Brown (See No. 2 on
the "Persons Interviewed.." list for additional information). A
synopsis of Mr. Brown's statement is as follows:
Marvin Brown stated that he was in the game room seated on the stereo
when he observed the two police officers enter the game room. He
stated he observed them approach a person he knew as "Snake", with
the last name of Johnson who was playing a video game, and proceed to
conduct, in his words, " a search down". He stated he was sitting
approximately fifteen feet away as he observed the taller of the two
policemen, approximately six feet three with straight hair and .a
bushy mustache, find a gun on the back of Snake in his waistband. Me
stated at that point, the taller officer removed his gun from his
holster and aimed it at Snake's forehead. He stated that the taller
officer who had first found the gun in Snake's waistband did not
remove the gun, but left it where he found it. Brown stated that all
during this time, Snake continued.to play the video game and that he
observed both of Snake's hands on the game's control buttons.
Mr. Brown stated that from where he was seated, he could see that
Johnson offered no resistance to -the police officers whatsoever; that
after finding the gun, the taller police officer put his gun to
Johnson's head and pulled the trigger. Mr. Brown was again asked
where on the body of Johnson the police officer pointed the gun; his
answer was at least two inches from Johnson's head. Brown again
stated that upon the police officer finding the gun, Johnson was
immediately shot.
Mr. Brown stated that after the shooting, Johnson fell onto the floor
face down and "that his gun was still in the back of his waistband.
Afterwards, as the policeman ran to the door, Brown reportedly told
him, "I saw it, there is no need to run", at which time the policeman
stopped.
It should be noted that Marvin Brown walked into the Homicide Office
voluntarily to make the investigators aware that he was a witness to
the shooting. (See statement in case file for more detail).
A statement was also taken from Officer Cruz, by Homicide, on 28
December 1982. A synopsis of his statement is as follows:
Page (5)
8E-154
Major Raul Martinez, Commander
Internal Security Unit
41
%.,
I.S. Case No. 7857/R
r
Officer Cruz stated that on �8 December 1982, he was assigned to unit
238 with Officer Alvarez, his field training officer. He advised
that he had graduated from the Southeast Florida Institute of
Criminal Justice on 29 October 1982. He stated Officer Alvarez was
doing the driving of the police vehicle and he was taken to the
Recreation Establishment, N.W. 3rd Avenue and 15 Street, for training
Purposes. He said the only instructions that he received from
Officer Alvarez prior to entering the recreation. center was to get
his flashlight Just in case anything happened.
Officer Cruz stated that after entering the game room, he estimated
that there were approximately 30 people inside playing the different
video and pinball games, they walked around inside just to check it
out. As they were beginning to leave the establishment, Officer
Alvarez suddenly turned back towards one of the machines, approached
a black male, at which time Officer Cruz reported he followed closely
behind Officer Alvarez. Cruz stated that Alvarez went up to the man
and put his hand towards the man's waistline, where there appeared to
be a bulge covered by the man's sweater. He stated that as Alvarez
reached for the bulge, his vision went towards the bulge; Cruz
described having tunnel vision, "all I saw was a bulge." He said
Officer Alvarez lifted the sweater at which time he observed a
revolver in the man's pants. He said the revolver was dark in color
and he saw a little bit of the cylinder, that's how he knew it was a
revolver, and that the grips were brown or dark brown. He stated
that Officer Alvarez and the subject had a conversation, but he was
unable to hear what they were talking about.
Officer Cruz stated there came a point where Officer Alvarez drew his
weapon after he. found the gun. Alvarez had his service revolver in
one hand and his other on the person's waist where the gun was. Cruz
was not sure which hand was on which. He stated Officer Alvarez
pulled up the sweater; Cruz's eyes focused on the weapon. He was
told by Alvarez to grab the gun, at which time Cruz went to grab the
gun and the black male jerked towards the left, towards Officer
Alvarez, and all Cruz heard was a bang. He stated he did not have
time to reach or grab the gun or take it in his hand.
When asked if he could describe the man who was carrying the gun;
Officer Cruz said he could not. He was questioned by Sgt. Cheatham
as to whether it was a black male; Cruz answered it was. When asked
about an age; he stated early twenties. When asked about the sub -
Page (6)
8E-154
Major Raul Martinez, Commander
Internal Security'Unit
6
...e
I.S. Cane No. 7857/R
jest's height and weight, his answer was slim and maybe five -nine.
When asked as to the whereabouts oe- the gun on the black male; Cruz
answered it was just behind the left arm, indicating with his hand
where his handcuffs would be located on his gunbelt. Cruz stated the
gun was half way concealed in the waistband. When asked if he knew
where Alvarez had his weapon pointed; he said, "No, I don't know".
When asked if he knew whether or not Officer Alvarez had his gun
cocked, he said he did not know, that he did ask Alvarez and Alvarez
said he did not have it cocked. Officer Cruz was asked what type of
jerking motion the man had made; his answer was i�-yas like a sudden
turn. He stated he was not sure where the individual's hands were
during the movement.
Officer Cruz said that after he heard the gunshot, he did not look at
the black male at all. He looked at Officer Alvarez who said, "Oh,
my God", or something like that and then started running outside and
that he ran after him, because he didn't know what had happened.
Cruz said that Alvarez got on the radio eventually and screamed for
help. Cruz said his partner went outside, because he thought the
radio wouldn't work inside with all the noise from the pinball and
video machines.
Officer Cruz stated that after Officer Alvarez called for help,
Alvarez ran back inside and he followed. Reportedly, upon returning
to the inside, everyone was still playing the various games; Cruz
guessed that nobody heard the "bang" because of all the noise that
was going on inside the establishment. At that point, Officer
Alvarez began evacuating everybody from the game room.
It should be noted that Cruz reported while they were outside Alvarez
asked him did you get the gun; Cruz answered, "No, I didn't. It's
still on him". At that time they went back inside and Officer
Alvarez retrieved the gun from Johnson. Officer Cruz stated he did
not see Officer Alvarez remove the weapon from Johnson, because he
did not want to look at Johnson as he thought it was going to be a
"disgusting" sight. However, after seeing the weapon that had been
removed. by Alvarez, he identified it as being the same gun he had
observed in Johnson's waistband. He stated Alvarez took the weapon
and tucked it between his pants and gunbelt and turned it over to
Homicide when they arrived on 'the scene. Officer Cruz stated that as
far as he knows, Officer Alvarez never tampered with the gun he
removed from Johnson in any manner, prior to giving it to the
Homicide personnel.
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Major Raul Martinez, Commander
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..i
I.S. Case No. 7857/R
Sgt. Cheatham asked Officer Cruz prior to the shooting, while t:
were walking around the game room, If he was talking to any perst
inside. He said no, other than one black female who said "Hi",
he responded with "Hi". Cruz was also asked if he observed anyone
the left hand side of the door seated on a jukebox as they enter
the establishment; he answered no. Cruz was asked if at any time
conducted a pat -down search of Johnson; he responded that he did n
pat him at all. He was asked did there ever come a time that you p
your hands on the man at all; his answer 'was no, he didn't.
stated that the man was playing a video machine and -half his back w
up against a pillar, he had no way of patting him down. He was ask
if either prior to the shooting, or after the shooting, did Alvar
and Johnson have any ill feelings or cross words; Cruz answered no.
e
Officer Cruz was asked how many times his partner shot his weapon,
how many gunshots did he hear; he answered one gunshot. He was ask
if he ever shot his weapon; he answered no. He was asked if he h;
ver ridden in 40 sector prior to the date of the shooting; t
answered yes, he had. He was asked if he had ever gone into the poc
room, or the game room, prior to the shooting; he answered, "Nc
never. I never knew it was there". (See Cruz's statement in th
case file for more detail).
At 0140 Fours, On 29 December 1982, Officer Alvarez was sworn b
Notary, Bernie McGuire at which time, while being present with hi
attorney Mr. Robert Klausner, he was advised of his Constitutiona.
Rights by Detective Buhrmaster. Upon having his Rights read to hi:
and indicating that he understood each and everyone, Officer Alvarez,
on advice of his attorney, exercised his Right not to make
statement, nor to answer any questions, in reference to the shooting
incident that had taken place at the game room on the 28th of
December at approximately 1800 hours. The interview was concluded at
0146 hours. (See Officer Alvarez's statement contained in the case
file, along with the Constitutional Rights Form, for more details).
Following Officer Alvarez's interview at 0155 hours, a meeting was
held in Major Emory Putman's Office, which included myself and the
following personnel: Captain Glover, Captain Ross, Lt. Walton, Lt.
Berger, Sgt. Cheatham and-. Detective Buhrmaster. The facts of the
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Major Raul Martinez, Commander I.S. Case No. 7857/R
Internal Security unit
case were discussed in reference to the status of the investigation
at that time. Those present•were m tie aware that Officer Alvarez had
refused to give a statement on advice of his attorney. During the
discussion at the meeting, Officer Lange of the Communications Unit
was summoned for the purpose of making available a copy of the
original radio transmission made by unit 238, Officers Alvarez and
Cruz. At 0240 hours, Assistant Chief Breslow arrived and was
appraised of the investigation's status.
After the completion of the meeting in Major.._Putman 's Office,
Homicide was informed by the F.O.P. Attorney, Mr. Klausner, that
Officer Alvarez would not complete any administrative paperwork
pertaining to the incident, due to the fact that he, Klausner,
considered it a form of a written statement, which he advised Alvarez
against doing.
At 0345 hours, I received from Officer Lange a copy of the
Communications tape which contained the emergency transmission of
unit 238; Officers Alvarez and Cruz. A transcription of that
transmission is as follows:
238: 238 emergency, 238 emergency.
D: 238, QSK.
238: Get me the Squad, get me the squad, please, I'm on, ah 15th
Street and Northwest 3rd Avenue, somebody just pushed me and a
shot went off and there's a, a, um, -a black male down.
D: QSL, 18:06.
754: 754.
D: All units QRX.
D: 238.
238: Three fit, QSM.
D: 238, you're all QRU.
238: Yeah, we're QRU, but we, we got an emergency.
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Major Raul Martinez, Commander
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I.S. Case No, 7857/R
D: Squad's enroute, K.
238: QSL.
Unk. Unit: QSM reference.
1640: 40, what's their QTH.
D: QRM unit.
1640: 1640, what their QTH.
D: 16409 that's northwest 3 Avenue and 15th Street reference a man
shot, K.
1640: QSL.
238: 238, you got the 3 coming and the Squad I got a man shot.
D: Squad's enroute QRX for an ETA.
447: 447, is he at northwest 3 Avenue or 10 avenue.
D: 238.
238: I'm at 1495 Northwest 3rd Avenue.
D: QSL, 18:07, Miami.
1941: 1941.
D: 1941.
1941: He advised he has a man shot, has he got a reference on that,
or is it a "29" or what.
D: He advised the gun went off and shot the subject, 238.
238: QSL.
238: (Different voice) 238.
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Major Raul Martinez, Commander I.S. Case No. 7857/R
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D: Squad's enroute, K.
238: QSL.
Unk. Unit: QSM reference.
1640: 40, what's their QTH.
D: QRM unit.
1640: 1640, what their QTH.
D: 1640, that's northwest 3 Avenue and 15th Street reference a mats
shot, K.
1640: QSL.
238: 238, you got the 3 coming and the Squad I got a man shot.
D: Squad's enroute QRX for an ETA.
447: 447, is he at northwest 3 Avenue or 10 avenue.
D: 238.
238: I'm at 1495 Northwest 3rd Avenue.
D: QSL, 18:07, Miami.
1941: 1941.
D: 1941.
1941: He advised he has a man shot, has he got a reference on that,
or, is it a 1129" or what.
D: He advised the gun went off and shot the subject, 238.
238: QSL.
w
238: (Different voice) 238.
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Major Raul Martinez, Commander I.S. Caere No. 7857/R
Internal Security Unit
D: Verify •the reference on the man shot.
238: 238.
D: 238, verify the reference on the man shot.
238: Get me the 3 man QRX a second I'm on the scene.
1941: 1941.
D: 1941.
1941: Whenever anybody can give me any infor, information Would you
have them QSY, please.
D: QSL.
Unk. Unit: Have 1941 QSY.
. 1941 : 41, QSL.
447: 447.
D: 447.
447: You're gonna need a supervisor, you're gonna need Homicide,
have them respond over here.
D: 447 that's QSL, 18:09, you all QRU for now.
447: (Inaudible) now, ah, have the complaint sergeant QSY, er, QRX a
minute let me get to a phone.
1940: 1940.
D: 1940.
1940: 447, Tach One.
D: QRX a moment.
Unk. Unit: QTH.
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Major
Raul Martinez, --�Commander
I.S. Case No. 7857/R
Internal Security Unit
238:
238.
D:
238.
238:
You got ID, Homicide, I need the Squad man, I got
a man shot.
D:
Be advised the Squad's running a 3,
QRX.
238:
QSL.
1941:
1941.
-
D:
1941.
1941:
Please have one of those units on
the scene of
the shooting
QSY.
D:
QSL, 447.
447:
QSL, I'm trying to call the Complaint Room right
now have him
QS, have, have him QSY.
D:
QSL, QSY for the Complaint Sergeant
447.
447:
If somebody pick up 9.11 up there or
611 up there,
I could talk
to him on the phone.
D:
QSL, 18:10, Miami.
230:
230.
D:
230, QSK;�
230:
What's their QTH.
D:
Reference the man shot, the QTH, is
1495 Northwest
3 Avenue.
230:
QSL, I'll be enroute.
238:
238.
D:
QRM unit.
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Major Raul Martinez, Commander I.S. Case No. 7857/R
Internal Security Unit
238: 238.
D: 238.
238: You got 230 coming.
D: QSL, 230.
230: I'm arriving.
D: 18:12, you all QRU.
236: 236 (inaudible) 1640.
D: 1640.
1640: We may need a Couple of units out here, ah, for crowd control.
234: 234.
D: 234.
234: Yeah, I'm on the scene, put me on a
D: 234, QSL, 1115", 18:13.
Unk. Unit: 31.
D: QRM unit.
231: 231.
D: 231.
231: Case number and ID please.
D: 231, incident 3623750, G, golf.
D: 581, 581, Miami.
230: 230
D: 230.
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Major Raul Martinet, Commander
Internal Security fruit
230: 240,QSY.
D: 240.
230: Correction, make that 204.
D: QSL, 2049 2049 204, 204.
1734: 1734.
D: 1734.
1734: 1109" with, ah, robbery.
D: 1T340 QSL, 18:14.
246: 246.
lk �
I.S. Case No. 7857/R
D: 2040 204, 230 no response on two only, K.
230: QSL, can you try the other channels.
D: QSL, all units QRX 18:15.
(The tape from which the preceding transcription was made is located
in the case file).
On 29 December 1982, a person claiming to have witnessed the shooting
of Nevell Johnson on the previous day telephoned the office of
Internal Security. The identification and contact information was
collected from- -the potential witness and forwarded to the Homicide
Unit. Sergeant Cheatham and Detective Buhrmaster arranged to
interview the alleged witness, Bruce Hester. (See No. 9 on the
"Persons Interviewed..." list for additional information).
Before Homicide could actually take a formal statement from Mr.
Hester, it was learned that Nevell Johnson had been pronounced dead
by Dr. Philip Villanueva at 1845 hours.
A formal statement was taken from Bruce Hester by Sergeant Cheatham
and Detective Buhrmaster on 29 December 1982. (See Hester's
statement in the case file for details). It was subsequently learned
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Major Raul Martinez, Commander I.S. Came No. 7857/R
Internal Security unit
through the Homicide investigation --that Bruce Hester in fact had not
witnessed the shooting of-- Nevellr Johnson, furthermore, it was
determined that Hester was not at the game room at the time of the
shooting.
From 2045 hours to 2330 hours, I attended the autopsy of Nevell
Johnson at the Dade County Medical Examiner's Office. Homicide
Detectives Jackson and Swink, along with Identification Technician
Bloom, were also present during the medical examiner's procedure. In
this investigator's opinion, and based on my limi.Lod experience, the
autopsy performed by Dr. Mittleman appeared very intense and
thorough.
Meanwhile, Sergeant Cheatham and Detective Buhrmaster interviewed
another potential witness, Allison Elmore (age 17). Ms. Elmore was
interviewed; her mother, Mrs. Carey, was present during the formal
statement. (See No. 10 on the "Persons Interviewed..." list for
additional information). A synopsis of Ms. Elmore's statement is as
follows:
Ms. Elmore stated that she was inside the game room playing one of
the pinball machines, when she heard a noise which sounded like a
firecracker. -She stated she looked around and saw a man lying, on
his stomach, on the floor. Ms. Elmore did not witness the actual
shooting and therefore, could offer no pertinent information or
details. (See her statement in the case file for more details).
Harry Guible was identified by Bruce Hester as having been present
with Hester, in the game room, at the time of the shooting. Harry
Guible was interviewed by Sgt. Cheatham and Detective Buhrmaster on
30 December 1Q82. (See No. 11 on the "Persons Interviewed..." list
for additional information). As previously pointed out in this text,
it was shown that Bruce Hester was not present at any time related to
the shooting. The interview of Mr. Guible, by Homicide, further
established this fact. Mr. Guible stated that he was not at the game
room, nor in the presence of Bruce Hester, as alleged by Hester.
(See Guible's statement in the case file for details).
On 30 December 1982, Robert Fletcher was interviewed, and a formal
statement taken, by Sergeant 'Cheatham and Detective Buhrmaster. (See
No. 12 on the "Persons Interviewed.." list for more information). A
synopsis of Mr. Fletcher's statement is as follows:
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Major Raul Martinez, Commander
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I.S. Case N+. '+^g7/R
Mr. Fletcher stated he had been in the game room since approximately
1800 hours on the date in question. He stated that while he was
standing at the service counter, he heard a gunshot, turned around
and saw Johnson fall to the floor. He said he walked over to where
Johnson lay and said, "No, no, look what they done. They shot
Johnson". He stated he first looked at Johnson and then looked up at
the Officer. The officer reportedly said, "Who shot this man.
Somebody shooting. Somebody got a gun. Run, run". Mr. Fletcher
stated at that time he ran out the door. (See Fletcher's statement
in the case file for details).
After completion of Robert Fletcher's statement, a statement was
taken from Sammy Lee Shelby (age 16). (See No. 13 on the "Persons
Interviewed..." list for further information). A synopsis of his
statement is as follows:
Mr. Shelby stated that he was present inside the game room when two
police officers- entered inside. The officers went straight to the
back, and then towards where Jeff Hoskins was standing, playing a
video machine. The two officers walked back to the front, approached
Johnson from behind, at which time they touched him on his waist. At
that time, Jeff Hoskins, who was standing next to him, stood back
blocking his view. When Hoskins moved again, Shelby heard one
gunshot. He observed Johnson falling, at which time he and Hoskins
ran outside and went to Johnson's home and advised his family that
Nevell had been shot.
Mr. Shelby stated that one of the police officers was taller than the
other, and that it was the shorter officer who was touching Johnson
at the waistline. He stated they were standing on the left side of
Johnson while'he was playing a video machine. He indicated that he
observed a chrome gun in the police officer's hand, which was pointed
in an upward direction. He further indicated that the barrel was
pointing in the direction of the left side of Johnson's head. He
also indicated that the weapon was in very close proximity to
Johnson's head; he thought it was almost touching Johnson.
When questioned, Mr. Shelby advised that he had seen Johnson on
Previous occasions, in possession of a gun. He described Johnson's
gun as a .22 or .25, dark in color, revolver. When asked where
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Major Raul Martinez, Commander
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a
I.S. Case No. 7857/R
Johnson usually carried the gun,. Shelby replied, "in the front".
(See Mr. Shelby's statement in the tA3e file for details).
After the completion of Shelby's statement, a statement was taken of
Jeffrey Hoskins. (See No. 14, on the "Persons Interviewed..." list
for additional information). A synopsis of Mr. Hoskins' statement is
as follows:
Mr. Hoskins stated that he was playing a video machine on the east
wall of the game room, approximately four machines south of, and on
the same wall as, Nevell Johnson. Reportedly, Hoskins and Johnson
were the only two people playing the machines on the east wall when
two police officers approached Johnson. Hoskins stated that one of
the policemen grabbed Johnson by the left arm, using his right hand,
and then pulled his gun with his left hand. Hoskins stated that
after the policeman pulled his gun, he put it up to Johnson's head,
more to the left side and eye, and then pulled the trigger. After
Johnson was shot, he fell and Just missed Hoskins by a couple of
inches. Johnson reportedly fell face down on the floor with his head
in a southerly direction. Hoskins then ran from the game room.
When questioned, Mr. Hoskins described the police officer's gun as a
standard type -service revolver, black in color. He stated he could
clearly see that the officer had pulled the rigger on the gun. Mr.
Hoskins was asked if he thought that when the policeman walked up and
turned Johnson around and put the gun to his head, if he had shot him
for no reason; his answer was that was his impression, yes.
Mr. Hoskins was asked to view a photo line-up, at which time he was
asked to identify anyone who he might remember as having been there
at the time of the shooting. He positively identified photograph
number three a'3� the man he saw shoot Nevell Johnson. It should be
noted that the individual that Mr. Hoskins positively identified as
number three on the line-up was Detective George Cadavid of M.P.D.
Homicide, who was not the police officer responsible for the shooting
that occurred at the game room on the 28th of December 1982. (See
statement in the case file for details).
On 31 December 1982, a formal statement was taken from Thaddeus
Harris by Homicide. (See No..15 on the "Persons Interviewed..." list
for additional information). A synopsis of the statement by Thaddeus
Harris is as follows:
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Major Raul Martinez, Commander
Internal Security Unit
I.S. Case No. 7857/R
Mr. Harris stated he was inside the -game room standing at the side of
the food counter when the police otiicers entered the establishment.
The officers said that they had a call at that location where a man
was supposed to have had a gun. He indicated that the smaller one of
the two officers had said this. He said that they walked around and
saw Johnson, at which time they stopped where he was. One of the
officers looked at Johnson from head to toe and asked what did he
have bundled up in his waistband. Reportedly, the shorter of the two
officers was doing the questioning.
Harris stated that Johnson did not respond to them and continued to
play the video game. He stated at that time the police took his left
hand, grabbed Johnson's waist, and Johnson still did not respond. He
stated the officer then removed his left hand and put it on Johnson'-s
face, at which time Johnson started'on his way out. All of a sudden
a shot went off and Johnson was on the floor. Harris stated that
Johnson was lying on his back, face up, and that he observed a pistol
lying on the left side of Johnson about a foot away, between
Johnson's body and hand. The pistol was reportedly silver in color
with brown handles. (See statement in the case file for details).
After completing the interview of, and the statement by Mr. Harris,
Sergeant Cheatham was contacted by ATF agent Frank Hart. The
information that Sergeant Cheatham received from Agent Hart is
summarized as follows:
Mr. Edward Neil was contacted in Detroit, Michigan, by local ATF
Agents Welch and Murphy. It was learned through an ATF "trace", that
the gun in Nevell Johnson's possession on the 28th of December had
been stolen from Mr. Neil. Mr. Neil reported that while on vacation
in the Miami area in November of 1980 he had visited a friend by the
name of Clarence Jones who lived in the Miami Beach area. During his
stay in the Miami area, his vehicle was broken into and he believes
that the firearm was stolen at that time. He stated he did not
report the theft to the police, because he .4as on vacation and did
not want to take the time to make a report. Neil stated the weapon
that was stolen was a RG, .22 Caliber, Model #13, 3" barrel, blue
steel, six shot, revolver bearing serial number L746576. (See
statement in case file for details).
At 1500 hours, on 31 December 1982, investigators from Homicide and
technicians from the Identification Unit, returned to 1495 N.W. 3rd
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Major Raul Martinez, Commander
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I.S. Case No. 7857/R
Avenue. At that time inside mea-yrements were taken and a crime
scene sketch was again made.
On 3 January 1983, Detective Swink contacted Mr. Zahn at the Dade
County Crime Lab and requested the following tests be performed on
Officer Alvarez's weapon:
One, the pressure and operations tests; two, test for powder patterns
to be submitted to Dr. Mittleman per his request; three, a test to
see if Officer Alvarez's weapon had been fired 'either single or
double action.
At 1500 hours, Detectives Buhrmaster and Swink took a sworn statement
of Detective Fred Yuen in regards to what he had observed upon his
arrival at the game room. (See No. 16 on the "Persons
Interviewed..." list for additional information). A synopsis of his
statement is as follows:
Officer Yuen stated that when he arrived at the game room several
people were standing outside in the street area. Upon entering the
game room, he observed a black male lying on the east side of the
floor and about the middle of the building, lying face down with his
head to the south, feet to the north. His arms were down to his
sides. Yuen stated he asked Officer Alvarez, or Officer Cruz, what
had happened inside the establishment, and Officer Alvarez advised he
was involved. He stated that he observed Officer Alvarez to have a
small blue handgun tucked in his waistband, and it appeared to be a
revolver. He stated after that, he went outside to assist with crowd
control. (See statement in case file for complete details).
After Officer**Yuen's statement, a sworn statement was taken of
Detective Cotera. (See No. 17 on the "Persons Interviewed..." list
for further information). A synopsis of Detective Cotera's statement
is as follows:
Detective Cotera stated that when he arrived at the game room a large
crowd had gathered at the front and two uniformed officers were
putting up the crime scene tape to rope off the area. He walked
inside and asked who had been involved in the shooting; Officer
Alvarez advised that he was. Detective Cotera asked Alvarez what had
happened; Alvarez advised he had observed a gun in the waistband of a
Page (19)
Major Raul Martinez, Commander
Internal Security Uhit
4W
I.S. Case No. 7857/R
black male playing one of the arcadp•lnachines. Alvarez told Cotera
he approached the black male, placed his hand on the left arm of the
subject and asked him what the object was. Cotera stated Alvarez
said the black male turned his head, looking at him and said it was a
Sun. At that time Alvarez drew his revolver and placed it behind the
black male, the lower part of his neck. Cotera stated Alvarez
advised that he instructed his partner, Officer Cruz, who was
standing at his right, to take the gun from the subject. As Cruz
began to do so, the black male made a quick movement in a counter
clockwise direction, squaring off directly with Alvarez. Cotera said
Alvarez told him he wasn't really sure that the black male was going
for a gun, but that he. was in fear for his life, and that by his
reaction, moving away from the subject, his gun went off.
Detective Cotera was asked if he ever saw a weapon, or was ever told
of a weapon, that Officer Alvarez had taken from the black male who
had been shot. Cotera stated that Alvarez showed him a gun which he
had taken possession of, a RG, approximately 3", .22 Caliber, dark
blue with wooden grips. Cotera was asked if he remembered where the
victim was in the game room, and Cotera stated he was on the east
side of the game room between a row of arcade machines, face down.
Cotera stated he asked Alvarez. whether or not his gun had been
cocked, and he said Alvarez stated it was not -cocked. (See complete
statement in case file).
Following Detective Cotera's interview, a formal statement was taken
of Officer George Clayton by Sergeant Cheatham and Detective
Buhrmaster. (See No. 18 on the "Persons Interviewed..." list for
further information). Officer Clayton was identified as an officer
that at one time rode in 40 Sector with Officer Alvarez. A synopsis
of his statement- is as follows:
Detective Buhrmaster asked Officer Clayton if he ever had an occasion
to make an arrest with Officer Alvarez, at which time he stated that
he did. He was basically asked if any weapons came into play, or any
discharge of any firearms had ever come into play, at which time he
stated no. He was also asked the question did he ever observe
Officer Alvarez cock his weapon while having it out of his holster;
he also replied no, and stated that Officer Alvarez did not have any
further discussions with him in reference to the area or people that
lived within that area. (See statement in case file for complete
details).
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After Officer Clayton's statement, Sergeant Cheatham and Detectives
Swink and Buhrmaster took a formal statement of Ms. Angela Walker
(age 16) at her residence, 1540 N.W: 4th Avenue apt. #17C. (See No.
19 of the "Persons Interviewed..." list for further information).
Present during the interview were Ms. Walker's mother and stepfather.
A synopsis of Ms. Walker's statement is as follows:
Ms. Walker stated she was in the game
Jackson. She reportedly arrived at the
5:30 in the afternoon. Sometime later
game, she observed two oficers enter the
way to the back. She recognized one
Alvarez, because he had responded to her
about a month earlier. She stated she
shooting, nor did she observe either of
their hands prior to hearing the shot.
Alvarez reportedly told everyone to run
somebody got shot.
Ms. Walker stated she had
ten years. She also said
gun for a long time, but
the case file for complet
room with a friend. Vondell
game room at approximately
while playing the Pac-Man
game room and walk all the
of the officers as Officer
house on a disturbance call
did not observe the actual
the officers with a gun in
After the shot, Officer
out, someone had a gun, and
e
known Nevell Johnson
she has known Johnson
she didn't know why.
details).
for, between, five to
to carry a small dark
(See her statement in
On 4 January 1983, Sergeant Cheatham, Detectives Swink and
Buhrma-ster, I.D. Technician Garcia, and State Attorneys Yoss and
Becker returned to the game room. While on the scene, they were
approached by a subject, Aulder Rouse, who claimed to have witnessed
the shooting. (See No. 20 and 20(a) on the "Persons
Interviewed ... "list for further information). Mr. Rouse agreed to
participate in a polygraph examination after his initial statement.
Sergeant Vance, Chief Polygraph Examiner for M.P.D., and Mr. George
Slattery, a private examiner, administered independent tests to Mr.
Rouse.
Subsequently, Mr. Rouse admitted during his second statement, that he
did not witness the shooting of Nevell Johnson. (See statements in
case file for complete details).
During the polygraph examination of Mr. Rouse, the Homicide team
arranged to interview Ms. Vondell Jackson (age 15) at her home, 1620
N.W. 4th Avenue apt. #I 3F. (See No. 21 on the "Persons
Interviewed..." list for further information). Following the consent
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of Ms. Jackson's mother, a sworn statement was recorded of Vondell.
A synopsis of her statement follows:.
Ms. Jackson arrived at the game room sometime in the afternoon, she
wasn't exactly sure of the time, but it was still daylight outside.
While watching Jeffrey play the Galaxy game, she observed the police
officers enter the game room. She stated the two white officers
walked to the back and then to the area where Nevell Johnson was.
She stated she continued to watch Hoskins play the game and
approximately two minutes later, she heard a shot go off. As she ran
outside, she heard one of the officers state someone has a gun,
someone got shot. She also advised she was there with her sister
Terry Gilmore. (See statement in case file).
At the conclusion of Ms. Jackson's statement, and at the same
address, Terry Gilmore was located and a statement obtained. (See
No. 22 on the "Persons Interviewed..." list for further information).
Her statement was consistent with that of Ms. Jackson. Terry Gilmore
could offer no new information concerning the shooting of Nevell
Johnson. (See her statement -in the case file for details).
On 5 January 1983, Sergeant Cheatham received a phone call from
Assistant State Attorney Benton Becker who advised that he had been
contacted by Attorney Roy Black. Mr. Becker reported that Mr. Black
had informed him he was the attorney for Officer Alvarez and that any
questions to Alvarez would be done through him.
Also on 5 January, Sergeant V.J. Smith, at the time assigned to the
Property Bureau, reported to Homicide that he had checked the gun
manifests from January, 1980 to 1982, and that the RG .22 caliber
revolver had never been in the Property Bureau.
On 7 January 1983, I received a copy of a memorandum prepared by the
Patrol Section Commander, Major Michael Mahoney, and directed to the
Chief of Police, Kenneth Harms, dated 6 January 1983. The text of
the memorandum outlined the Patrol Section's "Policy on Zone
Integrity", as that policy related to the events of 28 December 1982.
The necessity of such a report was in response to the fact that on 28
December 1982, Officers Alvarez and Cruz were assigned to unit 238
under the supervision of Sergeant N. Olon. Unit 238 was a roving
Patrol unit assigned to address known problems within the area of 30
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sector. The "Recreation Establishment, Inc.", located at 1495 N.W.
3rd Avenue is situated in 40- sectorti Departmental Order 9, Chapter
2, section 2.0 Zone Boundaries states: "A unit shall patrol within
the assigned zone unless authorized otherwise by the Sector
Sergeant". On the date in question, the officers did not ask for,
nor did they receive permission to leave their sector to check the
location. However, the game room is only four blocks out of their
assigned area and within a sector where they receive numerous primary
and back-up calls for service, due to their roving unit status. The
following excerpt appeared in the Patrol Commander's report:
"It appears that the officers were involved in police
related matters undertaken by their own volition as
opposed to conducting personal business out of their
assigned area. This is not an uncommon practice
within a district. Based on the officers motivation
and the reported training need of the rookie officer,
it is difficult not to sanction this kind of self -
initiated, activity by a training officer. While
tech-nically in violation of existing policy, the
officers acted with good intentions.
Although we feel the officers actions were legitimate,
by not notifying the station of their intention to check
out a location in a high crime area violates normal
safety procedures practiced by Departmental officers.
This violation of safety procedures is more serious than
their being out of their assigned area".
(See copy of memorandum in case file for complete details).
I received a copy of, and placed in the I.S. case file, Homicide's
"Supplemental Report" on 20 January 1983•
On 22 January 1983, a sworn statement was taken of Theotus Kendricks
(age 13) by Sergeant Cheatham and Detectives Swink and Buhrmaster.
(See No. 23 on the "Persons Interviewed..." list for further
information). His statement was a result of his appearance on
television news broadcasts, wherein he alleged he witnessed the
zhooting on 28 December 1982. After taking Mr. Kendricks' statement,
it was determined that in fact he had not witnessed the shooting and
could offer no assistance to the investigation. (See his statement
in the case file for details).
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From 26 January through 28 June 1983, I interviewed a total of
seventeen police officers and supervlsors. (See No. 24 through 40 on
the "Persons Interviewed..." list for complete information concerning
the identification of those sworn employees). These seventeen
individuals represented the entire student body and instructional
staff of the Officer Survival Course conducted on the 18th and 19th
of November 1982. The purpose of conducting such interviews was to
examine, for both departmental and civil considerations, the "how"
and "what" of that training effort as related to the events of 28
December 1982. To validate the information sought, the class
selected was the session during which Officer Alvarez attended the
in-service course. The results of the interviews were consistent
throughout. The students and instructors stated that the class was
taught to utilize their revolvers in a double -action mode only; never
to "cock" their service revolver. In addition, the interviewees
reportedly were shown and practiced how to approach and arrest an
armed suspect using both one man and two man (with a partner)
techniques. Finally, the class stated that they were not taught to
place the muzzle of the weapon against the body of a suspect, nor to
specifically point their revolvers at the head of a suspect. (See
individual statements in the case file for complete details).
The Dade County Grand Jury,on 17 February 1983, released the findings
of its review into the circumstances surrounding the shooting death
of Nevell Johnson, Jr. The result was an indictment for
"Manslaughter" (F.S.S. 782.07 and 775.087) -against Luis Alvarez.
(See copy of indictment in case file for particulars).
Investigator Andrew Sundberg, of the Dade State Attorney's Office,
telephoned on 7 March 1983. Sundberg advised that the results of the
tests performed at the initiative of the State Attorney's Office, in
an effort to determine whether Alvarez's weapon was fired single-
action or double -action, were inconclusive; no definitive
determination in the matter could be reached.
Subsequent to the Grand Jury indictment, Officer Alvarez stood trial
in the Circuit Court of Dade County. The trial began on 18 January
19849 and concluded on 15 March 1984; fifty-three witnesses were
called 'to testify by the prosecution and defense during the judicial
proceeding. The following portions of this text will cover testimony
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heard during the trial and germane to the Internal Security
investigation. (A synopsis of the entire trial testimony is
contained in the case file). "
Detective Buhrmaster was called to testify on 31 January 1984. A
synopsis of his testimony concerning his conversation with Officer
Alvarez, while on the scene of 1495 N.W. 3rd Avenue, is as follows:
Detective Buhrmaster testified that he first spoke to Officer Alvarez
for a short period of time, at approximately 1820 hours and again at
1835 hours, following the shooting. Reportedly, Officer Alvarez did
not appear afraid to talk with Buhrmaster.
During the interview, Detective Buhrmaster asked, "What happened?"
Officer Alvarez reportedly described how he and his partner, (Luis
Cruz, entered the game room and made a sweep through the interior and
were preparing to exit when he (Alvarez) observed a black male
playing a video machine on the back wall.
According to Buhrmaster, Alvarez reported that the black male
appeared to have a gun. Buhrmaster stated Alvarez described
approaching and standing left shoulder to left shoulder with the
subject. Alvarez told Buhrmaster that he put his ,hand on the bulge
and that it felt like a gun. Alvarez reportedly told Buhrmaster that
he asked the .subject "what is it" and was told "it's a gun".
Buhrmaster stated that Alvarez advised he instructed the black male,
"We are going to walk out of here with no problems."
Buhrmaster recalled that Alvarez stated he pulled his revolver,
lifted the subject's sweater to show his partner the gun, then placed
his left hand on Johnson's left shoulder, grasping Johnson's sweater.
Buhrmaster stated Alvarez advised that after showing Cruz the gun, he
instructed his partner to "get the gun." Buhrmaster testified
Alvarez explained that while he had his hand on Johnson's shoulder,
Johnson turned, Alvarez pulled back and his gun discharged."
Detective Buhrmaster testified that Officer Alvarez never described a
struggle or anything other than an apparent accidental discharge.
Detective Buhrmaster further testified that Officer Alvarez never
told him that Nevell Johnson went for a gun. (See the complete
trasncript of Buhrmaster's testimony in the case file for details).
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Mr. David Howgate, a former City of Miami Police Officer from 1970-
1980, testified on 3 February 1984. It was determined through
Property Bureau records that the service revolver issued to Officer
Alvarez, and used by him at the time of the shooting, had previously
been issued to Mr. Howgate. Mr. Howgate testified that he never had
any interior, or exterior, work done on the revolver in question. He
testified that he never disassembled or polished the weapon; nor did
he ever change the issued pistol grips or any other parts to the
revolver. Upon examination of the weapon in question, Howgate could
not detect any difference in the revolver's double -action, however,
he stated the single-action mode was a lot faster than he recalled it
being previously when he had it.
On 6 February 1984, Bertran (Tony) Bell was called to testify. Mr.
Bell testified that he was situated outside the game room
approximately 34 feet away from the point where Nevell Johnson was
shot. Bell stated that he was able to look through the glass in the
entrance door of the arcade. Bell stated he observed Officer Alvarez
and his partner go into the arcade, walk around and turn towards the
bathroom. He stated Nevell Johnson was standing at the Astroid game
when he observed Officer Alvarez pull his service revolver near the
Pac-Man game, which is located one machine away.
Bell testified he saw Alvarez's weapon cocked and pointed at
Johnson's head. Bell testified he saw, but could not hear,
conversation between Alvarez and Johnson. Bell testified that he
heard a shot, saw smoke, then ran next door to the pool hall and
began yelling, "the police shot snake!" During cross examination
Bell was questioned as to whether or not he could actually see
through the tinted glass of the game room entrance; however, his
testimony remained consistent.
Jeffrey Hoskins, Robert Fletcher, and Officer Cruz, were called to
testify on the 7th and 8th of February, however, no new information
was learned from their appearances. Their testimony reflected the
same events as reported in their earlier recorded statements to
Homicide and addressed previously in this text. (See individual
trial transcripts of their testimony in the case file for details).
Sergeant Olon was also called to testify on 8 February 1984.
Sergeant Olon advised that she was the supervisor of Officers Alvarez
and Cruz on the 28th of December 1982. She reported that her arrival
on the scene was no more than ten minutes after she first heard
Officer Alvarez's emergency transmission.
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Sergeant Olon testified that she first asked Officer Alvarez if he
was okay and then asked "what happened?" Sergeant Olon explained
that Officer Alvarez told her that he and Cruz walked into the game
room towards the back and then towards the entrance. While enroute
to the door, Alvarez noticed a subject with a bulge. Olon testified
that Alvarez told her while he was checking the subject, the subject
moved quickly and his gun went off. Sergeant Olon further testified
that Officer Alvarez physically demonstrated the subject's move by
turning in a jerking movement with his palms forward at waist level.
Detective Cotera was called to testify on 9 February 1984. Detective
Cotera reported that he was working the Robbery Detail, assigned to
the Central District, on 28 December 1982. He testified that he was
the first "detective" to arrive on the scene following the shooting.'
Detective Cotera stated that upon his arrival, he determined that
Officer Alvarez had been involved in the shooting. Cotera testified
that Alvarez explained that he and Cruz had gone inside the game
room; while inside he observed a bulge in the waistband of a black
male who was playing a video game at the time. Cotera further stated
that Alvarez told him he called Cruz over to take the gun that he
(Alvarez) had his hand on. Cotera stated Alvarez advised him he told
the subject, "We are going to walk out of here with no problems."
Detective Cotera testified Officer Alvarez then stated that as
Officer Cruz went for the gun, the black male turned suddenly and
that he could only see the upper portion of the subject's arms.
Cotera stated that Alvarez told him that he was afraid, that he did
not know if the subject was going for a gun. Cotera testified
Alvarez explained it happened so fast, that he flinched backwards ,Ind
"the gun went off". Detective Cotera stated that he asked Officer
Alvarez if he was in fear for his life and Alvarez kept saying, "I
was afraid, I was afraid, it happened so fast".
On 10 February 1984, Mr. Harry H. Sefired of Madison, Cann., was
submitted and accepted as an expert witness in the design and
manufacture of firearms, specializing in the field firearm accidents,
both criminal and civil.
Mr. Sefried, under direct questioning by prosecutor Ed Cowart, made
the following observations about Officer Alvarez's weapon. He obser-
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ved the rebound spring had been out from 17 coils (factory) to 15 112
coils. The coil end showed evidence of grinding instead of factory
recommended stoning. The end of the coil should have been crimped
closed, however, it was left open. Mr. Sefried stated that the
"tuning of the weapon" enhanced the service ability of the weapon and
that it was still within factory specifications. He stated that the
work done had the following effects on the weapon:
1. The double -action pull was reduced;
2. The initial Full pressure on the trigger was reduced;
3. The single-action pull pressure was only minimally reduced.
Mr. Sefried stated the tuning of the action is desirable for a faster
double -action -- more shots in a shorter time. Additionally, the
tuning makes for a smoother action, however, cutting the rebound
spring and smoothing the parts make a 2-3 pound difference in the
double -action trigger pull. He reported that Smith and Wesson does
not recommend buffing of parts due to the rounding of the part.
Stoning of the part is recommended by the factory. He stated that
glass beading is an abrasive used to give a dull finish to a Smith
and Wesson revolver. Glass beading tends to resist rusting and gives
a nice finish to irregular corners of the weapon. Sefried stated
that Alvarez's weapon had been highly polished, removing the glass
beading effect'on the exterior of the weapon.
On 14 February 1984, Mr. Victory Rybalka, the armorer for the Miami
Police Department, was submitted and accepted as an expert witness in
firearms and as a firearms armorer. Mr. Rybalka provided expert
testimony 'on Smith and Wesson factory specifications and the
recommendation of stoning parts as opposed to buffing or grinding.
Mr. Rybalka testified that Alvarez's weapon was still within factory
specifications, despite the tuning of the weapon.
Sergeant Leasburg was called to testify on 15 February 1984.
Sergeant Leasburg identified the weapon issued to, and used by,
Officer Alvarez as being the weapon he had been issued from 1977-
1981. Leasburg stated the weapon was not as shiny then as it appears
now. He testified he never had any work done to the revolver while
he had it.
Mr. Melvin Zahn of the Metro -Dade Crime Lab also testified on 15
February. Mr. Zahn stated he test fired Officer Alvarez's weapon 110
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times and found it to be operational. Mr. Zahn also stated that he
was unable to determined,, using.,the impressions on the spent
cartridges for comparison, whether Alvarez's weapon was cocked,
single-action, or not when fired on 28 December 1982.
Assistant Medical Examiner, Dr. R. Mittleman testified on 17 February
1984, that he had conducted the post-mortem examination of Nevell
Johnson. He stated that Johnson's wound was from a single gunshot to
the forehead over the left eyebrow. He stated the bullet moved
upward at a 30 degree angle. In addition, there were powder burns on
Johnson's nose and face.
Dr. Mittleman stated that death was caused by a bullet fired from a
.38 caliber weapon which was fired from a distance of between 3-1.2
inches (closer to 3 than 12) from the point of impact. He stated
that with a severe injury such as Johnson's, he would have been in an
unconscious state immediately. Mittleman further stated that with
his motor reflexes inoperative, Johnson would have fallen
immediately.
Dr. Mittleman stated that the body would have fallen towards the mass
portion of the•body as gravity acted upon it. He stated that Nevell
' Johnson's body position could have been consistent with a turning
motion, to his left, continuing after the shot another half turn and
landing on his stomach face down.
Dr. Park Fitzhugh, a psychologist with offices at 2400 S. Dixie
Highway, testified on 28 February 1984. Dr. Fitzhugh stated that he
had never discussed the shooting with Officer Alvarez, however,
Alvarez's alleged reaction to the shooting was typical.
Dr. Fitzhugh was given a series of hypothetical questions based upon
witness testimony of Officer Alvarez's actions following the
shooting. He stated that, in regards to the actions of Alvarez, its
not unusual after a shooting to act in a confused state, to be in an
intense state of shock, to be what is called "depersonalized". These
responses were directed at the action of Alvarez checking to see if
he had been shot. The statement by Alvarez of "Oh, my God! Oh, my
God!" was described by Dr. Fitzhugh as typical.
During cross examination by the state, Dr. Fitzhugh stated that even
though a person intended to fire his weapon in self defense, it was
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Major Raul Martinez, —Commander I.S.rCase No. 7857/R
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times and found it to be operational. Mr. Zahn also stated that he
was unable to determined,, using..the impressions on the spent
cartridges for comparison, whether Alvarez's weapon was cocked,
single-action, or not when fired on 28 December 1982.
Assistant Medical Examiner, Dr. R. Mittleman testified on 17 February
1984, that he had conducted the post-mortem examination of Nevell
Johnson. He stated that Johnson's wound was from a single gunshot to
the forehead over the left eyebrow. He stated the bullet moved
upward at a 30 degree angle. In addition, there were powder burns on
Johnson's nose and face.
Dr. Mittleman stated that death was caused by a bullet fired from a
.38 caliber weapon which was fired from a distance of between 3-12
inches (closer to 3 than 12) from the point of impact. He stated
that with a severe injury such as Johnson's, he would have been in an
unconscious state immediately. Mittleman further stated that with
his motor reflexes inoperative, Johnson would have fallen
immediately.
Dr. Mittleman stated that the body would have fallen towards the mass
portion of the -body as gravity acted upon it. He stated that Nevell
Johnson's body position could have been consistent with a turning
motion, to his left, continuing after the shot another half turn and
landing on his stomach face down.
Dr. Park Fitzhugh, a psychologist with offices at 2400 S. Dixie
Highway, testified on 28 February 1984. Dr. Fitzhugh stated that he
had never discussed the shooting with Officer Alvarez, however,
Alvarez's alleged reaction to the shooting was typical.
Dr. Fitzhugh was given a series of hypothetical questions based upon
witness testimony of Officer Alvarez's actions following the
shooting. He stated that, in regards to the actions of Alvarez, its
not unusual after a shooting to act in a confused state, to be in an
intense state of shock, to be what is called "depersonalized". These
responses were directed at the action of Alvarez checking to see if
he had been shot. The statement by Alvarez of "Oh, my God! Oh, my
God!" was described by Dr. Fitzhugh as typical.
During cross examination by the state, Dr. Fitzhugh stated that even
though a person intended to fire his weapon in self defense, it was
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not unusual for that person to look at himself to see if he had been
fired back at. Dr. Fitzhugh stated,that even though the person being
shot comes up with his hands in the'air, and you shoot him, it is not
uncommon for the officer to check himself to see if he was shot.
Officer Alvarez took the stand to testify on 7 March 1984. Officer
Alvarez began by stating that he had some discoloration and spots on
his revolver and that he had tried to exchange it but was unable to
do so. He stated that he had observed Officer Bequer's revolver
while they were in the academy, and then again at a later date.
Bequer's weapon, when observed later, was described -by Alvarez as all
shiny and had new grips. Alvarez stated that during one of his 3
days off he gave his revolver to Bequer and asked him to have the
same thing done to his revolver. Alvarez reported that he gave
Bequer twenty dollars and his gun; when Bequer returned the revolver
it looked brand new. He stated his original grips were the small
issued wooden grips, however, after checking around with other
officers who had the type he wanted, he purchased the new grips. He
stated he initially understood the grips to be wooden, however, he
since learned that the grips. are plastic. He further stated he did
not know that there was a regulation covering grips.
Officer Alvarez reported that he and Officer Cruz drove into 40
Sector in order to familiarize Cruz with the area. Alvarez stated
they drove the area for awhile before he stopped at the Recreation
Establishment. He stated that when he exited the vehicle he told
Cruz to get his flashlight and holster it. He stated the situation
was not tense; he spoke to some unknown subject as they entered the
game room. Alvarez stated that they walked in, continued south
between the machines, by the kitchen area to the machines on the
south wall. He stated they then walked around the machines in the
center section and back towards the door.
Officer Alvarez stated as they neared the door he looked over at a
black male playing a video machine. Alvarez stated he could see the
left side of the subject around the Robotron machine and he appeared
to have a bulge. He stated something was wrong and he just wanted to
check it out. Alvarez stated he told Cruz to come and they walked
towards the subject. Alvarez stated he observed the bulge on
Johnson's
left hip as he approached.
Officer Alvarez stated he came up wit
the bulge. At the same time, Alvarez
is this?" Johnson reportedly replied,
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his right hand and put it on
stated he asked Johnson, "What
"It's a gun." Alvarez stated
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that he pulled his revolver and switched hands. He was then holding
Johnson's gun through Johnson's sweater, with his left hand and his
own police revolver with his right. Alvarez stated that Johnson then
stood up and turned his head; his hands left the video machine. At
that time, Alvarez stated "Don't move," he demonstrated how he moved
his face near Johnson's and talked through clenched teeth.
Officer Alvarez demonstrated how he fumbled with Johnson's sweater
while attempting to get Johnson's gun. Alvarez stated he could not
get the gun, so he told Johnson, "We're going to get out of here.
And you're not gonna give me any trouble". Alvarez stated Johnson
looked at him. Alvarez stated he turned slightly, looking towards
Cruz, he told Cruz to get Johnson's gun. He then changed his hold
from the area of the gun to Johnson's left shoulder. Alvarez then
demonstrated how he placed his revolver up near Johnson's face where
Johnson could see it. According to Alvarez, the barrel of his weapon
was pointing straight up, towards the ceiling.
Officer Alvarez stated that when he turned toward Cruz, he felt a
pulling. He stated he lost the grasp he had. Alvarez stated he
started to turn; he could not see Johnson's rands. He stated he saw
the upper part of Johnson's right arm. Alvarez stated that when he
saw Johnson's right hand come across his waist he knew he was dead.
He stated it went through his head "he's got me, I'm dead." Alvarez
stated that's when he really got frightened, really scared. Alvarez
stated he thrust his gun at Johnson's head and fired.
Officer Alvarez stated that the first thing he thought was that he
had been shot. He said he knew Johnson fell, but he did not know if
they had fired simultaneously or not. Alvarez stated he did not know
for sure if Johnson had actually gotten a hold of the gun or not.
Alvarez stated that Johnson looked younger, and his first thoughts
were that he had shot a kid.
Officer Alvarez stated that there was a lot of blood and he went into
a kind of fog. He heard a noise of some kind, possibly a blowing
sound, from Johnson which made him realize he had to get help. He
stated that he ran to the front of the arcade to request fire rescue.
He stated he remembers making the radio call, but doesn't remember
the exact words of the transmission; he has since heard the tape.
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While outside, Officer Alvarez stated he asked Cruz if he got the gun
and Cruz answered no. Alvarez am d Cruz then went back inside;
Alvarez stated the gun was barely in Johnson's waistband. Alvarez
stated that he doesn't know if Johnson was able to grab the gun, or
it was jarred loose when lie fell.
Alvarez stated that regarding the radio transmission when he stated
the "gun went off", he doesn't remember too many specifics. He
stated he could not bring himself to say I shot this kid. He stated
he still has nightmares of Johnson lying on the floor with "all the
blood and everything".
Alvarez stated, "I didn't want to shoot --he made the decision to
turn. I intentionally shot, it was no accident. I never cocked my
gun, I never cocked my gun."
During cross examination, Alvarez stated he never met the guy who
worked on his gun. He stated he gave his gun to Officer Bequer who
had the polishing done. Alvarez stated he wasn't aware of a
departmental policy against polishing weapons.
Alvarez stated he had very little recollection of things said to
Olon, Buhmaster, Cheatham and Cotera. Alvarez further stated he
doesn't remember telling Cheatham the gun was in the small of
Johnson's back. Alvarez stated he doesn't remember demonstrating
Johnson's moves, or moves made by him. (For complete details, see
Officer Alvarez's transcript of testimony in the case file).
On 9 March 1984, Mr. Luis Rivera was called to testify. Mr. Rivera
identified Officer Alvarez's weapon as being the one he polished
after it was given to him by Officer Bequer. Rivera stated he has
worked on rebound springs before and knows the cut end has to be
flattened. He stated he never worked on the interior portion of the
weapon. He stated he opened the side plate to clean out the dust and
had he seen a spring out and not flattened he would have corrected
it. Rivera stated he did not see that when he opened Alvarez's
weapon. Mr. Rivera stated that he had ;net Alvarez around the
holidays, prior to New Years, in 1983• Rivera stated he met Alvarez
at Officer Bequer's house; he was told it was Alvarez's gun he had
worked on.
Sergeant Cheatham was called to testify on 9 March 1984. The
following is a synopsis of his testimony regarding his conversation
with Officer Alvarez while on the scene of 1495 N.W. 3rd `Avenue:
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Sgt. Cheatham testified that Officer Alvarez demonstrated the
position of Johnson's gun as being in "the small of the back".
Cheatham stated Alvarez indicated he had his left hand on Johnson's
shoulder and that he had his weapon in an upward position; between
himself and Johnson. Cheatham testified that Alvarez stated Johnson
turned suddenly, he (Alvarez) jerked back, and a shot went off.
Cheatham reportedly asked Alvarez if his gun was cocked (single-
action) or uncooked (double -action). Cheatham testified Alvarez
responded, "I don't recall." (See the trial transcript of Sergeant
Cheatham's testimony in the case file for details)..
Following closing arguments by Mr. Abe Laeser for the state and Mr.
Roy Black for the defense, the jury retired to the jury room at 1805
hours on 15 March 1984. At 2115 hours the jury returned and
announced their verdict of not guilty.
Stanley Marcus, United States Attorney for the Southern District of
Florida announced, on 11 September 1984, the results of the Federal
Civil Rights Investigation into the shooting death of Nevell Johnson
by Officer Luia Alvarez. The United States Attorney's office and the
Civil Rights Division of the Department of Justice concluded that
there was insufficient evidence to justify seeking a Federal
indictment of Luis Alvarez under the federal civil rights statutes.
Accordingly, the investigation was closed. (For complete details,
see the press release from the U.S. Attorney's office in the case
file).
Officer Bequer was interviewed on 26 September 1984. Sergeant
Chapek, acting as employee representative for Officer Bequer, was
present throughout the interview. Also present during the statement
was Sergeant Hale of Internal Security. The complete text of Officer
Bequer's sworn statement is maintained in the Internal Security case
file.
Officer Bequer reported that shortly after his graduation from the
police academy he had certain work performed on his City issued
service revolver. He described having a "trigger job" done at
Continental Gun Shop. Officer Bequer subsequently furnished a paid
receipt. from the Continental Gun Shop, 8235 S.W. 40th Street. The
receipt indicated that a "red insert" was installed within the front
sight, and the "action honed", of a weapon identified as belonging to
an "Officer Bequer #1361". Departmental records reflect that the
City badge issued to Officer Bequer is numbered 1361.
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Officer Bequer further advised that sometime after having the
interior work completed, he had the -.exterior surface of his stainless
steel revolver "buffed". The exterior finish of Officer Sequer's
weapon was polished to a highly reflective sheen. The polishing was
done by a friend of Officer Bequer. The friend was identified as
Luis Edwardo Rivera; the nephew of Bequer's neighbor. Officer Bequer
stated that he did not request, nor give permission to, Mr. Rivera to
perform any interior work on his weapon. However, Officer Bequer did
recall that when he retrieved his revolver from Mr. Rivera, Rivera
pointed out that he had discovered a "rough" end on a cut spring
inside Bequer's weapon. While cleaning the inside of Bequer's
weapon, after the polishing process, Rivera reportedly noticed a
spring that had been previously cut; presumably by the craftsman at
Continental Gun. Mr. Rivera informed Officer Bequer that he had
simply finished off the rough, out end of the spring.
When asked whether or not he had received permission prior to having
any of the work in question done to his City issued revolver, Officer
Bequer stated, "None whatsoever". Officer Bequer advised that he was
not aware of the Departmental Order requiring authorization by the
Supervisor of Firearms Training prior to any refinishing, repair or
adjustment being made to a City revolver. However, he did
acknowledge his responsibility to be familiar with and comply to,
written orders.
Officer Bequer advised that he and Officer Luis Alvarez were
classmates while attending the Southeast Florida Institute of
Criminal Justice. The two officers graduated from Basic Law
Enforcement Class 53. Officer Alvarez was described by Officer
Bequer as a "friend".
Officer Bequer recalled that approximately one year prior to the 28
December 1982, shooting of Nevell Johnson, he and Officer Alvarez had
the opportunity to ride as a two man unit for a tour of duty on
Platoon B. Reportedly, during that shift, Officer Alvarez noticed
the finish on Officer Bequer's weapon. Officer Alvarez commented on
the revolver's appearance and then inquired of Bequer, "Do you think
he (Rivera) could do the same thing to my gun that he did to your's?"
Officer. Bequer replied that he would ask his friend (Rivera).
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I.S. Case No. 7857/R
Sometime later Officer Alvarez recontacted Officer Bequer. Officer
Alvarez, on one of his days off, gave Bequer his City issued service
revolver. Alvarez told Bequer, "I would like my gun to look like
your's." Officer Bequer proceeded to pass on to Mr. Rivera,
Alvarez's weapon and instructions. There was no doubt in Bequer's
mind that Rivera understood, and intended only, to polish the
exterior of Alvarez's weapon. After Rivera polished the weapon he
gave it back to Bequer. The revolver was then returned to Alvarez by
Bequer. Officer Bequer advised that he had no knowledged of who,
when, or where the interior of Alvarez's weapon was.modified.
According to Officer Bequer, he was never present at, nor did he
arrange, a meeting were Mr. Rivera was introduced to Officer Alvarez.
Furthermore, Officer Bequer stated that he has not discussed th'e
events of 28 December 1982, nor any aspect of this investigation,
with Officer Alvarez.
Officer Bequer advised at the time of his interview that he was not
willing to submit to a polygraph examination in connection with this
investigation. (See Officer'Bequer's statement in the case file for
additional details).
Lieutenant Leasburg was interviewed on 9 October 1984. As previously
reported Lieutenant Leasburg, who at the time was a Sergeant, was
called to testify during the manslaughter trial of Luis Alvarez.
Prior to Alvarez being issued his service revolver, the weapon was
issued to Leasburg. Leasburg was issued the revolver on 18 February
1977, and returned the weapon on 25 March 1981. These dates were
established through departmental records.
Lieutenant Leasburg maintained, as he did in court, that there were
no interior or exterior alterations made to the weapon during the
time it was issued to him. He advised that when he first received
the revolver, he took it to the range where the side plate was
removed by the Range Master. Upon the side plate being removed, Lt.
Leasburg floated out all dust and dirt inside the weapon by using
cleaning solvent. He then utilized the air hose, located in the
range, to pueumatically remove the solvent. The side plate was
replaced by the Range Master. While the side plate was removed, Lt.
Leasburg reportedly observed machine marks on the inside portion of
the plate and interior portion of the weapon's frame. The exterior
of the weapon was described as a dull stainless steel finish.
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Major Raul Martinez, Commander
Internal Security Unit
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During his court appearance, Lt. Leasburg examined the exterior
finish of the weapon. The revolver"appeared to be very shiny; unlike
when Leasburg possessed the weapon. Lt. Leasburg also observed
photographs of the interior of the weapon while in court. According
to Leasburg, the interior did not appear to be the same. Some of the
machine marks Leasburg had observed, previously described, were no
longer visible. Both the interior and exterior appeared different to
Lt. Leasburg from when he was issued the weapon. He was not asked to
test the trigger pull in court.
At the time of his statement L. Leasburg stated that he would
participate in a polygraph examination if it were deemed necessary in
connection with this investigation. (See statement in case file for
complete details).
On 8 May 1985, Lieutenant Leasburg participated in a polygraph
examination. The following relevant questions were used:
Test #1 and #2
1) 5. Did you, yourself make any alterations to the internal
parts of the gun used by Alvarez?
2) 7. Did you allow anyone other than yourself to make internal
alterations to the gun used by Alvarez?
Lt. Leasburg answered, "no" to each of the questions during each- of
the tests. A careful analysis of the polygraph examination revealed
"no significant deception" (see the polygraph examination report in
the case file for details).
Officer Seiglie was interviewed on 24 October 1984. He was
represented by Ms. Lori Barrist, an Attorney. Sergeant Hale of
Internal Security was present during the interview. The following is
a synopsis of Officer Seiglie's statement:
Officer Seiglie was called upon to testify during the State vs. Luis
Alvarez trial on February 27th and 28th, 1984. Two areas of Officer
Seiglie's testimony concerned the polishing of his city issued
service revolver and the number of arrests that he made in the
vicinity of 1495 NW 3rd Avenue. As a result of his testimony several
questions were raised concerning possible departmental violations on
the part of Officer Seiglie.
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During his testimony Officer Seiglie stated that he had given his
weapon to Officer Bequer to be polished. Officer Seiglie again
acknowledged during his interview that he had given his city issued
revolver to Officer Bequer so that Bequer could have the weapon
polished. According to Seiglie this occurred, to the best of his
recollection, sometime in 1980 or 1981. A friend of Officer Bequer's
was to polish the exterior portion of Seiglie's revolver. No
interior work was to have been undertaken. In fact, Officer Seiglie
reported that he has never had any interior work performed on his
weapon.
Officer Seiglie admitted that he did not have permission from the
Supervisor of Firearms Training prior to having his revolver
polished. He advised that he was unaware of the "specifics" outlined
in Departmental Order 7, Chapter 12, which addressed work performed
on city issued weapons. Officer Seiglie stated that he did not
believe that the polishing of the exterior of his revolver fit into a
category prohibited by departmental writings. Officer Seiglie
reported that the purpose of polishing his weapon was "to make it
look better, shiny".
As identified above, Officer Seiglie testified in court as to the
number of arrests he had made in the vicinity of 1495 NW 3rd Avenue.
If one were to review the trial transcript of Officer Seiglie's
testimony, it could appear as though he exaggerated certain details
or facts concerning the actual number of arrests he made in the area
in question. Specifically, under cross examination Officer Seiglie
was questioned concerning how many arrests he had made during 1982
"in the immediate vicinity of 1495 Northwest 3rd Avenue"? His
response was, "I could only give you an estimate, 20". Officer
Seiglie was then shown, and asked to examine, a computer print out
prepared by the department. Officer Seiglie was unable to identify
any of the arrests made in 1982 within a one block area of the game
room.
When asked to explain the apparent differences in testimony, Officer
Seiglie gave the following explanation. He advised that when first
asked about the number of arrests in the "vicinity", that he answered
according to his definition of "vicinity". Vicinity to Seiglie
referred to an area of roughly five blocks in either direction of the
game room. When questioned the second time the State Attorney
referred to the "area of the game room".
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A review of Officer Seiglie's worksheets, furnished by the officer,
reveals that he made, or assisted in making at least twenty arrests
within his definition of "vicinity". These arrests ranged from
traffic arrests to apprehending armed robbery suspects. His
worksheets also reveal two arrests within a one block area of the
game room and a recovered stolen vehicle at 1495 NW 3rd Avenue.
These notations were verified by a independent review of Officer
Seiglie's worksheets conducted by Internal Security. A computer
check, using various methods, was also completed by Internal
Security. The results of the computer runs revealed an unreliable
data base. In other words, the computer information changed
depending on "who" compiled the information. Four separate computer
runs were made by Internal Security: Management of Criminal
Information (M.C.I.), Crime Analysis (Operations), Department of
Computers (Tigertail location), and the C.A.R.E. system all produced
different results.
Officer Seiglie gave a rather liberal interpretation of "vicinity";
at the same time the State Attorney should have structured his line
of cross examination in a more explicit manner. As for the implied
allegation that Officer Seiglie exaggerated any portion of his
testimony, this investigation has failed to establish any wrong
doing, intentional or otherwise, on his part concerning said
testimony.
Officer Seiglie stated that he would not be willing to submit to a
polygraph examination in connection with this investigation (see
Officer Seiglie's statement in case file for complete details).
Officer Alvarez was interviewed on 13 November 1984. Present during
the interview, besides Officer Alvarez and myself, were Sgt. Hale and
Lt. Reynolds of Internal Security; Mr. Joel Maxwell of the City Law
Department; and Mr. Joseph Ingraham of the Office of Professional
Compliance. Also present were Officer.Alvarez's Attorneys Mr. Mark
Seider, Mr. Roy Black, and Mr. Bob Klausner. Ms. Martinez, a notary
and stenographer, recorded the statement. Officer Alvarez's
statement to Internal Security was consistent with his testimony
durinu the trial. (See his statement in the case file for details).
Sergeant Ina Miranda was interviewed on 16 November 1984. Present
during the interview, acting as her employee representative, was
Sergeant Cox. The following is a synopsis of Sergeant Miranda's
statement:
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Major Raul Martinez, Commander
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I.S. Case No. 7857/R
Sergeant Miranda reported that she had the exterior portion of her
city issued revolver polished. She explained that her husband,
Officer "Pete" Miranda, had previously had his service revolver
polished and that afterwards he asked if she would like her weapon
buffed. Sergeant Miranda recalled that her husband's revolver had a
nice appearance so she indicated to him that she would indeed like
her weapon polished. Reportedly, Officer Miranda took Sergeant
Miranda's weapon and gave it to Officer Rommel Bequer. Officer
Bequer either had a relative or a friend who then polished her
revolver, just as her husband's had been. Sergeant Miranda advised
that she does not know the person who did the buffing.
Sergeant Miranda stated that as she understood the process only the
exterior portion of her weapon was to have been polished. She advised
that to the best of her knowledge no other work has ever bean
performed on her weapon. Sergeant Miranda admitted that she had not
received permission from any departmental source, regarding the
polishing of her weapon, prior to having her weapon buffed. Sergeant
Miranda reported that she was under the impression that the polishing
of the exterior portion of her service revolver was not considered a
"refinishing" process; rather refinishing to her meant having the
weapon nickel plated, or the like.
Sergeant Miranda advised in closing that she would not be willing to
submit to a polygraph examination in connection with her statement.
(See her statement in case file for details).
Also interviewed on 16 November 1984, was Officer Gonzalo Miranda.
Sergeant Cox acted as Officer Miranda's employee representative. The
following is a synopsis of his statement:
Officer Miranda reported that during the later part of 1982, he had
the exterior portion of his City issued service revolver polished.
He recalled that prior to having his weapon buffed, he had noticed
Officer Bequer's revolver and had commented on its high gloss
appearance. Inquiring of Officer Bequer, Officer Miranda discovered,
that for a fee, he could also have his weapon polished. Continuing,
Officer Miranda stated that he gave his City weapon to Officer Bequer
so that Bequer could take it to a friend who would buff the exterior
surface of Miranda's revolver. Officer Miranda could not recall the
name of Officer Bequer's friend who polished his weapon. Upon the
return of his weapon, Officer Miranda asked his wife, Sergeant Ina
Miranda, if she would also like her weapon buffed. After receiving an
affirmative reply, Officer Miranda arranged,.through Officer Bequer,
for the polishing of Sergeant Miranda's City issued weapon.
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Major Raul Martinez, -Commander
Internal Security Unit
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I.S. Case No. 7857/R
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In both cases, Officer Miranda stated that, as he understood the
process, only the exterior surface portions of the weapons were to be
polished. No interior work was expected, or intended, to be
performed by Officer Bequer's friend. After having his weapon so
polished, Officer Miranda reportedly noticed no difference in the
functions, or serviceability of the firearm. Officer Miranda
acknowledged that he did not seek, nor receive, prior permission from
any departmental source before he had the weapon polished.
In conclusion, Officer Miranda stated that he was. not willing to
partake in a polygraph examination related to this investigation.
(See statement in case file for details).
On 19 November 1984, I contacted Mr. Al Garcia, co-owner of
Continental Gun Shop, 8235 SW 40th Street. Mr. Garcia verified the
authenticity of the receipt presented by Officer Bequer following his
statement, as being a receipt for work performed at his shop.
Specifically, the receipt indicated a "red insert" (front sight) and
the "action honed" (trigger -action smoothered). Mr. Garcia could not
identify who had performed the actual work, however, after speaking
with Mr. Garcia there was no reason to question the validity of the
receipt.
Sergeant John Chapek was interviewed on 30 November 1984. The
following is a synopsis of his statement:
Sergeant Chapek advised that he had the exterior portion of his City
issued service revolver polished. He reported that some time ago,
while in the Motor Office, he had observed Officer Bequer's service
revolver in Bequer's holster; the weapon was described as "in a
highly polished state." At that time, Sergeant Chapek asked Officer
Bequer if he had the weapon chrome plated. Officer Bequer reportedly
advised Sergeant Chapek that the revolver was not chromed, but that
he had a friend who "polishes weapons." Upon discovering that the
cost was "nominal", Sergeant Chapek gave his City weapon to Officer
Bequer; some three or four days later Bequer returned it, polished,
to Sergeant Chapek.
Sergeant Chapek reported that it was only in the course of acting as
employee representative for certain officers interviewed concerning
this investigation, that he learned the name of Officer Bequer's
friend. Prior to that, at the time his weapon was polished, Sergeant
Chapek stated that he did not know the individual who had performed
the work.
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Major Raul Martinez, Commander I.S. Case No. 7857/R
Internal Security Unit
Continuing, Sergeant Chapek stated that to his knowledge only the
exterior surface portions of his revolver were to have been polished
by Officer Bequer's friend. Sergeant Chapek said he wanted his
revolver "to resemble a chrome weapon."
Sergeant Chapek stated that he was aware of Department Order 7,
Chapter 12, which in part addresses repair, refinish, or adjustments
of City weapons, at the time he had his weapon polished. It was
Sergeant Chapek's understanding that the same type of surface could
be brought to bear by using a rouge polish and a.rag, which in his
estimation would not be any alteration whatsoever to the weapon. The
only difference, according to Sergeant Chapek, was that Bequer's
friend utilized a wheel to polish the revolvers. As Sergeant Chapek
saw it, the polishing was merely maintenance.
In conclusion, Sergeant Chapek advised that he would not willing tc
submit to a polygraph examination concerning this investigation.
(See statement in case file for details).
Officer Sharpsteen was also interviewed on 30 November 1984.
Sergeant Chapek, acting as employee representative for Officer
Sharpsteen, was present during the interview.
Officer Sharpsteen acknowledged that he had the exterior portion of
his city issued service revolver polished to a high sheen. According
to Officer Sharpsteen, he asked Officer Bequer to arrange for
Bequer's "uncle" or "friend" to polish, to a shine, the outside of
his weapon. For this service, Officer Sharpsteen paid somewhere
around twenty-five dollars. It was reportedly Officer Sharpsteen's
understanding that only the exterior portions of his city weapon were
to be buffed or polished. The weapon was polished merely to enhance
the appearance of the firearm. The only interior work, to the best
of his knowledge, performed on Officer Sharpsteen's city weapon was
the modification completed by the departmental range personnel which
removed the single action capability from the revolver.
Officer Sharpsteen stated that he was not aware of Departmental Order
7, Chapter 12, as related to refinishing, adjustments or repairs made
to city issued weapons. However, he advised that he did not think
that the buffing was a repair or a refinish at the time his weapon
was polished.
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Major Raul Martinez, Commander
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I.S. Case No. 7857/R
At the time of his statement, Officer Sharpsteen advised that he
would be unwilling to participate in a polygraph examination in
reference to this investigation. (See statement in case file for
details).
During the course of the Internal Security investigation, all weapons
discovered to have been polished by Mr. Rivera were inspected by the
departmental armorer, Victor Rybalka. In each instance, a written
report documenting the results of that inspection was prepared and
placed in the I.S. case file along with the statement of the
concerned officer. The purpose of this procedure was two fold,
First, it was of upmost importance to determine if these weapons were
safe and within departmental guidelines; worthy of street use.
Secondly, to determine if there was a distinct pattern in the
workmanship performed.
Officer Bequer was the "common link" between Mr. Rivera and those
officers discovered with "polished" revolvers. The inspection of
Bequer's weapon revealed seven items that had been polished in an
attempted to perform a smooth operation of internal parts. The
following parts were polished:
1. Cylinder stop - the bevel was cut and polished.
2. Trigger - both the bevel and the hook were polished.
3. Hand - the throat was polished.
4. Rebound Block - bottom was polished.
5. Rebound Seat - Rounded and polished
6. Hammer - Rebound Seat, foot, nose
7. Sear - Front return face.
In addition the front sight had been out and a red ramp installed.
Also, the strain screw had been replaced with one of steel
composition.
All of the above modifications were done without the knowledge of the
range master and would be in violation of Departmental Order 7
Chapter 12; sub paragraphs 12.5.1, 12.5.2, and 12.5.3.
As for the service revolvers issued to Officers Seiglie, Miranda, and
Sharpsteen, as well as, Sergeants Chapek and Miranda, the following
was revealed and common to each:
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Major Raul Martinez, -Commander I.S. Case No. 7857/R
Internal Security Unit
A. The exterior of the weapons were highly polished.
B. No internal parts were altered, stoned or polished.
C. Weapons meet factory specifications.
D. Single action modifications had been performed.
The same inspection of Officer Alvarez's weapon, a Smith and Wesson
model 64-1, serial number D640733, revealed the following:
A. Exterior of the weapon was highly polished.-
B. Grips of plastic composition.
C. Side plate bearing surface buffed.
D. Hammer block buffed.
E. Buffed: Hammer, sear, hammer nose, rebound seat, cocking
notch.
F. Rebound spring trimmed to 15 1/2 coils.
G. Buffed rebound block, rebound block hammer seat.
H. Buffed trigger, trigger bevel, trigger hook.
I. Buffed cylinder stop, cylinder stop bevel.
J. Buffed rear bolt, rear bolt leg, front bolt leg.
K. Excessive side plate tolerance.
L. Single action notification not performed.
It should be noted that, concerning item "L single action
modification...", at the time of the discharge the departmental
policy of removing the single action capability from all service
revolvers had not yet been established.
On 15 April 1985, I requested Victor Rybalka contact a representative
of Smith and Wesson in an effort to gain a definitive answer
regarding whether or not polishing a stainless steel weapon was
considered by the factory to be a refinishing process. In turn
Ryblaka contacted Mr. Gene Davis, service manager at Smith and
Wesson. Mr. Davis advised that the polishing, or buffing if you
like, of a stainless steel weapon was considered a refinish of the
factory surface. (See Ryblaka's memorandum in the case file).
Per departmental orders, Internal Security does not make a
determination concerning the actual discharge of a firearm. Rather,
discharge reports are referred to, and reviewed by, the Discharge of
Firearms Advisory Committee. It is the committee's responsibility to
determine if the discharge of firearm is in compliance with Florida
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Major Raul Martinez, Commander I.S. Case No. 7857/R
Internal Security Unit
State Statutes; Civil Service Rules and Regulations; and Departmental
Rules and Regulations, Orders, SO.P's, and Policy. However,
Internal Security is responsible to determine violations of
administrative policies and procedures.
FINDINGS:
A finding related to the singular act of the discharge of firearm by
Officer Luis Alvarez will be determined by the Discharge of Firearms
Advisory Committee. (See D.0.7, Ch 13; paragraph 13.6.5).
The investigation by Internal Security determined the following
violations of administrative policies and procedures:
1. Allegation against Officer Alvarez of Untruthfulness;
Substantiated.
The substantiated charge of untruthfulness is based upon conflicting
statements made by Officer Alvarez. During his emergency radio
transmission, immediately following the shooting, Officer Alvarez
stated" .... somebody pushed me and a shot went off...". (See
transcript of the transmission referred to in the body of this
report, or to a copy of the communications tape in the case file).
In addition to the radio transmission, according to the testimony of
Sergeants Cheatham and Olon, as well as, Detectives Buhrmaster and
Cotera, Officer Alvarez made statements while on the scene
indicating: "Officer Alvarez jerked back and that a shot went off";
"The gun went off"; "...he says he jerked back and his gun
discharged"; and "...his gun went off". (See the individual
depositions and court transcripts for details of statements made by
Officer Alvarez following the shooting). Immediately following the
discharge, in the radio transmission and statements, Officer Alvarez
stated that the shot went off or the gun went off. However, during
his trial testimony and his statement to Internal Security, Officer
Alvarez reported that he fired the shot that killed Nevell Johnson,
Jr. intentionally, in self-defense. Both cases cannot be truthful,
as each are diametrically opposed and conflicting. Officer Alvarez's
explanation of the conflict is that following the shooting he was in
a "fog" and does not remember what he said over the radio or on the
scene. Dr. Fitzhugh, a psychologist, testified that Officer
Alvarez's "reaction was typical", however, Dr. Fitzhugh never spoke
to, or discussed with, Officer Alvarez about the events of 28
December 1982. Yet, Cheatham, Buhrmaster, and Olon testified that
Alvarez did not show any visible signs of stress while on the scene.
Only Cotera reported that Alvarez appeared nervous.
Page (44)
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Major Raul Martinez, Commander
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Officer Alvarez is in violation of:
I.S. Case No. 7857/R
Department of Police, Manual of Rules and regulations,
Chapter 3; 3.103 Truthfulness
3.103.1 Members to be Truthful: Any member who departs
from the truth, either in giving testimony, or in
connection with any official order received by him, or
in his official duties, shall be considered in
violation of this rule, and subject to charges being
filed. Members and employees are required to speak
the truth at all times and under all circumstances,
whether under oath or otherwise, except in cases where
they are not allowed by Rules and Regulations to
divulge the facts within their knowledge, in which
case they will say nothing.
2. Allegation against Officer Alvarez of Improper Procedure;
Substantiated.
On 28 December 1982, Officers Alvarez and Cruz were assigned to Unit
238, a roving Patrol Unit assigned to address known problems within
30 sector. As senior officer and F.T.O., Officer Alvarez was
responsible for the decisions and conduct of the unit. It has been
documented that Unit 238 did not ask for, nor receive, permission to
leave their sector to check the game room at 1495 NW 3rd Avenue. On
face value, this is a violation of Departmental Order 9, Chapter 2,
which addresses "zone boundaries". It is therefore, appropriate for
Internal Security to cite this violation. However, there are
extenuating circumstances that also need to be addressed for
consideration. The officers, at Alvarez's initiative, were out of
their assigned patrol area without permission, however, they were
only four blocks out of their area and within a sector where they
would routinely receive numerous primary and back-up calls for
service due to their roving unit status. Furthermore, as pointed out
in Major Mahoney's memorandum of 6 January 1983, "...the officers
were involved in police related matters undertaken by their own
volition as opposed to conducting personal business out of their
assigned area." The memo continued, "Based on the officers
motivation..., it is difficult not to sanction this kind of self -
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Major Raul Martinez, Commander I.S. Case No. 7857/R
Internal Security Unit
initiated activity by a training officer. "(See memorandum in the
case file, or refer to previous discussion of the matter in this
report).
Officer Alvarez is in violation of:
Departmental Order 9, Chapter 2:
2.0 Zone Boundaries. The City is divided into 7 sectors
and 42 patrol zones. A unit shall patrol within the
assigned zone unless authorized otherwise by the
Sector Sergeant. Zones not covered by a unit due to
resource shortages will be delegated to an adjacent
unit by the Sector Sergeant for routine patrol.
During the course of the Internal Security investigation, a common
practice among departmental personnel was revealed. The practice
consisted of members having the exterior of their city issued service
revolvers polished, or buffed, to a reflective high sheen. It is a
well documented and widely publicized fact, that certain work had
been performed 'on Officer Alvarez's service revolver. Including
Officer Alvarez's weapon, a total of seven revolvers were examined
after it was learned that all were "buffed" by Mr. Luis Rivera. In
each case, the exterior of all the weapons had been polished. Only
Officer Bequer's and Officer Alvarez's revolvers had some form of
interior work performed. Bequer was able to produce a receipt for
the work on his weapon from Continental Gun Shop. Alvarez disclaimed
any knowledge of the interior work on his weapon.
The point here is not who performed the work, all seven remained
within factory specifications, but that the work was performed at
all. Departmental Order 7, Chapter 12, covers "Firearms and
Ammunition Specifications" for the Miami Police Department. A strict
interpretation of the departmental order indicates that all seven
members who's weapon were polished are in violation of said order.
However, the seven weapons are only a small sampling of the practice.
One need only observe uniformed personnel to see that the buffing of
stainless steel weapons is perhaps the rule rather than the
exception. Perhaps the same could be said about "actions honed" or
"interior work".
The same could be said about the plastic grips Officer Alvarez placed
on his weapon. These plastic grips which appear with a wooden grain
are popular among uniformed personnel. The fact that they were
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I.S. Case No. 7857/R
widely used indicates the failure of inspections to recognize them as
either a violation or, more important,, as a hazard.
A review of departmental policy concerning the external and internal
modification of service revolvers, as well as, the prohibition of
plastic grips may be in order. The review should determine if these
policies are in need of revision or modification. In absence of this
review the following violations are cited:
3. Allegation of Im ro er Procedure (unauthorized modification of
service weapon ; u stantiated against the following:
Officer R.
Officer J.
Officer L.
Officer G.
Officer M.
Sergeant I.
Sergeant J.
Bequer #0354
Seiglie #6370
Alvarez #0113
Miranda #4820
Sharpsteen #6400
Miranda #4817
Chapek #1020
The above are in violation of:
Departmental Order 7, Chapter 12;
12.5.2 Firearms repair. All firearms in need of refinishing,
repair or adjustment will be taken to the Supervisor of
Firearms Training for an authorization to have the
necessary work completed. This authorization will be in
writing. The vendor doing the repair will be required to
validate the repair authorization by a statement as what
repairs were made, cost of repair and identification of the
craftsman doing the work.
In addition Officer Alvarez is in violation of:
Departmental Order 7, Chapter 12;
12.1 FIREARMS
12.1.1. Specifications for the Basic Firearm Utilized b
Uniform Sworn Personnel.
Page (47)
86 -154
♦ �a
K
Major Raul Martinez, Commander
Internal Security Unit
Grips:
RH:mc
Page (48)
A(
I.S. Case No. 7857/R
Wooden or hard rubber, checkered or smooth finish.
Members wishing to 'replace issued grips will do so
at their own expense. Change of grips must be
approved by the Supervisor of Firearms Training.
86-154
ALVAREZ, LUIS
EMPLOYEE NAME
ter'
S.O.P. C5b
Annex 1
Page 4 of 6
0113
POLICE I.D. NUMBER
DISCHARGE OF FIREARMS REPORTS
FIREARM
DATE TYPE
38 Dec. 82 Service Revolver,
S & W Wd 64-1,
.38 Cal, Ser. #
0640733
i
i
I
SYNOPSIS AND
INCIDENT NUMBER
Ofc. Alvarez and
p4rtner, Ofc. Cruz,
entered the game
roan at 1495 NW 3rd
Avenue. Alvarez
discovered a Subj.
with a revolver con-
cealed in the waist-
band of his pants.
During brief period
of contact a single
round was discharged
fran Alvarez's
weapon. Subject was
struck and subse-
quently died as a
result. '
Inc. #3623760G
SUPERVISORS
Lt. Ka mesh and
Sgt. Olan
FINDINGS
Refered to dis-
charge of firear
advisory carmitt
8f --154
ON
CITY OF MIAM1, FLORIDA
INTEROFFICE MEMORANDUM
TO. Clarence Dickson DATE: July 17, 1985 FILE. INV 11
Chief of Police
SUBJECT Discharge of Firearms
Advisory Committee
.E.'l2t
er Anderson, Jr. REFERENCES: Ofc. L. Alvarez — I.S. Case #7857
De y fief ENCLOSURES:
Uniform Services Bureau
The Firearms Advisory Board convened on July 17, 1985 to review the shooting
case involving Luis Alvarez I.S. Case #7857R.
Attached are the board members' findings and recommendations on this case.
PLA:dl
Attachments
CITY OF MIAM1, FLORIOA
INTEROFFICE MEMORANOUM
TO. Clarence Dickson OATS: July 17, 1985 FILE. I411 11
Chief of Police
SusJECT. Discharge of Firearms
Advisory Committee
FROM! Per Anderson, Jr. REFERENCES: I.S. rase #7857R - Ofc. L. Alvarez
Deputy Chief
Uniform Services Bureau ENCLOSURES:
The Discharge of Firearms Advisory Committee convened on Wednesday, July 17,
1985. The Committee was comprised of:
Com•ittee Chairman:
Patrol Commander:
Staff Member:
administrator:
The case reviewed was I.S. #
Officer Involved:
C/O Reporting:
I.S. Reporting:
Deoutv Chief Perry L. Anderson, Jr.
Colonel Billy R. Riggs
Colonel John Fonner
Off. E. Martinz Off. M.E. Fernandez
7857R
Luis Alvarez #0113
Captain Peter Kamenesh
Sgt. Robert Hill
YES NO
X 1. Is this discharge of firearm in compliance with the Florida
State Statute, Dept. Rules and Regulations, and Dept. Orders:
(If no, mandatory comments necessary)
YES NO
X 2. Were written directives sufficient to provide adequate
direction to the officer in this particular incident? (If no,
mandatory comments necessary)
YES NO
X 3. Was shooting accidental?
4. Committee's recommendation to Chief of Police: The committee
members all agreed that Officer Alvarez acted within Fla.
State Statutes and City of Miami Police 5epartment guidelines
in re erence to this shooting. The committee recommends that
training Deg reinforced in the areas -of -Dept. Order, 7, Chapter
1 .('_ `-awing_ _ofirearms) and Chapter 13.3 Discharge off'
86-154 -
k
s
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