STATE OF FLORIDA v. KIMBERLY D. FOSTER

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT STATE OF FLORIDA, Appellant, v. KIMBERLY D. FOSTER, Appellee. No. 4D21-135 [July 21, 2021] Appeal from the County Court for the Nineteenth Judicial Circuit, Martin County; Kathleen H. Roberts, Judge; L.T. Case Nos. 432020MM001135A and 432020AP000009. Ashley Moody, Attorney General, Tallahassee, and MaryEllen M. Farrell, Assistant Attorney General, West Palm Beach, and Bruce H. Colton, State Attorney, and Marcus A. Johnson and Nirlaine Tallandier Smartt, Assistant State Attorneys, Fort Pierce, for appellant. Louis G. Carres, West Palm Beach, and John Musca of Musca Law, Naples, for appellee. DAMOORGIAN, J. The State of Florida (“the State”) appeals the county court’s order granting Kimberly D. Foster’s (“Defendant”) motion in limine, which excluded the State’s use of a recorded exit interview on the basis that Defendant had a reasonable expectation of privacy. For the reasons outlined below, we reverse. By way of background, Defendant was working as a correctional officer at Florida’s Department of Corrections (“FDOC”) Martin Correctional Institution (“MCI”). In early 2019, Correctional Officer Sergeant Tyler Grinstead (“Grinstead”) went to MCI to submit his resignation. Defendant and Major Nathan Pollock (“Pollock”) conducted Grinstead’s exit interview in the warden’s office, which is within MCI’s administration building. There are signs posted at MCI that cell phones are not permitted. During the exit interview, Grinstead told Defendant and Pollock that he saw FDOC staff members using excessive force on three inmates during three separate incidents. Unbeknownst to Defendant or Pollock, Grinstead recorded the exit interview in order to “protect himself and the reason why he quit.” After the exit interview, Defendant prepared an incident report which stated that Grinstead was “quitting due to inmates telling him that staff were mistreating them” and that Grinstead “did not witness any mistreatment by staff himself.” The incident report was entered into the Management Information Notification System (“MINS”) and reviewed by the Department of Corrections, Office of the Inspector General (“IG”). The same day as the exit interview, Grinstead contacted the IG to report that he had witnessed multiple incidents involving excessive use of force on inmates at MCI a few days prior. As a result, inspectors within the IG’s office conducted a sworn interview with Defendant at MCI. Defendant completed a “FDOC IG Oath and Perjury Warning Form DC1-850” which indicated it was an official investigation concerning allegations of physical abuse of members of MCI, and that any false statements would constitute the crime of perjury. Defendant signed the form and agreed to provide a statement. In her statement, Defendant asserted she recognized the MINS report she prepared in early 2019; that Grinstead told her he was resigning because he heard from prisoners that other prisoners were being abused at MCI; that Grinstead did not tell her he witnessed any specific instances of inmate abuse; and that Grinstead could not supply any names of personnel involved in the alleged misconduct because he was new at MCI. Defendant was ultimately arrested for perjury and providing a false official …

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