State v. Kennedy
| Decision Date | 09 April 2013 |
| Docket Number | No. 2012AP523–CR.,2012AP523–CR. |
| Citation | 348 Wis.2d 263,831 N.W.2d 824,2013 WI App 73 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Alvernest Floyd KENNEDY, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Milwaukee County: Jeffrey A. Wagner, Judge. Affirmed.
Before CURLEY, P.J., KESSLER and BRENNAN, JJ.¶ 1CURLEY, P.J.
Alvernest Floyd Kennedy appeals the judgment convicting him of homicide by intoxicated use of a vehicle, contrary to Wis. Stat. § 940.09(1)(a) (2005–06).1 He also appeals the order denying his postconviction motion. Kennedy argues that: (1) the trial court erred in denying his motion to suppress; (2) newly-discovered evidence warrants a new trial; and (3) the trial court erred in denying him an evidentiary hearing on his ineffective assistance of counsel claim. We reject Kennedy's arguments and affirm.
¶ 2 Kennedy was involved in an automobile accident near the intersection of 24th Street and Fond du Lac Avenue in Milwaukee. He drove the car that hit, and ultimately killed, a pedestrian who was crossing Fond du Lac Avenue shortly after midnight on August 3, 2006.
¶ 3 Officer Marcey Asselin was one of the first police officers to arrive on the scene. She was dispatched to the scene at about 12:15 a.m. As she was just around the corner when she received the dispatch, it took less than a minute for her to arrive. When Officer Asselin got to the scene, she saw a white Chevy Impala facing westbound in the eastbound lane. Skid marks about a block long led to where the Impala was stopped. The car was damaged, and blood was smeared along the passenger side doors. Officer Asselin also saw the victim lying under the passenger side of the car. The victim appeared to be very severely injured, and was unable to talk. A woman and two men were standing nearby.
¶ 4 After assessing the victim's injuries and radioing for an ambulance, Officer Asselin asked the people standing nearby what had happened. Kennedy handed Asselin his driver's license and answered that he was driving. Asselin instructed Kennedy to stand on the sidewalk while she waited for an ambulance to come.
¶ 5 After the victim was put into an ambulance, Officer Asselin went back to talk with Kennedy and his passenger, Anthony Jones, about the accident. Kennedy stated that he was driving eastbound on Fond du Lac Avenue when the pedestrian “jumped out in front of him,” and he hit her. Jones said that he did not remember what happened and that he was injured, so Asselin called for an ambulance and then continued her conversation with Kennedy.
¶ 6 Officer Asselin asked Kennedy to explain what happened again, to make sure she understood him. At this point, about 12:30 to 12:40 a.m., she noticed that Kennedy was swaying back and forth, his eyes were glassy and bloodshot, his speech was slurred, and he smelled strongly of alcohol. Based upon her observations of and conversations with Kennedy at this time, as well as her experiences in life and as an officer who had made other arrests for drunk driving, Asselin believed that Kennedy was intoxicated. Officer Asselin relayed her suspicions about Kennedy's inebriation to Sergeant Roberto Hill, who had arrived on the scene.
¶ 7 Officer Asselin then asked Kennedy to sit in a squad car. She did so because she was concerned about Kennedy's safety. Approximately thirty to forty people had gathered on the sidewalk and they were “yelling and screaming,” and “there was lots of media around.” Also, the victim's boyfriend was still nearby and he was extremely upset about what had happened. Consequently, Asselin did not perform any field sobriety tests on Kennedy. She testified that her goal was to get him to sit in the car so that she and the other officers could secure the scene and gather as much information as possible. She was troubled about keeping the defendant on the scene without having anyone do any field sobriety tests or chemical tests, but did not do anything about it because she was still investigating the scene as instructed by her sergeant.
¶ 8 While Officer Asselin was initially unsuccessful in persuading Kennedy to sit in the back of the squad car, another officer, Officer Scott Randow, convinced Kennedy to do so. Kennedy went into the squad car at about 12:45 a.m., and was not handcuffed or restrained in anyway. Shortly thereafter, at about 1:00 a.m., Asselin's partner, Officer Jeffrey Hoffman, informed Asselin that an eyewitness to the accident stated that while sitting in her car, she saw two cars flying by her, driving extremely fast—over sixty miles per hour, in her estimation. The posted speed limit on the portion of Fond du Lac Avenue where the accident occurred was thirty miles per hour. The witness stated that the cars drove by her so quickly that her own car shook.
¶ 9 Shortly after 2:00 a.m., Kennedy, who was still sitting in the back of the squad car unrestrained, was informed that he was under arrest. He was arrested by Detective Paul Formolo, who arrived on the scene shortly before 2:00 a.m. When Formolo arrived, officers had established a perimeter about two blocks long on Fond du Lac Avenue, and within the perimeter was the white Impala, which had a significant amount of blood on it. Formolo talked with the officers on the scene and learned that Kennedy was suspected to be the driver and suspected to be intoxicated. He was also informed that an eyewitness had told police that she saw the Impala traveling at speeds of what seemed to be in excess of sixty miles per hour, and that the Impala appeared to be drag racing another car. Formolo went to the squad car where Kennedy had been sitting for more than an hour and immediately smelled alcohol. According to Formolo, Kennedy was arrested at about 2:05 a.m.
¶ 10 After Kennedy was arrested, he was taken to the hospital for blood-alcohol testing. The testing was performed at about 3:18 a.m., approximately three hours after the accident. Kennedy's blood-alcohol level at 3:18 a.m. was .216. A toxicologist hired by the State used this information to estimate that Kennedy's blood-alcohol level at the time of the accident was likely somewhere between .246 and .291.
¶ 11 Kennedy was charged with homicide by intoxicated use of a vehicle and homicide by operation of a motor vehicle with a prohibited alcohol concentration. He pled not guilty, and filed a motion to suppress all evidence obtained as a result of his arrest on the basis that there was no probable cause to arrest him. The trial court denied the motion, finding that the period of time between the stop—i.e., when Kennedy was asked to sit in the squad car, about 12:45 a.m.—and the arrest, which occurred shortly after 2:00 a.m., was reasonable, and that there was probable cause to arrest Kennedy for, at the very least, operating an automobile while intoxicated.
¶ 12 A jury trial was held and the jury found Kennedy guilty of homicide by intoxicated use of a vehicle. The homicide by operation of a motor vehicle with a prohibited alcohol content charge was dismissed.
¶ 13 Kennedy now appeals. Further facts will be developed as necessary below.
¶ 14 On appeal, Kennedy argues that: (1) the trial court erred in denying his motion to suppress; (2) newly-discovered evidence warrants a new trial; and (3) the trial court erred in denying him an evidentiary hearing 2 on his ineffective assistance of counsel claim.3 We discuss each argument in turn.
¶ 15 Kennedy's first argument on appeal is that the trial court erred in denying his motion to suppress. In reviewing a trial court's denial of a defendant's motion to suppress, we review its findings of fact under the clearly erroneous standard, but review its application of constitutional principles to the findings of fact de novo. State v. Smiter, 2011 WI App 15, ¶ 9, 331 Wis.2d 431, 793 N.W.2d 920 (Ct.App.2010).
¶ 16 Specifically, Kennedy argues that his motion to suppress should have been granted because the length of time he was detained in the squad car before being told he was under arrest was unreasonable. Kennedy concedes that his initial detainment in the squad car was a valid Terry stop, see Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)(“a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest”), but because approximately seventy-five minutes elapsed between the time that police asked him to sit in the squad car and the time they told him that he was under arrest, the stop transformed into an illegal arrest. Kennedy argues that the stop-turned-arrest was illegal because there was no probable cause to arrest him.
¶ 17 We conclude, first, that the length of Kennedy's detainment in the squad car was not too long in light of the circumstances. While Kennedy correctly notes that during a Terry stop the “investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time,” see Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), we disagree with his contention that asking a suspect to wait in a squad car for approximately seventy-five minutes while police investigate a traffic death is unreasonable. Officer Asselin initially asked Kennedy to sit in the squad car because at the time there were thirty to forty people standing in the area causing a disturbance and because she was not sure about Kennedy's safety as the victim's boyfriend was still nearby and was, quite understandably, agitated. Additionally, by the time Kennedy got into the car, members of the crowd standing on the sidewalk were yelling and screaming and the accident had garnered significant media attention. Also, though we need not repeat the details...
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