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Terry stop — reasonableness of length of detention. Arrest — probable cause. Newly discovered evidence. Ineffective assistance of counsel.

State v. Alvernest Floyd Kennedy, 2012AP523-CR, District 1, 4/9/13, court of appeals decision (not recommended for publication), petition for review granted 2/19/14, affirmed, 2014 WI 132; case activity

Terry stop — reasonableness of length of detention; arrest –probable cause

Kennedy was the driver of a car that struck a pedestrian. (¶¶3-5). After about 30 minutes on the scene investigating the incident, the police had Kennedy sit in a squad car while their investigation continued, partly out of concern for his safety due to the crowd that had gathered. (¶¶7-8). About 75 minutes later he was arrested for homicide by intoxicated use of a vehicle. (¶9). Kennedy moved to suppress the evidence obtained after his arrest, arguing that even though his initial detention in the squad car was valid, the lapse of time between being asked to sit in the squad car and being placed under arrest transformed the detention into an arrest which was not supported by probable cause. (¶¶11, 16).

Citing Florida v. Royer, 460 U.S. 491 (1983), the court of appeals affirms the circuit court’s denial of the suppression motion, on two grounds. First, asking Kennedy to wait in a squad car for approximately seventy-five minutes while police investigate a traffic death was not unreasonable under the circumstances (which included the fact “the crime scene was, sadly, a gruesome one, that required a significant amount of investigative attention by police”). (¶17). Second, even assuming Kennedy’s detention morphed into an arrest,  there was probable cause to arrest Kennedy at the time he was asked to sit in the squad car based on the information the police had, including the damage to and blood on Kennedy’s car, Kennedy’s admission he was driving the car that hit the pedestrian, and the indicia of intoxication (strong odor of alcohol , swaying, glassy and bloodshot eyes, slurred speech. (¶18). (The lack of field sobriety tests does not change the probable cause conclusion. (¶¶19-20).)

Newly discovered evidence

A statement purportedly made by Summerville, the victim’s boyfriend, that the victim ran out in front of Kennedy’s car does not qualify as newly discovered evidence, applying the standard from State v. Edmunds, 2008 WI App 33, ¶13, 308 Wis. 2d 374, 746 N.W.2d 590. It is inadmissible double hearsay, as it is contained in an affidavit by Kennedy’s civil attorney, who avers that he was told by an officer on the scene of the accident that she overheard Summerville say his girlfriend was walking across the street without paying attention to traffic. (¶¶22, 25). Further, there is nothing in the record showing the statement was discovered after Kennedy was convicted, as there is no indication when Kennedy’s civil attorney heard the information from the officer, who overheard it the night of the offense. (¶27). Finally, Kennedy does not explain why he was not negligent in seeking out the statement, but says only the evidence “did not materialize until after trial.” (¶28).

Ineffective assistance of counsel

The trial court did not err in denying a hearing under State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979), on Kennedy’s ineffective assistance claim, which alleged trial counsel was deficient in seven ways. (¶¶30-49). Given their fact-specific nature, Kennedy’s specific arguments won’t be summarized here, except to say the claims about counsel’s conduct were either not supported by any evidence or were not prejudicial, even if counsel was deficient.

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