Date: 06-01-2016

Case Style: KENNEBREW V. THE STATE OF GEORGIA

Case Number: S16A0844

Judge: Unavailable

Court: Supreme Court of Georgia

Plaintiff's Attorney: Charles Spahos, District Attorney Pro Tempore, Lalaine Briones, Asst. D.A. Pro Tem, Gary Bergman, Asst. D.A. Pro tem, Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Matthew Crowder, Asst. A.G.

Defendant's Attorney: Kevin Anderson, Assistant Public Defender; Tyler Conklin, Staff Attorney - Georgia Public Defender Standards Council

Description: Around noon on Oct. 18, 2010, Marvin Evans was at home at the Wellington Court Apartments near Decatur when he heard a commotion in the apartment below. From his second-floor balcony, he saw two men near a white Chevrolet sedan. When the men realized Evans had noticed them, they jumped into the car and began to leave. Evans knew the two men who lived in the apartment below him, so he tried calling them. He got no answer from Breyon Alexander, but he did reach Darious Oliver, whom Evans knew as “Dough Boy.” Oliver, who was away from the apartment, asked Evans to go downstairs and check on it. On Evans’ way downstairs, he passed a third man who was leaving the two men’s apartment. Inside, he found Alexander hogtied, semi-conscious and bleeding in the middle of the living room floor. His throat had been cut and he’d been beaten about his face and neck. Evans called 911 and Alexander was transported to Grady hospital where he later died. Items found stolen from the apartment included two flat-screen TVs, gaming machines, two laptop computers and guns and ammunition, including a 12-gauge shotgun, 12-gauge shotgun shells, a .40 caliber pistol and .40 caliber Smith & Wesson ammunition. The investigation found no evidence of forced entry. The lead investigator learned from the victim’s sister that co-defendant Mason Babbage, a friend of Alexander’s, drove a white Chevrolet Malibu. Because of their friendship, Babbage knew that Alexander kept guns, money and marijuana at the apartment. Further investigation led police to consider Phillip Warren Kennebrew and co-defendant Samuel Hall as additional suspects. DNA

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from a cigarette butt collected from the loveseat later matched Kennebrew. Oliver testified at trial that neither Kennebrew nor Hall had ever been to their apartment before. An arrest warrant was issued for Kennebrew and he was located and taken into custody at his girlfriend's dorm room at Georgia Gwinnett College. After his girlfriend signed a consent form allowing the police to search her room, police seized two book bags belonging to Kennebrew, as well as his cell phone. Inside the bag were four live 12-gauge shotgun shells, .40 caliber Smith & Wesson ammunition, and a combat knife in a holster. Cell phone records showed that Kennebrew and Babbage talked seven times the day of the murder. In a joint trial, the jury convicted Kennebrew, Babbage and Hall of murder, armed robbery and other crimes. Babbage and Hall were sentenced to life in prison with no chance of parole. In January 2015, this Court upheld their convictions and sentences. Kennebrew was sentenced to life in prison with the chance of parole plus 25 years. He now appeals to the state Supreme Court. ARGUMENTS: Kennebrew’s attorneys argue that he received “ineffective assistance of counsel” from his trial attorney in violation of his constitutional rights, based on two “unreasonable and highly prejudicial errors.” First, the trial attorney failed to object to the introduction of evidence from an illegal search and seizure which yielded ammunition similar to that stolen from Alexander’s apartment. His defense at trial was that he was merely present at the scene of the crime, but was not involved in planning or carrying out the crime. He was tied to the scene by DNA evidence, but the only evidence suggesting a connection to the crime itself was the ammunition recovered from his backpack. There was no warrant for the search, and while his girlfriend could give officers consent to search her room, “she could not give them consent to seize Mr. Kennebrew’s bags, nor to open and search them,” the attorneys argue. Furthermore, Kennebrew had already been arrested and removed when they found the bags so the search was not made “incident to arrest.” “A search incident to arrest can only be made of ‘the arrestee’s person and the area within his immediate control,’ meaning ‘the area from within which he might gain possession of a weapon or destructible evidence,’” the attorneys argue, citing the U.S. Supreme Court’s 2009 decision in Arizona v. Gant. The trial attorney also rendered ineffective assistance of counsel by failing to object to the State prosecutor’s closing argument, in which he commented on Kinnebrew’s failure to contact police prior to his arrest. Kinnebrew did not deny being present at the robbery, but said he was only there to try to sell a video game console to Alexander. During the closing, however, the prosecutor questioned why Kennebrew would fail to alert authorities if he had not been involved in the crime. Specifically, he said, “if he was there and he had nothing to do with it and he saw everything, then why in the good gracious name did he not go immediately out and call somebody, the police, the sheriff’s office, someone?” “Georgia law is clear that it is improper for the State to comment on a defendant’s silence.” Here, “the State explicitly argued to the jury that Mr. Kennebrew’s failure to come forward was evidence of his guilt,” and that is “highly prejudicial and improper,” his attorneys contend. “With such slight evidence against Mr. Kennebrew, the State’s argument that his silence equals guilt, a comment that has explicitly been held to be far more prejudicial than probative, could not have gone un-heeded by the jury, and more likely than not influence the outcome of the trial.” The State prosecutors argue that Kennebrew’s trial attorney was not ineffective for failing to file a motion to suppress the evidence found during a search of Kennebrew’s backpacks. His attorney testified that he never filed such a motion because he believed that the search “was

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incident to arrest.” He further testified that he had discussed the matter with Kennebrew and his decision not to file the motion was one of trial strategy. Under Georgia law (Georgia Code § 175-1), a “police officer may search both a person arrested and the area within that person’s ‘immediate presence’ for the purpose of protecting the officer from attack, preventing the person’s escape, or discovering fruits of the crime for which the person is arrested or items which might have been used in that crime.” In this case, the search was related to “discovering fruits of the crimes” for which Kennebrew was arrested. “Whether the defendant is removed from the site of the arrest before the search begins is irrelevant if the search incident to arrest is to discover fruits of the crime for which the defendant is arrested or items which might have been used in that crime.” The trial attorney also did not render ineffective assistance of counsel by failing to object during the State’s closing arguments. The trial judge correctly determined that the prosecutor’s statement was not an improper comment on Kennebrew’s pre-arrest silence. It is true that in Georgia, the State may not comment on either a defendant’s silence prior to arrest or the failure to come forward voluntarily. “However, evidence as to whether a defendant tried to evade capture is admissible as evidence of flight,” and “statements about flight are proper as circumstantial evidence of guilt,” the State contends, citing the Georgia Supreme Court’s 2012 decision in Sanders v. State.

Outcome: Also, the State did not make the comments until after the defense attorney raised the issue of flight and said Kennebrew did nothing wrong but was merely trying to get away from someone else’s crime as fast as possible. Therefore, his attorney “invited the legitimate response from the State regarding [Kennebrew’s] failure to come forward after the crime.” Finally, contrary to Kennebrew’s argument that the evidence against him was “scant” and “slight,” “the evidence presented at trial of his guilt was overwhelming,” the State argues.

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