In DUI Case that Killed Michelle Roberts on Belle Terre, an Unprecedented Offer to Avoid Prison Is Rejected

That mid-January in 2014 Richard Kelley, 38 at the time, was on his honeymoon in Palm Coast with his new bride, Stephanie Daley. They’d come to town from Texas to see Daley’s mother, Michelle H. Roberts, 59. The trio was in a Chevy Malibu at midnight on Jan. 17, with Kelley at the wheel, traveling south on Belle Terre Parkway.

When Kelley made a left turn onto Pine Grove Drive, a Florida Highway Patrol investigation shows him to have made “an improper left turn into the path of another vehicle,” a Nissan Sentra driven by Christopher Goodwin, 25 at the time. The Sentra t-boned the Malibu, “which resulted in the death of Michelle H. Roberts,” the FHP report states, and injuries to Daley and Kelley.

Kelley was driving on a suspended Florida driver’s license: it had been revoked when he failed to comply with traffic issues in Arkansas and Kansas (he is a traveling district manager for an elevator company). He was also drunk, according to the FHP report: blood drawn at Florida Hospital Flagler showed him to have a blood-alcohol level of 0.137. The legal limit in Florida is 0.08.

It wasn’t his first DUI charge, either.

Kelley is charged with DUI manslaughter, a second degree felony, driving on a suspended license and causing injury, a third degree felony, drunk driving with serious bodily injury, a third-degree felony, and two first degree misdemeanor DUI charges, including a second-offense DUI.

On Tuesday, Kelley was before Flagler County Circuit Judge Matthew Foxman in what turned into a very unusual attempt to significantly reduce the charges, eliminate any possibility of prison time, and leave the way open for Kelley to keep his driving privileges, or at least regain them, as people convicted of DUI manslaughter may not.

Kelley was appearing alongside his attorney, Daytona Beach DUI law specialist Flem Whited, who was in court not to argue for the reduced charges specifically but to argue a motion to suppress the results of the blood test. Kelly’s blood was drawn without a warrant. The prosecution claims that he gave his consent, and that consent was captured in a recording. Kelley’s attorney claims there was no “free and voluntary consent,” or at least the prosecution cannot show it. If Whited had successfully argued his motion, the blood test would have been thrown out, and the prosecution’s case would have been tenuous beyond that.

But the motion was never heard, nor was the recording the prosecution had in its possession. It never got that far. Instead, when Foxman asked if the two sides had talked about a possible plea before the case goes to trial, Mark Lewis, the assistant state prosecutor, spoke of the very generous and unusual offer he had tendered two weeks ago to Kelley: he would plead as charged, but he would not serve time in prison. He would be serve probation.

Kelley rejected the offer, because pleading guilty to DUI manslaughter would permanently revoke his driver’s license, “which would in essence ruin his life,” his attorney said, since Kelley depends on driving for his job. There was another reason he was rejecting the offer: “We’ve got a victim that doesn’t want it prosecuted,” Whited said, “witnesses to the accident tried to tell everybody that Mr. Kelley didn’t cause the crash, nobody seems to be listening to us.” He said one of the witnesses deposed was a police officer who could show Kelley had not caused the crash.

Judge Foxman was struck that Kelley had rejected the offer. Foxman is extremely direct, to the point of frequently recommending strategies to defendants in front of him, and giving them the sort of context, at times drawn from his own experience or personal life, that bridges their difficulties understanding the legal tangle they’re in with more emotional or real-life situations they can relate to. Foxman did just that this morning, almost immediately altering the course of the proceedings.

“The state is offering you a probationary sentence. Why that’s significant is that they’re waiving their right, if you were convicted either by a plea or by trial, to a minimum mandatory sentence, meaning you’d go to state prison. And they’re waiving that, and they’re offering probation. Do you understand that?”

“I Do,” Kelley said.

“If you’re convicted as charged on the information that’s in front of me, you could get—forget the misdemeanors for a moment—but if I stack the felonies it could be 20 years. Do you understand that? That’s not speculative, like it’s out there, or like, theoretical. That can happen. I mean, do you understand that?”

Kelley said he did.

“There’s nothing ever that I’ve seen in my life, and I’ve spent a career doing this, and I’ve known your lawyer for as long as I’ve practiced law, that’s harder to work out than the driving with a death revolving around a death. There’s just not an easy way to do them. And I’ll tell you if you want to know the honest truth, my dad used to be the chief judge of the circuit, and I saw him cry twice in my life, and he’s a tough guy. He’s a former golden glove boxer, I mean he’s a tough guy. Saw him cry twice. One is when he had to tell my brother and I that my mother died. The other was a DUI manslaughter sentencing. They’re the only two times I’ve seen a tear roll down his face. Do you understand?”

Kelley said he did.

So Foxman asked again, about a deal: “Any interest in this?”

There was a brief silence. Whited, Kelley’s lawyer, tried to fill the silence. Foxman cut him off. “Let me talk to him,” the judge said, referring to Kelley. “Any interest in this, sir?”

The judge had clearly reached Kelley, who was losing his composure. “I want what’s best for my family,” Kelley said. “I know what’s best for my family is not to be incarcerated.” Those, of course, are not unusual words for an individual facing the prospect of prison time: in the same courtroom, before this and other judges, almost every defendant facing prison time and pleading his or her case has spoken them at some point in court proceedings, or had surrogates speak them, usually at sentencing.  “But yes, of course, anything that keeps me with my family,” Kelley continued, clearly altering his earlier decision to reject the prosecution’s offer.

Foxman warned him that if he did not take an offer, he would not see another one. And he let him known very clearly that the prosecution’s offer was not only generous, but unprecedented.

“I’ve never heard this,” Foxman said, “I’ve never heard of the state offering a non-incarcerative offer in a DUI manslaughter. Never heard of it. I’ve been doing this 20 years and never heard of it. You need to thank him, number one, ” he said, referring to Kelley’s attorney, “and then talk to him about the logistics to this. If there’s a way in or out of this that solves your issues, because I want you working, I want you raising your family, I want all of that, and I don’t mind transferring things to Texas. Don’t worry about that. But talk to him for a minute. I’ll give you as long as you want.”

The judge was not only going out of his way to counsel Kelley, but to put all court proceedings on hold to accommodate him. Kelley took him up on it and withdrew to a small conference room where he could consult with his attorney—only to send Whited back with another rejection. Kelley’s willingness to take “anything” as an offer was not “anything” after all.

There was a 25-minute break. Kelley spent only two or three minutes with Whited before Whited came back to talk with Lewis, the assistant state prosecutor. He wanted the deal to be even more generous: the second-degree felony would stick, but there would not only be no prison time, there would also be no DUI manslaughter. Whited wanted the charge lessened to vehicular homicide at most. The difference? Vehicular homicide would still leave open the door to Kelley restoring his driving privileges.

But Lewis could not formally present that offer to the court without it being reviewed by Jason Lewis, State Attorney R.J. Larizza’s right hand. And Jason Lewis was not reachable.

“Here we have a non-complaining witness and decent facts, so it’s not like I’m just asking for nothing,” Whited said. “So that’s why I’m struggling with this—what is the problem, and apparently this guy Jason is the problem.”

Mark Lewis quickly corrected Whited—that Jason Lewis was not a “problem,” but that he’s been involved in the case, and needed to review its developments. Foxman concurred.

Foxman had been roped into the informal discussion about the logistics of the case. He wanted the case resolved as soon as possible—not for his sake, but to keep Kelley and his wide from having to fly back to Palm Coast from Texas yet another time. They were due to go back to Texas Wednesday morning.

Foxman was willing to rearrange his afternoon schedule—do anything to accommodate the parties. For that reason, he did not want the motion to suppress heard at that point, to avoid the sort of litigation that would cause the parties to become more confrontational just when they’re at the point of resolving the matter. (There was no risk of such confrontation this morning: during that break, Whited also dragged the judge and Lewis to the window to show off the colossal grill he was carrying in the bed of his pick-up truck. Kelley and his wife were not in the courtroom at the time.) “If you work something out today, I’ll fit you in today,” the judge told Whited.

But there was still no clarity as to an actual resolution. When court reconvened the parties agreed to set a Dec. 7 pre-trial hearing, pending the conversations that will take place in the state attorney’s office on the deal now on the table. Foxman called those conversations “absolutely routine, it’s normal, and he’s right to do so if you want to know the truth.” If the case is not resolved—if Kelley doesn’t take the state’s offer—Foxman will hear the motion to suppress, and the case will go on to trial. There would be no further offer.

Foxman noted: “There is a chance of resolving this in a way that’s favorable to you, and I want to preserve that chance for you. It’s not a guarantee, it’s not a promise.” So technically, he said, the case was being continued. He wasn’t done. Throughout, Stephanie Kelley, the former Stephanie Daley who had been in the car and been injured in the January 2014 wreck, had sat a couple of benches behind her husband, in the courtroom. Foxman invited her to the podium in front of him, as he is wont to do with people closely involved in wrenching cases.

He asked point blank if her three-year marriage to Kelley is surviving the death of her mother.

“It is,” she said, “we have just hung really fight to our belief in God and prayers, and we fell in love and got married for a reason.” She described her husband as “a giver” and a servant for his four children, three of them teens (from a previous marriage).

“Do you blame Mr. Kelley at all for her passing?” the judge asked.

“I don’t blame him. I will say that I, we struggled through this, you know. This has been a very long process, of me having nervous breakdowns, an d yeah, to be honest with you, sorting through how we do feel about this. I do want, you know—we want to take responsibility for anything that we need to, and we’re very grateful for the prosecution.”

“They’re being reasonable, I’ve got to tell you that, you don’t see that this often,” Foxman said. “You may not like what they’re saying, but I don’t see them being this reasonable very often.”

Foxman had one final warning for both Richard and Stephanie Kelley. “If we have to pick a jury and try this case, whatever the state offered you is not a part of the equation any longer. That’s just the way that works. I had a gentleman the other day who rejected—it was incarcerative—30 months, and he got 15 years after a jury trial. That’s just the way that goes. So either you work the deal or not.”