The beer is in.
A judge has ruled that potentially incriminating items, including beer cans police say they found in ex-detective Kevin Spellman’s car after it fatally struck 66-year-old Drane Nikac on Oct. 30, 2009, will be admitted into evidence at his criminal trial.
If Mr. Spellman is convicted of his most serious charge — aggravated vehicular homicide — he faces up to 25 years in prison.
The judge will also allow a “spontaneous statement” police said Mr. Spellman made at the scene, according to an unofficial transcript of the Oct. 3 hearings provided by Rosemarie Arnold, who is representing the Nikac family in a separate civil suit. The judge ruled that Mr. Spellman’s statement — “I didn’t see that dude. He came out of nowhere. I hit him” — was an “excited utterance” made spontaneously, without time for reflection. He also ruled that the search was legal.
Pretrial motions will continue on Wednesday, Oct. 10.
The two sides will likely argue over whether the disciplinary records of police witnesses that the defense plans to call can be included for rebuttal purposes, according to Ms. Arnold.
Also at issue will be whether the prosecution can introduce evidence that Mr. Spellman is an alcoholic by revealing two prior incidents in which Mr. Spellman allegedly drove intoxicated.
Mr. Spellman refused a Breathalyzer test on the scene of the 2009 accident, but after five hours his blood-alcohol content was recorded at 0.21. The District Attorney’s Office is preparing for the defense to call an expert who will testify that this BAC reading was unreliable because that reading would have meant it reached 0.3 at the time of the accident — a number so high that Mr. Spellman would have been on the floor, according to Ms. Arnold.
Evidence that Mr. Spellman is an alcoholic could then be used to refute that, since alcoholics can function on and handle alcohol differently than others.
The first incident the District Attorney’s Office would want to introduce, according to the transcript, took place on Oct. 14, 2004. Mr. Spellman, who was off duty at the time, was allegedly driving the wrong direction on a one-way street in a police vehicle.
Civilians reported him to police after they said they noticed him staggering into a bodega to buy beer, smelling of alcohol and with bloodshot eyes. Two other police officers had been in the car with Mr. Spellman.
He wasn’t arrested but he pleaded guilty to internal charges, forfeiting 26 vacation days and accepting an eight-day unpaid suspension and 10 months of modified duty.
According to the transcript, the second incident took place on Aug. 2, 1997. It was a sunny, clear summer day and Mr. Spellman allegedly ran a stop sign in Yonkers, striking a family of three. The father asked the police officer at the scene to perform a Breathalyzer test on Mr. Spellman but the cop refused, according to the transcript. The matter was eventually settled in a civil suit, she said.
Mr. Spellman allegedly made a similar admittance on the day of this accident as the one he made in 2009. He said he didn’t see the 1989 Plymouth Sundance he hit.
Defense attorney Peter Brill would also like the jury to visit the scene of the accident and to preclude the jury from viewing Ms. Nikac’s autopsy photos.
“The pre-trial motion decisions were expected, and they don’t do anything to hurt our defense,” Mr. Brill said.
Ms. Arnold, said Ms. Nicak’s family is satisfied with the judge’s stance so far.
“The family recognizes that this is a tragedy, not just for them, but the Spellman family as well,” she said.
Lora Juncaj, Ms. Nikac’s granddaughter, said she hopes her grandmother’s story will help prevent similar deaths in the future.
“It kind of made me really think a lot,” she said. “The trial is not going to bring back my grandma or take away my pain, but it might prevent this from happening again.”
Mr. Brill said Mr. Spellman is not willing to speak with the press.
“He has been emotionally destroyed due to what happened to Ms. Nikac and he wants this ordeal to be over for the family as well as himself and his family,” he said.