State v. Perry

250 So. 3d 1180
CourtLouisiana Court of Appeal
DecidedJune 27, 2018
DocketNO. 17–KA–567
StatusPublished
Cited by9 cases

This text of 250 So. 3d 1180 (State v. Perry) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Perry, 250 So. 3d 1180 (La. Ct. App. 2018).

Opinion

CHAISSON, J.

Defendant, Tyronne1 Perry, appeals his convictions and sentences for possession of a firearm by a convicted felon and battery of a police officer. Defendant's appointed appellate counsel has filed a brief which challenges the trial court's denial of defendant's motion to suppress the evidence, the trial court's decision to allow defendant to represent himself, the trial court's denial of defendant's challenges for cause as to certain jurors, and the trial court's imposition of a fifteen-year sentence on defendant as a result of his conviction for possession of a firearm by a conviction felon. In addition, defendant has filed a pro se brief which raises issues relating to the trial court's refusal to remove George Vedros as his appointed public defender, the sufficiency of the evidence used to convict him of possession of a firearm by a convicted felon, and the trial court's failure to recognize defendant's *1187right to defend himself against being attacked.

Finding no merit to the arguments advanced by either defendant or his appointed appellate counsel, we affirm defendant's convictions and the sentence imposed for his possession of a firearm by a convicted felon conviction. However, because of an error patent noted herein, we vacate defendant's sentence on the battery of a police officer conviction and remand the matter for resentencing in accordance with this opinion.

PROCEDURAL HISTORY

On June 23, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count one), possession with intent to distribute cocaine, in violation of La. R.S. 40:967(A) (count two), and battery of a police officer producing an injury that required medical attention, in violation of La. R.S. 14:34.2 (count three). Defendant pled not guilty at his arraignment. On January 9, 2017, the trial court heard and denied defendant's motion to suppress the evidence.

Defendant, representing himself, proceeded to trial before a twelve-person jury on March 21 and 22, 2017. After considering the evidence presented, the jury found defendant guilty as charged on counts one and three and not guilty on count two. On March 29, 2017, the trial judge sentenced defendant to imprisonment for fifteen years without benefit of parole, probation, or suspension of sentence on count one and imprisonment at hard labor for three years on count three, to run concurrently. The trial judge also ordered defendant to pay a fine of one thousand dollars in connection with count one. Defendant now appeals.

FACTS

At approximately 1:05 a.m. on June 1, 2016, Officer Vincente Paz of the Gretna Police Department was dispatched to a disturbance call at an apartment complex located in the 1400 block of Palfrey Street in Gretna. As he approached the area in his marked police car, Officer Paz noticed a black Nissan Titan truck, with its tail lights on, approximately a quarter of a block away from the complex on the right side of the road. Officer Paz passed and pulled up in front of the truck. As he exited his unit, Officer Paz observed the truck roll backwards and hit the vehicle, an Envoy, parked behind it. The Titan then moved forward in an apparent attempt to leave, prompting Officer Paz to approach the truck and shine his flashlight through the windshield to illuminate the inside of the vehicle and to signal the driver to stop. When he did so, he saw a man, later identified as defendant, "kind of reaching down." Defendant thereafter stopped, exited his truck, and walked towards the back of his vehicle to check out the damage.

Officer Paz started asking defendant questions in an attempt to gather information about the accident and to determine if he knew the identity of the owner of the other vehicle. After Officer Paz asked defendant what he was doing in the area, defendant became nervous, started physically shaking, avoided eye contact, and slurred his words. Defendant then walked back to his vehicle and attempted to leave. Despite the officer's directive not to leave, defendant tried to open the door of his vehicle. At that point, Officer Paz grabbed defendant by his right wrist. Defendant then pulled away from him violently and took a "fighting stance." As Officer Paz attempted to again grab defendant's wrist to handcuff him, defendant jerked away, punched him in the face, and fled northbound on Palfrey Street. Although the officer *1188was disoriented from the punch, he managed to call for assistance and chase after defendant.

As defendant ran, Officer Brad Cheramie, who had also responded to the initial disturbance call and had seen defendant punch Officer Paz, pulled out his baton and struck defendant in the leg. Officer Paz then tackled defendant from the rear, and defendant fell to the ground, at which point a physical struggle ensued. Officer Cheramie and Officer Jason Dufrene, who was also on the scene and had observed defendant hit Officer Paz, joined in the struggle to try to handcuff defendant. As the officers tried to stabilize defendant's right hand, Officer Cheramie observed defendant reach with his left hand into his pocket, grab a clear plastic bag containing a white rock-like substance, and toss it backwards in the direction of the patrol unit. Defendant eventually quit struggling and complied with Officer Paz's command to put his hands behind his back. The officers then handcuffed defendant and conducted a pat down but did not feel any weapons on him. They escorted defendant to the patrol car and conducted a search incident to arrest, which resulted in the recovery of eighty-four dollars and a cell phone.

Once defendant was secured in the patrol car, Officer Cheramie advised Officer Paz of his observations regarding the bag that was tossed during the struggle. The officers went to the area, retrieved the bag, and discovered that it contained forty-nine smaller, clear plastic bags filled with off-white rock-like substances, which tested positive for cocaine.

Thereafter, Officer Corey Newbie of the Gretna Police Department arrived with his dog and conducted a "free air sniff" of defendant's vehicle. As they approached the driver's side door handle area, the dog gave a "passive indication" of a narcotics odor. Officer Newbie then placed the dog inside the vehicle, and the dog kept going back to the driver's seat. A subsequent search of the vehicle resulted in the recovery of a gun from underneath the driver's seat. As a result of this incident, defendant was charged with various offenses, including battery on a police officer, possession with intent to distribute cocaine, and possession of a firearm by a convicted felon.

COUNSELED ASSIGNMENTS OF ERROR

Denial of Motion to Suppress (Assignment of Error Number One)

In his first assigned error, defendant challenges the trial court's denial of his motion to suppress the firearm found in his vehicle during a warrantless search.

At the January 9, 2017 suppression hearing, Officer Paz was the only witness to testify. His testimony at the suppression hearing was basically consistent with his trial testimony that on June 1, 2016, while responding to a disturbance at an apartment complex, he observed a Titan truck crash into the vehicle parked behind it.2

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Cite This Page — Counsel Stack

Bluebook (online)
250 So. 3d 1180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perry-lactapp-2018.