State v. Perry

548 S.W.3d 292
CourtSupreme Court of Missouri
DecidedJune 12, 2018
DocketNo. SC 96087
StatusPublished
Cited by22 cases

This text of 548 S.W.3d 292 (State v. Perry) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Perry, 548 S.W.3d 292 (Mo. 2018).

Opinions

Zel M. Fischer, Chief Justice

A jury found Joseph Perry guilty of one count of possession of a controlled substance. On appeal, he argues the circuit court erred in overruling his motions to suppress evidence and in sentencing him to eight years' imprisonment. The circuit court's judgment is affirmed.

Factual and Procedural History1

While on patrol, a police officer drove past Perry's house. She observed Perry backing his truck out of his driveway and began to follow him. While following him, the officer radioed dispatch to verify Perry's driving status. Based on a previous conversation with another officer, she believed Perry was driving with a suspended driver's license.2 Dispatch was unable to give her a definitive answer to Perry's driving status before he pulled into the driveway of his fiancé's house. The officer stopped her vehicle in the street near the end of the driveway but did not block Perry's truck. She then approached Perry, and the following exchange took place, as recounted at the suppression hearing:

Prosecutor: What did you say first, exactly?
*296Officer: ["]Hey, Joe, can I talk to you?" And then, "Joe, do you have a valid driver's license?"
Prosecutor: Okay, did Joe reply to you in any way?
Officer: He said, "Sure." And I asked if I could see his driver's license, and he got it out of his wallet. I do believe Joe did say that he was not suspended. 'Cause I said, "Joe, do you have a valid driver's license? I believe you're suspended?" And he goes, "I'm not suspended." And I said, "Well do you have your driver's license on you and can I see it?" he said, "Sure," and he reached in his back pocket and got it....
....
Prosecutor: [W]ould someone producing a valid license end your inquiry into suspicion?
Officer: Oh, no. Just because they hand me what looks to appear to be a valid license, I am still going to run it to check to make sure that it's valid.
Prosecutor: So did you have his license in your hand?
Officer: Yes. He gave me his license.
Prosecutor: And what did you do with it?
Officer: I was attempting to contact dispatch to run his LON, his driver's number, and I was unable to make any contact with dispatch on my handheld radio.
Prosecutor: And why were you unable to make contact with dispatch?
Officer: Come to find out later, I needed to change the antenna and the mike on my handheld; it was messed up and wasn't working.
Prosecutor: Were you-what were you doing then with that license?
Officer: Well at the time I was-I didn't realize that my radio was not working, so I was actually-I had my radio on, I was trying to run the information, dispatch was not getting back with me. I did not know that the transmission had not gone across, and that's when Mr. Perry started acting suspicious.
Prosecutor: Would you tell the Court exactly what that means, how was he acting suspicious?
Officer: Well, he got-he was like turning around from me, and he had put his hand in his pocket and he'd pulled out what appeared to be a plastic bag and he had it in his clenched fist. And I said, "Hey, Joe, come here for a minute." And he goes, "I got to get this bike out of the back of my truck." And with a clenched fist he reached up and grabbed this child's bike out of the back of the truck and then set it down. And I said, "Joe, come here for a minute." And he was like, he just kept ignoring me and kept trying to put distance between me and him. And then he walked around to the front of the vehicle, and I heard him say, "Hey, Norm, come get this." I followed him around the front of the truck, and he still had his hand clenched with the-and he was kind of like pushing the bike along, and then all of a sudden I said, "Joe, come here for a minute." He threw the bike down and took off running.

The officer pursued Perry on foot, ordering him to "stop running." When Perry came to a chain-link fence, he hesitated and bent his body over a fence post before climbing over it. After clearing the fence, Perry saw a sheriff's vehicle and surrendered himself. A plastic bag containing methamphetamine was found in a hollowed-out post where Perry climbed over the chain-link fence. Perry was charged with one count of possession of a controlled *297substance with intent to distribute. Prior to trial, Perry moved to suppress the methamphetamine. The circuit court overruled his motions, and the jury found him guilty of the lesser-included offense of possession of a controlled substance.

At the sentencing hearing, when the circuit court asked for a recommended sentence, the prosecutor stated, "The range of punishment in this case enhanced to the B range is 5 to 15 years in the Department of Corrections." After the prosecutor recommend an eight-year sentence, the following colloquy occurred while reviewing the sentencing assessment report:

The Court: I did want to note one thing.... It looks like the offense says, possession of a controlled substance with intent to distribute. That is not what he was convicted of.
Prosecutor: It was not.
The Court: He was convicted of possession of a controlled substance.
Prosecutor: Correct.
The Court: But he has the enhanced range of penalties which are-
Prosecutor: It still is 5 to 15.
The Court:-5 to 15, it was just wrong on t[he offense]. Does that sounds [sic] right?
Defense Counsel: That's correct, Your Honor.

The circuit court sentenced Perry to eight years' imprisonment, the prosecutor's recommended sentence. Perry appealed, and after opinion by the court of appeals, this Court sustained transfer. Mo. Const. art. V, § 10.

Analysis

Perry first argues the circuit court erred in overruling his motions to suppress the methamphetamine because he was unlawfully seized when the officer requested his license without reasonable suspicion he was engaged in any criminal activity.

In reviewing a trial court's ruling on a motion to suppress, there must be substantial evidence to support the ruling. [T]he facts and reasonable inferences from such facts are considered favorably to the trial court's ruling and contrary evidence and inferences are disregarded.
In reviewing the trial court's overruling of a motion to suppress, this Court considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling. Deference is given to the trial court's superior opportunity to determine the credibility of witnesses. This Court gives deference to the trial court's factual findings but reviews questions of law de novo.[3 ]

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Cite This Page — Counsel Stack

Bluebook (online)
548 S.W.3d 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perry-mo-2018.