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State v. Perry

Court of Appeals of Louisiana, Fifth Circuit

June 27, 2018

STATE OF LOUISIANA
v.
TYRONNE PERRY

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-4023, DIVISION "D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long Douglas E. Rushton

          COUNSEL FOR DEFENDANT/APPELLANT, TYRONNE PERRY Cynthia K. Meyer

          DEFENDANT/APPELLANT, TYRONNE PERRY In Proper Person

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

          ROBERT A. CHAISSON JUDGE

         Defendant, Tyronne[1] 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 right 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 was 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] He exited his vehicle, which he had parked in front of the Titan, and shined his flashlight into the truck to signal defendant, the driver, to stop "because he began pulling forward getting ready to leave." Defendant then exited his vehicle, and as Officer Paz was speaking to defendant about the accident, defendant attempted to leave, at which point Officer Paz grabbed defendant by his right wrist. When defendant pulled away, Officer Paz attempted to grab defendant's wrist again, and in response, defendant struck him in the face and fled.

         Officer Paz pursued defendant, and with the assistance of other officers who were in the area in response to the initial disturbance call, was eventually able to subdue defendant after a physical struggle. At some point, Officer Paz was alerted by Officer Cheramie that defendant had dropped a bag, which was subsequently recovered and found to contain multiple smaller clear plastic baggies filled with off-white rock-like substances. A test of the items on the scene proved positive for the presence of cocaine. Thereafter, Officer Newbie, a K-9 handler, was called to the scene with his dog, who sniffed the vehicle and alerted to the presence of narcotics. During a subsequent search of defendant's truck, which occurred after defendant was restrained in handcuffs, a firearm was recovered from under the front driver's seat. No other contraband was found in the vehicle; however, a cell phone and eighty-four dollars were recovered from his person.

         After considering the evidence presented and the arguments of counsel, the trial court denied the motion to suppress the firearm and narcotics, finding that the officers had probable cause to search the vehicle. The trial court reasoned, in part, as follows:

The officers certainly had probable cause, without the K-9 sniff, to search that vehicle after the Defendant punched the officer in the face, discarded narcotics and ran from the vehicle. Clearly they had probable cause to search the vehicle at that point, but they also had the K-9 sniff, which also gave them probable cause to search that vehicle.

         Defendant now contends that the trial court erred in denying his motion to suppress the firearm. He contends that the search of his vehicle without a warrant was illegal because it did not fall within an exception to the warrant requirement and violated Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), as a search incident to an arrest. Defendant asserts that at the time his vehicle was searched, he was handcuffed and seated in the back seat of the patrol car. He also asserts that given that he was initially arrested for hit and run and battery of an officer and given that the officers' story that he discarded narcotics while being held in a neck restraint was not credible, it was unreasonable to believe the vehicle contained evidence of the offense of the arrest. Defendant further argues that the record is void of any exigent circumstances justifying an immediate warrantless search of his vehicle. We find no merit to these arguments.

         The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. Warrantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. State v. Leonard, 06-361 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 765.

         When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure was justified pursuant to one of the exceptions to the warrant requirement. La. C.Cr.P. art. 703(D); State v. Joseph, 02-717 (La.App. 5 Cir. 6/27/03), 850 So.2d 1049, 1052, writ denied, 04-2404 (La. 6/17/05), 904 So.2d 686. The trial court's decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. In determining whether the trial court's ruling on a motion to suppress is correct, an appellate court is not limited to the evidence presented at the motion to suppress hearing but also may consider pertinent evidence presented at trial. State v. Sam, 11-469 (La.App. 5 Cir. 2/14/12), 88 So.3d 580, 586, writ denied, 12-631 (La. 9/12/12), 98 So.3d 301.

         In Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (per curiam), the United States Supreme Court held that if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits the police to search the vehicle. In Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999) (per curiam), the Supreme Court explained that the automobile exception has no separate exigency requirement. This Court has also recognized that the automobile exception "does not have an independent exigency requirement and if probable cause exists for the search of the vehicle that is sufficient. The exigency is supplied by the inherent mobility of the vehicle and the citizen's lesser expectation of privacy." State v. Joseph, 850 So.2d at 1054.

         In addition, the Louisiana Supreme Court has recognized that there is no constitutional distinction between seizing and holding a car before presenting the probable cause issue to a magistrate and immediately searching the vehicle without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment and the Louisiana Constitution. State v. Tatum, 466 So.2d 29, 31 (La. 1985).

         Probable cause means "a fair probability that contraband . . . will be found." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Whether probable cause exists must be judged by the probabilities and practical considerations of everyday life on which average people, and particularly average police officers, can be expected to act. State v. Jones, 09-688 (La.App. 5 Cir. 2/9/10), 33 So.3d 306, 317, writ denied, 11-1301 (La. 3/2/12), 83 So.3d 1042. In State v. Gant, 93-2895 (La. 5/20/94), 637 So.2d 396, 397 (per curiam), the Louisiana ...


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