State v. Perez
| Decision Date | 02 December 2009 |
| Docket Number | No. 2005-2364.,2005-2364. |
| Citation | 920 N.E.2d 104,124 Ohio St.3d 122,2009 Ohio 6179 |
| Parties | The STATE of Ohio, Appellee, v. PEREZ, Appellant. |
| Court | Ohio Supreme Court |
Stephen A. Schumaker, Clark County Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, Pamela J. Prude-Smithers, Supervisor, Death Penalty Division, and Brie A. Friedman and Robert K. Lowe, Assistant Public Defenders, for appellant.
{¶ 1} On June 22, 2002, appellant Kerry Perez attempted to kill Clifford Conley during an aggravated robbery. On March 5, 2003, Perez shot Ronald Johnson to death during an aggravated robbery. Perez was convicted of the aggravated murder of Ronald Johnson and was sentenced to death.
{¶ 2} In 2002, Perez borrowed a double-barreled 12-gauge pump shotgun from George Remmer, telling Remmer he wanted to hunt with it. Perez never returned the gun. On May 29, 2002, Perez's wife, Debra, bought a 20-gauge shotgun at a store in Springfield.
{¶ 3} The Beverage Oasis was a drive-through liquor store in Springfield. On June 22, 2002, at approximately 11:00 p.m., two masked men entered the Beverage Oasis while employees were closing up for the night. One of these men was Perez; the other was his friend, Cecil Howard. The manager saw both men raise a gun. The other employees fled.
{¶ 4} The owner of the Beverage Oasis, Clifford Conley, was in his office, but he could see what was going on in the store via security monitors. Conley watched as the two masked robbers came into the drive-through area of the building. When the employees fled, Perez ran out after them. Conley called 911. On the monitor, Conley saw Howard hitting the cash register with his gun.
{¶ 5} Conley armed himself with a handgun, emerged from the office, and told Howard to "hold it." Howard ignored him and began to flee. Conley then fired two warning shots, but Howard fled the building through the rear drive-through entrance. However, when he encountered a fence that blocked his escape route, Howard turned and raised his shotgun.
{¶ 6} Conley fired at Howard. Howard dropped the gun and fell to one knee. Conley then started to walk out of the building toward Howard through the drive-through entrance, planning to pick up the dropped shotgun and detain Howard.
{¶ 7} At this point, Perez returned. He raised his gun and fired at Conley just as Conley ducked back inside the building. Then Conley and Perez exchanged fire before Conley retreated. Perez's shots hit the doorjamb beside the entrance. The heaviest concentration of birdshot from Perez's fire struck the doorjamb about five feet above the ground. Conley is six feet tall.
{¶ 8} Howard limped over to Perez, leaving his shotgun behind. Conley fired four times without carefully aiming, then pushed a button to close the overhead door of the drive-through entrance. Perez helped his wounded partner walk away from the scene.
{¶ 9} Meanwhile, a motorist had picked up three of the fleeing employees and had driven them two or three blocks away from the store. Donald Little, a store manager, got out of the vehicle and called the police on his cell phone.
{¶ 10} While Little was on the phone, a car heading away from the Beverage Oasis pulled up. A back-seat passenger thrust his head out the window, looked at Little, then dropped back into the car and told the driver to "go now." Little could see his face clearly by the streetlight overhead. Little subsequently picked Howard from a photographic array as the person in the car.
{¶ 11} Springfield police investigators found the wounded robber's shotgun on the ground near the drive-through entrance. That gun turned out to be the one that George Remmer had loaned to Perez. A fingerprint on the shotgun was later identified as that of Cecil Howard. Investigators also found two spent shotgun shells at the scene.
{¶ 12} The day after the Beverage Oasis robbery, Perez told his teenage stepson, Robert "Robby" Smith, about the incident. Perez stated that he had been shot during the robbery and showed Robby the wounds on his arm. Perez told Robby that he had committed the robbery with Cecil Howard and that Howard had been "shot in the butt and the ankle." Perez described the shootout: "When Cecil got shot, he—Cecil dropped the gun and he [Perez] went back after him and grabbed him up and he shot back." When a television broadcast about the robbery showed a shotgun, Perez said, "There go[es] the one that was dropped at the scene."
{¶ 13} On February 11, 2003, Debra Perez bought a Taurus .357 Magnum revolver from a Springfield pawnshop.
{¶ 14} The Do Drop Inn was a bar located at the corner of Tibbetts and Pleasant Streets in Springfield. On March 5, 2003, between 11:30 p.m. and midnight, two armed men wearing masks and dark clothing kicked in the side door and entered the bar.
{¶ 15} Five people were seated at the bar. The owner, Larry Delawder, was sitting at the end of the bar nearer the side door. Next to him on his left was Ronald Johnson, a customer. Three other customers, including Cindy DePriest, were seated at the bar. The robbers announced that a robbery was in progress and ordered the occupants of the bar not to move.
{¶ 16} Delawder and DePriest testified that when the robbers entered, they ordered the customers to place their hands on the bar. According to DePriest, the robbers also made the customers get down on the floor, get up, get down again, and get back up. They asked DePriest to come around to the other side of the bar and get money from the cash register.
{¶ 17} One of the robbers went behind the bar to get the money. The other one situated himself behind Delawder. The robber demanded money from Delawder, but he protested that all he had was some change. Johnson "turned one way or the other to look," and the robber shot him.
{¶ 18} Johnson immediately collapsed onto the floor. The shooter asked Johnson, "Did I hit you?" Johnson replied, "Yes, you hit me hard." After the shot, DePriest gave the cash to the other robber. He made her lie on the floor, and the robbers left.
{¶ 19} Delawder and the bar patrons tried to help Johnson, who was bleeding badly. But within a few minutes of the shooting, Johnson was unconscious, had no pulse, and had stopped breathing.
{¶ 20} An autopsy showed that the bullet had entered Johnson's back, punctured both his lungs, and severed his spinal column, killing him. The bullet was recovered from Johnson's chest and examined by the Ohio Bureau of Criminal Investigation and Identification. Its appearance was characteristic of a hollow-point bullet.
{¶ 21} On the day after the Do Drop Inn murder, Perez told Robby Smith, "I had to merc [i.e., kill] an MFer, last night." Perez claimed that the victim The victim, Perez told Robby, was "[o]n his back gurgling blood, like blood coming out his mouth."
{¶ 22} On March 7, 2003, a local newspaper carried a front-page article about Johnson's murder. Perez called Debra and Robby into the room, showed them the article, and said, Perez also showed Robby the gun he had used, a chrome .357 Magnum revolver remarking that it was "a nice gun" with "a lot of power." Perez stated that he had used hollow-point ammunition.
{¶ 23} Later that day, Perez, Debra, and Perez's daughter, Lindee Alspaugh, were watching a news broadcast about Johnson's murder. The broadcast stated that the victim had been shot in the back. Perez remarked, "[T]hey make the man look like a coward," and laughed.
{¶ 24} The next day, Perez, Debra, and Robby went to the Caesar's Creek flea market in Wilmington, where Debra exchanged the .357 Magnum Taurus purchased on February 11, 2003, for two 9 mm Hi-Point handguns.
{¶ 25} In August 2003, Perez was discussing the subject of robbery with John McGhee, an acquaintance. According to McGhee, Perez said "he could not be stopped" when committing a robbery and that anyone who resisted "would have to get dealt with."
{¶ 26} On October 20, 2003, Robby Smith told his guidance counselor about Perez's admission to the Do Drop Inn murder. The counselor contacted the Springfield police. After Robby told detectives about Perez's admission, the police questioned Debra. She agreed to cooperate with the investigation. Debra or Robby gave police three masks that were in Perez's closet or among his belongings.
{¶ 27} On October 24, 2003, Perez was being held in the Clark County jail on a charge unrelated to Johnson's murder. That day, he received a visit from his wife, Debra. Their conversation was recorded with Debra's consent.
{¶ 28} During the conversation, Debra expressed fear that she might be subject to criminal liability. Perez tried to reassure her: "We're the only ones that know."
{¶ 29} He urged Debra to remain silent:
{¶ 30} On November 12, 2003, Debra visited Perez again, and again their conversation was recorded with Debra's consent. During this conversation, Debra again expressed fear of possible exposure to criminal liability. Perez again reassured her: "They don't have s* * *." He coached her on what to tell the police: "Well, the reason that you * * * got rid of the [gun] is because it was too big."
{¶ 31} Perez repeatedly expressed his determination never to confess, because he knew he would receive a severe sentence if he did:
{¶ 32} ...
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...1972); Thompson v. Haley , 255 F.3d 1292, 1297 (11th Cir. 2001); Armstead v. State , 978 So.2d 642, 648 (Miss. 2008); State v. Perez , 920 N.E.2d 104, 119-20 (Ohio 2009); and Commonwealth v. Raymond , 676 N.E.2d 824,834 (Mass. 1997). However in People v. Thomas , 8 N.E.3d 308, 314 (NY 2014)......
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Suppressing Involuntary Confessions
...1972); Thompson v. Haley , 255 F.3d 1292, 1297 (11th Cir. 2001); Armstead v. State , 978 So.2d 642, 648 (Miss. 2008); State v. Perez , 920 N.E.2d 104, 119-20 (Ohio 2009); and Commonwealth v. Raymond , 676 N.E.2d 824,834 (Mass. 1997). However in People v. Thomas , 8 N.E.3d 308, 314 (NY 2014)......
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