JOEY DAMONT PERRY V. COMMONWEALTH OF KENTUCKY
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IMPOR 'ANT NOTICE
NOT-TO BE PUBLISHED OPINLON
THIS OPINION IS DESIGNATED "NOT TO BE
.PUBLISHED. " PURSUANT TO THE RULES OF
CIVI_L PROCED URE PROMULGA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USEDAS A UTHORITYINANY" OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : AUGUST 24, 2006
NOT TO BE PUBLISHED
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2005-SC-000098-MR
JOEY DAMONT PERRY
V
APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR ., JUDGE
NO. 04-CR-00280-001
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Joey Perry, entered a conditional guilty plea to two counts of
second degree robbery, one count of first-degree robbery, one count of first degree
criminal facilitation to robbery, and being a second degree persistent felony offender .
Appellant was sentenced to twenty years imprisonment . This appeal is as a matter of
right.' Appellant asserts that the trial court erred when it refused to suppress his
statements to police, contending that they were made while he was intoxicated and
while the police were engaging in coercive tactics .
Appellant and James Jett pulled into PDQ Market around 11 :00 p.m.
driving a dark blue Chevy Tahoe. Helen Caywood, the store clerk, became suspicious
while observing the vehicle backing into a parking spot. She noticed that the licensed
plate had three sixes in it. Appellant and Jett entered the store and one of them bought
1 Ky. Const . ยง 110(2)(b) .
a pack of gum. While Caywood was ringing up the order, one of the perpetrators
shoved her, drew a gun, and took money from a cash drawer. Appellant and Jett fled
the store, jumped in their vehicle, and drove away.
After Appellant and Jett left the PDQ Market, Caywood's co-worker called
911, informing dispatch that the perpetrators were driving a black Ford Explorer. The
dispatcher notified police officers about the robbery, and Officer Curtsinger saw a dark
blue Chevy Tahoe parked at a gas station. During this time, Officer Johnson notified
other officers via radio that the dark blue Chevy Tahoe, license plate number 6667LA,
may have been involved in the robbery. Curtsinger pulled into the gas station and
Appellant and Jett drove away in the Chevy Tahoe. While Curtsinger was following the
Tahoe, the driver exceeded the speed limit and then came to a stop in the middle of the
road . Appellant opened the door and fled into an alley.
By this time, other police officers had arrived. They heard a noise in the
alley and ordered Appellant to put his hands up. Appellant advised that he had his
hands up, but was trapped in a bin of aluminum cans. Appellant was extricated from
the bin and placed in custody. Appellant was arrested and charged with reckless
driving and unauthorized use of a motor vehicle.
After Appellant was placed in custody, the police officers attempted to
determine if Appellant was involved in the PDQ robbery. Store clerk Ms. Caywood
could not identify Appellant, but was able to identify the vehicle driven by Appellant as
the vehicle that Appellant and Jett were driving when they left the PDQ. The officers
took Appellant to the police station to be interviewed . Appellant waived his rights and
was interviewed by the police officers . Appellant admitted to robbing the PDQ and
various banks during December 2003 and January 2004 .
Appellant claims that he was intoxicated at the time of the interview. He
testified at the suppression hearing that on the day of his arrest he had consumed
$300.00 worth of crack cocaine, and that he was placed on suicide watch after the
interview due to his intoxication . Both of the interviewing officers denied that Appellant
seemed intoxicated during the interview; however, one of the officers did admit he heard
Appellant sniffling, a common side effect of cocaine usage, repeatedly throughout the
interview. Appellant also claims he was coerced by the police. Appellant was in the
holding cell for three hours before his interview . While in the holding cell, the police
officers told him that a certain family member had something to do with the PDQ
robbery. A police officer also made promises to Appellant that he would be able to help
him .
Appellant was indicted for four counts of first degree robbery, two counts
of a handgun possession by a felon, second degree fleeing and evading, reckless
driving, and being a second degree persistent felony offender. Appellant filed a motion
to suppress his confession, contending that it was a product of intoxication and
coercion . The trial court overruled this motion, holding that Appellant's statement was
voluntary, that he was in sufficient control of his faculties, and that his statement was
not coerced . The issue presented is whether Appellant's admission was voluntary
under the following standard : "The trial court's ruling that the confession was voluntary
cannot be disturbed on appeal unless clearly erroneous." 2
Appellant contends that the inculpatory information divulged by him while
in police custody was a result of intoxication and should have been suppressed.
In short, the basic question is whether the confessor
was in sufficient possession of his faculties to give a reliable
statement, the burden being on the prosecution to show that
he was.
It is only when intoxication reaches the state in which
one has hallucinations or 'begins to confabulate to
compensate for his loss of memory for recent events' that
the truth of what he says becomes strongly suspect. Loss of
inhibitions and muscular coordination, impaired judgment,
and subsequent amnesia do not necessarily (if at all)
indicate that an intoxicated person did not know what he was
saying when he said it.3
From the record, it can not be said that Appellant's condition was one of having
hallucinations or of a person unable to confabulate . Appellant gave accurate and
detailed information about the robberies, his speech was coherent, he indicated that he
understood his rights, and he indicated that he was not under the influence of any drugs
or alcohol. Appellant was able to give the detectives his address, phone number, date
of birth, social security number, and his educational level. Thus, even if he consumed
drugs earlier that day, Appellant's actions during the interview did not approach the level
required to render his statements involuntary .
Appellant also contends that his statement was the product of police
coercion . The trial court found that the three hour wait between the arrest and the
2 Halvorsen v. Willoughby, 730 S .W.2d 921, 927 (Ky. 1986) (citin Sampson v.
Commonwealth , 609 S.W.2d 355 (Ky. 1980)) .
3Britt v. Commonwealth , 512 S.W.2d 496, 500 (Ky. 1974) (citin Marshall and Steiner,
The Confessions of a Drunk, 59 ABAJ 497 (1973)) .
interview did not violate the Constitution and that the detectives' inquiry about
Appellant's sister's role in the robbery was legitimate . "To determine voluntariness the
`totality of the circumstances' surrounding the confession must be considered .,A "The
status of the accused includes such factors as his youth, education, intelligence,
linguistic ability, sanity, etc."5 A confession is deemed voluntary unless a defendant's
"will has been overborne and his capacity for self-determination critically impaired ." s
Here, there was no unreasonable interrogation and no indication of
physical abuse.' Appellant was informed of his constitutional rights and said he
understood them . 8 Appellant was twenty-six years old and possessed a GED. He was
not an impressionable youth, nor was he lacking in intelligence or knowledge of the
criminal process .9 Appellant's sister was not mentioned until ten minutes after Appellant
confessed to the bank robbery.
As there is evidence in the record to support the trial court's finding that
the confession was voluntarily given, we cannot conclude that there was an abuse of
discretion . Under the totality of the circumstances, the Commonwealth met its burden
of proving the voluntariness of the confession.
The judgment of the Fayette Circuit Court is affirmed .
Lambert, C .J., and Graves, McAnulty, Minton, Roach, Scott, and
Wintersheimer, JJ, concur .
4 Allee v. Commonwealth , 454 S.W.2d 336, 341 (Ky. 1970) (citing Fikes v. Alabama,
352 U.S . 191, 197, 77 S.Ct. 28, 1 L.Ed.2d 246 (1957)) .
5 Allee, 454 S.W.2d at 341 .
6 Soto v. Commonwealth , 139 S .W .3d 827, 847 (Ky. 2004) (citin Schneckloth v.
Bustamonte, 412 U .S. 218, 225-26, 93 S .Ct. 2041, 2046, 36 L.Ed.2d 854 (1973)) .
See Henson v. Commonwealth , 20 S.W.3d 466, 470 (Ky. 2000).
8 See _id.
9 See id .
COUNSEL FOR APPELLANT :
Shannon Dupree
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane'
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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