State of Missouri v. Isaac Perdomo-Paz , 2015 Mo. App. LEXIS 729 ( 2015 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
)
Respondent, )
) WD76129
v. )
) OPINION FILED:
) July 14, 2015
ISAAC PERDOMO-PAZ, )
)
Appellant. )
Appeal from the Circuit Court of Clay County, Missouri
The Honorable Anthony Rex Gabbert, Judge
Before Special Division: Mark D. Pfeiffer, Presiding Judge,
Gary D. Witt, Judge, and Zel M. Fischer, Special Judge
Mr. Isaac Perdomo-Paz (“Perdomo-Paz”) appeals from the judgment of the Circuit Court
of Clay County, Missouri (“trial court”), upon his conviction by a jury of two counts of the
class A felony of murder in the first degree, § 565.020;1 one count of the class A felony of
murder in the second degree, § 565.021; and three counts of the unclassified felony of armed
criminal action (“ACA”), § 571.015. Perdomo-Paz was sentenced by the trial court to life
imprisonment without the possibility of parole on each of the first-degree murder counts, life
1
All statutory references are to the Revised Statutes of Missouri 2000, as updated through the 2010
Cumulative Supplement.
imprisonment on the second-degree murder count, and fifty years imprisonment on each of the
ACA counts, all sentences to run consecutively. We affirm.
Facts and Procedural History2
On February 25, 2011, several groups of teenagers attended a party in Independence,
Missouri. Armin Hamidovic drove seven others—his cousin Adnan Islamovic, Dejan
Joksimovic, Carlos Herrera, Timothy Snell, Diana Madera, Georgette Mendez, and Karla Trejo.
Irvin Elizondo drove his cousin, Omar Morales, followed by another cousin, Delfino Elizondo.
Carlos Campos drove his brother, Jose. Perdomo-Paz, then eighteen years of age, drove Pedro
Rodriguez and Itzel Amaro. After the party was broken up by police due to noise complaints,
the group drove to Clay County, Missouri, and Hamidovic rented a second-floor room at a Red
Roof Inn, where they drank and smoked marijuana.
Trejo was Perdomo-Paz’s former girlfriend. She was flirting with Hamidovic and
Joksimovic at the party. Witnesses noticed that Perdomo-Paz watched the flirting and become
visibly angry. Herrera, Islamovic, and Snell left to get more marijuana. Perdomo-Paz wanted
Trejo to leave the party with him, but Trejo refused. Perdomo-Paz grabbed Trejo by the arm and
slapped her in the face. Hamidovic confronted Perdomo-Paz and yelled at him about his
treatment of Trejo. When Hamidovic and Perdomo-Paz were face-to-face, Perdomo-Paz said,
“What did you say?” and pointed a gun at Hamidovic’s head. Hamidovic did not say or do
anything. Perdomo-Paz shot Hamidovic in the forehead and again in the right cheek.
Perdomo-Paz then shot Delfino Elizondo once in the head and shot Joksimovic twice, once in the
neck and once in the back of the head. All three of the shooting victims died.
2
We view the facts in the light most favorable to the jury’s verdict. State v. Olivas, 431 S.W.3d 575, 577
n.3 (Mo. App. W.D. 2014).
2
Autopsies showed that each victim died as the result of gunshot wounds. Hamidovic had
a contact gunshot wound to his left forehead and right cheek caused by a shot fired from two to
three feet away. Joksimovic had a gunshot wound to the left back of his head and one to the left
side of his neck. Elizondo had a single gunshot wound to his left temple.
At approximately 11:40 p.m. on March 2, 2011, Kansas City, Missouri, police officers
Anna Marie Occhipinto and Steven Downing stopped a vehicle when a check of the license plate
revealed that the car’s registered owner had outstanding warrants. As Officer Downing got the
driver’s identification and eventually arrested him, Officer Occhipinto approached the passenger
side of the vehicle where Perdomo-Paz was sitting and asked for his name and birthdate.
Perdomo-Paz gave a false name and birthdate, which did not return any information when
entered into the officers’ computer system. After correcting what Perdomo-Paz presented as a
spelling error on the fake name, Officer Occhipinto ran it through the computer database again,
with no results. Officer Occhipinto asked Perdomo-Paz for his social security number, which he
did not know, and his age, which he did not know. Officer Occhipinto testified that
Perdomo-Paz visibly displayed nervous and evasive behavior during the stop.
When the law enforcement “paddy wagon” arrived to transport the driver to the police
station, the officers escorted the driver into the police transport vehicle. Perdomo-Paz, though
instructed not to do so, ran from the scene. He was apprehended by Officer Downing after a
struggle and placed under arrest.
The next day, March 3, 2011, at the Clay County Sheriff’s Department, Detective Ray of
the Kansas City, Missouri, Police Department homicide unit, and Detective Allen of the Clay
County Sheriff’s Department investigation unit, conducted a videotaped interrogation of
3
Perdomo-Paz regarding the triple homicide. Perdomo-Paz repeatedly denied being at the Red
Roof Inn, claiming that he went to the party in Independence and then went home.
The State charged Perdomo-Paz with three counts of murder in the first degree and three
counts of ACA, alleging that Perdomo-Paz, after deliberation, knowingly caused the deaths of
Hamidovic, Joksimovic, and Elizondo by shooting them. Pre-trial, defense counsel moved to
suppress Perdomo-Paz’s March 3, 2011 statement to the police and all evidence and testimony
related to his detention and arrest. The trial court overruled the motions after an evidentiary
hearing. The trial court denied Perdomo-Paz’s motion for judgment of acquittal at the close of
all the evidence.
The jury found Perdomo-Paz guilty of first-degree murder for the deaths of Hamidovic
and Joksimovic, second-degree murder for the death of Elizondo, and three counts of armed
criminal action. The trial court denied Perdomo-Paz’s motion for new trial and motion for a
parolable sentence. The trial court sentenced him to life imprisonment without the possibility of
parole on each of the first-degree murder counts, life imprisonment on the second-degree murder
count, and fifty years imprisonment on each of the ACA counts, all sentences to run
consecutively.
On appeal, Perdomo-Paz asserts five points. In Points I, II, and III, he asserts that the
trial court erred in overruling his motions to suppress and in admitting certain evidence at trial.
In Point IV, he challenges the sufficiency of the evidence to prove deliberation in order to
convict him for the first-degree murder charges. And in Point V, he raises a constitutional
challenge to section 565.020.2, which mandates life without the possibility of parole for a
juvenile defendant—which Perdomo-Paz was and is not. We affirm.
4
Additional facts relevant to the disposition of this appeal will be set forth in the analysis
of the points to which they relate.
Points I, II, and III
Standard of Review
“Where a motion to suppress was overruled and the evidence was introduced at trial,
appellate review considers the evidence presented both at the suppression hearing and at trial in
determining whether the motion should have been granted.” State v. O’Neal, 392 S.W.3d 556,
565 (Mo. App. W.D. 2013) (internal quotation omitted). Our review is limited to a
determination of whether substantial evidence exists to support the trial court’s ruling. Id. All
evidence and reasonable inferences are viewed in the light most favorable to the trial court’s
ruling. Id. When deciding whether sufficient evidence supports the trial court’s determination,
we defer to the trial court’s opportunity to determine the weight of the evidence and credibility of
the witnesses. “When, however, the issue to be decided involves the constitutional protection
against forced self-incrimination, our review of the trial court’s ruling is a two-part inquiry: we
defer to the trial court’s determinations of witness credibility and findings of fact, but we
consider the court’s conclusions of law de novo.” Id. (internal quotation omitted).
“The standard of review for the admission of evidence is abuse of discretion.” State v.
Steele, 314 S.W.3d 845, 850 (Mo. App. W.D. 2010) (internal quotation omitted). “This standard
gives the trial court broad leeway in choosing to admit evidence; therefore, an exercise of this
discretion will not be disturbed unless it is clearly against the logic of the circumstances.” Id.
(internal quotation omitted). Prejudice must be demonstrated before evidentiary error can result
in reversal. Id.
5
Points I and II
In Perdomo-Paz’s first and second points on appeal, he alleges that the trial court erred in
overruling his motion to suppress and admitting at trial, in violation of his Fifth Amendment
right to remain silent, his March 3, 2011 statement made to law enforcement while in custody.
In his first point, he contends that he unequivocally asserted his right to remain silent, but
Detectives Ray and Allen continued to question him. In his second point, he asserts that he did
not submit to questioning voluntarily, and Detectives Ray and Allen used coercive tactics
throughout the interrogation.
Analysis
Point I – Invocation of Right to Remain Silent
The Fifth Amendment to the United States Constitution guarantees that no person can be
forced to act as a witness against himself in a criminal case; and if a person being questioned by
law enforcement indicates that he does not wish to answer questions, the questioning must cease,
regardless of questions he may have answered or statements he may have already made.
Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct 1602, 1612, 16 L. Ed. 2d 694 (1966). Special
legal language or exact references to rights guaranteed by the Constitution or amendments
thereto are not necessary. See Davis v. United States, 512 U.S. 452, 459, 114 S.Ct 2350, 2355,
129 L. Ed. 2d 362 (1994). Conversely, one must unequivocally and unambiguously express a
desire to remain silent so that an objectively reasonable officer in that situation would understand
it to be a request to end questioning. Id.; see also Berghuis v. Thompkins, 560 U.S. 370, 381-82,
130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (2010). A suspect:
must give a clear, consistent expression of a desire to remain silent in order to
invoke his rights adequately and cut off questioning. If a person subjected to
custodial interrogation wishes to revoke his or her waiver of the right to remain
silent, he or she is under an obligation to communicate this revocation in a clear
6
and intelligible fashion. A suspect must articulate his desire to cut off questioning
with sufficient clarity that a reasonable police officer in the circumstances would
understand the statement to be an assertion of the right to remain silent. If the
statement is ambiguous or equivocal, then the police have no duty to clarify the
suspect’s intent, and they may proceed with the interrogation. We consider the
defendant’s statements as a whole in determining whether they indicate an
unequivocal decision to invoke the right to remain silent.
O’Neal, 392 S.W.3d at 569 (internal quotation omitted).
Perdomo-Paz contends on appeal that he invoked his right to remain silent by
referencing, in isolation, his statement that he did “not for real, man, no, but . . .” want to answer
questions about a homicide. He argues that this statement required Detective Ray to
immediately cease her interrogation. But our Missouri Supreme Court has stated that it does
“not read Miranda searching for out-of-context sentences that support a preferred outcome.”
State v. Clemons, 946 S.W.2d 206, 219 (Mo. banc 1997). “Instead, courts must look to the full
context of a particular statement in order to determine whether a suspect invoked his rights or
not.” O’Neal, 392 S.W.3d at 569.
At the beginning of the interrogation, Detective Allen read Perdomo-Paz his Miranda
rights. Perdomo-Paz signed a Miranda waiver and began talking to Detectives Ray and Allen.
Detective Ray asked basic informational questions. She then told Perdomo-Paz that she and
Detective Allen were conducting a homicide investigation:
Det. Ray: Well, the reason we are talking to you, we’re, uh, conducting an
investigation, it’s a homicide investigation. Okay, so, I just want to
ask you a few questions about that. You cool with that?
Perdomo-Paz: What is, I mean [unintelligible]. I mean, I don’t know that . . .
[several seconds of silence]
Det. Ray: You fine with that, just talking about a homicide. Is that, is that . . . .
Perdomo-Paz: I mean not, not for real, man, no, but . . . .
Det. Ray: Why not?
7
Perdomo-Paz: I mean because when Kansas tried to talk to me about a homicide,
you know, . . . sometimes I couldn’t even sleep . . . that I know
who killed somebody. [parts unintelligible]
Det. Ray: Okay, well, these are going to be easy questions, okay? Is that, is that
fine? You okay with answering some easy questions? [several seconds
of silence when Perdomo-Paz paused and then nodded his head
affirmatively]
Detective Ray then began questioning him. Throughout the interrogation, Perdomo-Paz’s story
remained consistent: he went to a party on Noland Road in Independence at 9:30; “Carlos”
drove him home; he was home by 1:00 a.m.; he stayed home the rest of the evening and did not
go to any other parties that night.
Perdomo-Paz’s response, “not for real, man, no, but . . .” to Detective Ray’s question
whether he was “fine” with talking about a homicide was not a clear and unequivocal assertion
of the right to remain silent. As we have stated under a similar fact pattern:
[A suspect’s] use of the conjunction “but” is an equivocation, which suggests that
he was experiencing an internal conflict: while he did not want to talk about what
had happened, other factors compelled him to do so.
O’Neal, 392 S.W.3d at 570. And, in this instance, upon further elaboration, Perdomo-Paz
explained how he was reluctant to talk about homicide investigations because of his previous
negative experience when interrogated by Kansas detectives regarding a Kansas homicide.
When Detective Ray followed up by asking if he would answer some “easy questions,” he
nodded affirmatively that he would. Later in the interrogation, Perdomo-Paz demonstrated that
he knew exactly how to terminate the interrogation when he requested an attorney (at which
point the interrogation was immediately terminated). Thus, taken in full context, Perdomo-Paz’s
isolated comment, “not for real, man, no, but . . .” did not constitute an unequivocal invocation of
the right to remain silent.
8
Substantial evidence supported the trial court’s denial of Perdomo-Paz’s motion to
suppress, and the trial court did not abuse its discretion in admitting at trial testimony about and a
redacted videotape of Perdomo-Paz’s statement.
Point I is denied.
Point II – Voluntariness of Statement
Perdomo-Paz asserts that he did not voluntarily waive his right to remain silent in that the
detectives used coercive tactics throughout his interrogation. When a defendant challenges the
admissibility of a statement on the ground that it was involuntary, the State must prove
voluntariness by a preponderance of the evidence. State v. Rousan, 961 S.W.2d 831, 845
(Mo. banc 1998). The test for the voluntariness of a statement is whether, under the totality of
the circumstances, the defendant was deprived “of a free choice to admit, deny or refuse to
answer the examiner’s questions and whether the physical and psychological coercion was of
such a degree that the defendant’s will was overborne at the time he [made the statement].”
State v. Hicks, 408 S.W.3d 90, 95 (Mo. banc 2013) (internal quotation omitted). Factors to be
considered in reviewing the totality of the circumstances include: whether the defendant was
advised of his Miranda rights and understood them; the defendant’s physical and mental state;
the length of questioning; the presence of police coercion or intimidation; and the withholding of
food, water, or other physical needs. Rousan, 961 S.W.2d at 845. “Evidence of the defendant’s
physical or emotional condition alone, absent evidence of police coercion, is insufficient to
demonstrate that the [statement] was involuntary.” Id. No single factor is dispositive when the
totality of the circumstances is considered, but the fact that the defendant voluntarily waived his
Miranda rights is an important consideration. State v. Barriner, 210 S.W.3d 285, 300 (Mo. App.
W.D. 2006).
9
Considering the totality of the circumstances, Perdomo-Paz’s statement was not coerced.
First, Perdomo-Paz was advised of his Miranda rights and signed a waiver, indicating that he
understood them. Second, Perdomo-Paz claims that his statement was coerced because when he
asked for water because his throat was dry and when he asked for a bathroom break, the
detectives did not immediately give him water or allow him to use the restroom. However,
shortly thereafter, the detectives gave him water and a bathroom break when he asked a second
time. Third, the length of Perdomo-Paz’s interrogation—three hours with a break—was not
coercive. Missouri courts have held that continuous questioning for four hours is not coercive.
See State v. Phillips, 319 S.W.3d 471, 477 (Mo. App. S.D. 2010) (citing State v. Simpson, 606
S.W.2d 514, 517 (Mo. App. W.D. 1980)). Fourth, while Perdomo-Paz told the detectives during
the interrogation that he was tired and at times laid his head on his folded arms on the table, he
did not demonstrate that he was so tired that he was unable to resist the questioning. A statement
is not involuntary due to a defendant’s tiredness when the interrogation is conducted at a
reasonable time and the length of the interrogation is reasonable. See Rousan, 961 S.W.2d at
847. Additionally, the video recorded interrogation (which has been viewed by this Court)
contradicts Perdomo-Paz’s claims of exhaustion by showing he was sufficiently alert and
energetic to actively participate in exchanges with the detectives. Fifth, Perdomo-Paz claims that
Detective Ray made sporadic statements to him that were “aggressive and demeaning.” The
Missouri Supreme Court has held that tactics such as “yelling, ‘getting in his face,’ and
misleading” a suspect about whether his accomplice was making a statement implicating him
were not impermissibly coercive where the detectives did not touch the defendant or threaten
him with any physical harm. State v. Simmons, 944 S.W.2d 165, 175-76 (Mo. banc 1997).
10
We conclude that none of the factors identified by Perdomo-Paz establish that he was
deprived of his free choice to admit, deny, or refuse to answer the detectives’ questions or that
his will was overborne when he made the statement. To the contrary, after approximately three
hours of questioning, Perdomo-Paz never admitted wrongdoing, maintaining throughout the
interrogation that he was not at the scene of the homicides. That his will was not overborne by
the allegedly coercive questioning is evidenced by the fact that he invoked his right to counsel to
end the interrogation. Accordingly, substantial evidence supports the trial court’s denial of
Perdomo-Paz’s motion to suppress, and the trial court did not abuse its discretion in admitting at
trial testimony about and a redacted videotape of the statement.
Point II is denied.
Point III
In Perdomo-Paz’s third point on appeal, he alleges that the trial court erred in overruling
his motion to suppress and allowing testimony at trial about his March 2, 2011 detention and
arrest and in allowing testimony and evidence about his March 3, 2011 statement to police
because his detention was not a consensual encounter; the stop exceeded its proper scope; and
the police did not have probable cause to arrest him.
Analysis
Warrantless seizures are generally unreasonable and, therefore, unconstitutional, unless
an exception applies. State v. Lovelady, 432 S.W.3d 187, 191 (Mo. banc 2014). One common
exception is the “Terry stop.” Id. Officers are permitted to make a brief investigatory stop if
they have a reasonable suspicion that illegal activity has occurred or is occurring. Terry v. Ohio,
392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). “Under this exception, the officer may
briefly stop the suspicious person and make reasonable inquiries aimed at confirming or
11
dispelling these suspicions.” Lovelady, 432 S.W.3d at 191. Reasonable suspicion, which is a
less stringent standard than probable cause, is present when “a police officer observes unusual
conduct which leads him reasonably to conclude in light of his experience that criminal activity
may be afoot.” Id. (internal quotation omitted). “Suspicion is reasonable if the officer is able to
point to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.” Id. (internal quotation omitted). Whether reasonable
suspicion exists is a question of law that we review de novo. Id. at 190.
“A Terry stop must be temporary and last no longer than is necessary to effectuate the
purpose of the stop; it remains valid only so long as it is based on reasonable suspicion.” Id. at
191 (internal quotation omitted). “A Terry stop is proper when: (1) the circumstances support a
finding of reasonable suspicion justifying the initial stop and (2) the officer’s actions were
reasonably related in scope to the circumstances that justified the interference.” Id.
Reasonable suspicion justified the initial stop. At approximately 11:40 p.m. on March 2,
2011, Kansas City, Missouri, police officers Occhipinto and Downing stopped a vehicle when a
check of the license plate revealed that the car’s registered owner had outstanding warrants. “A
‘seizure’ occurs during a traffic stop by law enforcement officers when the totality of the
circumstances surrounding the incident indicates that a reasonable person would have believed
that he was not free to leave.” State v. Ford, 445 S.W.3d 113, 119 (Mo. App. E.D. 2014)
(internal quotation omitted). Passengers in a vehicle are “seized” within the meaning of the
Fourth Amendment, when a police officer stops the vehicle to investigate suspected criminal
activity. Id.
“If the detention extends beyond the time reasonably necessary to effect its initial
purpose, the seizure may lose its lawful character unless a new factual predicate for reasonable
12
suspicion is found during the period of lawful seizure.” Id. (internal quotation omitted). Thus,
“[a]n officer may inquire into matters unrelated to the justification for the traffic stop, and such
inquiries do not convert the encounter into something other than a lawful seizure, so long as
those inquiries do not measurably extend the duration of the stop.” Id. (internal quotation
omitted); see also Rodriguez v. United States, 135 S. Ct. 1609, 1615, 191 L. Ed. 2d 492 (2015)
(“Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary
inquiries incident to [the traffic] stop.”) (internal quotation omitted). “When evaluating the
validity of a Terry stop, the trial court must consider the totality of the circumstances.” Ford,
445 S.W.3d at 119 (internal quotation omitted). “[T]he seizure of a person may be extended, if a
new factual predicate for reasonable suspicion of criminal activity develops during a lawful
stop.” Id. at 122.
Here, in a reasonable period of time, the officers confirmed that the driver did, in fact,
have outstanding warrants for his arrest, and the driver was placed under arrest. Additionally, as
to Perdomo-Paz (a passenger in the vehicle), the officers reasonably asked him his name, social
security number, and date of birth. See Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177,
185, 124 S. Ct. 2451, 2458, 159 L. Ed. 2d 292 (2004) (after vehicle lawfully stopped, an officer’s
request for identification not violative of Fourth Amendment); see also State v. Dixon, 218
S.W.3d 14, 18 (Mo. App. W.D. 2007); United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct.
675, 680, 83 L. Ed. 2d 604 (1985); I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 1762, 80
L. Ed. 2d 247 (1984). Perdomo-Paz claimed not to know his social security number or date of
birth, volunteering instead “20 maybe?” as a response. Further, on multiple occasions,
Perdomo-Paz attempted to deceive the officers by providing a false identification which the
officers could not confirm on their computer database. Perdomo-Paz’s deceptive demeanor and
13
elusive responses provided a new factual predicate for reasonable suspicion of criminal activity
for which further detention was warranted. And certainly, when Perdomo-Paz attempted to flee
instead of remaining seated as instructed by the police officers, yet another factual predicate
arose—this time justifying custodial arrest. For, when Perdomo-Paz fled, he had been under
lawful detention. Accordingly, the evidence of his flight was admissible.
Next, Perdomo-Paz argues that the officers lacked probable cause to arrest him upon his
attempted flee from the scene.
“For an officer to make a valid warrantless arrest, the officer must have probable cause to
believe that the suspect has committed a crime.” State v. Bradshaw, 81 S.W.3d 14, 31 (Mo.
App. W.D. 2002). “There is no precise test for determining whether probable cause existed;
rather, it is based on the particular facts and circumstances of the individual case.” Id. (internal
quotation omitted). “The facts and circumstances justifying probable cause must exist at the
time of the arrest.” Id. Absolute certainty is not required, but the officer’s knowledge of the
facts and circumstances must lead a prudent person to believe that the individual had committed
or was committing an offense. Id.; see also Brinegar v. United States, 338 U.S. 160, 175-76, 69
S. Ct. 1302, 1311, 93 L. Ed. 1879 (1949). “Probable cause need not rise to the level of actual
guilt.” State v. Johnson, 354 S.W.3d 627, 634 n.6 (Mo. banc 2011). Further, an officer’s
subjective reason for an arrest is not required to match the crime for which the objective facts
create probable cause. Devenpeck v. Alford, 543 U.S. 146, 153, 125 S. Ct. 588, 594, 160 L. Ed. 2d
537 (2004). In other words, an officer may arrest a person for a crime not supported by the
objective facts at hand if those facts support probable cause for a crime—as long as the officer
actually has knowledge of the facts at the time of the arrest. See id.
14
The police found Perdomo-Paz’s evasive answers and flight suspicious. Based upon the
facts and circumstances within the officers’ knowledge—evasive self-identification responses,
flight (after being instructed by the officers not to move from the scene), and physically
struggling with the officer who apprehended him—the officers could reasonably conclude that
Perdomo-Paz had engaged in or was engaging in criminal activity; though, clearly,
Perdomo-Paz’s lack of cooperation and flight prevented the officers from conducting a full
investigation prior to his arrest. However, under these objective facts then within the officers’
knowledge, it is not unreasonable to believe that Perdomo-Paz was, at minimum, committing the
crime of resisting lawful detention, see § 575.150, RSMo, and his custodial arrest by the police
officers was justified. That the officers initially arrested Perdomo-Paz pursuant to an unrelated
and unsubstantiated municipal violation is of no consequence. See Devenpeck, 543 U.S. at 153.
Substantial evidence supported the denial of Perdomo-Paz’s motion to suppress, and the
trial court did not abuse its discretion in admitting at trial testimony about his detention and
arrest.
Point III is denied.
Point IV
In Perdomo-Paz’s fourth point on appeal, he argues that the trial court erred in denying
his motion for judgment of acquittal at the close of all the evidence, accepting the jury’s verdict
of first-degree murder, and sentencing him to life without parole, because the evidence was
insufficient to establish that he deliberated before causing the deaths of Hamidovic and
Joksimovic. We disagree.
15
Standard of Review
In reviewing the sufficiency of the evidence supporting a criminal conviction, this court’s
review “is limited to determining whether there is sufficient evidence from which a reasonable
jury could have found the defendant guilty beyond a reasonable doubt.” State v. Porter, 439
S.W.3d 208, 211 (Mo. banc 2014). “All evidence and inferences favorable to the State are
accepted as true, and all evidence and inference[s] to the contrary are rejected.” Id. We do not
assess whether we believe that the evidence at trial established guilt beyond a reasonable doubt.
Id. Rather, we determine “whether, in light of the evidence most favorable to the State, any
rational fact-finder could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (internal quotation omitted).
Analysis
Perdomo-Paz contends that the State failed to prove that he coolly reflected before
shooting Hamidovic and Joksimovic. He argues that the evidence showed that he was not in a
“cool frame of mind” but, instead, was embroiled in a confrontation with Hamidovic about how
Perdomo-Paz had treated Trejo, and the shootings occurred before he had time to cool off.
“A person commits the crime of murder in the first degree if he knowingly causes the
death of another person after deliberation upon the matter.” § 565.020.1. “Deliberation” is
defined as “cool reflection for any length of time no matter how brief.” § 565.002(3).
“Deliberation is not a question of time—an instant is sufficient—and the reference to ‘cool
reflection’ does not require that the defendant be detached or disinterested.” State v. Nathan, 404
S.W.3d 253, 266 (Mo. banc 2013). “Instead, the element of deliberation serves to ensure that the
jury believes the defendant acted deliberately, consciously and not reflexively.” Id.
16
Ordinarily, proof of deliberation is provided through the circumstances surrounding the
crime. State v. Strong, 142 S.W.3d 702, 717 (Mo. banc 2004). The jury heard evidence that
Perdomo-Paz and Trejo had been boyfriend and girlfriend. At the Red Roof Inn, Trejo was
flirting with Hamidovic. Joksimovic was sitting nearby, and one witness said that Trejo was also
flirting with Joksimovic. Perdomo-Paz watched the flirting and was observably mad. He told
Trejo that she was coming with him and grabbed her arm. She did not want to go and took his
hand off of her. Perdomo-Paz grabbed her again. Two witnesses testified that Perdomo-Paz and
Trejo were talking, and he slapped her in the face. Hamidovic confronted Perdomo-Paz about
his treatment of Trejo and told Perdomo-Paz that Trejo did not want to leave with him. When
Hamidovic and Perdomo-Paz were face-to-face, Perdomo-Paz said, “What did you say?” and
pointed a gun at Hamidovic. Hamidovic did not say or do anything. Perdomo-Paz shot
Hamidovic, shot Delfino Elizondo next, and then shot Joksimovic.
Deliberation may be inferred where a defendant brooded over his actions before taking
them, where he had ample opportunity to terminate the crime, or where the victim sustained
multiple wounds. State v. Olivas, 431 S.W.3d 575, 580 (Mo. App. W.D. 2014). “[D]eliberation
need only be momentary.” Id. When confronted by Hamidovic, Perdomo-Paz questioned
Hamidovic before pointing a gun at him. Perdomo-Paz had ample opportunity to terminate the
confrontation before shooting Hamidovic. After shooting Hamidovic, Perdomo-Paz could have
stopped his attack, but instead, he turned his gun on Elizondo and shot him before shooting
Joksimovic.
“Deliberation c[an] also be inferred from the number, severity, and location of wounds to
the victim[s].” State v. Smith, 185 S.W.3d 747, 759 (Mo. App. S.D. 2006) (internal quotation
omitted). Both Hamidovic and Joksimovic sustained multiple gunshot wounds. Hamidovic
17
sustained a contact range gunshot wound to his left forehead, meaning the end of the barrel was
against the skin surface of the body, and a gunshot wound to the right cheek from a distance of
less than two to three feet. Joksimovic sustained two gunshot wounds, one to the left back of his
head and one to his left neck.
Leaving the scene immediately after the shooting and failing to seek medical help for the
victims after the attack strengthens the inference that the defendant deliberated. Olivas, 431
S.W.3d at 580; State v. Stubblefield, 423 S.W.3d 311, 313-14 (Mo. App. E.D. 2014). Here,
Perdomo-Paz fled the scene immediately after the shootings without seeking medical attention
for the victims.
The foregoing evidence, and the reasonable inferences derived therefrom, was sufficient
for a rational juror to find beyond a reasonable doubt that Perdomo-Paz deliberated before
shooting Hamidovic and Joksimovic.
Point IV is denied.
Point V
In Perdomo-Paz’s fifth point on appeal, he asserts that the trial court erred in overruling
his motion for parolable sentences on the first-degree murder counts and sentencing him to life
without parole on those counts in violation of his Eighth Amendment right to be free from cruel
and unusual punishment because he was eighteen years old when the crimes were committed.3
3
Perdomo-Paz appears to make an “as applied” challenge to section 565.020, arguing that the statute, as
applied to him, violated his right to be free from cruel and unusual punishment. Thus, a preliminary issue is whether
this court has jurisdiction to consider the constitutional challenge. The Missouri Supreme Court has exclusive
jurisdiction in cases involving the validity of a state statute under article V, section 3 of the Missouri Constitution.
However, a party’s mere assertion that a statute is unconstitutional does not deprive the court of appeals of
jurisdiction. State v. Williams, 420 S.W.3d 713, 717 (Mo. App. W.D. 2014). The allegation concerning the statute’s
constitutional validity must be real and substantial for jurisdiction to vest in the Supreme Court. Id. If the challenge
is merely colorable, the court of appeals has jurisdiction. Id. A constitutional claim is:
substantial when, upon preliminary inquiry, the contention discloses a contested matter of right,
involving some fair doubt and reasonable room for controversy; but, if such preliminary inquiry
18
Standard of Review
Whether a sentence constitutes cruel and unusual punishment is an issue of law. Cain v.
State, 859 S.W.2d 715, 718 (Mo. App. E.D. 1993). We review issues of law de novo. State v.
Triplett, 355 S.W.3d 543, 550 (Mo. App. W.D. 2011).
“A trial court’s sentencing decision is reviewed for abuse of discretion.” State v. Smith,
422 S.W.3d 411, 420 (Mo. App. W.D. 2013) (internal quotation omitted). “An abuse of
discretion occurs when the trial court’s action is so unreasonable and arbitrary that it shocks the
sense of justice and indicates a lack of careful consideration.” Id. (internal quotation omitted).
Analysis
The essence of this issue is whether Perdomo-Paz qualifies as a juvenile for purposes of
the Eighth Amendment. Perdomo-Paz was born on April 21, 1992, and was eighteen years old
when the crimes were committed. He argues that eighteen-year-olds lack the same maturity and
sense of responsibility as seventeen-year-olds; therefore, a mandatory sentence of life without
parole for someone convicted of committing homicide at age eighteen violates the Eighth
Amendment of the United States Constitution and article I, section 21 of the Missouri
Constitution. This argument has been rejected by the United States Supreme Court:
Drawing the line at 18 years of age is subject, of course, to the objections always
raised against categorical rules. The qualities that distinguish juveniles from
adults do not disappear when an individual turns 18. By the same token, some
under 18 have already attained a level of maturity some adults will never reach.
discloses the contention is so obviously unsubstantial and insufficient, either in fact or law, as to
be plainly without merit and a mere pretense, the claim may be deemed merely colorable.
State v. Stone, 926 S.W.2d 895, 898 (Mo. App. W.D. 1996) (internal quotation omitted). The issues raised by
Perdomo-Paz concerning the constitutionality of the sentencing provisions of the first-degree murder statute as
applied to juvenile offenders in light of Miller v. Alabama, 132 S. Ct. 2455, 2463 (2012), and the sentencing
procedures upon remand were decided by the Missouri Supreme Court in companion cases handed down on July 30,
2013: State v. Hart, 404 S.W.3d 232 (Mo. banc 2013), and State v. Nathan, 404 S.W.3d 253 (Mo. banc 2013).
Because we determine that Perdomo-Paz’s constitutional challenge is merely colorable, this court has jurisdiction.
See Austin W. Road Mach. Co. v. City of New Madrid, 185 S.W.2d 850, 851 (Mo. App. 1945) (“No construction of
the constitutional provision is called for, but merely its application. . . . Hence, this court has jurisdiction.”).
19
For the reasons we have discussed, however, a line must be drawn. . . . The age
of 18 is the point where society draws the line for many purposes between
childhood and adulthood. It is, we conclude, the age at which the line for death
eligibility ought to rest.
Roper v. Simmons, 543 U.S. 551, 574, 125 S. Ct. 1183, 1197-98, 161 L. Ed. 2d 1 (2005).
Missouri, in fact, has drawn the line between childhood and adulthood for adult criminal
responsibility at age seventeen. See §§ 211.021.1(1), (2), 211.041. “Using chronological age as
the touchstone for determining whether an individual is a juvenile or an adult is the standard
approach in our legal system.” United States v. Marshall, 736 F.3d 492, 499 (6th Cir. 2013).
“Chronological age sets the boundaries for determining whether an individual is eligible to drive,
vote, marry, buy and drink alcohol, be drafted, watch certain movies, and hold certain political
offices.” Id.
“[T]he Eighth Amendment guarantees individuals the right not to be subjected to
excessive sanctions.” Roper, 543 U.S. at 560. “Embodied in the Constitution’s ban on cruel and
unusual punishments is the precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.” Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 2021, 176
L. Ed. 2d 825 (2010) (internal quotation omitted). Proportionality “does not require strict
proportionality between crime and sentence but rather forbids only extreme sentences that are
grossly disproportionate to the crime.” Id. at 60 (internal quotation omitted). “Gross
disproportionality will be found only in exceedingly rare and extreme cases.” State v. Denzmore,
436 S.W.3d 635, 644 (Mo. App. E.D. 2014) (internal quotation omitted). “A sentence within the
range prescribed by statute generally will not be found excessive, or grossly disproportionate, to
the crime committed.” Id. (internal quotation omitted).
20
Perdomo-Paz was found guilty of first-degree murder under section 565.020, which in
20114 provided:
1. A person commits the crime of murder in the first degree if he knowingly
causes the death of another person after deliberation upon the matter.
2. Murder in the first degree is a class A felony, and the punishment shall be
either death or imprisonment for life without eligibility for probation or parole, or
release except by act of the governor; except that, if a person has not reached his
sixteenth birthday at the time of the commission of the crime, the punishment
shall be imprisonment for life without eligibility for probation or parole, or
release except by act of the governor.
§ 565.020. “Substantial deference is due to the legislature’s determination of proper
punishment.” State v. Pribble, 285 S.W.3d 310, 314 (Mo. banc 2009).
The United States Supreme Court held in Miller that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole for juvenile
offenders” when the sentencer has not considered an “offender’s youth and attendant
characteristics.” Miller v. Alabama, 132 S. Ct. 2455, 2469, 2471 (2012) (emphasis added). In
State v.Hart, 404 S.W.3d 232, 237-38 (Mo. banc 2013), a first-degree murder case involving a
juvenile, the Missouri Supreme Court acknowledged and applied Miller’s holding in Missouri.
Here, simply put, Perdomo-Paz was not a juvenile at the time he committed the crimes.
He was an adult. Neither the United States Supreme Court’s holding in Miller nor the Missouri
Supreme Court’s holding in Hart is applicable.
The trial court sentenced Perdomo-Paz to consecutive terms of life imprisonment without
the possibility of parole for the two first-degree murder convictions—permissible sentences for
an eighteen-year-old for that crime. A mandatory life-without-parole sentence for an
eighteen-year-old does not violate the prohibition against imposing such a sentence on a
4
“[A] defendant will be sentenced according to the law in effect at the time the offense was committed
unless a lesser punishment is required by a change in the law creating the offense itself.” Williams, 420 S.W.3d at
717 n.8 (internal quotation omitted).
21
defendant under the age of eighteen. Furthermore, the record establishes that the trial court did,
in fact, consider Perdomo-Paz’s age and the severity of his crimes when determining his
sentence. The trial court reviewed Perdomo-Paz’s sentencing assessment report and, at the
sentencing hearing, heard and considered comments from the victims’ family members, the
prosecutor, Perdomo-Paz’s parents, and defense counsel, who requested that the court consider a
parolable sentence based on Perdomo-Paz’s age and for family reasons. The trial court found
that Perdomo-Paz “intentionally and deliberately executed three young men for no reason other
than what appeared to be a frustration over a former girlfriend” and imposed the permissible
sentence of imprisonment for life without eligibility for probation or parole. § 565.020.2.
Based on our review of the record, we conclude that the trial court did not abuse its
discretion in sentencing Perdomo-Paz in that the sentence was authorized by statute and was not
disproportionate to the severity of the offenses Perdomo-Paz committed.
Additionally, the trial court retains discretion to order consecutive or concurrent
sentences. § 558.026. Section 557.036.1 directs courts to “decide the extent or duration of
sentence or other disposition to be imposed under all the circumstances, having regard to the
nature and circumstances of the offense and the history and character of the defendant and render
judgment accordingly.” “When the sentence imposed is within the range prescribed by statute, it
cannot be judged excessive, and the consecutive effect of the sentences does not constitute cruel
and unusual punishment.” State v. Mort, 321 S.W.3d 471, 485 (Mo. App. S.D. 2010) (internal
quotation omitted).
Point V is denied.
22
Conclusion
The judgment of the trial court is affirmed.
Mark D. Pfeiffer, Presiding Judge
Gary D. Witt, Judge, and Zel M. Fischer, Special Judge, concur.
23