Vincent Ray Perosi v State Of Oklahoma

F-2017-1042

Filed: Apr. 18, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Vincent Ray Perosi appealed his conviction for First Degree Murder and Assault and Battery with a Deadly Weapon. Conviction and sentence: life imprisonment without the possibility of parole for the murders, and life imprisonment for the assault, with sentences running consecutively. Judge Hudson dissented.

Decision

The Judgment and Sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in denying the motion to dismiss based on the "Stand Your Ground" law?
• Did the trial court err in denying requested jury instructions on the "Stand Your Ground" law?
• Was there sufficient evidence supporting the convictions and did the State prove Appellant did not act in self-defense?
• Did the trial court err in failing to give instructions on the defense of excusable homicide by accident or misfortune?
• Was the admission of Appellant's police interrogation recording erroneous?
• Did the trial court err in admitting bad character evidence regarding Appellant's obscene gesture?
• Was the victim impact statement from Ms. Perosi's sister-in-law improperly admitted?
• Was there ineffective assistance of counsel for failing to renew objections regarding the videotaped interview admission?

Findings

• the trial court did not err in denying Appellant's motion to dismiss based on stand your ground immunity
• the trial court properly denied Appellant's requested jury instructions on the "Stand Your Ground" law
• there was sufficient evidence to support Appellant's convictions for first degree murder and assault and battery with a deadly weapon
• the trial court did not err in refusing to give instructions on excusable homicide
• the trial court did not err in admitting State's Exhibit 128, the recorded confession
• the trial court did not err in admitting bad character evidence regarding Appellant's obscene gesture
• the trial court did not err in admitting victim impact statements from Ms. Perosi's sister-in-law
• Appellant was not denied effective assistance of counsel regarding the introduction of State's Exhibit 128

F-2017-1042

Apr. 18, 2019

Vincent Ray Perosi

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Vincent Ray Perosi was tried by jury and convicted of First Degree Murder (21 O.S.Supp.2012, § 701.7(C)) (Counts I and II) and Assault and Battery with a Deadly Weapon (21 O.S.2011, § 652(C)(Count III), Case No. CF-2016-16 in the District Court of Garfield County. The jury recommended as punishment life imprisonment without the possibility of parole in Counts I and II and life imprisonment in Count III. The trial court sentenced accordingly, ordering the sentences to run consecutively. It is from this judgment and sentence that Appellant appeals.

Appellant and Pamela Perosi had been married for seventeen (17) years when they divorced in 2015. A house located at 1402 E. Park in Enid, Oklahoma, was the most contentious part of the divorce proceedings. The house was in Ms. Perosi’s name, having been deeded to her by Appellant’s mother in 1997, and was awarded to Ms. Perosi in the divorce proceedings. However, the contents of the house were awarded to Appellant. He continued to live in the house alone and was given until January 1, 2016, at 5:00 p.m. to move out of the house. Appellant contacted Ms. Perosi seeking additional time to move out. It was disputed at trial as to how much time she gave him, but by January 2, 2016, Appellant was still in the house.

Ms. Perosi contacted her attorney in the divorce proceedings complaining that Appellant was not complying with the court’s order to move out of the house. She was advised to take someone with her to the house on January 2 and if there were any problems, she should leave and call her attorney. Shelva Dalrymple lived next door to the Perosi house. At approximately 5:00 p.m. on January 2, her son, Alan Dalrymple, arrived at her home and saw a woman lying on the curb in front of the Perosi house. When Mr. Dalrymple went to check on the woman, he saw Appellant standing on the porch shouting. Mr. Dalrymple also observed a woman leaning over a gate, which was swung open into the front yard. Mr. Dalrymple heard Appellant shout they would not leave him alone and just kept messing with him, that he was probably going to jail for the rest of his life but the lady leaning over the fence would have to live with what happened there that day for the rest of her life. Appellant told Mr. Dalrymple he had to get rid of something. When asked what it was, Appellant responded that it was a gun. He reached into his coverall cuff, pulled out the gun, and started toward Mr. Dalrymple. Mr. Dalrymple told him to just sit on the porch, but Appellant continued walking. When Appellant got to the fence across the front yard, Mr. Dalrymple told him to put the gun in the nearby mailbox. Appellant ignored that request and instead walked over and handed the gun and clip to Mr. Dalrymple. In the meantime, the police had been called and arrived soon thereafter. Mr. Dalrymple gave the police the gun and the clip and said Appellant handed them to him. The woman lying on the front curb was Pamela Perosi. She was deceased, having suffered a gunshot wound to her back. The woman leaning over the fence was Karen Priest, a friend of Ms. Perosi. She suffered a gunshot wound to her arm but survived. A third victim was found near the front steps to the house. Buddy Weber, a friend to Ms. Perosi and Ms. Priest, was deceased having suffered a gunshot wound to the chest.

The surviving victim of the shooting, Ms. Priest, testified at trial. She said that she and Ms. Perosi were friends and had been sharing a home until Ms. Perosi could move into her house on Park Street. Ms. Priest had met Appellant only on one or two occasions around the recent Christmas holiday. She went with Ms. Perosi January 1 to see if Appellant was going to be out of the house by 5:00 p.m. Ms. Priest heard Appellant tell Ms. Perosi he was having trouble getting someone to help him move his things out of the house and that he needed another day. Appellant was given twenty-four (24) hours to get his things out of the house. On January 2, Ms. Perosi, Ms. Priest, and Mr. Weber, with whom Ms. Priest was in a relationship, went to the house at 1402 E. Park. Ms. Perosi had purchased new locks and intended to change the locks on the house. When they went to the front door, Ms. Perosi and Appellant began to argue because it looked like Appellant had not moved much out of the house. Ms. Priest and Mr. Weber proceeded to remove a doorknob on the front door and change the lock. Ms. Priest was not able to get the package of door locks open, so she went to her car where she had a pair of scissors that she could use to open the package. She opened the package part way, left the scissors in the car, and walked back up to the house while she finished opening the package. Mr. Weber was just inside the house at the front door trying to get the screws out of the door. Ms. Priest then saw Appellant pull a gun out from his coveralls and shoot Mr. Weber and Ms. Perosi. Appellant then turned his attention to Ms. Priest and asked if she wanted him to shoot her. She replied, no, that this is all crazy before Appellant shot her. The gunshot to Ms. Priest went behind her right arm, through her back and through her right lung. She was bleeding profusely when medical personnel arrived and was eventually airlifted to the medical center in Oklahoma City.

Appellant was arrested at the scene. He was later interviewed by detectives with the Enid Police Department. Appellant claimed that his ex-wife and her friends verbally assaulted and cursed him. Appellant said that after about 20-30 minutes, Mr. Weber charged at him. Scared for his life, Appellant admitted shooting Weber. Appellant admitted shooting Ms. Priest because she acted like she was going to do something. When asked why he shot his ex-wife, Appellant said it was because she had lied to him and did everything in her power to ruin him. Appellant also testified at trial. He renewed his claims that he shot Mr. Weber and Ms. Priest because they caused him to be in fear for his life. However, he claimed that his shooting of his ex-wife was an accident and she must have been struck with a bullet meant for Mr. Weber. Further facts will be set forth as necessary.

In his first proposition of error, Appellant claims the trial court erred in denying his motion to dismiss on grounds of immunity based upon 21 O.S.2011, § 1289.25, also known as the Stand Your Ground law. We review the trial court’s ruling for an abuse of discretion. Dawkins U. State, 2011 OK CR 1, I 11, 252 P.3d 214, 218. An abuse of discretion is a conclusion or judgment that is clearly against the logic and effect of the facts presented. State v. Delso, 2013 OK CR 5, 9 5, 298 P.3d 1192, 1194. Subsequent to Preliminary Hearing, Appellant filed a one sentence Motion to Dismiss on Grounds of Immunity, citing 21 O.S.2011, § 1289.25(B), (D) and (F). Thereafter, the trial court held a two-day hearing on the motion where testimony and argument was presented. At the conclusion of the hearing, the trial court denied the motion stating in part that under the facts of the case, Appellant failed to establish that he was in great fear of bodily harm or imminent peril such that he would be entitled to immunity from prosecution. The pertinent portions of § 1289.25(B) provide that a person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself when using defensive force that is intended or likely to cause death or great bodily harm to another if: 1. The person against whom the defensive force was used was

Footnotes:

1. 21 O.S.Supp.2012, § 701.7(C)
2. 21 O.S.2011, § 652(C)
3. 21 O.S.2011, § 1289.25
4. 21 O.S.2011, § 1289.25(B)
5. 21 O.S.2011, § 1289.25(C)
6. 21 O.S.2011, § 1289.25(D)
7. 21 O.S.2011, § 1289.25(F)
8. 21 O.S.2011, § 733(2)
9. 21 O.S.2011, § 731
10. 21 O.S.Supp.2014, § 142A-1(1)
11. 21 O.S.Supp.2014, § 142A-1(2)
12. 21 O.S.Supp.2014, § 142A-8(A)
13. 22 O.S.2011, § 976

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2012) - First Degree Murder
• Okla. Stat. tit. 21 § 652 (2011) - Assault and Battery with a Deadly Weapon
• Okla. Stat. tit. 21 § 1289.25 (2011) - Stand Your Ground Law
• Okla. Stat. tit. 21 § 1289.25(B) (2011) - Defensive Force
• Okla. Stat. tit. 21 § 1289.25(C) (2011) - Presumption of Reasonable Fear
• Okla. Stat. tit. 21 § 1289.25(D) (2011) - No Duty to Retreat
• Okla. Stat. tit. 21 § 1289.25(F) (2011) - Immunity from Prosecution
• Okla. Stat. tit. 21 § 733(2) (2011) - Self-Defense
• Okla. Stat. tit. 21 § 731 (2011) - Homicide by Accident or Misfortune
• Okla. Stat. tit. 21 § 142A-1 (2014) - Oklahoma Victim's Rights Act
• Okla. Stat. tit. 21 § 142A-8 (2014) - Victim Impact Statements
• Okla. Stat. tit. 12 § 2404 (2011) - Character Evidence
• Okla. Stat. tit. 12 § 2403 (2011) - Exclusion of Relevant Evidence
• Okla. Stat. tit. 12 § 2401 (2011) - Relevant Evidence Defined
• Okla. Stat. tit. 22 § 976 (2011) - Sentencing Procedures

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

No case citations found.