Tuesday, April 25, 2006
High Court Upholds Death Sentence in Store Owner’s Murder
Defendant’s Exclusion From Bench Conference Following Courtroom Disruption Held Not to Violate Due Process
By KENNETH OFGANG, Staff Writer/Appellate Courts
The California Supreme Court yesterday unanimously affirmed the death sentence imposed in the 1995 robbery-murder of a Hanford convenience store owner.
The justices unanimously rejected the argument that Clifton Perry’s rights were violated when he was excluded from a bench conference held after his wife caused a disturbance in the courtroom. Justice Joyce L. Kennard, writing for the high court, said that the conference did not deal with matters critical to Perry’s right to defend himself, so he had no constitutional or statutory right to be present.
Perry and Leon Noble were convicted of first degree murder and robbery after Perry shot Saeed Nasser at the Stop and Shop Market. Witnesses testified that after drinking alcohol and smoking marijuana, hours before the killing occurred, Perry and Noble plotted a robbery, with Perry asking a friend to buy gloves and red bandanas.
The victim’s nephew, 16-year-old Sami Nasser, testified that a man with a bandana covering his face came into the store and hit him with what he thought was a gun. Sami said he dropped to the floor behind the counter, then began crawling toward the back when he heard gunshots; when he reached the back room he saw his uncle wounded on the floor and went to a telephone behind the store to call for help.
The murder weapon, a .357-caliber Ruger revolver, was found by police several days later, along with burned clothing, including gloves and a red bandana, behind the home where the defendants had been smoking and drinking earlier on the day of the murder. Police identified the persons who had been at the house and obtained a statement from Perry.
In addition to Perry and Noble, another person who was present, Paul LeBlanc, was initially charged with the murder. But LeBlanc, who according to another witness had told Noble and Perry not to go ahead with the robbery plan, eventually became a prosecution witness against the two men.
Both defendants were convicted of first degree murder and robbery, and jurors found that Perry had personally carried a firearm.
In the penalty phase, prosecutors presented evidence of Perry’s prior cases—two juvenile court adjudications, one for two counts of assault with a deadly weapon and one for attempted robbery and assault with a deadly weapon, plus convictions for battery and armed robbery.
Perry testified that he went to the store with a gun, intending to rob it. While he was there, he claimed, someone jumped him and he started shooting.
It was Noble, he said, who hit Sami Nasser, but with his hand, not a gun. Noble, he said, was unarmed.
Perry also testified to a difficult childhood. His father, he said, was in prison; his mother was a heroin user who beat him, causing social workers to remove him from the home on several occasions.
Much of his childhood, he explained, was spent in South Central Los Angeles, where he joined a gang for protection against older boys.
Following the penalty phase, jurors returned a verdict setting the punishment at death for Perry and life imprisonment without possibility of parole for Noble.
The incident that formed a major part of the defense appeal occurred during the guilt phase, when a bailiff told the judge that two jurors claimed to have overheard a conversation between two spectators regarding some of the testimony about the defendants’ drug use before the murder.
Kings Superior Court Judge Louis Bissig took testimony from the jurors outside the presence of the rest of the jury. As one of the jurors testified about what the spectators said, Perry’s wife came into the courtroom and said that LeBlanc and his mother had attacked her.
After concluding the hearing and determining that no action regarding the jurors was necessary, Bissig suggested that he was thinking about excluding Perry’s wife and sister-in-law from the courtroom in order to avoid further disruptions or problems with the jury. Perry’s attorney, however, suggested that this would be a bad idea because the defendant might “go off,” become “unmanageable,” and “hurt somebody,” perhaps the lawyer.
Noble’s attorney suggested that the judge exclude the defendant’s wife but allow her sister to stay, so that there would at least one relative present who could communicate with the family. Perry’s attorney agreed that allowing one family member to be in court might help “keep these two gentlemen gentlemen,” and the judge agreed that Perry’s sister-in-law could remain in the courtroom as long as she did not disrupt the proceedings.
Deputy State Public Defender Ronald Turner, representing the defendant on appeal, argued that he had a state and federal constitutional right to be present during the bench conference, but Kennard disagreed.
The justice cited cases permitting exclusion of defendants from conferences on the competency of child witnesses, removal of a juror, jury instructions, or procedural matters such as when to resume proceedings after a recess.
Kennard rejected the argument that Perry’s exclusion from the conference prejudiced him by allowing his counsel to tell the judge and the prosecutor that he was a violent person, leading the judge to characterize him as such in denying his motion to modify the death penalty verdict.
By the time of the sentencing hearing, the justice explained, Perry’s violent proclivities were already well known. He himself had testified that he was a longtime gang member who carried a gun to intimidate people, the prosecution and defense had stipulated to his prior convictions for violent crimes, and he had admitted that he went to the market on the night of the murder carrying a gun and intending to commit a robbery.
The justice also rejected the argument that defense counsel abandoned his client when he told the trial judge that Perry was a violent person. To the contrary, Kennard said, the attorney was serving his client’s interests by urging the judge to allow at least one family member to remain in the courtroom.
The case is People v. Perry, 06 S.O.S. 2035.
Copyright 2006, Metropolitan News Company