Thomas Petry, 55, was driving the wrong way on State Road 44, proseutors said. Devin Perkins was driving 100 mphs an hour less than two seconds before crash, prosecutors said.
Frank FernandezDaytona Beach News-Journal
Two drivers involved in a wrong-way crash that killed popular TikTok personality Ali Spice and two others are scheduled to go on trial Sept. 23, and families are divided over the prosecutors' decision to charge both drivers.
Thomas Petry, 55, of Orange City, and Devin Perkins, 24, of New Smyrna Beach, both face up to life in prison if convicted as charged. But some family members don't believe Perkins should have been charged at all.
Petry, 55, was driving a pickup truck westbound in the eastbound lane on State Road 44 just east of Interstate 4 on Dec. 11, 2022, when the truck collided head-on with the Infiniti Q50 Perkins was driving, according to police.
Petry had been drinking alcoholic beverages with Joanna Dillon, 37, of Deltona, in the hours before the crash, according to police. Dillon owned the truck Petry was driving; she was a passenger.
Perkins was driving the Infinity at 100 miles per hour less than two seconds before the crash, according to a motion filed by prosecutors.
Blood tests also showed that Perkins had a low level of alcohol in his system, well below the level of legal intoxication.
Perkins suffered serious injuries. Three others in the Infinity were killed: Alexandra Dulin, 21, who was also known as Ali Spice to almost a million TikTok followers; Kyle Jacob Moser, 25, of Daytona Beach; and Ava Fellerman, 20, of Treasure Island.
Petry exited the wrecked truck and walked away from the carnage, leaving behind the dead or dying young people. He also left behind his own passenger, Dillon, who suffered incapacitating injuries.
Petry was charged with three counts of vehicular homicide; three counts of leaving the scene of a crash with death; leaving the scene of a crash involving serious injury and reckless driving - serious bodily injury.
Perkins was charged with three counts of vehicular homicide and one count of reckless driving - serious bodily injury.
Assistant State Attorney Michael Willard said during a hearing in August that state sentencing guidelines called for a minimum sentence of 367 months in prison for Perkins and a minimum of 444 months for Petry.
No plea agreement
Circuit Judge Dawn Nichols during an Aug. 9 hearing suggested that both defense lawyers and prosecutors try to resolve the cases with plea agreements that include a sentencing range. The sentencing range would give both sides a chance to argue their case before the judge who would then decide the sentence.
But Nichols said absent any agreements, the trial would begin with jury selection Sept. 23.
One of Perkins’ defense attorneys, James Disinger, said Friday that an agreement has not been reached in the case.
"There’s not been a formal offer made to Mr. Perkins," Disinger said. "Any discussion has been that they would want substantial prison time and we just don’t think that’s appropriate based on the facts of the case. Our position has always been that Mr. Perkins was hit head-on by a drunk driver, Mr. Petry.”
Families disagree on charging Devin Perkins
Some family members told the judge during the Aug. 9 hearing that they did not believe Perkins should be charged.
“I'm here today to say that I fully believe that my brother would still be alive if Mr. Petry did not turn down the wrong way … . I don't think this is at all Devin's fault, Mr. Perkins,” said Michael Minton, who said he was one of Moser's brothers.
“I think my brother's watching us today … looking down on us. And I don't think that he would be proud of how his name is ... how his name is being used to prosecute one of his friends who was driving that night," Minton said.
Moser’s mother, Theresa Moser, also spoke during the hearing and told Nichols that Perkins should not be prosecuted. She said that circumstances would have been different had Perkins ran off the road and flipped the car.
“But that truck was on the wrong side of the divided highway and he left. ... If I hit a dog or something, I couldn’t just leave it. There’s no empathy for life there,” Moser said about Petry.
Jimmy Dulin, Alexandra Dulin’s father, also spoke, appearing via Zoom.
“I support your comment," Dulin said to the judge, "asking the attorneys to work together for a resolution pertaining to Devin. Thank you."
Father supports charges for both drivers in Ali Spice case
Greg Fellerman also spoke via Zoom and said his daughter, Ava Fellerman, “really is probably the most innocent” in the incident.
Fellerman, who said he was a former prosecutor in Pennsylvania, said both Petry and Perkins need to be held accountable.
“I think that the state is making the correct decision in prosecuting both of the defendants,” Fellerman said. ”Both of the defendants' conduct is reprehensible.”
He said he understood the legal process.
“Each person has a different degree of fault. But unfortunately, I have a dead daughter who was in the prime of her life. And we support the state with all charges,” Fellerman said.
He also said he believed that the prosecution and the defense could reach a resolution.
Nichols responded to the family members, saying that the state decides who to prosecute.
Nichols also repeated that she believed that there was a way to avoid a trial.
"I think there is a way to get this resolved. Unfortunately, I do believe there will be incarceration involved and I’m being up front. But I think there is a way to resolve this case," Nichols said.
"I understand why you all believe that Mr. Perkins and Mr. Petry are different. But I would ask you to leave that to the justice system and let the attorneys present what they need to present and that while nobody will be happy, I think there's a way to resolve this,” Nichols said.
Assistant State Attorney Willard said during the Aug. 9 hearing that no agreement was at hand.
“My understanding is that we are so far apart as to what we think is going to be appropriate that I don't think there's any type of number that they can give us … that we're going to seriously consider it,” Willard said.
And nothing has changed. In response to a question from The News-Journal, State Attorney's Office spokesman Bryan Shorsteinsaid prosecutors have not made any offers.
Judge rules on evidence in Ali Spice case
Nichols ruled that prosecutors could tell jurors that Perkins had a blood alcohol content of 0.028. That is below the level of 0.08 at which point a person is legally intoxicated.
Another attorney representing Perkins, David Jancha, argued during the hearing that Perkins' reaction time, according to the Infiniti's data recorder, was at two seconds. A traffic homicide investigator had said that reaction times at night are between two and three seconds, approximately 2.6 seconds. The defense argued that meant that Perkins' reaction time was average or better than average "in light of the state saying that he is reportedly impaired."
But Nichols ruled that prosecutors could not tell jurors that Perkins' blood tests showed THC, indicating the use of marijuana. Nichols said the amount of THC was small and chemicals from the use of marijuana could remain in someone’s system for an extended period of time.
Nichols did say that prosecutors could request again to introduce the marijuana evidence if some factor changed.
