Powell v. Com.
| Decision Date | 16 January 2004 |
| Docket Number | Record No. 031421. |
| Citation | 267 Va. 107,590 S.E.2d 537 |
| Court | Virginia Supreme Court |
| Parties | Paul Warner POWELL v. COMMONWEALTH of Virginia. |
Matthew L. Engle (Mark B. Williams, Danville; Carroll A. Weimer, Jr., Manassas; Virginia Capital Representation Resource Center; Weimer & Boyce, on briefs), for appellant.
Robert Q. Harris, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: All the Justices.
OPINION BY Justice LAWRENCE L. KOONTZ, JR.
In this appeal, we review the capital murder conviction and sentence of death imposed upon Paul Warner Powell for the murder of Stacey Lynn Reed in the commission of, or subsequent to, attempted rape. Code § 18.2-31(5).
Powell was originally convicted of the capital murder of Stacey Lynn Reed in 2000 and sentenced to death. See Powell v. Commonwealth, 261 Va. 512, 530, 552 S.E.2d 344, 354 (2001). In the same trial, Powell was convicted of the abduction, rape, and attempted capital murder of Stacey's younger sister, Kristie Erin Reed, and was sentenced to three terms of life imprisonment and fines totaling $200,000 for those crimes.1 Id.
Upon review of the capital murder conviction and the death sentence imposed upon Powell, this Court reversed the conviction on various grounds including a finding that the indictment charging Powell with capital murder in the commission of robbery and/or attempted robbery had been improperly amended to include a charge of capital murder "during the commission of or subsequent to rape and/or attempted rape and/or sodomy and/or attempted sodomy."2 Id. at 532, 552 S.E.2d at 355-56. Upon review of the record, we further held that the wording of the indictment limited the Commonwealth to proving that the "gradation crime was a rape occurring before or during the killing," id. at 538-39, 552 S.E.2d at 359, and there was "no evidence upon which the jury could have found that Powell committed the rape of Kristie before or during the murder of Stacey." Id. at 541, 535 S.E.2d at 361.
We summarized the consequence of these holdings in the conclusion of the opinion, stating:
The mandate from this Court to the trial court tracked the language of the opinion, and directed that "the case is remanded . . . for a new trial on a charge of no greater than first degree murder for the killing of Stacey Reed, if the Commonwealth be so advised."
On October 21, 2001, Powell wrote an obscenity-laced letter to the Commonwealth's Attorney who had prosecuted Powell in his first trial.3 Powell stated in the letter that, because he believed he could not be retried for capital murder, "I figured I would tell you the rest of what happened on Jan. 29, 1999, to show you how stupid all y'all . . . are." Admitting that he "planned to kill the whole family" on that day, Powell further stated that "I had other plans for [Stacey] before she died." Powell described how he had attempted to initiate consensual sexual intercourse with Stacey, which he had previously admitted. Powell then revealed that when Stacey resisted his advances, he pushed her onto her bed and, while sitting on top of her, told Stacey "that we could do it the easy way or the hard way."
Powell then described how Stacey had "started fighting with me and clawed me [sic] face." Powell stated that he "slammed her to the floor . . . sat on top of her and pinned her hands down again." Powell claimed that Stacey relented "and I told her if she tried fighting with me again I would kill her."
Continuing, Powell stated that, at his direction, Stacey began to disrobe, but stopped when the telephone rang. Stacey put her clothes back on so that she could answer the telephone. Powell refused to allow Stacey to answer the telephone and ordered her to resume disrobing. When she refused, Powell "pushed her back and pulled out [his] knife." When Stacey attempted to leave the bedroom, Powell stabbed her. Stacey fell back and Powell removed the knife. Stacey then stumbled to another bedroom and collapsed. Powell "saw that she was still breathing" and "started stomping on her throat" until he "didn't see her breathing anymore."
Armed with this new evidence, the Commonwealth elected to nolle prosequi the indictment in the remanded case, under which it was limited to trying Powell for first degree murder under our mandate, and sought a new indictment against Powell for capital murder. On December 3, 2001, the grand jury returned an indictment charging Powell with the capital murder of "Stacey Lynn Reed during the commission of or subsequent to the attempted rape of Stacey Lynn Reed."
On April 24, 2002, Powell filed a motion to dismiss the December 3, 2001 indictment. Powell asserted that "[w]hen the Supreme Court of Virginia issues an opinion concerning a case, this opinion becomes the law of the case" and, thus, the directive of the opinion and mandate from this Court in his first appeal limited his retrial to a charge no greater than first degree murder, regardless whether that trial was conducted under the original indictment or a new indictment. The Commonwealth filed a response to this motion, asserting that the judgment of this Court in Powell's first appeal was not applicable to the December 3, 2001 indictment because Powell had "never [previously] been charged with the capital murder of Stacey Reed in the commission or attempted commission [of] sexual assault against [Stacey Reed] because, at the time of [Powell's first] trial, no such evidence existed." Accordingly, the Commonwealth contended that the December 3, 2001 indictment was "a new charge, one that has never been litigated in trial nor considered by the Virginia Supreme Court." Following a hearing on this and other pre-trial matters, the trial court overruled Powell's motion to dismiss the indictment in an order dated May 6, 2002.
On May 17, 2002, Powell filed a second motion to dismiss the December 3, 2001 indictment. The briefs filed in the trial court in support of and in opposition to this motion parallel the arguments made on appeal with respect to this issue and, accordingly, we will only summarize the essential points of those arguments here. The import of Powell's argument was that his prior trial and the reversal of his conviction by this Court acted as an "implied" or "judicial" acquittal of the attempted rape of Stacey, thus barring his retrial for her capital murder premised on that gradation offense. The Commonwealth responded that the issue whether Stacey had been the victim of a sexual assault was not before the jury in his first trial because the bill of particulars provided at Powell's request indicated that only Kristie was the victim of the sexual assault gradation offenses charged in the amended indictment. Similarly, the Commonwealth contended that our comments concerning the insufficiency of the evidence to prove a sexual assault or attempted sexual assault against Stacey were not directed toward any finding of the jury, but to the contrary were indicative of the fact that the jury did not consider whether Stacey had been the victim of such an assault or attempt.
On June 5, 2002, the trial court held a hearing on Powell's second motion to dismiss the indictment. After hearing argument, the trial court stated that by identifying Kristie as the victim of the rape or attempted rape in the bill of particulars, the Commonwealth had clearly identified her as the victim of those gradation crimes in the amended indictment for capital murder. The trial court also agreed with the Commonwealth that this Court's reference to the lack of evidence to prove any sexual assault or attempted sexual assault against Stacey was merely a comment on the record, and not an assertion that this was a theory of the case presented by the Commonwealth in Powell's first trial. On July 3, 2002, the trial court entered an order overruling Powell's second motion to dismiss the indictment.
On April 25, 2002, Powell filed a motion to have Virginia's statutory scheme for charging a capital crime and imposing a death sentence declared unconstitutional on various grounds. On appeal, Powell reasserts only some of these arguments and does so only in summary fashion. Accordingly, we will not summarize those arguments in detail here, but will address them within the discussion of the relevant assignment of error, infra.
On April 26, 2002, Powell filed a motion seeking to have the Commonwealth's Attorney's office disqualified from prosecuting his case. Powell contended that the Commonwealth's Attorney had a conflict of interest because he was a key "chain of custody witness" with respect to his receipt of Powell's October 21, 2001 letter "confession" to the attempted rape of Stacey. Powell further contended that the offensive nature of that letter and his other conduct toward the Commonwealth's Attorney had created such a level of animosity that the Commonwealth's Attorney would not be able to objectively pursue justice, but would instead seek to satisfy a personal vendetta against Powell. Powell further contended that this taint of bias extended to every...
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