Powell v. Com.

• Decision Date: 08 June 2001
• Docket Number: Record No. 002243.,Record No. 002242
• Court: Virginia Supreme Court
• Parties: Paul Warner POWELL v. COMMONWEALTH of Virginia.

552 S.E.2d 344

261 Va. 512

Paul Warner POWELL v. COMMONWEALTH of Virginia.

Record Nos. 002242, 002243.

Supreme Court of Virginia.

June 8, 2001.¹

Daniel J. Morissette; Ronald W. Fahy (DePolo & Morissette, on brief), Manassas, for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Mark L. Earley, Atty. Gen., on brief) for appellee.

Present CARRICO, C.J., LACY, HASSELL, KEENAN, KOONTZ, and LEMONS, JJ., and WHITING, Senior Justice.

Opinion by Senior Justice LAWRENCE L. KOONTZ, JR.

In these appeals, we review the capital murder conviction, related convictions, and sentence of death imposed upon Paul Warner Powell.²

I. THE CRIMES

We will review the evidence in the light most favorable to the Commonwealth, the party prevailing below. Clagett v. Commonwealth, 252 Va. 79, 84, 472 S.E.2d 263, 265 (1996), cert. denied, 519 U.S. 1122, 117 S.Ct. 972, 136 L.Ed.2d 856 (1997).

Powell was acquainted with Stacey Lynn Reed (Stacey) for two and a half years prior to the commission of the crimes in question. Kristie Erin Reed (Kristie), Stacey's younger sister, described her sister and Powell as "[f]riends." Powell, who was 20 years old at the time of the murder, had wanted to date Stacey, who was 16 years old, but recognized that she was underage and he "could go to jail for that."

Powell, a self-avowed "racist and white supremacist," was aware that Stacey, who was white, was dating Sean Wilkerson, who is black. Wilkerson had recently moved to another locality, but he and Stacey remained in contact. Stacey was a member of her high school's Junior Reserve Officer's Training Corps and planned to attend a military ball with Wilkerson.

Just before noon on January 29, 1999, Stacey arrived home from school early, having completed her examinations that were being given that day. Powell was waiting for her at her home when she arrived. When Powell learned that Robert Culver, a friend of the girls' mother, would be home shortly for lunch, Powell left and returned at about 12:45 p.m., after Culver had left. When Powell returned, he was armed with a "survival" knife, a "butterfly" knife, a box cutter, and a 9-millimeter pistol.

Stacey was talking to Wilkerson on the telephone. After Stacey ended the telephone conversation, Powell confronted her about her relationship with Wilkerson. He demanded that Stacey end her relationship with Wilkerson. According to Powell, he and Stacey argued, and the argument grew into a struggle. Powell drew the survival knife from his belt and Stacey "got stuck." Powell denied stabbing Stacey deliberately. The struggle continued briefly until Stacey collapsed on the floor in her sister's bedroom.

Although Powell did not know whether Stacey was still alive, he made no effort to determine her condition or call for medical assistance. Powell "wandered around the house, got some iced tea, had a cigarette." Kristie arrived home from school shortly after 3 p.m. and was met at the door of the home by Powell. Powell told her that Stacey was in her room, but moments later Kristie discovered her sister's body in Kristie's bedroom. She dropped her schoolbooks and began to cry.

Powell ordered Kristie to go to the basement. Kristie, who knew that Powell was usually armed, complied because she "didn't want to die." In the basement, Powell ordered Kristie to remove her clothes and to lie on the floor. Powell then raped Kristie, and she "begg[ed] him not to kill her." Powell later admitted that he knew that Kristie, who was 14 years old at the time of the rape, had been a virgin.

While Powell and Kristie were in the basement, Mark Lewis, a friend of Kristie, came to the house and knocked on the door. When Powell heard the knock, he tied Kristie's legs together and tied her hands behind her back with shoelaces he cut from her athletic shoes. Powell then dressed and went upstairs.

While Powell was upstairs, Kristie managed to loosen the bonds on her hands and attempted to "scoot across the floor to hide" under the basement steps. Hearing Powell coming back to the basement, she returned to the position on the floor where he had left her. Powell then strangled Kristie with a shoelace and she lost consciousness. While she was unconscious, Powell stabbed Kristie in the abdomen and slit her wrists and throat. Powell returned upstairs, searching for "anything worth taking." He fixed another glass of iced tea, which he took with him when he left the home a short time later. Powell went to a friend's house and then drove with the friend to the District of Columbia to buy crack cocaine.

Kristie regained consciousness sometime after Powell had left her home. About 4:10 p.m., she heard Culver return home, and she called out his name. Culver discovered Kristie in the basement, called the 911 emergency response telephone number, and began rendering first aid to her. He later discovered Stacey's body upstairs. Shortly thereafter, paramedics arrived. In response to a question from one of them, Kristie identified Powell as her attacker. Powell was arrested later that day at the home of his friend's girlfriend, where he and the friend had gone after buying drugs.

Kristie was transported by helicopter to Inova Fairfax Hospital where she received treatment for her injuries. It was ultimately determined that the wounds to her throat and abdomen each came within one centimeter of severing a major artery which likely would have caused her death.

An autopsy revealed that Stacey had died from a knife wound to the heart. The medical examiner testified that there was a single entrance wound and two exit wounds indicating that the knife had been withdrawn, at least partially, and then reinserted into the heart. One wound path pierced the left ventricle and the other went through both the left and right ventricles, exiting the heart at the back of the right ventricle.

Stacey's body also exhibited a number of bruises on the head, chest, abdomen, back, arms, and legs, abrasions on the face, a stab wound to the back, and a cut and scrapes on the left forearm. The autopsy further revealed that Stacey had been struck on the head with sufficient force to cause bleeding inside her scalp and in the membranes surrounding her brain prior to death. These injuries were not consistent with Stacey merely having fallen during a struggle.

The DNA profile obtained from the blood found on Powell's survival knife was consistent with the DNA profile of Stacey's blood. The DNA profile obtained from sperm fractions from swabs taken from Kristie's vagina and perianal area was the same profile as that obtained from Powell's drawn blood sample.

While in jail, Powell wrote letters to friends in which he admitted having committed the murder, rape, and attempted murder because of Stacey's relationship with a black man. He further claimed that he had planned to kill Stacey's family and steal the family's truck. Powell also wrote to a female friend and asked her to "get one of [her] guy friends . . . to go to a pay phone and call Kristie and tell her [that] she better tell the cops she lied to them and tell her [that] she better not testify against me or she's gonna die."

Powell told another inmate that he had become angry with Stacey when she refused to have sex with him after talking to Wilkerson. Powell told the inmate that he stabbed Stacey twice and that when he attempted to cut Kristie's throat, his knife was too dull, "[s]o he started stepping on her throat trying to stomp her throat." To another inmate, Powell described Stacey's killing as a "human sacrifice" and expressed satisfaction in having raped a virgin.

II. PROCEEDINGS

A. Pre-Trial

On May 3, 1999, Powell was indicted for the capital murder of Stacey in the commission of a robbery and/or attempted robbery, Code § 18.2-31(4), attempted capital murder of Kristie in the commission of rape, Code § 18.2-31(5), abduction of Kristie with intent to defile, Code § 18.2-48(ii), and the rape of Kristie, Code § 18.2-61.³ Powell filed a motion to have the capital murder and death penalty statutes declared unconstitutional and to strike the capital murder and attempted capital murder indictments. In a supporting memorandum, Powell raised several challenges to the constitutionality of the statutes, which he reasserts in these appeals and which will be discussed later in this opinion. The trial court denied the motion.

On September 14, 1999, the Commonwealth filed a motion pursuant to Code § 19.2-231 to amend the indictment for the capital murder of Stacey to also charge capital murder "during the commission of or subsequent to rape and/or attempted rape and/or sodomy and/or attempted sodomy." Powell objected to the proposed amendment, asserting that it would change the nature or character of the offense charged. The trial court permitted the amendment to the indictment.

On May 5, 1999, Powell made a motion for the appointment of a mental health expert to assist in his defense pursuant to Code § 19.2-264.3:1. The trial court granted this motion on May 14, 1999. Powell subsequently advised the Commonwealth that he intended to use the expert to provide psychiatric evidence in mitigation during the sentencing phase of the trial, if necessary.

On January 5, 2000, the Commonwealth made a motion to have Powell examined by its mental health expert pursuant to Code § 19.2-264.3:1(F)(1). By order entered on February 24, 2000, the trial court appointed Dr. Stanton E. Samenow, a clinical psychologist, to evaluate Powell on behalf of the Commonwealth. The order noted Powell's intention to present psychiatric evidence in mitigation and directed Dr. Samenow to evaluate Powell's sanity at the time of the offense pursuant to Code §§ 19.2-168.1 and 19.2-169.5.

On March 8, 2000, Dr. Samenow met with Powell. After answering the doctor's initial general questions, Powell indicated that he did not "feel like talking no more." Powell then stated that he had decided not to cooperate with the examination and that he had only come...