Powell v. State

• Decision Date: 02 February 2000
• Docket Number: No. F-97-763.,F-97-763.
• Citation: 2000 OK CR 5,995 P.2d 510
• Parties: Paris Lapriest POWELL, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

995 P.2d 510

2000 OK CR 5

Paris Lapriest POWELL, Appellant, v. STATE of Oklahoma, Appellee.

No. F-97-763.

Court of Criminal Appeals of Oklahoma.

February 2, 2000.

Rehearing Denied March 15, 2000.

Robert J. Moldfelt, Michael McBride, Asst. Public Defenders, Oklahoma City for Appellant at trial.

Brad Miller, Asst. Dist. Atty., Oklahoma City, for the State at trial.

Andrea Digilio Miller, Asst. Public Defender, Oklahoma City, for Appellant on appeal.

W.A. Drew Edmondson, Atty. Gen., William L. Humes, Asst. Atty. Gen., Oklahoma City, for the State on appeal.

OPINION

LUMPKIN, Vice-Presiding Judge:

¶ 1 Appellant, Paris Lapriest Powell, was tried by a jury and convicted of First Degree Murder (malice aforethought) (Count I) in violation of 21 O.S.1991, § 701.7, and Shooting with Intent to Kill (Count II) in violation of 21 O.S.1991, § 652 in Case No. CF-93-3926, District Court of Oklahoma County. The jury found the existence of one aggravating circumstance, that Appellant knowingly created a great risk of death to more than one person, and recommended the punishment of death. The trial court sentenced Appellant in accordance with this recommendation. Appellant now appeals his convictions and sentences.¹

¶ 2 On June 25, 1993, two youths were gunned down in a drive-by shooting on Southeast 22nd Street in Oklahoma City. Fourteen year old Shauna Farrow died at the scene when a bullet penetrated her chest and passed through her heart and lungs. Seventeen year old Derrick Smith was shot in the hip, resulting in extensive injuries to his leg. He was placed in a body cast, and his leg injury required the permanent placement of a metal rod and pin.

¶ 3 Derrick Smith had known Appellant for six or seven years and was in contact with him every day for about eighteen months prior to the shooting. Smith was not a friend of Appellant, nor did Smith even like him. Smith had also known Yancey Douglas for about eight years and saw him every day. Douglas used to stay with Smith's aunt from time to time.

¶ 4 At the time of the incident, Smith was a member of the Southeast Village Crips (SEV). Appellant and Douglas were members of the 107 Hoover Crips. The SEVs and the 107 Hoovers are not rival gangs; they help each other out on occasion when there is a dispute with another gang. However, Smith claimed the two gangs were locked in a dispute in June of 1993. Carlos Morris, a 107 Hoover, had been shot and killed by Valdez Wilburn, an SEV, two weeks earlier.

¶ 5 Smith testified that on the day of the shooting, he went to the Ambassador Courts Apartments to hang out with his friends, smoke marijuana, and sell crack. This was apparently Smith's normal daily routine. At the time, he was carrying crack cocaine on his person and a .380 caliber automatic pistol. Smith testified he was not particularly concerned about the dispute between his gang and the 107 Hoovers because he had still been hanging out with Yancey Douglas.

¶ 6 Upon arriving at the apartments, Smith smoked between eleven to fifteen marijuana cigarettes, and he also drank some Everclear alcohol. He testified he was intoxicated, "somewhat" high and drunk, but not out of touch with reality. He recalled how he and a friend had been talking with Shauna Farrow.

¶ 7 At about 11 p.m., Shauna left the apartments and began walking home. Smith joined her, pushing along his little sister's ten speed on the way. Smith testified there were numerous street lights in the area.

¶ 8 Just before arriving at his home on Southeast 22nd street, a car approached Shauna and Smith from behind, heading east. Smith recalled hearing a song coming from the car, a song he associated with Yancey Douglas. Smith testified it was an old song by Ice Cube that Yancey Douglas used to listen to and like. Smith described the car as a gray hatchback, possibly a Datsun. He identified State's exhibit 2, a photograph of a blue Dodge Omni, as the car he saw.

¶ 9 As the car passed, Smith could not see any faces inside. He only saw shadows. The car went over a hill and turned around. Smith saw the car's headlights reflect off a house as it turned. The car pulled up to Smith and Shauna and then stopped. After a pause of two or three seconds, the driver's door opened up and Smith recognized Appellant and Yancey Douglas. Douglas was sitting in the passenger seat, and Appellant was driving. Smith also saw a shadow of another passenger from the back seat. At that point, lights of fire jumped out of the car from the hands of the car occupants. Smith said he was immediately hit by one of the gunshots, estimating there had been some fourteen or fifteen shots. He heard bullets whizzing by his ears. Smith lay on the ground, pretending he was dead. As the car drove off, Smith heard a high-pitched voice similar to Douglas's voice say, "fuck 'em."

¶ 10 Smith attempted to crawl away from the scene, leaving his 2.5 gram bag of crack cocaine behind in the process. Neighbors assisted him. Meanwhile the car drove up several houses, and the doors opened. Smith said it looked as though the car had changed drivers. Smith threw his gun over a fence. The gun was never located.

¶ 11 During cross-examination, defense counsel brought out some inconsistencies between Smith's trial testimony and his previous statements. At the preliminary hearing, Smith testified the car had a little ruffle in the back and on the sides. During trial, he said there was no ruffle in the back. Smith initially told an officer the gray two-door hatchback was followed by a beige car, possibly a Grand Prix. Smith also told one officer he was only fifty percent sure Appellant was the driver of the car. Smith admitted telling Joanne Marie Paul he could not tell who was in the car that night. Further, Smith admitted he had given an incorrect statement regarding seeing Appellant and Anthony Highsaw in the hatchback on previous occasions.

¶ 12 Randy Gregg lived on Southeast 22nd on the night of the shooting. At around midnight, he was sitting watching television in his bedroom when he heard the sound of firecrackers right in front of his house. He jumped up and looked out the window. He saw a small, dark colored car leaving in a hurry. He also saw two kids. One was laying at the edge of the street, and the other was crawling up the street. By listening to the gunshots, Mr. Gregg thought there was more than one gun involved in the shooting.

¶ 13 Tim Love is a plastic surgeon at Baptist Hospital in Oklahoma City. He testified how Appellant arrived at Baptist Hospital in the early morning hours of June 25, 1993, seeking treatment for a gunshot wound to the hand. Appellant gave his name as Marty Powell. The records showed that Appellant arrived at the emergency room at 1:32 a.m. Love testified that the entry point of the wound was high on the hand, somewhere between the wrist and the knuckles. The exit point was at the lower end of the hand, toward the little finger, adjacent to the fourth knuckle. Both the entry and exit points were on the back of the hand. The injury broke two bones. Love's notes indicated Appellant had been shot at close range with a handgun.

¶ 14 E.R. was a school mate of Shauna Farrow. E.R. testified that on the night of the shooting, she saw Yancey Douglas and some members of the Hoover Crips standing in a parking lot. Douglas said, "Are y'all ready to do this?" Douglas said something about going to the south side. He and two other men hopped into a bluish-gray hatchback and drove off. It was approximately 8:45 p.m. As they left, Douglas fired a gunshot out of his window. E.R. identified the car depicted in State's exhibit 2 as the car she saw that evening. After learning Shauna Farrow had been murdered, E.R. called a police hot line and told them what she knew.

¶ 15 W.M. corroborated much of E.R.'s story. She also saw Yancey Douglas and other members of the 107 Hoovers at 8:45 p.m. on the night of the shooting. Douglas said something about going to the south side and "that he had got into it with some more gang members on the south side." W.M. saw Douglas and two other black males get inside a gray or blue two door hatchback. Douglas was carrying a gun. He started "talking trash" and threatened to shoot up their house. As the car drove away, two shots were fired. W.M. stated the car depicted in State's exhibit 2 looked like the car Douglas was driving in that night.

¶ 16 A.L. testified that on the day before the shooting, she was with her sister and two friends at the Ambassador Courts Apartments. Her two friends were members of the SEV Crips. Sometime after ten, A.L., her sister, and her two friends were walking to A.L's grandmother's house when she heard Yancey Douglas approach in gray two-door car. A.L. knew Douglas because he used to live with her. She heard someone in the car say, "there go them SEV niggers." A.L. saw Douglas pointing a gun out the window toward the ground. He said, "Them is Nut's sisters, put the guns up." A.L.'s friends took off running. A.L. identified the car depicted in State's exhibit 2 as the car she saw that evening.

¶ 17 Gordon Robertson is a firearms examiner in the forensic services division of the Oklahoma City Police Department. He examined shells and bullet fragments gathered from the victims and the crime scene. Robertson concluded there was "an absolute minimum of three firearms involved in firing or ejecting the evidence that we have here."

¶ 18 Leon Washington owns a garage in Oklahoma City. He testified that in June of 1993, Appellant worked for him at the garage. Washington loaned Appellant vehicles to drive from time to time. Right before the incident, Washington loaned Appellant a blue Dodge Omni, identified as the car in State's exhibit 2. Yancey Douglas and "another dude" returned the Omni to Washington on the same day Washington found out Appellant had been shot. When police came looking for the car, Washington had already sold it to a relative. The car was not recovered until two...