State v. Powell
| Decision Date | 26 January 2021 |
| Docket Number | Case No. 20CA3 |
| Citation | 2021 Ohio 200 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Tyrone Q. Powell, III, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Abigail Christopher and Lauren Hammersmith, Assistant State Public Defenders, Office of the Ohio Public Defender, Columbus, Ohio for appellant.
Jason Holdren, Gallia County Prosecutor, Jeremy Fisher and Randy Dupree, Gallia County Assistant Prosecutors, Gallipolis, Ohio, for appellee.
{¶1} Tyrone Q. Powell, III appeals his murder conviction and contends that the juvenile court abused its discretion when it refused to provide him with funding for an investigator to help his attorneys prepare for the probable cause hearing and erred as a matter of law when it denied his motion to suppress statements taken in violation of his constitutional rights. Powell also argues that he did not knowingly and intelligently waive his amenability hearing because he was not informed of the consequences of a transfer to common pleas court. He argues that he was deprived of his right to effective assistance of counsel because his attorney did not review all the evidence and properly investigate the case before the probable cause hearing. Last, Powell contends that the juvenile court violated his due process rights when it found probable cause for aggravated murder, murder, and the gun specifications without credible evidence.
{¶2} We conclude that when Powell entered a guilty plea, he waived any alleged constitutional violations unrelated to the entry of the guilty plea and nonjurisdictional defects in the proceeding. Powell does not challenge his guilty plea and none of his assignments of error raise jurisdictional errors. Therefore, Powell has waived them. We overrule his assignments of error and affirm the trial court's judgment.
{¶3} In May 2019, law enforcement filed a complaint in the Gallia County Common Pleas Court, Juvenile Court Division against 15-year-old Powell for the April 2019 shooting death of Powell's father, Tyrone Powell, II. The complaint contained one count of aggravated murder in violation of R.C. 2903.01(A), an unclassified felony if committed by an adult; one count of murder in violation of R.C. 2903.02(A) and one count of murder in violation of R.C. 2903.02(B), both unclassified felonies if committed by an adult; and two counts of aggravated robbery in violation of R.C. 2911.01(A)(3) and R.C. 2911.01(A)(1), both first degree felonies if committed by an adult. All counts contained firearm specifications under R.C. 2152.021. The juvenile court appointed two attorneys to represent Powell and he entered a plea denying the charges.
{¶4} The state filed a motion to transfer jurisdiction of the matter to the Gallia County Common Pleas Court, General Division pursuant to Juv.R. 30 and R.C. 2152.10(B) and R.C. 2152.12(B) for criminal prosecution as an adult. In support of the motion, the state alleged that the victim was Powell's father, who was killed by a gunshot wound to the head while Powell was on probation for felony level juvenile offenses committed in Montgomery County, Ohio.
{¶5} At the first probable cause hearing Powell's attorneys requested and the court granted, a two-week continuance of the hearing to allow them time to review the discovery materials provided by the state. Shortly thereafter, Powell's attorneys sought a second, 45-day continuance of the probable cause hearing to allow them additional time to review the discovery. Powell's attorneys also filed four additional motions seeking: (1) that the juvenile court apply the Ohio Rules of Evidence to the probable cause hearing; (2) an order requiring the state to provide full discovery at the probable cause stage; (3) the appointment of a criminal investigator to assist counsel in effectively preparing for trial; and (4) to suppress all oral, written, videotaped, and audiotaped statements Powell made to investigators because they argued that Powell's constitutional right against self-incrimination was violated.
{¶6} The juvenile court granted Powell's second request for a continuance of the probable cause hearing and set the hearing date for July 25, 2019.
{¶7} Before the hearing commenced, the juvenile court addressed the pending motions. On the discovery motion, the juvenile court stated that the parties agreed that discovery demands had been met. Powell's attorneys agreed that they had "all of the vital information we need" even though "things will probably trickle in * * * but not pertinent to today's hearing." On the motion to suppress, the juvenile court ruled that it was premature at the probable cause stage, but it could be revisited in the future at the appropriate stage in the proceedings. On the motion for a criminal investigator to assist them, Powell's attorneys stated that they wanted the juvenile court to consider their request as it hears the evidence at the probable cause hearing and as they move forward with the case. The juvenile court found that the request for investigative assistance was premature at the probable cause stage, but agreed to look at the matter again at any future adjudication phase. It does not appear from the record that the trial court addressed Powell's request that the Ohio Rules of Evidence be applied to the probable cause hearing. Thus, we presume the motion was denied.
{¶8} Powell's attorneys did not request any additional continuances of the probable cause hearing or seek more time to review discovery. The juvenile court asked Powell's attorneys if they were ready to proceed with the hearing and they answered affirmatively.
{¶9} At the hearing, Matthew White, a forensic scientist with the Ohio Bureau of Criminal Investigations (BCI), testified as a firearms and ballistic expert. White testified that he tested the Hi-Point model C9 9mm Luger semi-automatic pistol discovered during the investigation and determined that it was operable and that the bullet that was removed from the victim's body was fired from that firearm. White testified that the Hi-Point in question had two different types of safeties: a manual lever and a magazine safety. The magazine safety operates such that if the magazine is removed, the firearm will not fire.
{¶10} Jenny Comisford testified that she is a special agent with the special investigation unit of the BCI and the lead agent assisting the Gallipolis Police Department with the investigation of the death of Tyrone Powell, II. Detective Comisford testified that she determined that Powell, his four siblings, and Teriana Strickland, an adult female, were present in the house when Tyrone Powell, II was shot. Detective Comisford testified that she interviewed Powell and was present when other law enforcement officers interviewed him. During the first three interviews Powell told investigators that he thought his father had a heart attack. In the fourth interview, after he was given his Miranda rights, Powell told investigators that he accidentally pulled the trigger of the firearm as his father placed it in his hand. Powell told investigators that his father had removed the firearm from a box, told Powell to get a towel so Powell could avoid touching the firearm, and then removed an empty magazine out of it before placing the firearm in Powell's hand. Powell stated that he accidentally pulled the trigger as his father placed the firearm in his hands, after which the gun dropped to the floor. Powell told investigators that he did not touch the gun again after it dropped to the floor. Powell's statement that the magazine had been removed before he accidently shot his father was inconsistent with the firearm's magazine safety feature as described by White.
{¶11} Detective Comisford testified that she had the internet search history from Powell's cell phone that showed a number of searches about the Hi-Point model C9 firearm. When she asked Powell about the search history, Powell told her that some of the searches were made at his father's request and the results were shared with his father. Detective Comisford testified that the gun was collected a few days after the shooting and processed for DNA evidence. Powell's DNA was found on the trigger, the grip, the back slide, and the magazine. The victim's DNA was not found on those components. Detective Comisford testified that she questioned Teriana Strickland, who had been asleep next to the victim when he was shot. Strickland told investigators that she was asleep during the shooting and it did not awaken her. Strickland passed a subsequent polygraph test and was not considered a suspect.
{¶12} Detective Sgt. Justin Rice with the Gallipolis Police Department testified that he has advanced training in Cell Bridge cell phone extraction. Detective Rice testified that a Hi-Point model C9 9mm handgun was found by persons cleaning the residence on April 26, 2019, 11 days after the shooting. According to Detective Rice, two women were helping move items out of the residence and found the firearm when they pulled a dresser away from the wall in an upstairs bedroom. Detective Rice sent the firearm to be tested for DNA and for ballistics. Detective Rice testified about the extraction of internet search history data from Powell's cell phone. The state introduced a multipage exhibit of the cell phone extraction data. The results showed the Powell was researching whether the Hi-Point model C9 firearm could kill a person.
{¶13} On cross-examination, Detective Rice testified that a neighbor reportedly found blood-soiled towels and clothing in an outbuilding behind her house. However, Rice could not recall whether those items had been submitted to BCI for analysis. He testified that those items were still in the police evidence room.
{¶14} Powell presented no witnesses or evidence.
{¶15} The juvenile court found that the state met its burden to show probable cause only as to count one,...
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