State v. Powell
| Decision Date | 13 April 1995 |
| Docket Number | No. 61610-8,61610-8 |
| Citation | 893 P.2d 615,126 Wn.2d 244 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Ford POWELL, Jr., Appellant. |
Michael Danko, Seattle, for respondent.
Defendant Ford Powell, Jr. (Powell or Defendant) was convicted of the second degree murder of his wife, Carolyn (Carrie) Powell. At issue is whether the trial court erred in admitting certain evidence including prior assaults on Carrie by Powell under ER 404(b), 403, and 801.
On March 29, 1990, Carrie's body was found floating in Bowman's Bay of Puget Sound. An autopsy revealed that Carrie's death was caused by manual strangulation. It further determined that she died fairly soon after her last meal as very little food had passed from her stomach to her intestine. A sweatshirt given to Carrie the day before by her sister-in-law and skull fragments were collected near the Deception Pass Bridge. A tide expert determined that for Carrie's body to have reached Bowman's Bay at the time it was discovered, her body must have been thrown off the bridge between 1 a.m. and 2:30 a.m. on March 29, 1990.
Based on information provided by Carrie's friends and relatives, the police focussed on her husband as a suspect. In On January 8, 1991, the Defendant was formally charged by information with second degree murder in violation of RCW 9A.32.050(1)(a), which was later amended on July 1, 1991, to include a cite to RCW 9A.32.050(1)(b) as well.
the early morning hours of March 30th, a search warrant was obtained for the Powell residence. When the police attempted to reach Powell by calling and knocking before entering, he did not respond. The police then forced the door open. They found Powell in the bedroom, lying in bed and still wearing all his clothes. The police testified that Powell was read his rights, handcuffed, and taken out to the dining room. When told by the police that they were investigating his wife's disappearance, Powell pointed out a collection of pill bottles on the table, saying "[t]hese are her pills". Verbatim Report of Proceedings vol. IV, at 626. After a brief discussion inside, Powell was taken outside and talked with Detective Chris Andersen in the detective's car. Powell's descriptions of what happened the evening before in response to Detective Andersen's questions were inconsistent. The other detectives continued searching the house. They found Carrie's lightweight jacket in the closet, her sweatpants and bra in a pile at the end of the bed, her watch in the bathroom, her keys lying on the desk, the shoes that her family said she usually wore by the door, and her dog's leash laying on the bedroom floor. Carrie's dog was not around. The officers testified that with the exception of the papers piled on the table, the bed, and the dog leash, the house was very orderly and well kept. At the jail, the police discovered that Powell was wearing a ring on his pinky finger that was later identified by Carrie's sister-in-law as a ring Carrie had received when her mother died and customarily wore.
Before trial, the Defendant made a motion in limine to exclude evidence of prior misconduct and hearsay statements. As part of this motion, the defense asked that the State list with specificity all evidence it intended to introduce regarding the alleged prior misconduct of the Defendant, the alleged statements of Carrie, and all the witnesses
who would be testifying as to these. In response, the State prepared a list of the proposed testimony of witnesses and attached the list to its Brief in Opposition. This list was divided into three sections as follows:
I. Events Actually Witnessed
A. Sheri Closson--Closson was present in the Powell's [sic] apartment on Fir St. when the defendant abruptly exploded and shoved the victim backward over a stool, sending the victim sprawling on the floor.
A. Stephanie Goss--Goss was taking a shower.... She heard the victim scream, and Goss came quickly out of the shower to see what was the matter. She saw the victim lying on her back on the floor with one foot up on the table, as though she had just been pushed over it and fell down. The victim was still screaming and shaking. Defendant was standing over the victim. Goss said to the defendant, "You son of a bitch, you're going back to prison for this." The defendant then struck Goss on the mouth, splitting her lip open....
B. Diane Belgarde--Belgarde happened to drop by at the Powell's [sic] apartment on Fir Street immediately after the defendant's assault on the victim and on Stephanie. The house was in a shambles.... The victim ... told Belgarde that the defendant had assaulted her and then Goss, and that it was caused by the fact that the defendant was trying to coerce the victim into selling her house in Seattle against her will.
A. Patrick McBride--The victim went to an attorney's office in order to get a divorce from the defendant.... McBride took the victim to the attorney's office.
B. Janice Rinsemith [sic]--The victim told Rinesmith that she had given [the attorney] a retainer for a divorce from the defendant.
C. Bill Nielsen--Was retained by the victim to get a divorce from the defendant, but the victim decided later to drop the case.
A. Holly Cowell--Witnessed the victim walking along a street in Sedro Woolley with defendant driving (the wrong way) beside her trying to get her to get back in the car. The two were arguing. Cowell stopped the car she was driving and gave victim a lift back to her house. The victim told Cowell that the defendant beat her....
B. Carrie Crowell--Witnessed the same as Holly Cowell....
C. Officer Bud Heitman--Responded to call from Cowell and Crowell. When he arrived at the Powell's [sic] residence, he saw the defendant and the victim walking out and down the sidewalk. He spoke to them, but they did not respond. The victim looked scared. The defendant kept looking away.
B. Les Moller--An employee of the bank, Les Moller was present and recalls the defendant getting extremely upset when he discovered that the funds ($1,500 or so) from the joint account he had with the victim were missing, having been withdrawn the previous day.
II. Hearsay Events with Physical Corroboration
[A.] Lee Hewitt--While defendant and victim were at Hewitt's house, Hewitt noticed a large, fresh bruise somewhat larger than a silver dollar on the inside of victim's upper arm. While in defendant's presence, victim explained the bruise by saying she just banged herself. But on the phone at a later date, she admitted to Hewitt that defendant had given her the bruise during one of their arguments.
A. Pat McBride--Shortly after defendant and victim were married (7/5/89), victim came to stay with McBride because she needed a place to hide from defendant. Victim said defendant had tried to strangle her and that she was afraid of him. McBride saw a bruise about a quarter of an inch in size under the victim's jaw on the right side of her throat that the victim identified as coming from defendant's assault on her....
B. Diane Belgarde--Victim called Belgarde and asked her to come get her out of the Fir St. Apartment. When Belgarde arrived, the place was a mess, as though a big fight in which things were thrown had occurred. Victim complained of a sore arm. Victim also told Belgarde that defendant had tried to strangle her and showed Belgarde multiply [sic] red marks on her neck....
A. Janice Rinesmith--Rinesmith saw bruises on victim's upper arms, and felt that they looked like fingerprints as if someone had grabbed her.
. . . . .
A. Sharon Christenson-- ... the victim showed Christenson a bald spot on the back of her head about the size of a half-bit or silver dollar. The victim said that the defendant had ripped the hair out of her head.
A. Sheri Closson--While victim was changing into new sweatshirt at Sheri Closson's residence, Closson saw multiple bruises about the victim's nipples. The victim explained that the defendant had done that to her.
B. Sharon Christenson--The victim told Christenson that on occasion, the defendant would twist her nipples until the pain was unbearable and she would scream.
[A.] Lee Hewitt--While attending the housewarming for the Powell's [...
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