State v. Powell
| Decision Date | 25 October 2002 |
| Docket Number | No. 86,231.,86,231. |
| Citation | 56 P.3d 189,274 Kan. 618 |
| Parties | STATE OF KANSAS, Appellee, v. RICHARD TARON POWELL, Appellant. |
| Court | Kansas Supreme Court |
Debra J. Wilson, capital appellate defender, argued the cause and was on the brief for appellant.
Jerome A. Gorman, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
This is a direct appeal where Richard Taron Powell raises first impression issues that (1) requiring him to wear a stun belt at trial violated his Sixth and Fourteenth Amendment constitutional rights to effectively participate in his own defense and (2) the trial court abused its discretion when it ordered him to stand trial restrained by a stun belt. Powell also contends reversible error was committed when the trial court failed to inquire if jurors were exposed to a prejudicial television report during trial in violation of his Sixth and Fourteenth Amendment constitutional rights to a fair trial and impartial jury.
Powell was charged and convicted of one count of capital murder and one count of criminal possession of a firearm in the shooting deaths of brothers Mark and Melvin Mims. During the sentencing phrase, the trial court found Powell was mentally retarded in accordance with K.S.A. 21-4634 and that a sentence of death could not be entered.
Because Powell does not challenge the sufficiency of the evidence for either conviction, we will highly summarize the facts only to provide background for our findings on the errors claimed.
Three witnesses, Brandy McCullough, Myron Williams, and Donte Jones, testified that on the night of February 5, 1998, Powell told them he had killed Mark and Melvin Mims. Myron Williams was Powell's nephew and was living with Brandy McCullough. He testified after hearing gunshots, Powell came to their house and was spaced out, ranting and raving, talking crazy, jumping up and down, and calling himself a serial killer. Williams said Powell had a gun and claimed to have shot the Mims brothers. When asked why, he replied they had tried to rob him.
McCullough described Powell as "hyped up" and saying, She said Powell told them that the Mims had threatened him with a gun but they did not use it so he used it on them. McCullough admitted she had received a $1,000 reward for her information through the TIPS hotline.
Donte Jones had talked with Powell on late February 5 or early February 6. He testified that Powell had told him to watch news reports that there were two brothers dead. At trial, Jones testified Powell told him they would be found on 6th Street, parked in a car (as they were). According to Jones, Powell said he shot them because they were disrespecting him.
McCullough's and Williams' testimony was directly contradicted by that of Powell's sister, Venisa. She was in the room with McCullough and Williams on the night in question. She testified she did not hear Powell say anything about killing anyone. She disputed McCullough's claim that Richard was raving about killing someone. She did admit she had been diagnosed with a mental illness and was taking medication. There was testimony of considerable drug usage by the parties and arguments between Powell and Melvin Mims on February 5, 1998. All the physical facts were sufficiently established. The jury returned a guilty finding on both charges.
Imposition of the stun belt
Selection of the jury occurred between June 28 through June 30, 1999. Trial was recessed for approximately 2 weeks before opening statements and presentation of evidence commenced on July 12, 1999.
On that morning and immediately prior to empaneling the jury, the State, on behalf of the sheriff, requested that Powell be required to wear a stun belt. The trial court noted that the sheriff was in charge of security outside of and in the courtroom and asked the reason for the request.
Lieutenant Davis of the sheriff's department gave testimony in support of the request. He first noted this was a capital murder case. He said Powell had been in the detention center for quite a while on a previous case and the present one. On June 16, 1998, Powell had an altercation with another inmate who was stabbed five times with a shank (a homemade weapon) that was found where the injured inmate saw Powell throw it. Powell was charged with aggravated battery and traffic in contraband in a correctional institution, but the case was dismissed at the preliminary hearing when the victim refused to testify.
Powell was again found in possession of a shank on March 23, 1999. This time it was a toothbrush sharpened to a point which was found in his cell in a shampoo bottle. Charges were filed, and this case was pending. Davis stated Powell had been placed in segregation numerous times and opined that Powell was a threat to the safety of the public and to the court.
The prosecutor mentioned two other incidents. He stated that several weeks earlier, Powell had been brought to a hearing where the termination of parental rights of several of his children was in issue and had behaved in such a manner that he was removed from the courtroom by court order. He also related, after the trial court had initially ruled, that another shank had been found in the gymnasium of the jail over the weekend prior to the trial reconvening. Powell was the last individual to leave the room, but there was no evidence to place it directly on or with him.
In opposing the motion, Powell argued that he had appeared several times before the court without incident, including the jury selection 2 weeks previously. He questioned why the sheriff's department would now decide a stun belt was needed. Powell's counsel noted he had no experience with stun belts but contended the best evidence was how Powell had previously behaved and that sufficient reasons had not been shown to justify the request.
The trial court initially ruled as follows:
After the prosecutor stated that a shank had been found in the gymnasium the preceding weekend, the court agreed with the defense counsel there was nothing to connect that specific shank to Powell. The judge concluded:
Two documents relating to usage of a stun belt, the "authorization for use" of the electronic belt system and the "inmate notification" were then made a part of the record.
The reasons for consideration of the use of the belt system on the authorization for use form were stated to be:
The authorization for use form contained medical instructions that stated the belt system may not be used if any of the following medical conditions exist:
The inmate notification form advised Powell:
This form further advised Powell that the belt could be activated if he did any of the following:
Powell was asked to sign the inmate notification form, but he refused to do so.
After the stun belt was installed and before the trial commenced, defense counsel argued that while the belt was probably not visible while Powell was seated it would be visible when he stood up. Defense counsel's concern was that if the belt was seen, the jury would assume Powell was a "bad guy." The trial judge stated he looked closely at Powell when he entered the room and observed the belt was not an obvious sight unless for some reason someone brought special attention to it. The judge stated: "So the record is clear your position on it and I am approving the use of the same."
At no time during trial was the belt activated or was attention brought to the belt. There was no mention of any detrimental effect of the stun belt in the motion for new trial, which was filed and denied. Powell elected not to testify, and in the colloquy showing this was his free and voluntary decision there was no mention that...
To continue reading
Request your trial
-
State v. Dixon
...court has had several occasions to address shackling of criminal defendants in trial and similar issues. In our most recent case, State v. Powell, 274 Kan. 618, Syl., 56 P.3d 189 (2002), this court upheld the decision of a district judge to permit defendant Richard Powell to wear a stun bel......
-
State v. Adams
...fn. 5. {¶ 105} Courts elsewhere have upheld the use of electronic stun belts when specifically justified. See, e.g., State v. Powell (2002), 274 Kan. 618, 56 P.3d 189 (factors justifying use include serious nature of charges, history of institutional violence, history of verbal or physical ......
-
State v. Race
...in the view of the jury is appropriate only in limited circumstances and for particularly dangerous defendants. See State v. Powell, 274 Kan. 618, 636, 56 P.3d 189 (2002) (on evidence defendant in capital-murder trial stabbed another inmate, district judge permitted to have defendant wear s......
-
Adams v. Bradshaw
...5 (6th Cir.1973). Courts elsewhere have upheld the use of electronic stun belts when specifically justified. See, e.g., State v. Powell, 274 Kan. 618, 56 P.3d 189 (2002) justifying use include serious nature of charges, history of institutional violence, history of verbal or physical assaul......