State v. Powell

• Decision Date: 14 March 1990
• Docket Number: No. 88-1666,88-1666
• Citation: 552 N.E.2d 191,49 Ohio St.3d 255
• Parties: The STATE of Ohio, Appellee, v. POWELL, Appellant.
• Court: Ohio Supreme Court

Page 255

49 Ohio St.3d 255

552 N.E.2d 191

The STATE of Ohio, Appellee, v. POWELL, Appellant.

No. 88-1666.

Supreme Court of Ohio.

Submitted Oct. 11, 1989.

Decided March 14, 1990.

On July 29, 1986, Trina Dukes, age seven, was playing with her cousin Marcorsha Dukes and another child in front of the Dukes family's home in Cincinnati. Appellant, Tony M. Powell, approached the three children and asked Trina and Marcorsha if they knew how to ride a bike. Trina replied, "Yes." The three children followed Powell around the corner to 214 West Liberty Street.

Powell asked Trina to come upstairs with him and told the other two to leave. He led Trina to the fourth floor and told her to take off her clothes. (He later admitted to police that he had intended to "fuck" Trina.) Trina cried and said she wanted to go home.

Meanwhile, Marcorsha had told her grandfather, Robert Dukes (known as "Big Duke" to his grandchildren), where Trina had gone. Dukes and Marcorsha's brother Marvin went to investigate. Marcorsha led them to the building where Powell had taken Trina.

Dukes went behind the building and called Trina's name. Trina called back, "Big Duke, Big Duke." Powell grabbed her mouth to quiet her cries. Dukes entered the building and ran upstairs, followed by Marcorsha and Marvin. Hearing their approach, Powell picked up Trina. As he did, she defecated on him. He threw her out the window.

When Dukes and the children reached the third-floor landing, they heard a crash. Then Powell, wearing no shirt, ran downstairs past them, saying that someone had been beating him up. The Dukeses proceeded to the fourth floor. Looking out a window they saw Trina's nude body lying next to some garbage cans. The Dukeses summoned police and paramedics. Although Trina was still breathing when the paramedics arrived, she was dead by the next day.

Meanwhile, Powell was leaving the building. On his way out, he encountered Shirley Lee, who lived there. He pushed her aside and mumbled, "I did what I intended to do to that bitch." Then he ran down the street. Police later found Powell hiding behind the refrigerator in his mother's apartment.

Deputy Coroner Ross Zumwalt performed an autopsy on Trina's body. He found numerous petechiae, or small hemorrhages, on Trina's face. He also found bruises and abrasions on the inner surface of the lips and six small scratches on the neck. According to Zumwalt, these injuries indicated that Trina had been partially asphyxiated, possibly by a hand clamped over her mouth.

Zumwalt also found a 5.7-inch laceration along Trina's chest and numerous other lacerations, bruises, and abrasions on Trina's head and body, consistent with a fall. Zumwalt concluded that Trina's death resulted from "blunt impact to the head, [and] the trunk, with multiple injuries and smothering."

The Hamilton County Grand Jury returned a five-count indictment against Powell, charging him with aggravated murder during a kidnapping, R.C. 2903.01(B), with a kidnapping specification, R.C. 2929.04(A)(7); aggravated murder during a rape, R.C. 2903.01(B), with a rape specification, R.C. 2929.04(A)(7); kidnapping by restraining the victim of her liberty, R.C. 2905.01; kidnapping by removing the victim from the place where she was found, R.C. 2905.01; and rape, R.C. 2907.02.

The jury acquitted Powell of rape, but convicted him of the lesser included offense of attempted rape. It convicted him of all other counts, including both aggravated murder counts and both death-penalty specifications. After the penalty phase, the jury recommended a death sentence for each aggravated murder. The trial court accepted the recommendation and sentenced Powell to death. The court of appeals affirmed.

The cause is now before us upon an appeal as of right.

Arthur M. Ney, Jr., Pros. Atty., and William E. Breyer, Cincinnati, for appellee.

Louis H. Bolce and John K. Issenmann, Cincinnati, for appellant.

MOYER, Chief Justice.

We have reviewed Powell's seven propositions of law, independently balanced the aggravating circumstances against the mitigating factors, and evaluated the proportionality of the sentence to those imposed in similar cases. As a result, we affirm the convictions and sentence of death.

In his second proposition of law, Powell contends that the trial court should have appointed a psychiatrist to "assist in evaluation, preparation, and presentation of the defense." Ake v. Oklahoma (1985), 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53.

Ake held "that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id. The trial court's decision will not be disturbed absent abuse of discretion. United States v. Blade (C.A.8, 1987), 811 F.2d 461, 467.

It is not enough for the defendant to show that his sanity may possibly be a significant factor. "[A] defendant must show a reasonable probability that an expert would aid in his defense, and that denial of expert assistance would result in an unfair trial." Little v. Armontrout (C.A.8, 1987), 835 F.2d 1240, 1244, quoted in State v. Broom (1988), 40 Ohio St.3d 277, 283, 533 N.E.2d 682, 691. The "reasonably necessary" standard of R.C. 2929.024 comports with this standard. Broom, supra.

Powell argues that, at the hearing on his competence to stand trial, the court had introduced evidence of his mental history that was sufficient to show that his sanity at the time of the offense was to be a significant factor at trial.

At the hearing, the court had before it one exhibit and one witness, Dr. Nancy Schmidtgoessling, a clinical psychologist who had examined Powell on December 31, 1986, in order to evaluate his competence to stand trial. As a result of this examination, Schmidtgoessling formed an opinion that Powell was not only competent to stand trial, but legally sane.

Defendant's Exhibit 1 comprised three psychiatric evaluations of Powell, one written in 1978 (the Branch report) and two written in 1981 (the Lagan and O'Connell reports). The reports indicate that Powell had a low intelligence quotient. The Branch report categorizes Powell as "within the mild mentally retarded to borderline defective range of ability * * *." The Lagan and O'Connell reports indicate that, by 1981, Powell had progressed, but remained in the "borderline mentally deficient range."

On the other hand, the Branch report also states that "[a]t no point in the interview did [Powell] demonstrate any signs of a disturbed thought process or bizarre thought pattern, and he was well attuned to person, place and time." The Lagan report states: "Clinical evaluation shows no evidence of any psychotic process * * *." All three reports note that an electroencephalogram, or EEG, taken in 1978 was normal; indeed, the Lagan report indicates that the EEG rules out organic brain damage.

This evidence did not show that Powell's "sanity at the time of the offense [was] to be a significant factor at trial." Although Schmidtgoessling and the authors of the three reports agreed that Powell was mentally retarded, there was no evidence that he was legally insane, and Schmidtgoessling concluded that he was legally sane. Cf. State v. Newcomer (1987), 48 Wash.App. 83, 93, 737 P.2d 1285, 1291.

In Cartwright v. Maynard (C.A.10, 1986), 802 F.2d 1203, reversed in part on other grounds (C.A.10, 1987), 822 F.2d 1477, affirmed (1988), 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372, the court relied on the following factors in holding that a defendant had failed to make the required showing:

"During * * * Cartwright's stay at the hospital, his actions and conduct were very normal and cooperative; he displayed a calm disposition and was never on any medication. He did not display any erratic or bizarre behavior, as in Ake. The doctors did not diagnose him as having any mental illness. He was not diagnosed as suffering from any psychotic disorder * * *. A complete physical examination did not disclose any neurological problems. The electroencephalogram test was normal. Cartwright's I.Q. tested at 98, which is considered to be average intelligence." (Emphasis sic.) Cartwright, supra, at 1212.

Although Powell exhibited no bizarre behavior, there was evidence that he had once been placed on Thorazine, an antipsychotic drug. His intelligence was significantly below normal; nevertheless, Schmidtgoessling did not believe that his retardation made him unable to tell right from wrong or adhere to the right. Although no recent EEG had been taken, the one taken in 1978 had been normal. During the trial, Schmidtgoessling testified that Powell denied any history of head injury. Nor did he have "unusual" speech problems, which indicated that he suffered from no thought or mood disorder.

Moreover, Powell did not plead not guilty by reason of insanity. This factor is not decisive, for a defendant may need a psychiatrist's assistance "to help determine whether the insanity defense is viable," Ake, supra, 470 U.S. at 82, 105 S.Ct. at 1096, as well as to help present it. However, the lack of an insanity plea can be considered in determining whether the threshold showing has been made. Cartwright v. State (Okl.Crim.App.1985), 708 P.2d 592, 595.

We conclude that Powell failed to show a reasonable probability that his mental condition would be a significant factor in the guilt phase. On these facts, he has not shown that a "fairly debatable" question exists. Volson v. Blackburn (C.A.5, 1986), 794 F.2d 173, 176.

The court in Ake also analyzed whether the defendant's mental condition "was a significant factor at the sentencing phase." Ake, supra, 470 U.S. at 86, 105 S.Ct. at 1098. However, the United States Court of Appeals for the Sixth Circuit has recently held that "Ake only guarantees ...