State v. Powell
| Decision Date | 13 June 2012 |
| Docket Number | No. 2007–2027.,2007–2027. |
| Citation | 132 Ohio St.3d 233,971 N.E.2d 865,2012 -Ohio- 2577 |
| Parties | The STATE of Ohio, Appellee, v. POWELL, Appellant. |
| Court | Ohio Supreme Court |
OPINION TEXT STARTS HERE
Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper and J. Christopher Anderson, Assistant Prosecuting Attorneys, for appellee.
Spiros P. Cocoves, Toledo, and Gary W. Crim, Dayton, for appellant.
{¶ 1} This is an appeal as of right by defendant-appellant, Wayne Powell. A jury convicted Powell of the aggravated murder of Rosemary and Mary McCollum, four-year-old Jamal McCollum–Myers, and three-year-old Sanaa' Thomas, and of aggravated arson. The jury recommended the sentence of death for the aggravated murder of the four victims. The trial court accepted those recommendations and sentenced Powell accordingly.
{¶ 2} For the following reasons, we affirm Powell's convictions and sentences of death.
State's case
{¶ 3} Mary McCollum lived in a two-story house at 814 St. John Avenue in Toledo. Rosemary, Mary's mother; Jamal, Mary's adopted son; and Ebony Smith, Mary's cousin, also lived at the house. Rosemary spent much of the time in bed because of health problems and was unable to walk without assistance.
{¶ 4} Powell and Mary McCollum had a personal relationship for more than ten years and had lived together “off and on” at her home for “about a year, year and [a] half.” Powell moved out of the house before October 2006, though the exact date is unclear.
{¶ 5} Powell continued to see Mary after he moved out. He later told investigators that he would sneak into the house and sometimes spend the night. Mary would hide him in the closet, by the side of the bed, or in the basement so that her family would not know that he was there. Powell claimed they had disagreements because Mary did not want her family to know that he was still coming to the house.
{¶ 6} At 6:45 p.m. on September 23, 2006, Powell called Mary and threatened to burn her house down. In a voice mail left on Mary's phone, Powell stated, Five minutes later, Powell called Mary and left another voice mail. He stated,
{¶ 7} On the evening of October 19, 2006, Mary and Ebony smelled gasoline on the front porch of the house. They called 9–1–1, and firemen arrived and hosed down the porch. Captain Joseph Wlodarz, a Toledo fireman, testified, “You could actually see [the gasoline] being absorbed into the porch and into the wall * * *.” Wlodarz estimated that “at least a couple gallons” of gasoline had been poured on the porch.
{¶ 8} On the morning of October 20, Annette McCollum, Mary's sister, confronted Powell and asked him why he had poured gasoline on the front porch. Powell said he did it because Mary was not paying him any attention. Powell said that he “wasn't going to set the house on fire”; he just wanted to “scare her.” No one told the police that Powell had poured gasoline on the porch, because Mary was afraid of losing custody of Jamal again if she reported Powell.
{¶ 9} Mary's friends and relatives often visited and spent the night at her house. On the evening of November 10, 2006, Mary, Rosemary, four-year-old Jamal, and five other people slept at Mary's house: Lynnita Stuart, two-year-old Sanaa' Thomas, ten-year-old Antonio Boone, 11–year–old Dashawn Davis, and five-year-old Danshi Mitchell. Rosemary and Sanaa' slept in the back upstairs bedroom, Mary and Jamal slept in the front upstairs bedroom, and Lynnita and her son, Dashawn, slept in the middle upstairs bedroom. Antonio and Danshi slept downstairs on the living-room couch.
{¶ 10} Markisha Campbell, the defendant's daughter, and Makyca Finch, his granddaughter, often stayed at Mary's house. The night before the fire, Powell called Markisha and asked how she and Makyca were doing and where they were. Markisha told Powell that she was at home and that Makyca was with Markisha's sister.
{¶ 11} Between 12:30 a.m. and 1:00 a.m. on November 11, Charles Powell, a younger brother of Powell, drove Powell to Mary's house. Powell pounded on the front door, and Lynnita answered it. Powell said he wanted his boots and a pair of boxer shorts that he had left at the house. Mary got these items, and Lynnita handed them to him. Powell accused Lynnita of standing between him and Mary and started calling Lynnita “dike Bs, grabbed the door, [and] told Mary she * * * gonna F around and make him kill her.” Mary told Powell, Powell asked Mary for a kiss, and she refused. Powell and his brother then drove away.
{¶ 12} After leaving the house, Powell called Mary, and Lynnita overheard some of the conversation. Powell accused Mary of having “the dike bitch listening to [his] phone call” and warned, “You going to make me fuck you up.”
{¶ 13} Later that evening, Lynnita was awakened by screams from Rosemary's room. Lynnita felt heat, saw smoke, and realized that the house was on fire. She saw flames coming out of Rosemary's room but was unable to help her. Lynnita then jumped out the bedroom window, and Dashawn ran down the stairs. Dashawn got Antonio, and they left the house together. Lynnita told a bystander that Danshi was still in the house, and the bystander went inside and rescued her.
{¶ 14} At 2:50 a.m. on November 11, the Toledo Fire Department received a call about a fire at 814 St. John Avenue. Firefighters arriving at the scene observed fire and heavy smoke coming from the back of the house. Firefighters entered the house and found the dead bodies of Rosemary and Sanaa' in the back upstairs bedroom. Mary and Jamal were found alive in the front upstairs bedroom. Attempts to resuscitate them were unsuccessful, and both died.
{¶ 15} On the morning of November 11, Toledo Detective William Gast spoke to Lynnita and Ebony at the hospital. They provided information that identified Powell as a possible suspect.
{¶ 16} Later that morning, police officers contacted Isaac Powell V, the defendant's youngest brother. Isaac told Officer Gast that Powell had been at his apartment earlier that morning. Isaac's apartment was 1.6 miles from Mary's house. Isaac consented to a search of his apartment, and the police found Powell's sweatpants in a closet. Isaac stated that Powell had been wearing those sweatpants when he arrived at his apartment that morning.
{¶ 17} At trial, Isaac testified that between 2:30 a.m. and 3:00 a.m. on November 11, Powell had awakened him by throwing rocks at his bedroom window. After Isaac let him inside, Powell told Isaac, Isaac testified that Powell did not mention anything about gasoline. Isaac acknowledged that he testified before the grand jury that Powell had “told [him] that he put gas on the outside of the side door.”
{¶ 18} Powell stayed at the apartment for the rest of the night. Isaac testified that Powell was still asleep when he left the apartment shortly after 6:00 a.m.
{¶ 19} Isaac's videotaped police statement was presented at trial. During that interview, Isaac told police that Powell had said that Mary “pissed [Powell] off about something.” According to Isaac, Powell then said, “I went over there and * * * I was pacing in front of the house and * * * I found a little gas can on the side of the something and I threw a little gas on the side door and * * * set the door on fire.”
{¶ 20} Officer Gast interviewed Charles Powell twice on November 11. During the second interview, Charles called Powell and encouraged him to turn himself in to the police.
{¶ 21} About 1:00 a.m. on November 12, Toledo Police Officer Lawrence Emery Jr. observed a person matching Powell's description walking down the street. Officer Emery asked the person his name, and he replied, “Ike.” The officer determined that this individual was Powell and took him into custody.
{¶ 22} At approximately 1:45 a.m. on November 12, Officer Gast conducted a videotaped interview of Powell. After waiving his Miranda rights, Powell denied setting fire to Mary's house. Powell admitted that he had gone to Mary's house at 1:00 a.m. to get his boots and boxer shorts, but said that he left Mary's house and did not return.
{¶ 23} Powell stated that after he left Mary's house, he called her “all night,” using his phone and his brother's phone (listed under the name of Charles's wife, Tamiko Williams). Powell stated that Mary had called him after he left.
{¶ 24} Powell said that he spent the night at Charles's house drinking and smoking crack. At one point, he went to Isaac's apartment, but Isaac would not answer the door. Powell then returned to Charles's home and slept there. Powell said that he woke up early the next morning and watched the 6:30 a.m. news and heard about the fire. Powell then walked to Isaac's apartment. Isaac let him inside after Powell woke him up by throwing rocks at his window. Powell talked to his boss on the phone that morning and arranged a roofing job that day. Later, his boss picked Powell up at Isaac's apartment and took him to work.
{¶ 25} During the interview, Powell denied pouring gasoline on Mary's porch a few weeks earlier. He said, “I don't know nothing about that.” Powell's clothing was seized during the interview. Powell stated that all the police would find is “a whole bunch of tar from a * * * roof.”
{¶ 26} On November 13, Officer Gast obtained a buccal swab from Powell's cheeks and talked with him again. Gast mentioned that Powell's clothing was sent to the lab for testing. Powell replied, “[T]hey ain't going to get no gas.” Powell mentioned that the clothes the police took from him, except for his boots, were the same clothes he had been wearing when he went to Mary's house to get his clothes. Powell stated that for Mary's...
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