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Death Penalty Upheld In 2006 Toledo Arson Murders

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2007-2027.  State v. Powell, Slip Opinion No. 2012-Ohio-2577.
Lucas C.P. No. G4801-CR-0200603581-000.  Judgment affirmed.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-2577.pdf

Video clip View oral argument video of this case.

(June 13, 2012) The Supreme Court of Ohio today affirmed the convictions and death sentence of Wayne Powell for the aggravated murders of Rosemary and Mary McCollum, four-year-old Jamal McCollum-Myers, and three-year-old Sanaa’ Thomas in November 2006. All four victims died in an arson fire set by Powell while they were sleeping in upstairs bedrooms at the home of Mary McCollum, Powell’s former girlfriend, on St. John Avenue in Toledo.

The court’s 7-0 decision was written by Justice Paul E. Pfeifer.

According to trial testimony, Powell and Mary McCollum had lived together at her house for a period of months but Powell had moved out more than a month before the fire. Powell continued to pursue an intimate relationship with Mary, and had expressed anger that she wasn’t “paying him any attention.”  On September 23, 2006, Powell called Mary on the phone and left a voice message stating that he was on his way over to burn down her house. On October 19, 2006, Mary smelled gasoline on her front porch and called the Toledo Fire Department, which dispatched firefighters who hosed down the porch and estimated that “at least several gallons” of gasoline had been poured on the porch and front wall of the house. The next morning, when confronted by a member of Mary’s family, Powell admitted that he had doused the porch with gasoline to “scare” Mary.

Between midnight and 1 a.m. on the night of the fire, Powell had a brother drive him to Mary’s house, where he pounded on the door and said he wanted a pair of boots and some boxer shorts he had left there. Lynitta Stuart, a cousin of Mary’s, answered the door and gave Powell the requested items. When Mary refused to give him a kiss and asked that he leave, Powell said “you gonna F around and make me kill her.” Between the time of Powell’s departure and a 911 call from Mary’s phone at 2:45 a.m. reporting that the house was on fire, phone records showed that Powell had called Mary’s number from two different phones a total of 88 times, but those calls stopped a few minutes before  the fire was detected.

Shortly after the fire was reported, Powell awakened another brother, Isaac, by throwing stones at his bedroom window. Isaac later testified before a grand jury that after he let Powell in, Powell repeatedly said he had “f****d up,” and indicated that he had poured gasoline on a side door of Mary’s house and set the door on fire.  At trial, Isaac testified that he didn’t recall any statement by Powell mentioning gasoline. The trial judge allowed the prosecutor to show Isaac a transcript of his grand jury statement, and over defense objections allowed the prosecutor to elicit testimony from Isaac about what he had told the grand jury, and to play for the jury a videotape of a statement Isaac had given to police in which he indicated that Powell had admitted setting the fire.

Powell was charged with aggravated arson and the aggravated murders of the four victims, with multiple death penalty specifications including murder during the commission of aggravated arson and murder of a child under the age of 13. Powell entered pleas of not guilty to all charges.  He was found guilty by a jury on all counts and sentenced to death.

In his appeal to the Supreme Court, Powell raised 26 allegations of legal and procedural error by the trial court as grounds for reversal of his convictions or reduction of his death sentence to a term of life imprisonment.

In today’s decision, the court unanimously affirmed the trial court’s judgment and sentence of death. Justice Pfeifer wrote that, although the justices found some merit in three of Powell’s assignments of error, each of those mistakes constituted  only “harmless error” that did not affect the outcome of the case, and thus were not grounds for reversal of Powell’s convictions or sentence.

The court agreed with Powell’s argument that the trial court should not have allowed the state to elicit “hearsay” testimony from his brother Isaac about Powell’s statements on the night of the fire, and should not have allowed the jury to view the videotape of Isaac’s statement to police relating what Powell had said to him that night. 

Justice Pfeifer wrote: “The trial court correctly permitted the prosecutor to refresh Isaac’s memory by requesting him to review the transcript of his grand jury testimony. Isaac never claimed to have forgotten what he told the grand jury, and he therefore testified that his review of his prior grand jury testimony did ‘[n]ot really’ refresh his recollection regarding his testimony about gasoline. Isaac’s negative response showed that his review of his grand jury testimony had failed to refresh his recollection.  Nevertheless, the prosecutor continued to refer to Isaac’s grand jury testimony during further questioning. ... The prosecutor continued, ‘What did you tell the Grand Jury under oath ... last year regarding gasoline that your brother had told you?’ This question simply elicited what Isaac told the grand jury rather than attempting to refresh his recollection as Evid.R. 612 requires. The admission of this prior out-of-court statement constituted inadmissible hearsay.”  

“The admission of Isaac’s videotaped statement as a prior consistent statement was premised on the admissibility of Isaac’s testimony about what he told the grand jury. There was no other basis for admitting Isaac’s videotaped statement because it was otherwise objectionable hearsay. Thus, we conclude that Isaac’s videotaped statement was improperly admitted as a prior consistent statement because its admissibility was based upon Isaac’s earlier testimony, which was itself inadmissible.”

“The state argues that any error in admitting Isaac’s testimony and his videotaped statement was harmless beyond a reasonable doubt. ... The admission of hearsay does not violate the Confrontation Clause (a criminal defendant’s right to confront his accusers)  if the declarant testifies at trial ... Isaac testified at trial. Thus, the admission of Isaac’s testimony and videotaped statement was nonconstitutional error, which ‘is harmless if there is substantial other evidence to support the guilty verdict.’”

“We find that the erroneous admission of Isaac’s testimony and his videotaped statements constituted harmless error.  Other properly admitted evidence provided overwhelming evidence of Powell’s guilt:  Powell’s repeated statements that he ‘f****d up’ when he arrived at Isaac’s apartment shortly after the fire; Powell’s heated discussion with Mary and Stuart before the fire; Powell’s statement to Mary that she was ‘gonna F around and make him kill her’; Powell’s previous threat to burn down Mary’s house; Powell’s pouring of gasoline on Mary’s front porch; gasoline found on the clothing that Powell had been wearing on the night of the fire; and the pattern of Powell’s phone records and their timing on the night of the fire.  Based on the foregoing, we overrule (Powell’s) proposition of law I.”

The court also found that the trial judge erred by admitting testimony by Stuart that she had armed herself with a baseball bat and two other potential weapons when she answered the door on the night of the fire, because she anticipated that Powell was the person at the door. In his opinion, Justice Pfeifer wrote: “Stuart’s testimony about carrying weapons because Powell came to the door was irrelevant. Stuart’s state of mind was not a material issue in the case. Moreover, the state fails to provide any reason why Stuart’s actions and state of mind in carrying weapons might have been relevant. ... Moreover, Stuart’s testimony suggested Powell should be viewed as a bad person, evidence that is inadmissible under Evid.R. 404(A). Nevertheless, Stuart’s testimony constituted harmless error. There is little chance that Stuart’s testimony about carrying a baseball bat, a potato grinder, and a fork when Powell came to the door affected Powell’s convictions or sentence.”

Finally, the court held that the prosecutor acted improperly by suggesting to the jury in his closing argument that Powell’s exercise of his right to remain silent rather than immediately coming forth to be questioned by police was a sign of guilt. However, the court concluded that prompt remedial action by the trial judge prevented any prejudice to Powell based on the prosecutor’s statement.

Citing the court’s holding in State v. Leach (2004) that “‘(u)se of a defendant’s pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination,’” Justice Pfeifer wrote: “Leach applies to the prosecutor’s argument that Powell refused to turn himself in and assist the police. This argument implied that Powell had something to hide by not turning himself in and telling the police what happened. Under Leach, this was an improper comment on Powell’s prearrest silence and violated his Fifth Amendment privilege against self-incrimination.”

“We conclude that the prosecutor’s improper argument constituted harmless error beyond a reasonable doubt for three reasons. ... First, the trial court immediately sustained a defense objection to the prosecutor’s argument and ordered the jury to disregard it.  ... Second, the prosecutor’s improper comments were brief and isolated. Third, overwhelming evidence was presented that established Powell’s guilt.  Thus, there is little chance that the prosecutor’s improper remarks affected the verdict or sentence in this case.”

David F. Cooper, 419.213.2061, for the state and Lucas County prosecutor's office.

Spiros P. Cocoves, 419.241.5506, for Wayne Powell.