Murder conviction upheld in 2011 Chad Spicer slaying

A Delaware Superior Court judge has upheld Derrick Powell’s 2011 conviction for the murder of Georgetown police officer Chad Spicer.

Powell had sought a new trial on the basis of ineffective counsel, prosecutorial errors, mistreatment at the hands of the Delaware prison system and court errors. Judge T. Henley Graves denied Powell’s motions in a 196-page opinion. Whether Powell’s death sentence will be upheld is still to be determined.

Ruling in a Florida death penalty case, the U.S. Supreme Court struck down the Florida death penalty process, ruling that the jury, and not a judge, must decide on factors that would require the death penalty.

Delaware's law, like Florida's, allows a judge to find aggravating factors exist, meriting the death penalty.

Delaware Supreme Court in June will hear oral arguments on the constitutionality of Delaware’s death penalty law in the case of Benjamin Rauf, charged in the murder of Temple University student Shazim Uppal in New Castle County. In addition to Powell, other death penalty cases are on hold pending the outcome of that case, including the case of accused murderer Matthew Burton. Five of six defendants involved in the "In The House" case are charged with first-degree murder, and prosecutors could seek the death penalty in those cases. A sixth defendant was deemed too young to receive the death penalty.

Despite uncertainty over Powell’s sentence, Graves wrote that addressing Powell’s claims was in the interest of all parties.

According to Graves' decision, Powell was apprehended with the gun used to kill Spicer in his hands. Police testified that Powell had used the same gun in a drug deal/robbery attempt at a McDonald's prior to Spicer's death. In addition, prosecutors argued at trial that Powell fled the scene of the Spicer shooting, providing evidence that he was conscious of his guilt.

Powell, represented by Wilmington-based attorneys Patrick Collins and Natalie Woloshin, made a number of claims of ineffective counsel against his trial attorneys, Dean Johnson and Stephanie Tsantes of the Public Defender’s Office. Among them were that his defense team did not adequately explore a previous plea deal in 2008 made by Christopher Reeves, who along with Luis Flores was in the car with Powell during the drug deal and when Powell shot Spicer. Reeves’ plea deal was in a Kent County drug case where Reeves agreed to testify against his codefendants. The jury was not told about this plea deal; however, on the stand, Reeves’ credibility was called into question.

In his opinion, however, Graves said Reeves' testimony was not the determining factor in Powell’s conviction. The fact that he was caught with the gun and was seen firing it were the critical factors in Powell's conviction, Graves wrote. While Reeves’ credibility and truthfulness on the stand could be called into question, Graves wrote, it was not enough to undermine the jury’s verdict of guilty. Graves also dismissed allegations by Powell that his trial team failed to bring to light allegations of drug use by Reeves or that Reeves had fired a weapon despite being on probation. Graves said none of that would have altered the outcome of the trial.

Powell also alleges his trial counsel did not adequately investigate the background of Flores, who testified he saw Powell fire the shots that killed Spicer. Flores also testified he attempted to revive the fallen officer while Powell fled the scene. Following the Spicer shooting, Flores was arrested on offensive touching and assault charges, which Powell's appeal attorneys now argue were not presented at trial. Powell also says the jury did not learn of a previous drug conviction of Flores in Maryland.

In his opinion, Graves said the jury was aware of the drug charges, and all parties agree that the reason Powell, Flores and Reeves were in the car was to rob a drug dealer named Thomas Bundick.

However, Bundick did not have the drugs and was acting as a middleman for Darshon Adkins, who did. Flores testified that he sought to abandon the scheme, but Powell vetoed him, and pulled a gun on Adkins, who fled. As Adkins ran, Powell fired a shot in his direction. Four minutes later, the trio was pulled over by Spicer and his partner Shawn Brittingham. Reeves fled, and Brittingham chased him on foot. Powell then fired a single shot at Spicer and also fled.

Graves said Flores’ prior drug conviction would not have changed the outcome of Powell’s first-degree murder trial. He said the jury had enough information on Flores’ history of drug dealing to make their own determination as to Flores’ credibility. Graves also dismissed similar claims of failure to investigate the backgrounds of Bundick and Adkins.

“The evidence against Powell was overwhelming,” Graves wrote. “The testimony of other independent witnesses with no ax to grind, as well as the physical evidence established his guilt beyond a reasonable doubt. The circumstances surrounding the drug deal setup, the botched robbery and the shooting at McDonald’s provided important details and background, but the trial revolved around the murder.”

Besides witnesses, Powell also questioned the strategy of his defense team in cross-examining prosecution witnesses. Graves wrote that counsel is generally given a great deal of latitude in determining trial strategy, and Powell failed to substantiate allegations his trial defense was prejudicial to him.

Powell also said guards at the James T. Vaughn Correctional Center continually harassed him during the trial, tampering with his food, denying him meetings with counsel, seizing his court documents, pulling a gun on him at the courthouse and denying Powell’s attorneys access to their client. Powell argues this treatment was distracting to his case and that he feared talking with his attorneys because he feared retaliation.

Graves wrote that proof of Powell’s allegations is shaky and in any case did not interfere with Powell’s ability to communicate with counsel. He said Powell was often a difficult client and inmate but he was never denied the right to his attorneys. As for the charge that a corrections officer pulled a gun on Powell, Graves wrote that the matter was investigated during the trial, and Powell and prosecutors were allowed to present their sides of the case. Graves said ultimately, there was no factual basis for the allegation.

“In conclusion, none of the specific actions or inactions, viewed in isolation or cumulatively, resulted in Department of Correction interfering with Powell’s constitutional right to counsel,” Graves wrote.

Finally, Powell claimed racial bias at both his trial and the imposition of the death penalty. However, Graves dismissed these allegations out of hand.

“Powell has provided no evidence that, absent a racial bias, death was an inappropriate penalty. Powell was otherwise eligible for the death penalty after he was found guilty of felony murder,” Graves said.