Supreme Court hears appeal of Derrick Powell

A full panel of Delaware Supreme Court Justices will decide the fate of Derrick Powell – the man who shot and killed Georgetown Patrolman Chad Spicer.  The Sept. 1, 2009 shooting was the first time a Georgetown police officer was killed in the line of duty.

Justices heard arguments from defense attorneys and prosecutors in the appeal of Powell’s death sentence, July 5.

After a trial, a Sussex County jury acquitted Powell of first-degree murder of a law enforcement officer, but found him guilty of first-degree murder while attempting to flee a robbery.

The jury had the option to reduce the third charge to manslaughter, but jurors chose not to.

The jury then recommended the death sentence for Powell in a 7-5 vote.  He was sentenced to death by Superior Court Judge T. Henley Graves May 20, 2011.

Defense attorneys Bernard O’Donnell, Nicole Walker and Santino Ceccotti filed an appeal to Delaware Supreme Court Jan. 3.

Walker, addressing the panel of five justices, said a death sentence for Powell is cruel and unusual punishment under the U.S. Constitution.  Powell, 25, was not present in the Dover courthouse to hear the arguments.

Powell’s appeal references eight cases in which a jury favored the death penalty by a 7-5 margin.  In just two of the cases, trial judges issued a death sentence, and one of those sentences has since been reversed.

Walker said Powell’s death sentence is disproportionate to his crime.  “In this case, Mr. Powell was not even convicted or indicted of intentional murder,” she said.

Chief Justice Myron Steele said Spicer was not the only person Powell shot at on Sept. 1, 2009.  “There’s a pattern of use of a deadly weapon,” he said.

Steele said trial testimony also revealed Powell told the driver of the car, Christopher Reeves, that he would shoot at the police if Reeves stopped the car.  “Why is that type of crime not death-penalty eligible?” Steele asked.

Walker said it was unclear who fired the shot that killed Spicer.  She said the lower court’s decision was largely based on testimony from Luis Flores, who was in the car with Powell and Reeves when the shot was fired.  Flores was the only witness to testify he saw Powell pull the trigger.

Justice Randy Holland argued the court did not rely solely on Flores’ testimony to determine Powell fired the gun.  “The judge made a factual finding…that the defense’s theory was illogical,” he said.

During the trial, defense attorneys argued Flores could have been the shooter. Testimony revealed gunshot residue was found on the hands of both Powell and Flores.

Justice Jack Jacobs asked Walker if her argument for constitutionality relied on the assumption that Powell was not the shooter.

Walker said even if Powell was the shooter, his sentence is still disproportionate to his crime.  “It’s incongruous with his codefendants,” Walker said.

Powell’s co-defendant, Reeves, was charged with failing to stop at an officer’s command and resisting arrest.  Flores faced no charges from the incident.  “He got nothing, and yet he was allowed to testify against our client,” Walker said.

Walker said all three defendants were equally culpable of felony murder.

Ceccotti then addressed the panel to argue Superior Court should have given the jury the option to convict Powell of second-degree murder.  He said Powell’s crime could have resulted from criminal negligence instead of recklessness.

Ceccotti said Powell could have had the gun on his lap and it simply discharged.  He said witness testimony revealed the car crash and gun shot happened simultaneously.

Justice Henry DuPont Ridgely said the bullet went through a window in the backseat of the car.  “If the gun was on his lap, wouldn’t the bullet go through the door?” Steele asked.

Ceccotti said experts could not determine the angle from which the gun was fired.  “The gun was discharged inside the car,” he said.  The jury should have had the choice to find Powell guilty of criminally negligent second-degree murder instead of reckless first-degree murder, Ceccotti said.

Steele said the defense’s primary arguments – that Flores was the shooter and that the gun went off in Powell’s lap – were purely speculative.  Steele compared the arguments to people who report extra-terrestrial sightings.  “There has to be something for a trial judge that’s not speculative,” he said.

Ceccotti said there was testimony to back the arguments.  “Certainly it’s an alternative theory of what occurred,” he said.  “There’s enough in this record for a jury to at least consider whether Powell was reckless in his conduct or negligent.”

Paul Wallace, of the Attorney General’s Office, argued on behalf of the state, as prosecutors from the trial – Paula Ryan and Martin Cosgrove – watched from the gallery.

“Alternative arguments are fine,” he said.  “This court must determine there is a rational basis.”

Wallace said if Flores were facing the death penalty instead of Powell, the defense could reasonably argue the sentence was not proportional.  “But that’s not this case,” he said.  “What the other, lesser players got does not matter here.”

Wallace said of Powell, “No doubt, he wants to lay this at Flores’s feet and say, ‘He got away with it, I should too.’”

Jacobs asked Wallace about the narrow 7-5 vote in favor of death.  Wallace said the case was unique in that Powell killed an officer to ensure his own getaway.

“You have to look at his character and propensities,” Wallace said.  “He was a cop-killer waiting to happen.”

The justices went into recess, saying only they would take the oral arguments into consideration.  Jason Miller, spokesman for the Attorney General’s Office said the justices have no deadline to reach a decision.

Ruth Ann and Norman Spicer, Chad Spicer’s parents, lingered in the courthouse lobby after the arguments, talking to Attorney General Beau Biden. Powell’s parents did not attend the proceedings.