Powell attorneys file 42-page appeal, cite bias against client

Public defenders for Derrick Powell, the 24-year-old Cumberland, Md., man who was found guilty of first-degree murder of Georgetown police officer Chad Spicer, earlier this month filed a 42-page appeal of Powell’s conviction and sentencing to the Delaware Superior Court.

The appeal argues that the lower court prevented Powell from “receiving a fair and impartial jury trial” when it denied a motion of change of venue from Sussex County – one of six arguments listed. It claims that the “highly inflammatory, sensationalized media coverage and the public’s passionate reaction to the case” denied Powell a trial by an impartial jury.

“Officer Spicer’s death set off a firestorm of publicity in Sussex County. … Spicer’s death was the ‘above-the-fold’ story in the county’s nine newspapers for days after the shooting,” stated the appeal. “The likelihood that the taint from these sources would permeate Powell’s trial cannot be ignored.”

The appeal cited a dozen newspaper headlines as examples of the “countless articles” published concerning the case, which Powell’s attorneys said helped to “escalate” the public’s “fascination.” It also cited a number of Internet blog entries and comments, including statements regarding personal views of how Powell should be punished.

“It is perhaps an understatement to suggest that many vengeance-seeking ‘bloggers’ expressed a belief that a swift, unconstitutional and illegal resolution should be had,” states the appeal. It also cites three examples of blogger comments, including, “Hang him, stone him to death. Don’t waste my tax dollars on this scumbag and his buddy.”

The appeal recognizes that the media coverage and public attention was statewide, but states that the “epicenter of the exposure was squarely in Sussex County.”

It went on to state that there were numerous gatherings, including a vigil, held in Spicer’s memory and multiple fundraisers to raise money for his daughter. Citing a poll conducted by the University of Delaware’s Center for Applied Demography and Survey Research, the appeal stated that between 94 and 98 percent of the 509 eligible jurors in Sussex County has seen, read or heard something about the case.

“It quickly became apparent that a ‘perfect storm’ had settled in Sussex County and the necessity of a change of venue was critical if Powell was to receive a fair trial,” they wrote.

Powell’s attorneys argued that, because he was denied a change of venue, his fate was decided before the jury trial even began.

“Powell’s real trial occurred in the days, weeks and months following the tragic events of September 1, 2009, when Sussex Countians were exposed to a media blitz never seen before.”

The appeal also argued that that Superior Court Judge T. Henley Graves, who presided over Powell’s trial, erred by declining to instruct the jury about the possibility of reducing the finding to Murder in the Second Degree. It went on to say that, Graves also erred when he gave the jury’s 7-5 recommendation of death “great weight” in his decision to sentence Powell to death.

The appeal further states that the sentence of death is “disproportionate” to other death sentences imposed within the state and that there was no evidence that found that Spicer died as a result of “reckless indifference to human life.”

“At best, the evidence revealed that the homicide was ‘sudden or impulsive.’”

Powell’s attorneys also argue that the jury was not properly instructed regarding the state’s “failure to collect and preserve” co-defendant Luis Flores’ clothing to test for gunshot residue.

Flores was one of the three people, along with Powell and Christopher Reeves, in the Chrysler Seabring that was being pursued by Spicer and his partner, Officer Shawn Brittingham, on Sept. 1, 2009, after reports of shots fired at the McDonald’s in Georgetown.

During Powell’s trial, Flores testified that Reeves had fled the car prior to the shooting, and that Powell had a gun.

Gunshot residue was recovered from the hands of both Powell and Flores following their detainment by the Delaware State Police. During Powell’s trial, forensic scientist Allison Murtha testified that she could not conclude from the gunshot residue collected who had fired the gun.

Flores clothing was not collected when he was in state police custody, while Powell’s clothing was collected as evidence. The appeal charged that, if gunshot residue had been found and collected on Flores’ clothing at the time of his detainment, it would have been “strong circumstantial evidence” as to who shot Spicer.

The appeal was filed by public defenders Bernard O’Donnell, Nicole Walker and Santino Ceccotti. During Powell’s initial trial, he was represented by public defenders Stefanie Tsantes and Dean Johnson.

An appeal to the Delaware Supreme Court is automatic in all death-penalty cases.