Ishmail T. Powell v. Commonwealth of Kentucky

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RENDERED: JUNE 15, 2023
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0480-MR
ISHMAIL T. POWELL APPELLANT
ON APPEAL FROM BOONE CIRCUIT COURT
V. HONORABLE JAMES R. SCHRAND, II, JUDGE
NO. 19-CR-00692
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Boone County jury found Appellant Ishmail T. Powell (Powell) guilty of
murder, attempted murder, tampering with physical evidence, and being a
persistent felony offender in the first degree (PFO I). In accordance with the
jury’s recommendation, as enhanced, the trial court sentenced Powell to a total
of fifty years in prison. Powell raises three issues on appeal. He claims the
trial court erred by (1) failing to dismiss the indictment pursuant to RCr1 8.18,
(2) allowing into evidence irrelevant testimony regarding the murder victim, and
(3) failing to grant a directed verdict on the charges. Upon review, we affirm
the Boone Circuit Court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of Sunday, July 21, 2019, a melee, described
by participants as a “cluster” fight, broke out at a pizza restaurant/bar in
1 Kentucky Rule of Criminal Procedure.
Boone County, Kentucky. Stephen Dodson (Dodson) was stabbed and died at
the scene. Malcolm Willoughby (Willoughby) was also stabbed; he survived his
life-threatening injuries. A Boone County grand jury returned an indictment
charging Powell with (1) murder, (2) attempted murder, (3) tampering with
physical evidence, and (4) becoming a persistent felony offender in the first
degree. Prior to trial, Powell moved the trial court to dismiss the indictment.
The trial court denied the motion.
At trial, witnesses providing testimony about the fight included patrons
involved in the fight and restaurant staff and patrons who witnessed the fight.
Some witnesses testified that they did not see Powell in the restaurant that
night, some testified that they saw him in the restaurant but did not see him
fighting, and some testified that they did see him fighting. Josh King (King)
was the only witness who testified that he saw Powell with a knife at the
restaurant. King testified that Powell jokingly put the knife to his stomach and
threatened to gut him and that Powell was playing with the knife throughout
the night. None of the witnesses saw Powell stab the victims.
A week after the fight, detectives received an anonymous tip that the
knife used in the stabbing had been thrown in a sewer drain. Detectives
obtained surveillance videos from area establishments. One video showed an
individual stopping and bending over the sewer drain on the night of the fight.
In that area, a knife was found just inside the pipe leading to the storm drain.
Forensic testing on the knife and clothing did not provide incriminating
evidence against Powell; in particular, the swabs of the knife handle and knife
blade had insufficient DNA for analysis.
2
King was the Commonwealth’s primary witness against Powell.
According to King, Powell confessed to him later on the day of the fight that he
stabbed the two victims; he stabbed one victim as he fought with their friend
Leon, and he stabbed the other victim as he fought with King. King further
testified that Powell also stated that after the stabbings, he ran out the door
and threw the knife in a sewer drain.
King shared with his then girlfriend that Powell confessed to him that
Powell stabbed the victims.2 Although the girlfriend encouraged King to go to
the police, King did not inform the police about Powell’s confession right away.
According to King’s testimony, King did not look at Powell the same again after
Powell told him that he killed somebody, and he took Powell’s actions as a
threat. Consequently, during his first police interview, he did not mention
Powell’s confession or say anything about the knife. Afterward, he provided the
anonymous tip about the knife being thrown into the drain. King testified that
he was not forthcoming to police about Powell’s confession because Powell was
still on the street. About one month after the stabbings and within a week of
Powell’s arrest, King told Detective Dickhaus in a recorded interview about
Powell’s confession.
At trial, Powell maintained his own theory of who stabbed the victims.
He suggested the true perpetrator was King.
2 King also told another friend, Mike, that Powell confessed to stabbing the
victims. Both King and Mike were questioned by the defense as to whether King
actually told Mike that someone other than Powell had stabbed the victims.
3
The jury found Powell guilty of the crimes charged. The jury
recommended that Powell serve the following PFO I enhanced sentences
concurrently for a total sentence of fifty years in prison: fifty years for
committing murder, thirty years for committing attempted murder, and ten
years for tampering with physical evidence. The trial court sentenced Powell
accordingly.
Powell brings three issues on appeal. Each issue is addressed in turn.
Additional facts are presented as necessary.
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion By Denying Powell’s
Motion to Dismiss the Indictment.
Powell claims that the trial court erred in failing to dismiss the
indictment pursuant to RCr 8.18 and alleges that his due process rights were
violated. He claims that the Commonwealth presented false statements to the
grand jury when Detective Dickhaus testified to statements King did not make.
Detective Dickhaus recorded two interviews with King. During the
second interview, King told Detective Dickhaus about his visit with Powell
during which Powell admitted stabbing the victims. King did not provide
information in the interview about the number of times Powell stabbed the
victims.
During the Commonwealth’s presentation to the grand jury, the
Commonwealth asked Detective Dickhaus if Powell admitted to King that he
stabbed Dobson and Willoughby five times each and Detective Dickhaus stated
that was correct. When asked by the Commonwealth whether the witness had
4
seen any sort of autopsy report or anything that would give him the
information on how much each victim had been stabbed, Detective Dickhaus
stated no.
Powell argues that the blatantly false statement from the Commonwealth
and Detective Dickhaus’s misstatement of a key piece of evidence were used by
the Commonwealth to indict Powell and therefore, the indictment must be
dismissed.
RCr 8.18(1)(b) provides that except for good cause shown, a motion
alleging a defect in the indictment shall be raised before trial. Consistent with
RCr 9.24,3 the criminal trial harmless error rule, RCr 6.12 provides that an
indictment is not invalid because of a defect that constitutes harmless error.
RCr 6.12 states: “An indictment . . . shall not be deemed invalid, nor shall the
trial, judgment or other proceedings thereon be stayed, arrested or in any
manner affected by reason of a defect or imperfection that does not tend to
prejudice the substantial rights of the defendant on the merits.”
3 RCr 9.24 states in full:
No error in either the admission or the exclusion of evidence and
no error or defect in any ruling or order, or in anything done or omitted
by the court or by any of the parties, is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order unless it appears to the court that the
denial of such relief would be inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error or defect
in the proceeding that does not affect the substantial rights of the
parties.
5
In Bank of Nova Scotia v. United States,4 the United States Supreme
Court considered the role of the federal harmless error rule, a rule comparable
to Kentucky’s, when the trial court is asked to dismiss an indictment for
prosecutorial misconduct. The Supreme Court concluded that a federal court
may not invoke supervisory power to circumvent the harmless-error inquiry
prescribed by Federal Rule of Criminal Procedure 52(a); that rule provides that
“[a]ny error, defect, irregularity or variance which does not affect substantial
rights shall be disregarded.”5 The Supreme Court held that, as a general
matter, a district court may not dismiss an indictment for errors in grand jury
proceedings unless such errors prejudiced the defendants.6 More specifically,
a district court exceeds its powers in dismissing an indictment for prosecutorial
misconduct not prejudicial to the defendant.7 The Supreme Court concluded
that when dismissal is sought for nonconstitutional error, the dismissal may be
properly granted “if it is established that the violation substantially influenced
the grand jury’s decision to indict,” or “if there is ‘grave doubt’ that the decision
to indict was free from the substantial influence of such violations.”8,9
4 487 U.S. 250 (1988).
5 Id. at 254-55.
6 Id. at 254.
7 Id. at 255 (citing United States v. Mechanik, 475 U.S. 66 (1986)).
8 Id. at 256 (quoting and adopting the standard articulated by Justice O’Connor
in her concurring opinion in Mechanik, 475 U.S. at 78).
9 The Supreme Court also explained that a class of cases exist in which
indictments may be dismissed without a particular assessment of the prejudicial
impact of the errors because the errors are deemed fundamental, cases in which the
structural protections of the grand jury have been compromised as to render the
proceedings fundamentally unfair, allowing the presumption of prejudice. Id. at 257.
6
In Commonwealth v. Baker,10 the Court of Appeals adopted the harmless
error standard pronounced in Bank of Nova Scotia11 and, in consideration of
other federal authority, explained that “[a] court may utilize its supervisory
power to dismiss an indictment where a prosecutor knowingly or intentionally
presents false, misleading or perjured testimony to the grand jury that results
in actual prejudice to the defendant.”12 Baker thus presents a two-part test: (1)
Was there prosecutorial misconduct? 2) If so, was the misconduct prejudicial to
the defendant? Considering Baker, the trial court denied Powell’s motion to
dismiss.
On appeal, Powell argues that the trial court erred in finding that the
false testimony by Detective Dickhaus did not substantially influence the grand
jury’s decision to indict him. Powell asserts that the knowingly false testimony
to the grand jury could only bias the grand jury against him and that the grand
jury hearing that King knew how many times Powell stabbed each victim
without seeing the autopsy report added false credibility to King’s allegations in
this case.
Under the trial court’s Baker analysis, the circumstances of this case
constituted harmless error. First, the trial court did not find that the
Commonwealth intended to use a false statement as evidence before the grand
jury, hence, there was no finding of prosecutorial misconduct. However, Powell
10 11 S.W.3d 585 (Ky. App. 2000).
11 Id. at 588.
12 Id. at 588-89 (citing United States v. Adamo, 742 F.2d 927 (6th Cir. 1984);
United States v. Soberon, 929 F.2d 935 (3d Cir. 1991); and United States v. Roth, 777
F.2d 1200 (7th Cir. 1985)).
7
does not now challenge the trial court’s finding that there was no prosecutorial
misconduct. Instead, Powell complains that Detective Dickhaus fabricated the
false statement to bolster the credibility of the only witness that alleged that
Powell stabbed anyone at the restaurant.
Without a challenge to the trial court’s finding of no prosecutorial
misconduct, Powell’s complaint on appeal that Detective Dickhaus’s false
testimony substantially influenced the grand jury’s decision to indict him
comes down to a challenge of the competence of the evidence presented to the
grand jury, a challenge which is not sufficient to require a dismissal of the
indictment. As expressed in RCr 5.10, “The grand jurors shall find an
indictment where they have received what they believe to be sufficient evidence
to support it, but no indictment shall be quashed or judgment of conviction
reversed on the ground that there was not sufficient evidence before the grand
jury to support the indictment.” The premise that a grand jury’s indictments
are not open to challenge on the ground that there was inadequate or
incompetent evidence is also reflected in Costello v. United States,13 a case
discussing long-recognized authority that a court may not look behind the
indictment to determine if the evidence upon which it was based is sufficient.14
Costello explains that “[a]n indictment returned by a legally constituted and
13 350 U.S. 359 (1956).
14 See id. at 363 (citing United States v. Reed, 27 F. Cas. 727 (C.C.N.D. N.Y.
1852); Holt v. United States, 218 U.S. 245 (1910)).
8
unbiased grand jury, . . . if valid on its face, is enough to call for trial of the
charge on the merits. The Fifth Amendment requires nothing more.”15
We conclude that the trial court did not abuse its discretion by denying
Powell’s motion to dismiss.16 Even if the trial court had concluded there was
prosecutorial misconduct, Powell was not entitled to the relief sought. While
Detective Dickhaus’s statement that Powell told King the number of times he
allegedly stabbed the victims may have been false, there were sufficient
grounds for the indictment based upon the other testimony the grand jury
heard. Like the trial court concluded, the grand jury was still able to
independently indict Powell as the jurors heard testimony that Powell admitted
to King that he stabbed the victims, irrespective of the number of times he
stabbed them.
II. The Trial Court Did Not Commit Palpable Error by Admitting
Testimony Which Provided Background Information about the
Murder Victim.
Powell’s second claim is that the trial court erred by allowing Dodson’s
mother, Mrs. Hern, to testify. He claims that her testimony was irrelevant, and
more prejudicial than probative. Powell seeks RCr 10.26 palpable error
review.17
15 Id. (internal citation omitted).
16 The test for abuse of discretion “is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
17 RCr 10.26 states:
A palpable error which affects the substantial rights of a party
may be considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or preserved
9
Mrs. Hern was the Commonwealth’s first witness. She testified that
Dodson was her youngest son, that she called him “Bear,” that Dodson had
lived with her the last two years of his life, and that her daughters informed her
that Dodson had passed away. Powell did not object to this testimony based
upon its relevancy.18 On appeal, he complains that the testimony was
irrelevant because Mrs. Hern had no personal knowledge of the events at the
restaurant and was not present that night.
“All relevant evidence is admissible, except as otherwise provided by the
Constitutions of the United States and the Commonwealth of Kentucky, by
Acts of the General Assembly of the Commonwealth of Kentucky, by [the
Kentucky Rules of Evidence], or by other rules adopted by the Supreme Court
of Kentucky.”19 Relevant evidence is “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”20
Relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of undue prejudice, confusion of the issues, or
for review, and appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
18 Defense counsel objected to the Commonwealth’s question about how Mrs.
Hern heard of her son’s death; the objection was based on the testimony arousing the
emotions of the jury. The trial court sustained the objection. The Commonwealth
withdrew the question and asked Mrs. Hern who informed her of her son’s death.
19 Kentucky Rule of Evidence (KRE) 402.
20 KRE 401.
10
misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.”21
Citing Bussell v. Commonwealth,22 Powell recognizes that “a certain
amount of background evidence regarding the victim is relevant to
understanding the nature of the crime.” However, Powell views Mrs. Hern’s
testimony as going beyond providing background for who Dodson was and as
glorifying him as a youngest son named “Bear” who was living with his mother
the last two years. Citing Bennett v. Commonwealth, Powell argues that Mrs.
Hern’s testimony was “intended to arouse sympathy for the families of the
victims, which, although relevant to the issue of penalty, is largely irrelevant to
the issue of guilt or innocence.”23 In regard to Powell’s argument, this Court
has stated:
A murder victim can be identified as more than a naked statistic,
and statements identifying the victims as individual human beings
with personalities and activities does not unduly prejudice the
defendant or inflame the jury. Just as the jury visually observed
the appellant in the courtroom, the jury may receive an adequate
word description of the victim as long as the victim is not glorified
or enlarged.24
More recently, this Court has stated that “[t]he line between relevant-
background information and prejudicial-impact testimony is a narrow one; but
we essentially distinguish the two forms of testimony by inquiring whether the
21 KRE 403.
22 882 S.W.2d 111, 113 (Ky. 1994).
23 978 S.W.2d 322, 325 (Ky. 1998).
24Bennett, 978 S.W.2d at 325 (quoting Bowling v. Commonwealth, 942 S.W.2d
293, 302–03 (Ky. 1997) (internal citation omitted), overruled on other grounds by
McQueen v. Commonwealth, 339 S.W.3d 441 (Ky. 2011)).
11
witness was overly emotional, condemnatory, or accusatory in nature.25. Like
the Court in Roe, after review of the testimony in this case and the
characteristics unique to victim-impact information, we conclude the trial court
did not commit palpable error by allowing Mrs. Hern’s testimony into evidence.
The testimony Powell complains about provides background information,
tending to establish the type of relationship Dodson shared with his mother,
rather than any “physical, psychological, or financial” harm26 Dodson’s death
caused Mrs. Hern. Here, Mrs. Hern’s testimony was not emotional,
condemnatory, or accusatory in any way. She testified only briefly and during
that time remained composed as she spoke about her son. Any error was not
“easily perceptible, plain, obvious and readily noticeable” and was not so grave
in nature that uncorrected, it seriously affected the fairness of the
proceedings.27
III. The Trial Court Did Not Abuse Its Discretion by Denying a Directed
Verdict.
Powell’s last claim is that the trial court erred by failing to grant a
directed verdict on each of the three charges.
When reviewing a defendant’s motion for a directed verdict,
the trial court must draw all fair and reasonable inferences from
the evidence in favor of the Commonwealth. If the evidence is
sufficient to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed verdict
should not be given. For the purpose of ruling on the motion, the
trial court must assume that the evidence for the Commonwealth
25 Roe v. Commonwealth, 493 S.W.3d 814, 823-24 (Ky. 2015) (citation omitted).
26 See Kentucky Revised Statute (KRS) 532.055(2)(a)(7).
27 Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citations omitted).
12
is true, but reserving to the jury questions as to the credibility and
weight to be given to such testimony.28
“As stated in Sawhill,[29] there must be evidence of substance, and the
trial court is expressly authorized to direct a verdict for the defendant if the
prosecution produces no more than a mere scintilla of evidence.”30 “In the end,
a trial court should only grant a directed verdict when ‘there is a complete
absence of proof on a material issue or if no disputed issues of fact exist upon
which reasonable minds could differ.’”31
Powell argues that the Commonwealth did not meet its burden of
producing more than a scintilla of evidence on the three charges and citing
Schoenbachler v. Commonwealth,32 argues that his Due Process rights were
violated when the trial court denied his directed verdict motions because there
was insufficient evidence to support a conviction. Powell argues that the
evidence against him was no more than a scintilla because there was only a
possibility that Powell confessed to the stabbings and disposing of a knife and
that in order to convict him of committing the crimes, the jury had to pile
inference on top of inference. He argues that under Francis v. Franklin’s33 and
Ulster County Court v. Allen’s34 guidance, cases which respectively address jury
28 Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
29 Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983).
30 Benham, 816 S.W.2d at 187-88.
31Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 285 (Ky. 2014) (quoting Bierman v.
Klapheke, 967 S.W.2d 16, 18 (Ky. 1998)).
32 95 S.W.3d 830, 836-37 (Ky. 2003).
33 471 U.S. 307, 314-15 (1985).
34 442 U.S. 140, 156 (1979).
13
instruction and standing issues and discuss the role inferences play in our
adversary system of factfinding, the connection between the basic underlying
evidentiary fact (Powell confessed to King) and the ultimate facts to be
established under the three charges was not strong enough to support a
conviction. For example, Powell states that the jury had to rely on the
inference that King, who the jury heard has history of lying and history of
violence, was telling the truth about Powell confessing to him that he stabbed
the victims and tossed the knife in the sewer drain; that Powell is the figure
bending over the sewer drain in the poor-quality video provided at trial; and
that Powell stabbed the victims despite no eyewitnesses and no DNA evidence.
Powell asserts that when the Commonwealth argued that he confessed to
committing the crimes to King, the conclusion the Commonwealth wished the
jury to draw—that Powell murdered Dodson, attempted to kill Willoughby, and
tampered with the knife found in the sewer drain—was “not one that reason
and common sense justify in light of the proven facts before the jury.”35
Upon review, we conclude that there was sufficient evidence for the
Commonwealth to overcome a motion for a directed verdict and consequently
disagree with Powell’s assertions. As described above, under the directed
verdict standard, the trial court must assume that the evidence for the
Commonwealth is true and must draw all fair and reasonable inferences from
the evidence in favor of the Commonwealth. Under this standard, evidence of
Powell’s guilt came from King’s testimony and other circumstantial evidence.
35 Citing Francis, 471 U.S. at 314-15.
14
Based upon King’s testimony, the trial court was required to view as true that
Powell confessed to King that he stabbed the victims and threw the knife down
a sewer drain. In support of that confession, the trial court was required to
consider other evidence that Powell was at the bar that night wearing a red hat
and seen leaving the bar quickly and that a person, inferred to be Powell based
on his statement to King, was seen bending over a nearby sewer drain where
the knife was eventually located. Furthermore, Powell was recorded on a jail
phone call attempting to get a friend to talk to King about changing his
testimony.
“Circumstantial evidence is sufficient to support a criminal conviction as
long as the evidence taken as a whole shows that it was not clearly
unreasonable for the jury to find guilt.”36 Our review indicates that the
Commonwealth produced evidence that was considerably more than a mere
scintilla, that the trial judge correctly determined that a reasonable juror could
fairly find guilt beyond a reasonable doubt, and that the case was properly
presented to the jury for determination.
CONCLUSION
For the foregoing reasons, the Boone Circuit Court’s judgment is
affirmed.
All sitting. All concur.
36 Bussell, 882 S.W.2d at 114 (citing Trowel v. Commonwealth, 550 S.W.2d 530(Ky. 1977); and Benham, 816 S.W.2d 186 (Ky. 1981).
15
COUNSEL FOR APPELLANT:
Jason Apollo Hart
Apollo Law PLLC
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Kenneth W. Riggs
Assistant Attorney General
16