State Of Washington, V Steven C. Powell
48047-6
| Wash. Ct. App. | Feb 22, 2017Background
- Police sought a warrant to search Steven Powell’s home for Susan Powell’s journals as part of an investigation into her disappearance; the warrant issued and was executed in August 2011.
- Officers seized computers, discs, a camcorder and notebooks; a disc contained a folder “Neighbors” with video/photo images taken through a window showing two young neighbor girls in bathrooms, including images of exposed genitalia.
- Powell was initially charged with voyeurism and possession of depictions of a minor; voyeurism convictions were affirmed on appeal, and the possession charge was later re-filed in 2014 after being reinstated on appeal.
- Powell sought a Franks hearing to challenge alleged misstatements/omissions in the warrant affidavit and moved to exclude a 2004 journal passage stating he took videos of “pretty girls” and used images for self-stimulation.
- Trial court denied a Franks hearing, admitted the single journal passage (excluding the rest of the journals), the jury convicted Powell of second-degree possession of depictions of a minor for sexual stimulation, and the court imposed a 60‑month sentence to run consecutively to his earlier voyeurism sentence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Powell) | Held |
|---|---|---|---|
| Whether Powell was entitled to a Franks hearing to challenge warrant affidavit misstatements/omissions | Affidavit was valid; no hearing necessary | Affidavit included material misstatements/omissions (about providing journals, obstruction/cooperation, children available for interviews) requiring a Franks hearing | Denied: Powell failed to show the challenged items were material; removing/adding them would not have destroyed probable cause |
| Whether journal passage was admissible under ER 403 (unfair prejudice vs probative value) | Passage showed identity and intent (use for sexual gratification), probative value outweighed prejudice | Passage was remote, general, and prejudicial; should be excluded | Admitted: passage was probative of who took videos and intent; not substantially outweighed by prejudice |
| Whether journal passage was inadmissible propensity evidence under ER 404(b) | Admissible for identity, motive, intent — not to show character | Evidence was impermissible other‑acts/propensity evidence | Admitted under ER 404(b): trial court made required findings; passage relevant to identity and intent |
| Ineffective assistance and consecutive sentence challenges | Counsel reasonably litigated warrant issues and tactical choices were defensible; consecutive sentence authorized by statute | Counsel failed to investigate/persecute law enforcement false statements; sentence improperly consecutive | Claims rejected: ineffective assistance not shown; consecutive sentence permissible under RCW 9.94A.589(3) and was expressly ordered |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (establishes preliminary-showing standard entitling defendant to evidentiary hearing on warrant affidavit falsehoods or omissions)
- State v. Ollivier, 178 Wn.2d 813 (2013) (applies Franks framework under Washington Constitution and frames Washington test for Franks hearing)
- State v. Garrison, 118 Wn.2d 870 (1992) (materiality test: modify affidavit by striking misstatements/adding omissions and assess remaining probable cause)
- State v. Gunderson, 181 Wn.2d 916 (2014) (ER 404(b) admission requires findings on occurrence, purpose, relevance, and ER 403 balancing)