State v. Powell
2020 Ohio 3887
Ohio Ct. App.2020Background:
- Powell was convicted after a January 2018 trial of rape/kidnapping (D.E.) and corruption of a minor (A.W.) based on victim IDs and cold-case DNA matches; total sentence 10.5 years.
- D.E. (1997) and A.W. (1998) had inconsistent earlier statements to police but identified Powell in 2015 photo arrays; buccal swabs from Powell matched DNA from the kits.
- Several continuances occurred between Powell’s IAD demand (docketed Mar. 15, 2016) and trial (Jan. 22, 2018); many continuances were at defense request and for DNA/alibi preparation.
- Defense obtained a court-funded $1,500 independent recheck of the state’s DNA work; the independent review found the state’s results satisfactory; original analyst Serowik had been fired in a separate matter.
- Powell filed an App.R. 26(B) application to reopen his direct appeal, alleging appellate counsel was ineffective for failing to argue: (1) prosecutor used perjured/tampered evidence, (2) DNA was unreliable and counsel failed to obtain independent testing/experts, (3) Serowik misconduct tainted evidence, and (4) IAD speedy-trial violation.
- The court denied reopening, holding Powell failed to show a genuine issue of ineffective assistance of appellate counsel under Strickland/App.R.26(B).
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Powell) | Held |
|---|---|---|---|
| 1. Use of perjured testimony / tampering | Inconsistencies go to weight, not proof of perjury; no record support that prosecutor knowingly used perjury | Witness statement inconsistencies and alleged withheld interviews show prosecution used/tampered with false testimony to convict | Denied — inconsistencies do not establish perjury; no record evidence of withheld interviews; appellate counsel not ineffective for declining this argument |
| 2. DNA reliability / trial counsel ineffective for not obtaining expert retest | Independent recheck (funded) confirmed state results; older 12/13-STR testing remains reliable despite 23-STR standard today | DNA testing was insufficient, possibly fraudulent; counsel should have obtained new testing and an expert to rebut state evidence | Denied — recheck found results satisfactory; retesting was largely impossible (samples consumed); strategic decision not to call another expert was reasonable |
| 3. Serowik misconduct taints evidence | Appellate brief raised hearsay/concerns about Serowik; no basis to treat that as reversible ineffective assistance | Serowik’s alleged misconduct, and his involvement, rendered forensic results unreliable and counsel ineffective | Denied — appellate counsel addressed Serowik as part of strategy; no reversible showing that omission was deficient or prejudicial |
| 4. Interstate Agreement on Detainers (IAD) speedy-trial claim | Many continuances were requested or acquiesced to by defense; defense counsel’s agreement binds defendant under New York v. Hill | IAD demand was docketed Mar. 15, 2016; trial began >180 days later, so indictment should be dismissed | Denied — majority of delay attributable to defense requests; defense counsel bound Powell; even excluding court-request continuance, IAD period was not exceeded |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two-pronged standard)
- Jones v. Barnes, 463 U.S. 745 (appellate counsel may winnow issues; not required to raise every colorable claim)
- New York v. Hill, 528 U.S. 110 (defendant bound by counsel’s agreement to continuances under IAD)
- Agurs v. United States, 427 U.S. 97 (prosecutor’s knowing use of false testimony violates due process)
- Napue v. Illinois, 360 U.S. 264 (same principle regarding false testimony)
- State v. Myers, 102 Ohio St.3d 318 (App.R.26(B) reopening uses Strickland standard)
- State v. Johnson, 144 Ohio St.3d 518 (witness inconsistencies alone do not establish perjury)
- State v. Nichols, 66 Ohio St.3d 431 (strategic choice not to call DNA expert can be reasonable)
- Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77 (appellate review limited to trial record)
- State v. Ishmail, 54 Ohio St.2d 402 (cannot add new matter to the record to create appellate claims)