Powell v. Sherman

Background

Diantay M. Powell, who was incarcerated at Mule Creek State Prison, filed this pro se petition under 28 U.S.C. § 2254 challenging his California convictions. A jury found him guilty of first-degree murder of Bobbie Sartain and second-degree murder of Raquel Gerstel, along with firearm and great-bodily-injury enhancements and a multiple-murder special-circumstance finding. He received life imprisonment without parole, consecutive to 65 years to life. The California Court of Appeal remanded the enhancements under then-new legislation but otherwise affirmed the judgment, and the California Supreme Court denied review.

Powell raised three claims: (1) the trial court failed to give an instruction explaining how voluntary intoxication could relate to heat of passion; (2) trial counsel was ineffective for failing to request that instruction; and (3) CALCRIM 337 violated his constitutional rights by telling jurors that the fact that two witnesses were in custody did not, by itself, make them more or less believable.

Intoxication and Heat of Passion

The trial court gave CALCRIM 570 on heat of passion and voluntary manslaughter. It also gave CALCRIM 625, which allowed the jury to consider voluntary intoxication only in deciding whether Powell acted with intent to kill or with deliberation and premeditation, and said that the jury could not consider voluntary intoxication for any other purpose.

Powell argued that CALCRIM 625 improperly prevented the jury from considering intoxication when deciding whether he acted subjectively under the influence of heat of passion. The California Court of Appeal assumed that intoxication could be relevant to that subjective question but held that any instructional error was harmless because the evidence did not show provocation sufficient to cause a reasonable person to act from passion rather than judgment.

Applying the deferential federal standard under the Antiterrorism and Effective Death Penalty Act, the court held that the state court’s harmless-error determination was not unreasonable. The court noted that Sartain struck or slapped Powell after he pulled her from the car, Gerstel confronted him verbally, and Powell then shot Gerstel and followed Sartain while shooting her as she ran away. The court concluded that there was no substantial evidence of provocation satisfying the objective part of the heat-of-passion defense. Powell therefore was not entitled to relief on this claim.

Ineffective Assistance of Counsel

Powell claimed that trial counsel was ineffective for failing to request an instruction connecting voluntary intoxication to heat of passion. Under the test from Strickland v. Washington, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance caused prejudice, meaning a reasonable probability of a different result.

The court assumed, without deciding, that counsel’s performance might have been deficient. It nevertheless rejected the claim because Powell could not show prejudice. For the reasons discussed in connection with the first claim, the court found no objective evidence of provocation sufficient to support a heat-of-passion defense, so an additional instruction would not reasonably have changed the outcome.

Powell also argued that counsel should have requested instructions concerning the reduction of murder charges, second-degree murder, and manslaughter. The court noted that the jury had received those instructions. Powell further argued that counsel should have sought to change the charges, but the court found that he had not shown counsel had the legal ability to do so. The court denied relief on the ineffective-assistance claim.

CALCRIM 337 and Witness Credibility

CALCRIM 337 told the jury that when Albert Rich and Quincy Carter testified, they were in custody, but that custody alone did not make a witness more or less believable. The jury also received CALCRIM 226, which instructed jurors that they could consider anything reasonably tending to prove or disprove the truth or accuracy of testimony, including a witness’s personal interest or other factors affecting credibility.

Powell argued that CALCRIM 337 prevented the jury from considering whether the witnesses’ custody status gave them a reason to support the prosecution. The California Court of Appeal rejected the claim. The federal court applied deferential review because the state court had rejected the federal claim without separately explaining its constitutional analysis.

The court distinguished Davis v. Alaska, where the trial court had prohibited questioning about a key witness’s juvenile record and probation status. Here, the jury knew why Rich and Carter were in custody, and the trial court had not barred questioning or told the jury that it could not consider custody status. The court held that CALCRIM 337 merely cautioned that custody status alone was not determinative and that jurors remained free to consider it along with the other credibility factors. The instruction therefore did not violate due process, prevent presentation of a defense, or infect the trial.

Disposition

The court denied the petition for a writ of habeas corpus. It also denied Powell’s renewed motion for appointment of counsel, denied a certificate of appealability, and directed the Clerk to close the file. Judge Edward M. Chen signed the order on January 16, 2020.