425 P.3d 1006
Cal.2018Background
- On Jan. 19, 1992 Keith McDade (KFC manager) was shot at point-blank range; bank bag and KFC box found nearby; defendant Carl Powell’s fingerprints were on the chicken box and gift certificates. Powell was arrested and gave multiple, inconsistent statements admitting involvement and at times blaming or describing coercion by co-defendants John and Terry Hodges.
- A gun Powell had given to Angela Littlejohn was later recovered; ballistics were consistent with the killing. Powell had prior thefts from the KFC and showed familiarity with robbery planning.
- A jury convicted Powell of first degree murder, robbery, and grand theft, found the murder occurred during a robbery and that Powell personally used a firearm; the jury returned a death verdict.
- At trial defense counsel repeatedly told the court and prosecutor Powell would testify implicating the Hodges brothers; the court empaneled separate (dual) juries for Powell and the Hodges defendants. Powell ultimately invoked his right not to testify. The Hodges juries were later mistried.
- Penalty-phase mitigation included testimony about Powell’s disadvantaged upbringing, low IQ, gang manipulation vulnerability, and jail behavior; aggravation included gang-related incidents and prior violent conduct. The trial court denied motions to exclude various items of evidence and denied Powell’s challenges to many rulings; the death judgment was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Powell) | Held |
|---|---|---|---|
| Use of dual juries | Dual juries were proper to protect co-defendants’ confrontation rights while preserving joint trial presumption | Dual juries prejudiced Powell after he did not testify; opening promised testimony that never came; logistical and speculative prejudice | No error; defendant’s counsel repeatedly requested/approved dual juries and cannot complain; no identifiable prejudice shown (invited error/forfeiture) |
| Prosecutor’s opening promising Powell’s testimony / Griffin claim | Prosecutor merely recited defense’s representation of expected testimony; defense had told prosecutor Powell would testify | Promise of testimony invited juror inference from Powell’s silence; prosecutorial misconduct and Griffin violation | Denied: invited error; Powell voluntarily chose not to testify after being fully advised; appropriate admonitions given; no Griffin error |
| Excusal of a juror under §1089 | Trial court properly removed a juror whose stress and sleep loss risked impartiality and whose counseling needs could contaminate deliberations | Removal violated Powell’s rights to impartial jury | Affirmed: trial court discretion supported by record; demonstrable inability to perform duty shown |
| Expert testimony relaying defendant’s out-of-court statements (penalty phase) | Court allowed expert to opine on hypothetical facts but excluded Nicholas’s case‑specific, self‑serving statements to the psychologist as inadmissible hearsay and prejudicial | Exclusion denied Powell the right to present mitigating evidence; expert may rely on hearsay as basis for opinion | Affirmed: court properly exercised discretion; exclusion consistent with Coleman/Price and later Sanchez; case‑specific, testimonial/self‑serving statements treated as hearsay and could be excluded when unduly prejudicial |
| Admission of gang and other-character evidence | Gang evidence and photograph were relevant to penalty‑phase aggravation and past violent conduct; reputation testimony admissible | References to nicknames, dress, reputation and other guns were prejudicial propensity evidence and forfeited or improperly admitted | No reversal: many objections forfeited; trial court limited gang evidence and admission was within discretion; any errors harmless beyond a reasonable doubt |
| Penalty-phase instructions & automatic motion to modify | Instructions given (CALJIC variants) properly guided jury on aggravating/mitigating weighing; trial court correctly weighed aggravation and mitigation on automatic modification | Certain refused instructions (e.g., duress, jury told a single mitigating factor may suffice) and some instructional language were legally required; court misweighed factors like youth and may have treated mitigation improperly | Affirmed: instructions were adequate; court’s weighing of aggravators/mitigators supported the verdict; any trial‑court misstatements were harmless given substantial aggravation |
Key Cases Cited
- Bruton v. United States, 391 U.S. 123 (1968) (co-defendant statements implicating another may require severance or procedures to protect confrontation rights)
- Griffin v. California, 380 U.S. 609 (1965) (prosecutor may not comment on defendant’s failure to testify)
- Lockett v. Ohio, 438 U.S. 586 (1978) (limits on prosecutorial comment re: defendant’s silence where defense promised testimony)
- People v. Aranda, 63 Cal.2d 518 (1965) (confrontation/severance principles in multi-defendant cases)
- People v. Jackson, 13 Cal.4th 1164 (1996) (dual juries and antagonistic defenses)
- People v. Cummings, 4 Cal.4th 1233 (1993) (standards for severance/dual juries; review based on facts known at ruling time)
- People v. Coleman, 38 Cal.3d 69 (1985) (limits on expert eliciting prejudicial case‑specific hearsay)
- People v. Price, 1 Cal.4th 324 (1991) (trial court control over expert testimony to prevent introduction of inadmissible hearsay)
- People v. Sanchez, 63 Cal.4th 665 (2016) (case‑specific out‑of‑court statements treated as hearsay when relied on as true by experts; limiting instruction often insufficient)