Powell v. Fuchs

• Decision Date: 15 July 2021
• Docket Number: No. 19-1818,19-1818
• Citation: 4 F.4th 541
• Parties: Jimmy L. POWELL, Petitioner-Appellant, v. Larry FUCHS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

4 F.4th 541

Jimmy L. POWELL, Petitioner-Appellant,

v.Larry FUCHS, Respondent-Appellee.

No. 19-1818

United States Court of Appeals, Seventh Circuit.

Argued December 9, 2020

Decided July 15, 2021

Rehearing Denied September 10, 2021

Christopher John Frisina, Attorney, ALSTON & BIRD LLP, Washington, DC, Edward King Poor, Attorney, QUARLES & BRADY LLP, Chicago, IL, for Petitioner - Appellant.

Aaron R. O'Neil, Attorney, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, Madison, WI, for Respondent - Appellee.

Before Wood, Brennan, and St. Eve, Circuit Judges.

Brennan, Circuit Judge.

Jimmy Powell dealt cocaine. After a drug deal went bad and his customer ended up with life-threatening injuries, he was charged in Wisconsin state court with various crimes, including first-degree reckless injury. A jury found Powell guilty of that crime but acquitted him of two more serious charges. He appealed, contending that a supplemental jury instruction about the reckless injury charge misstated the law and that his counsel was ineffective for agreeing to it. The state appellate court rejected his arguments, as did the district court when Powell raised them in a petition for a writ of habeas corpus under 28 U.S.C. § 2254.

In this appeal, Powell maintains his claim that his trial counsel was ineffective for approving the supplemental jury instruction, and he argues that the state appellate court unreasonably applied federal law in concluding otherwise. But he offers no clear and convincing evidence to rebut the state appellate court's conclusion that the instruction was an accurate response to a question from the jury. The record also shows that Powell's trial counsel had reasonable and strategic reasons for not objecting, so we affirm.

I. Background

A. The Offense

Late one evening in 2009, Robert Rabe contacted Jimmy Powell, his regular dealer, to purchase cocaine. Rabe and his friend, Ryan Ryckman, had been drinking earlier that day and wanted drugs. Powell agreed to meet them and drove to a dimly lit parking lot near Madison, Wisconsin. Rabe and Ryckman arrived in a separate vehicle. Rabe parked his car and got out. Carrying about $900 in cash, Rabe approached Powell's truck and entered on the passenger side. Ryckman waited in Rabe's car.

What happened next is the subject of conflicting evidence, but it is clear that Powell and Rabe got into a fight and they spilled out of Powell's truck. Eventually, Powell jumped back in his truck and with its headlights off sped away, in the process running over Rabe. Ryckman, meanwhile, worried that the deal was taking too long and left Rabe's car to investigate. When Ryckman saw Rabe get run over, he dialed 911 for help.

While Ryckman was on the phone, Powell returned to the scene. His truck's headlights were still off. The evidence again conflicts as to what happened next, but at some point Ryckman and Powell struggled over the phone, and the phone wound up sheared in half. Powell got back in his truck and sped away a second time. When police arrived at the scene, they found a knife on the ground. Rabe had several serious injuries and was bleeding from a deep gash on his neck. He survived, but his cash was never recovered.

B. The Trial

Powell was arrested a few days later and charged with attempted first-degree intentional homicide, armed robbery, and first-degree reckless injury. The prosecution's theory was that Powell decided to rob Rabe after seeing him with a large amount of cash, tried to kill Rabe when he resisted by slashing his throat with a knife and running him over with a truck, and then returned to the scene to make sure Rabe was dead. Powell responded that the entire incident was an accident. According to Powell, Rabe attacked him first, and Powell accidentally ran him over attempting to retreat. Rabe had been his customer for years, Powell maintained, and it did not make sense for him to want to rob and kill a steady source of income.

The case went to trial and the jury heard from Ryckman and Rabe. Ryckman could not remember much and, because of his vantage point, he did not see how the altercation began. Rabe, meanwhile, said that after he got into the truck Powell pulled a knife on him and demanded cash. Rabe believed that at some point during the ensuing fight, Powell slashed him across the neck with a knife, although Rabe could not remember precisely when.

Both parties called expert witnesses who provided conflicting testimony about how Rabe injured his neck. A pathologist opined the injury was caused by a knife because nothing on Powell's truck could have caused it, but a police officer who specialized in collision reconstruction did not share the pathologist's certainty. Rabe's plastic surgeon believed low-hanging parts on Powell's truck could have inflicted the gash when the truck ran over him. Rabe's emergency room doctor was unsure how Rabe was injured.

Powell testified at trial in his own defense. He denied having a knife during the altercation. After he handed the drugs to Rabe, Powell said, Rabe punched him in the head without any warning. When the fight spilled out of the car, Powell asserted it was Rabe who drew a knife. The two wrestled on the ground, and Powell lost his cellphone in the struggle. Powell managed to break away, jumped into his truck, and, in shock, sped off. Less than a minute later, Powell turned around, realizing that he may have hit Rabe. Back at the parking lot, Powell saw Ryckman on the phone, standing over Rabe. Still in shock, Powell worried about Rabe and wanted to call the police. Believing that Ryckman was using his phone, Powell wrestled for it and fled after the phone broke.

At the close of evidence, the trial court instructed the jury on the elements of first-degree reckless injury using Wisconsin's pattern jury instruction for that crime:

[T]he State must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present:

First, the defendant endangered the safety of another human being.

Second, the defendant endangered the safety of another by criminally reckless conduct.

... Third, the circumstances of the defendant's conduct showed utter disregard for human life. In determining whether the conduct showed utter disregard for human life, you should consider these factors: What the defendant was doing; why the defendant was engaged in that conduct; how dangerous the conduct was; how obvious the danger was; whether the conduct showed any regard for life; and, all other facts and circumstances relating to the conduct.

See WISCONSIN JURY INSTRUCTIONS—CRIMINAL 1250 (2002).

During deliberations, the jury asked a question: "Please provide us with a definition of utter disregard for human life. Is there a time element associated with the utter disregard? (before, during, and after)." An off-the-record discussion among the court and counsel produced the following answer:

Utter disregard for human life has already been provided to you. There is no additional legal guidance on this definition.

In this case, the crime of first-degree reckless injury involves the period of time while Mr. Powell is engaged in conduct related to operating his motor vehicle. It does not include conduct by Mr. Powell after Mr. Rabe had been run over.

On the record, the parties agreed this answer was proper. The court then gave this supplemental instruction to the jury in writing.

The jury acquitted Powell of the two more serious charges against him, but it found him guilty of first-degree reckless injury. Powell was sentenced to 13 years’ imprisonment and a 10-year term of extended supervision.

C. State Postconviction Proceedings

After his conviction, Powell filed a postconviction motion, asserting that the supplemental jury instruction misstated the law and that his counsel was ineffective for agreeing to it. The supplemental instruction prevented the jury from considering the totality of the circumstances when evaluating whether he had acted with utter disregard, Powell contended, so there was no reasonable strategic reason for his counsel to agree to a defective instruction.

In considering Powell's claims, the state trial court held an evidentiary hearing—provided for in State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Wis. Ct. App. 1979) —at which Powell's counsel testified. Counsel remembered the case and recalled that the reckless injury charge encompassed only Powell's actions while he was behind the wheel of his truck. He recalled the jury asked a question about "how to understand the instructions as far as time frame, um, whether that would pertain to the entire incident or just part of the incident." Counsel was "surprised" at the court's answer to the jury's question because he "was sort of expecting the Court to say, um, you know, just look at the entire scenario." But, he explained, he "liked [the answer] because it had the effect of limiting it so the jury wouldn't be able to consider anything outside the car." When asked about the legal accuracy of the answer to the jury's question, counsel replied:

I would say that I was very pleased with the answer because I felt it was more limiting than it had to be, and so I felt it benefited Mr. Powell.

...

We're talking about reckless injury here. And certainly after the vehicle was operated, Mr. Rabe suffered a cut from ear to ear, and so I didn't want them to, you know, the jury to deliberate and say, well, you know, because of that injury, I think this charge would be appropriate.

...

And I would just add that, um, also before—before he got in the car, there was also—there was a fist fight. There was a time when it was alleged Mr. Powell had kicked open the door and knocked Mr. Rabe down. So, again, none of that was really, according to the Court's answer, was in play. So that's why I liked it because there were things that happened that injured Mr. Rabe before and after. So if we're limiting it to just the time that Mr. Powell is operating the vehicle, I felt that was the best

...