State v. Jones
State v. Jones
Opinion of the Court
¶1 Leroy Jones was convicted of second degree assault for his role in a street fight involving five people. In a motion for a new trial made shortly after the verdict and before appeal, he asserted that his trial lawyer failed to interview and call certain eyewitnesses who were clearly identified in discovery that the State provided. Jones argued that these failures constituted ineffective assistance.
¶2 To prevail on a claim of ineffective assistance of counsel, Jones must establish both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). He
¶3 Jones also argues that two prior Florida assault convictions should not have been used to increase his sentence because they are not “comparable” (per RCW 9.94A.525(3)) to second degree assault in Washington for “persistent offender” sentencing purposes. The difference is that Florida courts reject the defense of “diminished capacity” that Washington courts accept as a defense to this specific-intent crime. Because this issue might arise again if there is a retrial, we address it here also. Recently, in State v. Sublett, 176 Wn.2d 58, 88-89, 292 P.3d 715 (2012) (plurality opinion), we held that a difference in the availability of this particular defense — diminished capacity — is not relevant to whether the out-of-state conviction is “comparable” to an otherwise nearly identical Washington crime. Thus, the trial court did not err in its sentencing calculations.
FACTS AND PROCEDURAL HISTORY
1. Proceedings in the Trial Court
¶4 Jones and Taurian Alford had a fight on a public street in downtown Seattle on September 10, 2007. Three of Alford’s friends joined in the fray. There were several witnesses, including the other men in the fight. They generally identified Jones as the aggressor and testified that he held a knife. A jury convicted Jones of second degree assault.
¶6 The new defense lawyer therefore moved for a new trial on the ground of ineffective assistance of counsel. He argued, and presented written documents showing, what Hamilton would have said. Clerk’s Papers (CP) at 92. He presented no evidence about why the original defense lawyer did not previously interview Brown or Hamilton. The trial court entered findings of fact based on the written materials, without an evidentiary hearing, and denied the motion.
¶7 Jones had two prior Florida convictions for crimes that the trial court deemed comparable to second degree assault. The court therefore sentenced Jones to life without parole under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570.
2. Trial Testimony
¶8 Neither Jones nor Alford — the men who fought initially — testified at trial. According to the testimony of other witnesses, at some point one of the men chased the other and tackled him at a bus stop where several people were
¶9 According to four bystanders who did not witness the fight, Alford approached them and said that he was being chased and that someone was trying to stab him. Somewhat inconsistently, all four bystanders testified that Jones was the aggressor and had a knife either while he was chasing Alford or while he and Alford were on the ground.
¶10 Alford’s cousin testified, similar to some of the bystanders, that Jones was the aggressor and was attacking Alford when he and two other friends came upon Jones and Alford. He also stated that Alford’s three friends kicked and punched Jones to protect Alford and to restrain Jones’s hand holding the knife.
¶11 On the other hand, defense witness Mark Forbes— another neutral bystander — testified that he stood about 15 feet away from Jones and Alford when one of them “swung [his sweater] at the other gentleman” before they started punching each other and wrestling on the ground. Verbatim Report of Proceedings (VRP) (Apr. 14, 2008) at 67. Forbes also testified that he saw three other men “running down and they started kicking the gentleman on the ground and punching him, and they were very violent about it, too.” Id. at 69. Critically, Forbes further testified that Jones drew the knife to protect himself after the other three men joined the fight. Id. at 70.
¶13 Brown then testified for the State. But, notably, she said that Alford chased Jones. VRP (Apr. 14, 2008) at 23. She also testified that she never saw a weapon, that she didn’t hear a reference to a knife until Alford’s three friends joined the fight, and that “I wasn’t clear who had a knife.” Id. at 18-20.
¶14 The jury convicted Jones of the assault charge.
3. Motion for a New Trial
¶15 As discussed above, Jones’s attorney withdrew after trial over concerns that he had been ineffective. CP at 87, 131. Jones’s replacement counsel reviewed the discovery and found the 911 dispatch report that named not just Brown, whom trial counsel already realized he had overlooked, but also a second witness whom Jones’s original attorney failed to interview: Hamilton.
¶16 New counsel then interviewed Hamilton. CP at 218-36. According to the transcript of the defense interview filed with the trial court in support of the motion for a new trial, Hamilton said that he was at the bus stop when the fight occurred and that he was standing very close to Alford and Jones. He was certain that the younger man (Alford) tackled the older man (Jones) and started beating him before the young man’s friends joined in. Hamilton said, “I did not see the actual extraction of the knife. I did see it in his hand after he had been tackled and after [Alford] started hitting him.” CP at 223. Hamilton also stated, “[W]hat I saw was guy number two [Alford] tackled guy number one [Jones], then the knife coming out, subdued the knife [in the hand of guy number one]. . . . Guy number
¶17 Finally, Jones’s new lawyer filed a declaration stating that the original defense lawyer failed to interview Brown and Hamilton. CP at 131-35.
¶18 Jones argued that trial counsel’s failure to interview Brown and Hamilton and to call Hamilton to testify constituted ineffective assistance. The trial court concluded that the failure to interview Brown before trial was not prejudicial because Brown ultimately testified at trial. CP at 888. The trial court also concluded that the failure to interview Hamilton was not prejudicial because “Hamilton’s proposed testimony is not exculpatory because it contradicts the defense position at trial. At trial defendant testified he drew the knife in self-defense after he was assaulted by Alford and his two friends.” CP at 889. The trial court clearly erred on this point: Jones did not testify at trial.
4. Court of Appeals Decision
¶19 The Court of Appeals affirmed and used the same reasoning as the trial court. State v. Jones, noted at 157 Wn. App. 1052, 2010 WL 3490255, 2010 Wash. App. LEXIS 2017. It did not address whether the failure to interview these
¶20 Contradictorily, the Court of Appeals ruled that the failure to contact Brown was not prejudicial — she actually testified and her testimony did not affect the outcome because it “was similar to that of the other eyewitnesses.” 2010 WL 3490255, at *4, 2010 Wash. App. LEXIS 2017, at *10. Thus, in the appellate court’s view, new evidence will not affect the outcome if it is cumulative and will not affect the outcome if it is different.
5. Remand for a RAP 9.11 Hearing
¶21 Jones sought review in this court of the denial of his claim of ineffective assistance of counsel regarding the two witnesses, the affirmance of the trial court’s ruling that his prior Florida felonies are comparable to Washington assaults, and the rejection of his claim that the prior convictions should have been proved to the jury beyond a reasonable doubt rather than to the judge. We granted review on the first two issues. State v. Jones, 177 Wn.2d 1007, 300 P.3d 416 (2013).
¶22 On April 10, 2014, we ordered a Rules of Appellate Procedure (RAP) 9.11 hearing and directed the trial court “to take additional evidence and to make factual findings based on that evidence, to enable this court to determine whether defense counsel provided ineffective assistance ... including but not limited to: (1) whether defense counsel’s performance was deficient for failure to interview witnesses; (2) why defense counsel did not interview all the
¶23 At the remand hearing, Jones’s original defense counsel testified about his failure to interview the two witnesses already discussed previously — Brown and Hamilton — and his failure to call Hamilton as a witness. VRP (Aug. 21, 2014) at 6-66.
¶24 Defense counsel at the remand hearing then identified yet another witness listed in discovery whom trial counsel had failed to interview: Sulva Ooveda. An incident report provided to Jones during discovery listed Ooveda’s name. CP at 216. Notably, the prosecutor interviewed her at the beginning of trial and actually informed defense counsel that she might have favorable evidence. Remand CP at 33-34; VRP (Aug. 21, 2014) at 27-28. Despite this notification from the prosecutor, defense counsel still failed to contact Ooveda. During the remand hearing, Jones’s original defense attorney noted that he had asked his investigator to interview Ooveda before trial but that she had failed to do so and he had not followed up. VRP (Aug. 21, 2014) at 26-28. Defense attorney expert Richard Hansen testified that trial counsel’s performance was deficient and that it likely affected the outcome of the trial. Id. at 70-108.
¶25 The trial court also admitted other evidence, without objection, confirming that trial counsel failed to interview Ooveda, Brown, and Hamilton.
¶26 With regard to witnesses Brown and Ooveda, the trial court found, “The communication from [Deputy Prosecuting Attorney] Richey to [defense counsel] piques curiosity and raises the inference that [Ooveda’s] testimony
¶27 With regard to witness Hamilton, the trial court found that transcripts of Hamilton’s posttrial defense interview and his 911 call were “unclear” about when Jones wielded the knife and that “[b]oth transcripts show Hamilton mixed up the parties, having the Defendant chased by the younger man, rather than as the majority of witnesses testified.” Id. at 36. The trial court concluded that defense counsel’s failure to call Hamilton to testify “is not objectively unreasonable. This decision appears strategic in nature and hence not deficient performance.” Id. at 37.
ANALYSIS
Ineffective Assistance
I. Standard of Review
¶28 A claim that counsel was ineffective is a mixed question of law and fact that we review de novo. Strickland,
II. Deficient Performance
¶29 As discussed above, following the remand hearing, the trial court ruled that trial counsel’s failure to interview the witnesses identified in the police reports “demonstrated a deficient performance using the Strickland standard.” Remand CP at 39; see also id. at 34-35.
¶30 The facts certainly supported the trial judge’s conclusion on this point. A criminal defendant has a state and federal constitutional right to effective assistance of counsel. Strickland, 466 U.S. at 686; State v. Tinkham, 74 Wn. App. 102, 109, 871 P.2d 1127 (1994). To discharge this duty, trial counsel must investigate the case, and investigation includes witness interviews. State v. Ray, 116 Wn.2d 531, 548, 806 P.2d 1220 (1991) (“Failure to investigate or interview witnesses, or to properly inform the court of the substance of their testimony, is a recognized basis upon which a claim of ineffective assistance of counsel may rest.” (citing State v. Visitacion, 55 Wn. App. 166, 173-74, 776 P.2d 986 (1989))).
¶32 In this case, trial counsel offered absolutely no reason for failing to interview these three witnesses. Remand CP at 35. With regard to Hamilton in particular, the trial court ruled that the defense lawyer “does not recall” why he failed to interview Hamilton and “does not provide any reason either because it is clear from the incident report there was a 9-1-1 call from him.” Id. at 36. The trial court then concluded that the failure to interview all witnesses so identified was “deficient performance.” Id. at 39.
¶33 We agree. We can certainly defer to a trial lawyer’s decision against calling witnesses if that lawyer investigated the case and made an informed and reasonable decision against conducting a particular interview or calling a particular witness. See, e.g., State v. Hess, 12 Wn. App. 787, 788-90, 532 P.2d 1173 (1975) (decision not to subpoena potentially harmful witness was justified); State v. Floyd, 11 Wn. App. 1, 2, 521 P.2d 1187 (1974) (decision not to call alibi witness legitimate part of trial strategy). But courts will not defer to trial counsel’s uninformed or unreasonable failure to interview a witness. See Ray, 116 Wn.2d at 548. As the United States Supreme Court has explained, “[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91.
¶34 On the other hand, we disagree with the trial court’s conclusion on remand that the failure to call Hamilton to testify was “not objectively unreasonable.” Remand CP at
¶35 The trial court, however, relied on trial counsel’s posttrial remand hearing testimony that when he eventually read the transcript of Hamilton’s 911 call, after trial, it made him think that Hamilton probably would not have offered any helpful testimony. But trial counsel made this conclusion after trial, in hindsight. VRP (Aug. 21, 2014) at 42, 45, 48-49, 50-52. Strategic decisions are those made before, not after, taking the challenged action. Avila v. Galaza, 297 F.3d 911, 920 (9th Cir. 2002) (“ ‘[C]ounsel can hardly be said to have made a strategic choice when s/he has not yet obtained the facts on which a decision could be made.’ ” (alteration in original) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994))); see Strickland, 466 U.S. at 690-91 (“[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”). Trial counsel did not make an informed decision against interviewing Hamilton, and he therefore could not have made a strategic — i.e., an informed — decision against calling Hamilton as a witness.
III. Prejudice
¶36 We therefore come to the question of prejudice. We disagree with the trial court’s conclusion on this point. In our view, there is certainly a reasonable probability that the failure to interview or call witnesses affected the trial’s outcome.
¶37 We start with defense counsel’s failure to interview Hamilton. On the one hand, Hamilton would have testified
¶38 On the other hand, Hamilton’s testimony contradicted Jones’s chosen theory of self-defense by placing a knife in Jones’s hand during his fight with the younger man, and before rather than after the others joined the fight, which was the defense’s theory of the case. CP at 225-26, 888-89; Remand CP at 36. But defense counsel adopted and used that theory without knowing that Hamilton’s testimony existed. VRP (Aug. 21, 2014) at 62. If trial counsel had known before trial about Brown’s statement that she heard
¶39 One final consideration in the prejudice inquiry regarding Hamilton is whether calling him to testify might have resulted in any other adverse consequences to Jones. The State argues that if Hamilton had testified, then it could have introduced Jones’s pretrial statement that it now calls inculpatory.
¶40 Then there is witness Brown. Although the jury had an opportunity to consider Brown’s testimony, Jones’s trial
¶41 Finally, we consider witness Ooveda. The prosecutor specifically told trial counsel on the first day of trial, after interviewing Ooveda, that she may have exculpatory information. VRP (Aug. 21, 2014) at 27-28. Defense counsel still failed to find out what information she might have provided.
¶42 We cannot avoid the conclusion that there is a reasonable probability that the failure to interview and to call Hamilton affected the outcome of the trial. This case involves a credibility contest between the State’s witnesses and Jones’s witness. Although the State’s witnesses would still have outnumbered Jones’s witnesses, the jury would have had the opportunity to weigh the credibility of two witnesses — rather than just one — claiming that Alford chased after Jones against five witnesses who testified for the State that Jones was the aggressor. There is a reasonable probability that this would have affected the outcome. See Avila, 297 F.3d at 918-23 (counsel’s failure to interview eight additional eyewitnesses who would have testified in an attempted murder trial that the defendant was not the shooter was prejudicial even though counsel presented three eyewitnesses who corroborated the defendant’s testimony that he was not the shooter). Further, Hamilton’s testimony tends to bolster Forbes’s credibility and, concomitantly, diminish the credibility of the State’s witnesses who testified to the contrary. There is a reasonable probability that this would have affected the outcome. See Nealy v. Cabana, 764 F.2d 1173, 1179 (5th Cir. 1985). And although Hamilton’s account about the time that the knife appeared seems to conflict with Forbes’s and Brown’s accounts, Hamilton’s testimony would have corroborated Forbes’s testimony that Jones acted in self-defense. There is a reasonable probability that this would have affected the
¶43 Thus, counsel’s unexplained failure to interview clearly identified and accessible witnesses undermines our confidence in the jury verdict rejecting Jones’s self-defense claim. We therefore reverse the appellate court’s decision that Jones failed to prove ineffective assistance of counsel.
IV. The Availability of a Diminished Capacity Defense in Washington, but Not in Florida, Does Not Affect Our Comparability Analysis
¶44 To determine whether a prior out-of-state conviction counts as a strike under Washington’s POAA, the court must determine if there is a Washington offense to which the out-of-state conviction is “comparable.” RCW 9.94A.525(3); State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). The State bears the burden of establishing the comparability of the out-of-state convictions. Ford, 137 Wn.2d at 479-80. The court compares the elements of the foreign crime with the elements of the purportedly comparable Washington crimes. Id.
¶45 If the elements differ, the sentencing court can, in some cases, look at portions of the record of the prior proceeding to see if the conduct of which the defendant was convicted was identical to what is required for a comparable Washington conviction; but the portion of the foreign record that the Washington court can consider is very limited. Id. The sentencing court can look at the charging instrument from the foreign proceeding, but it cannot consider “facts and allegations contained in [the] record of prior proceedings, if not directly related to the elements.” Id. at 480 (citing State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167
Any attempt to examine the underlying facts of a foreign conviction, facts that were neither admitted or stipulated to, nor proved to the finder of fact beyond a reasonable doubt in the foreign conviction, proves problematic. Where the statutory elements of a foreign conviction are broader than those under a similar Washington statute, the foreign conviction cannot truly be said to be comparable.[6 ]
The defenses, however, differ. Assault is a specific intent crime. Diminished capacity is a defense to a specific intent crime in Washington. Id. at 255-56. Diminished capacity is not a defense in Florida. See, e.g., Evans v. State, 946 So. 2d 1, 11 (Fla. 2006); Chestnut v. State, 538 So. 2d 820, 820 (Fla. 1989).
¶46 In Sublett, however, this court held that the availability of the defense of diminished capacity in Washington, but not in the foreign jurisdiction, does not prevent two crimes from being “comparable.” 176 Wn.2d at 88-89. Sublett did not discuss the role of other defenses in making this determination — but as to the defense of diminished capacity, the one at issue here, it stands as controlling precedent.
¶47 Defense trial counsel’s failure to investigate and to interview easily identified, available eyewitnesses, without a legitimate tactical reason, constitutes deficient performance and caused prejudice in this case. With regard to sentencing, Sublett controls. It held that if the elements of a Washington crime and a foreign prior conviction are the same, then the crimes are comparable, even if the defense of diminished capacity is unavailable in the foreign jurisdiction. Jones’s prior Florida assault convictions are comparable to second degree assault convictions in Washington. We therefore reverse Jones’s conviction and remand for a new trial.
This detective’s interview notes were never transmitted to the defense (or the prosecutor). Verbatim Report of Proceedings (VRP) (Apr. 9, 2008) at 58-63.
The defense’s theory was that Jones held the knife only after Alford’s friends joined the fight. VRP (Aug. 21, 2014) at 48, 72. The State’s witnesses were inconsistent about when they saw the knife in Jones’s hand. Id. at 47-48, 62.
The State attached to its prehearing memorandum a transcript of Hamilton’s 911 call, in which Hamilton stated, “The knife is in the hand of the man being held down.” Remand CP at 14.
Additionally, on a separate issue, the trial court found that defense counsel, “in private discussions with his client he told Jones that a conviction on the pending charges would be [a] ‘third strike,’ but also later in open court he had agreed with the State that it would not be treated as such.” Remand CP at 39. The court found nothing in the record showing that these different statements confused Jones about the fact that it was a three-strikes case. Id.
Jones’s statement says, “They sold me some bullshit dope and I went fighting for my money. They jumped me when I was fighting with the young one. I bought $10.00 rock of bullshit. I was trying to stab him because three of these guys jumped me. I was defending myself.” State’s Ex. 8.
In this case, the elements of the prior Florida assault convictions are practically identical to the elements of second degree assault in Washington. Under Fla. Stat. § 784.021(l)(b), “aggravated assault” was defined as “an assault [w]ith an intent to commit a felony.” Under Fla. Stat. § 784.045(l)(a)(2), “[a] person commits aggravated battery who, in committing battery [u]ses a deadly weapon.” In Washington, under RCW 9A.36.021(1), “[a] person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:... (c) Assaults another with a deadly weapon; or ... (e) With intent to commit a felony, assaults another.”
Concurring in Part
¶48 (concurring/dissenting) — The benchmark for judging an ineffective assistance of counsel claim is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail, the defendant must show that (1) counsel’s representation was deficient and (2) the defendant was prejudiced by counsel’s deficient performance. State v. Humphries, 181 Wn.2d 708, 720, 336 P.3d 1121 (2014). Because Leroy Jones cannot show prejudice from his trial counsel’s failure to call certain witnesses, I would affirm the lower court and uphold Jones’s conviction.
¶49 A reviewing court need not address whether counsel’s performance was deficient if it can first say the defendant was not prejudiced. In re Pers. Restraint of Rice,
¶50 The majority reverses Jones’s conviction based on its view of a reasonable probability that the defense strategy would have changed had counsel interviewed three witnesses before trial — Michael Hamilton, Lori Brown, and Sulva Ooveda.
¶51 To understand why counsel’s failure to call additional witnesses does not justify a new trial here, it is important to review some key facts. Jones was convicted of second degree assault with a deadly weapon based on a fight he had with Taurian Alford and three other men in downtown Seattle on September 10, 2007. State v. Jones, noted at 157 Wn. App. 1052, 2010 WL 3490255, at *1, 2010
They sold me some bullshit dope and I went fighting for my money. They jumped me when I was fighting with the young one. I bought $10.00 rock of bullshit. I was trying to stab him because three of these guys jumped me. I was defending myself.
State’s Ex. 8.
¶52 Based on the “I went fighting” statement and other conversations with Jones, defense counsel built his case on self-defense. Verbatim Report of Proceedings (VRP) (Aug. 21, 2014) at 56-57. Defense counsel stated that the critical issue for Jones’s defense was when the knife was produced, id. at 57; he argued that Jones did not pull out the knife until Alford’s friends joined in the fight and he had to defend himself against four men, VRP (Apr. 14, 2008) at 108. The State presented five witnesses who all testified that Jones was the aggressor but placed the knife in Jones’s hand at different times — some while Jones was chasing Alford, some after they began fighting. Jones, 2010 WL 3490255, at *1, 2010 Wash. App. LEXIS 2017, at *2. Defense counsel stated at the reference hearing that he interviewed “around eight eyewitnesses,” but could find only one who placed the knife in Jones’s hand after Alford’s friends joined the fight — Mark Forbes. VRP (Aug. 21, 2014) at 11. Forbes agreed that Jones was the initial aggressor but critically placed the knife in Jones’s hand after Alford’s three friends jumped in, “to protect himself.” VRP (Apr. 14, 2008) at 69-70. By the beginning of trial on April 3, 2008, defense counsel had also been alerted to another witness whose contact information had been in the 911 record and whose testimony may have been exculpatory — Ooveda. VRP (Apr. 3, 2008) at 5. Defense counsel attempted to contact her pretrial many times, but she never responded. VRP (Apr. 3, 2008) at 5; see also VRP (Aug. 21, 2014) at 26, 59. State witness Brown, who was not interviewed until midtrial and
¶53 New defense counsel moved for a new trial based on ineffective assistance of counsel for failure to contact Brown and another witness, Hamilton, whose name and phone number were in the discovery file based on Hamilton’s 911 call. New defense counsel interviewed Hamilton, who stated that Jones had the knife in his hand before the three other men jumped into the fight. He further indicated he thought Jones was trying to defend himself after all the men began beating him. Also, contrary to some other witness testimony, Hamilton was emphatic that it was Alford who was the aggressor.
¶54 The trial court denied the defense motion for a new trial, concluding, inter alia, that the failure to call Hamilton and Brown did not constitute ineffective assistance of counsel. Clerk’s Papers (CP) at 890 (Conclusion of Law (A)(2)). The court held that Hamilton’s testimony would not have been exculpatory, and Brown in fact testified at trial, so failing to call these witnesses was not prejudicial. Id. On appeal, the Court of Appeals for Division One agreed that the failure to contact Hamilton and Brown did not constitute ineffective assistance of counsel. Jones, 2010 WL 3490255, at *3-4, 2010 Wash. App. LEXIS 2017, at *10. The court found that Brown’s testimony was “similar to that of the other eyewitnesses, and was not exculpatory.” 2010 WL 3490255, at *4, 2010 Wash. App. LEXIS 2017, at *10. Regarding Hamilton’s interview, the court noted that his testimony “would not likely have changed the outcome of the trial because it contradicted four other eyewitnesses.”
¶55 After granting review, this court ordered a RAP 9.11 evidentiary hearing on the ineffective assistance claim. See Remand CP at 33-40 (findings of fact). The trial judge conducted the hearing, at which the original defense counsel testified about Hamilton and Brown, as well as the witness defense counsel was unable to contact before trial— Ooveda. The court concluded that the failure to call Brown and Ooveda was deficient but did not prejudice Jones. Id. at 39. Specifically, the court found that whether there is a reasonable possibility the result of the trial would have been different hinged on whether Ooveda’s hypothetical testimony would have bolstered Forbes’s testimony and created a reasonable doubt as to Jones’s guilt. Id. at 35. The court was “not persuaded of this probability given the testimony of the other State’s witnesses who testified that the Defendant Jones first introduced the knife.” Id. (emphasis omitted). As to Hamilton, the court concluded that Hamilton was confused about when Jones wielded the knife and therefore would not have helped counsel’s self-defense theory. The court also noted that “Hamilton mixed up the parties, having the Defendant chased by the younger man, rather than as the majority of witnesses testified.” Id. at 36 (Finding of Fact (B)(2)). Thus, the failure to call him was not unreasonable. Id. at 37 (Finding of Fact (B)(4)).
¶56 The majority concludes that defense counsel’s failure to call all three witnesses resulted in representation that “failed to provide the meaningful adversarial role that the Sixth Amendment to the United States Constitution guarantees.” Majority at 331. I disagree. The majority’s analysis relies too much on conjecture. In State v. Crawford, this court held that in order for a “defendant to affirma
¶57 The majority conflates the level of evidence needed to reach a “reasonable probability” that the outcome would change with how drastic the potential change to that outcome must be. While it is true that the Strickland prejudice standard is lower than a more-probable-than-not standard, 466 U.S. at 693; majority at 339, the difference is “slight” and matters only in the “ ‘rarest case.’ ” Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (quoting Strickland, 466 U.S. at 697). The likelihood of a different result must be substantial, not just conceivable. Strickland, 466 U.S. at 693. Even if a defendant shows that particular errors of counsel were unreasonable, he must show those errors “actually had an adverse effect on the defense.” Id. (emphasis added). In other words, merely pointing to unreasonable errors that might have affected the defense is not enough; the defendant must affirma
¶58 In finding sufficient prejudice to reverse the appellate court’s decision, the majority suggests five different ways in which trial counsel’s failure to interview or call these witnesses was prejudicial. First, counsel would not have been “boxed into” his theory of self-defense had he interviewed Brown and Hamilton because together, their accounts may have changed his trial strategy to say that Jones was the initial aggressor. Majority at 343. Second, the jury would have been able to weigh two witnesses, rather than one, claiming Jones was the initial aggressor, against five for the State. Id. at 344-45. Third, Hamilton’s “testimony tends to bolster Forbes’s credibility and, concomitantly, diminish the credibility of the State’s witnesses who testified to the contrary.” Id. at 344. Fourth, despite Hamilton’s account about the knife conflicting with both Forbes’s and Brown’s account, Hamilton’s testimony still would have corroborated Forbes’s view that Jones acted in self-defense. Id. And fifth, Ooveda’s unknown testimony may have been exculpatory. Id.
¶59 This list of possibilities requires too much conjecture to make the needed showing of prejudice. Certainly, aspects of Hamilton’s testimony could have favored the defense. In his taped interview, Hamilton said it was Alford who chased and tackled Jones, rather than Jones chasing Alford. Def.’s Ex. 7, at 8. He even went so far as to say that he was worried the police would get the “wrong idea” because “ [i] t was going to look like two guys[
¶60 Indeed, defense counsel stated at the RAP 9.11 hearing that had he interviewed Hamilton or Brown before trial and received the same information, he would not have acted differently because he did not think Jones had much of a choice of defense. VRP (Aug. 21, 2014) at 51, 57-58.
¶61 The majority is “skeptical” that had Hamilton’s testimony been available, the State would have changed its trial strategy of moving successfully to exclude the “I went fighting” statement.
¶62 While the majority emphasizes the benefit to Jones of having two defense witnesses (Forbes and Hamilton), rather than one supporting a self-defense theory, this must be measured in light of the strength of the State’s case. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 253, 172 P.3d 335 (2007) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 722, 101 P.3d 1 (2004)). The State presented five witnesses who stated that Jones was the aggressor. Hamilton believed it was Alford who pursued Jones. While the State’s witnesses differed about the timing of the knife’s appearance, all agreed that it was in Jones’s hand before Alford’s three friends arrived. Hamilton concurred. The State’s case was strong without considering Hamilton’s testimony. While it might have been weakened slightly by Hamilton’s testimony that Jones acted in self-defense, this is not enough to demonstrate prejudice under the Strickland standard.
¶63 The majority also opines that Hamilton’s testimony might have bolstered defense witness Forbes’s credibility and concomitantly called into question the credibility of the State’s witnesses. Forbes testified that Jones seemed to be acting in self-defense and stated that Jones pulled out the knife after Alford’s friends joined in the fight. While Hamilton’s testimony would have bolstered Forbes’s self-defense testimony, Hamilton clearly stated that Jones pulled out the knife before Alford’s friends joined in. Def’s Ex. 7, at 8.
¶64 Even if Hamilton’s statements would have bolstered Forbes’s testimony, his testimony would not have provided any new information that the jury had not already considered. Generally, a claim of failure to interview a witness cannot establish ineffective assistance when the person’s account is otherwise fairly known to defense counsel. Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001). Jones has not identified any information provided by Hamilton that had not already been obtained from other witnesses. Brown testified that it was Jones who was chased by Alford. VRP (Apr. 14, 2008) at 23. Several of the State’s witnesses testified that Jones pulled the knife before Alford’s friends arrived. Jones, 2010 WL 3490255, at *1, 2010 Wash. App. LEXIS 2017, at *1. And Forbes testified that Jones acted in self-defense. VRP (Apr. 14, 2008) at 69-70. Although Hamilton’s account may have provided a different voice — perhaps a highly credible one — he would have spoken to facts that were already before the jury for its consideration.
¶65 Finally, the majority believes that because “[t]he prosecutor specifically told trial counsel on the first day of trial,[
¶66 I would hold that Jones has not demonstrated sufficient prejudice under the standard established in Strickland and Crawford to justify a new trial based on ineffective assistance of counsel. Therefore, I respectfully dissent.
I have no quarrel with the majority’s resolution of the comparability sentencing issue and join its opinion on that point.
It does not appear that Jones’s argument of ineffective assistance of counsel is as broad as the majority’s holding. Jones initially claimed error for trial counsel’s failure to interview Brown and Hamilton. See Am. Pet. for Review at 1-11. In his supplemental brief following the reference hearing, he limits his claim to the failure to interview and call Hamilton. Second Suppl. Br. of Pet’r at 8-18. He has never asserted prejudice from the failure to interview Ooveda.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Brown’s name was in the police reports, but the investigating detective disclosed at trial that his interview notes were never transmitted to the defense or the prosecutor. VRP (Apr. 9, 2008) at 58-63.
It is undisputed that three people actually joined in. Jones, 2010 WL 3490255, at *1, 2010 Wash. App. LEXIS 2017, at *1.
When defense counsel was made aware of Brown’s statement to police, he believed the statement could be exculpatory. VRP (Apr. 10, 2008) at 6. He thought it could be important because it was “consistent with [his] basic theory of defense, which is that the knife allegedly wielded by Mr. Jones was not in evidence until he was under attack ... by ... all of the young men.” Id. After he interviewed and cross-examined Brown during trial, he said her testimony would not have changed his trial strategy and that it was “[n]ot as significant as [he] would have liked.” VRP (Aug. 21, 2014) at 59-60.
Before trial, defense counsel characterized this statement as favorable to the defense. Majority at 343. The prosecutor objected to its introduction, apparently
The record suggests it was actually about a week before trial. VRP (Apr. 3, 2008) at 5.
Reference
- Full Case Name
- The State of Washington v. Leroy A. Jones
- Cited By
- 108 cases
- Status
- Published