State v. Jones ( 2015 )

F ll.E.
IN CLERKS O,tCI"'
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 85236-7
Respondent, ENBANC
v.
Filed JUN 1 1 2015
LEROY A. JONES,
Petitioner.
GORDON MCCLOUD, J.-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.
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.
1
State v. Jones (Leroy A.), No. 85236-7
Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). He has done so. It
is clear that defense trial counsel's failure to interview three previously
identified and easily accessible eyewitnesses before trial constituted deficient
performance. This deficiency also caused prejudice: it deprived Jones of the
opportunity to develop a theory of the case that Jones was the victim rather than
the aggressor, and it deprived him of neutral bystander eyewitness testimony in
support of that theory. When considering the case as a whole, defense counsel
failed to provide the meaningful adversarial role that the Sixth Amendment to
the United States Constitution guarantees. Following Strickland, we must
reverse.
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
2
State v. Jones (Leroy A.), No. 85236-7
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
Leroy 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.
Right after the jury returned that verdict, however, appointed defense
counsel withdrew due to concerns about his own ineffectiveness. He realized
that he had failed to interview witness Lori Brown, who was clearly identified
in police reports. Brown was not called to his attention until a detective
testified at trial about his interview with Brown. 1 Shortly after withdrawal,
new defense counsel discovered a second witness, Michael Hamilton, who
was also clearly identified in pretrial discovery and whom defense trial
1
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.
3
State v. Jones (Leroy A.), No. 85236-7
counsel also failed to interview. It appears that the new lawyer found
Hamilton while simply reviewing discovery that was already in defense trial
counsel's possession.
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.
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
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
standing. Three of Alford's friends eventually joined the fight; all of them.
were much younger than Jones. Jones held a knife sometime during the
4
State v. Jones (Leroy A.), No. 85236-7
fight-the exact time is in dispute. 2 The younger men held Jones down and
punched him while restraining Jones's hand holding the knife. Several people
called 911, and when police arrived the younger men were restraining Jones,
who still held the knife. The King County prosecutor charged Jones with
second degree assault with a deadly weapon.
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.
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.
2
The defense 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.
5
State v. Jones (Leroy A.), No. 85236-7
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." !d. at 69.
Critically, Forbes further testified that Jones drew the knife to protect himself
after the other three men joined the fight. !d. at 70.
There was another witness listed in discovery: Lori Brown. CP at 215.
Defense counsel did not notice that, though, until a detective mentioned her
name during testimony in the middle of trial. Defense counsel moved for a
mistrial on the ground that the prosecutor did not provide the detective's
interview report; instead, the trial court gave him a three day recess.
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." !d. at 18-
20.
6
State v. Jones (Leroy A.), No. 85236-7
The jury convicted Jones of the assault charge.
3. Motion for a New Trial
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 who Jones's original attorney failed to interview: Hamilton.
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 three came up, clocked him, a beating
ensued, and I called 911 and went away on the bus." CP at 226. Hamilton
7
State v. Jones (Leroy A.), No. 85236-7
believed that the police were bound to get the wrong idea when they arrived
and would think that the young men were restraining an armed attacker. CP
at 225. Hamilton believed that the older man (Jones) was acting in self-
defense. Hamilton also said that he was with another man who would have
testified to the same thing, but because no one contacted him sooner, he could
no longer remember the other man's name. According to police reports filed
in support of the new trial motion, Hamilton's name and phone number were
recorded on a 911 dispatch report provided to the prosecutor and to the
defense through discovery, but neither party contacted Hamilton before the
trial.
Finally, Jones's new lawyer filed a declaration stating that the original
defense lawyer failed to interview Brown and Hamilton. CP at 131-35.
Jones argued that trial counsel's failure to interview Brown and Hamilton
and his failure 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
8
State v. Jones (Leroy A.), No. 85236-7
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
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. It did
not address whether the failure to interview these identified witnesses
constituted deficient performance. 2010 WL 3490255, at *3. Instead, the Court
of Appeals found that the failure to contact Hamilton did not cause prejudice,
noting that his testimony "would not likely have changed the outcome of the
trial because it contradicted four other eyewitnesses." !d. at *3-4. Notably,
neither the trial court nor the Court of Appeals made an adverse credibility
finding about Hamilton.
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."
!d. at *4. 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.
9
State v. Jones (Leroy A.), No. 85236-7
5. Remand for a RAP 9.11 Hearing
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).
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 witnesses listed in the discovery; and (3) why defense counsel did not call
one of the witnesses listed in the discovery, Michael Hamilton, to testify."
At the remand hearing, Jones's original defense counsel testified about
his failure to interview the two witnesses already discussed previously-
10
State v. Jones (Leroy A.), No. 85236-7
Brown and Hamilton-and his failure to call Hamilton as a witness. VRP
(Aug. 21, 2014) at 6-66.
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 asked his investigator to interview Ooveda before trial, but that
she failed to do so and he did not follow 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.
The trial court also admitted other evidence, without objection,
confirming that trial counsel failed to interview Ooveda, Brown, and
11
State v. Jones (Leroy A.), No. 85236-7
Hamilton. 3 Def. 'sEx. 2, at 5-7; Defs Ex. 4, at 2; Remand CP at 34-37; VRP
(Aug, 21, 2014) at 26-28, 33-36, 53, 111.
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
may have been helpful, and that an interview, albeit at the start of trial[,]
would occur." Remand CP at 34. And the trial court found that defense
counsel "testified that he was at a disadvantage not having [Brown's] witness
statement prior to trial," even though the incident report listed her name. ld.
Defense counsel offered no reasons for failing to interview these witnesses.
The trial court accordingly concluded that "[t]his failure to interview Brown
and 0[ o]veda, witnesses listed on the incident report, clearly is not objectively
reasonable" and that counsel's performance was therefore deficient. Id. at 35.
The trial court concluded, however, that this did not cause prejudice, "given
the testimony of the other State's witnesses who testified that the Defendant
Jones first introduced the knife." Id.
3
The State attached to its prehearing memorandum a transcript of
Hamilton's 911 call, in which Hamilton stated, "The lmife is in the hand of the
man being held down." Remand CP at 14.
12
State v. Jones (Leroy A.), No. 85236-7
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." !d. 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." !d. at 37. 4
ANALYSIS
INEFFECTIVE ASSISTANCE
I. Standard of Review
A claim that counsel was ineffective is a mixed question oflaw and fact
that we review de novo. Strickland, 466 U.S. at 698; In re Pers. Restraint of
Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). "A defendant is denied
effective assistance of counsel if the complained-of attorney conduct (1) falls
4
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. !d.
13
State v. Jones (Leroy A.), No. 85236-7
below a minimum objective standard of reasonable attorney conduct, and (2)
there is a probability that the outcome would be different but for the attorney's
conduct." State v. Benn, 120 Wn.2d 631,663, 845 P.2d 289 (1993) (emphasis
omitted) (citing Strickland, 466 U.S. at 687-88). Thus, to prevail on a claim of
ineffective assistance of trial counsel, an appellant must show both deficient
performance and prejudice. Strickland, 466 U.S. at 687; Hendrickson, 129
Wn.2d at 77-78. To show prejudice, the appellant need not prove that the
outcome would have been different but must show only a "reasonable
probability"-by less than a more likely than not standard-that, but for
counsel's unprofessional errors, the result of the proceedings would have been
different. Strickland, 466 U.S. at 694; Hendrickson, 129 Wn.2d at 78.
II. Deficient Performance
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.
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.
14State v. Jones (Leroy A.), No. 85236-7
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))).
Thus, failure to interview a particular witness can certainly constitute
deficient performance. Id. ("Failure to investigate or interview witnesses ...
is a recognized basis upon which a claim of ineffective assistance of counsel
may rest."); Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997) (failure to
investigate witnesses called to attention of trial counsel as important
constitutes ineffectiveness). It depends on the reason for the trial lawyer's
failure to interview.
In this case, trial counsel offered absolutely no reason for failing to
interview these three witnesses. Remand CP at 3 5. 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."
15
State v. Jones (Leroy A.), No. 85236-7
!d. at 36. The trial court then concluded that the failure to interview all
witnesses so identified was "deficient performance." !d. at 39.
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, "[S]trategic 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.
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 37. Specifically, we disagree with the trial
court's conclusion that the failure to call Hamilton to testify, after failing to
16
State v. Jones (Leroy A.), No. 85236-7
interview him, was "strategic in nature." ld. This is because defense trial
counsel testified that when he prepared for trial and failed to interview Hamilton,
he "did not have any idea what Mr. Hamilton would have said about this case."
VRP (Aug. 21, 2014) at 41. That is not strategic decision-making.
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 ("[S]trategic 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
17
State v. Jones (Leroy A.), No. 85236-7
have made a strategic-i.e., an informed-decision against calling Hamilton
as a witness.
III. Prejudice
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.
We start with defense counsel's failure to interview Hamilton. On the
one hand, Hamilton would have testified that the young man-Alford-chased
and tackled Jones, not the other way around. This testimony would have
corroborated Brown's testimony to the same effect. VRP (Apr. 14, 2008) at
23. This is important. See Howardv. Clark, 608 F.3d 563, 573 (9th Cir. 2010)
("Although Hernandez positively identified Howard as the shooter, ifRagland
had testified otherwise, thereby buttressing Fontaine's trial testimony, some
jurors might well have had a reasonable doubt as to Howard's guilt."). And
Hamilton would have provided the very defense-favorable testimony that Jones
was the victim and that Hamilton called 911 to report what he saw because he
knew that another bystander might think that because Jones had the knife, he
was the aggressor. CP at 225, 233; Remand CP at 36. Further, although the
18
State v. Jones (Leroy A.), No. 85236-7
trial court thought that Hamilton was confused because his recollection differed
from the testimony of other witnesses, there was no finding that Hamilton was
lying or unbelievable. The difference is critical. State v. West, 139 Wn.2d 37,
43-44, 983 P.2d 617 (1999); see Howard, 608 F.3d at 573 ("Whatever the
challenges to Ragland's credibility, his testimony might well have tipped the
balance in Howard's favor. At the very minimum, if Ragland was ready and
willing to testify as to Howard's innocence, and Howard was deprived of such
testimony because of his attorney's shoddy investigation, our confidence in
the jury's verdict would be significantly undermined."). In fact, unlike many
of the State's witnesses, Hamilton was a neutral observer with no relationship
to Jones or Alford.
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 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 he had known
before trial about Brown's statement that she heard a reference to a knife and
saw jabbing motions after Alford's friends joined the fight, and had had the
19
State v. Jones (Leroy A.), No. 85236-7
chance to consider it along with Hamilton's testimony that the knife appeared
before the friends joined the fight, trial counsel might not have been boxed into
that theory. See Johnson v. Baldwin, 114 F.3d 835, 839-40 (9th Cir. 1997)
(deficient performance caused prejudice when trial counsel failed to interview
petitioner's girlfriend or grandmother because counsel would have learned
that petitioner's alibi was false and pursued a different trial strategy); see also
Rios v. Rocha, 299 F.3d 796, 808, 812 (9th Cir. 2002) (defense counsel's
"failure, in a first-degree murder trial, to interview more than one witness,
when there were dozens of potential eyewitnesses available, before deciding
to abandon a potentially meritorious defense constituted constitutionally
deficient performance"; defense counsel's decision to present
"unconsciousness" defense as opposed to a misidentification defense was
prejudicial because counsel failed to interview and call five eyewitnesses to
testify who would have each stated that Rios was not the shooter).
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
20
State v. Jones (Leroy A.), No. 85236-7
inculpatory. 5 But before trial, the defense characterized this statement as
favorable to the defense and the State moved-successfully-to exclude it.
Given the State's pretrial efforts to exclude this statement, we are skeptical
about its new, postremand position that the statement was more helpful than
hurtful to the State.
Then there is witness Brown. Although the jury had an opportunity to
consider Brown's testimony, Jones's trial counsel explained that if he had
known about her testimony before trial, he would have made it the centerpiece
of his case and the focal point of cross-examination of other witnesses. VRP
(Apr. 10, 2008) at 15.
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 infonnation she might have provided.
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
5
Jones's statement says, "They sold me some bull shit dope and I went
fighting for my money. They jumped me when I was fighting with the young
one. I bought $10.00 rock ofbullshit. I was trying to stab him because three
of these guys jumped me. I was defending myself." State's Ex. 8.
21
State v. Jones (Leroy A.), No. 85236-7
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 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 outcome. See Howard, 608 F.3d at 573 (even though State's
22
State v. Jones (Leroy A.), No. 85236-7
witness identified petitioner as the shooter, testimony from surviving victim that
he could not identify petitioner as the shooter would have buttressed another
witness's trial testimony, possibly creating reasonable doubt about
petitioner's guilt). The failure to interview Brown and Ooveda compounds
the prejudice.
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
To determine whether a prior out-of-state conviction counts as a strike
under Washington's POAA, the court must determine ifthere 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. !d.
23
State v. Jones (Leroy A.), No. 85236-7
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. !d. 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 (1998)). This limitation is compelled by not
just statutory interpretation but also constitutional concerns. See Shepard v.
United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). As
this court explained in In re Personal Restraint of Lavery, 154 Wn.2d 249,
258, 111 P.3d 837 (2005):
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
simqar Washington statute, the foreign conviction cannot truly
be said to be comparable. [6]
6
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. Ann. 784.021(1)(b), aggravated assault was defined as "an
assault with intent to commit a felony." Under Fla. Stat. Ann.
24
State v. Jones (Leroy A.), No. 85236-7
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).
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 (plurality
opinion). 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.
CONCLUSION
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
784.045(1)(a)(2), "a person commits aggravated battery who, in committing
battery uses 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."
25
State v. Jones (Leroy A.), No. 85236-7
cnme and a foreign pnor conviction are the same, then the cnmes 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.
26
State v. Jones (Leroy A.), No. 85236-7
WE CONCUR:
27
State v. Jones (Leroy A.)
No. 85236-7
STEPHENS, J. (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. Statev. 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. 1
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
1
I have no quarrel with the majority's resolution of the comparability sentencing
issue and join its opinion on that point.
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992) (citing Strickland, 466 U.S. at
697). Thus, I will assume without deciding that Jones's counsel's choice not to call
certain witnesses demonstrated defective performance and focus this discussion on
why I believe the majority misapplies Strickland's prejudice standard.
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. 2 I
am concerned that the majority's test for determining prejudice expands the use of
ineffective assistance claims to overturn convictions in Washington State. It is not
enough to show that trial errors had some conceivable effect on the outcome of the
proceeding, as not every error that could have influenced the outcome undermines
the reliability of the result of the proceeding. Strickland, 466 U.S. at 693. Nearly
every deficient act or omission would meet this low standard. Id. But, a material
error that impairs the presentation of the defense does not justify a new trial unless
it is sufficiently serious to call into question the validity of the proceeding. !d.
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
2
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.
-2-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
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. When he was
arrested, Jones waived his Miranda 3 rights and stated to police:
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 ofbullshit. I was
trying to stab him because three of these guys jumped me. I was defending myself.
State's Ex. 8.
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. 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
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
-3-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
beginning of trial on April3, 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 testified that she never saw the knife, stated
she thought it was Alford who chased Jones. VRP (Apr. 3, 2008) at 18-23.
Recognizing he had failed to interview Brown before trial, defense counsel withdrew
immediately after the guilty verdict due to concerns about the effectiveness of his
representation.4
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.
4
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.
-4-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
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. The court found that Brown's testimony was "similar
to that of the other eyewitnesses, and was not exculpatory." !d. at *4. 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. "
Id. at *3-4. Further, the court found that Hamilton's testimony-that he saw Jones
display a knife when the fight started and before the other men joined the fight-
was actually detrimental to the defense. !d. at *4.
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. !d. at 39. Specifically, the
court found that whether there is a reasonable possibility the result of the trial would
-5-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
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." !d. (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)).
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 Constitution guarantees." Majority at 2. 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 affirmatively prove prejudice," the defendant
must demonstrate a reasonable probability that "but for" counsel's error the outcome
at trial would be different. 159 Wn.2d 86, 102, 147 P.3d 1288 (2006) (emphasis
omitted). The majority today seems to advance the view of the dissent in Crawford
that "[b]ut for his counsel's ineffective representation, a series of events did not
occur, each of which might have changed the outcome." Id. at 107 (C. Johnson, J.,
dissenting). But, the majority in Crawford took special care to refute this expansion
-6-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
of the Strickland standard; "[t]he dissent concludes a series of events occurred that,
but for the ineffective representation by Crawford's counsel, might have changed the
outcome of Crawford's case. However, we reiterate that the test requires more than
the existence of events that might have changed the outcome." Id. at 102 (some
emphasis added) (citation omitted). Following the majority rule in Crawford, the
question here is whether the events of this case show that but for trial counsel's
failure to interview or call these witnesses, there is a reasonable probability not that
the defense strategy would have changed, but that Jones would not have been
convicted.
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 14, the
difference is "slight" and only matters 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." !d. (emphasis added). In other words, merely
pointing to unreasonable errors that might have affected the defense is not enough;
the defendant must affirmatively show that counsel's errors had an adverse effect on
-7-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
the defense's case that would create a reasonable doubt as to the defendant's guilt.
Id. at 695.
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 19. 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 21. 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 22. 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. at
22. And fifth, Ooveda's unknown testimony may have been exculpatory. Id. at 22.
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"
-8-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
because "[i]t was going to look like two guys[SJ subdued a man with a knife. Those
are not the circumstances. That is not what I witnessed. I witnessed more of a
selfdefense." Id. But, the majority reads too much into Hamilton's account in
concluding that if he had known about Hamilton's testimony, defense counsel might
not have been "boxed into" his theory of self-defense. Majority at 19-20. It was not
the lack of Hamilton's testimony that boxed defense counsel into a self-defense
theory, it was his client's "I went fighting" statement, which directly contradicts
Hamilton's account. State's Ex. 8.
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. 6 In explaining why, defense counsel
noted that based on the defendant's own statements, the critical issue at trial was
"[w]hen Mr. Jones had the knife." Id. at 57. Hamilton's testimony put the knife in
Jones's hand when the fight started, not after the other men jumped in the fray.
Def.'s Ex. 7, at 6. Defense counsel felt that because Hamilton clearly placed the
knife in Jones's hand from the outset, his testimony would have been detrimental to
5
It is undisputed that three people actually joined in. Jones, 2010 WL 3490255,
at *1.
6When 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." !d. 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.
-9-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
the defense. VRP (Aug. 21, 2014) at 51, 58. This strongly suggests that reasonable
counsel may not have felt free, considering all the evidence, to explore the majority's
suggested potential defenses based on these witness's testimony, when the State
could respond with Jones's own statement, "I went fighting." State's Ex. 8.
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. 7 Majority at 20-21. The State however, still could have
offered the statement at trial and likely would have if the defense had attempted to
assert that Jones was not the aggressor but was instead running from Alford. ER
80l(d)(2). Defense counsel admitted that he knew the statement would have been
admissible before the trial began. VRP (Aug. 21, 2014) at 56.
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
ofElmore, 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
7
Before trial, defense counsel characterized this statement as favorable to the
defense. Majority at 20. The prosecutor objected to its introduction, apparently because it
showed the victim was associated with drug dealing. However, at the pretrial hearing,
State's counsel clarified that "what we're seeking to exclude is not necessarily [the fact
that there was drug dealing], but eliciting that fact from witnesses who don't have personal
knowledge of it but may have heard it from somebody else .... So if the defendant wants
to state that, I'm not trying to exclude that. What I'm trying to exclude is an inquiry by the
defense for the purpose of implying to the jury that this happened when there's not a good-
faith basis to believe that a witness had any personal knowledge of that." Def.'s Ex. 2, at
14-15.
-10-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
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.
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. Thus, the benefit of having a second witness
support a self-defense theory must be balanced against presenting contradictory
evidence as to when Jones held the knife, which was the key question in this case
based on Jones's own statement, "I went fighting for my money." State's Ex. 8.
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
-11-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
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. 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.
Finally, the majority believes that because "[t]he prosecutor specifically told
trial counsel on the first day of trial, [SJ after interviewing Ooveda, that she may have
exculpatory information" and defense counsel failed to interview Ooveda, this
"compounds the prejudice .." Majority at 21-22. While it is true he had her
information from the 911 call report and could have contacted her earlier, defense
counsel did attempt to contact Ooveda several times before trial and never got a
response. VRP (Apr. 3, 2008) at 5 (called her twice before trial with no response);
VRP (Aug. 21, 2014) at 25-26 (had investigator try to find her); VRP (Aug. 21,
2014) at 59 (many attempts by the investigator to find her with no success).
However, even if defense counsel had been able to contact Ooveda, we can only
speculate what her testimony would have offered. Even if we assume that she would
8
The record suggests it was actually about a week before trial. VRP (Apr. 3, 2008)
at 5.
-12-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
have said exactly what Forbes said to add strength to the defense's argument that
Jones had the knife only after Alford's friends joined the fight, the addition of her
testimony does not create a substantial probability that the outcome of the trial would
have been different, especially in light of the multiple witnesses testifying to the
contrary.
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.
-13-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)
l4 .