State v. JonesState v. Jones
GORDON MCCLOUD, J.—Lеroy 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. 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
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
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),
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 thе 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
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.
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 dеtective‘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.” Id. at 18-20.
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
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
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.” Id. 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.” Id. 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.
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
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 outcоme 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
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. Id. Defense counsel offered no reasons for failing to interview these witnesses. The trial court accordingly concluded that “[t]his failure to interview Brown and O[o]veda, witnesses listed on the incident report, clearly is not objectively reasonable” and that counsel‘s performance was therefore defiсient. 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.
ANALYSIS
INEFFECTIVE ASSISTANCE
I. Standard of Review
A claim that counsel was ineffective is a mixed question of law 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
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 counsеl. 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))).
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 35. With regard to Hamilton in particular, the trial court ruled that the defense lawyer “does not recall” why he failed to interview Hаmilton and “does not provide any reason either because it is clear from the incident report there was a 9-1-1 call from him.”
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 supрort 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
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 сhoice 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
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 hаve corroborated Brown‘s testimony to the same effect. VRP (Apr. 14, 2008) at 23. This is important. See Howard v. Clark, 608 F.3d 563, 573 (9th Cir. 2010) (“Although Hernandez positively identified Howard as the shooter, if Ragland 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
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
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
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 information 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
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 if there is a Washington offense to which the out-of-state conviction is “comparable.”
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
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
WE CONCUR:
Madsen, C.J.
Wiggins, J.
Gonzalez, J.
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
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. Id.
To understand why counsеl‘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
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.
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
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.
After granting review, this court ordered a
The majority concludes that defense counsel‘s failurе 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
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.” Id. (emphasis added). In other words, merely pointing to unreasonable errors that might have affected the defensе is not enough; the defendant must affirmatively show that counsel‘s errors had an adverse effect on
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”
Indeed, defense counsel stated at the
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.
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
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 thаt 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
Finally, the majority believes that because “[t]he prosecutor specifically told trial counsel on the first day of trial,8 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
I would hold that Jones has not demonstrated sufficient рrejudice under the standard established in Strickland and Crawford to justify a new trial based on ineffective assistance of counsel. Therefore, I respectfully dissent.
Stephens, J.
Fairhurst, J.
Owens, J.
C. Johnson, J.P.T.