Jones v. Jones

• Decision Date: 16 December 1998
• Docket Number: No. 97-31342,97-31342
• Citation: 163 F.3d 285,1998 WL 879749
• Parties: Jean Bailey JONES, Petitioner-Appellee, v. Johnny JONES, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 285

163 F.3d 285

Jean Bailey JONES, Petitioner-Appellee, v. Johnny JONES, Warden, Respondent-Appellant.

No. 97-31342.

United States Court of Appeals, Fifth Circuit.

Dec. 16, 1998.

John H. Craft, New Orleans, LA, for Petitioner-Appellee.

Val Michael Solino, Karen Godail Arena, New Orleans, LA, for Respondent-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, SMITH and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For the conditional habeas relief granted state prisoner Jean Jones, serving a mandatory life sentence for heroin distribution, the critical question for her ineffective assistance of counsel claim is whether, at her half-day trial, deficient performance caused the requisite prejudice. We REVERSE and RENDER.

I.

At the end of October 1987, a Louisiana grand jury indicted Jones for distribution of heroin on 4 September. The charge carried a mandatory life sentence. In early November, the state trial court appointed Jack Dolan, with the Orleans Indigent Defender Program, to represent Jones. That same day, Jones, through counsel, entered a not guilty plea and orally moved to suppress the evidence, her confession, and identification.

Approximately three weeks later, a hearing was held on the motions to suppress evidence and the confession. The record does not contain a transcript of the hearing; the minute entry reflects that the State called New Orleans Police Officer Overman as a witness. The motions were denied, but "the issue of identity of the confidential informant [was] left open".

Two weeks later, on 4 December, a hearing was held on the motion to suppress statements. (Although the minute entry for the previous hearing reflects that motions to suppress the evidence and the confession were heard and denied, the entry for the December hearing states that the subject of that hearing was the motion to suppress "the statements"; and that the motion to suppress the evidence was denied at the previous hearing.) There is no transcript of the hearing. The minute entry reflects that the State called New Orleans Police Officer Wethern as a witness; the defense, Jones. The motion was denied. The minute entry also reflects that Jones "re-urged" her motion to produce the informant's identity, whereupon the State advised the court that the informant would not be referred to in any further proceedings.

On 10 March 1988, Jones moved for a speedy trial. That June, the parties appeared for trial. But, the court was unable to seat a jury; 39 of 45 prospective jurors were excused for cause because they were "unwilling to impose the consequences of a guilty as charged verdict". (Again, the heroin distribution charge carried a mandatory life sentence.)

Trial, held on 12 September 1988, lasted a half-day. It was stipulated that 46 pieces of foil were seized from Jones when she was arrested on 4 September 1987, and were tested on 8 September; and that 23 tested positive for heroin. Jones' counsel added that the other 23 were "bunk". ("Bunk" is a substance, such as sugar, which appears to be, but is not, heroin.)

The State called two witnesses in its case in chief. New Orleans Police Officer Polk testified that, while working undercover that 4 September, he was parked outside a fast-food restaurant in New Orleans at about 9:30 p.m. Other officers were in the immediate vicinity, observing him. While Officer Polk was sitting in his vehicle, Jones entered it. The Officer told Jones that he would like to purchase two "bundles" of "dope"; she replied that she would sell only one bundle at a time. (A "bundle" is approximately 30 shots of heroin.)

Officer Polk gave Jones $350 in previously photocopied bills for one bundle; it consisted of approximately 35 aluminum foil packets. Jones exited the vehicle, ostensibly to pick up the other bundle and return, whereupon the Officer was to purchase it for an additional $300. However, when Jones exited the vehicle, Officer Polk flashed his lights in a pre-arranged signal to alert the other officers that the heroin and money had been exchanged. Jones was arrested and advised of her constitutional rights.

On cross-examination, defense counsel asked Officer Polk whether Jones appeared to be "intoxicated or maybe high on drugs". The Officer replied that Jones did not, but instead "seemed perfectly sane". He testified further that the deal had been made before Jones arrived; that she knew what was going on and why she was there; and that it "wasn't like ... I went out looking for her". Jones' counsel asked the Officer whether he was "quite sure" that he did not instigate the sale or push Jones; Officer Polk responded that he did not, that it was a pre-arranged sale.

The State's other witness was Officer Wethern. Prior to 9:00 p.m. on 4 September, he and his partner were conducting an undercover heroin investigation, and enlisted Officer Polk as an undercover agent. The officers made arrangements to purchase two bundles of heroin from a woman named "Jean" (Jones' first name) at a fast-food restaurant. For the purchase, Officer Wethern withdrew $700 from the narcotics fund, photocopied the bills for identification, and gave them to Officer Polk. He directed Officer Polk to the fast-food restaurant, and they arranged the signal for Officer Polk's having received the heroin. Officer Wethern and his partner were parked across the street. Five other officers were also assisting with surveillance.

At approximately 9:30 p.m., Officer Wethern observed a black female (later identified as Jones) arrive at the fast-food restaurant parking lot and enter Officer Polk's vehicle. After a few minutes, Jones exited, and Officer Polk flashed his lights. Jones was arrested. Officer Polk had purchased 36 packets. Officer Overman searched Jones and seized currency and ten additional foil packets of white powder. The cash seized from Jones was that provided earlier by Officer Wethern to Officer Polk.

Officer Wethern testified further that Jones was taken to headquarters and advised of her rights; and that, after acknowledging that she understood them, she gave a statement. Jones' counsel objected to the admission of the statement and, outside the presence of the jury, questioned the Officer about the circumstances under which the statement was made. The objection was overruled.

Officer Wethern testified that Jones stated that several of the packets contained "bunk"; that only a few were "good"; that she had obtained a package from "Lionel"; that Lionel was on the scene; and that she could not believe that the officers did not see or arrest him. After Jones made this statement, the officers attempted unsuccessfully to locate Lionel.

On cross-examination, Officer Wethern testified that, when he initially saw Jones, she was coming from the direction of a housing project; that she went directly to Officer Polk's vehicle; and that, after speaking to another individual, she entered the vehicle. When asked whether she appeared "to be under the influence of possibly liquor or drugs", Officer Wethern responded that, when he was speaking to her, she seemed "fairly lucid and seemed to know what she was doing".

Jones testified in her own defense. She saw Officer Polk in the restaurant parking lot that 4 September, but did not speak to him, or enter his vehicle, or sell him heroin. She talked to a "white boy" who was standing outside of a car. Although she had been using heroin and cocaine that night, and had been in a hospital until two weeks earlier for methadone addiction treatment, she recalled everything that happened. An officer searched her, but did not seize any money from her, except for a few dollars and ten days' worth of heroin. She denied having $300.

Jones recalled speaking to the officers at police headquarters; she told them that the 26 bags they took from her contained her antibiotic medication. The medication was packaged the same way as the heroin, because she had trouble swallowing pills. The officers asked her to cooperate; but, when asked whether she knew certain individuals, she did not. On the Tuesday following her arrest on Friday, Officer Wethern and a district attorney visited her in jail and made the same proposal. She was charged originally only with possession of the heroin seized from her; the distribution charge was not made until after she met with the district attorney and Officer Wethern.

On cross-examination, Jones testified that Officer Polk had lied; that she never entered his vehicle, sold him drugs, or received money from him; that she paid for her heroin by working as a seamstress; that she did not sell heroin; and that she remembered everything that happened on 4 September. Jones admitted to prior convictions for possession of heroin in 1970 and for shoplifting. When the prosecutor attempted to elicit testimony regarding a prior conviction for theft, Jones' counsel's objection was sustained.

Officer Overman testified for the State in rebuttal. She arrested Jones at approximately 9:30 p.m. on 4 September, after having observed her entering an unmarked vehicle with an undercover police officer. On searching Jones, Officer Overman found four $100 bills in one of Jones' pants pockets and, in another, 10 aluminum foil packets containing white powder.

In closing argument, Jones' counsel stated:

I have no witnesses to bring forward on behalf of this woman. She put herself on the witness stand, and you saw her on that stand; you heard her testimony. She testified that she's been a, from her own lips, an addict, shooting up heroin, and anything else she can get her hands on, for about 18 years. She's tried to kick it; she was right back on it. At that time and point in question, September 4, ... she was back on the stuff again....

Now, the officers, I asked Polk, I said, well what was her condition? Did she seem a little high or something? And I think the other officer, I forget...