Jones v. Polk

• Decision Date: 14 March 2005
• Docket Number: No. 04-13.,04-13.
• Citation: 401 F.3d 257
• Parties: John Wesley JONES, Petitioner — Appellant, v. Marvin POLK, Warden, Central Prison, Respondent — Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 257

401 F.3d 257

John Wesley JONES, Petitioner — Appellant, v. Marvin POLK, Warden, Central Prison, Respondent — Appellee.

No. 04-13.

United States Court of Appeals, Fourth Circuit.

Argued: November 30, 2004.

Decided: March 14, 2005.

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ARGUED: Daniel Kanin Shatz, Durham, North Carolina, for Appellant. Steven Franklin Bryant, Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.

ON BRIEF: Jennifer Harjo, Smith, Smith & Harjo, Wilmington, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellee.

Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge WIDENER joined. Judge MICHAEL wrote an opinion dissenting in part and concurring in part.

DIANA GRIBBON MOTZ, Circuit Judge.

John Wesley Jones appeals from the dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (2000). Although the district court denied Jones¹ habeas relief, it granted a certificate of appealability on his claim that the state trial court had unconstitutionally excluded evidence of remorse at his sentencing hearing. In addition, we granted a certificate of appealability on Jones' claim that his trial counsel labored under an actual conflict of interest that affected his representation of Jones. Finding no basis for habeas relief, we now affirm the dismissal of Jones' habeas petition.

I.

In late July and August of 1990, Jones was tried in North Carolina state court for the murder of his adult son, Charles "Little John" Meadows. The parties do not dispute the underlying facts.

On September 23, 1989, Meadows was walking along a rural route in Jones County, North Carolina, with Joyce Hill, Nancy Hill, and Nancy Hill's child. At an intersection, they met Queen Jones, who was in her car with her children, Marissa Jones and Thomas Jones; her mother, Rena Jones; and her sister, Christine Jones. Queen Jones was looking for Joyce Hill to ask if she would babysit Marissa and Thomas. As Meadows and the Hills approached, Marissa, Thomas, and Christine began to exit the car.

Just then, Jones approached in his car. He passed through the intersection, turned his car around, and stopped on the side of the road. Jones got out of the car and pulled a shotgun from the back seat. Meadows, Christine, Marissa, and Thomas then clambered into the back seat of Queen Jones' car; Rena and Queen Jones remained in the front seats. Jones approached the car, loading his gun. When he reached the side of the car on which Meadows was sitting, he cocked the gun and fired through the car door. He then reloaded the gun, walked back to his car, and drove away. The shot hit Meadows in the chest, killing him; some of the buckshot injured Marissa Jones.

Louis Foy represented Jones in both the guilt and the penalty phases of the trial. Foy concurrently represented prosecution witness Joyce Hill in an unrelated domestic relations matter. At trial, Hill testified that after Jones shot Meadows, "he walked away like he shot a dog," and Foy did not extensively cross-examine her. Foy had not obtained a written waiver of any conflict of interest from Jones. Indeed, Foy is not certain that he told Jones of the concurrent representation.

Upon consideration of all of the testimony, the jury convicted Jones of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a firearm into occupied property.

In the penalty phase of the trial, the prosecution presented evidence of two aggravating factors: (1) Jones had previously been convicted of three felonies involving violence or the threat of violence, and (2) in the commission of Meadows' murder, he had knowingly created a great risk of death to more than one person (Meadows and Marissa Jones) by means of a weapon normally hazardous to the lives of more than one person.

Jones called eighteen witnesses to present evidence of mitigating circumstances. His initial witness was Jasper Jones, the grandfather of Marissa Jones. During Jasper Jones' testimony, the following exchange occurred:

DEFENSE COUNSEL: Do you have an opinion as to whether John is sorry for what he did?

JASPER JONES: That's what he told me.

PROSECUTOR: Objection.

THE COURT: That motion to strike is allowed. Objection is sustained. Ladies and gentlemen of the jury, disregard the witnesses [sic] last statement.

DEFENSE COUNSEL: No further questions.

Forensic psychiatrist Dr. Billy W. Royal, appearing as a defense witness, read to the jury a letter written by Jones to his wife. The State objected on hearsay grounds. The court instructed the jury that it could consider the contents of the letter only"as an explanation of the basis" for Dr. Royal's opinion and not as substantive evidence. Dr. Royal then read Jones' letter: "I have always loved you very special as I have done Little John, but as life itself can be a mistake, I just made a great one. I know what Little John `brother' meant to you." Jones did not attempt to introduce further evidence of remorse.

In his closing argument, the prosecutor referred to Jones' alleged lack of remorse, arguing that Jones neither cried nor attempted to help Meadows after the shooting. The prosecutor emphasized that the jury could not consider the letter from Jones that Dr. Royal read into the record as substantive evidence. And he reminded the jury that, although in his allocution Jones "may get up and tell you how sorry he is or how it has affected his name and himself and how I did not mean to do it," those statements would not be evidence.

At the close of the evidence, the court instructed the jury as to aggravating and mitigating circumstances and the jury deliberated for four hours without reaching a verdict before retiring for the day. The following day, after asking the court how many years constituted a life sentence and being told it could not consider such a matter, the jury informed the court that it could not reach a unanimous decision. The court then gave the jury an Allen charge. See Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

That afternoon, the jury returned a unanimous recommendation that Jones be sentenced to death. The jury found both of the aggravating factors urged by the prosecution; it also found that seven of the eighteen factors presented by the defense had mitigating value. In response to the "catch-all" provision, under which the jury could have considered evidence of Jones' remorse (because remorse was not one of the seventeen specific mitigating factors), the jury indicated that no other circumstances arose from the evidence that one or more jurors deemed to have mitigating value. The court accepted the recommendation, and sentenced Jones to death.

Jones appealed, asserting in relevant part that the trial court erred at the sentencing hearing by excluding Jasper Jones' testimony that Jones had expressed remorse about the murder. The Supreme Court of North Carolina, relying inter alia on Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), held that the exclusion was error. See State v. Jones, 339 N.C. 114, 451 S.E.2d 826, 847 (1994). However, the court found that the error was "harmless beyond a reasonable doubt" "[i]n light of the ... facts and the circumstances of the case as a whole," including the fact that "another witness" had read to the jury the letter from Jones to his wife "suggesting remorse and regret." Id. at 848.

After the Supreme Court of the United States denied Jones' petition for certiorari, Jones v. North Carolina, 515 U.S. 1169, 115 S.Ct. 2634, 132 L.Ed.2d 873 (1995), and his subsequent petition for rehearing, Jones v. North Carolina, 515 U.S. 1183, 116 S.Ct. 32, 132 L.Ed.2d 913 (1995), Jones filed a Motion for Appropriate Relief (MAR) in state court. In the MAR he asserted, among other things, ineffective assistance of counsel because Foy failed to effectively cross-examine prosecution witness Joyce Hill, whom Foy was concurrently representing in an unrelated divorce action.

In support of his motion, Jones attached an affidavit from Foy, stating in relevant part:

During the time leading up to Mr. Jones' trial, I felt that my representation of Ms. Hill would be to Mr. Jones' advantage in that it gave me the opportunity to discuss with Ms. Hill the events which she had witnessed. I thought this would enable me to be better prepared to cross examine Ms. Hill and bring out evidence favorable to Mr. Jones. I was shocked when Ms. Hill, on direct examination, testified that Mr. Jones walked away from the shooting looking as if he had just shot a dog. This was so unexpected, based on my conversations with Ms. Hill that I was completely taken aback. I became leery of anything that Ms. Hill might have to say. This affected the scope of my cross examination of Ms. Hill.

The MAR court denied the motion and refused to order an evidentiary hearing on any of his claims. Regarding Foy's asserted conflict of interest, the court found that Jones had "failed to produce any information favorable to [him] within the knowledge of Ms. Hill which should have been elicited" by Foy in cross-examination, and that Jones had failed to show that "Foy represented an interest which actually conflicted with that of [Jones]."²

II.

On June 29, 2000, Jones filed a petition for a writ of habeas corpus in federal court. He argued that, as the state supreme court found, the trial court erred in preventing Jasper Jones from testifying about Jones' remorse, but that the state supreme court's ruling that the error was harmless constituted an unreasonable application of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Jones also asserted that his trial counsel had an...