Jones v. Ryan
| Decision Date | 16 August 2012 |
| Docket Number | No. 10–99006.,10–99006. |
| Citation | 12 Cal. Daily Op. Serv. 9363,691 F.3d 1093,2012 Daily Journal D.A.R. 11426 |
| Parties | Robert Glen JONES, Jr., Petitioner–Appellant, v. Charles RYAN, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Daniel D. Maynard (argued) and Jennifer Reiter, Maynard Cronin Erickson Curran & Sparks, PLC, Phoenix, AZ, for petitioner-appellant Robert Jones.
Lacey Stover Gard (argued) and Jeffrey A. Zick, Arizona Attorney General's Office, Tucson, AZ, for respondent-appellee Charles Ryan.
Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. No. 4:03–CV–00478–DCB.
Before: RONALD M. GOULD, RICHARD C. TALLMAN, and CARLOS T. BEA, Circuit Judges.
Petitioner–Appellant Robert Jones (“Jones”) appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Jones was convicted of six murders in Arizona state court and was sentenced to death in 1998. He was also convicted of first-degree attempted murder, aggravated assault, armed robbery, and first-degree burglary. The district court granted a certificate of appealability (“COA”) on Jones's prosecutorial misconduct claim. We expand the COA to include the ineffective assistance of counsel allegations related to Jones's prosecutorial misconduct claim. We have jurisdiction under 28 U.S.C. § 2253, and we affirm the district court's denial of Jones's habeas corpus petition.
In 1996, six people were killed during two armed robberies in Tucson, Arizona. On May 30, the Moon Smoke Shop was robbed, where two victims were killed and a third was wounded by gunfire. On June 13, the Fire Fighters Union Hall was robbed, and four persons there were killed.
The Moon Smoke Shop robbery began when two robbers followed a customer, Chip O'Dell, into the store and at once shot him in the back of the head. Four employees were in the store: Noel Engles, Steve Vetter, and Mark Naiman were behind one counter concentrating on the stock, and Tom Hardman was behind another. After hearing the gunshot, Engles and Naiman looked up to see a robber in a long-sleeved shirt, dark sunglasses, and a dark cowboy hat wave a gun at them and yell to get down. Naiman recognized the gun as a 9mm. Engles dropped to his knees and pushed an alarm button.
Engles noticed a second robber move toward the back room and heard someone shout, “Get the f* * * out of there!” The gunman at the counter told Naiman to open the cash register. After Naiman did so, the gunman reached over the counter and began firing at the others on the floor. Thinking that the others were dead, Naiman ran out of the store and called 911 at a pay phone. On the floor behind the counter, Engles heard shots from the back room and then, realizing the gunmen had left the store, also ran out of the store, by the back door. Running up the alley to get help, Engles saw a light-colored pickup truck with two people in it accelerate and turn on a street into heavy traffic.
Naiman and Engles survived. Vetter also survived, although shot in the arm and face. O'Dell and Hardman were both killed by close range shots to the head, O'Dell at the entrance to the store and Hardman in the back room. Three 9mm shell casings were found in the store, one beside O'Dell and two near the cash register. Two .380 shells were found near Hardman's body. Two weeks after the robbery, Naiman met with a police sketch artist who used his description of the gunmen to create sketches of the suspects. These sketches were released to the media in an effort to catch the perpetrators. At trial, two acquaintances of Jones testified that when they saw the police sketches their first thought was that they looked like Jones.
The Fire Fighters Union Hall was robbed two weeks later. There were no survivors of the violence that befell those present there. Nathan Alicata discovered the robbery at 9:20 p.m. when he arrived at the Union Hall and discovered the bodies of Maribeth Munn (Alicata's girlfriend), Carol Lynn Noel (the bartender), and a couple, Judy and Arthur Bell. The police investigation turned up three 9mm shell casings, two live 9mm shells, and two .380 shell casings. About $1300 had been taken from the open cash register, but the robbers were unable to open the safe. The coroner, who examined the bodies at the scene, concluded that the bartender had been shot twice, and that the other three victims were shot through the head at close range as their heads lay on the bar. The bartender's body had a laceration on her mouth consistent with having been kicked in the face, and Arthur Bell's body had a contusion on the right side of his head showing he was struck with a blunt object, possibly a pistol.
In 1998, petitioner Robert Jones was convicted of these ghastly crimes of multiple murder and sentenced to death. His co-defendant, Scott Nordstrom, had been convicted in a separate proceeding six months earlier. See State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001). Jones's theory of the case at trial and on appeal was that Scott Nordstrom and his brother David Nordstrom committed these murders, while he was not involved. While there was no physical evidence or positive eyewitness identifications conclusively linking Jones to the crimes, both he and his truck matched descriptions given by survivors of the Moon Smoke Shop robbery. The prosecution's case against Jones was based in large part on David Nordstrom's testimony. David Nordstrom gave a detailed account of his role as a getaway driver in the Moon Smoke Shop robbery, and identified Jones as a robber and shooter, as well as the guns he carried. But that was not all of the testimony against Jones. Lana Irwin, an acquaintance of Jones, also testified that she overheard Jones talking about details of these murders that the police had not released to the general public. Jones's friend David Evans gave additional implicating testimony.
At Jones's trial, David Nordstrom gave extensive testimony about the events surrounding the two robberies. In January 1996, David Nordstrom was released from prison after a conviction for theft, and began living at his father's home in Tucson, Arizona. At the time of the offenses in this case, David Nordstrom was under “home arrest” (requiring him to be home by a certain time every evening) and monitored by an ankle monitor. David Nordstrom re-established his friendship with Jones and began working construction jobs. Before April 1996, David Nordstrom obtained a .380 semiautomatic pistol from a friend, Cindy Inman, which he gave to Jones after Jones requested it for protection. Cindy Inman testified at trial that David Nordstrom took this pistol without her permission and that when she asked for it back several months later, he told her he had dropped it in the bottom of a lake.
On May 30, 1996, Scott Nordstrom and Jones picked up David Nordstrom in Jones's truck, an old white Ford pickup. Jones was wearing his usual attire: a long-sleeved western shirt, Levi's, boots, sunglasses, and a black cowboy hat. In a parking lot near the Tucson Medical Center, Jones broke into a VW station wagon that he aimed to steal. He could not start it, but he found a 9mm pistol. The owner of the VW testified that his car had been broken into and his gun stolen on May 30. Jones kept the 9mm and gave Scott Nordstrom the .380 pistol he had obtained from David Nordstrom.
As the three continued driving, they discussed the possibility of a robbery, and Jones suggested that they rob the Moon Smoke Shop. He parked behind the store, telling David Nordstrom that Jones and Scott Nordstrom would go in, rob the store, and be right out. David Nordstrom, while waiting in the pickup truck, then heard gunfire from inside. According to David Nordstrom's testimony, after returning to the truck, Jones said, “I shot two people,” and Scott Nordstrom said, “I shot one.” David Nordstrom also testified that Jones and Scott Nordstrom were mad at him for unnecessarily driving the truck past the front of the shop during the getaway. Jones, Scott Nordstrom, and David Nordstrom split the money from the Moon Smoke Shop robbery.
On the day of the Union Hall murders, Scott Nordstrom gave David Nordstrom a ride home. David Nordstrom's parole officer produced records at trial verifying that David Nordstrom's ankle-monitoring unit indicated that he had not left his father's home on the night of the murders. Late that evening, according to David Nordstrom, Jones entered David Nordstrom's father's house and told David Nordstrom that he and Scott Nordstrom had robbed the Union Hall. David Nordstrom's stepmother Terri Nordstrom also testified that she remembered Jones showing up at her house late at night looking for David Nordstrom at some point in June 1996, which was unusual.
Again per the testimonial story told by David Nordstrom, Jones told David Nordstrom that because the bartender could not open the safe, Scott Nordstrom kicked her and shot her. Jones said that he then shot the three other witnesses in the back of the head. Jones, Scott Nordstrom, and David Nordstrom later disposed of the guns by throwing them into a pond south of Tucson, and Scott Nordstrom and David Nordstrom burned Arthur Bell's wallet at another location. David Nordstrom kept the secrets of the murders until he saw an appeal on television for information. He testified that his conscience was getting to him, so he told his girlfriend, Toni Hurley, what he knew. Hurley later made an anonymous 88–CRIME call, which led to David Nordstrom's contact with the police, and the ultimate release of the information.
David Nordstrom's testimony was key to the prosecution, but he was not the only important witness for the prosecution. Jones was also linked to the crime by Lana Irwin, who testified that she overheard him discuss details...
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