Jones v. State

• Decision Date: 29 April 2005
• Docket Number: CR-03-1351.
• Citation: 937 So.2d 96
• Parties: Lydia Diane JONES v. STATE.
• Court: Alabama Court of Criminal Appeals

937 So.2d 96

Lydia Diane JONES v. STATE.

CR-03-1351.

Court of Criminal Appeals of Alabama.

April 29, 2005.

Rehearing Denied June 10, 2005.

Certiorari Quashed February 17, 2006 Alabama Supreme Court 1041427.

Charlotte Morrison and Bryan A. Stevenson, Montgomery, for appellant.

Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.

COBB, Judge.

Lydia Diane Jones appeals from an order denying the Rule 32, Ala. R.Crim. P., petition she filed seeking relief from her convictions for trafficking in cannabis, violations of § 13A-12-231(1), Ala.Code 1975, and unlawful possession of cocaine, a violation of § 13A-12-212 Ala.Code 1975, and her sentences as a habitual felon to life in prison without the possibility of parole for the trafficking conviction and to 15 years' imprisonment for the possession conviction.¹ We reverse and remand for further proceedings.

Jones was convicted based on her alleged involvement in illegal drug activity conducted at her apartment. Jones contended that the drugs found in her apartment belonged to her boyfriend, Louis "Ronnie" Cook, who was under surveillance and investigation by federal authorities regarding his involvement in a large-scale drug-trafficking conspiracy. Jones alleged that she permitted Cook to live at her apartment because she had moved into her parent's home to care for her terminally ill father and that, in her absence and without her knowledge, Cook used her apartment to store large quantities of illegal drugs. However, after receiving a tip from a confidential informant, State authorities executed a search warrant on Jones's apartment at a time when Jones was inside the apartment. Jones contended that she had only stopped by the residence to retrieve additional clothing and that she had no knowledge of the presence of illegal drugs in the apartment. Jones's sole defense at trial was that the drugs belonged to Ronnie Cook and that assertion was made during her counsel's opening statement to the jury. (Record on direct appeal at page R. 278, 292.) Cook intended to confirm Jones's defense theory by testifying that he had placed the drugs in Jones's apartment. However, he was not called as a witness because the State indicated that calling him as a witness would result in his being prosecuted on state drug charges. The jury returned verdicts of guilty and on appeal this Court affirmed Jones's convictions and sentences. Jones v. State, 836 So.2d 1003 (Ala.Crim. App.2001). The Alabama Supreme Court affirmed the judgment of this Court. Ex parte Jones, 839 So.2d 688 (Ala.2001). This Court issued the certificate of judgment on November 16, 2001.

Jones timely filed a Rule 32 petition on July 31, 2003. Among the claims presented, Jones claimed that trial counsel and appellate counsel, who were the same, were ineffective because counsel "harbored and acute, actual conflict of interests in their representation of Ms. Jones." (C. 25.) In this regard Jones asserted that Cook intended to testify at her trial that the drugs belonged to him and not to Jones, but because Cook was "simultaneously represented" by Jones's counsel, this evidence, which was exculpatory to her but inculpatory to Cook, was never presented to the jury on her behalf. (C. 25.)

On December 8, 2003, Jones filed an amended petition in which she presented a factual basis in support the above claim of ineffective assistance of counsel. (C. 55.) In pertinent part the allegations in the amended petition were as follows: Stephen Salter, Richard Thigpen, and Kenneth Moore represented Jones at trial and on appeal. Salter and Thigpen simultaneously represented Louis Cook in a federal drug-conspiracy prosecution "prior to, during and after" Jones's trial. (C. 61.) Moore represented Cook in the criminal case in state court and represented Cook "in the face of possible state prosecution both before and during Ms. Jones' trial." (C. 61.) Cook initially paid Salter and Thigpen to represent Jones; however, that obligation was later assumed by her parents. "Cook pleaded guilty to federal drug conspiracy charges in both the Middle and Northern Districts of Alabama." (Jones's brief at footnote 2). In exchange for his cooperation in prosecuting others involved in the conspiracy, Cook was to receive a lenient sentence. Cook's sentencing was deferred until his cooperation could be evaluated. He was not sentenced until after Jones's trial. The day Cook was to testify on behalf of Jones, the Jefferson County prosecutor advised him that he would be indicted on state drug charges if he testified for Jones. Counsel did not call Cook as a witness at Jones's trial for fear of exposing him to state prosecution and harsher sentencing by the federal court. Among the various arguments presented by Jones, we note the following:

"Counsel failed to present evidence of [Cook's] admissions to federal investigators that the drugs found in Ms. Jones' apartment were his." (C. 64.);

"Counsel failed to present ... documentary evidence available at the time of Ms. Jones' trial that Mr. Cook was actively involved in a state-wide drug operation in which he acquired, stashed, distributed, and sold marijuana in the Birmingham area and that he was being investigated by state and federal agents as a result of his drug activities." (C. 65.);

"Despite emphasizing to the jury in both opening and closing arguments that Ms. Jones' central defense was that the drugs found in her house were Ronnie Cook's, trial counsel failed to elicit testimony of a single witness on direct examination to support this theory. Furthermore, counsel failed to investigate or present other evidence independent of testimony, that he had access to the house after Ms. Jones had moved out, was in fact using the house, or that the drugs were his, because Ms. Jones' interest in a reasonable investigation diverged from counsel's interest in protecting Mr. Cook." (C. 66.); and "Trial counsel failed to call Louis Cook to testify at Ms. Jones' trial. Mr. Cook would have testified that after Ms. Jones moved in with her parents, Mr. Cook began using Ms. Jones' home to store drugs and conduct his drug-related business. Mr. Cook would have testified that the drugs seized during the raid belonged to him. There was no strategic basis for counsel not to call Mr. Cook. Counsel's failure to call Mr. Cook as a witness was defective performance and prejudiced Ms. Jones." (C. 70.)

On June 16, 2001, the State filed a motion to dismiss the Rule 32 petition. Regarding the above claims, the State argued that Jones's claim of ineffective assistance of counsel based on alleged conflict of interest is procedurally barred because this claim was raised at trial when Salter informed the trial court of the conflict and requested permission to withdraw and the trial court denied the request. The State also asserted that the claim was without merit because at trial Jones stated that she did not want Cook to testify (R. 257-58), and because it is not clear if Cook would have testified once he understood the possible consequences. Moreover, according to the State, any omission in presenting evidence that Cook had admitted owning the drugs would not have exonerated Jones because the State's evidence was that Jones assisted Cook in selling drugs. Thus, according to the State, Jones failed to establish prejudice.

Salter and Thigpen submitted a sworn answer to the amended petition as amicus curiae. In this document, Salter and Thigpen testified that Cook had "effectively changed his mind about testifying in Ms. Jones' case when confronted with threatened State prosecution" (C. 154), and that Jones "did not want to do anything that might hurt Mr. Cook in any way." (C. 155.)

On April 23, 2004, the circuit court issued a written order dismissing the petition pursuant to Rules 32.2(a)(2), 32.2(a)(3), 32.2(a)(5), and 32.2(c) and because "[t]his court tried the case and finds that the petitioner has failed to meet her burden of proof regarding the alleged ineffective assistance of counsel," and "this petition lacks merit." (C. 5.)

Jones has reiterated her claim regarding counsel's actual conflict of interest on appeal.

Where the facts have been disputed, "[t]he standard of review on appeal in a post conviction proceeding is whether the trial judge abused his discretion when he denied the petition. Ex parte Heaton, 542 So.2d 931 (Ala.1989)." Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992). However, if the circuit court's ruling is correct for any reason, it will be affirmed on appeal. Hoobler v. State, 668 So.2d 905, 908-09 (Ala. Crim.App.1995). This Court does not agree that the procedural bars relied on by the circuit court are applicable. The petition was timely filed. Jones was represented by the same counsel at trial and on direct appeal; thus, this petition represents her first opportunity to present the claim of ineffective assistance of counsel based on an alleged conflict of interest. The trial court did not address the conflict-of-interest claim at trial but proceeded with the trial without squarely addressing the issue.

"`... "[I]n order to establish a violation of the Sixth Amendment, ... [a defendant] must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. [335] at 348, 100 S.Ct. [1708] at 1718 [(1980)]. Accord Williams v. State, 574 So.2d 876, 878 (Ala.Cr.App. 1990). To prove that an actual conflict adversely affected his counsel's performance, a defendant must make a factual showing "that his counsel actively represented conflicting interests," Cuyler v. Sullivan, 446 U.S. at 350, 100 S.Ct. at 1719, "`and must demonstrate that the attorney "made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other."'" Barham v. United States, 724 F.2d 1529, 1532 (11th Cir.) (quoting United States v. Mers, ...