Jones v. Wood

• Decision Date: 10 March 2000
• Docket Number: 99-35310,Nos. 99-35029,s. 99-35029
• Citation: 207 F.3d 557
• Parties: (9th Cir. 2000) JERRY BARTLETT JONES, JR.,Petitioner-Appellee-Cross-Appellant, v. TANA WOOD,Respondent-Appellant-OPINION Cross-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 557

207 F.3d 557 (9th Cir. 2000)

JERRY BARTLETT JONES, JR.,Petitioner-Appellee-Cross-Appellant, v. TANA WOOD,Respondent-Appellant-OPINION Cross-Appellee.

Nos. 99-35029, 99-35310

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 18, 2000

Decided March 10, 2000

[Copyrighted Material Omitted] Donna H. Mullen, John J. Samson, Assistant Attorneys General, Olympia, Washington, for the repondent-appellant-crossappellee. David B. Zuckerman, Seattle, Washington, for the petitionerappellee-cross-appellant.

Appeals from the United States District Court for the Western District of Washington; John C. Coughenour, District Judge, Presiding. D.C. No. CV 94-01849-JCC

Before: Stephen Reinhardt and Sidney R. Thomas, Circuit Judges, and John W. Sedwick,¹ District Judge.

THOMAS, Circuit Judge:

In Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997) ("Jones I"), we remanded this case for an independent review of the state record and an evidentiary hearing concerning Jones' ineffective assistance of counsel claim. After considering the magistrate judge's report and recommendations, the district court granted a writ of habeas corpus. We review de novo the district court's grant of a writ of habeas corpus, see Schell v. Witek, 181 F.3d 1094, 1097 (9th Cir. 1999), and review the district court's findings of fact for clear error, see Houston v. Roe, 177 F.3d 901, 905 (9th Cir. 1999).

I

The predicate factual setting was described in Jones I, obviating the need to discuss it in detail here. Jerry Jones was convicted of killing his wife, Lee Jones. In his habeas petition, he alleged that his trial counsel ineffectively assisted him by failing to (1) investigate a strong alternative suspect, Danny Busby; (2) test the physical evidence; and (3) advise him about a plea offer. In Jones I, we held that Jones was entitled to an evidentiary hearing on the adequacy of pre-trial investigation of the alternative suspect and the physical evidence.

After discovery on remand, the physical evidence tests proved inconclusive and Jones therefore withdrew his claim that his trial lawyer had ineffectively assisted him by failing to test the physical evidence. The magistrate judge conducted an evidentiary hearing on the remaining allegation. At the hearing, the evidence showed that Jones' trial attorney had been informed within days of Jones' arrest that the family suspected that Busby had committed the crime. Busby, who was an acquaintance of daughter Beth Jones, had frequently visited the family home when Beth's parents were absent, threatened to break into the home when the family was vacationing, and had telephoned several times on the night of the murder. Trial counsel was also informed that Busby did not have a persuasive alibi for his location at the time of the murder. However, neither Busby nor any witness with knowledge of Busby's actions was contacted by the defense before the trial.

After the conviction, Jones' trial counsel hired a new investigator, who ascertained that Busby had not been truthful about his activity on the night of the murder and that other witnesses did not verify his story. The investigator learned that Busby had written sexually explicit notes and several derogatory letters to Beth about Lee and Tommy Jones. In some of those notes, Busby repeatedly mentioned how sexy he found the victim. The investigator discovered that Busby had attempted to enter Beth's window on several occasions, that he continually attempted to scare Beth's younger brother by growling at him, that Jerry Jones had escorted him off the Jones' property, that Jerry and Lee Jones had forbidden him to telephone Beth, and that Busby had boasted he could break into her house at any time. Beth also informed the investigator that Busby had gotten into her handbag on several occasions and that her house key was missing. Armed with this new information, Jones' trial counsel moved for a new trial. However, his motion was denied and the denial upheld by the Washington Court of Appeals.

At the evidentiary hearing on remand, Busby was asked whether he had murdered Lee Jones. He asserted his privilege against self-incrimination and his lawyer indicated he would continue to claim the privilege. Evidence presented by a number of witnesses established that Busby had not been truthful in his initial statements to the police. Both Busby and his mother told the police that Busby had been home all night. Where Busby spent the night of the murder is unknown. At the hearing, evidence was presented that Busby stayed at the home of David Fisher, where he called the Jones' house several times. He departed between 9:00 and 9:30 p.m. by bicycle. At 9:45 p.m., Fisher received a phone call from Busby asking if Fisher wanted to join him at Beth Jones' house because there were police cars there. Jones first telephoned 911 at 9:51 p.m. and the first officers did not arrive until 10:04 p.m. The Jones' residence was not on the path of travel between Fisher's house and Busby's. Busby's mother initially informed police that Busby had been home at 9:30, but Busby's sister testified he did not come home at all that evening.

Beth Jones testified that Busby had visited her house at least once a week over a thirty month period. Busby was familiar with the layout of the Jones' home, not only because of his frequent visits but because his house was in the same subdivision and had the same layout. Busby usually visited Beth around 9:30 or 10:00 on Friday or Saturday night when her parents were out of the house dancing. She did not tell her parents of his visits for fear of punishment, as Busby had been banned from the house. Busby usually scared Thomas by growling. In fact, Thomas stated that he heard growling noises in the house on the night of the murder and thought that wild animals had attacked his mother.

Busby had threatened to break into the Jones home in 1988, when the Jones were vacationing in Oregon. In response, Beth told Busby her house would be locked, but he said he would still be able to break in. He told her he had broken into other homes in the neighborhood. Beth testified Busby had taken things from her handbag at school and that she was missing a house key she had kept in the bag. The key was to the side door leading to the garage -the door that was found ajar on the night of the murder.

Beth Jones also testified that Busby and her mother did not get along and that her mother had a strong dislike for him. At times, Busby would refer to Beth's mother as "sexy;" on other occasions, he told Beth that he hated her mother in a "very extreme" manner. She testified that Busby had forced her parents to throw him off the property because he would not leave. When Busby had inquired of her plans early on the day of the murder, Beth had responded that she would be home babysitting Thomas while her parents were out dancing. However, her parents decided not to go out, and Beth went to a party. She did not inform Busby of her change in plans.

Evidence was also introduced that Busby had written letters and made notations in Beth's yearbook containing sexually explicit statements about Beth's family. Jones also sought to introduce evidence of other crimes and tortious conduct allegedly committed by Busby, including:

A restraining order issued against Busby based in part on allegations that Busby had threatened to murder a woman.

A call to the police requesting court security in response to a threat Busby had made in the course of a misdemeanor case to kill all court personnel.

An incident report indicating that Busby had admitted breaking into a pop machine using a stolen key and that he had broken into other machines by the same method.

A police report indicating that Busby had made telephone calls threatening to kill the new boyfriend of Busby's ex-girlfriend.

A report indicating Busby had violated a protective order by telephoning the victim 25-30 times and threatening to kill her.

A docket sheet indicating that Busby had screamed obscenities at court staff when he was told that an additional charge had been filed.

A charge that Busby had trespassed on the premises of Best Rentals and stolen property.

A charge that Busby had again violated a domes tic violence anti-harassment order.

A charge of criminal trespass.

A charge of residential burglary, felony harassment and telephone harassment in which it was alleged that Busby had broken into a woman's home and threatened to kill her.

A charge of domestic violence felony violation, felony harassment and intimidating a witness arising out of an incident in which Busby allegedly beat up a woman, cut her with broken glass, assaulted witnesses and threatened to kill them if they went to the police.

An allegation by a woman that Busby had raped her at knifepoint.

Evidence that Busby had threatened to cut off his girlfriend's head, and that Busby was known to carry knives at times.

The magistrate judge refused admission of the evidence and also precluded any examination of Busby after he asserted his right against self-incrimination.

II

To succeed on a claim for ineffective assistance of counsel, a petitioner must demonstrate: 1) that counsel's performance was deficient, meaning that it was unreasonable given prevailing professional norms; and 2) that the deficient performance prejudiced the defense, meaning that there is "reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland v. Washington, 466 U.S. 668, 687-93 (1984).

Both the magistrate judge and district court held that Jones' trial counsel performance was deficient because he failed to investigate adequately the possibility that Busby had committed the crimes. Wood does not seriously contest this on appeal² and trial counsel's failure to investigate Busby is virtually undisputed. Rather, Wood contends that Jones has failed to establish prejudice from the error....