Jones v. Wood

• Decision Date: 12 June 1997
• Docket Number: No. 96-35499,96-35499
• Citation: 114 F.3d 1002
• Parties: 97 Cal. Daily Op. Serv. 4459, 97 Daily Journal D.A.R. 7417 Jerry Bartlett JONES, Jr., Petitioner-Appellant, v. Tana WOOD, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1002

114 F.3d 1002

97 Cal. Daily Op. Serv. 4459, 97 Daily Journal

D.A.R. 7417

Jerry Bartlett JONES, Jr., Petitioner-Appellant, v. Tana WOOD, Respondent-Appellee.

No. 96-35499.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 8, 1997.

Decided June 12, 1997.

David Zuckerman, Seattle, WA, for petitioner-appellant.

Donna H. Mullen, Assistant Attorney General, Olympia, WA, for respondent-appellee.

Appeal 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: REINHARDT and THOMAS, Circuit Judges, and SEDWICK ^*, District Judge.

OPINION

THOMAS, Circuit Judge:

Jerry Jones claims he is innocent of the first degree murder of his wife. He contends compelling evidence implicates another person, proof which his lawyer failed to investigate before trial despite Jones's entreaties. The district court granted summary judgment denying Jones's petition for a writ of habeas corpus under 28 U.S.C. § 2254. We reverse and remand.

I.

Sometime around 9:45 p.m. on Saturday, December 3, 1988, Jones pounded on the door of his neighbors Graham and Paulette Smith. When Graham answered, Jones thrust his nearly five-year-old son Thomas into the Smith's house, said that Lee, his wife, was hurt and bleeding badly, and then ran back to his own house. After putting Thomas in his wife's care, Graham went over to Jones's house, where he found Jones in the kitchen with a towel wrapped around his hand. When Graham asked what happened, Jones replied that Lee had been "stabbed all over" and was bleeding everywhere. Jones told Graham that he had been hit over the head and stabbed. When he came to, he found Lee in the bathroom stabbed and bleeding.

At trial, Jones testified that he had been in the master bedroom preparing to take a shower while Lee was taking a bath. He heard her scream and immediately ran into the hallway, where he saw a man with a knife coming out of the bathroom. In terror and as a defensive instinct, Jones swung his hand in the direction of the knife blade, cutting his hand. The intruder pushed Jones out of his way, and Jones hit his head against the wall. While this stunned Jones, he said he did not believe he lost consciousness, although he did not know for certain.

Upon recovering, Jones went into the bathroom, where he found Lee in the bathtub bleeding profusely. She was struggling and trying unsuccessfully to speak. He tried to lift her out of the bathtub, but he slipped and fell onto the side of the tub in the process. Thomas then came into the bathroom asking what had happened and why his mother was hurt. Jones took Thomas back to his bedroom, but Thomas, who was scared and crying, kept returning to the bathroom. Jones decided to get Thomas out of the house and took him over to the Smith's.

When the police arrived, Jones was wearing blue jeans stained with blood from his knees down to his ankles, and one of his hands was wrapped in a towel. Jones gave essentially the same account of events to the police as he had given to Smith. An examination of his head revealed no sign of any trauma. Jones had several cuts on his right hand. The murder weapon, a fish filleting knife that Jones and his daughters said they had never seen before, was found on the bathroom floor near Lee's body. A check of the rear of the house revealed a garage door ajar on the south side of the house, facing away from the street and toward a wooded area beyond Jones's fenced-in backyard. There were no signs of forced entry or any blood or footprints near the garage door. No usable prints were ever found in the house or on the knife. The forensic examination later revealed several hairs on the hands and body of Lee Jones. An autopsy revealed she had sixty-three stab wounds on her body.

The police were unable to identify a motive for the killing. However, because they knew Jones was in the house when his wife was killed, and because they found no evidence of an intruder either entering or exiting the house, the police arrested Jones and charged him with second degree murder.

Jones's father hired an attorney to represent Jones and determine who had actually killed Lee Jones. Jones's lawyer in turn hired an investigator to help with the case. The investigator was expressly directed to investigate Danny Busby, a friend of Jones's daughter Elizabeth, whom Jones believed the person most likely to have committed the murder.

Jones suspected Busby because Busby and Lee had several heated arguments in October and November of 1988 over Busby's teasing of Thomas. On one occasion, Jones had escorted Busby from the house and told him never to return. Busby was not permitted to speak with Elizabeth on the telephone, but he would continue to call the Jones's asking for her, and Jones would simply hang up. On the day of the murder, Busby had called twice, both times urgently demanding to speak with Elizabeth, the second time just two hours before the murder. Busby also matched the physical description of the murderer Jones had given to the police the night of the murder-young, about Jones's size, and white. Unknown to Jones at the time, other information developed by a post-trial investigator would further implicate Busby.

On December 4, 1988, the day after the murder, Jones called Elizabeth from the jail where he was being held and asked her to find out where Busby was on the night Lee was killed. Elizabeth called Busby's sister, who said that Busby had not spent the night at home and that she thought Busby had spent the night at a friend's house. When Elizabeth called that friend, however, he said Busby had not spent the night at his house. Jones relayed this information to his lawyer.

On January 10, 1989, Jones sent his attorney a note describing a conversation Elizabeth had told him she had with Busby prior to the Jones's family vacation the previous summer. Busby threatened to break into the Jones's house, go through Elizabeth's room, and steal something. When Elizabeth told him her home was "tight" and that he would not be able to break in, Busby responded that he knew how to get in. On January 12, 1989, Jones sent his lawyer a note from Elizabeth confirming this information. The note also indicated that Busby had sneaked through the Jones's chain link fence to tap on Elizabeth's window at least four times, and that she would sometimes let him in.

In late March or early April of 1989, Jones's lawyer told him that the prosecutor was threatening to increase the charge to first degree murder unless Jones pleaded guilty to second degree murder and accepted a ten-year sentence. Jones's lawyer said that he had told the prosecutor Jones would not plead guilty because he did not kill his wife. On June 1, 1989, the state filed an amended information charging Jones with first degree murder.

Jones urged his attorney to examine the physical evidence. Jones explained that the blood on his jeans could not have been Lee's because the side of the bathtub blocked his feet and legs from her. He believed the blood could only have come from his own hand wounds. Jones thought this would help his case because it was inconsistent with the state's theory that Jones was the murderer and that Lee's killer would necessarily have a great deal of her blood on him. Jones's lawyer wrote the prosecutor on March 8 and April 3, 1989 requesting to inspect all the physical items the police seized at the scene. However, Jones's lawyer did not examine the physical evidence until July 7, 1989, three days before the trial was to begin, and never tested the jeans.

After viewing the evidence, Jones's attorney told him on July 7, 1989 that there was no physical evidence of any significance. He did not tell Jones of the hairs found on Lee's hands and body, and he never had them tested. Jones asked how the investigation of Busby was proceeding, and his lawyer responded that there had been no investigation because he felt that Busby had an "ironclad alibi"-the police reports indicated that Busby was at home on the night of the murder, as did both Busby and his mother.

The jury found Jones guilty of first degree murder as charged. After the verdict, Jones's lawyer moved for a new trial based on "newly discovered evidence" Jones's new investigator had discovered implicating Busby in the crime. The investigator learned in an interview with Elizabeth that Busby had written Elizabeth numerous smutty letters containing crude remarks and sexual references to both her and her mother. Busby was aware that Jones and his wife routinely went dancing on Saturday nights. During October and November of 1988, Busby had visited Elizabeth at the Jones residence on at least six Saturday nights, always arriving past 9:00 p.m. while Jones and Lee were out dancing, and was familiar with every part of the house. On the day of the murder, Elizabeth had spoken with Busby and told him she would probably stay home while her parents went out dancing. During his visits, Busby would tease and torment Thomas, frequently growling at him to scare him. Thomas had reported similar growling on the night of the murder. Several keys had been stolen from Elizabeth's book bag while at school, including a key to the garage door found ajar on the night Lee was murdered, and Elizabeth suspected Busby had stolen them because he frequently took other articles from her book bag. The new investigator also discovered that Busby and a friend had been near the Jones's residence at 9:30 p.m. on the night of the murder, placing Busby within a one minute bicycle ride of the Jones residence roughly fifteen minutes before the murder. The court denied Jones's new trial motion.

Jones appealed his conviction to the Washington Court of Appeals asserting, among other arguments, that there was insufficient evidence to support his conviction and that the trial court abused its discretion in denying his motion for...