State v. Jones

• Decision Date: 05 May 2020
• Docket Number: DA 17-0571
• Citation: 462 P.3d 241 (Table),2020 MT 110 N
• Parties: STATE of Montana, Plaintiff and Appellee, v. Kenneth Wayne JONES, Defendant and Appellant.
• Court: Montana Supreme Court

462 P.3d 241 (Table)

2020 MT 110 N

STATE of Montana, Plaintiff and Appellee,

v.Kenneth Wayne JONES, Defendant and Appellant.

DA 17-0571

Supreme Court of Montana.

Submitted on Briefs: February 5, 2020

Decided: May 5, 2020

For Appellant: Chad Wright, Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Mary Leffers Barry, Deputy County Attorney, Billings, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion, shall not be cited, and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Defendant Kenneth Wayne Jones appeals from the July 31, 2017 Judgment of the Thirteenth Judicial District Court, Yellowstone County, following his convictions of incest and witness tampering. Jones argues that he received ineffective assistance of counsel (IAC) when his counsel disclosed to the State that he intended to argue the victim's conduct did not comport with what would be expected of a victim of incest. We affirm.

¶3 On July 11, 2016, Jones was charged with one count of incest, a felony, in violation of § 45-5-507, MCA, and one count of tampering with a witness, a felony, in violation of § 45-7-206, MCA. The charges were based on allegations that Jones repeatedly engaged in sexual intercourse with his daughter, E.J., from the time she was fourteen-years-old until she was sixteen-years-old, and that he threatened to harm E.J. if she disclosed the abuse.

¶4 On February 2, 2017, eleven days before trial was set to begin, the State gave notice of its intent to call Wendy Dutton as an expert witness to "educate the jury on counter-intuitive victim behaviors, including but not limited to recantation, cooperation with abuser and delayed disclosure." Counsel for the State acknowledged the disclosure was untimely, but explained that she had met with Defense Counsel earlier that day and was informed that Defense Counsel was likely to argue to the jury that E.J.'s conduct was uncharacteristic of a victim of incest, and that he would likely cross-examine E.J. about a recantation of an earlier report of abuse.

¶5 On February 8, 2017, the District Court held a status conference and offered Jones a continuance of trial as a potential remedy for the State's late disclosure of Dutton. After a recess in which Jones consulted with Defense Counsel, Jones confirmed his wishes to proceed to trial as scheduled. The District Court also asked Defense Counsel if he believed he was "making a good strategic decision with regard to [ ] Dutton, as far as interviewing her and not relying or attempting to hire your own expert?" Defense Counsel responded that he was "making a proper choice," and was prepared to go to trial and cross-examine Dutton. Dutton testified on the last day of trial.

¶6 Prior to Dutton's testimony, the State called several other witnesses. Dr. Cynthia Brewer testified that E.J. had presented to the Billings Clinic emergency room in June 2016 with a severe case of Type 1 herpes, a sexually transmitted infection for which Jones had also tested positive. E.J.'s sister, J.M.J., testified that Jones would often require E.J. to share a bed with him when they lived in Roundup, Billings, and later when they moved back to Arkansas. J.M.J. testified she observed Jones having intercourse with E.J. while the three of them were staying in a motel room in Arkansas. On another occasion while J.M.J. was staying in a camper with Jones and E.J., J.M.J. testified Jones and E.J. shared a bed and J.M.J. awoke to the camper rocking back and forth. J.M.J. described that she would sometimes hear "moaning" noises coming from Jones and the bed he was sharing with E.J. and that she could hear E.J. say, "Stop." J.M.J. also recalled hearing her father ask E.J., "Why are you tightening up?" E.J.'s mother, Laura, also testified that she observed E.J. sharing a bed with Jones. The State introduced letters that Jones had mailed to E.J. and the rest of the family in which he states he is disappointed in himself for his actions and apologizes for making "somebody that means more ... than anything" to him "[a]fraid ... or hate" him.

¶7 Jones argues on appeal that he received IAC when Defense Counsel revealed his "confidential defense trial strategy" to the State in the days leading up to trial, causing the State to secure an expert witness on child sexual abuse which prejudiced Jones at trial.

¶8 IAC claims are mixed questions of law and fact which we review de novo. Cheetham v. State , 2019 MT 290, ¶ 7, 398 Mont. 131, 454 P.3d 673 (citing State v. Hatfield , 2018 MT 229, ¶ 18, 392 Mont. 509, 426 P.3d 569 ).

¶9 A criminal defendant has the federal and state constitutional right to the effective assistance of counsel. Cheetham , ¶ 9 (citing U.S. Const. amend. VI, XIV ; Mont. Const. art. II, § 24 ). A defendant claiming IAC must show: (1) "that counsel's...