F ll.E.
IN CLERKS   O,tCI"'




  IN THE SUPREME COURT OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                 NO. 85236-7

                      Respondent,                    ENBANC

               v.
                                                     Filed     JUN 1 1 2015
LEROY A. JONES,

                      Petitioner.


       GORDON MCCLOUD, J.-Leroy Jones was convicted of second

degree assault for his role in a street fight involving five people. In a motion for

a new trial made shortly after the verdict and before appeal, he asserted that his

trial lawyer failed to interview and call certain eyewitnesses who were clearly

identified in discovery that the State provided. Jones argued that these failures

constituted ineffective assistance.

       To prevail on a claim of ineffective assistance of counsel, Jones must

establish both deficient performance and prejudice. Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.



                                         1
State v. Jones (Leroy A.), No. 85236-7



Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). He has done so. It

is clear that defense trial counsel's failure to interview three previously

identified and easily accessible eyewitnesses before trial constituted deficient

performance. This deficiency also caused prejudice: it deprived Jones of the

opportunity to develop a theory of the case that Jones was the victim rather than

the aggressor, and it deprived him of neutral bystander eyewitness testimony in

support of that theory. When considering the case as a whole, defense counsel

failed to provide the meaningful adversarial role that the Sixth Amendment to

the United States Constitution guarantees. Following Strickland, we must

reverse.

       Jones also argues that two prior Florida assault convictions should not

have been used to increase his sentence because they are not "comparable" (per

RCW 9.94A.525(3)) to second degree assault in Washington for "persistent

offender" sentencing purposes. The difference is that Florida courts reject the

defense of"diminished capacity" that Washington courts accept as a defense to

this specific-intent crime. Because this issue might arise again if there is a

retrial, we address it here also. Recently, in State v. Sublett, 176 Wn.2d 58, 88-

89, 292 P.3d 715 (2012) (plurality opinion), we held that a difference in the

availability of this particular defense-diminished capacity-is not relevant to


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State v. Jones (Leroy A.), No. 85236-7



whether the out-of-state conviction is "comparable" to an otherwise nearly

identical Washington crime. Thus, the trial court did not err in its sentencing

calculations.

                     FACTS AND PROCEDURAL HISTORY

      1.        Proceedings in the Trial Court

       Leroy Jones and Taurian Alford had a fight on a public street in

downtown Seattle on September 10, 2007. Three of Alford's friends joined

in the fray. There were several witnesses, including the other men in the fight.

They generally identified Jones as the aggressor and testified that he held a

knife. A jury convicted Jones of second degree assault.

       Right after the jury returned that verdict, however, appointed defense

counsel withdrew due to concerns about his own ineffectiveness. He realized

that he had failed to interview witness Lori Brown, who was clearly identified

in police reports. Brown was not called to his attention until a detective

testified at trial about his interview with Brown. 1 Shortly after withdrawal,

new defense counsel discovered a second witness, Michael Hamilton, who

was also clearly identified in pretrial discovery and whom defense trial



       1
        This detective's interview notes were never transmitted to the defense
(or the prosecutor). Verbatim Report of Proceedings (VRP) (Apr. 9, 2008) at
58-63.
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State v. Jones (Leroy A.), No. 85236-7



counsel also failed to interview.        It appears that the new lawyer found

Hamilton while simply reviewing discovery that was already in defense trial

counsel's possession.

       The new defense lawyer therefore moved for a new trial on the ground of

ineffective assistance of counsel. He argued, and presented written documents

showing, what Hamilton would have said. Clerk's Papers (CP) at 92. He

presented no evidence about why the original defense lawyer did not previously

interview Brown or Hamilton. The trial court entered findings of fact based on

the written materials, without an evidentiary hearing, and denied the motion.

       Jones had two prior Florida convictions for crimes that the trial court

deemed comparable to second degree assault. The court therefore sentenced

Jones to life without parole under the Persistent Offender Accountability Act

(POAA), RCW 9.94A.570.

       2.     Trial Testimony

       Neither Jones nor Alford-the men who fought initially-testified at

trial. According to the testimony of other witnesses, at some point one of the

men chased the other and tackled him at a bus stop where several people were

standing. Three of Alford's friends eventually joined the fight; all of them.

were much younger than Jones. Jones held a knife sometime during the


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State v. Jones (Leroy A.), No. 85236-7



fight-the exact time is in dispute. 2 The younger men held Jones down and

punched him while restraining Jones's hand holding the knife. Several people

called 911, and when police arrived the younger men were restraining Jones,

who still held the knife. The King County prosecutor charged Jones with

second degree assault with a deadly weapon.

         According to four bystanders who did not witness the fight, Alford

approached them and said that he was being chased and. that someone was

trying to stab him. Somewhat inconsistently, all four bystanders testified that

Jones was the aggressor and had a knife either while he was chasing Alford

or while he and Alford were on the ground.

         Alford's cousin testified, similar to some of the bystanders, that Jones

was the aggressor and was attacking Alford when he and two other friends

came upon Jones and Alford. He also stated that Alford's three friends kicked

and punched Jones to protect Alford and to restrain Jones's hand holding the

knife.




         2
         The defense theory was that Jones held the knife only after Alford's
friends joined the fight. VRP (Aug. 21, 2014) at 48, 72. The State's witnesses
were inconsistent about when they saw the knife in Jones's hand. Id. at 47-
48,62.
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State v. Jones (Leroy A.), No. 85236-7



      On the other hand, defense witness Mark Forbes-another neutral

bystander-testified that he stood about 15 feet away from Jones and Alford

when one of them "swung [his sweater] at the other gentleman" before they

started punching each other and wrestling on the ground. Verbatim Report of

Proceedings (VRP) (Apr. 14, 2008) at 67. Forbes also testified that he saw

three other men "running down and they started kicking the gentleman on the

ground and punching him, and they were very violent about it, too." !d. at 69.

Critically, Forbes further testified that Jones drew the knife to protect himself

after the other three men joined the fight. !d. at 70.

       There was another witness listed in discovery: Lori Brown. CP at 215.

Defense counsel did not notice that, though, until a detective mentioned her

name during testimony in the middle of trial. Defense counsel moved for a

mistrial on the ground that the prosecutor did not provide the detective's

interview report; instead, the trial court gave him a three day recess.

       Brown then testified for the State. But, notably, she said that Alford

chased Jones. VRP (Apr. 14, 2008) at 23. She also testified that she never

saw a weapon, that she didn't hear a reference to a knife until Alford's three

friends joined the fight, and that "I wasn't clear who had a knife." !d. at 18-

20.


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State v. Jones (Leroy A.), No. 85236-7



      The jury convicted Jones of the assault charge.

      3.     Motion for a New Trial

      As discussed above, Jones's attorney withdrew after trial over concerns

that he had been ineffective. CP at 87, 131. Jones's replacement counsel

reviewed the discovery and found the 911 dispatch report that named not just

Brown, whom trial counsel already realized he had overlooked, but also a

second witness who Jones's original attorney failed to interview: Hamilton.

       New counsel then interviewed Hamilton. CP at 218-36. According to

the transcript of the defense interview filed with the trial court in support of

the motion for a new trial, Hamilton said that he was at the bus stop when the

fight occurred and that he was standing very close to Alford and Jones. He

was certain that the younger man (Alford) tackled the older man (Jones) and

started beating him before the young man's friends joined in. Hamilton said,

"I did not see the actual extraction of the knife. I did see it in his hand after

he had been tackled and after [Alford] started hitting him."         CP at 223.

Hamilton also stated, "[W]hat I saw was guy number two [Alford] tackled guy

number one [Jones], then the knife coming out, subdued the knife [in the hand

of guy number one] .... Guy number three came up, clocked him, a beating

ensued, and I called 911 and went away on the bus." CP at 226. Hamilton


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State v. Jones (Leroy A.), No. 85236-7



believed that the police were bound to get the wrong idea when they arrived

and would think that the young men were restraining an armed attacker. CP

at 225. Hamilton believed that the older man (Jones) was acting in self-

defense. Hamilton also said that he was with another man who would have

testified to the same thing, but because no one contacted him sooner, he could

no longer remember the other man's name. According to police reports filed

in support of the new trial motion, Hamilton's name and phone number were

recorded on a 911 dispatch report provided to the prosecutor and to the

defense through discovery, but neither party contacted Hamilton before the

trial.

         Finally, Jones's new lawyer filed a declaration stating that the original

defense lawyer failed to interview Brown and Hamilton. CP at 131-35.

         Jones argued that trial counsel's failure to interview Brown and Hamilton

and his failure to call Hamilton to testify constituted ineffective assistance. The

trial court concluded that the failure to interview Brown before trial was not

prejudicial because Brown ultimately testified at trial. CP at 888. The trial

court also concluded that the failure to interview Hamilton was not prejudicial

because "Hamilton's proposed testimony is not exculpatory because it

contradicts the defense position at trial. At trial defendant testified he drew


                                         8
State v. Jones (Leroy A.), No. 85236-7



the knife in self-defense after he was assaulted by Alford and his two friends."

CP at 889. The trial court clearly erred on this point: Jones did not testify at

trial.

         4.    Court of Appeals Decision

         The Court of Appeals affirmed and used the same reasoning as the trial

court. State v. Jones, noted at 157 Wn. App. 1052, 2010 WL 3490255. It did

not address whether the failure to interview these identified witnesses

constituted deficient performance. 2010 WL 3490255, at *3. Instead, the Court

of Appeals found that the failure to contact Hamilton did not cause prejudice,

noting that his testimony "would not likely have changed the outcome of the

trial because it contradicted four other eyewitnesses." !d. at *3-4. Notably,

neither the trial court nor the Court of Appeals made an adverse credibility

finding about Hamilton.

         Contradictorily, the Court of Appeals ruled that the failure to contact

Brown was not prejudicial-she actually testified and her testimony did not

affect the outcome because it "was similar to that of the other eyewitnesses."

!d. at *4. Thus, in the appellate court's view, new evidence will not affect the

outcome if it is cumulative and will not affect the outcome if it is different.




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State v. Jones (Leroy A.), No. 85236-7




       5.     Remand for a RAP 9.11 Hearing

       Jones sought review in this court of the denial of his claim of ineffective

assistance of counsel regarding the two witnesses, the affirmance of the trial

court's ruling that his prior Florida felonies are comparable to Washington

assaults, and the rejection of his claim that the prior convictions should have

been proved to the jury beyond a reasonable doubt rather than to the judge. We

granted review on the first two issues. State v. Jones, 177 Wn.2d 1007, 300 P .3d

416 (2013).

       On April 10, 2014, we ordered a Rules of Appellate Procedure (RAP)

9.11 hearing and directed the trial court "to take additional evidence and to

make factual findings based on that evidence, to enable this court to determine

whether defense counsel provided ineffective assistance .... including but not

limited to:   (1) whether defense counsel's performance was deficient for

failure to interview witnesses; (2) why defense counsel did not interview all

the witnesses listed in the discovery; and (3) why defense counsel did not call

one of the witnesses listed in the discovery, Michael Hamilton, to testify."

       At the remand hearing, Jones's original defense counsel testified about

his failure to interview the two witnesses already discussed previously-


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State v. Jones (Leroy A.), No. 85236-7



Brown and Hamilton-and his failure to call Hamilton as a witness.        VRP

(Aug. 21, 2014) at 6-66.

       Defense counsel at the remand hearing then identified yet another

witness listed in discovery whom trial counsel had failed to interview: Sulva

Ooveda.     An incident report provided to Jones during discovery listed

Ooveda's name. CP at 216. Notably, the prosecutor interviewed her at the

beginning of trial and actually informed defense counsel that she might have

favorable evidence. Remand CP at 33-34; VRP (Aug. 21, 2014) at 27-28.

Despite this notification from the prosecutor, defense counsel still failed to

contact Ooveda. During the remand hearing, Jones's original defense attorney

noted that he asked his investigator to interview Ooveda before trial, but that

she failed to do so and he did not follow up. VRP (Aug. 21, 2014) at 26-28.

Defense attorney expert Richard Hansen testified that trial counsel's

performance was deficient and that it likely affected the outcome of the trial.

Id. at 70-108.

       The trial court also admitted other evidence, without objection,

confirming that trial counsel failed to interview Ooveda, Brown, and




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State v. Jones (Leroy A.), No. 85236-7



Hamilton. 3 Def. 'sEx. 2, at 5-7; Defs Ex. 4, at 2; Remand CP at 34-37; VRP

(Aug, 21, 2014) at 26-28, 33-36, 53, 111.

       With regard to witnesses Brown and Ooveda, the trial court found, "The

communication from [Deputy Prosecuting Attorney] Richey to [defense

counsel] piques curiosity and raises the inference that [Ooveda's] testimony

may have been helpful, and that an interview, albeit at the start of trial[,]

would occur." Remand CP at 34. And the trial court found that defense

counsel "testified that he was at a disadvantage not having [Brown's] witness

statement prior to trial," even though the incident report listed her name. ld.

Defense counsel offered no reasons for failing to interview these witnesses.

The trial court accordingly concluded that "[t]his failure to interview Brown

and 0[ o]veda, witnesses listed on the incident report, clearly is not objectively

reasonable" and that counsel's performance was therefore deficient. Id. at 35.

The trial court concluded, however, that this did not cause prejudice, "given

the testimony of the other State's witnesses who testified that the Defendant

Jones first introduced the knife." Id.




       3
       The State attached to its prehearing memorandum a transcript of
Hamilton's 911 call, in which Hamilton stated, "The lmife is in the hand of the
man being held down." Remand CP at 14.
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State v. Jones (Leroy A.), No. 85236-7



       With regard to witness Hamilton, the trial court found that transcripts

of Hamilton's posttrial defense interview and his 911 call were "unclear"

about when Jones wielded the knife and that "[b]oth transcripts show

Hamilton mixed up the parties, having the Defendant chased by the younger

man, rather than as the majority of witnesses testified." !d. at 36. The trial

court concluded that defense counsel's failure to call Hamilton to testify "is

not objectively unreasonable. This decision appears strategic in nature and

hence not deficient performance." !d. at 37. 4

                                   ANALYSIS

                            INEFFECTIVE ASSISTANCE

       I.     Standard of Review

       A claim that counsel was ineffective is a mixed question oflaw and fact

that we review de novo. Strickland, 466 U.S. at 698; In re Pers. Restraint of

Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).         "A defendant is denied

effective assistance of counsel if the complained-of attorney conduct (1) falls




       4
        Additionally, on a separate issue, the trial court found that defense
counsel, "in private discussions with his client he told Jones that a conviction
on the pending charges would be [a] 'third strike,' but also later in open court
he had agreed with the State that it would not be treated as such." Remand
CP at 39. The court found nothing in the record showing that these different
statements confused Jones about the fact that it was a three-strikes case. !d.
                                         13
State v. Jones (Leroy A.), No. 85236-7



below a minimum objective standard of reasonable attorney conduct, and (2)

there is a probability that the outcome would be different but for the attorney's

conduct." State v. Benn, 120 Wn.2d 631,663, 845 P.2d 289 (1993) (emphasis

omitted) (citing Strickland, 466 U.S. at 687-88). Thus, to prevail on a claim of

ineffective assistance of trial counsel, an appellant must show both deficient

performance and prejudice. Strickland, 466 U.S. at 687; Hendrickson, 129

Wn.2d at 77-78. To show prejudice, the appellant need not prove that the

outcome would have been different but must show only a "reasonable

probability"-by less than a more likely than not standard-that, but for

counsel's unprofessional errors, the result of the proceedings would have been

different. Strickland, 466 U.S. at 694; Hendrickson, 129 Wn.2d at 78.

       II.    Deficient Performance

       As discussed above, following the remand hearing, the trial court ruled

that trial counsel's failure to interview the witnesses identified in the police

reports "demonstrated a deficient performance using the Strickland standard."

Remand CP at 39; see also id. at 34-35.

       The facts certainly supported the trial judge's conclusion on this point. A

criminal defendant has a state and federal constitutional right to effective

assistance of counsel. Strickland, 466 U.S. at 686; State v. Tinkham, 74 Wn.


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State v. Jones (Leroy A.), No. 85236-7



App. 102, 109,871 P.2d 1127 (1994). To discharge this duty, trial counsel must

investigate the case, and investigation includes witness interviews. State v.

Ray, 116 Wn.2d 531,548,806 P.2d 1220 (1991) ("Failure to investigate or

interview witnesses, or to properly inform the court of the substance of their

testimony, is a recognized basis upon which a claim of ineffective assistance

of counsel may rest." (citing State v. Visitacion, 55 Wn. App. 166, 173-74,

776 P.2d 986 (1989))).

       Thus, failure to interview a particular witness can certainly constitute

deficient performance. Id. ("Failure to investigate or interview witnesses ...

is a recognized basis upon which a claim of ineffective assistance of counsel

may rest."); Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997) (failure to

investigate witnesses called to attention of trial counsel as important

constitutes ineffectiveness). It depends on the reason for the trial lawyer's

failure to interview.

       In this case, trial counsel offered absolutely no reason for failing to

interview these three witnesses. Remand CP at 3 5. With regard to Hamilton

in particular, the trial court ruled that the defense lawyer "does not recall" why

he failed to interview Hamilton and "does not provide any reason either

because it is clear from the incident report there was a 9-1-1 call from him."


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State v. Jones (Leroy A.), No. 85236-7



!d. at 36. The trial court then concluded that the failure to interview all

witnesses so identified was "deficient performance." !d. at 39.

       We agree. We can certainly defer to a trial lawyer's decision against

calling witnesses if that lawyer investigated the case and made an informed

and reasonable decision against conducting a particular interview or calling a

particular witness. See, e.g., State v. Hess, 12 Wn. App. 787, 788-90, 532

P.2d 1173 (1975) (decision not to subpoena potentially harmful witness was

justified); State v. Floyd, 11 Wn. App. 1, 2, 521 P.2d 1187 (1974) (decision

not to call alibi witness legitimate part of trial strategy). But courts will not

defer to trial counsel's uninformed or unreasonable failure to interview a

witness. See Ray, 116 Wn.2d at 548. As the United States Supreme Court

has explained, "[S]trategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation." Strickland,

466 U.S. at 690-91.

       On the other hand, we disagree with the trial court's conclusion on

remand that the failure to call Hamilton to testify was "not objectively

unreasonable." Remand CP at 37. Specifically, we disagree with the trial

court's conclusion that the failure to call Hamilton to testify, after failing to


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State v. Jones (Leroy A.), No. 85236-7



interview him, was "strategic in nature." ld. This is because defense trial

counsel testified that when he prepared for trial and failed to interview Hamilton,

he "did not have any idea what Mr. Hamilton would have said about this case."

VRP (Aug. 21, 2014) at 41. That is not strategic decision-making.

       The trial court, however, relied on trial counsel's posttrial remand

hearing testimony that when he eventually read the transcript of Hamilton's

911 call, after trial, it made him think that Hamilton probably would not have

offered any helpful testimony. But trial counsel made this conclusion after

trial, in hindsight. VRP (Aug. 21, 2014) at 42, 45, 48-49, 50-52. Strategic

decisions are those made before, not after, taking the challenged action. Avila

v. Galaza, 297 F.3d 911,920 (9th Cir. 2002) ('"[C]ounsel can hardly be said

to have made a strategic choice when s/he has not yet obtained the facts on

which a decision could be made."' (alteration in original) (quoting Sanders v.

Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994))); see Strickland, 466 U.S. at 690-

91 ("[S]trategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments

support the limitations on investigation."). Trial counsel did not make an

informed decision against interviewing Hamilton, and he therefore could not




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State v. Jones (Leroy A.), No. 85236-7



have made a strategic-i.e., an informed-decision against calling Hamilton

as a witness.

       III.     Prejudice

       We therefore come to the question of prejudice. We disagree with the

trial court's conclusion on this point. In our view, there is certainly a reasonable

probability that the failure to interview or call witnesses affected the trial's

outcome.

       We start with defense counsel's failure to interview Hamilton. On the

one hand, Hamilton would have testified that the young man-Alford-chased

and tackled Jones, not the other way around.         This testimony would have

corroborated Brown's testimony to the same effect. VRP (Apr. 14, 2008) at

23. This is important. See Howardv. Clark, 608 F.3d 563, 573 (9th Cir. 2010)

("Although Hernandez positively identified Howard as the shooter, ifRagland

had testified otherwise, thereby buttressing Fontaine's trial testimony, some

jurors might well have had a reasonable doubt as to Howard's guilt."). And

Hamilton would have provided the very defense-favorable testimony that Jones

was the victim and that Hamilton called 911 to report what he saw because he

knew that another bystander might think that because Jones had the knife, he

was the aggressor. CP at 225, 233; Remand CP at 36. Further, although the


                                         18
State v. Jones (Leroy A.), No. 85236-7



trial court thought that Hamilton was confused because his recollection differed

from the testimony of other witnesses, there was no finding that Hamilton was

lying or unbelievable. The difference is critical. State v. West, 139 Wn.2d 37,

43-44, 983 P.2d 617 (1999); see Howard, 608 F.3d at 573 ("Whatever the

challenges to Ragland's credibility, his testimony might well have tipped the

balance in Howard's favor. At the very minimum, if Ragland was ready and

willing to testify as to Howard's innocence, and Howard was deprived of such

testimony because of his attorney's shoddy investigation, our confidence in

the jury's verdict would be significantly undermined."). In fact, unlike many

of the State's witnesses, Hamilton was a neutral observer with no relationship

to Jones or Alford.

       On the other hand, Hamilton's testimony contradicted Jones's chosen

theory of self-defense by placing a knife in Jones's hand during his fight with

the younger man, and before rather than after the others joined the fight, which

was the defense theory of the case. CP at 225-26, 888-89; Remand CP at 36.

But defense counsel adopted and used that theory without knowing that

Hamilton's testimony existed. VRP (Aug. 21, 2014) at 62. If he had known

before trial about Brown's statement that she heard a reference to a knife and

saw jabbing motions after Alford's friends joined the fight, and had had the


                                         19
State v. Jones (Leroy A.), No. 85236-7



chance to consider it along with Hamilton's testimony that the knife appeared

before the friends joined the fight, trial counsel might not have been boxed into

that theory. See Johnson v. Baldwin, 114 F.3d 835, 839-40 (9th Cir. 1997)

(deficient performance caused prejudice when trial counsel failed to interview

petitioner's girlfriend or grandmother because counsel would have learned

that petitioner's alibi was false and pursued a different trial strategy); see also

Rios v. Rocha, 299 F.3d 796, 808, 812 (9th Cir. 2002) (defense counsel's

"failure, in a first-degree murder trial, to interview more than one witness,

when there were dozens of potential eyewitnesses available, before deciding

to abandon a potentially meritorious defense constituted constitutionally

deficient    performance";      defense        counsel's   decision   to   present

"unconsciousness" defense as opposed to a misidentification defense was

prejudicial because counsel failed to interview and call five eyewitnesses to

testify who would have each stated that Rios was not the shooter).

       One final consideration in the prejudice inquiry regarding Hamilton is

whether calling him to testify might have resulted in any other adverse

consequences to Jones. The State argues that if Hamilton had testified, then

it could have introduced Jones's pretrial statement that it now calls




                                          20
State v. Jones (Leroy A.), No. 85236-7



inculpatory. 5 But before trial, the defense characterized this statement as

favorable to the defense and the State moved-successfully-to exclude it.

Given the State's pretrial efforts to exclude this statement, we are skeptical

about its new, postremand position that the statement was more helpful than

hurtful to the State.

       Then there is witness Brown. Although the jury had an opportunity to

consider Brown's testimony, Jones's trial counsel explained that if he had

known about her testimony before trial, he would have made it the centerpiece

of his case and the focal point of cross-examination of other witnesses. VRP

(Apr. 10, 2008) at 15.

       Finally, we consider witness Ooveda. The prosecutor specifically told

trial counsel on the first day of trial, after interviewing Ooveda, that she may

have exculpatory information. VRP (Aug. 21, 2014) at 27-28. Defense counsel

still failed to find out what infonnation she might have provided.

       We cannot avoid the conclusion that there is a reasonable probability

that the failure to interview and to call Hamilton affected the outcome of the




       5
        Jones's statement says, "They sold me some bull shit dope and I went
fighting for my money. They jumped me when I was fighting with the young
one. I bought $10.00 rock ofbullshit. I was trying to stab him because three
of these guys jumped me. I was defending myself." State's Ex. 8.
                                         21
State v. Jones (Leroy A.), No. 85236-7



trial. This case involves a credibility contest between the State's witnesses and

Jones's witness. Although the State's witnesses would still have outnumbered

Jones's witnesses, the jury would have had the opportunity to weigh the

credibility of two witnesses-rather than just one-claiming that Alford chased

after Jones against five witnesses who testified for the State that Jones was the

aggressor. There is a reasonable probability that this affected the outcome. See

Avila, 297 F.3d at 918-23 (counsel's failure to interview eight additional

eyewitnesses who would have testified in an attempted murder trial that the

defendant was not the shooter was prejudicial even though counsel presented

three eyewitnesses who corroborated the defendant's testimony that he was

not the shooter). Further, Hamilton's testimony tends to bolster Forbes's

credibility and, concomitantly, diminish the credibility of the State's

witnesses who testified to the contrary. There is a reasonable probability that

this would have affected the outcome. See Nealy v. Cabana, 764 F .2d 1173,

1179 (5th Cir. 1985). And although Hamilton's account about the time that the

knife appeared seems to conflict with Forbes's and Brown's accounts,

Hamilton's testimony would have corroborated Forbes's testimony that Jones

acted in self-defense. There is a reasonable probability that this would have

affected the outcome. See Howard, 608 F.3d at 573 (even though State's


                                         22
State v. Jones (Leroy A.), No. 85236-7



witness identified petitioner as the shooter, testimony from surviving victim that

he could not identify petitioner as the shooter would have buttressed another

witness's trial testimony, possibly creating reasonable doubt about

petitioner's guilt). The failure to interview Brown and Ooveda compounds

the prejudice.

       Thus, counsel's unexplained failure to interview clearly identified and

accessible witnesses undermines our confidence in the jury verdict rejecting

Jones's self-defense claim. We therefore reverse the appellate court's decision

that Jones failed to prove ineffective assistance of counsel.

       IV.    The Availability of a Diminished Capacity Defense in
              Washington, but Not in Florida, Does Not Affect Our
              Comparability Analysis

       To determine whether a prior out-of-state conviction counts as a strike

under Washington's POAA, the court must determine ifthere is a Washington

offense to which the out-of-state conviction is "comparable."               RCW

9.94A.525(3); State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999).

The State bears the burden of establishing the comparability of the out-of-state

convictions. Ford, 137 Wn.2d at 479-80. The court compares the elements

of the foreign crime with the elements of the purportedly comparable

Washington crimes. !d.


                                         23
State v. Jones (Leroy A.), No. 85236-7



      If the elements differ, the sentencing court can, in some cases, look at

portions of the record of the prior proceeding to see if the conduct of which

the defendant was convicted was identical to what is required for a comparable

Washington conviction; but the portion of the foreign record that the

Washington court can consider is very limited. !d. The sentencing court can

look at the charging instrument from the foreign proceeding, but it cannot

consider "facts and allegations contained in [the] record of prior proceedings,

if not directly related to the elements." Id. at 480 (citing State v. Morley, 134

Wn.2d 588, 606, 952 P.2d 167 (1998)). This limitation is compelled by not

just statutory interpretation but also constitutional concerns. See Shepard v.

United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). As

this court explained in In re Personal Restraint of Lavery, 154 Wn.2d 249,

258, 111 P.3d 837 (2005):

             Any attempt to examine the underlying facts of a foreign
       conviction, facts that were neither admitted or stipulated to, nor
       proved to the finder of fact beyond a reasonable doubt in the
       foreign conviction, proves problematic. Where the statutory
       elements of a foreign conviction are broader than those under a
       simqar Washington statute, the foreign conviction cannot truly
       be said to be comparable. [6]
       6
         In this case, the elements of the prior Florida assault convictions are
practically identical to the elements of second degree assault in Washington.
Under Fla. Stat. Ann. 784.021(1)(b), aggravated assault was defined as "an
assault with intent to commit a felony."              Under Fla. Stat. Ann.

                                         24
State v. Jones (Leroy A.), No. 85236-7




The defenses, however, differ. Assault is a specific intent crime. Diminished

capacity is a defense to a specific intent crime in Washington. Id. at 255-56.

Diminished capacity is not a defense in Florida. See, e.g., Evans v. State, 946

So. 2d 1, 11 (Fla. 2006); Chestnut v. State, 538 So. 2d 820, 820 (Fla. 1989).

       In Sublett, however, this court held that the availability of the defense of

diminished capacity in Washington, but not in the foreign jurisdiction, does not

prevent two crimes from being "comparable." 176 Wn.2d at 88-89 (plurality

opinion). Sublett did not discuss the role of other defenses in making this

determination-but as to the defense of diminished capacity, the one at issue

here, it stands as controlling precedent.

                                 CONCLUSION

       Defense trial counsel's failure to investigate and to interview easily

identified, available eyewitnesses, without a legitimate tactical reason,

constitutes deficient performance and caused prejudice in this case. With regard

to sentencing, Sublett controls. It held that if the elements of a Washington



784.045(1)(a)(2), "a person commits aggravated battery who, in committing
battery uses a deadly weapon." In Washington, under RCW 9A.36.021(1),
"A person is guilty of assault in the second degree if he or she, under
circumstances not amounting to assault in the first degree: . . . (c) Assaults
another with a deadly weapon; or ... (e) With intent to commit a felony,
assaults another."
                                         25
State v. Jones (Leroy A.), No. 85236-7



cnme and a foreign pnor conviction are the same, then the cnmes are

comparable, even if the defense of diminished capacity is unavailable in the

foreign jurisdiction. Jones's prior Florida assault convictions are comparable to

second degree assault convictions in Washington. We therefore reverse Jones's

conviction and remand for a new trial.




                                         26
State v. Jones (Leroy A.), No. 85236-7




WE CONCUR:




                                         27
State v. Jones (Leroy A.)




                                    No. 85236-7




      STEPHENS, J. (concurring/dissenting)-The benchmark for judging an

ineffective assistance of counsel claim is whether counsel's conduct so undermined

the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail, the defendant must show that (1)

counsel's representation was deficient and (2) the defendant was prejudiced by

counsel's deficient performance. Statev. Humphries, 181 Wn.2d 708,720,336 P.3d

1121 (2014). Because Leroy Jones cannot show prejudice from his trial counsel's

failure to call certain witnesses, I would affirm the lower court and uphold Jones's

conviction. 1

       A reviewing court need not address whether counsel's performance was

deficient if it can first say the defendant was not prejudiced. In re Pers. Restraint of

       1
        I have no quarrel with the majority's resolution of the comparability sentencing
issue and join its opinion on that point.
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992) (citing Strickland, 466 U.S. at

697). Thus, I will assume without deciding that Jones's counsel's choice not to call

certain witnesses demonstrated defective performance and focus this discussion on

why I believe the majority misapplies Strickland's prejudice standard.

       The majority reverses Jones's conviction based on its view of a reasonable

probability that the defense strategy would have changed had counsel interviewed

three witnesses before trial-Michael Hamilton, Lori Brown, and Sulva Ooveda. 2 I

am concerned that the majority's test for determining prejudice expands the use of

ineffective assistance claims to overturn convictions in Washington State. It is not

enough to show that trial errors had some conceivable effect on the outcome of the

proceeding, as not every error that could have influenced the outcome undermines

the reliability of the result of the proceeding. Strickland, 466 U.S. at 693. Nearly

every deficient act or omission would meet this low standard. Id. But, a material

error that impairs the presentation of the defense does not justify a new trial unless

it is sufficiently serious to call into question the validity of the proceeding. !d.

       To understand why counsel's failure to call additional witnesses does not

justify a new trial here, it is important to review some key facts. Jones was convicted

of second degree assault with a deadly weapon based on a fight he had with Taurian

       2
         It does not appear that Jones's argument of ineffective assistance of counsel is as
broad as the majority's holding. Jones initially claimed error for trial counsel's failure to
interview Brown and Hamilton. See Am. Pet. for Review at 1-11. In his supplemental
brief following the reference hearing, he limits his claim to the failure to interview and call
Hamilton. Second Suppl. Br. of Pet'r at 8-18. He has never asserted prejudice from the
failure to interview Ooveda.

                                              -2-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




Alford and three other men in downtown Seattle on September 10, 2007. State v.

Jones, noted at 157 Wn. App. 1052, 2010 WL 3490255, at *1. When he was

arrested, Jones waived his Miranda 3 rights and stated to police:

      They sold me some bullshit dope and I went fighting for my money. They jumped
      me when I was fighting with the young one. I bought $10.00 rock ofbullshit. I was
      trying to stab him because three of these guys jumped me. I was defending myself.

State's Ex. 8.

       Based on the "I went fighting" statement and other conversations with Jones,

defense counsel built his case on self-defense. Verbatim Report of Proceedings

(VRP) (Aug. 21, 2014) at 56-57. Defense counsel stated that the critical issue for

Jones's defense was when the knife was produced, id. at 57; he argued that Jones did

not pull out the knife until Alford's friends joined in the fight and he had to defend

himself against four men, VRP (Apr. 14, 2008) at 108. The State presented five

witnesses who all testified that Jones was the aggressor but placed the knife in

Jones's hand at different times-some while Jones was chasing Alford, some after

they began fighting. Jones, 2010 WL 3490255, at* 1. Defense Counsel stated at the

reference hearing that he interviewed "around eight eyewitnesses," but could find

only one who placed the knife in Jones's hand after Alford's friends joined the

fight-Mark Forbes. VRP (Aug. 21, 2014) at 11. Forbes agreed that Jones was the

initial aggressor but critically placed the knife in Jones's hand after Alford's three

friends jumped in, "to protect himself." VRP (Apr. 14, 2008) at 69-70. By the


       3
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                             -3-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




beginning of trial on April3, 2008, defense counsel had also been alerted to another

witness whose contact information had been in the 911 record and whose testimony

may have been exculpatory-Ooveda. VRP (Apr. 3, 2008) at 5. Defense counsel

attempted to contact her pretrial many times, but she never responded. VRP (Apr.

3, 2008) at 5; see also VRP (Aug. 21, 2014) at 26, 59. State witness Brown, who

was not interviewed until midtrial and testified that she never saw the knife, stated

she thought it was Alford who chased Jones.            VRP (Apr. 3, 2008) at 18-23.

Recognizing he had failed to interview Brown before trial, defense counsel withdrew

immediately after the guilty verdict due to concerns about the effectiveness of his

representation.4

       New defense counsel moved for a new trial based on ineffective assistance of

counsel for failure to contact Brown and another witness, Hamilton, whose name

and phone number were in the discovery file based on Hamilton's 911 call. New

defense counsel interviewed Hamilton, who stated that Jones had the knife in his

hand before the three other men jumped into the fight. He further indicated he

thought Jones was trying to defend himself after all the men began beating him.

Also, contrary to some other witness testimony, Hamilton was emphatic that it was

Alford who was the aggressor.




       4
          Brown's name was in the police reports, but the investigating detective disclosed
at trial that his interview notes were never transmitted to the defense or the prosecutor.
VRP (Apr. 9, 2008) at 58-63.

                                            -4-
    State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




          The trial court denied the defense motion for a new trial, concluding, inter

    alia, that the failure to call Hamilton and Brown did not constitute ineffective

    assistance of counsel. Clerk's Papers (CP) at 890 (Conclusion of Law (A)(2)). The

    court held that Hamilton's testimony would not have been exculpatory, and Brown

    in fact testified at trial, so failing to call these witnesses was not prejudicial. Id. On

    appeal, the Court of Appeals for Division One agreed that the failure to contact

    Hamilton and Brown did not constitute ineffective assistance of counsel. Jones,
#

    2010 WL 3490255, at *3-4. The court found that Brown's testimony was "similar

    to that of the other eyewitnesses, and was not exculpatory." !d. at *4. Regarding

    Hamilton's interview, the court noted that his testimony "would not likely have

    changed the outcome of the trial because it contradicted four other eyewitnesses. "

    Id. at *3-4. Further, the court found that Hamilton's testimony-that he saw Jones

    display a knife when the fight started and before the other men joined the fight-

    was actually detrimental to the defense. !d. at *4.

           After granting review, this court ordered a RAP 9.11 evidentiary hearing on

    the ineffective assistance claim. See Remand CP at 33-40 (Findings of Fact). The

    trial judge conducted the hearing, at which the original defense counsel testified

    about Hamilton and Brown, as well as the witness defense counsel was unable to

     contact before trial-Ooveda. The court concluded that the failure to call Brown

     and Ooveda was deficient but did not prejudice Jones. !d. at 39. Specifically, the

     court found that whether there is a reasonable possibility the result of the trial would



                                                -5-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




have been different hinged on whether Ooveda's hypothetical testimony would have

bolstered Forbes's testimony and created a reasonable doubt as to Jones's guilt. Id.

at 35. The court was "not persuaded of this probability given the testimony of the

other State's witnesses who testified that the Defendant Jones first introduced the

knife." !d. (emphasis omitted). As to Hamilton, the court concluded that Hamilton

was confused about when Jones wielded the knife and therefore would not have

helped counsel's self-defense theory. The court also noted that "Hamilton mixed up

the parties, having the Defendant chased by the younger man, rather than as the

majority of witnesses testified." Id. at 36 (Finding of Fact (B)(2)). Thus, the failure

to call him was not unreasonable. Id. at 37 (Finding of Fact (B)(4)).

       The majority concludes that defense counsel's failure to call all three

witnesses resulted in representation that "failed to provide the meaningful

adversarial role that the Constitution guarantees." Majority at 2. I disagree. The

majority's analysis relies too much on conjecture. In State v. Crawford, this court

held that in order for a "defendant to affirmatively prove prejudice," the defendant

must demonstrate a reasonable probability that "but for" counsel's error the outcome

at trial would be different. 159 Wn.2d 86, 102, 147 P.3d 1288 (2006) (emphasis

omitted). The majority today seems to advance the view of the dissent in Crawford

that "[b]ut for his counsel's ineffective representation, a series of events did not

occur, each of which might have changed the outcome." Id. at 107 (C. Johnson, J.,

dissenting). But, the majority in Crawford took special care to refute this expansion



                                           -6-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




of the Strickland standard; "[t]he dissent concludes a series of events occurred that,

but for the ineffective representation by Crawford's counsel, might have changed the

outcome of Crawford's case. However, we reiterate that the test requires more than

the existence of events that might have changed the outcome." Id. at 102 (some

emphasis added) (citation omitted). Following the majority rule in Crawford, the

question here is whether the events of this case show that but for trial counsel's

failure to interview or call these witnesses, there is a reasonable probability not that

the defense strategy would have changed, but that Jones would not have been

convicted.

       The majority conflates the level of evidence needed to reach a "reasonable

probability" that the outcome would change with how drastic the potential change

to that outcome must be. While it is true that the Strickland prejudice standard is

lower than a more-probable-than-not standard, 466 U.S. at 693; majority at 14, the

difference is "slight" and only matters in the "'rarest case."' Harrington v. Richter,

562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (quoting Strickland, 466

U.S. at 697).    The likelihood of a different result must be substantial, not just

conceivable. Strickland, 466 U.S. at 693. Even if a defendant shows that particular

errors of counsel were unreasonable, he must show those errors "actually had an

adverse effect on the defense." !d. (emphasis added).          In other words, merely

pointing to unreasonable errors that might have affected the defense is not enough;

the defendant must affirmatively show that counsel's errors had an adverse effect on



                                           -7-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




the defense's case that would create a reasonable doubt as to the defendant's guilt.

Id. at 695.

       In finding sufficient prejudice to reverse the appellate court's decision, the

majority suggests five different ways in which trial counsel's failure to interview or

call these witnesses was prejudicial. First, counsel would not have been "boxed

into" his theory of self-defense had he interviewed Brown and Hamilton because

together, their accounts may have changed his trial strategy to say that Jones was the

initial aggressor. Majority at 19. Second, the jury would have been able to weigh

two witnesses, rather than one, claiming Jones was the initial aggressor, against five

for the State. Id. at 21. Third, Hamilton's "testimony tends to bolster Forbes's

credibility and, concomitantly, diminish the credibility of the State's witnesses who

testified to the contrary." Id. at 22. Fourth, despite Hamilton's account about the

knife conflicting with both Forbes's and Brown's account, Hamilton's testimony

still would have corroborated Forbes's view that Jones acted in self-defense. Id. at

22. And fifth, Ooveda's unknown testimony may have been exculpatory. Id. at 22.

       This list of possibilities requires too much conjecture to make the needed

showing of prejudice.      Certainly, aspects of Hamilton's testimony could have

favored the defense. In his taped interview, Hamilton said it was Alford who chased

and tackled Jones, rather than Jones chasing Alford. Def.'s Ex. 7, at 8. He even

went so far as to say that he was worried the police would get the "wrong idea"




                                           -8-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




because "[i]t was going to look like two guys[SJ subdued a man with a knife. Those

are not the circumstances. That is not what I witnessed. I witnessed more of a

selfdefense." Id. But, the majority reads too much into Hamilton's account in

concluding that if he had known about Hamilton's testimony, defense counsel might

not have been "boxed into" his theory of self-defense. Majority at 19-20. It was not

the lack of Hamilton's testimony that boxed defense counsel into a self-defense

theory, it was his client's "I went fighting" statement, which directly contradicts

Hamilton's account. State's Ex. 8.

         Indeed, defense counsel stated at the RAP 9.11 hearing that had he

interviewed Hamilton or Brown before trial and received the same information, he

would not have acted differently because he did not think Jones had much of a choice

of defense. VRP (Aug. 21, 2014) at 51, 57-58. 6 In explaining why, defense counsel

noted that based on the defendant's own statements, the critical issue at trial was

"[w]hen Mr. Jones had the knife." Id. at 57. Hamilton's testimony put the knife in

Jones's hand when the fight started, not after the other men jumped in the fray.

Def.'s Ex. 7, at 6. Defense counsel felt that because Hamilton clearly placed the

knife in Jones's hand from the outset, his testimony would have been detrimental to

         5
             It is undisputed that three people actually joined in. Jones, 2010 WL 3490255,
at *1.
         6When defense counsel was made aware of Brown's statement to police, he
believed the statement could be exculpatory. VRP (Apr. 10, 2008) at 6. He thought it
could be important because it was "consistent with [his] basic theory of defense, which is
that the knife allegedly wielded by Mr. Jones was not in evidence until he was under attack
... by ... all of the young men." !d. After he interviewed and cross-examined Brown
during trial, he said her testimony would not have changed his trial strategy and that it was
"[n]ot as significant as [he] would have liked." VRP (Aug. 21, 2014) at 59-60.

                                              -9-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




the defense. VRP (Aug. 21, 2014) at 51, 58. This strongly suggests that reasonable

counsel may not have felt free, considering all the evidence, to explore the majority's

suggested potential defenses based on these witness's testimony, when the State
could respond with Jones's own statement, "I went fighting." State's Ex. 8.

       The majority is "skeptical" that had Hamilton's testimony been available, the

State would have changed its trial strategy of moving successfully to exclude the "I

went fighting" statement. 7 Majority at 20-21. The State however, still could have

offered the statement at trial and likely would have if the defense had attempted to

assert that Jones was not the aggressor but was instead running from Alford. ER

80l(d)(2). Defense counsel admitted that he knew the statement would have been

admissible before the trial began. VRP (Aug. 21, 2014) at 56.

          While the majority emphasizes the benefit to Jones of having two defense

witnesses (Forbes and Hamilton), rather than one supporting a self-defense theory,

this must be measured in light of the strength of the State's case. In re Pers. Restraint

ofElmore, 162 Wn.2d 236, 253, 172 P.3d 335 (2007) (quoting In re Pers. Restraint

of Davis, 152 Wn.2d 647, 722, 101 P.3d 1 (2004)).               The State presented five


          7
          Before trial, defense counsel characterized this statement as favorable to the
defense. Majority at 20. The prosecutor objected to its introduction, apparently because it
showed the victim was associated with drug dealing. However, at the pretrial hearing,
State's counsel clarified that "what we're seeking to exclude is not necessarily [the fact
that there was drug dealing], but eliciting that fact from witnesses who don't have personal
knowledge of it but may have heard it from somebody else .... So if the defendant wants
to state that, I'm not trying to exclude that. What I'm trying to exclude is an inquiry by the
defense for the purpose of implying to the jury that this happened when there's not a good-
faith basis to believe that a witness had any personal knowledge of that." Def.'s Ex. 2, at
 14-15.

                                            -10-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




witnesses who stated that Jones was the aggressor. Hamilton believed it was Alford

who pursued Jones. While the State's witnesses differed about the timing of the

knife's appearance, all agreed that it was in Jones's hand before Alford's three
friends arrived.    Hamilton concurred.       The State's case was strong without

considering Hamilton's testimony. While it might have been weakened slightly by

Hamilton's testimony that Jones acted in self-defense, this is not enough to

demonstrate prejudice under the Strickland standard.

       The majority also opines that Hamilton's testimony might have bolstered

defense witness Forbes's credibility and concomitantly called into question the

credibility of the State's witnesses. Forbes testified that Jones seemed to be acting

in self-defense and stated that Jones pulled out the knife after Alford's friends joined

in the fight. While Hamilton's testimony would have bolstered Forbes's self-defense

testimony, Hamilton clearly stated that Jones pulled out the knife before Alford's

friends joined in. Def.'s Ex. 7, at 8. Thus, the benefit of having a second witness

support a self-defense theory must be balanced against presenting contradictory

evidence as to when Jones held the knife, which was the key question in this case

based on Jones's own statement, "I went fighting for my money." State's Ex. 8.
       Even if Hamilton's statements would have bolstered Forbes's testimony, his

testimony would not have provided any new information that the jury had not

already considered. Generally, a claim of failure to interview a witness cannot

establish ineffective assistance when the person's account is otherwise fairly known



                                           -11-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




to defense counsel. Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001). Jones

has not identified any information provided by Hamilton that had not already been

obtained from other witnesses. Brown testified that it was Jones who was chased by

Alford. VRP (Apr. 14, 2008) at 23. Several of the State's witnesses testified that

Jones pulled the knife before Alford's friends arrived. Jones, 2010 WL 3490255, at

*1. And Forbes testified that Jones acted in self-defense. VRP (Apr. 14, 2008) at

69-70. Although Hamilton's account may have provided a different voice-perhaps

a highly credible one-he would have spoken to facts that were already before the

jury for its consideration.

        Finally, the majority believes that because "[t]he prosecutor specifically told

trial counsel on the first day of trial, [SJ after interviewing Ooveda, that she may have

exculpatory information" and defense counsel failed to interview Ooveda, this

"compounds the prejudice .."         Majority at 21-22.      While it is true he had her

information from the 911 call report and could have contacted her earlier, defense

counsel did attempt to contact Ooveda several times before trial and never got a

response. VRP (Apr. 3, 2008) at 5 (called her twice before trial with no response);

VRP (Aug. 21, 2014) at 25-26 (had investigator try to find her); VRP (Aug. 21,

2014) at 59 (many attempts by the investigator to find her with no success).

However, even if defense counsel had been able to contact Ooveda, we can only

speculate what her testimony would have offered. Even if we assume that she would

        8
            The record suggests it was actually about a week before trial. VRP (Apr. 3, 2008)
at 5.

                                              -12-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




have said exactly what Forbes said to add strength to the defense's argument that

Jones had the knife only after Alford's friends joined the fight, the addition of her

testimony does not create a substantial probability that the outcome of the trial would

have been different, especially in light of the multiple witnesses testifying to the

contrary.

       I would hold that Jones has not demonstrated sufficient prejudice under the

standard established in Strickland and Crawford to justify a new trial based on

ineffective assistance of counsel. Therefore, I respectfully dissent.




                                           -13-
State v. Jones (Leroy A.), 85236-7 (Concurrence/Dissent by Stephens, J.)




                                          l4   .
