Jones v. State

¶1Dissenting.

¶2T1 The majority finds three separate errors in the presentation of first-stage evidence in this case. The majority finds the trial court erred in prohibiting Jones from presenting evidence which was relevant and would have assisted jurors, and in allowing hearsay evidence. However, the majority concludes that these serious errors were harmless. In doing so, the majority speculates that the evidence would have had no effect on the jury's verdict. I cannot agree with that conclusion. I also believe that jurors L.J. and J.L.P. should have been excused for cause. I dissent.

¶3{2 I begin by discussing Jones's voir dire claims in Proposition V. I believe that in the recent past the Court has unnecessarily complicated our discussion of claims involving jurors who should have been excused for cause. In this writing, I explain that belief. I encourage the Court to give guidance to trial courts and counsel by returning to the simple application of our standard of review, in which the Court is not forced to second-guess or substitute our own judgment for that of defense counsel.

¶4T3 I disagree with the majority's resolution to and analysis of Proposition V. I note at the outset that the majority's entire legal discussion of Jones's claims regarding challenges for cause is structurally flawed, and thus incoherent. Jones claims that the trial court erred in rejecting his challenge to L.J., and that trial counsel was ineffective for failing to challenge J.L.P. An appropriate appellate analysis would first review the merits of the claim regarding L.J., including a discussion of whether Jones preserved that issue for review. Then the analysis would move to the ineffective assistance claim, perhaps using a substantive analysis of the underlying challenge for cause to J.L.P. to discover whether such a challenge would have succeeded, and deciding whether Jones was prejudiced by counsel's failure to make the challenge.

¶5T4 The majority follows another, more confusing, path. The majority begins appropriately, by discussing the merits of the claim regarding L.J., and concludes that the trial court did not err in denying the challenge for cause. However, the majority does not conduct the second part of the analysis and determine whether that claim was preserved by Jones's request for an extra peremptory hearing to remove a sitting juror, J.T.W. The majority instead moves on to a substantive analysis of the juror J.L.P., reviewing the record to determine whether J.LP. was subject to a challenge for cause, even though this is not raised as a substantive proposition of error. 'After determining that J.LP. was not subject to a challenge for cause, the majority turns to the ineffective assistance claim. However, the majority does not simply hold that, as the opinion just found that J.L.P. was not subject to a challenge for cause, counsel was not ineffective for failing to make such a challenge. Instead, the opinion chooses this time to review Jones's effort to preserve his appellate issue of challenges for cause by requesting an extra peremptory. The majority's ineffective assistance analysis never refers to J.L.P.'s fitness as a juror, but reviews the information in the record about J.T.W., the juror Jones said he would exeuse with an extra peremptory were one available. Any discussion of J.T.W.'s fitness is entirely irrelevant in this context. This is particularly true because the record shows that Jones named J.T.W. as an unacceptable juror in the context of the trial court's failure to excuse L.J. As trial counsel did not ask that J.L.P. be excused for cause, his extra peremptory request could not be associated with J.L.P. and any discussion of Jones's attempt to preserve the issue of challenges for cause has no bearing on the ineffective assistance claim.

¶6T5 Jones claims that he was forced to use peremptory challenges on two jurors who should have been excused for cause. Each of these jurors stated at some point that they could be fair, listen to the evidence, and consider all three punishments. However, any doubt about juror bias should be resolved in the defendant's favor.1 A juror's bias need not be proved with unmistakable

¶7*896clarity.2 Based on the record, I doubt both jurors' fitness to serve on this jury.

¶8T6 Prospective juror L.J. made clear that she had grave reservations about her ability to give Jones a fair trial if he claimed self-defense for killing five victims. The trial court continued to question L.J., rejecting her own statement that she was very concerned about her ability to be a fair juror, until the juror finally conceded that she could listen to the evidence and reach a proper verdict. The majority defers to the trial court's judgment of L.J.'s credibility. I find the record is not ambiguous and supports the conclusion that L.J. should have been removed for cause.

¶9T7 Prospective juror J.L.P., an Oklahoma City police lieutenant, may or may not fall within the new statutory exclusions from jury service involving law enforcement officers. I note that the majority's reading of the revised statute is extremely narrow.3 I am not convinced that the Legislature intended to automatically exclude only jailers or guards with this statutory revision. I believe it is likely that J.LP., in his current assignment as a field supervisor or street cop, has some responsibility for custody of prisoner.4 Jones argues J.L.P. also should have been excused for actual bias. I agree. JLP. knew several of the officers connected with the case and supervised one of the State's witnesses. He stated that he was fair and would not be biased toward police officers. However, as I read the record his professional duties and associations indicate that he should have been excused for cause.5

¶108 The majority opinion misstates the law regarding preservation of the issue of challenge for cause for appellate review. A defendant who raises this claim must first preserve it by naming, at trial, an unacceptable sitting juror he would have excused with another peremptory challenge.6 The majority erroneously concludes that Jones failed to do this, although the record and the opinion itself show otherwise. After using his last peremptory challenge Jones asked for an extra challenge, naming juror J.T.W. as the juror he wished to exeuse. Jones stated that J.T.W. was both biased and very young. The majority reviews this as though it was a substantive issue and concludes that, in its opinion, J.T.W. was not unacceptable. Therefore, the majority finds, Jones "has not pointed to a juror whose presence on the jury prevented him from having a fair trial." 7

¶11T9 This conclusion misstates the standard of review and shows a basic misunderstanding of the law in this area. The requirement that a defendant name an unacceptable juror is a simple procedural requirement designed to preserve the voir dire issue for appeal. That is all. A defendant cannot separately raise an "unacceptable juror" claim as a substantive issue; the substantive issue on appeal is always whether a different juror *897should have been excused for cause. In determining whether this procedural requirement is met we ask whether the defense named an unacceptable juror. If that was done, we proceed to the substantive voir dire issue, which is whether another juror should have been excused for cause. If we find the trial judge did not err in not removing the juror for cause, we do not reach the substantive voir dire claim unless there is plain error present. A defendant need not show, to meet this procedural requirement, that the juror's presence prevented him from having a fair trial. He need only show that he found that particular juror unacceptable and would have exeused that juror with a peremptory had he been able to do so.8 It is critical that we keep in mind here that the ultimate issue involved in this requirement to "preserve" the error is whether or not the trial court erred in failing to excuse a particular juror for cause, thereby causing the defense to forfeit a peremptory challenge.

¶1210 The majority, by contrast, treats the procedural requirement as a separate claim requiring substantive appellate review. This adds an unnecessary layer of complexity to a simple test: did the defendant preserve the claim?9 This Court cannot determine on review whether any particular juror was unacceptable to the defense. That is the standard of review and the point of the requirement-the defendant must claim that some other juror was unacceptable to him, and he would have used a peremptory challenge against that juror. This Court's own opinion of the sitting jurors is simply irrelevant to this inquiry.10 The majority reviews the ree-ord and determines that the Court would not find J.T.W. unacceptable. This is exactly the sort of inquiry we cannot and should not engage in.

¶13T11 The absurdity of the majority's approach can be shown by a simple hypothetical. Assume in a death case that a trial judge flatly refuses to excuse any juror for cause. Assume also that nine jurors clearly state that they are irrevocably committed to the view that any person who commits premeditated murder forfeits the right to live and must be given a death sentence. Assume further that the defense challenges each such juror for cause and each challenge is denied by the trial judge. Assume that in each instance the defense uses one of its peremptory challenges to remove each one of these biased jurors and in each instance objects, asks for an additional peremptory, and names another juror who is unacceptable to the defense. Now, here we have a case where a defendant has been erroneously denied all nine of his statutorily allotted peremptory challenges. If the issue is raised on appeal what does this Court do? Do we review whether a defendant has been denied a fundamental right to nine peremptory challenges by determining whether or not the nine jurors should have been excused for cause, or do we look at the nine jurors who sat and were deemed unacceptable to the defense and determine whether they are unacceptable to us? The answer, of course, is obvious. I recognize the hypothetical is extreme. But it puts the issue in perspective. And, because a single juror can determine whether or not a death sentence is imposed, the loss of a single peremptory challenge can mean the difference between life or death.

¶1412 As I note above, the majority apparently is confused by the ineffective assistance of counsel claim. In reviewing the ineffective assistance of counsel claim the majority naturally begins by looking to see whether, if the claim were true, Jones suffered any preju*898dice. If he were not prejudiced by counsel's failure to challenge juror J.L.P. for cause, counsel would not be ineffective. However, the majority's analysis goes astray. Instead of reviewing the record surrounding J.L.P., the majority reviews the record surrounding the unacceptable juror, J.T.W., concludes that juror was not unacceptable, and finds that Jones did not show J.T.W.'s presence prevented him from having a fair trial. That is simply not the question. Jones has asked us to determine whether counsel should have challenged J.L.P. for cause. Any discussion of this issue should revolve around J.L.P. The majority already conducted a substantive analysis of J.LP.'s fitness to serve. While I do not agree with the conclusion, that discussion would serve as an appropriate basis for rejection of the ineffective assistance claim. The majority apparently wants to discuss the "unacceptable juror" question. If so, the proper place for that discussion is in the analysis of the claim regarding the challenge for cause to L.J., which currently lacks any discussion of whether Jones preserved that claim for appellate review. Because I believe J.L.P. should have been excused for cause, I would find counsel was ineffective for failing to so request.

¶151 18 I agree with the majority's conclusion in Proposition I that the trial court should have allowed Jones to present evidence that the victims had detectable, and even significant, amounts of methamphetamine in their blood at the time of their deaths. However, I cannot agree that the exclusion of this evidence had no effect on the jury's decisions. Jones claimed that he was faced with a mob of crazed adults under the influence of methamphetamine, which made them unpredictable and belligerent. The majority suggests that other evidence showed the victims had been drinking and smoking marijuana, so there was evidence to support Jones's claim that the victims were on drugs. This is ridiculous. Even a lay person is aware that marijuana and alcohol use has very different effects and results in different behavior than the use of methamphetamine. Jones was making a very specific claim about a particular type of drug use commonly known to lead to aggressive behavior and bad judgment. This claim was supported by forensic evidence. I agree with the majority that the cireumstances of this crime-Jones entered the house armed and shot multiple unarmed victims several times-make it unlikely that jurors would believe a self-defense claim. For that reason I find the admission of this evidence essential. Forensic evidence corroborating Jones's claim that his victims were high on methamphetamine might well have made a difference to jurors who were reviewing the possibility that he acted in the heat of passion, who were judging witness credibility, and who were reviewing mitigating cireumstances. I cannot agree with the speculation that the admission of forensic evidence supporting Jones would have had no effect on the jury.

¶1614 I agree with the majority finding in Proposition II that the trial court erred in refusing to allow defense witness Robert Clark to testify he saw bruises and seratch marks on Jones's neck when he was arrested several hours after the killings. I cannot agree that this error was harmless, or that Jones was not prejudiced by counsel's failure to correctly endorse the witness. The Court suggests that the evidence might have been impeached with other evidence suggesting that Jones got the marks either a year before the crimes or in the hours afterwards. The Court thus finds that the evidence could not have affected the jury's deliberations because it might be attacked in two inconsistent ways. This makes no sense. Clark could have presented eyewitness testimony which corroborated Jones's claims that he had fought with the victims. While this was certainly subject to impeachment, it would have provided jurors confirmation of Jones's story. The evidence came not from Jones's friends or family but from a detention officer, which might have made it more credible in jurors' eyes. This claim must be analyzed in light of the juror's inability to consider forensic evidence which also supported Jones's story. Taken together these two rulings prevented jurors from hearing any independent evidence supporting Jones's claims, or considering it as they deliberated. I simply cannot find that exclusion of this evidence could have had no effect on the jury's decisions.

¶17*89915 I also agree with the majority finding in Proposition III that the trial court erred in allowing Officer Hernandez to repeat hearsay statements from Carla Phillips during his testimony. Once again, I do not agree this error was harmless. The majority states that Phillips's statements as reported by Hernandez did not differ radically from her trial testimony. -It is true that parts of the out-of-court statement and testimony coincide, and that other witnesses supported parts of the out-of-court statement. However, the main point of Phillips's statement to Hernandez-and the question at issue in the trial-is that without arguing with any of the victims, and after being asked to leave once, Jones began shooting randomly at the people in the house. This differs dramatically from Phillips's trial testimony, testimony of other witnesses, and Jones's story, all of which state that Jones began arguing with Tara Platt and the conflict escalated before the shooting began. Jurors should not have heard Phillips's hearsay statements, and they sharply contradicted the remainder of the testimony describing the circumstances of the crime. Particularly when combined with the errors in Propositions I and II, which left the jury unable to consider independent evidence supporting Jones's story, I cannot find this error had no effect on the jury's deliberations.

¶18T16 Jones committed a series of horrible, senseless crimes. As the majority notes, a jury which heard relevant and admissible evidence supporting Jones's version of events may well have convicted him and returned the same sentences as he received. However, Jones's jury did not have the chance to consider that evidence, although he tried to offer it. I believe that this Court should not substitute its after-the-fact judgment for that of a fully informed jury. I would reverse and remand for a new trial, where a jury may consider the evidence for and against Jones. I also note that this opinion is yet another case in which a majority opinion in a death case finds multiple serious errors, but affirms a death sentence by concluding the errors were individually harmless. Certainly there is a place for the harmless error concept in our law. But I believe we should be very careful about its use where multiple serious errors occur. I dissent.