Argued October 29, 2013
Appeal from King County Superior Court. 07-1-06919-1. Honorable Monica Benton.
Jennifer J. Sweigert (of Nielsen Broman & Koch PLLC ), for petitioner.
Daniel T. Satterberg, Prosecuting Attorney, and Ann M. Summers, Deputy, for respondent.
AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Charles K. Wiggins, Justice Steven C. González. AUTHOR: Justice Debra L. Stephens. WE CONCUR: Justice Susan Owens, Justice Mary E. Fairhurst, James M. Johnson, Justice Pro Tem.
Gordon McCloud, J.
[183 Wn.2d 330] [¶1] 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.
[¶2] 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. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). He [183 Wn.2d 331] 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.
[¶3] 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 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
[¶4] 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 [183 Wn.2d 332] that he held a knife. A jury convicted Jones of second degree assault.
[¶5] 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.  Shortly after withdrawal, new defense counsel discovered a second witness, Michael Hamilton, who was also clearly identified in pretrial discovery and whom defense trial 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.
[¶6] 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.
[¶7] 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
[¶8] 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 [183 Wn.2d 333] 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 fight--the exact time is in dispute.  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.
[¶9] 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.
[¶10] 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.
[¶11] 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." Id. at 69. Critically, Forbes further testified that Jones drew the knife to protect himself after the other three men joined the fight. Id. at 70.
[183 Wn.2d 334] [¶12] 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.
[¶13] 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." Id. at 18-20.
[¶14] The jury convicted Jones of the assault charge.
3. Motion for a New Trial
[¶15] 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 whom Jones's original attorney failed to interview: Hamilton.
[¶16] 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 [183 Wn.2d 335] three came up, clocked him, a beating ensued, and I called 911 and went away on the bus." CP at 226. Hamilton 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.
[¶17] Finally, Jones's new lawyer filed a declaration stating that the original defense lawyer failed to interview Brown and Hamilton. CP at 131-35.
[¶18] 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 the knife in self-defense after he was ...