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Jones v. State

United States District Court, D. Nebraska

October 16, 2019

LARON M. JONES, Petitioner,
v.
STATE OF NEBRASKA, SCOTT R. FRAKES, Director, Nebraska Correctional Services; and MICHELL CAPPS, Warden, Nebraska State Penitentiary; Respondents.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on Petitioner Laron M. Jones' (“Petitioner” or “Jones”) Amended Petition for Writ of Habeas Corpus.[1] (Filing No. 10.) For the reasons that follow, Petitioner's Amended Petition is denied and dismissed with prejudice.

         I. CLAIMS

         Summarized and condensed, and as set forth in the court's initial review order (filing no. 11), Jones asserted the following claims that were potentially cognizable in this court:

Claim One: Petitioner was denied effective assistance of counsel and a fair trial because trial counsel (1) failed to suppress, object to, and properly impeach the identification testimony of witnesses Alanna Delany, Saraha Richards, Dale Gaver, and Giovanni Barrios (filing no. 10 at CM/ECF pp. 21-34); (2) failed to file a motion to dismiss (id. at CM/ECF pp. 34-35); (3) failed to properly investigate and call numerous witnesses provided to counsel by Petitioner who were important to Petitioner's alibi defense (id. at CM/ECF pp. 36-41); and (4) generally failed to conduct an adequate pretrial investigation and to gather defense evidence (id. at CM/ECF pp. 41-45).
Claim Two: Petitioner's right to due process was violated when the prosecution failed to disclose (1) the recording of Petitioner's police interview and (2) the photographic line up shown to Jenna McBride in violation of Brady. (Id. at CM/ECF pp. 63-67.)
Claim Three: Petitioner was denied effective assistance of counsel because appellate counsel failed to raise on direct appeal that trial counsel was ineffective (1) for the reasons set forth in Claim One and (2) for failing to raise Brady violations. (Id. at CM/ECF pp. 69-70.)
Claim Four: Petitioner was denied due process and the right to a fair trial because (1) Nebraska's second-degree murder statute is facially unconstitutional as it does not provide fair warning sufficient to prevent arbitrary enforcement (id. at CM/ECF pp. 73-89) and (2) the substantive change to the elements of second degree murder and sudden quarrel manslaughter is a new rule of constitutional law that should be applied retroactively to Petitioner (id. at CM/ECF pp. 93-95).
Claim Five: Petitioner was denied due process and the right to a fair trial because the trial court committed plain error in giving Jury Instruction No. 8. (Id. at CM/ECF pp. 99-101.)

(Filing No. 11 at CM/ECF pp. 1-2.)[2]

         II. BACKGROUND

         A. Conviction and Sentence

         The court states the facts as they were recited by the Nebraska Supreme Court in State v. Jones, 293 Neb. 452, 878 N.W.2d 379 (2016) (filing no. 13-1). See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006) (utilizing state court's recitation of facts on review of federal habeas petition).

         1. Events Surrounding Shooting

         In the early morning hours of March 7, 2014, a group of friends gathered at the home of Alanna Delaney for an “after-hours” party. Those in attendance included Delaney; Saraha Richards; Jamie Thiem; Dale Gaver; Josue Sanchez; Giovanni Barrios; D'Angelo Goods; and the decedent, Samuels, among others. Around 2:30 a.m., three black males and one black female arrived uninvited at the party. One of the black males was Milton Butler, who came to the party to confront Thiem, his ex-girlfriend and the mother of his child. One of the black males was identified as Jones. The other black male and black female were never identified.

         Butler barged into the residence and began yelling at Thiem. Then he pulled her out of the house by her hair, banging her head against a doorframe on the way out. Others at the party were concerned and followed them outside. Sanchez came to Thiem's aid, and a fight ensued in the front yard with Butler, Jones, and the unidentified black male teaming up against Sanchez. Jones brandished a gun and stated that anyone who jumped in to help Sanchez would be shot. The fight dissipated after Sanchez was knocked unconscious and taken back into the house by his friends.

         Butler, Jones, and the unidentified black male and black female got into their vehicles and began leaving the scene. Most of the people from the party went back inside the house. As Butler was backing his vehicle out of the driveway, Goods came outside to retrieve something from the front yard. Butler then stopped his vehicle, got out, and began a second altercation with Goods. Just as the altercation was about to turn physical, several shots were fired into the air, followed by a pause, and then several more shots were fired toward the house. Samuels was standing on the porch and suffered gunshot wounds in his lower right leg and in the right side of his neck. He died from those injuries.

         2. Witness Testimony

         (a) Alanna Delaney

         Delaney testified that during the initial altercation with Sanchez, an individual she knew as “Clown” flashed a gun from his waistband and told her not to interfere with the fight or she would be shot. She was standing in the middle of the yard when shots rang out. Gaver pushed her to the ground and told her to stay down. While lying on the ground, she lifted her head and clearly observed “Clown” shooting the gun toward the porch.

         Delaney testified that she was familiar with both “Clown” and Butler and that there was no doubt in her mind it was “Clown” shooting the gun, not Butler. Delaney knew Butler due to Butler's relationship with Thiem, and she had met him approximately 5 to 10 times. She was familiar with “Clown” from having met him at a location she described as a haunted house and a couple of times at her house or a bar when he was with Butler. Delaney described Butler as “skinnier” and having a “fade or a brush cut” hairstyle. By contrast, Delaney stated that “Clown” was “thicker, ” and she described his hairstyle as “French braided to the scalp.” She stated that “Clown” was wearing a black T-shirt and blue jeans. Delaney identified Jones in court as “Clown.”

         (b) Saraha Richards

         Richards knew Butler through Thiem and described him as being skinny and having short hair. She had also met “Clown” on a couple of prior occasions, including a New Year's Eve party approximately 3 months prior to this incident. She described “Clown” as similar in height to Butler, but “heavier.” Richards stated that before the shooting occurred, “Clown” said that if anyone interfered with the fight that was going on, that person was going to get shot. She said that “Clown” fired the first few shots in the air, then lowered the gun and started shooting at the house. Richards identified Jones in court as “Clown.”

         (c) Dale Gaver

         Gaver testified that he saw “Clown” display the gun prior to the shooting and then observed him fire the gun three times into the air. Gaver started running toward the side of the house and heard more shots fired. As he got to the corner of the house, he turned around and saw “Clown” aiming and shooting the gun at the house. He explained that although it was dark outside, he could see what was going on because a street light was on, and that he was only about 10 feet away when he observed “Clown” flash the gun. Gaver described “Clown” as wearing a hoodie and a darker shirt. Gaver stated that “Clown” was wearing a hat initially, but was no longer wearing the hat once he became involved in the altercation with Sanchez. Gaver identified Jones in court as “Clown.”

         (d) D'Angelo Goods

         Goods described the shooter as shorter and stockier with “nappy” braided hair that looked as if it had not been freshly done. Goods testified that during his altercation with Butler, the shorter, stockier individual approached the yard and asked, “‘What's up?'” Goods observed the man firing shots into the air, then aiming and shooting at the house. He did not see Butler or anyone else with a gun, other than the stockier black male with nappy hair.

         (e) Giovanni Barrios

         Barrios testified that he attempted to stop the fight, but that one of the black men flashed a gun and told him to back up. Barrios described this man as having a “[b]igger build, stockier, facial hair” and wearing jeans and a hoodie. Barrios identified Jones in court as that man.

         3. Investigation

         The witnesses were separated at the scene and individually transported to police headquarters to be interviewed. Jones was developed as a suspect as a result of those interviews. Delaney, Richards, and Gaver each identified Jones in a photographic lineup as the shooter. Barrios identified Jones as the man that brandished a gun during the initial altercation.

         The following day, officers executed a search warrant at a residence Jones shared with his girlfriend, Jenna McBride. She confirmed that Jones' nickname is “Clown.” She described Jones as “a little bit shorter, stockier with longer hair” that is “braided back.” McBride directed officers to the clothes Jones had been wearing the night before, which included a pair of dark jeans, a black T-shirt, and a light gray zip-up hoodie with a broken zipper.

         McBride was taken in and interviewed by law enforcement. She testified that she received a text message from Jones at 3:04 a.m. on March 7, 2014, asking her to pick him up at his aunt's house as soon as possible. When she picked him up approximately 15 minutes later, he was with Butler and another older black male who went by the name of “Mario.” McBride described Jones' demeanor as “mad and irritated.” Jones told McBride about the fight and mentioned that someone had been shot.

         Jones was arrested and charged with first degree murder, use of a deadly weapon (firearm) to commit a felony, and possession of a deadly weapon by a prohibited person.

         4. Motion to Suppress

         Prior to trial, Jones moved to suppress witness identification testimony, alleging that the identification procedure used by police was unnecessarily suggestive and tainted the identifications. The evidence adduced at the hearing showed that a lineup consisting of six photographs was used, which accidentally included two photographs of Jones: one in position No. 5, and one in position No. 6. The detective who created this lineup attributed the error to sloppiness on his part.

         This lineup was shown to at least two witnesses, including Delaney, who identified Jones in position No. 5. The other witness did not identify anyone in the lineup and did not identify Jones at trial. It is unknown whether any other witnesses were shown this flawed lineup.

         At the suppression hearing, the State offered the following testimony: The police separated the witnesses at the scene and transported them to the police station in separate cruisers, the witnesses were kept in separate areas at the station, and officers were standing by to make sure they did not converse with one another.

         Delaney testified that the fact that “Clown” was depicted twice in the photographic lineup did not affect her identification of him. In fact, she did not even notice “Clown's” photograph in position No. 6 until she was reviewing the lineup later in the county attorney's office. The detective that administered the lineup was also unaware of the mistake until she returned to her desk after showing it to Delaney. At that point, a new photographic lineup was created in which the photograph in position No. 6 was replaced with a different photograph; however, the other photograph of Jones remained in position No. 5.

         Richards, Gaver, and Barrios were shown the corrected lineup. Richards and Gaver identified the shooter in position No. 5. Richards wrote on the comments section that she was “110, 000%” sure he was the shooter. Barrios identified the person who flashed the gun in position No. 5.

         The witnesses' cell phones were confiscated, and they were told not to communicate with other witnesses until all of them had been interviewed. All of the witnesses were admonished not to speak to other witnesses about their identifications. Delaney, Richards, Gaver, and Barrios testified that they did not talk to any other witnesses prior to being interviewed and did not discuss their identifications with any other witnesses.

         The district court issued a written order denying Jones' motion to suppress. The court found that Delaney was the only witness who saw the photographic lineup that had two pictures of Jones. The other witnesses were shown photographic lineups that contained only one photograph of Jones.

         5. ...


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