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State v. Roberts10/26/1999
Gregory Paul Roberts appeals his conviction for first degree assault. He contends defense counsel had a conflict of interest in representing him and failed to render constitutionally effective assistance. Mr. Roberts also contends the trial court erred in instructing the jury on the law of self-defense and in amending his original sentence. Pro se, he contends the State improperly failed to reveal information important for his defense. We affirm.
Mr. Roberts was charged in Grant County with stabbing Arturo Valdez on August 30, 1995. At trial, all witnesses agreed the incident began when Mr. Valdez threatened to "bitch slap" Mr. Roberts if he failed to repay a $20 loan. Mr. Valdez eventually did slap Mr. Roberts, after which Mr. Roberts stepped back a few steps and took a knife from his pocket. Mr. Valdez was stabbed in the neck during the ensuing scuffle.
Mr. Valdez denied he was armed during the incident, and Mr. Roberts conceded he did not see a weapon. However, Mr. Roberts testified Mr. Valdez was younger and heavier and was fumbling in the pockets of his baggy pants, which looked like they could be concealing a gun. Mr. Roberts testified he knew Mr. Valdez was a violent person who had recently obtained a gun. He testified he pulled the "key chain pocket knife" because he feared he would be shot in the back if he tried to leave. Nevertheless, Mr. Roberts testified he did not intend to stab Mr. Valdez and never believed it was necessary to stab the man to protect himself. Rather, he testified he intended to punch Mr. Valdez with a "straight right" and hit him with his knuckles. He was unable to explain how Mr. Valdez was stabbed.
A jury found Mr. Roberts guilty of first degree assault and found he was armed with a deadly weapon. Mr. Roberts later obtained new counsel and moved for a new trial alleging trial counsel was ineffective. The court denied the motion. With the concurrence of the prosecutor, the court ordered a mitigated sentence of 50 months because Mr. Valdez had instigated the incident. Findings supporting the exceptional sentence never were entered, and several months later the State moved to amend the sentence. Concluding it had no alternative, the court then amended the sentence to order a term of 84 months. Mr. Roberts has appealed both the conviction and the amended sentence.
We first consider Mr. Roberts' pro se argument that the State improperly failed to disclose a witness's criminal record. Among the witnesses at trial was 16-year-old Gabriel Medina, who lived at the house where his father was drinking on the night of the stabbing with Mr. Roberts, Mr. Valdez, and another family friend, Billy Reyes. Gabriel testified he was inside the house, talking on the telephone, when the incident began. He stated he saw Mr. Roberts make a gesture toward or near Mr. Valdez's face, after which Mr. Valdez fell to the ground bleeding.
In his response to Mr. Roberts' omnibus application, the prosecutor stated there were "{n}o known prior convictions" of persons the State intended to call as witnesses. Mr. Roberts alleges, however, that Gabriel was convicted in 1993 for taking an automobile without permission and was on "probation" at the time of the trial. The State concedes the prior conviction in Grant County, but argues the prosecutor was unaware of it until he received Mr. Roberts' pro se brief on appeal.
The State is required to disclose to the defendant "any record or prior criminal convictions known to the prosecuting attorney . . . of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial." CrR 4.7(a)(1)(vi). This requirement protects a defendant's Sixth Amendment right of confronta
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