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State v. Roberts10/26/1999
cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. Van Arsdall, 475 U.S. at 684.
Here, the prosecutor's misconduct was harmless beyond a reasonable doubt. Gabriel's testimony added nothing that was not confirmed by other witnesses, and much of it was consistent even with the testimony of Mr. Roberts himself. The gist of Gabriel's testimony was that he saw Mr. Roberts make a gesture toward Mr. Valdez's face and then saw Mr. Valdez fall to the ground bleeding. Mr. Roberts admitted punching Mr. Valdez, and there was no serious dispute at trial that the stabbing wound was inflicted during the scuffle between the two men. Mr. Roberts' defense was that the stabbing was either in self-defense or accidental. Gabriel's testimony, which was corroborated by at least two other witnesses, did not conflict with either of these defenses. Impeachment of the testimony thus would have had no effect. The error was harmless.
We next address Mr. Roberts' contention that the court erred in instructing the jury on self-defense. During trial, defense counsel announced to the court that he intended to offer jury instructions on self-defense. The appellate record does not contain jury instructions proposed by Mr. Roberts. Over the prosecutor's objection, the court decided to include self-defense instructions and ordered the prosecutor to provide copies of the pattern instructions. Defense counsel took no exception to the instructions.
Under the invited error doctrine, a party may not request an instruction and then argue on appeal that the requested instruction was erroneous. State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999); State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990). The Supreme Court has held that "'affirmatively assent{ing}'" in an instruction may be the same as requesting it. See Studd, 137 Wn.2d at 547 (quoting State v. LeFaber, 128 Wn.2d 896, 904 n.1, 913 P.2d 369 (1996) (Alexander, J., Dissenting)). Here, defense counsel affirmatively assented to the self-defense instructions by announcing his intention to seek instructions on the subject and later acquiescing in pattern instructions supplied by the prosecutor at the court's order. Mr. Roberts invited the error and is precluded from raising it on appeal.
Next, we consider whether Mr. Roberts established an actual conflict of interest by his attorney, justifying a new trial. Among the State's trial witnesses was Billy Reyes, who was present during the incident. Mr. Roberts' trial counsel, Thomas Earl, had represented Mr. Reyes "some years" earlier on an unrelated drug charge. Mr. Earl was aware that Mr. Reyes had worked as a drug informant for police. During a pretrial Discussion on the admissibility of evidence of witnesses' activities on the day of the stabbing, it was clear Mr. Earl was acquainted with Mr. Reyes:
MR. EARL: I can assure you that Billy Reyes wasn't at work. I don't think Billy Reyes has ever worked.
THE COURT: If this party was going on all day I'm going to allow him to bring that out.
MR. KNODELL {prosecutor}: And if not?
THE COURT: They would not be allowed to bring it out.
MR. KNODELL: What I'd like to do then, I think my witnesses are coming in at one o'clock, I'll ask them. If the party was going on all day, okay, fine.
MR. EARL: Your Honor, we're dealing You've got to remember that {it} is critical to the defense here. We are dealing with two witnesses, Billy Reyes, who's before the court, I think has b
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