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State v. Roberts10/26/1999
U.S. at 687. "This showing is made when there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. If either part of the test is not satisfied, the inquiry need go no further." Hendrickson, 129 Wn.2d at 78 (citations omitted).
Mr. Roberts alleges his trial counsel's performance was deficient in 13 separate instances. We will address each instance in the context of the related facts (to the extent the facts are available in the appellate record):
Mr. Earl's alleged failure to corroborate Mr. Roberts' testimony that he believed Mr. Valdez had a gun: Mr. Roberts' argument appears to focus primarily on a statement Mr. Roberts gave to police after his arrest. He contends defense counsel failed to cross-examine the officers adequately regarding the statement to support his own testimony that he believed Mr. Valdez had a gun and was reaching for it just before the stabbing. The taped statement was entered into evidence and was played for the jury. Even assuming the statement supports his argument, Mr. Roberts was not prejudiced by defense counsel's failure to cross-examine the officers. The jury heard the statement, and any further questioning would have been merely cumulative.
Mr. Roberts also relies on two post-trial affidavits that he alleges support his testimony. One, allegedly from a jail inmate named Donald Penhallurick, is not in the appellate record and cannot be considered. The other is from Caryl Yvonne Forsyth, a friend who spoke with Mr. Roberts shortly after the stabbing. Her affidavit stated Mr. Roberts excitedly told her: "I had some trouble tonight, I think I cut Art. {H}e had a gun! {H}e had a gun!" When asked what kind of gun, Mr. Roberts reportedly said, "I don't know{,} it was in his pants." Mr. Roberts alleges Mr. Earl knew about this conversation, but his citation to the record does not support this allegation. Mr. Earl did not call Ms. Forsyth as a witness. On this record, it is impossible to conclude Mr. Earl knew about the evidence. Moreover, the court must presume Mr. Earl's performance was adequate. Mr. Roberts has failed to demonstrate Mr. Earl did not have a sound strategic reason for declining to introduce the evidence.
Mr. Earl's alleged failure to rebut officers' testimony that Mr. Roberts intentionally stabbed Mr. Valdez: This argument also focuses primarily on Mr. Roberts' taped statement, which was played for the jury. From that evidence, the jury certainly was able to determine precisely what Mr. Roberts told the officer. Moreover, neither officer testified Mr. Roberts told them he intentionally stabbed Mr. Valdez. There was no dispute at trial that Mr. Roberts stabbed Mr. Valdez; his defense was that the stabbing was in self-defense or accidental. Mr. Roberts has failed to establish either that Mr. Earl's performance was deficient or that any deficiency deprived him of a fair trial.
Mr. Earl's alleged failure to obtain and present as evidence the shirt that Mr. Valdez allegedly ripped off Mr. Roberts during the fight: Mr. Roberts testified at trial that Mr. Valdez had torn and ripped off his shirt. In a letter to the court before trial (of which a copy apparently was sent to Mr. Earl), Mr. Roberts sought a continuance in part so that the shirt could be obtained. The shirt was not introduced into evidence. Mr. Roberts contends Mr. Earl at least negligently failed to obtain the shirt and present it as evidence at trial, but the record does not indicate whether the shirt was available or whether Mr. Earl attempted to locate it. On this record, it is impossible to conclude counsel's performance was deficient. Moreover, the prejudice to Mr. Roberts is not apparent. All
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