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State v. Roberts10/26/1999
Mr. Roberts has failed to show that any prejudice resulted from Mr. Earl's failure to use this information.
Mr. Earl's alleged failure to prove that Mr. Valdez had used heroin and cocaine on the day of the stabbing: The emergency room doctor who treated Mr. Valdez after the stabbing testified Mr. Valdez had a blood-alcohol level of .17 percent. The lab report also indicated the presence of cocaine metabolite in Mr. Valdez's blood. However, this evidence was not admitted because the doctor was unqualified to explain when the cocaine was ingested. The doctor's report also indicated police officers had told him Mr. Valdez had used heroin that day. That information was inadmissible hearsay. Whether Mr. Valdez's alleged heroin use was admissible through some other source is not apparent from the record. Mr. Roberts contends nevertheless that Mr. Earl should have obtained other expert testimony regarding when Mr. Valdez may have ingested the cocaine. Even assuming such testimony was available, there is no showing it would have been admissible, because the court limited evidence of witnesses' drug use to the day of the stabbing. Finally, it is impossible to conclude Mr. Earl's failure to obtain this evidence, if it was available, deprived Mr. Roberts of a fair trial. Mr. Valdez was clearly intoxicated at the time of the stabbing, and Mr. Roberts testified Mr. Valdez had been using drugs before the incident. Mr. Roberts has failed to establish either that Mr. Earl's performance was deficient or that he was prejudiced by the conduct.
Mr. Earl's alleged failure to challenge an allegedly biased juror: Lisa Ponozzo was seated as Juror No. 1. During voir dire, she acknowledged she was acquainted with the prosecutor and she had a close personal friend or a family member connected with law enforcement. However, she said she was "comfortable" with the principle that it was the prosecutor's burden to prove his case beyond a reasonable doubt. During trial, it was revealed that Ms. Ponozzo was an employee of the Grant County Superior Court clerk's office; the court instructed her not to report to work there for the duration of the trial. Ms. Ponozzo's employment with the county is not a basis for disqualifying her as a juror. See State v. Johnson, 42 Wn. App. 425, 429, 712 P.2d 301 (1985), review denied, 105 Wn.2d 1016 (1986). Nor does her relationship with persons connected with law enforcement establish actual bias, particularly in light of her assurance she would be unbiased. See RCW 4.44.190; State v. Noltie, 116 Wn.2d 831, 837-38, 809 P.2d 190 (1991). Mr. Roberts has failed to establish Mr. Earl's performance during jury selection was deficient.
Mr. Earl's alleged failure to seek jury instructions on lesser crimes: During a Discussion on jury instructions at trial, the prosecutor asked Mr. Earl: "We didn't discuss lessers. Do you want any lessers?" Mr. Earl responded: "We do not." Mr. Roberts' post-trial affidavit stated that at the time, Mr. Earl "looked at me and I shook my head { } I hadn't changed my mind {about} pleading not guilty." Mr. Roberts' assertion on appeal that Mr. Earl failed to represent his interests conflicts dramatically with Mr. Earl's own testimony at the hearing on the motion for a new trial. At that hearing, Mr. Earl testified Mr. Roberts was "actively involved" in all aspects of the case and simply "was not interested in a negotiated plea, and so I prepared the case for trial after the plea negotiations broke down because it was obvious he was not interested in a plea to assault in the second degree. And, at the same time, not interested in a{n} instruction to the jury on assault in the second degree." Mr. Earl stated that Mr. Roberts repeatedly agreed with this t
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