A Cochise County man found guilty last month of premediated murder was properly convicted in March of aggravated assault for punching his then-attorney at the Pima County jail in an effort to get a new lawyer.
Roger Delane Wilson has always admitted assaulting defense attorney Peter Kelly during an April 24, 2018 legal visit. Kelly, then age 80, was not seriously injured but did suffer facial cuts and bruises.
At the time, Wilson was being housed at the Pima County jail at the request of Cochise County detention officials while he awaited trial for the June 2017 fatal shooting of Jose Daniel “JD” Arvizu. Kelly was the fourth court-appointed attorney assigned to represent Wilson, who has consistently claimed self-defense for the Arvizu shooting.
A Pima County grand jury indicted Wilson under Arizona Revised Statute 13-104 which enhances a misdemeanor simple assault to aggravated assault, a Class 6 felony, if the assault is committed against a “public defender while engaged in the execution of any official duties or if the assault results from the execution of the public defender’s official duties.”
Wilson waived his right to a jury trial and in March of this year he was found guilty at a bench trial. He was sentenced to 270 days in jail with credit for the same number of days already served in custody.
On appeal, Wilson argued that Kelly was a private attorney under contract with Cochise County and not employed as a public defender. As such Kelly had no “official duties” as it applies to a government employee, Wilson claimed.
In its Oct. 29 opinion, the Arizona Court of Appeals noted there was no published case law on the statutory question and that the term “public defender” was not defined in that specific statute.
“We must therefore apply the common meaning of the plain terms of the statute, referring to dictionaries as necessary,” the appellate opinion reads. “Our task in interpreting the meaning of the statute is to fulfill the intent of the legislature that wrote it.”
The opinion cites other state laws which protect “county contract indigent defense counsel” in the same manner as public defenders. Another statute prohibits threats to publish personal information about certain public officials on the Internet. That statute applies to a variety of attorneys and their assistants, including those who represent indigent clients like Wilson.
“We can conjure no logical or public policy reason why the same rationale would not apply to the legislature’s efforts to protect contract ‘public defenders’ from assault in the course of their work for indigent criminal defendants,” the opinion reads.
The appellate opinion affirmed Wilson’s aggravated assault conviction and sentence. The ruling takes effect in 30 days unless Wilson filed a petition for review to the Arizona Supreme Court.
In the meantime, Wilson will be back in the Cochise County Superior Court for a Nov. 4 hearing on his motion for a new trial in the Arvizu murder case. He contends the jury that convicted him did not receive proper instructions from Judge Timothy Dickerson.
It is Dickerson who will decide whether he, as trial judge, made an error in rejecting three of four jury instructions requested by Chris Kimminau, Wilson’s eighth defense attorney.
If Wilson’s motion is denied, he is set to be sentenced by Dickerson to life in prison during a Nov. 9 hearing.
