State Of Washington v. Wendell Adams, Jr. ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 70045-6-1
v.
UNPUBLISHED OPINION
WENDELL OLIVER ADAMS, JR.,
Appellant.
FILED: July 28, 2014
Dwyer, J. - Following a bench trial, the court found Wendell Adams guilty
of assault in the first degree while armed with a firearm and unlawful possession
of a firearm. On appeal, he challenges the voluntariness of his jury trial waiver
and the sufficiency of the evidence to support his assault conviction. The record
demonstrates, however, that Adams' jury trial waiver was knowing, intelligent,
and voluntary. Evidence that Adams followed and confronted the victim before
shooting him was sufficient to establish an intent to commit great bodily harm.
The allegations in Adams' statement of additional grounds for review are also
without merit. We therefore affirm.
The trial court's findings of fact, entered following Adams' bench trial, are
essentially unchallenged on appeal. On July 8, 2012, Everett Pitterson went to
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the Summerwalk Apartments in Kent to repair a white Chrysler 300M that had
broken down in the parking lot. Pitterson drove to the apartments with his friend
Carolyn Smith, the owner of the Chrysler, and Smith's daughter, Shanika Mayes.
Wendell Adams, who lived in the apartment complex with his wife, was currently
dating Mayes. Adams had been driving the Chrysler earlier in the day, and a
witness had heard Adams and Mayes arguing in the Chrysler at a nearby grocery
store. Pitterson was acquainted with Adams and had seen him several times in
the previous weeks.
Shortly after Pitterson began working on the Chrysler, Mayes asked
Pitterson and Smith to help her find Adams. Pitterson knocked on several doors
but was unable to locate Adams. Mayes and Smith then contacted the
apartment maintenance supervisor and learned that Adams lived in apartment
G-6.
Pitterson accompanied Mayes and Smith to apartment G-6, which was
located on the ground floor, a few steps below the level of the parking lot.
Pitterson knocked on the door while Mayes stood behind him on the steps.
Smith waited on the sidewalk next to the parking lot.
After a few minutes, Adams opened the door and Mayes told him that
Smith wanted to talk with him. In response, Adams went back into his apartment
and closed the door. Pitterson then returned to the parking lot.
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A short time later, Adams came out of the apartment. Adams, who was
wearing a white hooded sweatshirt, walked up to the parking level and
confronted Pitterson. Adams appeared to be angry and asked Pitterson why he
was there and what he wanted. When Pitterson noticed that Adams was holding
a handgun, he backed further into the parking lot and started walking away.
Smith stepped in between the two men and tried to calm Adams down.
Smith's efforts were unsuccessful, and Adams fired multiple shots at Pitterson.
When Pitterson heard the first shot, he turned back toward Adams. A bullet
struck Pitterson in the abdomen, and he fell to the ground. Adams fired several
more shots at Pitterson as he lay on the ground. Adams then fled.
Cybel Nava, who lived in apartment G-3, was walking to her car when she
noticed two black males who appeared to be arguing in the parking lot. When
she heard the sound of a gunshot, she turned and saw one of the men pointing a
gun at the other man, who was lying on the ground. The man with the gun was
wearing a light gray hooded sweatshirt and fired more shots at the man on the
ground before running away. Nava believed that she heard a total of three shots.
A responding police officer and several witnesses worked to control
Pitterson's bleeding until he could be transported to a hospital. The responding
medics reported that Pitterson had no detectable blood pressure. The single
bullet that struck Pitterson destroyed 50 percent of the femoral artery and nicked
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his bladder before exiting. Pitterson's injuries required extensive emergency
surgical repair. Both Pitterson and Smith identified Adams as the shooter.
The State charged Adams with one count of first degree assault while
armed with a firearm and one count of unlawful possession of a firearm. On the
morning of trial, Adams informed the court that he wanted to waive his right to a
jury trial. After considering the comments of defense counsel and a colloquy with
Adams, the trial court granted the request.
At the conclusion of the bench trial, the court found Adams guilty as
charged and imposed a 300-month standard range sentence.
II
Adams contends that his convictions must be reversed because his jury
trial waiver was constitutionally deficient. In particular, he argues that his waiver
was not knowing and voluntary because the record fails to demonstrate that he
was expressly advised of his right to a jury trial on the firearm sentence
enhancement.
A defendant may waive the right to a jury trial as long as the record
demonstrates that he or she acted "knowingly, intelligently, voluntarily, and free
from improper influences." State v. Pierce, 134Wn. App. 763, 771, 142 P.3d 610(2006). The State bears the burden of demonstrating a valid waiver. State v.
Wicke, 91 Wn.2d 638, 645, 591 P.2d 452 (1979). "[E]very reasonable
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No. 70045-6-/5
presumption should be indulged against the waiver of such a right, absent an
adequate record to the contrary." Wicke, 91 Wn.2d at 645.
The validity of a jury trial waiver depends on a consideration of all relevant
circumstances, including whether the trial court informed the defendant of the
right to a jury trial, the nature of any colloquy between the court and the
defendant, and whether defense counsel affirmatively stated that the defendant
waived the right. See Pierce, 134 Wn. App. at 771. Although not determinative,
a written waiver "is strong evidence that the defendant validly waived the jury trial
right." Pierce, 134 Wn. App. at 771. We review the validity of a jury trial waiver
de novo. State v. Ramirez-Dominquez, 140 Wn. App. 233, 239, 165 P.3d 391(2007).
Contrary to Adams' assertions, the record need not demonstrate that the
defendant understood all of the consequences of a jury trial waiver. State v.
Steqall, 124 Wn.2d 719, 725, 881 P.2d 979 (1994); see also State v. Benitez,
175 Wn. App. 116, 128-29, 302 P.3d 877 (2013). Nor does a valid jurytrial
waiver require an extensive colloquy on the record. Steqall, 124 Wn.2d at 725.
Rather, "all that is required is a personal expression of waiver from the
defendant." Steqall, 124 Wn.2d at 725. Adams has not cited any authority
supporting his claim that the record must reflect that he was expressly advised of
his right to a jury trial on a firearm sentence enhancement. Cf Pierce, 134 Wn.
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No. 70045-6-/6
App. at 773 (valid jury trial waiver does not require that defendant be advised of
his right to participate in jury selection).
Here, defense counsel informed the trial court that he had discussed the
jury trial waiver extensively with Adams and was satisfied that he had "full
knowledge of the consequences of the jury trial." Defense counsel noted that the
discussion included "all aspects of jury selection," presentation of the case,
including evidentiary and pretrial rulings, the nature of the judge's role in a bench
trial, and the contrasting aspects of the judge's and jury's determinations of
whether the State had proved guilt beyond a reasonable doubt.
After defense counsel's statement to the court, Adams orally
acknowledged that he had sufficient time to discuss the consequences of a jury
trial with counsel, that he had a "full discussion" about the differences between a
bench trial and jury trial, and that he had no further questions. Adams also
signed a written waiver acknowledging his understanding that he had the right to
have a jury of 12 decide "my case" and that all 12 jurors would have to agree that
the State proved the elements of the charged crimes beyond a reasonable doubt.
At the conclusion of the colloquy with the court, Adams confirmed that the
signature on the written waiver form was his and manifested his understanding of
the statements on the form.
The foregoing circumstances, including defense counsel's representations
to the court, Adams' colloquy with the court, and the execution of a written
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No. 70045-6-/7
waiver, established Adams' personal desire to waive a jury trial and
demonstrated that his waiver was knowing, intelligent, and voluntary. See
Benitez, 175 Wn. App. at 129-30; see also State v. Cham. 165 Wn. App. 438,
449, 267 P.3d 528 (2011), review granted and case remanded on other grounds.
175Wn.2d 1022(2012).
Ill
Adams next contends that the evidence introduced at trial was insufficient
to support his conviction for first degree assault. He maintains that the State
failed to prove that he assaulted Pitterson with the specific intent to cause great
bodily harm.
An appellate court reviews the sufficiency of the evidence to determine
whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found the essential elements of the charged crime
beyond a reasonable doubt. State v. Pirtle. 127 Wn.2d 628, 643, 904 P.2d 245(1995). The same standard applies whether the case was tried to the bench or
to a jury. See Jackson v. Wyoming, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979) (bench trial); State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d
628 (1980) (jury trial). A claim of insufficiency admits the truth of the State's
evidence and all reasonable inferences from that evidence. State v. Kintz, 169
Wn.2d 537, 551, 238 P.3d 470 (2010). Circumstantial evidence and direct
evidence are equally reliable. State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d
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99 (1980). We defer to the trier of fact on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence. State v. Myers,
133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
In order to convict Adams as charged, the State had to prove that he
assaulted Pitterson with the specific intent "to inflict great bodily harm." RCW
9A.36.011(1); State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). Specific
intent is the intent "to produce a specific result, as opposed to intent to do the
physical act that produces the result." Elmi. 166 Wn.2d at 215. Specific intent
cannot be presumed, but it can be inferred as a logical probability from all the
facts and circumstances. State v. Pedro. 148 Wn. App. 932, 951, 201 P.3d 398(2009). Relevant circumstances include "'the manner and act of inflicting the
wound, ... the nature of the prior relationship and any previous threats.'" State
v. Ferreira. 69 Wn. App. 465, 468, 850 P.2d 541 (1993) (quoting State v. Woo
Won Choi, 55 Wn. App. 895, 906, 781 P.2d 505 (1989)).
A short time after Pitterson knocked on Adams' door, Adams followed him
to the parking lot and confronted him while holding a handgun. Adams, who
appeared to be angry, asked Pitterson why he was there and what he wanted.
Despite the efforts of Carolyn Smith, Adams then fired several shots at Pitterson.
One of the bullets hit Pitterson in the abdomen and he fell to the ground, severely
injured. Adams then stood over Pitterson and fired several more rounds at him.
Viewing the evidence in the light mostfavorable to the State, a rational trier of
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No. 70045-6-/9
fact could conclude beyond a reasonable doubt that Adams assaulted Pitterson
with the intent to commit great bodily harm. See Pedro. 148 Wn. App. at 951-52
(evidence of prior altercations and fact that defendant ran after victim and fired in
his direction were sufficient to establish intent to inflict great bodily harm).
Adams contends that the fact that all but one of his shots missed Pitterson
"suggests the absence of an intent to actually strike or injure the person; i.e., the
absence of an intent to cause great bodily harm." But this argument must be
directed to the trier of fact. It does not undermine the legal sufficiency of the
evidence, which is reviewed in the light most favorable to the State.
IV
In his statement of additional grounds for review, Adams contends that the
trial judge violated the appearance of fairness doctrine because she was
acquainted with the victim's mother, who was an attorney with a public defender
agency. But Adams raises this allegation for the first time on appeal. Because
an appearance of fairness claim is not a "constitutional" claim pursuant to RAP
2.5(a)(3), an appellate court will generally not consider it for the first time on
appeal. State v. Morqensen, 148 Wn. App. 81, 90-91, 197 P.3d 715 (2008). In
any event, Adams' contentions are without merit.
To prevail on an appearance of fairness claim, Adams must present
evidence of the judge's actual or potential bias. State v. Post. 118 Wn.2d 596,
618-19, 826 P.2d 172, 837 P.2d 599 (1992). The "critical concern in determining
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whether a proceeding satisfies the appearance of fairness doctrine is how it
would appear to a reasonably prudent and disinterested person." Chi..
Milwaukee. St. Paul. & Pac. R.R. Co. v. Wash. State Human Rights Comm'n. 87
Wn.2d 802, 810, 557 P.2d 307 (1976). Trial judges are presumed to perform
their functions regularly and properly, without prejudice or bias. Jones v.
Halvorson-Berg. 69 Wn. App. 117, 127, 847 P.2d 945 (1993).
Prior to trial, defense counsel informed the trial judge that the victim's
mother was an attorney with a public defender agency and asked if"the Court
would find that to be any reason for concern in managing this case, because the
Court has contact with [the agency] in a professional capacity." The judge
responded that "I know who she is but I don't have a personal relationship with
her." Defense counsel did not inquire further and raised no objection, and
Adams has not identified any court action or comment that reflected actual or
potential bias. A trial judge's acquaintance with an attorney who may appear
before the judge in a professional capacity does not, without more, raise an
appearance of fairness concern requiring recusal. See State v. Leon, 133 Wn.
App. 810, 812, 138 P.3d 159 (2006) (an attorney's frequency of appearance
before a judge does not, without more, create an appearance of partiality that
requires recusal from a matter in which the judge would assess the credibility of
the attorney's testimony).
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No. 70045-6-/11
Adams also contends that the evidence was insufficient to prove intent to
inflict great bodily harm. For the reasons already stated, we reject this
contention.
Affirmed.
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We concur:
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