Appeal from Superior Court of King County. Docket No: 95-1-01423-9. Date filed: 07/10/95. Judge signing: Hon. Leroy McCullough.
PER CURIAM. Donald Adams, Jr., appeals his conviction for first degree assault. He argues that the evidence was insufficient to support the element of intent, and that the prosecutor's closing argument misstated the law on self-defense. Because the evidence of intent was sufficient, and because any misstatement was harmless beyond a reasonable doubt, we affirm.
Following a gunfight outside a Seattle restaurant, the State charged Adams with one count each of second and first degree assault.
At trial, the State's evidence established that Adams entered the restaurant and asked for Sean McCoy, the victim in both counts. Adams was angry about a pager McCoy had sold him. McCoy's brother, who was working at the restaurant, told Adams he couldn't help him with his complaint but offered to call McCoy. Adams began to swear and threatened to "kill everybody in there." Adams eventually left, but returned fifteen minutes later. He was still angry. McCoy arrived shortly thereafter.
McCoy and Adams argued and exchanged punches outside the restaurant. When Adams appeared to be rummaging for a weapon in his car, McCoy pulled out a gun and fired a warning shot. Adams subsequently left in his car, but drove back to the scene a little while later.
As he drove by, Adams pointed a gun at McCoy and pulled the trigger. The gun did not fire. McCoy then entered the restaurant.
While using a telephone in the restaurant's bullet-proof drive through window, McCoy heard gunfire. He turned and saw Adams pointing his gun at him and firing. Adams was only eight to twelve inches from the window. He fired approximately seven times, but the bullets did not penetrate the bullet-proof glass.
Adams testified that McCoy was outside the restaurant, not in the drive through window, when he (Adams) fired at that window. Adams claimed that he backed into an area near the drive through window after McCoy fired at him. He then drew his own gun and fired seven times at the window in order to scare McCoy and effectuate his escape. He testified that he saw no one in the window, that he knew it was bullet proof, and that he did not intend to hurt anyone when he shot at it.
In closing, the prosecutor argued that Adams' committed first degree assault when he fired at McCoy in the drive through window. The prosecutor also argued the following with respect to the court's self-defense instruction:
You will have an instruction that says self-defense is a [defense] to assault in the first degree. What self-defense means is that you are justified in committing a certain crime like assault in the first degree.
But the defendant never . . .admitted that he committed assault in the first degree. There is no self-defense. He doesn't say he fires at Sean McCoy. He doesn't say that he intended to cause him any great bodily harm. He doesn't say that he used force at Sean McCoy to create great bodily harm.
What he says is he fired at a window to scare him. And so he doesn't even admit that he was justified. . . in committing assault in the first degree. And so there is no self-defense for him in this case.
Self-defense means that you do a crime, basically you do every act of that crime, and that you are justified in doing it--for legal reasons, you are justified.
He never admits that he committed any of the steps of assault in the first degree, and so he can't be justified in doing any of it. He denies that he committed assault in the first degree, and he denies that he commits assault in ...