£g COO

CT3 OIN THE COURT OF APPEALS OF THE STATE OF WASHINGTON °

STATE OF WASHINGTON,

Respondent,

v.

TOMAS SOLOMON AFEWORKI,

Appellant.

330 :££!-

CO c>^!

DIVISION ONE -P- is

No. 70762-1-1

PUBLISHED IN PART OPINION

FILED: August 10, 2015

Dwyer, J. —"'[T]he Sixth Amendment right to counsel, while fundamental,

is nota right without limitation. Specifically, it is not a right subjectto endless

abuse by a defendant.'"1

Tomas Afeworki was charged with murder in the first degree. During

pretrial proceedings, he experienced significant and ongoing conflict with each of

his several attorneys. On the eve oftrial, Afeworki repeatedly threatened his

attorney, who was permitted towithdraw as a result. Afeworki was, thereafter,

required to represent himself pro se. On appeal, Afeworki contends that this

deprived him of his right to counsel.

After threatening his attorney, Afeworki was also required to wear a

physical security restraint, notvisible to observers, while in the courtroom.

Afeworki now contends that this requirement violated his right to a fair trial.2

1Bailev v. Commonwealth. 38 Va. App. 794, 803, 568 S.E.2d 440 (2002) (alteration in

original) (quoting McNair v. Commonwealth. 37 Va. App. 687, 695, 561 S.E.2d 26 (2002) (en

banc)).

2In a lengthy statement of additional grounds for review, Afeworki assertsseveral

additional claims. These are addressed and resolved in the unpublished sections of this opinion.
No. 70762-1-1/2

Finding no error in the trial court's supervision of the trial of this most

difficult defendant, we affirm.

I

On October 26, 2010, Haylom Gebra and Michael Yohannes were walking

along Pike Street in downtown Seattle when they saw an acquaintance,

Afeworki, across the street. Yohannes lingered briefly, talking to Afeworki, and

then caught up with Gebra at the intersection of Second and Pike. As Gebra and

Yohannes waited for the light to change, Afeworki, who was holding a white

towel, unexpectedly approached them from behind. Gebra heard a loud boom

and watched as Yohannes fell to the ground. Afeworki immediately turned and

headed north on Second Avenue toward Pine Street.

A number of people observed the shooting or its immediate aftermath,

including Mohammed Dima, who wasworking as a uniformed downtown safety

ambassador on the afternoon of the shooting. Dima heard the sound of a

gunshot coming from the northwest corner ofSecond and Pike. From directly

across the street, Dima saw a "body just drop" and saw a man standing there

with "something white on his hand." The man then wrapped an object in "that

white thing," placed the wrapped object in his pocket, and began walking north

on Second Avenue. Dima described the man as a black man wearing a

brownish "hoodie" and blue jeans with something brownish on the back pocket.

Alvaro Sotelo was working at Zaina Restaurant, located at 109 Pine

Street, that afternoon. Sometime after he began his shift at 4:00 p.m., a man

came in, ordered French fries, and asked to use the bathroom. When police
No. 70762-1-1/3

arrived a few minutes later, Sotelo told them about the customer in the bathroom,

and the police directed that person to come out. After a few minutes, Afeworki

emerged from the bathroom with his hands above his head saying, "I don't have

a gun."

In a search of the bathroom, police found a 9 mm semiautomatic handgun

that had been placed under the liner of the trash can. There were four cartridges

in the magazine. In addition, police recovered three unfired cartridges from the

toilet bowl. Forensic analysis later demonstrated that these unfired cartridges

had been cycled through the handgun found in the trash can. Forensicanalysis

also revealed that the bullet recovered from Michael Yohannes's head was fired

from that same 9mm handgun.

Three eyewitnesses were brought to a place near the scene ofthe

shooting for a showup identification procedure. Two ofthe witnesses, Elijah

Knight and Jean Marie Hayes, identified Afeworki as the shooter by his clothing.

DNA recovered from the handgun found in the bathroom trash can provided

further evidence that Afeworki was the shooter; comparing the partial DNA profile

obtained from the gun to Afeworki's DNA profile resulted in a 1 in 120,000

chance that someone other than Afeworki was the source of the DNA on the gun.

An information charging Afeworki with murderin the first degree was filed

on October 28, 2010.

On October 29, attorney Nicholas Marchi filed a notice of appearance on

behalf of Afeworki. Five weeks later, on December 6, a notice of withdrawal and

consent for substitution announced that attorney John Henry Browne was

-3
No. 70762-1-1/4

substituting for Marchi. On January 31, 2011, Browne filed a notice of attorney's

intent to withdraw. On February 7, attorney Anthony Savage Jr. filed a notice of

appearance. Eight months later, on October 4, Savage was allowed to withdraw

due to illness, and a hearing was set to confirm the appointment of counsel by

the Office of Public Defense (OPD). On October 21, Marchi was back on the

case as appointed counsel.

Afeworkisoon began to overtly take an active role in his own defense,

prevailing upon counsel to file his pro se "Motion to Dismiss for Violation of Due

Process, [Due] to Prosecutorial Misconductfor Charging with Falsified Probable

Cause."3

Not content to work through counsel, Afeworki followed this motion a few

months later with letters sent directly to the trial court. In a letter to Chief

Criminal Judge Ronald Kessler dated June 18, 2012, Afeworki wrote that he had

"instructed my Attorney Nicholas Marchi to put in a motion to dismissfor violation

of Due Process" on various grounds. He informed the court that if Marchi did not

file his motion as directed, he would "feel like I don't have my Attorney's

undivided loyalty and a conflict will arise because my constitutional rights are not

protected." Afeworki followed this with an even more emphatic letter, dated July

10, 2012, complaining that his attorney had notfiled "important pretrial motions

on my behalf," and asking the court to appoint new counsel whowould do as

Afeworki wished.

3The motion was filed in March 2012 but was dated, apparently mistakenly, as March

2011.
No. 70762-1-1/5

Judge Kessler conducted a hearing on the matter on July 18, 2012.

Marchi informed the court that Afeworki wanted to discharge him. Marchi joined

in the motion, telling the court that "[o]ur positions on how the case should

proceed have now limited us to not being able to communicate." Afeworki

confirmed that Marchi was not doing the things that Afeworki wanted him to do,

and that Afeworki wanted a "conflict-free attorney."

The court declined to find a conflict under the circumstances described.

When Afeworki pressed the court on why his pro se motions had not been ruled

on, Judge Kessler said that he ruled only on motions made by the attorneys.

Afeworki responded, "Your Honor, then Iwould like to move pro se pursuant to

Faretta v. California."4 When Judge Kessler questioned whether Afeworki, in

fact, wanted a new attorney, and tried to caution him on such a course, Afeworki

responded unequivocally: "Maybe you didn't understand me. I am invoking my

right to proceed pro se."

Judge Kessler accordingly began the pro se colloquy. He first asked

Afeworki whether he had ever studied law, to which Afeworki replied, "I read law."

He then asked ifAfeworki had ever before represented himself in a criminal case,

and Afeworki said that he had not. Judge Kessler next asked Afeworki if he

understood that the charged crime carried a maximum penalty of life in prison

and a $50,000 fine and that, if he were found guilty and the prosecutor proved

that the current crime was his third strike, he would face life in prison with no

possibility of parole. Afeworki responded that he understood.

4 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
No. 70762-1-1/6

The next part of the colloquy went less smoothly. When the court warned

Afeworki that, should he be allowed to represent himself, he would be on his own

and would not be afforded standby counsel, Afeworki expressed disbelief and

displeasure. When Afeworki continued to argue with Judge Kessler rather than

answer the court's questions, Judge Kessler found Afeworki's request to proceed

pro se to be equivocal, and offered to contact OPD to appoint a new attorney for

him. Afeworki, however, insisted that his request to proceed pro se was

unequivocal, and that his right to self-representation was absolute and must be

granted.

Judge Kessler then resumed the pro se colloquy, asking Afeworki once

again whether he understood that he did not have a constitutional right to

standby counsel and that, ifhe decided to give up his right to be represented by

counsel, that decision would be final and he would not have the right to change

his mind and later ask for an attorney. Afeworki responded, "I understand now."

When Judge Kessler asked Afeworki about hisfamiliarity with the rules of

evidence, Afeworki replied that he would learn them. The judge confirmed that

Afeworki would have access to the evidence rules and additional legal resources

through the Westlaw kiosk in the jail. Judge Kessler then underscored the

importance of knowing the rules of evidence by offering an example.

[I]f the prosecutor offers evidence against you, and that evidence is

objectionable, and you fail to object for any reason, including the

fact that you don't know about the rules of evidence, or why the

objection should be taken, or what the objection is, that evidence

will come in against you and you will not later be able to appeal

that.
No. 70762-1-1/7

Making a similar point, Judge Kessler informed Afeworki that he would be treated

like a lawyer—that is, he would have the "exact same" obligations as a lawyer.

Judge Kessler also informed Afeworki that he would have to seek trial

preparation services, such as expert witness services, through OPD.

Furthermore, he asked Afeworki whether he understood that, if he decided to

testify in the case, the trial judge might require him to ask himself questions and

then answer those questions, rather than permitting him to testify in narrative

fashion. Afeworki said that he understood.

Judge Kessler then asked Afeworki whether anyone had threatened him

or made any promises in order to convince him to give up his right to a lawyer.

Afeworki responded, "No." Finally, the judge informed Afeworki that he did not

have a right to a continuance of his trial date, but that he could ask for one if he

desired.

Warning Afeworki that representing himself was a "serious mistake," the

court tried one more time: "Since I am offering you the opportunity to have

anotherlawyer, why don't you take that option and see whatyou think ofthat

next lawyer before you decide to give up your right to a lawyer?" When Afeworki

insisted, stating, "I am proceeding pro se," Judge Kessler replied, "You got it."

Judge Kessler then found a knowing, voluntary, and intelligent waiver of the right

to counsel, and granted Afeworki's request to proceed pro se.

The court nevertheless left Afeworki the option of being represented by

counsel. The courtset a hearing for one week later, requiring defense counsel to

remain on the case until that time. The court told Afeworki that he could choose
No. 70762-1-1/8

at that hearing among three options: retain appointed counsel Marchi, have a

different attorney appointed, or proceed pro se.

On the 25th you can come here, tell me you still want to go

pro se, you got it. Tell me you have decided you want to take my

option -- my offer up and get a second lawyer, a different lawyer,

you got it. You decide you want to keep Mr. Marchi, you got it.

So you can have any of those three choices. You have got

one week to make that decision.[5]

The parties returned to court on July 25. Afeworki proffered a motion to

dismiss. Judge Kessler agreed to allow the motion to be filed. The court then

asked Afeworki if he still wished to represent himself. Accusing the court of

"intentionally impairing me and punishing me for exercising my rights" by refusing

him standby counsel and access to law books, Afeworki withdrew his pro se

status "[ujnder duress and under fear." The court agreed to direct OPD to

appoint new counsel. On August 2, attorney James Bible filed a notice of

appearance. Bible subsequently requested and obtained funding for another

attorney, Anna Gigliotti, to assist him.

On April 11, 2013, the case was assigned fortrial before the Honorable

Laura Gene Middaugh. The trial court subsequently denied defense motions to

suppress evidence brought pursuant to CrR 3.5 (confession procedure) and CrR

5Judge Kessler made clear that Afeworki was prose in the interim until the hearing one

week later.

THE COURT: He can change his mind.

THE COURT: But as of this point, he is pro se.

We will give him a copy of [the order granting the defendant's motion to

proceed pro se]. Mr. Afeworki will need to turn that over to the appropriate person

in the jailso that he will have access to the pro se handbook and the - and

additional time for legal research.

The import of Judge Kessler's actions is clearfrom the record. Judge Kessler, aftera full

colloquy, ruled that Afeworki had affirmatively waived hisright to be represented by counsel and

invoked hisright to proceed pro se. Then, in a properexercise ofthe court's discretion, Judge

Kessler allowed Afeworki one week in which to change his mind.
No. 70762-1-1/9

3.6 (suppression hearings).6 Voir dire was then begun. However, on April 24,

before a jury was empaneled, attorney Gigliotti informed the court of a medical

emergency in attorney Bible's family. As a result, the trial court dismissed the

potential jurors and recessed the trial until July 16, 2013.

Before trial could recommence, however, Afeworki brought yet another

motion for a new attorney, which was heard on June 18, 2013.7 At that hearing,

Bible summed up the work that he had accomplished on the case since his

appointment, but noted that he did not think there was any real possibility of

pleasing Afeworki, who was alleging a conflict. Bible said that Afeworki

understood that the likely alternative to Bible's representation was to represent

himself. When the court invited Afeworki to speak, he detailed his dissatisfaction

with Bible's representation. The court denied the motion for new counsel,

pointing out that decisions as to trial strategy were for the lawyerto make.

6Immediately on the heels of these rulings, Afeworki demanded a new judge, claiming

that Judge Middaugh was discriminatory and biased. In supportofthese contentions, Afeworki

alleged that Judge Middaugh had deliberately placed a clock with a monkey on itsface in the

courtroom, intending to degrade and demean him because of his African heritage. The

prosecutor pointed out that the court had replaced the nonfunctioning courtroom clock with one

that had been in chambers; this clock had a "Paul Frank" logo monkey on its face. There had

been no objection byanyone at the time of the clock's placement in the courtroom. The trial

judge denied the request for a new judge.

7This was not the first time that Afeworki had expressed dissatisfaction with Bible's

representation. He had commenced doing so several months before. In a letterto the court,

dated December 16, 2012, Afeworki expressed hisfrustration that Bible would not file his pro se

motions, writing, "I've asked my Attorney to turn in important pretrial motions, forthe past 5

month[s] my attorney has notdone as such." Hethen asked the courtto appoint him "effective

counsel that will file very important pre-trial motions ... on my behalf." Atsubsequent

proceedings, Afeworki continued to express dissatisfaction with Bible's unwillingness to file all of

the prose motions that Afeworki desired to be filed. Forexample, on April 22, 2013, Afeworki

interjected the following: "For the record, I have asked my attorney to put in a motion to dismiss

forviolation of RPC 3.8 on the prosecutor's behalf. He has refused me, and I am just putting that

on the record." The court responded by informing Afeworki that he could either have a lawyeror

he could represent himself, but "you can't have it both ways." Nevertheless, justtwo dayslater,

Afeworki continued to proffer his own motions to the court.
No. 70762-1-1/10

Afeworki responded by moving to proceed pro se "under Faretta v.

California." He repeatedly insisted that this was his wish, and that his request

was unequivocal. When the trial court explained that, should Afeworki proceed

pro se, he would not be entitled to standby counsel or to a continuance of the trial

date, Afeworki responded, "What I understand is I want to go pro se and

everything that you're saying just sounds like a whole bunch of bullshit." Judge

Middaugh ultimately referred the motion to Chief Criminal Judge Kessler for

determination.

Three days later, at the hearing before Judge Kessler, Afeworki chose not

to renew his motion to represent himself. According to Judge Kessler's "Order

on Defendant's Reference to Self-Representation," Afeworki "referenced" selfrepresentation, but refused to answer the court's questions on this topic, instead

persisting in arguing his substantive pro se motions.

Consistent with his history of prevarication, one week later Afeworki

prepared and signed a notarized motion and affidavit seeking to proceed pro se.8

The case came on for trial for the second time on July 16, 2013. Afeworki

changed tack yet again and reiterated his demand that the court dismiss Bible

and appoint a new attorney to represent him. The court refused. Afeworki then

said unequivocally, "I am proceeding pro se. I am going to represent myself."

The court found this request untimely, as the trial date had arrived. Afeworki

persisted: "You are denying my constitutional right to represent myself, let me get

that right."

8The motion was not filed with the court until July 16, 2013, although Afeworki claimed

that he had sent it to the court through the mail on the date on which it was notarized.

-10-
No. 70762-1-1/11

Soon thereafter, Bible informed the court that Afeworki had just said

something to him to the effect that, "Ifyou play with fire, you get burned." Bible

found this comment "wholly inappropriate," and said that he was not sure what

Afeworki meant by it. Afeworki responded, "Itmeans exactly as itsounds."

When pressed by the court, however, Afeworki tempered his words, claiming that

he only meant that "[i]f there is any type of lawsuits, I am going to be suing his

ass too."

The court cautioned Afeworki that he would not be allowed to "create a

situation where this trial will not go forward, which is what Ithink that you are

intending and trying to do." The court made the consequences clear:

If you should say or do anything further in this case that

makes [Bible] as an officer of the Court feel that he has to withdraw

as your attorney, he can do so.

If Mr. Bible says that he cannot continue because of what

you say or do towards him and the associate counsel is unable to

take over as counsel, you will be allowed to go pro se. But, you will

step in at that moment with no additional prep time, nothing.

Bible told the court that he would find it difficult to meet with his client after

the hearing that day in light ofAfeworki's comment to him. Bible assured the

court that he would meet with Afeworki the next morning to discuss voir dire.

By the next morning, however, Bible was asking to withdraw. He told the

court that, as Afeworki was leaving the courtroom after the previous day's

proceedings, he accused Bible of "shaking down" Afeworki's sister for money.

Bible took this allegation very seriously, as his law firm had been appointed by

OPD, and such a claim threatened his livelihood.

11
No. 70762-1-1/12

Bible also reiterated his concern about Afeworki's "play with fire"

comment, which Bible took as a threat to his personal well-being. He pointed out

that Afeworki did not limit this comment to a threat to sue Bible until after the

court had intervened. Bible further reported that Afeworki had said that he knew

Bible's younger sister.9 Bible took this comment to be a threat as well. Bible

believed that his continued representation of Afeworki would be in violation of the

Rules of Professional Conduct.

The court asked Afeworki if he opposed Bible's request to withdraw.

Afeworki said that he did not.10 When the court said that Afeworki would be

allowed to proceed pro se, his response again showed that he wanted to have it

both ways: "I would like a different attorney. ... Iwould like to renew all of my

motions as a pro se defendant."

The trial court expressed its belief that Afeworki's persistently disruptive

behavior was intended specifically to delay the trial. The court believed that

Afeworki's earlier motion to proceed pro se, which he never renewed in front of

Judge Kessler, was also intended to delay and disrupt the trial. The court

believed that Afeworki had deliberately created a situation where Bible could no

longer represent him, so that the court would give him a new attorney. The court

refused to condone this behavior.

9 It is not clear from either Bible's in-court statement or the trial court's findings of fact

regarding Bible's requestto withdraw whether this comment was made before or afterthe trial

court'swarning. See Finding of Fact6 ("On 7/17/13 the defense attorney reported back to the

court that Mr. Afeworki had also said something to the effect of 'I know where your sister

lives'....").

10 All participants understood Bible's motion to withdraw to include the withdrawal of

attorney Gigliotti as well. The record makes clearthat she was appointed solely to assist Bible.

The possibility ofGigliotti serving as Afeworki's sole counsel at trial was notconsidered to be a

viable option.

-12-
No. 70762-1-1/13

I know that you have been advised on this in the past. I did say

yesterday that Iwill certainly consider allowing you to proceed

representing yourself, but I will not delay this trial so that you can

do that. Itold you that quite clearly yesterday, that ifyou continue

the disruptive behavior and if you continue to make statements to

Mr. James Bible that caused him to be unable to represent you,

then the consequences of that would be that you would be

representing yourself but there would be no delay in trial. You

continue to make those statements.

Having decided to allow Bible to withdraw, the court conducted the pro se

colloquy. As he had done before, Afeworki unequivocally expressed his desire to

proceed pro se.

Now that I understand all of that, I am ready to proceed pro

se. I am ready to represent myself. Ifeel like it is my US

constitutional right. I am pretty sure it is under Washington State

law too, where I could represent myself if I decide to represent

myself.

I am letting you know, we are going pro se.

The court decided to postpone a final ruling until the next day.

The next day, the trial courtfound that Afeworki had knowingly and

voluntarily waived his right to counsel: "he understands the charges against him,

the consequences, if he is found guilty under all of the scenarios that he has

been proposed." The court added that this conclusion was supported by

Afeworki's deliberate actions in creating a situation where appointed counsel was

unable to continue to represent him.

In addition to that, Ifind that it is not just his request to go

pro se that means that he [has] knowingly and voluntarily waived

his right to counsel, but it is his actions in creating the situation

where his third or fourth counsel is unable to continue to represent

him because of Mr. Afeworki's actions. That, also, I find is a

knowing and voluntary waiver of his rights to counsel.

The court concluded, "I am going to allow you to go pro se, sir."

13-
No. 70762-1-1/14

By the time the parties next appeared in court—justfour days later11—

Afeworki had changed course yet again, telling the court that he did not want to

proceed pro se, but wanted counsel. The court responded that he had waived

the right to counsel by his actions. The court elaborated:

I will say it now, I believe that your actions were done with

the intent of having Mr. Bible withdraw so that you could get

another attorney, when I had refused your motion.

That I believe that you were trying to set it up so that you

could be put in the position where I would have to give you another

attorney. I explained to you that that is not going to happen.

You made your decision to go pro se by acting towards Mr.

Bible in such a fashion that he could not ethically continue to

represent you. I made it clear to you that when you made your

motion to go pro se, ifyou did that, you would have to go forward

with trial.

That is an irrevocable decision. It cannot be changed. You

are now representing yourself. Itwas not a wise decision, I agree.

We all tried to make it quite clear to you that you would be

required to do these issues on your own and they were very

complex. You are an intelligent person. You know or you knew the

risks that were involved because they were explained to you quite

clearly. You chose to take those actions. You cannot change them

now. I will not give you another lawyer.

Afeworki insisted that he did not understand the proceedings. Noting that

Afeworki's responses in the pro se colloquy were "quite coherent," and that he

had already been through a complete colloquy once before with Judge Kessler,

the court reiterated: "You can sit here and say that you don't understand it, what

went on, but your actions last week prove to me that you did understand what

went on."

Eventually deciding that it would not address the issue again, the trial

court summarized the reasons for Afeworki's pro se status.

11 July 18 was a Thursday. Consistentwith King County SuperiorCourtscheduling

practices, the trial did not resume until July 22, the following Monday.

14
No. 70762-1-1/15

You made a motion to represent yourself on the eve of jury

selection. I denied that as untimely. And then the next day I

continued to inquire of you as to whether you wanted - really

wanted to go pro se and if you understood the ramifications of that.

And then you made statements that Ifound - to your attorney

- were threats. Your attorney made a considerable effort to try to

keep on as your attorney and said that because of the threats and

the statements you had made to him, he did not feel that he could

ethically represent you, because he would not be able to do that.

And so I allowed him to withdraw, and you basically got your

wish to go pro se. You have now changed your mind, and you don't

want to go pro se. Perfectly understandable, because Ithink now

you are beginning to understand exactly how difficult it is to

represent yourself.

But the constitution does not allow you to, once you are

representing yourself, once you have made that request and you

begin representing yourself, to change your mind in the middle of

trial, nor does the constitution allow you to take actions such that

your attorney is required to withdraw because of your actions under

ethical rules and then say that you are required to [have] a new

attorney. I have made findings on the record that I believe that your

actions have been intended to delay this trial, that your actions

were intended to force Mr. Bible to withdraw because I denied your

motion to grant you a new attorney, and I believe that your actions

have been -1 have made the findings, and I believe the record

supports them, that it has been your intention all along to delay this

trial, and you think that in some way you would force this Court to

reconsider your motion and [to] give you a new attorney.

The court summed up the proceedings leading up to Afeworki's pro se

status in written findings, concluding:

Based on all the actions of the defendant leading up to the

withdrawal of his attorney, the Court found that Mr. Afeworki's

actions were intentional; created a situation where his attorney had

to withdraw and that Mr. Afeworki more likely than not thought that

he would get appointed a new counsel, which request had

previously been denied, and trial would further be delayed. Mr.

Afeworki's actions constitute a knowing waiver of his right to

counsel.

Finding of Fact 10.

15
No. 70762-1-1/16

The trial resumed with Afeworki proceeding pro se. The jury found him

guilty of murder in the first degree as charged. He now appeals.

II

A defendant in a criminal prosecution has a right to the assistance of

counsel. U.S. Const, amend. VI; Wash. Const, art. 1, § 22 (amend. 10).

Indigent defendants charged with felonies, or misdemeanors involving potential

incarceration, are entitled to appointed counsel. Mclnturf v. Horton, 85 Wn.2d

704, 705-07, 538 P.2d 499 (1975); CrR 3.1(d)(1).

The right to counsel may be affirmatively waived, but such a waiver must

be knowing, voluntary, and intelligent. Citv of Bellevue v. Acrev. 103 Wn.2d 203,

208-09, 691 P.2d 957 (1984). A valid waiver of the right to counsel requires that

the defendant be made aware of the risks and disadvantages of selfrepresentation, with an indication on the record that "'he knows what he is doing

and his choice is made with eyes open.'" Acrev, 103 Wn.2d at 209 (quoting

Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)).

"Preferably, there [will] be a colloquy on the record informing the defendant of the

nature of the charge, the maximum penalty, and technical rules he must follow in

presenting his case." Citv of Tacoma v. Bishop, 82 Wn. App. 850, 856, 920 P.2d

214(1996) (citing Acrev, 103Wn.2d at 211). "In the absence of a colloquy, the

record must otherwise indicate that the defendant was aware of the risks of selfrepresentation." Bishop, 82 Wn. App. at 856 (citing Acrev, 103 Wn.2d at 211).

16
No. 70762-1-1/17

"The Sixth Amendment, however, is not absolute. A defendant may lose

his or her right to counsel through forfeiture or waiver [by conduct]."12 United

States v. Thomas, 357 F.3d 357, 362 (3d Cir. 2004); see also State v. DeWeese,

117 Wn.2d 369, 379, 816 P.2d 1 (1991) ("What the defendant cannot obtain

because of a lack of a valid reason, that defendant should not be able to obtain

through disruption of trial or a refusal to participate. A defendant may not

manipulate the right to counsel for the purpose of delaying and disrupting trial."

(emphasis added)).

Our case law has recognized that United States v. Goldberg, 67 F.3d 1092

(3rd Cir. 1995), "is instructive" in its explanation of the distinctions between the

concepts of affirmative waiver, forfeiture, and waiver by conduct with regard to

the right to counsel. Bishop, 82 Wn. App. at 857.13 As explained above, "[a]

waiver is an intentional and voluntary relinquishment of a known right. The most

commonly understood method of 'waiving' a constitutional right is by an

affirmative, verbal request." Goldberg, 67 F.3d at 1099 (citations omitted).

Conversely, "[a]t the other end of the spectrum is . . . 'forfeiture.' Unlike waiver,

which requires a knowing and intentional relinquishment of a known right,

forfeiture results in the loss of a right regardless of the defendant's knowledge

thereof and irrespective of whether the defendant intended to relinquish the

right." Goldberg, 67 F.3d at 1100. "A court may find that a defendant has

forfeited his or her right to counsel after having engaged in 'extremely dilatory

12 Waiver by conduct is also referred to as de facto waiverand implied waiver.

13 The portion of Bishop that relies on Goldberg was cited with approval by our Supreme

Court in Citv of Seattle v. Klein. 161 Wn.2d 554, 561 n.7, 166 P.3d 1149 (2007).

-17-
No. 70762-1-1/18

conduct' or 'extremely serious misconduct.'" Thomas. 357 F.3d at 362 (quoting

Goldberg, 67 F.3d at 1101-02.)

In addition, a middle ground doctrine exists. This doctrine, waiver by

conduct, is sometimes referred to as a "hybrid situation" because it combines

elements of waiver and forfeiture. Goldberg, 67 F.3d at 1100. "Once a

defendant has been warned that he will lose his attorney if he engages in dilatory

tactics, any misconduct thereafter may be treated as an implied request to

proceed pro se and, thus, as a waiver of the right to counsel." Goldberg, 67 F.3d

at 1100. "[A] 'waiver by conduct' [can] be based on conduct less severe than that

sufficient to warrant a forfeiture." Goldberg, 67 F.3d at 1101; accord Bishop, 82

Wn. App. at 859 ("'[W]aiver by conduct' requires that the defendant be warned

about the consequences of his actions, including the risks of proceeding pro se,

and can be based upon conduct less severe than that constituting forfeiture.").

The application ofthis doctrine is not limited to dilatory conduct. Other

types ofmisconduct may also give rise to its application. See, e.g., Thomas, 357

F.3d at 362-65 (affirming trial court'sfinding that defendant had impliedly waived

hisright to counsel bythreatening to harm and verbally abusing his attorney as

well as by urging his attorney to engage in professional misconduct). "[T]o the

extent that the defendant's actions are examined under the doctrine of 'waiver,'

there can be no valid waiver of the Sixth Amendment right to counsel unless the

defendant also receives Faretta warnings." Goldberg, 67 F.3d at 1100.

However, the warning need only precede the conduct that eventually gives rise to

the waiver. There is no requirement that it be timed (somehow) to directly—or

18
No. 70762-1-1/19

even closely—precede the relevant misconduct. Thomas, 357 F.3d at 363. As

explained in one of the seminal cases discussing the issue,

[the] suggestion that the District Court should have timed the [pro

se] colloquy on the eve of counsel's motion to withdraw is a novel

one unsupported by case law. The purpose of a [pro se] colloquy is

to provide the defendant with notice that continued misconduct may

result in the waiver of one's right to counsel; thus, we focus on

whether [the defendant] was warned of the possible consequences,

not whether the warning immediately preceded the District Court's

order that the defendant must proceed pro se.

Thomas, 357 F.3d at 363 (citation omitted).

The State does not contend that this is a forfeiture case. This also is not

an express or affirmative waiver case, despite the State's contention to the

contrary. While it is true that Afeworki made numerous requests prior to trial to

proceed pro se, in the end, it is apparent that Afeworki was required to represent

himself as a result of his continued threats toward Bible. Indeed, Afeworki

requested to proceed pro se on July 16, 2013. The trial court denied that request

as untimely. That same day, Afeworki threatened Bible, causing the court to give

Afeworki the above-quoted warning. Despite this warning, Afeworki again

threatened Bible, who was permitted to withdraw as a result. According to the

trial court's warning, at that point itwas a foregone conclusion that Afeworki

would be required to represent himself. It is true that, before concluding that "I

am going to allow you to go pro se," the trial court engaged Afeworki in another

pro se colloquy and that Afeworki once again expressed a desire to represent

himself. However, by that time, Afeworki no longer had a choice in the matter.

Given the context, any agreement Afeworki expressed with the court's inevitable

order requiring him to proceed pro se cannot fairly be considered an affirmative

19-
No. 70762-1-1/20

waiver.

Instead, this is a waiver by conduct case. The record establishes the

following: Afeworki engaged in misconduct that caused the court to warn him

that, if he engaged in further misconduct that caused his attorney to seek to

withdraw, he would be required to proceed pro se. Afeworki nevertheless

engaged in further misconduct. This misconduct caused his attorney to seek to

withdraw. Afeworki supported the motion to withdraw and the court granted it.

As a result, Afeworki was required to proceed pro se. Prior to the misconduct

that gave rise to Afeworki's implied waiver of the right to counsel, he was warned

of the risks and disadvantages of self-representation.

Afeworki's initial threat to Bible was the conduct that gave rise to the trial

court's warning. In the midst of the July 16, 2013 hearing, Bible informed the

court that Afeworki had just said something to him to the effect that, "If you play

with fire, you get burned." Bible found this comment "wholly inappropriate" and

perceived it as a threat to his personal well-being.

In response, the court cautioned Afeworki that he would not be allowed to

"create a situation where this trial will not go forward, which is what Ithink that

you are intending and trying to do." The court made the consequences offurther

misconduct clear by warning him as follows:

Ifyou should say or do anything further in this case that

makes [Bible] as an officer of the Court feel that he has to withdraw

as your attorney, he can do so.

IfMr. Bible says that he cannot continue because of what

you say or do towards him and the associate counsel is unable to

take over as counsel, you will be allowed to go pro se. But, you will

step in at that moment with no additional prep time, nothing.

20
No. 70762-1-1/21

Afeworki did not cease his misbehavior after the court's warning, thereby

setting in motion the series of events that would lead to the trial court requiring

him to proceed pro se. As they were leaving the very hearing at which Afeworki

had been warned by the court, Afeworki accused Bible of "shak[ing] [Afeworki's]

sister down" for money. Bible reported this to the court the next day and

explained that, under the circumstances, he perceived this comment as a threat.

As a result of this further threat, Bible believed that his continued

representation of Afeworki would be in violation of the Rules of Professional

Conduct and sought permission from the court to withdraw. The court allowed

Bible to withdraw. (Moreover, the associate counsel, Gigliotti, was unable to

assume full or primary responsibility for the case and withdrew with Bible.)14

Only then, in conformance with its earlier warning, did the trial court require

Afeworki to proceed pro se.

Afeworki was well aware of the risks and disadvantages of selfrepresentation before he committed the misconduct that followed the court's

warning. Afeworki had previously brought a motion to proceed pro se in this very

case. Indeed, Afeworki had requested to represent himself at a hearing on July

18, 2012. In response, Judge Kessler had engaged Afeworki in a lengthy pro se

colloquy. As described above, Judge Kessler had asked Afeworki if he ever

studied law or of he had ever represented himself in a criminal matter before. He

had also asked Afeworki whether he understood that the charged crime carried a

maximum penalty of life in prison and a $50,000 fine and that, if he were found

14 Notably, on appeal, Afeworki does notassign errorto the trial court's decision to permit

Bible and Gigliotti to withdraw. Thismay be because the courtasked Afeworki if he opposed

Bible's request to withdraw, and he stated that he did not.

-21 -
No. 70762-1-1/22

guilty and the prosecutor proved that the current crime was his third strike, he

would face life in prison with no possibility of parole. Afeworki had replied that he

understood. Moreover, Judge Kessler had asked Afeworki whether he

understood that he did not have a constitutional right to standby counsel and

that, if he decided to give up his right to proceed with counsel, that decision

would be final and he would not have the right to later change his mind and ask

for an attorney. Again, Afeworki had replied that he understood. Judge Kessler

had then asked Afeworki about his familiarity with the rules of evidence and

stressed the importance of understanding those rules in order to properly try the

case and to preserve potential issues for appeal. Judge Kessler had

emphasized that Afeworki would have the "exact same" obligations as a lawyer.

Furthermore, Judge Kessler had informed Afeworki concerning how to seek trial

preparation services, such as expert witness services. He had also informed

Afeworki that, if he decided to testify in the case, he might be required to ask

himselfquestions and then answer those questions, rather than testifying in a

narrative fashion. Judge Kessler had confirmed that no one had threatened

Afeworki or made him any promises in order to convince him to give up his right

to counsel. Finally, Judge Kessler informed Afeworki that he was not entitled to a

continuance of the trial date simply because he chose to proceed pro se.

After concluding the pro se colloquy, Judge Kessler had again offered

Afeworki an alternative to the waiver of his right to counsel, stating, "Since I am

offering you the opportunity to have another lawyer, whydon't you take that

option and see what you think of that next lawyer before you decide to give up

22
No. 70762-1-1/23

your right to a lawyer?" When Afeworki had insisted, stating, "I am proceeding

pro se," Judge Kessler had found a knowing, voluntary, and intelligent waiver of

the right to counsel, and granted Afeworki's request to proceed pro se. Even

then, however, Judge Kessler had offered Afeworki alternatives to waiver. He

had set a hearing for one week later and guaranteed Afeworki three choices at

that hearing.

[In one week] you can come here, tell me you still want to go

pro se, you got it. Tell me you have decided you want to take my

option - my offer up and get a second lawyer, a different lawyer,

you got it. You decide you want to keep Mr. Marchi you got it.

So you can have any of those three choices. You have got

one week to make that decision.

When the parties had returned to court one week later, Afeworki had withdrawn

his request for pro se status and, as promised, Judge Kessler had directed OPD

to appoint him new counsel. The record is thus clear that, prior to engaging in

the repeated misconduct that resulted in Judge Middaugh determining that he

had, by his conduct, impliedly waived his right to counsel, Afeworki had been

clearly informed of the peril he faced and the risks and consequences of

proceeding pro se.

The trial court herein was exceedingly fair to Afeworki. It took steps to

safeguard Afeworki's rights, even as he was abusing those rights in an attempt to

manipulate the trial process. Afeworki's choice to transgress the boundaries

clearly established by the trial court by engaging in further misconduct after being

warned by the trial court that he would be required to proceed pro se if he did so

constituted an implied waiver (a waiver by conduct) of his right to counsel. The

trial court did not err by so ruling.

-23-
No. 70762-1-1/24

Afeworki next contends that the trial court violated his right to due process.

This is so, he asserts, because it required him to wear a Band-It restraint system

throughout his trial. Afeworki's claim is unavailing.

"[A] defendant in a criminal case is entitled to appear at trial free from all

bonds or shackles except in extraordinary circumstances." State v. Finch, 137

Wn.2d 792, 842, 975 P.2d 967 (1999). "This is to ensure that the defendant

receives a fair and impartial trial as guaranteed by the Sixth and Fourteenth

Amendments of the United States Constitution and article I, section 3 and article

I, section 22 (amendment 10) of the Washington State Constitution." Finch, 137

Wn.2d at 843. "[Restraining a defendant during trial infringes upon this right to a

fair trial for several reasons[:]... it violates a defendant's presumption of

innocence[,].... it restricts the defendant's ability to assist his counsel during

trial, it interferes with the right to testify in one's own behalf, and itoffends the

dignity ofthe judicial process." Finch, 137Wn.2d at 844-45. Given the

constitutional implications of using restraintsin a criminal trial, "shackles or other

restraining devices should 'be used only when necessary to prevent injury to

those in the courtroom, to prevent disorderly conduct at trial, or to prevent an

escape.'" State v. Damon, 144Wn.2d 686, 691, 25 P.3d 418, 33 P.3d 735

(2001) (emphasis added) (quoting State v. Hartzog, 96 Wn.2d 383, 398, 635

P.2d 694 (1981)).

Subject to this limitation, a trial court has broad discretion to determine

which security measures are necessary to maintain decorum in the courtroom

-24
No. 70762-1-1/25

and to protect the safety of its occupants. Damon, 144 Wn.2d at 691. A trial

court may consider the following factors in determining whether the use of

restraints is justified:

"[T]he seriousness of the present charge against the defendant;

defendant's temperament and character; his age and physical

attributes; his past record; past escapes or attempted escapes, and

evidence of a present plan to escape; threats to harm others or

cause a disturbance; self-destructive tendencies; the risk of mob

violence or of attempted revenge by others; the possibility of rescue

by other offenders still at large; the size and the mood of the

audience; the nature and physical security of the courtroom; and

the adequacy and availability of alternative remedies."

Damon, 144 Wn.2d at 691 (alteration in original) (quoting Finch, 137 Wn.2d at

848). "[T]he trial court should allowthe use of restraints only after conducting a

hearing and entering findings into the record that are sufficient to justify the

use of the restraints." Damon, 144 Wn.2d at 691-92.

"[A] trial court is required to exercise discretion in determining whether use

of restraints is necessary to maintain decorum in the courtroom." Damon, 144

Wn.2d at 692. "[I]t is an abuse of discretion for the trial court to base its decision

to use restraints solely upon concerns expressed by a correctional officer."

Damon, 144 Wn.2d at 692.

A preliminary question invited by the circumstances of this case is whether

the Band-It system implicates the same constitutional concerns as other physical

restraints. A description of the Band-It system provides important contextfor this

inquiry.

The device is essentially a taser contained in a band that is worn under a

sleeve or pant leg. Unlike most restraints, which are either visible to jurors or

25
No. 70762-1-1/26

readily perceived by jurors, the Band-It is not visible when the wearer is

clothed.15 Also, unlike other restraints, the Band-It does not in any way directly

constrain the wearer's movements. In fact, the Band-It can cause a wearer's

movements to be constrained only when it is activated.

The design and functioning of the Band-It system address many of the

constitutional concerns associated with other types of physical restraints.

Because it is not visible to observers, it does not implicate the presumption of

innocence. Moreover, because the Band-It does not physically constrain a

defendant's movements, it does not implicate the defendant's right to the

assistance of counsel (nor could it, in this case, in which Afeworki proceeded pro

se at trial) or the defendant's right to testify. The sole remaining concern,

described in the cases, is the possibility that the restraint might nevertheless

interfere with a defendant's sense of autonomy and personal security, thus

compromising the defendant's ability to participate in the trial. Additional

precautions were taken herein to address this concern as well.

The jail's attorney assured the court that Afeworki would be informed

every morning of what activities—for example, lunging at someone—would

cause the Band-It to be activated. He would also be informed that mere

rudeness or interrupting the courtwould nottrigger this consequence.16

Furthermore, for the duration of the trial, the trial court took the unusual step of

15 It is not clear from the record where the band was placed on Afeworki.

16 Indeed, the record bears out the truth of the representation made by the jail's attorney

that mere rudeness would not cause the Band-It to be activated. While outfitted with the device,

Afeworki persisted in his rude behaviortoward the court, making statements such as "Bullshit. I

don't want to hear nothing more you have to say," and "You're crazy. You lost your rabid-ass

mind in this courtroom." Yet, the Band-It was never activated in the courtroom.

-26-
No. 70762-1-1/27

requiring both Afeworki and the prosecutor to remain seated at counsel table

whenever jurors were present in the courtroom.17 Thus, Afeworki was not

singled out as being restrained from moving freely about the courtroom.

Together, these additional steps minimized the possibility that Afeworki might

inadvertently engage in conduct that would lead to the device being activated or

otherwise be prejudiced by the existence of the security device.

Thus, as a general matter, the Band-It system posed fewer risks to

Afeworki's constitutional rights than other types of physical restraints. Moreover,

the specific orders of the trial court herein further minimized these risks by all but

eliminating the possibility that the Band-It would be activated due to an

inadvertent movement by Afeworki.18

The trial court's order is also supported by many of the considerations set

forth above regarding whether the use of restraints in a specific case isjustified.

Afeworki was charged with an extremely serious offense—first degree murder

with a firearm. Moreover, the State alleged that this conviction would constitute

Afeworki's third strike. Accordingly, he was subject to either a high term-of-years

sentence based on his high offender score or, iffound to be a persistent

offender, a life-without-parole sentence. As the attorney for the King County jail

noted, Afeworki's status as a potential persistent offender left him with "nothing to

17 Volunteer externs were used to ferry documents and exhibits back and forth in the

courtroom during trial.

18 There is no requirement that all of the constitutional concerns associated with physical

restraints be eliminated. In fact, the United States Supreme Court has hypothesized that, in

some cases, the use of extremely restrictive and highly visible restraints might be the best option

in terms of both a defendant's constitutional rights and the need to maintain courtroom security.

See Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) ("[l]n some

situations which we need not attempt to foresee, binding and gagging might possibly be the

fairest and most reasonable way to handle a defendant who acts as Allen did here.").

-27-
No. 70762-1-1/28

lose" should he attempt to escape or assault someone in the courtroom.

Moreover, Afeworki's unruly temperament was on display throughout the

proceedings leading up to the trial court's decision to order use of the Band-It.

He repeatedly spoke in a rude and aggressive manner to the court.19 Also, the

court was compelled on numerous occasions to reprimand him for interrupting

the court and counsel. Furthermore, the trial court more than once threatened to

have him removed from the courtroom because he was disrupting the

proceedings. In fact, during a hearing on July 16, 2013, only two days before the

court authorized use of the Band-It, the court was forced to recess the

proceedings twice in an attempt to control Afeworki's disruptive behavior, and the

number of jail personnel in the courtroom was doubled from two officers to four.

In addition to his verbally aggressive behavior toward the court, Afeworki

had threatened his attorney.20 Bible, who was well acquainted with his client and

had heard the threat, "If you play with fire, you get burned," did not believe that it

was limited to a threat to sue. Afeworki also made additional comments that

Bible took to be threats not only to himself, but also to his younger sister.

Finally, as required, the court considered alternative security measures.

For example, the court rejected the use of more restrictive physical restraints,

including a belly chain, standard handcuffs, and soft hand restraints. Moreover,

as noted, the court ordered other security measures that would work in concert

with the Band-It, including requiring both Afeworki and the prosecutor to remain

19 The following examples are representative of comments Afeworki made to the court: "I

don't want to hear nothing from you, your Honor." "[Ejverything that you're saying just sounds like

a whole bunch of bullshit."

20 The jail'sattorney explicitly relied on this threat at the hearing as part of the basis for

security concerns.

-28-
No. 70762-1-1/29

seated during all proceedings in front of the jury.21

The trial court herein was faced with the challenge of supervising the trial

of an obstreperous defendant, charged with the most serious of crimes, who had

demonstrated himself to be a threat to the safety of others. The court

determined—based on input from the parties and jail personnel, as well as from

drawing upon its own experience—that the use of some type of physical restraint

was necessary to secure the courtroom and prevent Afeworki from engaging in

dangerous misconduct. Thereafter, the court considered various types of

physical restraints and ordered the use of the least restrictive, appropriate

alternative. It also ordered additional security measures to complement the use

of the physical restraint. The court thereby fashioned a comprehensive order

that protected both Afeworki's constitutional rights and the safety of the people

present in the courtroom for histrial. The trial court's decision was reasonable.

There was no error.22

A majority of the panel having determined that only the forgoing portion of

21 Additional considerations weighing in favor of the trial court's decision were Afeworki's

age and physical attributes (he was in his late20s,stood 5'10" tall, and weighed 190 pounds), his

criminal history (which included several serious crimes), and evidence that he was a gang

member.

22 Afeworki also contends that the trial court erred by basing its decision to order use of

the Band-It system solely upon concerns expressed byjail personnel. This is so, he asserts,

because the trial court made an isolated statement that it accepted the assessment of Afeworki's

"security risk level" presented bythe jail'sattorney. This contention is contrary to the record.

Before ordering the restraints discussed, the trial court participated in a lengthy, on-therecord discussion regarding whether and, ifso, what security measures would be implemented.

The court heard not onlyfrom the jail's attorney and corrections officers, but also from the

prosecutor and Afeworki himself. The factors weighing in favor ofthe security measures ordered

by the court (outlined above) were either explicitly mentioned at this hearing orwere in the record

before the court at that time. Moreover, the court explicitly relied on its own experience. For

example, in response to Afeworki's insistence that he would notcause problems, the court stated:

"I hardly have defendants, when this issuecomes up who say, 'oh yes, Iamgoing tojump up and

attack.' It usually happens in a fit of anger."

The numerous factors supporting the use of the Band-It also belie Afeworki's present

assertion that the trial court based its decision solely on Afeworki's pro se status.

-29-
No. 70762-1-1/30

this opinion will be printed in the Washington Appellate Reports and that the

remainder shall be filed for public record pursuant to RCW 2.06.040, it is so

ordered.

IV

In a statement of additional grounds for review, as allowed by RAP 10.10,

Afeworki asserts the following additional claims.

Afeworki asserts an appearance of fairness claim, alleging judicial bias

and racial discrimination.23 "An appearance of fairness claim requires proof of

actual or potential bias. Mere speculation is not enough. Furthermore, we

presume a judge performs his or her duties without prejudice." State v. Harris,

123 Wn. App. 906, 914, 99 P.3d 902 (2004) (footnotes omitted), abrogatedon

other grounds bv State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005). The

23 Afeworki claims the following took place:

• "The trial court judge impedes on Mr. Afeworki's right to access of the court

byconcealingand attempting to conceal [the monkey clock] issues from

reaching higher courts."

• "Trial court judge denies legal material, time to prepare witnesses and rightto

call witnesses, while allowing prosecution to call witnesses at will

discriminating agaist [sic] Mr. Afeworki."

• "Interefer's [sic] in defense, allowing tampering of witness, causing intentional

delays and giving impression she favored prosecutions [sic] case. Allows in

tainted evidence."

• "Threatening Mr. Afeworki."

• "Minipulation [sic] of court hearings. Attemptsto conceal motion. Interfering in

Mr. Afeworki's access to jail law library and suspicious acts with Exhibit #19

(Boxw/ Helwan are [sic] hand gun with magazine catridges [sic] and manila

envelopes."

• "Depriving Mr. Afeworki of Information needed for defense. Misrepresenting

facts of the case acting in concert with prosecutor to put on a show for the

media in the court room."

• "Trial court judge did not consider facts in pretrial ruling just made ruling

against Mr. Afeworki in order to deprive a fair trial."

• "Trial court judge stops Mr. Afeworki defense by excluding relevant information that

go's [sic] to the heart of Mr. Afeworki's defense."

30
No. 70762-1-1/31

record that is properly before us24 does not support Afeworki's allegations.

Accordingly, his claim fails.

Afeworki also asserts a claim of prosecutorial misconduct based on

allegedly improper argument.25 "[T]he prosecuting attorney has wide latitude to

argue reasonable inferences from the evidence, including evidence respecting

24 In making his arguments, Afeworki frequently relies on his own perception of tone of

voice or facial expression. Because such things are outside the record on appeal, we will not

consider them in deciding whether the trial court's actions ran afoul of the appearance of fairness

doctrine. Afeworki also relies on statements that he claims were made, but that are not included

in the transcript of trial court proceedings.

25 Afeworki claims that the following took place:

• "Prosecutor makes statement to inflame the passion and prejudice of the

jury. Tells jury it's thier [sic] obligation to find Mr. Afeworki guilty. Injects

personal opinion of guilt."

• "Prosecutor draws to defendants [sic] exercise of privilege."

• "Prosecutor misrepresents witness testimony."

o "Misrepresents witness Natalia's testimony."

o "Prosecutor misrepresents Jean Marie Hayes [sic] testimony."

o "Prosecutor misrepresents Mohammed Dima's testimony."

• "Prosecutor misrepresents Elijah Knights [sic] testimony."

• "Prosecutor misrepresents Detective Kasner's testimony."

• "Prosecutor violates rules of proffessional [sic] conduct: &violates title 18

USCA section 1001."

• "Constantly calling Mr. Afeworki killer, shooter: Injection of personal belief of

guilt."

• "Prosecutor insinuates possession of personal knowledge of fact not offered

in evidence and boasts cridibility [sic] of officer's [sic]."

o "Prosecutor insinuates officer's [sic] 'may have' took pictures."

o "Prosecutor insinuates finger prints on gun and consistant [sic]

D.N.A. match."

o "Prosecutor insinuates what missing evidence may posses [sic] and

makes excuse for detective failure to investigate the case."

o "Prosecutor makes excuses for officer's [sic] boasting thier [sic]

credibility."

• "Prosecutor tells the jury to believe Mr. Afeworki then they have to believe:

officers committed perjury."

• "Prosecutor confuses jury as to thier [sic] duty and burden of the state."

• "Insinuates Mr. Afeworki a liar & injects personal belief of guilt."

• "Prosecutor draws to his personal choice of homosexuality &family life to

inflame jury's passion and prejudice."

• "Misrepresentation of facts and testimony [related to the collection of crime

scene evidence]."

o "Misrepresents Mr. Afeworki's testimony."

• "Vouchs[sic] for mystery stillsto boast credibility of detective."

• "Prosecutor uses Hielum [sic] Gebra's false testimony knowingly and misrepresents

the facts to jury to deprive Mr. Afeworki of a fair trial."

• "State acts in concert to produce falsified testimony with detective Steiger."

-31 -
No. 70762-1-1/32

the credibility of witnesses." State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d

43 (2011). "[T]o establish prosecutorial misconduct, a defendant must prove that

the prosecutor's conduct was improper and that it prejudiced his right to a fair

trial." State v. Jackson, 150 Wn. App. 877, 882, 209 P.3d 553 (2009). "A

defendant can establish prejudice only ifthere is a substantial likelihood that the

misconduct affected the jury's verdict." Jackson, 150 Wn. App. at 883.

"Ifthe defendant did not object at trial, the defendant is deemed to have

waived any error, unless ... the defendant showfs] that (1) 'no curative

instruction would have obviated any prejudicial effect on the jury' and (2) the

misconduct resulted in prejudice that 'had a substantial likelihood of affecting the

jury verdict.'" State v. Emerv, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012)

(quoting Thorgerson, 172 Wn.2d at 455). "[R]emarks are not per se incurable

simply because they touch upon a defendant's constitutional rights." Emerv, 174

Wn.2d at 763; accord State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245, 39

P.3d 294 (2001) ("Some improper prosecutorial remarks can touch on a

constitutional right but still be curable."); see also State v. Warren, 165 Wn.2d 17,

28, 195 P.3d 940 (2008) (prosecutor's flagrantly improper comments in closing

argument, undermining the presumption of innocence were cured by trial court

giving a correct and thorough curative instruction on the reasonable doubt

standard). Because Afeworki did not object at trial to the misconduct he alleges

and any resulting prejudice could have been cured by a proper instruction to the

jury, his claim fails.

32
No. 70762-1-1/33

Afeworki next asserts that the State committed multiple Brady violations.26

In a criminal case, the prosecution must disclose to the defense any evidence

that is favorable to the accused and material to guilt or punishment. Brady v.

Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963). However,

the failure to preserve "potentially useful" evidence is not a due process violation

unless the defendant can show bad faith on the part of the State. State v.

Wittenbarger, 124 Wn.2d 467, 477, 880 P.2d 517 (1994) (citing Arizona v.

Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L Ed. 2d 281 (1988)).

Potentially useful evidence is "'evidentiary material of which no more can be said

than that it could have been subjected to tests, the results of which might have

exonerated the defendant.'" State v. Groth, 163 Wn. App. 548, 557, 261 P.3d

183 (2011) (quoting Youngblood, 488 U.S. at 57). "The presence or absence of

bad faith by the police for purposes of the Due Process Clause must necessarily

turn on the police's knowledge of the exculpatory value of the evidence at the

time itwas lost or destroyed.'" Groth, 163 Wn. App. at 558 (quoting Youngblood,

488 U.S. at 56 n.*). Because he does not establish that the State either withheld

any Brady material or improperlyfailed to preserve any potentially useful

evidence, Afeworki's claim fails.

Afeworki next challenges various aspects of the certification for

determination of probable cause. "[A]lthough a suspect who is presently

26 Afeworki makes the following specific claims: the State provided him late and

incomplete discovery; the State failed to maintain contact with every witness; the State failed to

preserve certain evidence, including the white towel apparently used in the shooting and video

from Zaina Restaurant; the State destroyed audio and video recordings from the car that

transported Afeworki to jail; the State did not provide him a complete copy of the video from the

interrogation room; and the State tampered with the in-carvideo that recorded his Miranda

advisement.

33-
No. 70762-1-1/34

detained may challenge the probable cause for that confinement, a conviction will

not be vacated on the ground that the defendant was detained pending trial

without a determination of probable cause." Gerstein v. Pugh, 420 U.S. 103,

119, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). Thus, even if Afeworki were correct,

he would not be entitled to relief on this claim.

Afeworki next asserts an ineffective assistance of counsel claim related to

the representation of his third attorney, Anthony Savage Jr. To prevail on a claim

of ineffective assistance of counsel the defendant must demonstrate that: (1)

counsel's representation was deficient, meaning it fell below an objective

standard of reasonableness based on consideration of all of the circumstances;

and (2) the defendant was prejudiced, meaning there is a reasonable probability

that the result of the proceeding would have been different but for the challenged

conduct. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251

(1995). If we decide that either prong has not been met, we need not address

the other prong. State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (1990).

Afeworki was represented by three additional attorneys after Mr. Savage was

allowed to withdraw. Ultimately, Afeworki represented himself at trial. He does

not establish prejudice arising from his claim against Mr. Savage. Therefore, his

claim fails.27

27 Denial of relief on this basis does not constitute a ruling from this court that Mr.

Savage, in any way, failed to properlydischarge his duties to his client.

34-
No. 70762-1-1/35

Finally, Afeworki asserts that the State, through the police, tampered with

witness testimony.28 He concludes that his "right to confrontion [sic] has been

violated." Afeworki's claim relies on asserted evidence outside the record, is

speculative, and is not supported by considered argument. State v. Johnson,

119 Wn.2d 167, 171, 829 P.2d 1082 (1992) ('"naked castings into the

constitutional sea are not sufficient to command judicial consideration'" (internal

quotation marks omitted) (quoting In re Reguest of Rosier, 105Wn.2d 606, 616,

717 P.2d 1353 (1986))). Therefore, the claim of errorfails.29

Affirmed.

We concur:

£~/.^.

28 Specifically, Afeworki claims that Detective Steiger tampered with Gebra'stestimony.

29 In addition to his statement of additional grounds, Afeworki filed a brief entitled,

"Appellant's Reply to: "State's Response to Defendant's Statement ofAdditional Grounds for

Review RAP 10.2(D)". This court did notauthorize thisadditional briefing and, therefore, we do

not consider this pleading. See RAP 10.10(f).

-35-
No. 70762-1-1, State v. Tomas Solomon Afeworki

Trickey, J. (dissenting) — I respectfully dissent. Washington courts have

adopted the doctrine ofwaiver of counsel by conduct set forth in United States v.

Goldberg, 67 F.3d 1092, 1100-02 (3rd Cir. 1995). See Citv of Seattle v. Klein, 161

Wn.2d 554, 562, 166 P.3d 1149 (2007) (waiver of state constitutional right to

appeal) (citing Citv of Tacoma v. Bishop, 82 Wn. App. 850, 859, 920 P.2d 214

(1996)). In concluding there was a waiver of counsel by conduct here, the majority

outlines the difficulties the trial court faced with this criminal defendant when the

case was pending on a charge of murder in the first degree while armed with a

firearm. However, when the trial court permitted the defendant's appointed

counsel towithdraw on the eve oftrial, the trial court in my view had not adequately

warned the defendant that his repeated misbehavior would lead to the waiver of

counsel by conduct. Nor had the trial court sufficiently considered other

alternatives instead of allowing counsel to withdraw. The defendant did not

knowingly, intelligently, and voluntarily waive his right to counsel.

Here, the chief criminal judge conducted the first colloquy with the

defendant on the risks and requirements of self-representation on July 18, 2012,

almost one year before trial on July 16, 2013.1 That colloquy, while thorough, did

not include a specific discussion of potential consequences for the defendant if he

attempted to delay or disrupt court proceedings.

1The trial had started on April 24, 2013, but had to be set over to July 16, 2013, due to a serious

medical issue in defense counsel's family.
No. 70762-1-1, dissent/2

On June 18, 2013, the trial court engaged in the second colloquy with the

defendant on self-representation at a pretrial hearing. The defendant consistently

interrupted the proceedings and expressed his dissatisfaction with his attorney.

Although the court instructed the defendant that he could not argue his own

motions and should not be disruptive, the court did not warn the defendant that

such behavior if it continued would result in the waiver of his right to counsel. Nor

did the trial court advise the defendant that he would be risking other sanctions

such as contempt or removal from the courtroom if he persisted in his conduct.

The trial court, concerned that the defendant's motion for selfrepresentation expressed during the June 18, 2013 hearing was equivocal,

referred the matter back to the chief criminal judge. On June 21, 2013, because

the defendant would not respond to questions and insisted on arguing his own

motions, the chief criminal judge found the request for self-representation to be

equivocal and denied the motion.2

The defendant persisted in his argumentative behavior during the series of

pretrial hearings on July 16-18, 2013. The trial court ruled on July 16, 2013 that

the defendant's renewed request to represent himself was untimely. Yet the trial

court allowed defense counsel to withdraw on July 18, 2013.

The court learned of the defendant's first threat to defense counsel during

the July 16 hearing. In response, the court said to the defendant that "[i]f you

should say or do anything further in this case that makes him as an officer of the

2The verbatim report of proceedings does not contain a transcript of the June 21, 2013 hearing,

but the ruling isreflected in an orderentered on July 16,2013.
No. 70762-1-1, dissent/3

[c]ourt feel that he has to withdraw as your attorney, he can do so."3 The court

also said that the result would be the defendant would be "allowed to go pro se."4

In my view, the trial court's admonitions on July 16 and 17 were insufficient

to adequatelywarn the defendant that he was in danger of permanently losing his

right to counsel if he made more threats to his attorney. The trial court's warnings

here were unlike the trial court's warnings in United States v. Thomas, 357 F.3d

357, 360 (3rd Cir. 2004), where the defendant there was explicitly told that

"repetitive terminations of counsel... may be construed as a waiver of this [Sixth]

Amendment right to counsel with the implications being then that you would have

to represent yourself."

Nor did the trial court consider other alternatives to managing the

defendant's misconduct such as contempt, removal from the courtroom, or

restraints in the courtroom, as the State suggested.5 See Illinois v. Allen, 397 U.S.

337, 343-44, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). "The manner of maintaining

order in the courtroom iswithin the trial judge'sdiscretion; the leastsevere remedy

to accomplish the result is preferable." State v. DeWeese, 117 Wn.2d 369, 380,

816P.2d 1 (1991).

Unfortunately, Ihave to conclude that the defendant did not knowingly waive

his right to counsel by conduct. The "'deprivation of the right to counsel is so

inconsistent with the right to a fair trial that it can never be treated as harmless

3Reportof Proceeding (RP)(July 16, 2013) at 38.

^ RP (July 16, 2013) at 38.

5The State objected to defense counsel's withdrawal and suggested the court consider other

alternatives such as restraints on the defendant while in the courtroom. The restraints were

imposed after defense counsel withdrew.
No. 70762-1-1, dissent/4

error.'" State v. Silva. 108 Wn. App. 536, 542, 31 P. 3d 729 (2001) (quoting Frazier

v. United States, 18 F.3d 778, 782 (9th Cir. 1994) (citing Chapman v. California,

386 U.S. 18, 23 n.8, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). The conviction must

be reversed and the case remanded for a new trial.

| /I J^ey vJ~"