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## IN THE COURTOFAPPEALSOFTHE STATE OFWASHINGTON ° 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 Amendmentright to counsel, while fundamental, 

### is nota rightwithout limitation. Specifically, it isnot a right subjectto endless abuse by a defendant.'"1 

### Tomas Afeworki was charged with murderin the first degree. During 

## pretrial proceedings, he experienced significantand ongoing conflictwith each of his several attorneys. On the eve oftrial, Afeworki repeatedly threatened his 

### attorney, who waspermitted towithdraw as a result. Afeworki was, thereafter, required torepresent himselfpro se. On appeal, Afeworki contends thatthis deprived him of his right to counsel. 

### Afterthreatening his attorney,Afeworki was also required to wear a 

### physical security restraint, notvisible toobservers, while in the courtroom. Afeworki now contends thatthis requirement violated his rightto afair trial.2

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

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

### 2In alengthy statementofadditional grounds for review, Afeworki assertsseveral additional claims. These are addressed and resolved in the unpublished sections of thisopinion.No. 70762-1-1/2 

### Finding no error in the trialcourt's supervision of the trial of this most difficult defendant, we affirm.
I 

### On October 26, 2010, Haylom Gebra and MichaelYohannes 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 upwith 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 themfrom 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 immediateaftermath, 

### 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 thenorthwest cornerofSecond and Pike. From directly
across the street, Dimasaw a "body just drop" and saw a man standing there 

### with "something white onhis hand." Theman thenwrapped an object in "that 

### white thing," placed thewrapped object in his pocket, and beganwalking north
on Second Avenue. Dima described the man as a black man wearing a 

### brownish "hoodie" and bluejeans with something brownish on the backpocket. 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 Frenchfries, and asked to use the bathroom. When policeNo. 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 ofthe 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 cartridgesfrom the toiletbowl. Forensic analysis later demonstrated that these unfired cartridges 

### had been cycled through the handgunfound 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 broughtto a place near the scene ofthe 

### shooting for a showup identification procedure. Two ofthewitnesses, Elijah 

### Knight and Jean Marie Hayes, identified Afeworki as the shooterby his clothing. DNA recoveredfrom the handgunfound in the bathroom trash can provided further evidence that Afeworki was the shooter; comparing the partial DNA profile 

### obtainedfrom the gun toAfeworki's DNA profile resulted in a 1 in 120,000 chance that someone other than Afeworki was the source ofthe 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 ofappearance on behalfofAfeworki. Five weeks later, on December 6, a notice of withdrawal and consent for substitution announced that attorney John Henry Browne was

-3No. 70762-1-1/4 

### substituting for Marchi. On January 31, 2011, Browne filed a notice ofattorney's intent to withdraw. On February 7, attorney Anthony Savage Jr. filed a notice of 

### appearance. Eight months later, on October4, Savage was allowed to withdraw due to illness, and a hearing was set to confirm the appointment ofcounsel 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 forViolation of Due 

### Process, [Due] to Prosecutorial Misconductfor Charging with Falsified Probable Cause."3 

### Notcontent 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 putin a motion to dismissfor violation of Due Process" on various grounds. Heinformed the court that ifMarchi did not file his motion as directed, he would "feel like Idon't have my Attorney's 

### undivided loyalty and a conflictwill arise because myconstitutional rights are not 

### protected." Afeworki followed this with an evenmore emphatic letter, datedJuly 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. Marchijoined 

### inthe motion, telling the court that "[o]urpositions 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 thatAfeworki 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. Afeworkiresponded, "Your Honor, then Iwould like to move pro se pursuant to Faretta v. California."4 When Judge Kessler questioned whetherAfeworki, in 

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

### responded unequivocally: "Maybe you didn't understand me. Iam invoking my right to proceed pro se." 

### Judge Kessleraccordingly began the pro se colloquy. Hefirst 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 ifhe 

### understood that the charged crime carried a maximum penalty oflife 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.

4422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).No. 70762-1-1/6
The next part ofthe 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 disbeliefand 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 Westlawkiosk in thejail. Judge Kessler then underscored the importance of knowing the rules ofevidence by offering an example. 

### [I]fthe 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 ofevidence, or why the 

### objection should be taken, or what the objection is, that evidence will come inagainst you and you will not later be able to appeal that.No. 70762-1-1/7 

### Making a similarpoint, 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 seektrial preparation services, such as expert witness services, through OPD. Furthermore, he asked Afeworkiwhether he understood that, if he decided to 

### testify in the case, thetrialjudgemight require him to ask himselfquestions and then answerthose questions, rather than permitting him to testifyin narrative fashion. Afeworki said that he understood. 

### Judge Kesslerthen askedAfeworki whetheranyone hadthreatened him or made any promises in order to convince him to give up hisright to a lawyer. 

### Afeworki responded, "No." Finally, the judgeinformed Afeworki that he did not 

### have a rightto a continuance ofhis trial date, butthat hecould askfor oneifhe
desired. 

### Warning Afeworki thatrepresenting himselfwas a "serious mistake," the court tried one more time: "Since Iam offering you the opportunity to have 

### anotherlawyer, why don'tyou take thatoption and see whatyou think ofthat 

### next lawyerbefore you decide togive up your rightto a lawyer?" When Afeworki insisted, stating, "I am proceeding pro se," Judge Kessler replied, "You got it." 

### Judge Kesslerthen found aknowing, voluntary, and intelligentwaiverofthe right to counsel, and granted Afeworki's request to proceed pro se. The court nevertheless leftAfeworki the option of being represented by 

### counsel. The courtset a hearing for one weeklater, requiring defense counsel to remain on the case until that time. The court told Afeworki that he could chooseNo. 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 stillwant 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 ofthose 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 stillwished to represent himself. Accusing the court of 

### "intentionally impairing me and punishing me for exercising myrights" by refusing himstandby counsel and access to law books, Afeworki withdrew his pro se 

### status "[ujnderduress and under fear." The court agreed to direct OPD to 

### appoint new counsel. On August 2, attorneyJames Bible filed a notice of appearance. Bible subsequently requested and obtainedfunding for another attorney, Anna Gigliotti, to assist him. 

### OnApril 11, 2013, the case was assigned fortrial before the Honorable Laura Gene Middaugh. The trial court subsequently denied defense motions to 

### suppress evidence broughtpursuantto CrR 3.5 (confession procedure) and CrR
5Judge Kessler made clear thatAfeworki was prose in the interim until the hearing one week later. THE COURT: He can change his mind. THE COURT: But as ofthis 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. Theimport of Judge Kessler's actions is clearfrom therecord. Judge Kessler, afterafull colloquy, ruled thatAfeworki hadaffirmatively waived hisright to be representedby counsel and invoked hisrighttoproceed pro se. Then, in a properexercise ofthe court'sdiscretion, 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 potentialjurors 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 thinkthere was any real possibility of pleasing Afeworki, who was alleging a conflict. Bible said that Afeworki understood that the likelyalternative 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 haddeliberately placed a clockwith a monkey on itsface in the courtroom, intending to degrade and demean him because of hisAfrican heritage. The prosecutor pointed out that the court hadreplaced the nonfunctioning courtroom clock with one that had been inchambers; this clock had a "Paul Frank" logo monkey on its face. There had been noobjection byanyone at the time of the clock's placementin the courtroom. Thetrial 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 commenceddoing so several monthsbefore. In a letterto the court, dated December 16, 2012, Afeworki expressed hisfrustration that Bible would notfile his pro se motions, writing, "I've asked my Attorney to turnin important pretrial motions, forthe past 5 month[s] my attorney has notdone as such." Hethen asked the courttoappoint him "effective counsel that will file very important pre-trial motions
... on my behalf." Atsubsequent proceedings, Afeworki continued to expressdissatisfaction with Bible's unwillingness tofile all of the prose motions thatAfeworki desired to befiled. Forexample, onApril 22,2013, Afeworki interjected thefollowing: "Fortherecord, Ihave asked my attorney to putin a motion todismiss forviolation of RPC 3.8 on the prosecutor's behalf. He has refused me, and Iam justputting that on the record." The court responded byinforming Afeworki that he could either have a lawyeror hecould represent himself, but "you can't haveit both ways." Nevertheless, justtwo dayslater, Afeworkicontinued 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 ofthe trial date, Afeworki responded, "What Iunderstand is Iwant 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 CriminalJudge 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" self

### representation, 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 laterAfeworki 

### prepared and signed a notarized motion and affidavit seeking toproceed 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. Iam 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 Afeworkiclaimed that he had sent it to the court through the mail on the date on which itwas 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 "whollyinappropriate," and said that he was not sure what 

### Afeworki meant by it. Afeworki responded, "Itmeans exactly as itsounds." When pressed by the court, however, Afeworkitempered his words, claiming that 

### he only meant that "[i]fthere is any type of lawsuits, Iam going to be suing his

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

### situation where this trialwill not go forward, which is what Ithink that you are 

### intending and trying to do." The court made the consequences clear: 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. 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 nextmorning, however, Bible was asking towithdraw. Hetold the court that, as Afeworki was leaving the courtroom after the previous day's 

### proceedings, he accused Bible of"shaking down" Afeworki's sister formoney. Bible took this allegation veryseriously, as his law firm had been appointed by OPD, and such a claim threatened his livelihood.

11No. 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 commentto be a threat as well. Bible believed that his continued representation of Afeworki would be in violation ofthe 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 

### longerrepresent him, so that the courtwould givehim a newattorney. The court refused to condone this behavior.
9It is not clear from either Bible's in-court statement or the trial court's findings of fact regarding Bible's requesttowithdraw whetherthis commentwas madebefore or afterthetrial 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 knowwhere your sister lives'...."). 10 All participants understood Bible's motion towithdraw toinclude thewithdrawal of attorney Gigliotti as well. Therecord makes clearthat she was appointed solely to assistBible. Thepossibility ofGigliotti serving as Afeworki's sole counsel attrial was notconsidered to be a viable option.
-12-No. 70762-1-1/13
Iknow that you have been advised on this inthe past. Idid say 

### yesterday that Iwill certainly consider allowing you to proceed representing yourself, but Iwill 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 ofthat would be that you would be 

### representing yourselfbut 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 ofthat, Iam ready to proceed pro 

### se. Iam ready to represent myself. Ifeel like it is my US constitutional right. Iam pretty sure it is underWashington State law too, where Icould represent myselfifIdecide to represent myself.Iam 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 thatAfeworki had knowingly and 

### voluntarily waived hisrightto counsel: "he understands the charges against him, the consequences, ifhe is found guilty under all of the scenarios that he has 

### been proposed." The court added that thisconclusion 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 notjust 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, Ifind 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: Iwill say it now, Ibelieve that your actions were done with the intent of having Mr. Bible withdraw so that you could get another attorney, when Ihad refused your motion. That Ibelieve that you were trying to set it up so that you could be put in the position where Iwould have to give you another attorney. Iexplained 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. Imade itclear 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. Itcannot be changed. You are now representing yourself. Itwas not a wise decision, Iagree. We all tried to make itquite 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. Youcannot change them now. Iwill 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 withJudge 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 18was a Thursday. Consistentwith King County SuperiorCourtscheduling practices, the trial did not resume until July 22, the following Monday.

14No. 70762-1-1/15
You made a motion to represent yourselfon the eve of jury selection. Idenied 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 ofthat. 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 ofthe 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 Iallowed 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. Ihave made findings on the record that Ibelieve that your actions have been intended to delay this trial, that your actions were intended to force Mr. Bible to withdraw because Idenied your 

### motion to grant you a new attorney, and Ibelieve that your actions have been -1 have made the findings, and Ibelieve the record 

### supports them, that ithas 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 likelythan 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.

15No. 70762-1-1/16
The trial resumed with Afeworki proceeding pro se. Thejury 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 withfelonies, 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 ofthe right to counsel requires that the defendant be made aware of the risks and disadvantages of self

### representation, with an indication on the record that "'he knows what he isdoing 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 mustfollow in presenting his case." Citv of Tacoma v. Bishop, 82Wn. 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 self

### representation." Bishop, 82Wn. App. at 856 (citing Acrev, 103 Wn.2d at 211).

16No. 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 [byconduct]."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 thepurpose ofdelaying and disrupting trial." (emphasis added)). 

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

### (3rd Cir. 1995), "isinstructive" in its explanation of the distinctions between the concepts ofaffirmative waiver, forfeiture, and waiver byconductwith regard to 

### the rightto counsel. Bishop, 82Wn. App. at 857.13 Asexplained 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]tthe other end of the spectrum is . . . 'forfeiture.' Unlike waiver, which requires a knowing and intentional relinquishment of a known right, forfeiture results inthe loss of a rightregardless ofthe defendant's knowledge 

### thereofand irrespective ofwhether 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

12Waiver by conduct is also referred to as de facto waiverand implied waiver. 13 The portion ofBishop thatrelies onGoldberg was citedwith 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 itcombines elements ofwaiver 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 rightto 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 ofthisdoctrine is notlimited to dilatory conduct. Other 

### types ofmisconduct may alsogive rise toits application. See, e.g., Thomas, 357 F.3d at 362-65 (affirming trial court'sfinding that defendant had impliedly waived 

### hisrightto counsel bythreatening toharm and verbally abusing hisattorney as well as byurging 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 ofthe 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 thateventually gives rise to the waiver. There is no requirement that it be timed (somehow) to directly—or

18No. 70762-1-1/19

even closely—precede the relevant misconduct. Thomas, 357 F.3d at 363. As explained in one ofthe seminal cases discussing the issue, 

### [the] suggestion that the District Court should have timed the [pro se] colloquy on the eve ofcounsel'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 inthe waiver of one's right to counsel; thus, we focus on whether [the defendant] was warned ofthe 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 courtengaged 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 

### orderrequiring him to proceed pro se cannotfairly 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 infurther 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 ofthe risks and disadvantages of self-representation. Afeworki's initialthreat 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, "Ifyou play 

### with fire, you get burned." Bible found this comment "wholly inappropriate" and perceived itas 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 trialwill not go forward, which is what Ithink that 

### you are intending andtrying to do." Thecourt 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.

20No. 70762-1-1/21
Afeworki did not cease his misbehavior after the court's warning, thereby 

### setting in motion the series ofevents 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 ofthis further threat, Bible believed that his continued 

### representation ofAfeworki would be inviolation of the Rules ofProfessional Conduct and sought permission fromthe court to withdraw. The court allowed Bible to withdraw. (Moreover, the associate counsel, Gigliotti, was unable to 

### assume full orprimary responsibility for the case andwithdrew with Bible.)14 Only then, in conformancewith its earlierwarning, did the trial court require Afeworki to proceed pro se. Afeworki was well aware ofthe risks and disadvantages ofself

### representation before he committed the misconduct thatfollowed the court's warning. Afeworki had previously brought a motion to proceed pro se in thisvery
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 ifhe 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 oflife in prison and a $50,000fine and that, ifhe werefound 14 Notably, onappeal, Afeworki does notassign errorto thetrial court's decision topermit Bible and Gigliotti towithdraw. Thismay be because the courtasked Afeworki ifhe 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 ofparole. 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 ofevidence and 

### stressed the importance ofunderstanding those rules inorder to properly trythe
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 informedAfeworki concerning how to seek trial 

### preparation services, such as expert witness services. He had also informed Afeworki that, ifhe decided to testify in the case, he might be required to ask 

### himselfquestions and then answerthose questions, rather than testifying in a narrative fashion. Judge Kessler had confirmed that no one had threatened Afeworki or made him any promises in orderto convince him to give up his right 

### to counsel. Finally, Judge Kessler informed Afeworki that he was not entitled to a continuance ofthe 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 Iam 

### offering you the opportunity to have another lawyer, whydon't you take that option and see what youthink of that nextlawyer before you decide to give up

22No. 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 ofthose 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 clearthat, 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 clearlyinformed 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 trialprocess. Afeworki's choice to transgress the boundaries 

### clearlyestablished 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 ifhe 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 itrequired 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 inextraordinary 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 trialas 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 duringtrial infringes upon this rightto a fairtrial forseveral reasons[:]... it violates a defendant's presumption of 

### innocence[,].... it restricts the defendant's ability to assist his counselduring trial, it interfereswith the righttotestify in one's own behalf, and itoffends the 

### dignity ofthejudicial process." Finch, 137Wn.2d at 844-45. Given the constitutional implications ofusing restraintsin a criminal trial, "shackles or other restraining devices should 'be used only whennecessary to preventinjury to those in the courtroom, to preventdisorderly conduct attrial, 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, 96Wn.2d 383, 398, 635 P.2d 694 (1981)). 

### Subject to this limitation, a trial court has broaddiscretion to determine which securitymeasures are necessary to maintain decorum in the courtroom

-24No. 70762-1-1/25


### and to protectthe safety of its occupants. Damon, 144 Wn.2d at 691. A trial court may considerthe following factors indetermining whether the use of restraints is justified: 

### "[T]heseriousness ofthe 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 ofmob violence or ofattempted 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 ofthe courtroom; and the adequacy and availability ofalternative remedies." Damon, 144 Wn.2d at 691 (alteration in original) (quoting Finch, 137 Wn.2d at 

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

### hearing and enteringfindings into the record that are sufficienttojustify the

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

### "[A] trial court is required to exercise discretion in determining whether use ofrestraints 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 correctionalofficer." Damon, 144 Wn.2d at 692. 

### Apreliminary question invited by the circumstances of this case is whether 

### the Band-It system implicates the same constitutional concerns as otherphysical restraints. Adescription of the Band-It system providesimportant 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

25No. 70762-1-1/26 readily perceived byjurors, 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 ofthe Band-It system address many ofthe constitutional concerns associated with other types of physical restraints. Because it is not visible to observers, itdoes not implicate the presumption of innocence. Moreover, because the Band-It does not physically constrain a defendant's movements, itdoes not implicate the defendant's right to the 

### assistance ofcounsel (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 ofautonomy 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 whatactivities—forexample, lunging at someone—would

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

### rudeness orinterrupting the courtwould nottriggerthisconsequence.16 Furthermore, forthe duration ofthe 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 persistedin his rude behaviortoward the court, making statements such as "Bullshit. I don't want to hear nothing moreyou 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 bothAfeworki andthe prosecutor to remain seated at counsel table 

### wheneverjurors 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 ofthe security device. Thus, as a general matter, the Band-It system posed fewer risks to Afeworki's constitutional rights than other types ofphysical restraints. Moreover, the specific orders ofthe 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 byAfeworki.18 The trial court's order is also supported by many ofthe considerations set 

### forth above regarding whether the use of restraints in a specificcase 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 subjectto 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 Countyjail 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 didhere.").

-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 ofthe Band-It. 

### He repeatedly spoke in a rude and aggressive mannerto 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 jailpersonnel inthe courtroom was doubled from two officers to four. In addition to his verbally aggressive behaviortoward the court, Afeworki 

### had threatened his attorney.20 Bible, who was wellacquainted with his client and had heard the threat, "Ifyou play withfire, 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 

### withthe Band-It, including requiring both Afeworki and the prosecutorto remain 19 The following examples are representative of comments Afeworki made to the court: "I don't want to hear nothing from you, yourHonor." "[Ejverything that you're saying just sounds like a whole bunch of bullshit." 20 The jail'sattorneyexplicitly relied on this threat at the hearing as part of the basis for security concerns.
-28-No. 70762-1-1/29 

### seated during allproceedings in front of thejury.21 The trial court herein was faced with the challenge of supervising the trial of an obstreperous defendant, charged with the most serious ofcrimes, who had demonstrated himselfto be a threat to the safety of others. The court 

### determined—based on input from the parties and jailpersonnel, as well as from 

### drawing upon its own experience—thatthe use ofsome type of physical restraint
was necessary to secure the courtroom and preventAfeworki from engaging in 

### dangerous misconduct. Thereafter, the court considered various types of physical restraints and ordered the use of the least restrictive, appropriate alternative. Italso 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. Thetrial court's decision was reasonable. There was no error.22 

### Amajority 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 andphysical attributes (he was in his late20s, stood 5'10" tall, andweighed 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 itaccepted the assessment of Afeworki's "security risk level" presented bythe jail'sattorney. This contention iscontrary to the record. Before ordering the restraints discussed, the trial courtparticipated in a lengthy, on-therecord discussion regarding whether and, ifso, what securitymeasures would be implemented. The court heard not onlyfrom the jail's attorney and correctionsofficers, but also from the prosecutor andAfeworki himself. Thefactors weighing in favor ofthesecurity measuresordered by thecourt (outlined above) were eitherexplicitly mentioned atthis hearing orwere in therecord before the court at that time. Moreover, the court explicitly relied on its own experience. For example, in response toAfeworki's insistence that hewould notcause problems, thecourt stated: "I hardly have defendants, when this issuecomesup who say, 'ohyes, Iamgoing tojump up and attack.' It usually happens in a fit ofanger." 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 offairness claim, allegingjudicial bias and racial discrimination.23 "Anappearance offairness 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 othergrounds bv State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005). The

23Afeworki claims the following took place: • "The trial court judge impedes on Mr. Afeworki's right to access of the court byconcealingand attempting to conceal [themonkey 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] indefense, 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'saccess to jail law library and suspicious acts withExhibit#19 (Boxw/Helwan are [sic] hand gun with magazine catridges [sic] and manila envelopes." • "Depriving Mr. Afeworki ofInformation needed fordefense. Misrepresenting facts of the case acting inconcert withprosecutorto put on a show for the media in the court room." • "Trial court judge did not consider facts inpretrial ruling just made ruling against Mr. Afeworki in order to deprive a fairtrial." • "Trial court judge stops Mr. Afeworki defense byexcluding relevantinformation that go's [sic] to the heart ofMr. Afeworki's defense."
30No. 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, includingevidence 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 considerthem 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 ofthe jury. Tells jury it's thier [sic] obligation to findMr. 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 ofproffessional [sic] conduct: &violates title 18 USCA section 1001." • "Constantly calling Mr. Afeworki killer, shooter: Injection of personalbeliefof guilt." • "Prosecutor insinuates possession of personal knowledge of fact not offered inevidence and boasts cridibility [sic] ofofficer'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 believeMr. Afeworki then they have to believe: officers committed perjury." • "Prosecutor confusesjuryas to thier [sic] duty and burden of the state."
• "Insinuates Mr. Afeworki a liar & injects personal belief of guilt."
• "Prosecutordraws 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 fairtrial." • "State acts in concert to produce falsified testimonywith detective Steiger."
-31

-No. 70762-1-1/32
the credibility ofwitnesses." 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 itprejudiced 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 thejury'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 thejury' 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 

### simplybecause they touch upon a defendant's constitutionalrights." 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 bytrial 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.

32No. 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 ofprobable 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 contactwith 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 transportedAfeworki tojail; the State did notprovide him a complete copy of the videofrom the interrogation room; and the State tampered with the in-carvideo that recorded hisMiranda 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 ofthe 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). Ifwe 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 bythree additional attorneys after Mr. Savage was allowed to withdraw. Ultimately, Afeworki represented himself at trial. He does 

### not establish prejudice arisingfrom 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 commandjudicial consideration'" (internal 

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

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

We concur: 

# £~/.^.

28 Specifically, Afeworki claims thatDetective Steigertampered with Gebra'stestimony. 29 In addition to his statement of additional grounds, Afeworki filed a brief entitled, 

### "Appellant's Reply to: "State's Response toDefendant's StatementofAdditional Grounds for Review RAP 10.2(D)". This courtdid 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)

—Irespectfully dissent. Washington courts have 

### adopted thedoctrine ofwaiver ofcounsel by conduct setforth in United States v. Goldberg, 67 F.3d 1092, 1100-02 (3rd Cir. 1995). See Citv of Seattlev. Klein, 161 Wn.2d 554, 562, 166 P.3d 1149 (2007) (waiver of state constitutional right to 

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

## (1996)). In concludingtherewas awaiverofcounsel byconducthere, the majority outlines the difficulties the trial court faced with this criminal defendant when the 

### case was pending on a charge ofmurder in the first degree while armed with a firearm. However, when the trial court permitted the defendant's appointed counseltowithdrawon the eve oftrial, thetrial courtin myview hadnotadequately 

### warned thedefendant that his repeated misbehavior would lead to thewaiver of 

## counsel by conduct. Nor had the trial court sufficiently considered other alternatives instead ofallowing counsel to withdraw. The defendant did not 

## knowingly, intelligently, and voluntarily waive his rightto counsel. Here, the chief criminal judge conducted the first colloquy with the defendant on the risks and requirements ofself-representation on July 18, 2012, 

## almostone yearbefore trial on July 16, 2013.1 Thatcolloquy, while thorough, did notinclude aspecificdiscussion ofpotential consequences forthe defendantifhe attempted to delay or disrupt court proceedings.

1Thetrial had started onApril 24, 2013, but had to be setovertoJuly 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 colloquywith the 

### defendant on self-representation at a pretrial hearing. The defendantconsistently 

### 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 courtdid not warn the defendant that such behavior if itcontinued would result inthe waiver of his right to counsel. Nor 

### did the trial court advise the defendant that he would be risking other sanctions 

### such as contemptorremoval from thecourtroom ifhe persisted in his conduct. The trial court, concerned that the defendant's motion for self

## representation expressed during the June 18, 2013 hearing was equivocal, referred the matter back to the chiefcriminaljudge. 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 anddenied the motion.2 

## The defendant persisted in his argumentative behaviorduring the series of 

## pretrial hearings on July 16-18, 2013. The trial court ruled on July 16, 2013 that thedefendant's renewed request torepresent himselfwasuntimely. Yetthetrial 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]fyou should say or do anything further in this case that makes him as an officerofthe

2The verbatim report ofproceedings does not contain atranscript ofthe June 21, 2013 hearing, buttheruling isreflected in an orderentered onJuly 16,2013.No. 70762-1-1, dissent/3 

### [c]ourt feel that he has towithdraw 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 onJuly 16and 17were insufficient 

### to adequatelywarn the defendant that he was in danger ofpermanently losing his 

### righttocounsel ifhe mademore threats tohis attorney. Thetrial 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 

### "repetitiveterminations ofcounsel... may beconstrued as awaiverofthis [Sixth] Amendment righttocounsel with theimplications being then thatyou 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, 397U.S. 

### 337, 343-44, 90 S.Ct. 1057, 25 L. Ed. 2d 353 (1970). "The mannerofmaintaining orderin thecourtroom iswithin thetrialjudge'sdiscretion; the leastsevereremedy 

## to accomplish the result is preferable." State v. DeWeese, 117 Wn.2d 369, 380, 816P.2d 1 (1991). 

## Unfortunately, Ihavetoconcludethatthedefendantdid notknowinglywaive 

## his right to counsel by conduct. The "'deprivation ofthe right to counsel is so inconsistent with the right to a fair trial thatit 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 afterdefense 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.


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