IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

SIRAJ HASSAN HAJI-SOMO, Appellant. DIVISION ONE
No. 72607-2-1 UNPUBLISHED OPINION

FILED: March 7, 2016 

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Dwyer, J. — A jury convicted Siraj burglary with a special allegation finding residence at the time ofthe offense. On appeal, Haji-Somo contends both that 

### he was denied his constitutional right to self-representation and that the trial court's denial of his motion for a continuance violated his right to present a defense. Finding no error, we affirm.
I 

### On May 21, 2014, approximately two and one-half months beforetrial, Catherine Elliott, Haji-Somo'sfirst appointed counsel, notified the court that HajiSomo wished to request the court to discharge her as his attorney. When the trial court inquired as to the nature of Haji-Somo's motion, he indicated that it "would be me representing myself." The following exchange occurred: Haji-Somo ofone count ofresidential hat the victim was present in theNo. 72607-2-1/2
THE COURT: And what are your reasons for wanting to do that? THE DEFENDANT: Ijustfeel the need to speak for myself. Just going through a lot and just kind of really need to get this - get this taken care of because Ican't afford for something like this to ruin my lifebecause I'm at a good point in lifewhere Ineed to be (inaudible, soft-spoken.) And so Ijust

- Ijust need somebody to talk to, somebody Icould trust, get comfortable with, somebody I can - you know, somebody Ican - that's not understanding me, so Iwould prefer someone else, not that Elliottperson (phonetic). Elliot is a great attorney, don't get me wrong, but Ifeel Ineed to have somebody that understands (inaudible, soft-spoken). THE COURT: Okay. So you're actually asking for a different attorney. You're not asking to represent yourself; is that correct? THE DEFENDANT: Actually, Iwant to represent myself, but I'm

- because Imight be short on cash and so I'm not thinking 

### about getting an attorney. I'mjust not sure. Ihaven't decided. That's the thing. THE COURT: Okay. SoTHE DEFENDANT: Nothing decided allthe way, but Ineed 

### an attorney, but I'm

- I'm more comfortable representing myself. THE COURT: All right. So those are two very different things. Right? THE DEFENDANT: Yeah. THE COURT: Really different. Either you have an attorney or you don't have an attorney. THE DEFENDANT: Okay. THE COURT: And so

### THE DEFENDANT: Well, I'lljust - I'lljust represent myself. I'll go with representing myself. 

### Seeking furtherclarification, the trial court asked Elliott her understanding of Haji-Somo's position. Elliottstated, 

### My understanding from Mr. Haji-Somo is that he specifically does not want me representing him, and then there remains the 

### question ofwhether he wants to represent himself or whether he wants another attorney. And ifI'mwrong on that, Iwould ask for some clarification. 

### And from my view of things, Idon't feel that Ihave been able to adequately represent him in my role with him, specifically my 

### obligations to him as his attorney due to the fact that we - he does not trust me, and he does not listen to my advice, and we think more often than not end up in unproductive conversations.No. 72607-2-1/3

So Idon't know what to make of it, Your Honor, but Iguess from my perspective, the first question is whether Ishould be on the case and then maybe the second question is whether it should be another attorney or himself. And maybe that should be the subject of another motion. I don't

- I don't know. Haji-Somo made no objection to this characterization of the circumstance. The trial court, noting that the request before the court was to discharge counsel, expressed concern about Haji-Somo's uncertainty as to whether he was requesting appointment of another attorney or whether he was requesting to proceed pro se. Haji-Somo reiterated his objection to Elliott's representation, specifically referencing the continuing communication issues he was experiencing with her.1 After hearing from both Haji-Somo and Elliott, the trial court granted HajiSomo's motion to discharge defense counsel but did not rule on whether HajiSomo would proceed pro se at that point. On the matter ofproceeding pro se, the trial court informed Haji-Somo, "I think you need to be able to speak with someone, and we're going to need to confirm new counsel and give you the opportunity to do that." Anna Brusanowski was appointed as Haji-Somo's new counsel. She first appeared with Haji-Somo at a June 2 hearing. Atthat time, Brusanowski

1At the May 21 hearing, Haji-Somo referenced miscommunication with Elliottregarding which date he was required to appear in court. Specifically, Haji-Somo stated that Elliott told him to report to the courthouse for the omnibus hearing on the wrong day. As a result, Haji-Somo missed the omnibus hearing and the trial court issued a warrant. Haji-Somo expressed his frustration, stating, Like, that's a misunderstanding, and I'm not - I'm not trying to work with someone that's like that. Iwant somebody who's going to keep me updated because everything that goes on with how the whole case is going, because if we're not keeping in touch, there's no - what case - what case do we have with each other.No. 72607-2-1/4
informed the court that Haji-Somo did not want a court appointed attorney and
was in the process of hiring a private attorney. Haji-Somo did not renew his request to proceed pro se at this hearing. With Brusanowski still representing Haji-Somo, trial began on August 7, 2014. Various pretrial motions, a discussion about ongoing negotiations, and 

### voir dire with an initialjury panel all took place.2 Proceedings continued on August 11 with the State indicating that it had presented Haji-Somo with a new plea offer, which included a recommendation for the imposition of a deferred sentence. After consulting with Brusanowski, Haji-Somo rejected the offer. Brusanowski then informed the court of her client's rejection ofthe offer, and asked the court for a continuance of "at most a week" to gather additional
evidence. Brusanowski indicated: 

### [M]y client just now informed me that he does have witnesses that he would like to call in furtherance of his defense. Unfortunately he did not discuss possible witnesses with me previously. Several times Iapproached him about whether or not he had witnesses, and he did not, and at this point he declares that he does. For that reason, we're asking the Court to grant us a brief continuance so that Ican gather the names and contact information, quickly interview them, and so that Ican forward that 

### information to the prosecutor.131 The State objected to the continuance request. The trial court denied the 

### motion as untimely because pretrial rulings had been completed and trial of the

2Brusanowski indicated that the defense would likelypresent no witnesses, other than the defendant, but might call defense investigator John Hayes to testify. 3Brusanowski continued, "I just wanted to emphasize the fact that from my overview of the state and what Iperceive now as being my client's defense - or line ofdefense, Iwanted to declare that Ido believe that these witnesses would be necessary to further that defense, and so they would not be simplyfrivolous witnesses with information that would not have a significant impact on my client's defense."No. 72607-2-1/5

matter had begun. Moreover, the trial court noted that Haji-Somo had been 

### given ample time to speak with his attorney about possible witnesses before trial, and emphasized that there was no indication that these were newly discovered witnesses or that the substance of the trial had changed in any manner as a result of any rulings made. After a recess, a substitute prosecutor appeared on behalfofthe State and informed the trial court that the assigned prosecutor had fallen sick over 

### lunch, and that the substitute prosecutor would stand in for the hardship portion 

### ofvoir direonly. Defense counseldid not object to the substitution of counselfor this limited purpose. 

### Laterthat day, defense counsel indicated that Haji-Somo wished to make
a motion to proceed pro se. When the trial court asked whyHaji-Somo was 

### bringing his requesttoproceed pro se aftertrial ofthematter had begun, HajiSomo's response was largely inaudible.4 However, the context of hisreply indicates dissatisfaction with defense counsel's decision not to object to the 

### substitute prosecutor's appearance forthehardship portion ofvoirdire.5 The trial court denied Haji-Somo's motionas "veryuntimely," stating, 

### I'm not hearing that there is a breakdown in communication, that 

### there are anyconflicts regarding that communication, that Ifeel it's unfounded. Ifeel it's untimely, and, quitefrankly, given some of the 

### questions posed to the Court in the course of proceedingstoday, I'mconcerned that it's made without the general understanding of what the consequences will be.
4"Your Honor, Iobject hadwhen she said she wants(inaudible, speaking softly andnot into microphone) prosecutor. Iunderstood (inaudible, speaking softly and notinto a microphone)." 5The trial court further indicated that had such an objection been interposed, itwould have been denied.No. 72607-2-1/6
Near the end ofthe day's proceedings, Haji-Somo made an additional 

### request to discharge counsel and have new counsel appointed because he felt that his questions were not being answered and that he was not being well

### represented. The court disagreed and denied Haji-Somo's motion to discharge counsel. Brusanowski continued to represent Haji-Somo throughout the trialwith

no additional objections. 

### Haji-Somo was convicted as charged and thejury found the special 

### allegation proved. Thetrial court imposed a low-end standard range sentence of three months on work release or electronic home detention, with 30 days 

### converted to community service. Haji-Somo now appeals.
II 

### Haji-Somo first contends thathis constitutional righttoself-representation was violated. This is so, he asserts, because the trial court failed to make a 

### meaningful inquiry into his initial request toproceed pro se. Wedisagree. 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). This 

### righttocounsel may bewaived, but such awaiver must be "knowing, voluntary andintelligent." City ofBellevue v. Acrev, 103 Wn.2d 203, 208-09, 691 P.2d 957 

### (1984) (citing Araersinaerv. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L.Ed.2d 530 (1972)). "Ifcounsel is properly waived, a criminal defendant has arighttoselfrepresentation." Acrev, 103 Wn.2d at209 (citing Wash. Const, art. 1, § 22 

### (amend. 10); U.S. Const, amend. VI; Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)).No. 72607-2-1/7
The right to proceed pro se, however, is not absolute. State v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 714 (2010) (citing State v. Woods, 143 Wn.2d 561, 586, 23 P.3d 1046 (2001)). "When a defendant requests pro se status, the trial court must determine whether the request is unequivocal and timely." Madsen, 168 Wn.2d at 504 (citing State v. Stenson, 132 Wn.2d 668, 737, 940 

### P.2d 1239 (1997)). Ifthe request is unequivocal and timely, the court must then determine ifthe request is voluntary, knowing, and intelligent. Madsen, 168 Wn.2d at 504 (citing Faretta, 422 U.S. at 835; State v. Stegall. 124 Wn.2d 719, 

### 881 P.2d 979 (1994)). When making these determinations, the court may defer 

### ruling on the motion ifit is "reasonably unprepared to immediately respond to the request." Madsen, 168Wn.2d at 504. Moreover, courts are required to "'indulge in every reasonable presumption' against a defendant's waiver of his or herright
to counsel." In re Pet, of Turay. 139 Wn.2d 379, 396, 986 P.2d 790 (1999) 

### (quoting Brewerv. Williams, 430 U.S. 387,404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977)). 

### We review the denial of a request for pro se status under an abuse of discretion standard. Madsen, 168 Wn.2d at 504 (citing State v. Hemenwav. 122 

### Wn. App. 787, 792, 95 P.3d408 (2004)). "Discretion is abused ifa decision is manifestly unreasonable or 'rests on facts unsupported in the record or was reached byapplying the wrong legal standard.'" Madsen. 168 Wn.2d at 504 (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)). It is axiomatic that, inorder "[t]o protect defendants from making 

### capricious waivers of counsel and to protecttrial courts from manipulativeNo. 72607-2-1/8
vacillations by defendants regarding representation, the defendant's request to proceed pro se must be unequivocal." Stenson, 132 Wn.2d at 740. This means that the request must be unequivocal "inthe context ofthe record as a whole." Stenson, 132 Wn.2d at 741-42 (citing State v. Luvene, 127 Wn.2d 690, 698-99, 903 P.2d 960 (1995)). "While a request to proceed pro se as an alternative to substitution of new counsel does not necessarily make the request equivocal, such a request may be an indication to the trial court, in light ofthe whole record, that the request is not unequivocal." Stenson, 132 Wn.2d at 740-41 (citation omitted). Haji-Somo characterizes his request to proceed pro se as two separate 

### requests. He assigns error only to what he terms the trial court's failure to further inquire into his original request to proceed pro se until after the trial had
commenced. 

### Haji-Somo's original request to proceed pro se, although timely, was 

### equivocal. When asked his reasons for his motion to proceed pro se, Haji-Somo stated that he needed somebody to talk to, somebody that he could trust and feel comfortable with. Although Haji-Somo indicated that he wanted to represent 

### himself, he acknowledged, "I'mjust not sure. Ihaven't decided. That's the 

### thing.
. . . Nothing decided all the way, but Ineed an attorney, but I'm

- I'm more comfortable representing myself." Haji-Somo's uncertainty is reinforced by his 

### subsequent utterances and Elliott's statements that Haji-Somo's objection was to her representation, specifically, based on a perceived continuing
miscommunication.

8No. 72607-2-1/9
We review each motion to proceed pro se independently to determine whether the requirements for pro se status were met. Madsen, 168 Wn.2d at 505. Upon making his May 21 motion to proceed pro se, Haji-Somo expressed 

### uncertainty as to whether he desired a different attorney or no attorney at all. Haji-Somo's alternate request for counsel is an indication that his request was 

### not unequivocal. Stenson, 132 Wn.2d at 740-41. Haji-Somo's uncertainty, 

### coupled with Elliott's understanding that Haji-Somo did not want her as his 

### attorney, provide a sufficient basis for the trial court to rule that the original request was equivocal. Thus, the trial courtwould have been correct in denying Haji-Somo's motion to proceed pro se at the May 21 proceeding. Furthermore, Haji-Somo's reliance on Madsen is misplaced. Defendant Madsen was charged with three counts offelony violation of a court order. Madsen, 168 Wn.2d at 501. On January 24, 2006, after his privately retained counsel withdrew, Madsen personally moved to proceed pro se stating that "he believed he 'could resolve the whole issue.'" Madsen, 168 Wn.2d at 501. The 

### trial court, however, deferred ruling on the request, stating that itwould be 

### "'happy to hear the motion'" afterMadsen had a chance totalk with new counsel. Madsen, 168 Wn.2d at 501. Madsen renewed his request on March 7, almost 

### two months beforetrial, indicating that he wished to proceed pro se and stating that, "'UnderArticle l[, Section] 22 Ihave a right to represent myself.'" Madsen, 

### 168Wn.2d at 501 (alteration in original). After Madsen's counsel questioned his competency to represent himself, Madsen reiterated, '"I am gonna revert to my constitutional rights, Washington State constitutional rights, Article 1, SubsectionNo. 72607-2-1/10 

### 22, Ihave a right to represent myself and that's what I'm going to move forward withdoing.'" Madsen. 168 Wn.2d at 501. The trial court, however, again 

### deferred ruling on the motion to proceed pro se, whichwas then renewed on May 2, the day before jury selection. Madsen. 168 Wn.2d at 502, 508. It was only at this point that the court denied the motionas untimely. Madsen. 168 Wn.2d at 502, 508. 

### On appeal, the Washington Supreme Court held that the denial of Madsen's March 7 motion was an abuse of discretion. Madsen. 168 Wn.2d at 509. The court first noted that the deferral of a ruling on the January 24 motion
was not an abuse ofdiscretion, as the trial court may have reasonably been 

### unprepared to immediately consider Madsen's motion to proceed pro se. Madsen, 168 Wn.2d at 506. However, the court held that the trial court abused 

### itsdiscretion byfailing to grant Madsen pro se status after his second request, which was "unequivocal, timely, voluntary, knowing, and intelligent." Madsen. 168 Wn.2d at 506. The court stated that even ifthe trial court had concerns 

### regarding Madsen's competency when the March 7 motion was made, it should have ordered a competency hearing, rather than simply deferring the ruling for a second time. Madsen. 168 Wn.2d at 510. Because the court held that Madsen's 

### March 7 motion to proceed pro se was independently valid, improperly deferred until May 2, and ultimately denied withoutjustcause, reversal was required. Madsen, 168 Wn.2d at 510. The facts herein are much different. While the trial court conceivably had 

### notice of the fact that Haji-Somo was considering proceeding pro se on May 21,

10No. 72607-2-1/11
his equivocal request and subsequent actions indicated that he had abandoned any intent to do so. After discharging the first appointed counsel, the trial court appointed new counsel in order to allow Haji-Somo the opportunity to consider 

### whether he actually wished to proceed pro se.6 However, Haji-Somo did not
renew his motion to proceed pro se after speaking with Brusanowski but, rather, indicated that he was considering hiring a private defense attorney known to his 

### family. At no point before trial began did Haji-Somo retain private counsel or move to discharge Brusanowski. Unlike the defendant in Madsen, who unequivocally and timely asserted his right to self-representation on two 

### occasions (three and one-half and two months before trial began), Haji-Somo renewed his motion to proceed pro se for the first time on the second day of
trial.7 Because itwas reasonable for the trial court to defer ruling on Haji-Somo's 

### equivocal May 21 motion to proceed pro se in order to give him the opportunity to consultwith newly appointed counsel, the trial courtdid notabuse itsdiscretion

6Moreover, the trial court's statementthat itwas "not going to make a decision" on HajiSomo'soriginal, equivocal, motion toproceed prose was effectively an invitation torenew the motion afterconsultation with newly appointed counsel. Haji-Somo did not do so. Thisdeferral was proper and served as the equivalent of a denial of hisfirst motion to proceed prose. Madsen. 168 Wn.2d at 506. 7Indeed, even at this point, it is unclear whetherHaji-Somo's objection was to being represented by hisappointed counsel orbeing represented atall. Haji-Somo's response is undecipherable due to deficiencies in the verbatim reportofproceedings. However, itappears to amount to an objection to counsel's failure to object to a limited substitution of prosecutors: THE COURT: And can you give me some understanding of why you would like to do that [proceed pro se] and why you are bringing yourrequest to the Court at this tight [sic]? THE DEFENDANT: Your Honor, Iobject had when she said she wants (inaudible), speaking softly and notinto a microphone) prosecutor. Iunderstood (inaudible, speaking softly and not into a microphone.) THE COURT: Okay. Anything else, Mr. Haji-Somo? THE DEFENDANT: No, Your Honor. 11No. 72607-2-1/12 

### by denying Haji-Somo's request as untimely when he did not renew it until the second day of trial.
Ill 

### Haji-Somo next contends that hisrightto present a defense was violated. This is so, he asserts, because the trial court abused its discretion when it denied 

### Haji-Somo's requestfor a week-long continuance in order to secure the testimony of necessary defense witnesses. This contention is unavailing. In criminal cases, "the decision to grant or deny a motion for a continuance rests within the sound discretion ofthe trial court." State v. 

### Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (citing State v. Miles, 77 

### Wn.2d 593, 597, 464 P.2d 723 (1970)). Thus, we review a trial court'sdecision 

### to deny a motion for acontinuance under an abuseofdiscretion standard. Downing, 151 Wn.2d at 272(citing Statev. Hurd, 127Wn.2d 592, 594, 902P.2d 

### 651 (1995); Skaait Rv. &Lumber Co. v. Cole, 2Wash. 57, 62, 65, 25 P. 1077 

### (1891)). We will notdisturb the trial court's decision unless the appellant "makes 'aclear showing
. . . [thatthe trial court's] discretion [is] manifestly unreasonable,
orexercised onuntenable grounds, orfor untenable reasons."' Downing. 151 Wn.2d at272-73 (alterations in original) (quoting State exrel. Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). 

### Moreover, "even where the denial of a motion for continuance isalleged to 

### have deprived acriminal defendantofhis or herconstitutional rightto compulsory 

### process, the decision to deny acontinuancewill be reversed only on ashowing that the accused was prejudiced by thedenial and/orthat theresult ofthetrial

12No. 72607-2-1/13


### would likely have been different had the continuance not been denied." State v. Tatum. 74 Wn. App. 81, 86, 871 P.2d 1123 (1994) (citing State v. Eller. 84 Wn.2d 90, 95-96, 524 P.2d 242 (1974)). 

### As our Supreme Court has noted, "there are no mechanical tests for 

### deciding when the denial of a continuance violates due process, inhibits a defense, or conceivably projects a different result; and, that the answer must be found in the circumstances present in the particularcase." Eller. 84 Wn.2d at 96 

### (citing Statev. Cadena. 74Wn.2d 185, 443 P.2d 826(1968)). "In exercising discretion to grant or deny a continuance, trial courts may consider many factors, 

### including surprise, diligence, redundancy, dueprocess, materiality, and maintenance oforderly procedure." Downing. 151 Wn.2d at 273 (citing Eller, 84 

### Wn.2d at95; RCW 10.46.080; CrR 3.3(f)). Additionally, good faith is anessential 

### componentofan application for acontinuance. Statev. Edwards. 68 Wn.2d 246, 258,412 P.2d 747 (1966). "Ifit is manifest that the requestfor recess or 

### continuance isdesigned todelay, harry, orobstructtheorderly process ofthe 

### trial, ortotake theprosecution by surprise, then thecourt canjustifiably in the exercise of its discretion deny it." Edwards, 68 Wn.2d at 258. 

### Priortojury selection, defense counsel informed theState and the trial court that the defense did notplan to call any witnesses beyond the defendant. 

### Nevertheless, Haji-Somo requested a continuance on the second dayoftrial, 

### after all ofthepretrial rulings were completed andjury selection had begun. The trial court denied Haji-Somo's motion on theground thata substantial period of time had elapsed, giving the defense ampletime to prepare its case.

13No. 72607-2-1/14 

### Additionally, the trial court noted that there was no indication that these witnesses were newly discovered or that the facts and substance of the trial had 

### changed as a result of the rulings on the various pretrial motions. Accordingly, the trial court denied Haji-Somo's motion for a continuance as untimely. 

### Haji-Somo has not clearlydemonstrated that the trial court's ruling was 

### "'manifestly unreasonable, or exercised on untenablegrounds, or for untenable reasons.'" Downing, 151 Wn.2d at 272-73 (quoting Carroll, 79 Wn.2d at 26). His 

### attorney, Brusanowski, commenced herrepresentation on June 2. Trial ofthe matter began overtwo months later onAugust 7. During thisperiod, Brusanowski stated, despite her repeated requests, Haji-Somo disclosed no witnesses that he wished to call in his defense. Notwithstanding that Haji-Somo 

### was arrested in the presence ofotherpeople,8 he negatively responded to 

### defensecounsel's repeated questioning andneverdisclosed theidentity ofthese 

### individuals tohis attorney until thesecond day oftrial. Thus, defense counsel's 

### inabilityto investigate or interviewthesewitnesses was due to Haji-Somo's own 

### dilatory conduct. Because the trial courtproperly accounted for (1) Haji-Somo's lack ofdiligence, (2) thefact thatthese were not newly discovered witnesses, 

### and (3) thatthe facts ofthe matter had not changed as a result ofpretrial rulings, it did not abuse its discretion by denying the request for a continuance. Even had the trial court's denial of Haji-Somo's motion for a continuance 

### rested onimproper grounds, Haji-Somo has not demonstrated that he was
8Arresting officerJames Sturgill testified thatthere were several people in the apartment when the arrest was made. Oneindividual answered thedoor, another was sleeping or passed 

### outon the living room floor, and athird person was sleeping in the bedroom. Haji-Somo was initially contacted by officers in a locked bathroom in theapartment. 14No. 72607-2-1/15 prejudiced bythe denial or that the result ofthe trial would likely have been different had the continuance been granted. Although defense counsel stated that she believed that the newly disclosed witnesses would be necessary to 

### further Haji-Somo's defense,9 she did not indicate the identity ofthese witnesses
or the substance of their testimony. Nor did defense counsel explain how these 

### witnesses purportedly supported the defense's theory ofthe case.10 Because the trial court record is silent as to how these witnesses would have testified at trial, 

### prejudice has not been established. The trial court did not abuse its discretion indenying defense counsel's 

### belated motion for a week-long continuance on the second day oftrial.
Affirmed.

We concur

9The defense theory of the case was thatHaji-Somo's excessivedrinking theprior evening negated his intenttocommitthe burglary. On appeal, Haji-Somo argues thatthese witnesses would have, allegedly, verified Haji-Somo's mental state the prior evening. 10 Indeed, in requesting thecontinuance, Brusanowski merely indicated that"I wanted to declare that Ido believethatthese witnesses would be necessary tofurther that defense, and so 

### they would not be simply frivolous witnesses with information thatwould not have asignificant impact on my client's defense."
15