State v. Afeworki , 189 Wash. App. 327 ( 2015 )

¶74

Trickey, J.

(dissenting) — I respectfully dissent. Washington courts have adopted the doctrine of waiver of counsel by conduct set forth in United States v. Goldberg, 67 F.3d 1092, 1100-02 (3d Cir. 1995). See City of Seattle v. Klein, 161 Wn.2d 554, 562, 166 P.3d 1149 (2007) (waiver of state constitutional right to appeal) (citing City of Tacoma v. Bishop, 82 Wn. App. 850, 859, 920 P.2d 214 (1996)). In concluding there was a waiver of counsel by conduct here, the majority outlines the difficulties the trial court faced with this criminal defendant when the case was pending on a charge of murder in the first degree while armed with a firearm. However, when the trial court permitted the defendant’s appointed counsel to withdraw on the eve of trial, the trial court in my view had not adequately warned the defendant that his repeated misbehavior would lead to the waiver of counsel by conduct. Nor had the trial court sufficiently considered other alternatives instead of allowing counsel to withdraw. The defendant did not knowingly, intelligently, and voluntarily waive his right to counsel.

¶75 Here, the chief criminal judge conducted the first colloquy with the defendant on the risks and requirements of self-representation on July 18, 2012, almost one year before trial on July 16, 20 13.²³ That colloquy, while thorough, did not include a specific discussion of potential consequences for the defendant if he attempted to delay or disrupt court proceedings.

¶76 On June 18, 2013, the trial court engaged in the second colloquy with the defendant on self-representation at a pretrial hearing. The defendant consistently interrupted the proceedings and expressed his dissatisfaction with his attorney. Although the court instructed the defendant that he could not argue his own motions and should not be disruptive, the court did not warn the defendant that such behavior if it continued would result in the waiver of his right to counsel. Nor did the trial court advise the defendant that he would be risking other sanctions such as contempt or removal from the courtroom if he persisted in his conduct.

¶77 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 chief criminal judge. On June 21, 2013, because the defendant would not respond to questions and insisted on arguing his own motions, the chief criminal judge found the request for self-representation to be equivocal and denied the motion.²⁴

¶78 The defendant persisted in his argumentative behavior during the series of pretrial hearings on July 16-18, 2013. The trial court ruled on July 16, 2013 that the defendant’s renewed request to represent himself was untimely. Yet the trial court allowed defense counsel to withdraw on July 18, 2013.

¶79 The court learned of the defendant’s first threat to defense counsel during the July 16 hearing. In response, the court said to the defendant that “[i]f you should say or do anything further in this case that makes him as an officer of the [c]ourt feel that he has to withdraw as your attorney, he can do so.”²⁵ The court also said that the result would be the defendant would be “allowed to go pro se.”²⁶

¶80 In my view, the trial court’s admonitions on July 16 and 17 were insufficient to adequately warn the defendant that he was in danger of permanently losing his right to counsel if he made more threats to his attorney. The trial court’s warnings here were unlike the trial court’s warnings in United States v. Thomas, 357 F.3d 357, 360 (3d Cir. 2004), where the defendant there was explicitly told that “repetitive terminations of counsel . . . may be construed as a waiver of this [Sixth] Amendment right to counsel with the implications being then that you would have to represent yourself.”

¶81 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.²⁷ See Illinois v. Allen, 397 U.S. 337, 343-44, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). “The manner of maintaining order in the courtroom is within the trial judge’s discretion; the least severe remedy to accomplish the result is preferable.” State v. DeWeese, 117 Wn.2d 369, 380, 816 P.2d 1 (1991).

¶82 Unfortunately, I have to conclude that the defendant did not knowingly waive his right to counsel by conduct. The “ ‘deprivation of the right to counsel is so inconsistent with the right to a fair trial that it can never be treated as harmless 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.

Reconsideration denied September 1, 2015.

Review denied at 184 Wn.2d 1036 (2016).

23 The trial had started on April 24,2013, but had to be set over to July 16,2013, due to a serious medical issue in defense counsel’s family.

24 The verbatim report of proceedings does not contain a transcript of the June 21, 2013 hearing, but the ruling is reflected in an order entered on July 16, 2013.

25 Report of Proceeding (RP) (July 16, 2013) at 38.

26 RP (July 16, 2013) at 38.

27 The State objected to defense counsel’s withdrawal and suggested the court consider other alternatives such as restraints on the defendant while in the courtroom. The restraints were imposed after defense counsel withdrew.