State v. Afeworki
| Citation | 358 P.3d 1186,189 Wash.App. 327 |
| Decision Date | 10 August 2015 |
| Docket Number | No. 70762–1–I.,70762–1–I. |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Respondent, v. Tomas Solomon AFEWORKI, Appellant. |
189 Wash.App. 327
358 P.3d 1186
STATE of Washington, Respondent
v.
Tomas Solomon AFEWORKI, Appellant.
No. 70762–1–I.
Court of Appeals of Washington, Division 1.
Aug. 10, 2015.
Washington Appellate Project, Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Appellant.
Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Deborah A. Dwyer, King Co. Pros. Ofc./Appellate Unit, Seattle, WA, for Respondent.
PUBLISHED IN PART OPINION
DWYER, J.
¶ 1 “ ‘[T]he Sixth Amendment right to counsel, while fundamental, is not a right without limitation. Specifically, it is not a right subject to endless abuse by a defendant.’ ”1
¶ 2 Tomas Afeworki was charged with murder in the first degree. During pretrial proceedings, he experienced significant and ongoing conflict with each of his several attorneys. On the eve of trial, Afeworki repeatedly threatened his attorney, who was permitted to withdraw as a result. Afeworki was, thereafter, required to represent himself pro se. On appeal, Afeworki contends that this deprived him of his right to counsel.
¶ 3 After threatening his attorney, Afeworki was also required to wear a physical security restraint, not visible to observers, while in the courtroom. Afeworki now contends that this requirement violated his right to a fair trial.2
¶ 4 Finding no error in the trial court's supervision of the trial of this most difficult defendant, we affirm.
I
¶ 5 On October 26, 2010, Haylom Gebra and Michael Yohannes were walking along Pike Street in downtown Seattle when they saw an acquaintance, Afeworki, across the street. Yohannes lingered briefly, talking to Afeworki, and then caught up with Gebra at the intersection of Second and Pike. As Gebra and Yohannes waited for the light to change, Afeworki, who was holding a white towel, unexpectedly approached them from behind. Gebra heard a loud boom and watched as Yohannes fell to the ground. Afeworki immediately turned and headed north on Second Avenue toward Pine Street.
¶ 6 A number of people observed the shooting or its immediate aftermath, including Mohammed Dima, who was working as a uniformed downtown safety ambassador on the afternoon of the shooting. Dima heard the sound of a gunshot coming from the northwest corner of Second and Pike. From directly across the street, Dima saw a “body just drop” and saw a man standing there
with “something white on his hand.” The man then wrapped an object in “that white thing,” placed the wrapped object in his pocket, and began walking north on Second Avenue. Dima described the man as a black man wearing a brownish “hoodie” and blue jeans with something brownish on the back pocket.
¶ 7 Alvaro Sotelo was working at Zaina Restaurant, located at 109 Pine Street, that afternoon. Sometime after
he began his shift at 4:00 p.m., a man came in, ordered French fries, and asked to use the bathroom. When police 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.”
¶ 8 In a search of the bathroom, police found a 9 mm semiautomatic handgun that had been placed under the liner of the trash can. There were four cartridges in the magazine. In addition, police recovered three unfired cartridges from the toilet bowl. Forensic analysis later demonstrated that these unfired cartridges had been cycled through the handgun found in the trash can. Forensic analysis also revealed that the bullet recovered from Michael Yohannes's head was fired from that same 9mm handgun.
¶ 9 Three eyewitnesses were brought to a place near the scene of the shooting for a showup identification procedure. Two of the witnesses, Elijah Knight and Jean Marie Flayes, identified Afeworki as the shooter by his clothing. DNA recovered from the handgun found in the bathroom trash can provided further evidence that Afeworki was the shooter; comparing the partial DNA profile obtained from the gun to Afeworki's DNA profile resulted in a 1 in 120,000 chance that someone other than Afeworki was the source of the DNA on the gun.
¶ 10 An information charging Afeworki with murder in the first degree was filed on October 28, 2010.
¶ 11 On October 29, attorney Nicholas Marchi filed a notice of appearance on behalf of Afeworki. Five weeks later, on December 6, a notice of withdrawal and consent for substitution announced that attorney John Henry Browne was substituting for Marchi. On January 31, 2011, Browne filed a notice of attorney's intent to withdraw. On February 7, attorney Anthony Savage Jr. filed a notice of appearance. Eight months later, on October 4, Savage was allowed to
withdraw due to illness, and a hearing was set to confirm the appointment of counsel by the Office of Public Defense (OPD). On October 21, Marchi was back on the case as appointed counsel.
¶ 12 Afeworki soon began to overtly take an active role in his own defense, prevailing upon counsel to file his pro se “Motion to Dismiss for Violation of Due Process, [Due] to Prosecutorial Misconduct for Charging with Falsified Probable Cause.”3
¶ 13 Not content to work through counsel, Afeworki followed this motion a few months later with letters sent directly to the trial court. In a letter to Chief Criminal Judge Ronald Kessler dated June 18, 2012, Afeworki wrote that he had “instructed my Attorney Nicholas Marchi to put in a motion to dismiss for violation of Due Process” on various grounds. He informed the court that if Marchi did not file his motion as directed, he would “feel like I don't have my Attorney's undivided loyalty and a conflict will arise because my constitutional rights are not protected.” Afeworki followed this with an even more emphatic letter, dated July 10, 2012, complaining that his attorney had not filed “important pretrial motions on my behalf,” and asking the court to appoint new counsel who would do as Afeworki wished.
¶ 14 Judge Kessler conducted a hearing on the matter on July 18, 2012. Marchi informed the court that Afeworki wanted to discharge him. Marchi joined in the motion, telling the court that “[o]ur positions on how the case should proceed have now limited us to not being able to communicate.” Afeworki confirmed that Marchi was not doing the things that Afeworki wanted him to do, and that Afeworki wanted a “conflict-free attorney.”
¶ 15 The court declined to find a conflict under the circumstances described. When Afeworki pressed the court
on why his pro se motions had not been ruled on, Judge Kessler said that he ruled only on motions made by the attorneys. Afeworki responded, “Your Honor, then I would like to move pro se pursuant to Faretta v. California. ”4 When Judge Kessler questioned whether Afeworki, in fact, wanted a new attorney, and tried to caution him on such a course, Afeworki responded unequivocally: “Maybe you didn't understand me. I am invoking my right to proceed pro se.”
¶ 16 Judge Kessler accordingly began the pro se colloquy. He first asked Afeworki whether he had ever studied law, to which Afeworki replied, “I read law.” He then asked if Afeworki had ever before represented himself in a criminal case, and Afeworki said that he had not. Judge Kessler next asked Afeworki if he understood that the charged crime carried a maximum penalty of life in prison and a $50,000 fine and that, if he were found guilty and the prosecutor proved that the current crime was his third strike, he would face life in prison with no possibility of parole. Afeworki responded that he understood.
¶ 17 The next part of the colloquy went less smoothly. When the court warned Afeworki that, should he be allowed to represent himself, he would be on his own and would not be afforded standby counsel, Afeworki expressed disbelief and displeasure. When Afeworki continued to argue with Judge Kessler rather than answer the court's questions, Judge Kessler found Afeworki's request to proceed pro se to be equivocal, and offered to contact OPD to appoint a new attorney for him. Afeworki, however, insisted that his request to proceed pro se was unequivocal, and that his right to self-representation was absolute and must be granted.
¶ 18 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, if he 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.”
¶ 19 When Judge Kessler asked...
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State v. Potts, 45724-5-II
... ... and due process." State v. Garza, 99 Wn.App ... 291, 296, 994 P.2d 868 (2000). "The right to counsel may ... be affirmatively waived, but such a waiver must be knowing, ... voluntary, and intelligent." State v. Afeworki, ... 189 Wn.App. 327, 344, 358 P.3d 1186 (2015) ... The ... validity of any waiver of a constitutional right and the ... inquiry required by the court to establish the waiver depend ... on the circumstances of the case, including the ... defendant's ... ...
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State v. Potts, 45724-5-II
...right to counsel may be affirmatively waived, but such a waiver must be knowing, voluntary, and intelligent." State v. Afeworki, 189 Wn. App. 327, 344, 358 P.3d 1186 (2015). The validity of any waiver of a constitutional right and the inquiry required by the court to establish the waiver de......
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State v. Jimerson
...right to counsel may be affirmatively waived, but such a waiver must be knowing, voluntary, and intelligent." State v. Afeworki, 189 Wn. App. 327, 344, 358 P.3d 1186 (2015). "[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of th......
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State v. Robb
... ... Y-STR statistical analysis. Id. at 718. Further, ... courts commonly allow testimony on results from partial DNA ... analysis. See, e.g., State v. Sublett, 156 Wn.App ... 160, 173-74, 231 P.3d 231 (2010); State v. Afeworki, ... 189 Wn.App. 327, 332, 358 P.3d 1186 (2015), review ... denied, 184 Wn.2d 1036 (2016) ... Robb ... offers no alternative authority, and merely suggests that ... "when the initial sample is very small, the reliability ... of the testing procedure ... ...