          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                          ^
                                                                                      CD



STATE OF WASHINGTON,                                                                  en

                                                        DIVISION ONE
                        Respondent,
                                                        No. 72305-7-1                 cp   ;~ •
                   v.
                                                                                      ro   :-
                                                        UNPUBLISHED OPINION
ABDIRAHMAN ABDIRAHMAN
WARSAME, a.k.a. ABDIRAHMAN
ABDIDAHIRWARSAME,

                        Appellant.                      FILED: November 16, 2015



          Dwyer, J. — Abdirahman Warsame appeals from the judgmententered

on the jury's verdicts finding him guilty of assault in the second degree, assault in
the fourth degree, and felony harassment. Warsame claims that the trial court
erred in denying his request, made on the third day oftrial, to replace his court
appointed counsel with a newly retained private attorney. Finding no error, we

affirm.




          On February 13, 2014, the State charged Warsame with assault in the
second degree and assault in the fourth degree. Prior to trial, the State was
allowed to amend the information to add a charge of felony harassment with the

good Samaritan aggravator,1 and a charge of attempted robbery in the second

       1The "good Samaritan" aggravator, defined in RCW 9.94A.535(3)(w), permits that a
sentence be imposed above the standard range when "[t]he defendant committed the offense
against a victim who was acting as a good Samaritan."
No. 72305-7-1/2



degree. Warsame pleaded not guilty to all four charges. Before the jury was

impaneled and sworn, on the State's motion, the trial court dismissed the

attempted robbery charge without prejudice.

       On May 27, 2014, trial began and the parties completed pretrial motions.

On May 28, the jury was selected, impaneled, and sworn, and the parties

delivered their opening statements.2 On May 29, immediately prior to the State's

first witness being called to testify, Warsame requested that the trial court

discharge his appointed counsel. Warsame stated that he would "[sjtarting as of

now," look for a private lawyer to represent him. He stated that he had spoken to

a lawyer and could "pay now" but did not name the attorney or state that he had

actually retained the attorney's services.

       The State objected to substitution of counsel because it would delay the

trial. The prosecutor explained that three witnesses were present and ready to

testify. Each witness was reluctant to participate and needed the assistance ofa
Somali interpreter. The interpreter was also present and ready to assist.

       The trial court denied Warsame's request.

       The trial went forward. The jury heard testimony from an eyewitness,

Nasro Abubakar, and one of the alleged victims, Idris Osman AN. During a

recess in Ali's testimony, Warsame again indicated that he wished to replace his

court-appointed counsel with a private attorney.

        MR. GARRETT [Defense Counsel]: Well, perhaps the first and
        most important issue that may at least moot my involvement is Mr.

        2 In a criminal jury trial, jeopardy attaches when the jury is impaneled and sworn.
Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 43 L Ed. 2d 265 (1975) (Fifth
Amendment); State v. Smith. 15 Wn. App. 725, 727, 551 P.2d 765 (1976) (Const, art. I, § 9).
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No. 72305-7-1/3



      Warsame has indicated that he has another attorney who should be
      arriving within 15 minutes who presumably may be prepared to take
      over the case. I do not know.

      MR. WARSAME: Can I speak?

      THE COURT: Go ahead, sir.

      MR. WARSAME: Your Honor, I believe more than 100 percent that
      my attorney, the public defender is not doing the best interest of my
      case. Because this is something to do with my life and I believe I
      have to take an action in a way that I need to get someone who is
      really humble, who's really serious, who really -

      THE COURT: And who is this person?

      MR. WARSAME: She's an attorney. She's on her way. She should
      be here in the next 30 minutes. And I let her know and she knows -

      THE COURT: And she's ready to take over the case . . . ?

      MR. WARSAME: I don't think [Mr. Garrett's] ready and he's been
      telling me he's not ready. That from the beginning of the trial and
      lately he been telling me I don't think you can win this case, I don't
      think you cannot [sic] win, and that kills my whole mind. And it's like
      a manipulation the way Ifeel, you know, and Ijust want somewhere
      and someone that I can feel comfortable and that I can pursue this
      trial.

       In response, the trial judge stated that "I will hear this motion again if a

lawyer shows up who is ready and able to take over the case."

      At 3:10 p.m., during another recess in Ali's testimony, Warsame's newly-

hired attorney arrived. The trial judge stated that, "I'm not going to hear any

more motions about counsel until 4:00 [p.m.]. We'll deal with them after this

[witness]." The newly-hired attorney then left the courtroom.

      After Ali's testimony concluded, bringing the trial day to an end, Warsame

renewed his motion to replace his court appointed counsel with his newly

retained counsel, now identified as Teri Rogers Kemp. The court entertained the

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motion with attorney Rogers Kemp participating by telephone, explaining that her

schedule had not allowed her to remain in the courtroom from 3:10 p.m. until

4:00 p.m. that day.

       MR. GARRETT: Your Honor, Luke Garrett for Northwest
       Defenders. It is my understanding that [Mr.] Warsame does still
      wish to discharge me and have Ms. -

       MR. DOYLE [Prosecutor]: Rogers Kemp.

       MR. GARRETT: Ms. Rogers Kemp?

       MR. DOYLE: Kemp.

       MR. GARRETT: - take my place.

       THE COURT: Do we have Ms. Rogers Kemp on the phone is that
       correct?

       MS. ROGERS KEMP: Yes, ma'am. Good afternoon, judge,
       counsel. Good afternoon.

       MR. DOYLE: Good afternoon.

       THE COURT: And we are mid-trial on this case. Are you ready,
       able and willing to take this case on Monday and complete the trial?

       MS. ROGERS KEMP: Your Honor, I had a discussion with Mr.
       Abdi(ph) [sic] and while I am an experienced trial and felony
       attorney and I could very well be willing, ready and able to step in
       on Mr. Abdi's case I have expressed that I do not believe this is in
       the best interest, that his present counsel in whatever state is more
       versed in these matters, he has been familiar with this matter, the
       facts, the interviewing of the witnesses, the contents of the witness
       interviews, et cetera and et cetera. He is in present state more able.
       If Mr. Abdi is willing to have an attorney who is - because of the
       timing just not as competent as present counsel and if there is
       understanding that this is the case then yes I would be ready,
       willing, and able to step in as counsel. But I do not believe that this
       is in his best interests. I think that his present counsel is more
       familiar with this case than I am.




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No. 72305-7-1/5



      MR. DOYLE: Okay. I just want the record to reflect - this is William
      Doyle on behalf of the State - you're referring to Mr. Warsame;
      correct?

      MS. ROGERS KEMP: I am.

      THE COURT: State wish to be heard?

      MR. DOYLE: I guess perhaps if the Court could ask Ms. Rogers
      Kemp, so regardless of her opinions as to whether it's in the best
      interests of the defendant, is Ms. Rogers Kemp saying that she
      would be prepared to continue this trial on Monday and actually
      provide effective assistance of counsel?

      MS. ROGERS KEMP: And that is the issue. I am an experienced
      felony attorney. I believe that I can pick up a file and I can walk into
      a courtroom and do a trial. But I have - I'm familiar with the facts of
      the case because I spoke with my potential client 3 months ago.
      That's the extent, though. I've only read the [certification] for
      probable cause. I have not interviewed any witnesses, I have not
      read any supplemental follow-up police reports, I haven't spoken
      with any of the police officers.
              I believe that the accused has a right to choice of counsel
      but I also believe that the accused would be able to, if you will,
      consent to the type of defense that he would have.
              I am sensitive to the accused's position. I can do a trial and I
      can be as prepared as possible, but I don't think I would be as
      competent. And so I don't want to say no I wouldn't do it; I just want
      to say I don't believe it's a good idea. And I haven't had a chance to
      have a full on discussion with Mr. Abdi about this. I just don't think it
      would be a good idea.
             But I can do a trial. Hand me a file and I can do a trial. That's
      essentially what would be happening. I haven't interviewed any
      witnesses, I haven't read any police reports or any follow-up report.

      THE COURT: Okay. I think I understand your position.

      MR. DOYLE: Can I ask one other thing for the record, Your Honor?

      THE COURT: Yes.

      MR. DOYLE: I also just want the record to reflect, and, Ms. Rogers
      Kemp, just ask for your agreement on this, because we don't have
      a record of this yet, you did not sit through opening statements or
      any of the witness testimony so you couldn't speak [to] the
      demeanor of the witnesses as they testified, and you would not be

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No. 72305-7-1/6



      able to assess that from simply listening to a recording because
      you have not been present at this trial throughout any of the
      testimony today; is that correct?

      MS. ROGERS KEMP: Yes.


      MR. DOYLE: Okay.

      THE COURT: Did you wish to be heard?

      MR. GARRETT: Your Honor, I will happily step back, I will happily
      finish this trial, however this court decides. I will say whether or not
      it's Mr. Warsame's choice at this point I think that this is getting
      ridiculous. That's what I'll say.

      THE COURT: Anything you want to say, sir?

      MR. WARSAME: I believe this is my choice. This is something to
      do with my life. And if I felt comfortable with different counsel it's my
      choice. Nobody make [sic] the choice for me, Your Honor.

      THE COURT: All right. Anything further from the State?

      MR. DOYLE: I guess because this is an area, as the Court's aware,
      that is ripe for appeal and I just want to make sure. It sounds like
      what we're hearing from Ms. Rogers Kemp that she is saying that
      because she has not interviewed any witnesses, she did not appear
      for testimony, and didn't - wasn't able to assess the credibility of
      witnesses that she would have a difficult time as of Monday
      resuming this trial and providing effective assistance of counsel. Is
      that correct, Ms. Rogers Kemp?

      MS. ROGERS KEMP: Yes.


      MR. DOYLE: Okay. Thank you.

(Emphasis added.)

      Immediately following this discussion, the trial judge ruled:

                Sir, while it is undoubtedly your choice if you had made this
      choice a while ago, it is simply not your choice when we are mid-
      trial. I cannot allow competent, prepared, effective counsel to be
      substituted by a counsel who I have utmost respect for, but one
      who has not been at this trial, not observed the witnesses, cannot
      argue about what the witnesses testified, has no ability in two days
No. 72305-7-1/7



      to do all the things your lawyer has, has not read the police reports,
      has not done witness interviews. There is absolutely no way she
      can be prepared to be an effective advocate. And I cannot
      substitute an advocate who is not in a position to give you effective
      assistance of counsel.
               So I am not going to be allowing this substitution midstream
      in trial with an attorney, although I have great respect for, is simply
      not in a position to give you effective representation. So I would
      deny the request at this time. Ifyou had done this months earlier
      certainly it could be done. It cannot be done mid-trial. So that
      request is denied.

(Emphasis added.)

      The trial continued. The jury found Warsame guilty of all three counts and

found that the aggravating factor had been proved. Warsame was sentenced to

concurrent standard range sentences of 14 months of confinement on the assault

in the second degree conviction, 12 months of confinement on the felony

harassment conviction, and 364 days of confinement on the assault in the fourth

degree conviction.

       Warsame now appeals.

                                          II


       Warsame contends that the trial court violated his Sixth Amendment right

to be represented by his counsel of choice by denying his motion—made at the

end of the third day of trial—to substitute his newly retained private attorney for

his appointed counsel as his legal representative. We disagree.

       "The Sixth Amendment and article 1, section 22 of the Washington

Constitution guarantee the accused the right to counsel." State v. Hampton. 182

Wn. App. 805, 817, 332 P.3d 1020 (2014), review granted. 182 Wn.2d 1002, 342
No. 72305-7-1/8



P.3d 327 (2015): accord State v. Roberts. 142 Wn.2d 471, 515, 14P.3d713

(2000). Indeed,


       the Sixth Amendment right to counsel exists, and is needed, in
       order to protect the fundamental right to a fair trial. The
       Constitution guarantees a fair trial through the Due Process
       Clauses, but it defines the basic elements of a fair trial largely
       through the several provisions of the Sixth Amendment, including
       the Counsel Clause.

Strickland v. Washington. 466 U.S. 668, 684-85, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984).

       "The United States Supreme Court has found the counsel clause to have

two distinct elements: 'the right to the effective assistance of counsel' and '[t]he

right to select counsel of one's choice.'" State v. Sanchez. 171 Wn. App. 518,

541, 288 P.3d 351 (2012) (alteration in original) (quoting United States v.

Gonzalez-Lopez. 548 U.S. 140, 146-48, 126 S. Ct. 2557, 165 L. Ed. 2d 409

(2006)). The effective assistance element "envisions counsel's playing a role

that is critical to the ability of the adversarial system to produce just results."

Strickland. 466 U.S. at 685.

       The right to counsel plays a crucial role in the adversarial system
       embodied in the Sixth Amendment, since access to counsel's skill
       and knowledge is necessary to accord defendants the "ample
       opportunity to meet the case of the prosecution" to which they are
       entitled.

Strickland. 466 U.S. at 685 (quoting Adams v. United States ex rel. McCann, 317

U.S. 269, 275, 63 S. Ct. 236, 87 L. Ed. 268 (1942)). The knowledge, skill, and

effectiveness of counsel is of utmost importance because




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No. 72305-7-1/9



      [a]n accused is entitled to be assisted by an attorney, whether
      retained or appointed, who plays the role necessary to ensure that
      the trial is fair.
            For that reason, the Court has recognized that "the right to
      counsel is the right to the effective assistance of counsel."

Strickland. 466 U.S. at 685-86 (quoting McMann v. Richardson. 397 U.S. 759,

771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)).

      The counsel of choice element, in contrast, refers to the ability of a

defendant to have a choice among those attorneys who are capable of providing

constitutionally effective assistance. Wheat v. United States. 486 U.S. 153, 159,

108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). Because each element of the

counsel clause is distinct, neither can be substituted for the other. Gonzalez-

Lopez. 548 U.S. at 148.

      The right to counsel of choice "'guarantees a defendant the right to be

represented by an otherwise qualified attorney whom that defendant can afford to

hire, or who is willing to represent the defendant even though he is without

funds.'" Gonzalez-Lopez. 548 U.S. at 144 (quoting Caolin & Drvsdale. Chartered

v. United States. 491 U.S. 617, 624-625, 109 S. Ct. 2646, 105 L. Ed. 2d 528

(1989)). In essence, it is "the right of a defendant who does not require
appointed counsel to choose who will represent him." Gonzalez-Lopez. 548 U.S.

at 144. "It commands, not that a trial be fair, but that a particular guarantee of

fairness be provided—to wit, that the accused be defended by the counsel he

believes to be best." Gonzalez-Lopez. 548 U.S. at 146. "It has been regarded

as the root meaning of the constitutional guarantee." Gonzalez-Lopez. 548 U.S.

at 147-48.
No. 72305-7-1/10



       In the event that a deprivation of this constitutional guarantee occurs, the

deprivation is

       "complete" when the defendant is erroneously prevented from
       being represented by the lawyer he wants, regardless of the quality
       of the representation he received. To argue otherwise is to confuse
       the right to counsel of choice—which is the right to a particular
       lawyer regardless of comparative effectiveness—with the right to
       effective counsel—which imposes a baseline requirement of
       competence on whatever lawyer is chosen or appointed.

Gonzalez-Lopez. 548 U.S. at 148.

       As with most constitutional guarantees, however, the constitutional

guarantee to be represented by counsel of choice is not absolute. State v.

Aguirre. 168 Wn.2d 350, 365, 229 P.3d 669 (2010) ("'A defendant does not have

an absolute, Sixth Amendment right to choose any particular advocate.'" (quoting

State v. Stenson. 132 Wn.2d 668, 733, 940 P.2d 1239 (1997))). In fact,

       while the right to select and be represented by one's preferred
       attorney is comprehended by the Sixth Amendment, the essential
       aim of the Amendment is to guarantee an effective advocate for
       each criminal defendant rather than to ensure that a defendant will
       inexorably be represented by the lawyer whom he prefers. See
       Morris v. Slappy. 461 U.S. 1, 13-14, 103 S. Ct. 1610, 75 L Ed. 2d
       610 (1983); Jones v. Barnes. 463 U.S. 745, 103 S. Ct. 3308, 77 L.
       Ed. 2d 987 (1983).
             The Sixth Amendment right to choose one's own counsel is
       circumscribed in several important respects. Regardless of his
       persuasive powers, an advocate who is not a member of the bar
       may not represent clients (other than himself) in court. Similarly, a
       defendant may not insist on representation by an attorney he
       cannot afford or who for other reasons declines to represent the
       defendant. Nor may a defendant insist on the counsel of an
       attorney who has a previous or ongoing relationship with an
       opposing party, even when the opposing party is the Government.

Wheat. 486 U.S. at 159 (footnote omitted). Indeed, where a lawyer cannot

perform to the "baseline requirement of competence" imposed by the Sixth


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No. 72305-7-1/11



Amendment, Gonzalez-Lopez. 548 U.S. at 148, that lawyer fails to

constitute "Counsel" within the guarantee of the Sixth Amendment.

Strickland. 466 U.S. 686 ("'the right to counsel is the right to the effective

assistance of counsel'" (quoting McMann. 397 U.S. at 771 n.14)).

       Because a lawyer who cannot provide effective assistance of

counsel does not constitute Sixth Amendment counsel,3 a defendant has

no right to choose to be represented by that lawyer (thus forfeiting the

right to Sixth Amendment effective assistance of counsel). In this regard,

a lawyer who cannot perform to the baseline requirement of competence

is disqualified from being the defendant's "choice" on the same basis that

a lawyer with a conflict of interest is so disqualified. See Wheat. 486 U.S.

at 159. In neither instance will the lawyer's performance provide the right

guaranteed by the Sixth Amendment. Thus, in neither instance does the

lawyer constitute Sixth Amendment "Counsel."

       By the time that attorney Rogers Kemp appeared on the scene, and the

court ruled on Warsame's request, the jury had been sworn (meaning that

jeopardy had attached), opening statements had been given, the third day of trial

had concluded, and two witnesses had completed their testimony (including one

of the alleged victims). Warsame did not want a continuance but, rather, wanted

to "pursue this trial" with his new lawyer.




       3 "That a person who happens to be a lawyer is present at trial alongside the accused,
however, is not enough to satisfy the constitutional command." Strickland, 466 U.S. at 685.

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No. 72305-7-1/12



       Armed with the knowledge that Warsame wished to proceed, and

honoring his right to do so, the trial judge inquired into the current level of

knowledge and skill possessed by his newly retained counsel. During this

inquiry, attorney Rogers Kemp, while offering that "I can pick up a file and I can

walk into a courtroom and do a trial," candidly admitted that she could not

guarantee that she would provide constitutionally effective assistance of counsel,

instead agreeing that "she would have a difficult time" doing so under the

circumstances.

       After hearing from all three attorneys—the prosecutor, Warsame's

appointed counsel, and Warsame's proposed counsel—the trial court found that,

"[t]here is absolutely no way [attorney Rogers Kemp] can be prepared to be an

effective advocate. And I cannot substitute an advocate who is not in a position

to give you effective assistance of counsel."

       The trial court's ruling was sound. Warsame had a right to proceed with

the trial before the jury that was then serving. He was insisting on preserving

that right. He also had a right to the effective assistance of counsel, which he

could not waive so as to accommodate a constitutionally deficient performance

by his counsel of choice. Wheat. 486 U.S. at 162. Because the court found that

Warsame's proposed attorney could not function as Sixth Amendment counsel,

that attorney was not eligible to be chosen by him to serve as his counsel.

       When a lawyer performs at an "unconstitutionally Ineffective" level, "he no

longer functions as'counsel.'" Maryland v. Kulbicki. No. 14-848, 2015 WL
5774453, at *1 (U.S. Oct. 5, 2015). Recognizing this, the trial judge herein ruled


                                          -12-
No. 72305-7-1/13



thoughtfully and correctly. There was no abuse of discretion and no denial of

Warsame's Sixth Amendment right to counsel of choice.

      Affirmed.




We concur:



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