                                                                    2015 JUN-8 An 9= U2




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                           DIVISION ONE
                          Respondent,
                                                           No. 71409-1-1
            v.

                                                           UNPUBLISHED OPINION
YASIN ALI MOHAMED,

                          Appellant.                       FILED: June 8, 2015


          Dwyer, J. — Following a jury trial, Yasin Mohamed was convicted of

violating an order of protection. Mohamed raises two claims on appeal. First, he

contends that recordings of several telephone calls he made while in jail were

improperly admitted at trial. Second, he contends that his right to counsel was

violated when he chose to represent himself at sentencing. Finding no error, we

affirm.

                                                  I


          The State charged Mohamed with violating an order of protection after he

visited his cousin, Fahmo Ali, at her apartment.1 At the time of Mohamed's visit,




          1Although Ali was repeatedly referred to as Mohamed's sister during trial, she indicated
in the 911 call that Mohamed was her cousin, and a Somali interpreter testified that it was
common in Somali culture to refer to a peer as "sister" or "brother" regardless of any blood
relationship.
No. 71409-1-1/2



a valid protection order was in effect that prohibited him from contacting Ali and

excluded him from her residence.

       Ali did not testify at trial. Instead, the State proceeded against Mohamed

using a 911 recording in which Ali told the dispatcher, through a Somali

interpreter, that a man had entered her home. She explained that she had run

out of the apartment after the man had entered because she feared he would

physically attack her and that her infant daughter was still in the apartment with

him. The officers who responded to the call testified that they spoke with Ali in

the hallway of the building and then went to her apartment and knocked on the

door. Mohamed answered and they placed him under arrest.

       Mohamed was charged with domestic violence felony violation of a court

order. While Mohamad was in jail, he made several telephone calls, including

three calls to a number listed as Ali's and two calls to a bail bondsman. In the

calls to Ali, Mohamed questioned her about whether she called the police and

directed her not to cooperate with law enforcement. Over Mohamed's objection,

the recordings of all five calls were admitted at trial, and translated transcriptions

of portions of the calls made to Ali were published to the jury and admitted as

illustrative exhibits.

        Mohamed elected to represent himself at trial. After a jury convicted him

of violating the protection order, the court reappointed counsel for sentencing.

Mohamed filed several pro se motions requesting dismissal of the charge and a

new trial. He repeatedly requested to both proceed pro se on these motions and

have counsel represent him at sentencing. The trial court refused to order such
No. 71409-1-1/3



an arrangement. Instead, it required Mohamed to represent himself at

sentencing if he wanted to proceed pro se on his motions. Mohamed chose to

continue pro se, and the court appointed him standby counsel. At sentencing,

the trial court imposed a drug offender sentencing alternative of 19 months

incarceration and 19 months of community custody.

                                           II


       Mohamed first contends that the trial court abused its discretion in

admitting recordings of five telephone calls that he made from jail. This is so, he

now argues, because the evidence was irrelevant or, even if relevant, was more

prejudicial than probative. Mohamed's failure to object below on the grounds

raised on appeal bars appellate review of these evidentiary claims.

       "[I]t is well established that '[i]f a specific objection is overruled and the

evidence in question is admitted, the appellate court will not reverse on the basis

that the evidence should have been excluded under a different rule which could

have been, but was not, argued at trial.'" State v. Ferguson, 100 Wn.2d 131,

138, 667 P.2d 68 (1983) (quoting 5 Karl B. Tegland, Washington Practice:

Evidence § 10, at 25 (2d ed.1982) and citing ER 103V. see also State v. Korum,

157 Wn.2d 614, 648, 141 P.3d 13 (2006).

       During the pretrial hearing regarding the admissibility of these calls,

Mohamed raised one specific objection to all of the jail telephone calls—that he

believed that the State should not be permitted to record his calls. He offered no

legal authority in support ofthis assertion. When the recordings were offered at
No. 71409-1-1/4



trial, Mohamed did not raise any additional ground for his objection, stating only

"defense would object."2

       As to the calls to the victim, Mohamed also argued that the State could not

establish that the person he called was the victim. The court explained the
minimal information necessary to authenticate the identity of a person on the

telephone and ruled the calls admissible.

       Neither ofthese objections is the basis for Mohamed's claim on appeal.
Accordingly, we do not further consider his evidentiary argument.
                                              Ill

       Mohamed next contends that he was denied his constitutional right to

counsel at sentencing. This is so, he asserts, because the court "forced him to
choose between abandoning his motions for a new trial and having counsel at
sentencing." Br. of Appellant at 10. We disagree.
           Under Washington law, once a defendant has asserted his right to
 represent himself and made a knowing, voluntary, and intelligent waiver of the
 right to counsel, the defendant is not entitled to reappointment of counsel as a
 matter of right. State v. DeWeese. 117 Wn.2d 369, 379, 816 P.2d 1(1991). "[A]
 valid waiver of the right to assistance of counsel generally continues throughout
 the criminal proceedings, unless the circumstances suggest that the waiver was




          2Mohamed later challenged the competency of the translator who provided the English
 translation of the telephone conversations with the victim, which were mostly in Somali. When
 transcripts of the calls to the victim were offered, which included the English translation,
 Mohamed objected that they were hearsay. These objections to the translation are not raised on
 appeal.
No. 71409-1-1/5



limited." State v. Modica. 136 Wn. App. 434, 445, 149 P.3d 446 (2006), affd,

164 Wn.2d 83, 186 P.3d 1062 (2008).3

       After a defendant's valid waiver of counsel, the reappointment of counsel

"is wholly within the discretion of the trial court." DeWeese, 117 Wn.2d at 376-

77. "In exercising that discretion, the trial court may consider all of the

circumstances that exist when a request for reappointment is made." Modica,

136 Wn. App. at 443 (citing State v. Canedo-Astorqa, 79 Wn. App. 518, 525, 903

P.2d 500 (1995)).

       Mohamed's contention that he was denied the right to counsel is based on

the incorrect premise that he was entitled to reappointment of counsel for

sentencing. In fact, Mohamed had previously validly waived his right to counsel
in this case.4 Therefore, it was within the trial court's discretion whether to

reappoint counsel.

       The trial court exercised its discretion reasonably with regard to

Mohamed's requests for reappointment of counsel. Thus, at Mohamed's

request, the court reappointed counsel for sentencing. Despite then being
represented by counsel, Mohamed filed several pro se motions requesting
dismissal of the charge and a new trial. He repeatedly requested to represent

himself on these motions but to have counsel represent him at sentencing.


        3 Federal law is in accord. As one court summarized, "Federal circuit courts are
unanimous in holding that 'a defendant's waiver ofcounsel at trial carries over to subsequent
[sentencing] proceedings absent a substantial change in circumstances.'" Fletcher v. Dickhaut,
834 F. Supp. 2d 10, 18 (D. Mass. 2011) (alteration in original) (quoting United States v. McBride,
362 F.3d 360, 367 (6th r.ir ?nru\y s^e also United States v. Unaer. 915 F.2d 759, 762 (1st
Cir.1990); United States v. Fazzini, 871 F.2d 635, 643 (7th Cir.1989); Panaaos v. United States,
324 F.2d 764, 765 (10th Cir.1963); Davis v. United States, 226 F.2d 834, 840 (8th Cir.1955).
        4Mohamed does notchallenge the validity of his prearraignment waiver ofthe right to
counsel.
No. 71409-1-1/6



      "A defendant does not have a constitutional right to choreograph special

appearances by counsel." McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S. Ct.

944, 79 L. Ed. 2d 122 (1984). Similarly, a defendant does not have a

constitutional right to act as co-counsel. DeWeese, 117 Wn.2d at 379. Here, the

trial court properly gave Mohamed a choice: he could be pro se or he could be

represented by counsel. Desiring to argue his motions pro se, Mohamed chose

to remain pro se. The trial court reasonably exercised its discretion in giving

Mohamed this choice; he was entitled to no more.

      Affirmed.

                                            \ J^-7/l* .

We concur:




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