NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 11-1-1063).
Men M. Kaneshiro Chief Judge for Defendant-Appellant.
James M. Anderson Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee.
Nakamura, Chief Judge, Fujise and Leonard, JJ.
Defendant-Appellant Letitia Harter (Harter) appeals from an October 11, 2012 Judgment of Conviction and Sentence entered by the Circuit Court of the First Circuit (Circuit Court).
After a jury trial, the Circuit Court convicted Harter on one count each of: (1) assault against a law enforcement officer in the second degree in violation of Hawaii Revised Statutes (HRS) § 707-712.6 (Supp. 2012); (2) resisting arrest in violation of HRS § 710-1026 (1) (a) (1993 & Supp. 2012); and (3) disorderly conduct in violation of HRS § 711-1101(1) (c) (1993 & Supp. 2012) .
On appeal, Harter contends that: (1) the Circuit Court abused its discretion in denying Harter1s motion for withdrawal and substitution of counsel; (2) the Circuit Court abused its discretion in failing to hold, sua sponte, a hearing to determine Harter's competence to stand trial; and (3) Harter was not afforded effective assistance of trial counsel for counsel's failure to object, based upon lack of foundation, to an officer's testimony that Harter was on drugs.
Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant rules, statutes, and case law, we resolve Harter's points of error as follows:
(1) Although a criminal defendant has a constitutional right to effective assistance of counsel, it is not absolute. State v. Torres, 54 Haw. 502, 504, 510 P.2d 494, 496 (1973) (citations omitted). "[C]ertain restraints must be put on the reassignment of counsel lest the right be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice." State v. Soares, 81 Hawai'i 332, 354, 916 P.2d 1233, 1255 (App. 1996) (citation and internal quotation marks omitted), overruled on other grounds by State v. Janto, 92 Hawai'i 19, 986 P.2d 306 (1999). Thus, a trial court's decision will only be overturned on appeal if "there was an abuse of discretion that prejudiced the defendant by amounting to an unconstitutional denial of the right to effective assistance of counsel." Torres, 54 Haw. at 505, 510 P.2d at 496. This court looks to whether the Circuit Court protected Harter's right to effective representation of counsel by conducting a "penetrating and comprehensive examination" that was "sufficient to enable the court to determine if there is good cause to warrant substitution of counsel." State v. Kossman, 101 Hawai'i 112, 119, 63 P.3d 420, 427 (App. 2003) (citation omitted). In assessing whether there was good cause, the Circuit Court may not simply consider the defendant's subjective perception but must apply an objective standard. Id. at 120, 63 P.3d at 428.
Here, the Circuit Court thoroughly examined the basis for Harter's request, counsel's readiness for trial, and other facts and circumstances, .including that the request was made on the eve of trial, a month after defense counsel confirmed her readiness to proceed to trial. The court engaged in an in-depth dialogue with both Harter and her appointed counsel about Harter's complaints about an insufficient number of in-person meetings and counsel's purported failure to return phone calls, counsel's ability to effectively represent Harter, and whether Harter and her counsel could engage in effective communication in aid of her defense. Based on the record of this case, we conclude that the Circuit Court did not abuse its discretion in determining there was not good cause to warrant a (further) substitution of counsel in order to protect Harter's right to effective representation of counsel.
(2) Harter argues that the Circuit Court abused its discretion in failing to hold, sua sponte, a hearing to determine Harter's competence to stand trial.
The Hawai'i Supreme Court has long held that, pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution, "it is the duty of the trial court to order sua sponte a hearing on competency when what is before it sufficiently indicates that the defendant may be incompetent to stand trial." State v. Tyrrell, 60 Haw. 17, 22, 586 P.2d 1028, 1032 (1978) (citation omitted). In State v. Castro, 93 Hawai'i 454, 461, 5 P.3d 444, 452 (App. 2000) (Acoba, J., concurring) (Castro I), in a concurrence subsequently approved and adopted in its entirety by the supreme court in State v. Castro, 93 Hawai'i 424, 427, 5 P.3d 414, 417 (2000) (Castro III),  Judge Acoba emphasized that physical and mental competence at the time of trial are central to the due process of law. See also State v. Tierney, 127 Hawai'i 157, 171, 277 P.3d 251, 266 (2012) (citing Castro I). The statutory criteria applicable to determining incompetence is set forth in HRS § 704-403 (1993):
No person who as a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against the person or to assist in the person's own defense shall be tried/ convicted, or sentenced for the commission of an offense so long as such incapacity endures.
Pursuant to HRS § 704-404 (Supp. 2012), "[w]henever . . . there is . . . reason to doubt the defendant's fitness to proceed, or reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case, the court may immediately suspend all further proceedings in the prosecution" and order an examination and report upon the defendant's physical and mental condition. As explained by Judge Acoba in Castro I:
While the term "may" suggests that discretion inheres in the trial court as to whether to appoint examiners, the balance of the pertinent statutory language suggests that only some rational basis for convening a panel is necessary to trigger the court's appointive power. Absolutely no burden of proof is placed upon the defendant in requesting a panel evaluation. The filing of a notice aside, what would seem to be the most minimal of standards—that there is "reason" to doubt fitness, or to believe that the defendant's physical or mental responsibility will or has become an issue in the case—invokes the exercise of the court's discretion. Hence, the court is duty bound to sua sponte convene such a hearing if it itself has or is presented with rational basis for believing that the physical or mental defect of a defendant will become an issue on the question of fitness or responsibility.
93 Hawai'i at 462, 5 P.3d at 452.
In State v. Janto, 92 Hawai'i 19, 29, 986 P.2d 306, 316 (1999), the supreme court held that "the trial court's determination that a defendant is competent to stand trial will be reviewed under an abuse of discretion standard." In this case, however, the question of Harter's competency to stand trial was never raised in the trial court and, therefore, was not addressed. Cf^ State v. Scares, 81 Hawai'i 332, 916 P.2d 1233 (1996) (defendant filed a notice of intent to rely on mental defense and request for order appointing medical examiners); Janto, 92 Hawai'i at 24, 986 P.2d at 311 (defendant filed motion for appointment of examiners to determine fitness to proceed and penal responsibility).
Hawai'i Rules of Penal Procedure (HRPP) Rule 52(b) states that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The appellate court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Nichols, 111 Hawai'i 327, 334, 141 P.3d 974, 981 (2006) (quoting State v. Sawyer, 88 Hawai'i 325, 330, 966 P.2d 637, 642 (1998)); see also, e.g., United States v. Marks, 530 F.3d 799, 814 (9th Cir. 2008) ("we review a [trial] court's decision not to sua sponte order a competency hearing for plain error").
The United States Supreme Court has described the right not to stand trial while incompetent as a fundamental right and emphasized "[c]ompetence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one's own behalf or to remain silent without penalty for doing so." Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (citations and internal quotation marks omitted). The Court has further noted "the right not to stand trial while incompetent is sufficiently important to merit protection even if the defendant has failed to make a timely request for a competency determination." Id. at 354 n.4 (citation omitted).
We conduct our plain error review in this context. In addition, we are particularly cognizant of the fact that no determination of Harter's competency was made by the Circuit Court and, if such determination had been made, it would have been subject to an abuse of discretion review of the trial court's assessment of the expert testimony and the court's observations of the defendant. Janto, 92 Hawai'i at 29, 985 P.2d at 316 (overruling Soares).
Although in Janto the supreme court rejected the standard of review adopted by this court in Spares, some of the competency-related observations of the Soares court would appear to have continued vitality in evaluating the Castro I analysis, i.e., whether the Circuit Court had "reason to doubt [Harter's] fitness, or to believe that [her] physical or mental responsibility will or has become an issue, " thus "forming a rational basis" for believing that a mental defect would become an issue, and triggering the trial court's duty to sua sponte convene a fitness examination and hearing. Castro I, 93 Hawai'i at 462, 5 P.3d at 452.
The Soares court observed:
The fact that a defendant has been diagnosed as mentally ill or emotionally unstable to some degree does not necessarily mean that the defendant is incompetent to stand trial. . . . Similarly, a defendant's agitated behavior or verbose, rambling, and inappropriate remarks at trial do not automatically raise doubts as to the defendant's competence to stand trial.
Soares, 81 Hawai'i at 350, 916 P.2d at 1251 (citations omitted).
Under similar circumstances, where the issue of competency was raised for the first time on appeal, the Ninth Circuit Court of Appeals has described the appellate court's task as consideration of whether "the evidence of incompetence was such that a reasonable judge would be expected to experience a genuine doubt respecting the defendant's competence. . . . Among the factors we consider to determine whether there was sufficient evidence of incompetence are the defendant's irrational behavior, his demeanor in court, and any prior medical opinions on his [or her] competence." Marks, 530 F.3d at 814 (citations and internal quotation marks omitted).
A significant issue in this case is the lack of any (known) prior medical opinions concerning Harter's mental health. In addition, Harter's counsel, who was in the best position to observe Harter's ability to participate in her defense, did not raise any concerns about Harter's competence. See Castro I, 93 Hawai'i at 4 62, 5 P.3d at 452 ("Judges must depend to some extent on counsel to bring questions of fitness to stand trial to the court's attention.") (citation and internal quotation marks omitted). On this appeal, Harter relies on numerous statements that she made in the course of the trial proceedings.
At a trial call held on January 23, 2012, Deputy Public Defender (DPD) Beau Bassett (Bassett), who appears to have been Harter's second DPD, orally moved to withdraw as counsel. In support of this motion, Harter stated to the court:
There was a conflict of interest, and I've tried to hire another attorney. He told me I have to ask you first if there's a court-appointed attorney outside of the public defender's office that's free. Because [Bassett is] the seventh public defender, and I tried to set up an interview and I've tried and tried. And then finally when I did, I was telling him that I have a new job as an MTV assistant casting director, and he said, You're crazy. And I was like, Excuse me? Like, every single thing I've said he tried to put me down about.
The motion was granted and thereafter a private attorney, Te-Hina Ickes (Ickes), was appointed as Harter's counsel. After various additional trial calls, on August 13, 2012, which was the final trial call and the eve of the trial, Ickes appeared on behalf Harter and made an oral motion to withdraw as counsel. That hearing on Ickes's oral motion to withdraw included, inter alia, the following exchanges:
MS. ICKES: Also, Judge, just — just to keep the record clear or just to make my record, I believe that if the Court — and I understand the Court's inclination. We discussed it. If the Court is inclined not to grant this motion, another reason I think it might impede Ms. Harter's right to a fair trial is that there's that communication breakdown between the two of us. She doesn't — I believe that she no longer trusts me, you know.
The defendant has a right to testify in his or her own defense. It's really going to impede my ability to prepare her or advise her regarding her potential or her rights to testify in her own defense and not testify — or not testify, my ability to actually sit down with her and prepare her for potential cross-examination.1 — I think that would infringe on her right to a fair trial, her right to testify on her own behalf if — if she doesn't trust me, and at this point I believe that she — the — that's — that's key and that's how she feels.
THE COURT: Ma'am, I will hear from you now. You may stand and address the Court.
DEFENDANT HARTER: Yeah. I've only had one meeting with her, and every month multiple times a month I've asked to schedule another meeting just to know what's been going on with my case, if anything. Because before we had nothing, and I file — I told her what had happened and how I didn't have any understanding of what was going on.
And I've actually also filed a report with the police commission where it's if an officer does something, you report it, and then I was told that if they decide to drop the case or whatever, that then the — then the case would be dropped. I guess I was under the wrong impression, but it's still been over five months that they've responded. And so we've been waiting this whole time for them to even respond back. Also seeing whether or not he is worthy of having this case stand is what I was under the impression, but I don't know.
And like I've said, I've never been contacted whatsoever about my case, and I've just asked for any knowledge or a meeting or anything. And there was only the initial one, and then I was just told that there was an offering. If I plead no contest to assault, that the other two things would be dropped, but I haven't done anything whatsoever, so I — I was a little bit offended, you know, that I didn't do anything and, you know, my own lawyer is telling me this. So -
THE COURT: Okay. I — I understand where you're coming -
DEFENDANT HARTER: Because I know no contest, but I've — I've filed reports with her, with the Court, with the police commission saying what my side is. So no contest is not no contest already because I file — I've said my side of the story -
THE COURT: I understand.
DEFENDANT HARTER: — instead of saying no contest and all my stuff gets scratched out. No, I don't want to do that, and I feel -
THE COURT: Any -
DEFENDANT HARTER: — that it's completely retarded. This case has been going on almost two years. I've never waived the Rule 48. Never. No one ever asked me to waive it, and I never needed it. I've been here every single time on time. There was one where I was like an hour late, and then it was rescheduled. And for that I had a bench warrant, and I was in jail for two months when my court was scheduled one day later. And I never did anything.
THE COURT: And that was August 15th of last year?
DEFENDANT HARTER: Yeah. And the court date was scheduled for like the 18th while I was picked up between that time because I don't know what reason. And it held — even when I had to go to court when I was in jail, it held that I was picked up for that reason when the court date was already scheduled and they said that that was ignore — that ' time that I missed was ignored already.
THE COURT: Okay.
DEFENDANT HARTER: So I've been going through all this stuff. I never did anything in the first place. I called the police because I was assaulted. Then they came, and then they assaulted me also -
THE COURT: Did you do a Rule 48 calculation?
DEFENDANT HARTER: — while people — the crowd of people laughed at the police. Not at me. They laughed at the police because they were saying how Waikiki is the streets. And I said no, it's not, sir. This is Waikiki.
THE COURT: Okay.
DEFENDANT HARTER: And then he attacked me.
THE COURT: Mr. Prosecutor -
MR. VAN ACKER: Yes, you Honor.
At the close of the August 13, 2012 hearing, the Circuit Court informed Harter that he believed she and Ickes could work together and prepare for trial the next day. He said, "I want both of you - you and your attorney to talk outside, and tomorrow morning at 8:30 I want you guys back here for further status hearing. . . . As of right now, this case is going to trial at 9:30 tomorrow morning."
At the hearing the next morning, August 14, 2012, there was a further discussion:
THE COURT: Ms. Harter, please stand. The Court yesterday ordered you to talk to your attorney as soon as court was completed today — yesterday.
Did you do so?
DEFENDANT HARTER: No.
THE COURT: Why not?
DEFENDANT HARTER: I didn't hear you say that I needed to talk to my attorney.
THE COURT: I made myself very clear yesterday to you.
DEFENDANT HARTER: I didn't hear it. It was not very clear to me.
THE COURT: Is that the reason why you didn't show up for your arraignment and plea on August 15th last year, because you didn't hear the Court tell you to be there for arraignment and plea?
DEFENDANT HARTER: No. I had called my lawyer and said I would be there but I was running late.
THE COURT: Tone down — tone down your voice.
DEFENDANT HARTER: I lived in North Shore.
THE COURT: Tone down -
DEFENDANT HARTER: Yes, sir, it is -
THE COURT: — your voice.
DEFENDANT HARTER: — it is toned down.
THE COURT: You better lower that volume. Otherwise, you're going to -
DEFENDANT HARTER: I lived in North Shore, and when I was running late, I had called my lawyer. He said don't worry about it. It's rescheduled already for Monday or whatever the next day was.
THE COURT: Well, you — you better start learning that when the Court says something, the Court means something.
DEFENDANT HARTER: That was over a year ago; correct?
THE COURT: Oh, so that means there's a statute of limitations on things like that?
DEFENDANT HARTER: I don't know what you're saying. I'm just —
THE COURT: Well, that's exactly why you should learn.
DEFENDANT HARTER: — like I've been attending all these court dates.
THE COURT: I'm telling you to — to -
DEFENDANT HARTER: And there was supposed to be a Rule 48 -
THE COURT: Don't cut me off.
DEFENDANT HARTER: — back in November too.
MS. ICKES: You shouldn't interrupt him.
THE COURT: Don't cut me off.
MS. ICKES: He's going to call the sheriff. Don't interrupt him. Don't tell him -
DEFENDANT HARTER: I wasn't interrupting.
THE COURT: Don't ever cut me off.
DEFENDANT HARTER: He was interrupting me.
MS. ICKES: Letitia, I'm -
THE COURT: I was interrupting you?
DEFENDANT HARTER: When I was speaking, you were telling me that I was very loud.
THE COURT: I'm talk — whenever I'm talking, I have the floor.
DEFENDANT HARTER: Okay.
THE COURT: Okay. Now we got each other straight; correct?
DEFENDANT HARTER: Correct.
THE COURT: Okay. Now, when the Court orders you to do something, you do it. I've been notified now by you that you did not' stay around to meet with your attorney.
DEFENDANT HARTER: I went to the Office of Disciplinary Counsel.
THE COURT: I didn't ask you why. I didn't ask you why.
Today, when you arrived, did you talk to your attorney?
DEFENDANT HARTER: Yes.
THE COURT: Okay. And what was the results of that conversation?
DEFENDANT HARTER: I had already pled not guilty, and she wanted to know if I'd change my plea to say no contest, that there would be some kind of deal arranged. But then she said that there would be no way to appeal or address this case in any way, and there's already an investigator on this case from yesterday. And he said it's a hate crime. To get another lawyer because it's a hate crime.
THE COURT: Who said it's a hate crime?
DEFENDANT HARTER: The other investigator because the people — when all the police showed up and stuff, they were saying that I was a white haole bitch and a tourist, and when -- as soon as I told them that I had lived here for 16 years, ...