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CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-12-0000962; CR. NO. 11-1-1063.
Alen M. Kaneshiro for petitioner.
James M. Anderson for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
[134 Hawai'i 311] POLLACK, J.
This case concerns a defendant's right in a criminal case to be represented by counsel free from divided loyalties. Our decision addresses whether Letitia Harter's request for substitution of counsel should have been granted by the trial court. The court denied the request for new counsel, and following trial, a jury convicted Harter of all the charges against her. Harter appealed from the Judgment of Conviction and Sentence (judgment of conviction) of the Circuit Court of the First Circuit (circuit court).
The Intermediate Court of Appeals (ICA) affirmed the judgment of conviction in its Memorandum Opinion filed January 28, 2014. We conclude the circuit court erred in not conducting a penetrating and comprehensive inquiry regarding the conflict of interest between Harter and her counsel, and we also find that Harter did not voluntarily consent to the attorney-client relationship. Therefore, under our law, the denial of Harter's motion for withdrawal and substitution of counsel resulted in the derogation of Harter's right to effective assistance of counsel. Accordingly, the ICA Judgment on Appeal and the judgment of conviction are vacated, and the case is remanded to the circuit court for further proceedings.
The charges in this case arose from a May 1, 2011 incident at Club 939, a Honolulu
[134 Hawai'i 312] nightclub. The police came to Club 939 in response to a call made by Harter complaining of sexual harassment. The testimony is conflicting as to what happened when the police arrived, but an officer testified that he attempted to arrest Harter for disorderly conduct. The officer testified that Harter resisted the arrest, and while he tried to " gain control" of her, " unfortunately she swung over" and scratched his chin. Harter was arrested following the incident, and on May 5, 2011, the State of Hawai'i (State) filed a complaint against Harter in the District Court of the First Circuit (district court), charging her with the following offenses: (1) assault against a law enforcement officer in the second degree, in violation of Hawai'i 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).
At the August 2, 2011 arraignment, Harter requested a jury trial. The district court committed Harter for trial to the circuit court and scheduled arraignment before the circuit court on August 15, 2011.
A. Counsel Appointments and Trial Scheduling
Harter appeared in custody for arraignment, and the circuit court set trial call for September 26, 2011, and trial for October 3, 2011. The Office of the Public Defender was appointed as Harter's counsel.
The trial week was continued to November 14, 2011, and trial call was later rescheduled to December 5, 2011.
On December 5, 2011, the circuit court granted Harter's request for a continuance because the State was unable to produce requested police reports and defense counsel indicated the defense's intent to subpoena these documents from the Honolulu Police Department (HPD). However, at the next scheduled trial date on January 23, 2012, Harter's deputy public defender informed the circuit court that Harter asked him to withdraw as counsel. Harter explained to the court that she was unsatisfied with her counsel. The circuit court granted the motion to withdraw and set a new trial week for February 21, 2011. Te-Hina Ickes was appointed as Harter's new counsel.
Following Ickes' appointment, Harter's trial was continued on four other occasions--twice by stipulation and once by Harter--until July 30, 2012. The last continuance was due to the State not being prepared to proceed to trial because the complaining witness was on military leave. Ickes objected to the State's request and asserted the defense was
[134 Hawai'i 313] prepared to proceed to trial. The court indicated this was the " fourth time that the State [was] not ready to proceed," but the court granted the State's oral motion for a continuance and set the new trial date for August 13, 2012.
B. Ickes' Motion to Withdraw
On August 13, 2012, in a hearing before the circuit court, Ickes made an oral motion to withdraw as counsel:
I've just been informed by Ms. Harter prior to coming into court today that [she is] unhappy with my services and would like me to withdraw . . . I don't know if your Honor needs to hear any more from me. It's Ms. Harter that's -- that's taken issue with my representation.
The circuit court responded by noting Ickes' level of preparation and that Ickes had been Harter's counsel for over six months.
The circuit court posited that Ickes had met with Harter " several times" at Ickes' office. Ickes, however, indicated she only had one scheduled meeting with Harter that lasted an hour and five minutes on March 8th and their " other discussions happened over the phone and before and following court." The circuit court also stated it was familiar with Ickes' work and diligence in her investigation including locating a witness on the mainland. Ickes responded, " Judge, actually, that never panned out. I did attempt calls and writing, but that never turned into anything."
The circuit court then verified with the State that there were less than thirty pages of discovery. The prosecutor indicated there was also a CD that included a 911 call. Ickes related that, upon reviewing the discovery, she did not have any record of having ever received the CD from the prosecutor's office.
In elaborating on her reasons in support of her motion to withdraw as counsel, Ickes stated Harter was " unhappy" with Ickes' representation. Ickes listed some of Harter's complaints about Ickes: she was " not prepared" ; she was " not paying enough attention to her case" ; she did not return Harter's phone calls; and she did not have " enough time to prepare to begin with trial tomorrow." Ickes explained:
I think . . . she just feels like I'm not prepared . . . to proceed in her defense. And, you know, any implications of me being ineffective, if she's unhappy with how I conduct myself during the trial, if how I conducted myself in preparing for her trial, you know, that goes to my credibility as a lawyer, and it's -- it -- I apologize, Judge, I'm not exactly sure how to frame this, but essentially she's unhappy with my representation, and she does not want me to represent her anymore. She has indicated to me that she has consulted another attorney, but in effect has used the words that I want to fire you right before this hearing.
(Emphases added). Ickes also suggested withdrawal was necessary for her own professional interest, to protect herself from subsequent claims of ineffective assistance of counsel, and to secure Harter's right to effective assistance of counsel:
So for those reasons, Judge, for my professional stake in this, and for Ms. Harter's well-being -- I mean, she is facing these criminal charges, and she is entitled to effective assistance of counsel. If I feel like perhaps there might be some later allegations of me being ineffective, me neglecting her, I certainly need to protect myself. So for those reasons, your Honor, . . . I feel like I . . . need to make this motion to withdraw and assure the Court that it's not any strategy on my part to try and, you know, waste this Court's time and push this case any further back than it needs to go.
The circuit court responded that it was aware of Ickes' reputation for honesty and integrity and commended Ickes for being a " hard working attorney." The court noted that just because attorneys do not contact their client, the complainant, or other witnesses, it does not necessarily mean they " are incapable of performing outstandingly at time of trial." The court stated that it did " not doubt" Ickes was prepared for trial, noting she declared she was ready on July 16th. The circuit court emphasized it was
[134 Hawai'i 314] taking Ickes at her word and also " based on her reputation for honesty and integrity within our court system." The court stated it was " not inclined" to allow Ickes to withdraw at " this late date." In response, Ickes continued to describe her inability to communicate with Harter as a basis for her oral motion to withdraw:
[A]nother 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 she no longer trusts me . . . 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 . . . my ability to actually sit down with her and prepare for potential cross-examination . . . I think that would infringe on her right to a fair trial . . . if she doesn't trust me . . . .
Harter addressed the court and stated her reasons for requesting Ickes' withdrawal:
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, . . . I told her what had happened and how I didn't have any understanding of what was going on.
. . . 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.
(Emphases added). Harter then discussed the periods of trial delays:
This case has been going on almost two years. I've never waived the Rule 48. . . . 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 date was scheduled one day later. And I never did anything.
The court asked the prosecutor for his Rule 48 calculation. After obtaining an expiration date of September 27, 2012, the court indicated it would do its own calculation and instructed defense counsel to also do a recalculation.
The court noted that a jury had already been ordered and re-affirmed its determination that Harter would be able to prepare for trial with her counsel " in the little time" she had left because there were " only a few pages of discovery." The circuit court concluded the hearing by stating that it wanted Ickes and Harter to " talk outside" :
It is my belief that a jury on this case has already been ordered for this trial. I believe that . . . because she's one of the better ones that we have in town, that you can work together and prepare for this in the little time you have left between now because it's only a few pages of discovery that we're really talking about, and it's from multiple sources. . . .
. . .
. . . So this case will proceed tomorrow. 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.
At the beginning of the status hearing the next morning, the circuit court inquired into whether Harter followed the court's " order" to talk to her attorney " as soon as court was completed." During the course of this exchange, Harter indicated she did not meet with Ickes:
THE COURT: Ms. Harter, please stand. The Court yesterday ordered you to talk to your attorney as soon as court was completed . . . yesterday. Did you do so?
COURT: Why not?
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.
[134 Hawai'i 315] HARTER: I didn't hear it. It was not very clear to me.
Harter was apparently speaking loudly, and the court informed her to lower her voice, warned her about interrupting the court, and directed her to follow the instructions of the court.
The court resumed its inquiry into Harter's failure to follow its order to meet with her attorney. Harter tried to explain she had gone to the Office of Disciplinary Counsel:
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.
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?
THE COURT: Okay. And what was the results of that conversation?
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?
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 I had lived here for 16 years, that's when the courts actually let me out of jail three days later.
THE COURT: Okay.
HARTER: Because they thought I was a tourist the whole time.
(Emphases added). The circuit court then asked Harter about the status of her relationship with Ickes and also evaluated the level of preparation required for the case:
THE COURT: What's the current status of your employment with your attorney?
HARTER: I don't know what you're asking.
THE COURT: Well, I can tell you that she has done her homework. She has represented to the Court that she did get the discovery. She has reviewed the discovery.
By the way, the Court will obtain a copy of the police reports and seal it so that any appellate court reviewing this matter will know how small the discovery is, and my guesstimate is that only nine pages of substance are actually typewritten of which it's divided between three witnesses who saw the same thing. And so you're only really talking about three -- three pages of police report of really true substance about the facts of this case.
I would determine that going over that police report, analyzing it is a matter of an hour, maybe two hours of which the defense attorney has indicated to the Court that it has. Defense attorney on behalf of you declared ready which told the Court that she was ready for trial and able to represent you at trial on June 16th of this year.
(Emphases added). The circuit court stated that it understood the " sole or the focal" reason Harter was not able to work with her counsel was because Ickes did not return Harter's phone calls the previous week. Harter responded that the problem had started much earlier:
Actually, since the very beginning I had one meeting with her, and every -- at least every month to every two weeks I was giving her a call saying that I needed her to call me. I needed to set up another interview or meeting of some sort. I have papers to give you. If you could give me a call back or send me an e-mail, anything. I never once received a phone call or an e-mail or any of the sort, and I've left messages with her office . . .
The court questioned why Harter had not raised these concerns about Ickes' " unresponsiveness" at the ...