CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-13-0000069; CR. NO. 12-1-0899.
Craig W. Jerome for petitioner.
Sonja P. McCullen for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
[135 Hawai'i 383] OPINION
The sole issue raised in Petitioner Ikaika Reed's application for writ of certiorari is whether the Intermediate Court of Appeals (ICA) gravely erred in holding that the trial court did not abuse its discretion when it denied Reed's motion to substitute retained counsel in place of his court-appointed counsel. We agree with Reed that the circuit court abused its discretion, resulting in a denial of his right to privately retained counsel of choice under article 1, section 14 of the Hawai'i Constitution. Accordingly, we vacate the ICA's June 9, 2014 judgment on appeal affirming the Circuit Court of the First Circuit's (circuit court) judgment of conviction and sentence for assault in the first degree.
Reed was arraigned on June 21, 2012 for the charge of assault in the first degree in violation of Hawai'i Revised Statutes (HRS) § 707-710. At that time he was assigned the trial week of August 20, 2012. If convicted, Reed faced a ten-year sentence with a possible mandatory minimum of three years and four months without the possibility of parole, based on his potential status as a repeat offender. The Office of the Public Defender was appointed as his counsel on July 5, 2012.
Twenty-seven days later, on August 1, 2012, Reed's deputy public defender (DPD) orally made his first motion to continue trial because he had not yet received a recording of the grand jury proceedings. The State did not object and informed the court that it had not yet provided Reed with all discovery. The circuit court granted the continuance and set trial for October 1, 2012.
On September 25, 2012 --approximately ninety days after his arraignment--Reed filed a second motion to continue. The DPD's declaration filed along with the motion stated that the death of one of Reed's percipient witnesses, the State's recent disclosure of three witnesses and release of additional statements from the complaining witness, and the need to interview recently discovered defense witnesses required a continuance.
[135 Hawai'i 384] The next day, at the September 26, 2012 trial call, the circuit court inquired as to the State's position on Reed's request for a continuance. The State informed the court that it was ready for trial, noted that the DPD's declaration was accurate, and made no objection to Reed's second motion to continue. The circuit court proceeded to ask the parties about Reed's terroristic threatening case, which was also before the court. Ultimately, the court granted Reed's second motion to continue and reset the trial for October 15, 2012 with a trial call on October 10, 2012. The court stated that the first degree assault case would function as the " prime case" and the terroristic threatening case as the " backup" case, noting that if the assault case were continued, the court would proceed on the terroristic threatening case.
Two weeks later, at the trial call on October 10, 2012, the DPD notified the court that Reed was " in the process of potentially retaining other counsel." On this basis and the declaration that Reed was " still in the process of obtaining witness information," including contacting a potential percipient witness, the DPD requested a third continuance with no objection from the State. The court did not address the DPD's statement regarding Reed's intent to substitute counsel. It denied the third motion to continue, after concluding sufficient time had transpired for identification and preparation of defense witnesses:
THE COURT: In exercising the [c]ourt's discretion on whether to grant the continuance on the eve of trial, the [c]ourt will follow the criteria that the Supreme Court had made out in State v. Reid. First of all, as a matter of policy, continuance [ ] made on the eve of trial is viewed with disfavor, and when it's done on the basis for absence of witnesses, the [c]ourt must make a determination as to who is this witness, the substance of their testimony, whether a diligent effort was made to secure the attendance of this witness, the likelihood of the availability of this witness in the future. And based on the record before this court it is speculative at this point what that witness would have, so the continuance is denied. I should note that this case has been continued from -- twice already, and this would be a third continuance. So the [c]ourt believes that there's been sufficient time to inform these witnesses. The motion is denied . . . .
At the same hearing, the court addressed Reed's previously-filed motion to continue his terroristic threatening case. The court granted the motion to continue the terroristic threatening case and reset the trial for February 19, 2013.
Five days later, on the day of trial and prior to jury selection, Reed appeared with retained counsel and renewed his request for a trial continuance. The DPD moved to withdraw as trial counsel, stating that Reed retained private attorney Clayton Kimoto to represent him. Again, the court did not inquire as to the State's position on Reed's motion, and the State made no objection. The circuit court appeared to be about to deny Reed's request for substitution of his privately retained counsel when Reed addressed the court. He explained to the court that he lost confidence in his attorney because the DPD did not engage in timely preparation of defense witnesses, did not return phone calls regarding witnesses, and failed to timely inform Reed of the State's disclosure of additional witnesses before trial. On this basis, Reed asked the court to permit his retained counsel to represent him so that he could receive a fair trial:
THE COURT: Should I grant this motion, will new counsel be ready to pick a jury this morning and to proceed to trial?
[135 Hawai'i 385] MR. KIMOTO: May I speak, ...