State v. Harter
| Citation | 340 P.3d 440,134 Hawai'i 308 |
| Decision Date | 10 December 2014 |
| Docket Number | No. SCWC–12–0000962.,SCWC–12–0000962. |
| Court | Supreme Court of Hawai'i |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Letitia HARTER, Petitioner/Defendant–Appellant. |
Alen M. Kaneshiro, for petitioner.
James M. Anderson, Honolulu, for respondent.
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 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) ;1 (2) resisting arrest, in violation of HRS § 710–1026(1)(a) (1993 & Supp.2012);2 and (3) disorderly conduct in violation of HRS § 711–1101(1)(c) (1993 & Supp.2012).3
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.
Harter appeared in custody for arraignment, and the circuit court set trial call for September 26, 2011, and trial for October 3, 2011.4 The Office of the Public Defender was appointed as Harter's counsel.
The trial week was continued to November 14, 2011,5 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.6 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 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.
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,
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.
(Emphases added).
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 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....
(Emphases added).
Harter addressed the court and stated her reasons for requesting Ickes' withdrawal:
(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...
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