State v. Harter.

***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCWC-12-0000962
10-DEC-2014
08:20 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,

vs.

LETITIA HARTER,
Petitioner/Defendant-Appellant.

SCWC-12-0000962

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000962; CR. NO. 11-1-1063)

December 10, 2014

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY 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
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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.

I. BACKGROUND

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

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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 Hawaiʻi (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 Hawaiʻi 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

1
HRS § 707-712.6, Assault against a Law Enforcement Officer in the
Second Degree, in relevant part, provides the following:

(1) A person commits the offense of assault against a law
enforcement officer in the second degree if the person
recklessly causes bodily injury to a law enforcement
officer who is engaged in the performance of duty.
2
HRS § 710-1026, Resisting arrest, in relevant part, provides the
following:

(1) A person commits the offense of resisting arrest if
the person intentionally prevents a law enforcement officer
acting under color of the law enforcement officer's
official authority from effecting an arrest by:

(a) Using or threatening to use physical force against
the law enforcement officer or another . . . .
3
HRS § 711-1101, Disorderly Conduct, in relevant part, provides
the following:

(1) A person commits the offense of disorderly conduct
if, with intent to cause physical inconvenience or alarm by
a member or members of the public, or recklessly creating a
risk thereof, the person:

(continued . . .)

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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, 2011.4 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

(continued . . .)
. . .
(c) Subjects another person to offensively coarse
behavior or abusive language which is likely to
provoke a violent response . . . .
4
Harter did not appear at the initial arraignment date.
5
The Honorable Edward H. Kubo, Jr., presided over the circuit
court proceedings in this case.

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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.

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.

6
Specifically, Harter complained that she was unable to schedule
an appointment although she “tried and tried.” She also noted that when she
finally did meet with her public defender that he told her, “You’re crazy,”
after she told him that she had “a new job as an MTV assistant casting
director.” Harter also claimed that her public defender would “put [her]
down” and “negat[e] every single thing” she asked him to do.

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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

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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,

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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:

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.

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(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.7

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

7
Rule 48 refers to Hawaiʻi Rules of Penal Procedure Rule 48, which
sets forth a six-month period for trial to commence after a prescribed event
has occurred and also establishes excludable periods for purpose of time
computation.

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morning at 8:30 I want you guys back here for further
status hearing.

(Emphases added).

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?

HARTER: No.

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.

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?

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HARTER: Yes.

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

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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 . . .

(Emphases added).

The court questioned why Harter had not raised these

concerns about Ickes’ “unresponsiveness” at the previous court

hearing.

THE COURT: My question to you is on July 16th, the last
time you appeared, when you heard your attorney declare
that you guys were ready for trial, how come you didn’t
bring that up at that time?

HARTER: I was never addressed in court. I just would stand
here and not say anything this whole time. And now that
I’ve started to say something, I’ve been threatened with
the sheriff.[8]

THE COURT: So you -- so you’re -- all of a sudden you’re –
you’re saying something? I mean, it would have appeared to
me that when you appeared to me on February, in April, in
May, in -- in July, you should have said something to me at
that time.

8
At one point Ickes told Harter not to interrupt the circuit court
judge, warning her, “He’s going to call the sheriff.”

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HARTER: From April until now, we were still waiting to hear
back from the Honolulu Police Commission because my report
was never put into the paperwork as part of the police
reports, which is what I was trying to do. And it’s been 5
1/2 months instead of six weeks, which is -- is as long as
it takes.

(Emphases added).

The court concluded its colloquy by asking Harter

if she could work with Ickes, and Harter’s response related

to not having been asked about waiving Rule 48.

THE COURT: Well, this case has been hanging around long
enough, and I’m not going to let any more cobwebs collect
on this case.
Is it your determination that you can work with your
attorney?

HARTER: Well, also before when the -- I guess the Rule 48
was waived, I was never asked if I wanted to waive the Rule
48. Like, again, I was never addressed and asked that
question. Just like everybody else has been asked since
I’ve been sitting here all this time, I was never asked if
that was okay.

(Emphases added). The court did not inquire further into

whether Harter believed that she could work with Ickes as her

counsel.

The circuit court then explained its analysis of

Harter’s motion to substitute counsel under a four-prong test

for substitution of counsel from United States v. Doe, 272 F.3d

116 (2nd Cir. 2001). As to the first factor, “whether Defendant

made a timely motion requesting new counsel,” the court found

the motion was untimely given that it was “the eve of trial.”

Second, the circuit court found that it “adequately inquired

into the matter” because it “did a searching and probing inquiry

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into the defendant.” During the court’s discussion of the third

factor, “whether the conflict between the defendant and her

attorney was so great that it resulted . . . in a total lack of

communication preventing an adequate defense,” Harter

interjected that “there was such a lack of communication” that

she “didn’t even know it was the eve of trial.” With respect to

the fourth prong, the court found Harter was responsible for the

breakdown in communication, noting that Harter had not met with

her counsel the previous day as required and that earlier that

morning Harter’s voice was “enraged” at her counsel:

THE COURT: Okay. Well, then the fourth factor is whether
the defendant substantially and unjustifiably contributed
to the breakdown in the communication, and I also find
that. When the Court ordered you to -- to talk to your
attorney yesterday, and you walked out of here and kept on
going despite the fact that the Court told you to talk to
your attorney –

HARTER: I didn’t hear it. I just told you that.

THE COURT: -- and yesterday I told you to be back at 8:30
and you didn’t. And now I find out that -- that you were
outside with -- with your voice enraged at your attorney.
You don't do that.

HARTER: No, she was yelling at me. I wasn't yelling at
her.

THE COURT: . . . [I]t doesn’t matter. When this arguments
happen like this, you know, I -- yesterday when you left
here, you were responsible for the breakdown, and I think
the record is quite clear from my colloquy with you that,
you know, a relationship as far as an attorney-client
relationship with you need to understand cannot be one-
sided.

(Emphases added).

The circuit court concluded Ickes was properly

prepared to represent Harter. The court ruled that it did not

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find “good grounds” to discharge Ickes and consequently required

Harter to choose between two options: “either . . . keep” Ickes,

or “proceed to trial this morning by yourself.” The court

explained to Harter that the question was whether her attorney

is properly prepared to go to trial, and the court found “yes”

that Ickes was “ample and ready” to defend Harter’s interests

“zealously.” The circuit court emphasized to Harter that she

was entitled to counsel only if the court were to find “good

cause” to discharge Ickes. The court further explained that

since there was “no valid reason for the discharge” the court

was “not required to appoint substitute counsel” to represent

her, and if she continued to demand substitution, the court “may

in its discretion discharge counsel and require the defendant to

proceed to trial without representation.” The court then asked

Harter if she understood, and Harter was not responsive to the

question:

HARTER: I was call -- I was speaking to an attorney last
night.

THE COURT: That’s not my question to you, young lady.
Do you understand what I have told you?

HARTER: Not really.

THE COURT: Okay. Let me break it down for you. If I find
that there is good grounds for you to fire your attorney
and if I find that there is no valid reason for discharging
your attorney, and I’m finding that, I have to advise you
that either you’re going to keep her, or you’re going to
proceed to trial this morning by yourself.

HARTER: I don’t wanna go by myself.

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THE COURT: Then you are obligated to talk to her.

HARTER: I was trying to.

THE COURT: Okay. Then I will give you that opportunity.
This Court will be in recess for half an hour. Call
downstairs and subject to call, which means that I may call
this case earlier.
Counsel for defense, actually . . . I want you to be back .
. . in your seats in 20 minutes.

...
Okay. You may go outside and confer about this case. If
the defendant still wishes to have you represent her, I
will keep you. If she doesn’t, . . . I will take the
proper steps.
...
And she will go to trial alone, by herself, without an
attorney, but we’re going to trial this morning.

(Emphases added).

After the parties returned from the recess and the

court resumed the proceedings, the court noted communication

between Harter and Ickes was “at least opened” and they were

communicating.9

C. Trial

After the jury was released for the day on the first

day of trial, the court cautioned Harter about the manner in

which she spoke to her counsel during Ickes’ cross-examination

of Officer Gonzales because of its negative effect upon the

jury:

THE COURT: . . . I know that you’re – you’re zealous in
what you’re doing. But whenever you stand up, the – the

9
Similarly, after the Tachibana advisory, following voir dire, and
after the jury was sent to deliberate, the court noted that Harter was
communicating with Ickes. Neither Harter nor her counsel specifically
responded to the court’s statements.

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jury stops listening to what your attorney is saying, and
they start looking at you. And so you don’t want to
distract the jury from what your attorney is trying to
accomplish.

And number two, it’s important that whatever you tell your
attorney is in confidence, and when you speak louder than
what is normal, the prosecutors can hear, and you don’t
want your opponents to hear what you’re saying. And so I
ask that you tone down -- you know, just have the
conversation between you and your attorney. I’ve been using
this white noise to -- to keep -- you know, to at least do
the static noise to keep your conversation with your
attorney as private as can, but just know that whatever you
say, if you say it a little louder than normal, the other
side will hear, and you don't want that. Okay.

(Emphases added). While the court was discussing jury

instructions, Harter said she “actually believe[d]” this was a

“case of mistaken identity,” and she asked the court for advice

about bringing a witness to testify. The court responded,

“That’s one of the things you need to talk to your attorney.”

The next day, on direct examination, Harter described

her employment as a “dancer and a hostess” at a nightclub called

Femme Nu. Harter indicated she was also starting a “modeling

agency” for charity “with them as [her] sponsor.”

Harter testified that on April 30, 2011, she worked at

Femme Nu until about 10:00 p.m. She and several friends decided

to go to Club 939 because Harter was interested in applying for

a job there. While at Club 939, she bought drinks for her

friends, and she drank two “pineapple and vodka[s].”

Harter testified that she obtained a job application

and went to grab a chair to sit down. She stated that a bouncer

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approached her and “want[ed] [her] to move away from the pole on

the ground.” The bouncer “pat[ted] [her] back,” and Harter told

the bouncer that “it hurt” when he did that. Harter claimed

that the bouncer was “seven feet tall and 500 pounds” and that

the bouncer’s “patting” caused her “crippling pain” that “hurt

to [her] fingertips and . . . toes.” Harter stated she “was in

shock because of how bad it hurt,” because she “hadn’t been

touched for about six months” having just gotten out of an

engagement. Harter later acknowledged that her description of

the bouncer was “an exaggeration” and that “he was a very big

bouncer.”

Harter testified that after she told the bouncer his

pat on her back hurt her, “he did it again as [she] was bending

over to grab a chair.” She claimed the bouncer grabbed both of

her wrists, “dangle[d]” her, and called her a “whore.” The

bouncer, she said, then pushed her into the lobby. At some

point, Harter called 911 because she wanted to “file a report”

regarding the alleged attack.

Several officers testified that on May 1, 2011, they

responded to an incident at Club 939 between Harter and a

bouncer. Officer Vincent Gonzales, the complainant in the

assault charge, testified that during the course of trying to

control the situation, Harter became unruly and pushed him in

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the chest, swung her arm, pulled at his shirt, and

“unfortunately” scratched his chin causing him to bleed. Only

Officer Gonzales testified that Harter scratched him; the other

three responding officers testified that they did not witness

Harter scratch Officer Gonzales.

Harter’s testimony regarding the incident was

sometimes disjointed and bizarre. Harter claimed Officer

Gonzales was not present during the incident and that all the

officers who had testified, with the exception of Officer Uno,

were “stand-ins” who had the case confused with another incident

that happened with a different girl.

Harter described the arrest as follows: “[T]hey had me

pinned on the ground . . . He’s laughing that I’m resisting . .

. my shirt is completely off. My pants are falling down . . . I

was completely exposed in front of 40-plus people in front of

939.” Harter claimed her shoulder hurt for over a month.

Harter also stated she thought she “might be shorter” because

her calves and feet had “been in pain.” Harter elaborated, “My

muscles are contracted instead of relaxed, so it puts pressure

on my height and my bones and stuff.”

Harter insisted that she was not arrested by Officer

Gonzales, but instead, that she was arrested by an unidentified,

“very short,” “old man” who had “gray hair and a mustache” and

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was looking at her “like, just adoring.” When asked how she was

behaving prior to her arrest, Harter stated, “[T]he old man . .

. he was talking to me, and he . . . wanted to see how I talked

. . . . I don’t know how to explain it, like –- because I was

out with a pro surfer that night. It was like our first -– one

of our first nights out, and I was getting a job, like I was

pretty well-behaved.”

Harter further testified that the old man who arrested

her claimed that he could do whatever he wanted and stated, “We

run these streets.” Harter described her response:

Waikiki is not the streets. It’s one of the top ten
tourist destinations of the world. And at that point, the
crowd gets up – riled up, like, yeah, and they start
cheering. And so he feels that there’s -- they -- they're
starting to put themselves and separate the officer from
me, because for ten minutes of this conversation, he was
walking around me in a circle and talking to me and seeing,
like, what I would say and how I was responding to it.

D. Verdict and Sentencing

The jury found Harter guilty of the three charges.

After the verdict was taken, Ickes made a Motion for Judgment

Notwithstanding the Verdict (Motion for JNOV). The court did

not require preparation of a pre-sentence diagnosis and report

for sentencing.

At the October 11, 2012 sentencing hearing, the court

denied Harter’s Motion for JNOV. Harter was in custody because

she failed to appear for argument on the Motion for JNOV on

August 16, 2012. The State requested that Harter be given the

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maximum one-year sentence for the misdemeanor offenses. In her

sentencing argument, Ickes noted that Harter had no prior

arrests or convictions. Ickes argued that Harter was “likely to

respond affirmatively to a probationary period and perhaps even

with a special condition that she obtain and complete mental

health treatment.”

When Harter had an opportunity to address the court,

her statements were disoriented and at times appeared

irrational. Harter explained that her absence from the original

sentencing hearing was because she was “talking with . . . the

FBI and other investigators,” and she “had to miss meetings

because of the apprehension on Pearl Harbor, because somebody

stole her phone.” Harter claimed to have information from a

Supreme Court Justice that Officer Gonzales was involved in a

different incident, and she also stated that she had records to

prove she was not intoxicated during the incident. Harter

addressed the court as follows:

MS. ICKES: . . . Do you want to say anything to the judge?

HARTER: Well, yeah, I also had written a letter that I used to
have like $20 million, and I just lost my family and my fiancé.
And during this, I had lost three businesses, I believe, because
I had to stop and participate in the case and the things that I
had to stop doing for my businesses.

And, yeah, I think that there’s definitely been a lot of
stress. I would like to get some mental health done. But I
don’t think that I need to be in captivity anymore, because
I’ve -- I always do everything that I think is right. And
this was definitely . . . a misunderstanding.
. . . .

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THE COURT: Is there anything else you think I should know?
Because you still haven’t answered my question.

HARTER: What was your question?

THE COURT: How come you didn’t show up for sentencing the
next day?

HARTER: Because I felt that I didn’t need to be sentenced,
that it was so absurd that everything that I went through,
I never even got to finish my statement. I -- and the
three guys weren’t even there the night that I was there.
It was a completely mistaken identity.

I -- so I was going to show up, but I was so freaked out,
like I went and -- I was -- I even got ready for court and
everything, and I just couldn’t do it, like I thought it
was so crazy. And I was terrified that something bad was
going to happen to me.

Because even the judge before at District Court was
threatening me when I just walked in, before I even -- we
never even had trial. It was just the first preliminary
where I met my public defender and everything. And he,
like, screamed over everybody that was in the court and
said, I’m going to fry you, da, da, da. I’m pushing it to
the limit. You’re going to be in jail for three years, da,
da, da. And I was like, I’m -- I’m going to go to trial,
because this is so crazy.

So I’ve been so freaked out because of all of this. And
everyone’s been so rough on me, when I tried to get help
because I was sexually assaulted, and my -- it was a foot
and a half away from my boyfriend the whole time.

And then they -- they -- the police had – got my Alabama ID
when I called, and they’re like, ho, she’s not even from
Hawaii, like, we’re this -- they even said they’re a gang,
like they’re doing all this stuff to me.

And then when they found out that I was from Hawaii, then I
was out last time in three days. So they thought that I
was a tourist this whole time. That’s -- that was, like,
their goal. And they thought I was a rich tourist, which
turned out, no, I’m somebody who’s local.

I’m trying to do everything. I’ve been trying to go to –-
I want to go to school and have that done by Christmas.
And like I said, I already have plans to be a missionary,
and anyone would -- could vouch for that, I guess. . . .

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(Emphases added). The court then imposed the maximum one-year

jail term in counts 1 and 2, and thirty days in count 3, with

terms to run concurrently with one another.

After the circuit court sentenced Harter, Ickes orally

renewed her motion to withdraw and asked the court whether she

should reargue the points that she had made in her previous

motion to withdraw as counsel before trial. The circuit court

granted the motion to withdraw without Ickes stating any reason

for the motion other than Harter wished to appeal:

MS. ICKES: Your Honor, may I address the Court briefly –-

THE COURT: Yes.

MS. ICKES: -- on one additional matter? The Court is well
aware of the history of this case and my appearances. I
had attempted to withdraw prior to trial. Did the trial.
Appeared this morning for the motion and the sentencing.
In light of my previous arguments -- I don’t know if the
Court wants me to -- to reargue those points?

THE COURT: No, just make the motion.

MS. ICKES: But I am -- I am renewing my motion to withdraw
as counsel and also asking that if new counsel can be
appointed for Ms. Harter. She’s indicated that she wants
to pursue an appeal.
. . .
THE COURT: Okay. Your motion is granted, then. A new
attorney will be appointed for her.

The hearing then concluded with Harter asking whether she had

jail time to serve and requesting to go to the state hospital.

HARTER: I have questions. So do I have jail time to
serve?

THE COURT: Your new attorney will -- will discuss that
with you. This matter’s concluded.

HARTER: I also wanted to --

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THE LAW CLERK: All rise.

HARTER: -- ask to go to state hospital, sir.

On October 11, 2012, the circuit court filed the

judgment of conviction. The court filed an Order Appointing

Counsel on October 12, 2012, which stated that the court found

good cause for appointment of substitute counsel.

E. Harter’s Motion to Reconsider Sentence

On December 19, 2012, Harter, through her newly

appointed counsel, filed a Motion to Reconsider Sentence. In

her motion, Harter made the following arguments: (1) the

sentence imposed was “excessive in light of her record”; (2)

although a pre-sentence investigation was neither requested nor

ordered, such an investigation would have shown that it was

“apparent” that she had “mental health concerns”; (3) Harter’s

mental health concerns were not being addressed in the Oʻahu

Community Correctional Center; and (4) Harter had applied to the

Poʻailani dual-diagnosis treatment program and Hoʻomau Ke Ola

dual-diagnosis treatment program and was awaiting an assessment.

The motion to reconsider was denied.10

10
The court was informed during oral argument that Harter served
the entire one-year sentence. MP3: Oral Argument Before the Hawaiʻi Supreme
Court, No. SCWC-12-0000962 Thursday, August 7, 2014, 8:45 a.m., available at
http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc_scwc_12_962.
html.

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On January 11, 2013, Harter filed a Notice of Appeal

from the judgment of conviction.

F. Intermediate Court of Appeals

1. Opening Brief

In her first point of error on appeal to the ICA,

Harter contended that the circuit court abused its discretion in

denying the motion for withdrawal and substitution of counsel.

The circuit court, Harter argued, did not conduct a “penetrating

and comprehensive examination” to “determine the nature and

extent” of the issues that had arisen between Harter and her

counsel, as required by State v. Soares, 81 Hawaiʻi 332, 916 P.2d

1233, (App. 1996), overruled by State v. Janto, 92 Hawaiʻi 19,

986 P.2d 306 (1999). Instead, the court “focused on its own

belief that the case was relatively simple, that a jury panel

had already been ordered and its own perception that Ickes was a

‘hard working attorney’ and ‘one of the better [attorneys] that

we have in town.’” (Alteration in original). Harter contended

the circuit court applied a “mechanical test” developed by the

Second Circuit Court of Appeals “in direct contravention of the

ICA’s holding in Soares” requiring that each case be “evaluated

on its particular circumstance.” (Citing Soares, 81 Hawaiʻi at

355, 916 P.2d at 1256).

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In support of her second point of error, Harter argued

that under HRS §§ 704-40311 and 704-404,12 the circuit court erred

by failing to, sua sponte, suspend the proceedings in order to

conduct an evidentiary hearing on Harter’s competence to stand

trial because there were “sufficient indicators . . . to raise a

good faith doubt as to her competence to stand trial.” Harter

contended Soares requires “[g]enuine doubt, not a synthetic or

constructive doubt” as to “competence.” (Quoting Soares, 81

Hawaiʻi at 348, 916 P.2d at 1249). She also maintained that her

mental condition clearly “affected her ability to assist in her

11
HRS § 704-403 (1993), provides, in relevant part the following:

No person who as a result of physical or mental disease,
disorder, or defeat 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.
12
Pursuant to HRS § 704-404(1) (Supp. 2012),

[If] 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. If a
trial jury has been empanelled, it shall be discharged or
retained at the discretion of the court. The discharge of
the trial jury shall not be a bar to further prosecution.

Pursuant to HRS § 704-404(2), after suspending the proceedings,
the court must then appoint “one qualified examiner in nonfelony cases to
examine and report upon the physical and mental condition of the defendant.”

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defense,” while her bizarre statements during trial affected her

credibility with the jury.13

2. Answering Brief

In its Answering Brief, the State maintained the

circuit court did not abuse its broad discretion in denying

Harter’s motion for withdrawal and substitution of counsel. The

State argued Harter’s allegation that Ickes was not spending

enough time on her case was “a far cry” from the Soares

requirement of “a complete breakdown in communication or

irreconcilable conflict between a defendant and his or her

counsel which leads to an apparently unjust verdict.” The State

further argued that any breakdown in communication was “easily

resolved” by the circuit court’s “urging and ordering Harter to

communicate with Ickes.” The State concluded that “because the

withdrawal request was made on the eve of trial and the

communication problem between Harter and Ickes was resolved

prior to trial,” there was no good cause to substitute court-

appointed counsel.

In regard to the second point of error, the State

argued Harter was fit to stand trial because she met the

requirements set forth in Janto, 92 Hawaiʻi 19, 986 P.2d 306:

13
Harter also argued Ickes’ failure to object to an officer’s
testimony that he believed Harter was on drugs constituted ineffective
assistance of counsel.

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“[A] defendant must (1) understand the proceedings against her,

(2) be able to assist in her defense . . . in accordance with

state and federal constitutional due process concerns, [and] (3)

have the ability to consult with counsel.”

The State argued that the record reflects Harter

“understood the proceedings against her, consulted with counsel,

and assisted in her defense.” The State maintained that Harter

“had a flair for drama and exaggerated often during her

conversations with the court” and that she was simply

“eccentric, quirky, even fragile” but “was nonetheless able to

follow the court’s and counsel’s directions and responded

appropriately.”14

3. ICA Memorandum Opinion

In its Memorandum Opinion, the ICA affirmed the

circuit court’s judgment of conviction. First, the ICA held the

circuit court did not abuse its discretion in denying Harter’s

motion for withdrawal and substitution of counsel. The ICA

found 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

14
In her reply brief, Harter reiterated that the circuit court
“placed undue emphasis on its perception of Ickes’ reputation and its
perceived simplicity of the case,” while ignoring the apparent strained
relationship between Harter and Ickes. In support of her second point of
error, Harter emphasized that her irregular conduct and statements affected
her ability to present a defense.

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eve of trial, a month after defense counsel confirmed her

readiness to proceed to trial.” The ICA also noted the circuit

court “engaged in an in-depth dialogue with both Harter and her

appointed counsel.”

As to Harter’s second point of error, the ICA found it

could not conclude that the circuit court “plainly erred in

failing to sua sponte hold a competency hearing.” The ICA noted

that questions of fitness are “best resolved at the pretrial

stage” and that the question of Harter’s fitness “was not raised

before or during trial.” The ICA found a “significant issue”

with the fact that there were no known prior medical opinions

concerning Harter’s mental health. It was also significant to

the ICA’s analysis that Ickes did not “raise any concern about

Harter’s ability to participate in her defense based on

competence” since Ickes was in the “best position to observe

Harter’s ability to participate in her defense.”

The ICA summarized the record as reflecting “a mixed

bag of appropriate behavior, where Harter appear[ed] to

sometimes understand even fine nuances and details of the

proceedings, and inappropriate, irrational, and potentially

self-defeating – and perhaps delusional – behavior and

statements.” The ICA proceeded to discuss some examples of

Harter’s bizarre behavior and comments and provided alternative

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explanations for the behavior other than mental illness. For

example, the ICA commented that “Harter’s rambling statement at

sentencing—including wild assertions about having had $20

million dollars . . . and dating the son of a supreme court

justice—could simply have reflected feeble attempts at avoiding

imprisonment.” Although the ICA found Harter’s behavior to be

troubling at times, it ultimately found that given the record

below, it could not conclude that the circuit court plainly

erred in failing to sua sponte hold a competency hearing.

The ICA affirmed Harter’s convictions without

prejudice to her raising and further developing the issue of her

fitness to stand trial in a HRPP Rule 40 petition for post-

conviction relief. The ICA also held that Harter should not be

foreclosed from raising the fitness issue stemming from HRS §

704-402(1) in conjunction with her ineffective assistance of

counsel contentions.15

G. Application for Writ of Certiorari

In her Application for Writ of Certiorari

(Application), Harter presents the following questions pertinent

to disposition of the Application:

15
The ICA denied Harter’s argument that she received ineffective
assistance of counsel without prejudice to her raising it in a HRPP Rule 40
petition.

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1. Whether the ICA gravely erred in holding that the
circuit court did not abuse its discretion in denying
Harter’s motion for withdrawal and substitution of counsel?

2. Whether the ICA gravely erred in holding that the
circuit court did not abuse its discretion in failing to
sua sponte hold a hearing to determine Harter’s competence
to stand trial?[16]

Harter argues the ICA gravely erred in upholding the

circuit court’s denial of her motion for withdrawal and

substitution of counsel. Harter contends the circuit court

failed to conduct a “penetrating and comprehensive” examination

as required by Soares, 81 Hawaiʻi 332, 916 P.2d 1233, in

determining the motion. Instead of applying Soares, Harter

asserts the circuit court incorrectly applied a Second Circuit

standard in “direct contravention” to Soares, and in doing so,

the circuit court “failed to consider all of the particular

circumstances of the case.”

Harter further argues the circuit court placed too

much significance on Ickes’ competence as a lawyer and her

ability to provide adequate representation. Harter contends the

circuit court’s finding that Ickes was a competent attorney did

not mitigate the problems with the attorney-client relationship.

Harter also claims the “court blithely ignored” Ickes’

admissions regarding their issues with communication and trust.

16
In her Application Harter also raises her ineffective assistance
of counsel claim that she raised to the ICA. We do not address the
competency of counsel in this case.

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Because the circuit court did not conduct the required inquiry,

Harter concludes the circuit court “could not properly determine

whether there was good cause to warrant substitution of

counsel.”

As to the second issue presented, Harter argues the

ICA should have found that the circuit court abused its

discretion in failing to sua sponte hold a hearing to determine

Harter’s competence to stand trial. Harter asserts that her

conduct and statements made throughout the proceedings “raised a

good faith doubt as to her competence to stand trial.” Harter

points to numerous “bizarre statements” she made during the

proceedings. Harter maintains her mental condition and “bizarre

statements” not only “affected her credibility, but also,

“clearly” affected her ability to meaningfully assist in her own

defense.

II. DISCUSSION

A. Substitution of Court-Appointed Counsel

“In our system of law one of the most fundamental

rights guaranteed to an individual charged with crime is the

right to have the assistance of counsel for his [or her]

defense.” State v. Kane, 52 Haw. 484, 486, 479 P.2d 207, 208

(1971). This “guarantee of assistance of counsel will not be

satisfied by the mere formal appointment of an attorney,” and

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thus, the trial court has an ongoing duty to ensure that the

right to the assistance of counsel is not an “illusory

guarantee.” Id. at 486, 479 P.2d at 209.

Although “there is no absolute right, constitutional

or otherwise, for an indigent to have the court order a change

in court-appointed counsel,” State v. Torres, 54 Haw. 502, 504,

510 P.2d 494, 496 (1973), when an indigent defendant requests

that appointed counsel be replaced, the “trial court has a duty

to conduct a ‘penetrating and comprehensive examination’” of the

defendant on the record, in order to ascertain the bases for the

defendant’s request.” Soares, 81 Hawaiʻi at 355, 916 P.2d at

1256 (quoting Kane, 52 Haw. at 487-88, 479 P.2d at 209); see

also Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991).

This “inquiry is necessary to protect the defendant’s right to

effective representation of counsel,” Soares, 81 Hawaiʻi at 355,

916 P.2d at 1256 (quoting Kane, 52 Haw. at 487-88, 479 P.2d at

209), and it must be “the kind of inquiry that might ease the

defendant’s dissatisfaction, distrust, or concern,” Lockhart,

923 F.2d at 1320; United States v. Garcia, 924 F.2d 925, 926

(9th Cir. 1991).

The trial court’s inquiry must also be sufficient to

enable the court to determine if there is “good cause” to

warrant substitution of counsel. Soares, 81 Hawaiʻi at 355, 916

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P.2d at 1256. Whether there is “good cause” requiring

substitution of counsel will depend on the facts of the case.

Typically, “good cause” exists when there is a conflict of

interest on the part of defense counsel, a complete breakdown in

communication between the attorney and client, or an

irreconcilable difference between the attorney and client. See,

e.g., id. at 355, 916 P.2d at 1256 (collecting cases).

1. Conflict of Interest Grounds

a. Trial Court Duty to Inquire

A trial judge is required to conduct a “penetrating

and comprehensive” inquiry when he or she “reasonably should

know” that a conflict of interest exists. Cuyler v. Sullivan,

446 U.S. 335, 347 (1980). Once this duty to inquire is

triggered, “it cannot be discharged by a perfunctory inquiry,”

but rather, the duty is only met with “probing and specific

questions” about the potential conflict. See Wayne R. LaFave et

al., Criminal Procedure § 11.9(b)(3d ed.) (quoting Atley v.

Ault, 21 F. Supp. 2d 949 (S.D. Iowa 1998), aff’d, 191 F.3d 865

(8th Cir. 1999)).

This strict requirement imposed upon trial courts to

inquire into a potential conflict of interest is consistent with

the long recognized principle “that the Sixth Amendment right to

counsel contains a correlative right to representation that is

unimpaired by conflicts of interest or divided loyalties.”

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Lockhart, 923 F.2d at 1320. Generally, “a conflict exists when

an attorney is placed in a situation conducive to divided

loyalties, and can include situations in which the caliber of an

attorney’s services may be substantially diluted.” Id.

(citations and internal quotation marks omitted). Our decision

in State v. Richie, 88 Hawaiʻi 19, 41, 960 P.2d 1227, 1249

(1998), noted that concurrent representation of a defendant and

an adverse witness is a “real conflict of interest” because such

a situation is “inherently conducive to divided loyalties.”

The Hawaiʻi Rules of Professional Conduct (HRPC) Rule

1.7 (1994) provides that a “lawyer shall not represent a client

if the representation of that client may be materially limited

by the . . . lawyer’s own interests, unless (1) the lawyer

reasonably believes the representation will not be adversely

affected; and (2) the client consents after consultation.”17

17
Our analysis applies the 1994 HRAP Rule 1.7, which was in effect
during the circuit court proceedings. A new version of HRPC Rule 1.7 went
into effect on January 1, 2014. The revised rule provides that a “concurrent
conflict of interest exists if: . . . there is a significant risk that the
representation of [a] client[] will be materially limited . . . by a personal
interest of the lawyer.” “Notwithstanding the existence of a concurrent
conflict of interest. . . , a lawyer may represent a client if: (1) the
lawyer reasonably believes that the lawyer will be able to provide competent
and diligent representation to [the] client; (2) the representation is not
prohibited by law; . . . and ([3]) [the] client gives consent after
consultation, confirmed in writing.” HRAP Rule 1.7 (2014).

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Comment 4 to HRPC Rule 1.7, regarding “Loyalty to a

Client,” describes how an actual conflict of interest may

interfere with client representation:

Loyalty to a client is also impaired when a lawyer cannot
consider, recommend or carry out an appropriate course of
action for the client because of the lawyer’s other
responsibilities or interests. The conflict in effect
forecloses alternatives that would otherwise be available
to the client. Paragraph (b) addresses such situations. A
possible conflict does not itself preclude the
representation. The critical questions are the likelihood
that a conflict will eventuate and, if it does, whether it
will materially interfere with the lawyer’s independent
professional judgment in considering alternatives or
foreclose courses of action that reasonably should be
pursued on behalf of the client. Consideration should be
given to whether the client wishes to accommodate the other
interest involved.

HRPC Rule 1.7 cmt 4 (1994) (emphases added); see also HRPC Rule

1.7 cmt 8 (2014) (“Even where there is no adversity of interest,

a conflict of interest exists if there is a significant risk

that a lawyer’s ability to consider, recommend, or carry out an

appropriate course of action for the client will be materially

limited as a result of the lawyer’s other responsibilities or

interests.”).

The possibility of a conflict of interest “does not

itself preclude the representation,” and Comment 4 provides that

the “critical questions are the likelihood that a conflict will

eventuate and, if it does, whether it will materially interfere

with the lawyer’s independent professional judgment in

considering alternatives or foreclose courses of action that

reasonably should be pursued on behalf of the client.” HRPC

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Rule 1.7 cmt 4 (1994); see also Fragiao v. State, 95 Hawaiʻi 9,

19, 18 P.3d 871, 881 (2001) (discussing HRPC Rule 1.7).

Therefore, a circuit court’s “good cause” inquiry,

when there is a potential conflict between the defendant and

defense counsel’s personal interests, should address whether the

representation would be “conducive to divided loyalties.” In

light of the Hawaiʻi Rules of Professional Conduct’s guidance on

conflicts of interest, the court should consider asking

questions regarding the following:

- the basis for the conflict of interest;

- the potential that the conflict would materially

interfere with defense counsel’s independent professional

judgment in considering what actions to pursue on behalf of the

client;

- the possibility that the conflict might foreclose

defense counsel from taking courses of action that reasonably

should be pursued on behalf of a client; and

- defense counsel’s opinion on whether his or her

representation would be adversely affected.18

If the court finds that there is an actual or

potential conflict of interest, the court has an obligation to

18
The questions are based on HRPC Rule 1.7 and comment 4 to Rule
1.7. These same questions are also appropriate under the current version of
HRPC Rule 1.7 and comment 8 to Rule 1.7.

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disqualify the attorney or to explain the situation to the

defendant and obtain a waiver if the defendant consents to the

relationship. See United States v. Levy, 25 F.3d 146, 153 (2d

Cir. 1994) (describing the court’s “disqualification/waiver”

obligation for severe, minor, and potential conflicts); LaFave

et al., supra, § 11.9(b).

The circuit court in this case was required to conduct

an inquiry into the potential conflict of interest that was

apparent during the pre-trial hearings on August 13 and 14,

2012. While explaining her reasons in support of her motion to

withdraw as counsel on August 13, Ickes emphasized that

withdrawal was necessary for her professionally. Ickes noted,

“If I feel like perhaps there might be some later allegations of

me being ineffective, me neglecting her, I certainly need to

protect myself.” She assured the court that her motion was not

strategic or intended to waste the court’s time.

Nonetheless, in the colloquy that followed between the

circuit court and Ickes, the court did not ask any questions

probative of whether a conflict of interest did in fact exist

between Ickes and Harter, whether such a conflict would

adversely affect Ickes’ performance, or whether Harter consented

to the relationship. Similarly, the court did not ask Harter

any questions related to Ickes’ potential conflict of interest.

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Instead, the court determined that Ickes and Harter could “work

together” and prepare for trial “in the little time” they had

left because Ickes was “one of the better ones” and there were

“only a few pages of discovery.”

The following morning, the circuit court also did not

address the question of whether Ickes had a conflict of interest

with Harter, even though Harter explained that she left the

courthouse quickly after the prior day’s hearing to go to the

Office of Disciplinary Counsel. The circuit court did not

inquire into the circumstances of the potential conflict. When

Harter tried to explain why she did not meet with Ickes, the

court responded, “I didn’t ask you why.”

Although the circuit court did not inquire into Ickes’

potential conflict of interest, the record indicates that a

conflict of interest existed. Ickes explained that her personal

interest of protecting herself professionally would jeopardize

Harter’s right to the effective assistance of counsel: “[F]or 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.” Ickes emphasized that the

potential of future allegations of ineffectiveness required her

to protect herself, implicitly suggesting it could materially

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affect her representation of Harter.19 The exchange between

Ickes and the circuit court thus demonstrates that counsel

believed her representation of Harter would be adversely

affected by this conflict of interest.

Ickes’ opinion regarding her ability to provide

effective assistance of counsel should have been afforded

significant consideration by the court because she was in the

“best position” to determine whether her personal interest would

interfere with the representation. See Holloway v. Arkansas,

435 U.S. 475 (1978) (recognizing that an “attorney representing

two defendants in a criminal matter is in the best position

professionally and ethically to determine when a conflict of

interest exists or will probably develop in the course of a

trial”); cf. State v. Scott, 131 Hawaiʻi 333, 345, 319 P.3d 252,

264 (2013) (finding that defense counsel was in the “best

position to determine whether transcripts are necessary for an

adequate defense”).

In Holloway, the United States Supreme Court noted

that defense attorneys have an obligation to advise the court of

conflicts of interests, and as officers of the court, their

declarations as to conflicts of interests are “virtually made

19
Ickes stated, “If I feel like perhaps there might be some later
allegations of me being ineffective, me neglecting her, I certainly need to
protect myself.”

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under oath.” 435 U.S. at 486. Here, Ickes expressly assured the

court that her motion was not strategic or intended to waste the

court’s time.20 Thus, Ickes’ concerns, expressed as an officer

of the court, regarding her ability to provide effective

representation should have been accorded careful consideration

by the circuit court in an inquiry to determine whether an

actual conflict existed.

In Douglas v. United States, 488 A.2d 121 (D.C. 1985),

the D.C. Court of Appeals explained how a defense attorney’s

personal interest interferes with representation under similar

circumstances to this case. The defendant in Douglas filed a

complaint against his defense counsel with the Bar Counsel’s

Office, which led to the Bar Counsel launching an investigation

into the defense attorney’s conduct. Id. at 127-28.21 The D.C.

Court of Appeals noted that as soon as the defense counsel

learned of the investigation of the defendant’s complaint, “he

acquired a personal interest in the way he conducted appellant's

20
Harter stated, “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.”
21
The defendant’s complaint did not come to light until the second
day of trial, when the defense counsel informed the court that he had just
received a letter from the Office of Bar Counsel notifying him of the
complaint and that the Bar Counsel was opening an inquiry into his conduct.
Douglas v. United States, 488 A.2d 121, 128 (D.C. 1985). Even though the
defendant and defense counsel indicated to the court that they wanted to go
forward with the trial, the trial court declared a mistrial sua sponte. Id.
at 129.

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defense—an interest independent of, and in some respects in

conflict with, appellant’s interest in obtaining a judgment of

acquittal.” Id. at 137. For example, given a fear that the

complaint would be expanded to include claims of ineffective

assistance of counsel at trial, the defense attorney “would have

an inordinate interest in conducting the defense in a manner

calculated to minimize any opportunity for post hoc criticism of

his efforts.” Id. at 137.

Ickes was in a similar situation as the defense

counsel in Douglas, and she even went so far as to tell the

circuit court directly that she needed to “protect” herself

because of the possibility of a future ineffective assistance of

counsel claim. This concern was confirmed the next day when

Harter told the court that she went to the Office of

Disciplinary Counsel following the pre-trial hearing. Ickes’

personal interest had the potential of seriously interfering

with her “professional judgment about the best means of

defending” Harter. Id. In light of the absence of a colloquy

directed at ascertaining the risks, it cannot be discounted that

defense counsel’s personal interest could potentially have also

influenced her strategic decisions or encouraged her to use an

overly “conservative trial strategy.” Id. Consequently, in the

absence of any examination by the circuit court into the

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underlying circumstances, the record in this case indicates

there was a conflict of interest between Harter and Ickes.

Therefore, “good cause” was demonstrated to grant the motion for

withdrawal and substitution of counsel.22

b. Ineffective Assistance of Counsel
Due to a Conflict of Interest

We now consider whether the circuit court committed

prejudicial error in denying Harter’s motion for substitution of

counsel. Under article I, section 14 of the Hawaiʻi

Constitution, a defense counsel’s representation is

constitutionally ineffective where there is a relationship

giving rise to a conflict of interest between the defense

counsel and the client, and either the relationship adversely

affected defense counsel’s performance, or the client did not

consent to the relationship. Richie, 88 Hawaiʻi at 44, 960 P.2d

at 1252.23

22
However, we note that “the filing, or the threat of filing, a
disciplinary complaint [does] not create a per se conflict of interest” to
establish good cause to substitute counsel. United States v. Rodriguez, 612
F.3d 1049, 1054 (8th Cir. 2010); see also Wayne R. LaFave et al., Criminal
Procedure § 11.9(b) (3d ed.) (“[W]here counsel moves to withdraw on the basis
of an alleged conflict other than that presented by multiple representation
(e.g., defendant’s filing of a disciplinary action against counsel), the
court can more readily examine the underlying circumstances and refuse to
permit withdrawal on the ground that it does not present an actual
conflict.”).
23
“Any demonstrable adverse effect on counsel’s performance is
sufficient; actual prejudice is not required.” Richie, 88 Hawaiʻi at 44, 960
P.2d at 1252.

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However, we recognize that a defendant should not be

required to show “adverse effect” in all cases in which the

claim involves the right to counsel. This court has presumed

prejudice where the trial court denied a request to substitute

counsel with privately retained counsel. State v. Cramer, 129

Hawaiʻi 296, 303, 299 P.3d 756, 763 (2013). Relatedly, under the

federal standard, “automatic reversal” is required where defense

counsel is forced to represent codefendants over his or her

timely objection, unless the trial court has determined that

there is no conflict. Mickens v. Taylor, 535 U.S. 162, 168

(2002).

We note that a similar standard may also be warranted

where defense counsel timely raises a conflict of interest based

on a personal interest and the trial court fails to conduct any

inquiry into the conflict. See Taylor v. State, 51 A.3d 655,

669 (Md. 2012) (finding that the same concern for prejudice in

multiple representation cases is present in “personal interest

attorney conflict cases where the attorney has created an

adversarial relationship with his client by initiating a civil

suit against the client during the course of representation”);

LaFave et al., supra, § 11.4(b) n.37 (noting that “automatic

reversal” may be appropriate where counsel informs the trial

court that continued representation would not meet the standard

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of effective assistance because of a complete breakdown in

communications). “The defendant’s right to the effective

representation of counsel necessarily imposes upon the trial

judge a corollary duty to protect that right whenever its

enjoyment appears to be in doubt.” Kane, 52 Haw. at 487, 479

P.2d at 209.

Thus, where there is a conflict of interest, such as

when the defendant or defense counsel raises a conflicting

personal interest, the trial court’s failure to inquire into the

conflict may amount to the deprivation of the defendant’s right

to effective assistance of counsel. See Holloway, 435 U.S. at

484 (holding that the trial judge’s failure “either to appoint

separate counsel or to take adequate steps to ascertain whether

the risk was too remote to warrant separate counsel” amounted to

a deprivation “of the guarantee of ‘assistance of counsel’”

where counsel raised concurrent conflict to the court). It

would be impractical to require a defendant to prove “adverse

effect” in such a case. See Cramer, 129 Hawaiʻi at 303, 299 P.3d

at 763 (“[I]t is impossible to know what different choices the

rejected counsel would have made, and then to quantify the

impact of those different choices on the outcome of the

proceedings.” (quoting United States v. Gonzalez-Lopez, 548 U.S.

140, 141 (2006)). Additionally, appellate inquiry “into a claim

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of harmless error” may require “unguided speculation,” Holloway,

435 U.S. at 491.24

In this case, the circuit court was informed of a

conflict of interest between counsel and the defendant, and the

court did not conduct an inquiry into the conflict to support a

finding that no actual conflict existed. Nonetheless, we need

not decide whether a finding of prejudice is required in this

case because the record demonstrates that the circuit court’s

denial of the motion to substitute counsel resulted in a denial

of effective assistance of counsel. Assistance is ineffective

where there is “(1) a relationship giving rise to a conflict of

interest . . . between defense counsel and his/her clients; and

(2) either the relationship adversely affected defense counsel’s

performance, or the client did not consent to the relationship.”

State v. Mark, 123 Hawaiʻi 205, 234, 231 P.3d 478, 507 (2010)

(alteration in original) (quoting Richie, 88 Hawaiʻi at 44, 960

P.2d at 1252). As discussed, the record demonstrates a conflict

of interest due to Ickes’ personal interest in the case, and the

circuit court did not elicit any information to the contrary.

24
The Supreme Court in Holloway noted that “[i]t may be possible in
some cases to identify from the record the prejudice resulting from an
attorney’s failure to undertake certain trial tasks, but even with a record
of the sentencing hearing available it would be difficult to judge
intelligently the impact of a conflict on the attorney’s representation of a
client.” Holloway, 435 U.S. at 490. “And to assess the impact of a conflict
of interest on the attorney’s options, tactics, and decisions in plea
negotiations would be virtually impossible.” Id.

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Harter did not voluntarily consent to the relationship

as required under our conflict of interest standard. Mark, 123

Hawaiʻi. at 234, 231 P.3d at 507. At the end of the August 14

pretrial hearing, the circuit court gave Harter a choice between

two options: “either . . . keep [Ickes],” or “proceed to trial

this morning by yourself.” After Harter responded that she did

not want to “go” by herself, the circuit court informed her that

she was “then . . . obligated to talk to” Ickes. Thus, Harter

was not given the opportunity to make an informed and

knowledgeable decision to waive Ickes’ conflict of interest, but

instead, she was forced to choose between proceeding pro se or

accepting Ickes as counsel. See State v. Dicks, 57 Haw. 46, 49,

549 P.2d 727, 730 (1976)(“In determining the legal adequacy of

waiver of counsel, the question is whether, considering the

totality of the circumstances, the waiver was voluntarily and

intelligently undertaken.”).

Therefore, we hold the circuit court abused its

discretion in denying Harter’s motion for withdrawal and

substitution of counsel.

2. Grounds Related to Breakdown in Communication
or Irreconcilable Difference

Because we find the circuit court committed

prejudicial error in denying Harter’s motion for withdrawal and

substitution of counsel based on Ickes’ conflict of interest, it

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is unnecessary to evaluate whether “good cause” existed due to a

breakdown in the attorney-client relationship. However, in

light of the frequency that this issue arises in our trial

courts, we discuss the inquiry that applies under such

circumstances.

Substitution of counsel is commonly requested when

there is a breakdown in communication or there is an

irreconcilable difference between a defendant and his or her

counsel. See State v. Kossman, 101 Hawaiʻi 112, 120, 63 P.3d

420, 428 (App. 2003) (citing Soares, 81 Hawaiʻi at 355, 916 P.2d

at 1256). Good cause for substitution of counsel exists under

such circumstances because the “attorney-client relationship

involves the highest degree of trust and confidence.”

Disciplinary Bd. of Haw. Sup. Ct. v. Kim, 59 Haw. 449, 453, 583

P.2d 333, 336 (1978); see also Morris v. Slappy, 461 U.S. 1, 24

(1983) (Brennan, J., concurring) (“[T]he attorney-client

relationship . . . involves not just the casual assistance of a

member of the bar, but an intimate process of consultation and

planning which culminates in a state of trust and confidence

between the client and his attorney. This is particularly

essential, of course, when the attorney is defending the

client’s life or liberty.”).

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Before ruling on a motion to substitute counsel based

upon a breakdown in communication or an irreconcilable

difference, a trial court must conduct a “penetrating and

comprehensive inquiry” into the nature of the relationship

between the defendant and counsel. Soares, 81 Hawaiʻi at 355,

916 P.2d at 1256 (citing Kane, 52 Haw. at 487-88, 479 P.2d at

209). This inquiry is not only required for the trial court to

make an informed decision, but it also should seek to “ease the

defendant’s dissatisfaction, distrust, and concern.” Adelzo-

Gonzalez, 268 F.3d at 777 (quoting Garcia, 924 F.2d at 926).

Thus, when a motion to substitute counsel is based

upon a breakdown in communication or an irreconcilable

difference between counsel and client, the trial court “may need

to evaluate the depth of any conflict between defendant and

counsel, the extent of any breakdown in communication, how much

time may be necessary for a new attorney to prepare, and any

delay or inconvenience that may result from the substitution.”

Id.

For example, in this case, it is evident that the

attorney-client relationship between Harter and Ickes was

strained at the time Ickes sought to withdraw as Harter’s

counsel during the initial hearing. Ickes informed the court

that Harter was not satisfied with her as counsel and that

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Harter did not trust her; Ickes also emphasized her inability to

communicate with Harter. Ickes told the court that she had only

one scheduled meeting with Harter, and that otherwise, she spoke

with her on the phone or when at court. The tension between

Harter and Ickes became even more evident during the hearing the

following morning when Harter explained that she was unable to

get in touch with Ickes “since the very beginning.” It also was

noted that Harter was speaking with her “voice enraged” to Ickes

outside the courtroom and that Ickes “was yelling” at Harter.

Given the evident tension and breakdown in

communication between Ickes and Harter, it would have been

appropriate for the circuit court to inquire into the following

areas: (1) the reasons behind the communication breakdown

between Ickes and Harter; (2) why Ickes had not met with Harter

in over five months despite multiple requests by Harter to

schedule other meetings; and (3) the basis for Harter’s lack of

trust and confidence in Ickes. Answers to these questions,

which focus on the “status and quality of the attorney-client

relationship,” would have significantly aided the circuit court

in “evaluat[ing] the depth” of any difference between Ickes and

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Harter and the “extent of any breakdown in communication”

between them.25 See Adelzo-Gonzalez, 268 F.3d at 778-79.

Here, the circuit court was overly focused on Ickes’

ability to provide adequate representation, which is problematic

because even with the most competent counsel, a serious

breakdown in the attorney-client relationship can result in a

deficient defense. See id. at 778 (finding there was “too much

emphasis on the appointed counsel’s ability to provide adequate

representation”); United States v. Musa, 220 F.3d 1096, 1102

(9th Cir. 2000) (“Even if a defendant’s counsel is competent, a

serious breakdown in communication can result in an inadequate

defense.”).

Once the court has gained information regarding the

breakdown in the attorney-client relationship through such

questioning, the court may then more accurately evaluate the

extent of the conflict and determine whether there is any action

that may be taken in an effort to repair the attorney-client

relationship. Depending on the extent of the breakdown, the

trial court, for example, may continue the motion for

substitution of counsel to give the defense counsel and the

defendant an opportunity to resolve their differences. Where
25
After sentencing was completed, the circuit court granted Ickes’
motion to withdraw as counsel without Ickes stating any reason for the motion
other than that Harter wished to appeal. In the court’s Order Appointing
Counsel, the court found “good cause” for the appointment of substitute
counsel.

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the defendant is concerned about the lack of time to prepare for

trial or conduct a sufficient investigation, the court may

consider continuing the scheduled trial or other pending

proceeding to allow the defendant and defense counsel additional

time for preparation.

Although we believe the communication and trust issues

that had arisen between Harter and Ickes clearly required the

court to conduct further inquiry, we need not resolve whether

the circuit court erred in finding otherwise.26 Instead, we

emphasize that a trial court must conduct a “penetrating and

comprehensive inquiry” into the status and quality of the

attorney-client relationship before ruling on a motion to

substitute counsel based on a breakdown in communication or an

26
The law is unsettled as to the result of a trial court declining
to replace appointed counsel when there is a breakdown in communication. See
LaFave et al., supra, § 11.4(b) (“Some courts have held that such an error
establishes a Sixth Amendment violation and requires reversal of the
conviction, absent a prosecution showing that the error was harmless. Others
have held that a constitutional violation is established only if the
defendant can show prejudice, under the ineffective-assistance standard . . .
.”). In a prior decision, the ICA held that a trial court’s denial of a
motion to substitute counsel will not be overturned on appeal unless there is
an abuse of discretion that prejudiced the defendant by amounting to an
unconstitutional denial of the right to effective assistance of counsel.
State v. Soares, 81 Hawaiʻi 332, 355, 916 P.2d 1233, 1256 (App. 1996),
overruled by State v. Janto, 92 Hawaiʻi 19, 986 P.2d 306 (1999). In using
this standard, the ICA in Soares cited solely to this court’s decision in
State v. Torres, 54 Hawaiʻi 502, 510 P.2d 494 (1973), which held that a denial
of a request for a continuance is not a per se denial of the right to counsel
but the appellate court should scrupulously review the record to determine
whether, under the circumstances, “there was an abuse of discretion that
prejudiced the defendant by amounting to an unconstitutional denial of the
right to effective assistance of counsel.” 54 Hawaiʻi at 505, 510 P.2d at
496. This standard was subsequently cited by the ICA in State v. Kossman,
101 Hawaiʻi 112, 63 P.3d 420, 427 (App. 2001).

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irreconcilable difference between the defendant and counsel.

Such an inquiry should elicit information regarding the extent

of the claimed breakdown in communication and the source and

depth of the claimed irreconcilable difference. Adelzo-

Gonzalez, 268 F.3d at 778-79. A trial court may consider the

delay or inconvenience that would result from a substitution of

counsel in addition to its consideration of the status and

quality of the attorney-client relationship.

B. Trial Court Duty to Sua Sponte Convene a Competency Hearing

The second issue before the court is whether the

circuit court abused its discretion in failing to sua sponte

hold a hearing to determine Harter’s competence to stand trial.

“It is a fundamental precept of the American system of justice

that a ‘person whose mental condition is such that he or she

lacks the capacity to understand the nature and object of the

proceedings against him or her, to consult with counsel, and to

assist in preparing his or her defense may not be subjected to a

trial.’” Soares, 81 Hawaiʻi at 345, 916 P.2d at 1246 (App. 1996)

(alterations omitted) (quoting Drope v. Missouri, 420 U.S. 162,

171, 95 S. Ct. 896, 903 (1975)). Some have viewed this basic

principle “as a by-product of the ban against trials in

absentia” because “the mentally incompetent defendant, though

physically present in the courtroom, is in reality afforded no

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opportunity to defend himself.” Drope, 420 U.S. at 171 (quoting

Caleb Foote, A Comment on Pre-Trial Commitment of Criminal

Defendants, 108 U. Pa. L. Rev. 832, 834 (1960)); Soares, 81

Hawaiʻi at 345, 916 P.2d at 1246.

HRS § 704-403 (1993) protects defendants accused of a

criminal offense who lack the capacity to understand the

proceedings against them or to assist in their defense. An

initial procedural mechanism for providing this protection is

through evaluations of defendants by qualified medical examiners

whenever a defendant relies on the defense of physical or mental

disease, there is “reason to doubt the defendant’s fitness,” or

there is “reason to believe that the physical or mental disease,

disorder, or defect of the defendant will or has become an issue

in the case.” HRS § 704-404(2) (Supp. 2012) (emphases added).

Although HRS § 704-404 provides that the court may

suspend the proceedings and appoint an examiner or panel of

examiners once one of the triggering events occurs, a trial

court “is duty bound to sua sponte convene 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.” State v.

Castro, 93 Hawaiʻi 454, 462, 5 P.3d 444, 452 (App.) (Acoba, J.,

concurring), adopted by 93 Hawaiʻi 424, 426, 5 P.3d 414, 416

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(2000). This duty required by HRS § 704-404 satisfies the

procedural due process protections of article I, section 5 of

the Hawaiʻi Constitution, and the fourteenth amendment to the

United States Constitution.27 Cf. Janto, 92 Hawaiʻi at 28, 986

P.2d at 315 (noting that when a trial court makes a fitness

determination under HRS § 704–403 it must also meet procedural

due process requirements).

Thus, when a trial court finds that there is “reason

to doubt” a defendant’s fitness or “reason to believe” that the

defendant’s mental or physical state will become an issue in the

case, the court is required to suspend the proceedings and order

an examination pursuant to HRS § 704-404. Castro, 93 Hawaiʻi at

426, 5 P.3d at 416. The court’s “reason” “may come from the

trial court’s own observations, known facts, evidence presented,

motions, affidavits, or any other reasonable or credible

sources.” Hobbs v. State, 359 S.W.3d 919, 924 (Tex. App. 2012).

This may include evidence related to the defendant’s history,

the defendant’s irrational and bizarre behavior, or the

defendant’s demeanor in court. See Castro, 93 Hawaiʻi at 427

n.2, 5 P.3d at 417 n.2 (finding “reason to doubt” the

27
The fourteenth amendment to the United States Constitution and
article I, section 5 of the Hawaiʻi Constitution provide in relevant part that
no person shall be deprived of “life, liberty, or property without due
process of law.”

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defendant’s fitness to proceed and “reason to believe” he was

suffering from a disease, disorder, or defect that affected his

ability to assist in his own defense based on the defendant’s

history and behavior); United States v. Marks, 530 F.3d 799, 814

(9th Cir. 2008) (noting that under the federal standard it is

appropriate to consider “the defendant’s irrational behavior,

his demeanor in court, and any prior medical opinions on his [or

her] competence”).

During the proceedings in this case, Harter’s

recounting of past events and her current status was sometimes

disjointed and bizarre. While describing her employment as a

“dancer and a hostess” at a nightclub, Harter stated she was

starting a “modeling agency” for charity “with them as [her]

sponsor.” She testified that the police officer who spoke to

her outside of Club 939 was a “very short,” “old man” who had

“gray hair and a mustache” despite none of the officers

testifying that such a person existed. Harter also testified

she had “shrunk” after the incident, possibly because her

muscles were “contracted instead of relaxed.” Harter stated

that being “touched” by the bouncer caused her “extreme” pain

because she “hadn’t been touched for about six months because

[she] had just gotten out of [an] engagement” despite the fact

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that she also said she was living with her “boyfriend” at the

time.

Harter’s mental state appeared to have substantially

deteriorated by the time of the sentencing hearing. During the

sentencing hearing, Ickes stated to the court that she thought

Harter would respond well to “a probationary period and perhaps

even with a special condition that she obtain and complete

mental health treatment.”

Further, Harter seemed delusional when speaking with

the court. For example, she informed the court, “I used to have

like $20 million, and I just lost my family and my fiancé. And

during this, I had lost three businesses, I believe, because I

had to stop and participate in the case.” Harter claimed that

her case was really a case of mistaken identity, and she

asserted there was a statement by her boyfriend’s dad, a Supreme

Court justice, supporting her claim of mistaken identity.

Harter claimed that she spoke to the FBI about her case and that

she had gone to speak to her friend, the commander of Pearl

Harbor.28 Harter conveyed that she was terrified that something

bad was going to happen to her throughout the proceedings

because the district court judge at the first preliminary

28
This may have been an attempt to explain how Harter got arrested
on Hickam Air Force Base one month after her trial.

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hearing had “screamed over everybody that was in the court and

said, I’m going to fry you, da, da, da. I’m pushing it to the

limit. You’re going to be in jail for three years, da, da, da.”

Given Harter’s bizarre statements at sentencing, the

record was clear that there was “reason to doubt” Harter’s

fitness during the sentencing proceedings, and the circuit court

should have suspended the proceedings and appointed an examiner

to evaluate Harter pursuant to HRS § 704-404. In Janto, this

court held that the correct standard of review of a trial

court’s determination of fitness is abuse of discretion. See

Janto, 92 Hawaiʻi at 28, 986 P.2d at 315. Similarly, an abuse of

discretion standard should apply in reviewing a trial court’s

decision not to sua sponte order a fitness examination of a

defendant under HRS § 704-404. Under the circumstances of this

case, we conclude the circuit court abused its discretion in not

ordering a fitness examination.29

In its Memorandum Opinion, the ICA noted that Harter’s

counsel never raised a mental impairment issue to the court. We

recognize that “judges must depend to some extent on counsel” to

29
No pre-sentence report was required by the circuit court prior to
sentencing. HRS § 706-601 allows courts the discretion to order pre-sentence
reports for persons over the age of twenty-two years old who are convicted of
misdemeanor offences. HRS § 706-601 (1) & (2) (Supp. 1997). Had the court
requested a pre-sentence report, the court would have received a report on
Harter’s physical and mental condition, which likely would have more fully
informed the court’s sentencing decision. HRS § 706-602(1)(b) (Supp. 2012).

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raise questions of fitness. Castro, 93 Hawaiʻi at 462, 5 P.3d at

452 (Acoba, J., concurring) (quoting Drope, 420 U.S. at 176-77).

This is consistent with the expectation that defense counsel is

responsible for raising his or her good faith doubts regarding

the defendant’s fitness.30

Nevertheless, any expectation that defense counsel

will raise fitness issues is separate from the requirement that

HRS § 704-404 imposes on trial courts. Consequently, when the

trial court’s own observations or other indicators present the

court with a “reason to doubt” the defendant’s fitness, the

court is required to order an examination irrespective of

whether defense counsel raises the issue. The duty placed on a

trial court to sua sponte order an examination under HRS § 704-

404 ensures the court’s compliance with due process obligations

and also serves the public interest. “In the most egregious of

circumstances, a mentally ill defendant who otherwise should

have been subjected to examination and treatment may remain

untreated in prison and upon his or her release, present a

further or greater risk to public safety.” Castro, 93 Hawaiʻi at

30
Defense counsel should move for evaluation of the defendant’s
competence when he or she has a good faith doubt regarding defendant’s
competence to stand trial and “should make known to the court and the
prosecutor those facts known to counsel which raise the good faith doubt of
competence.” See ABA Standards for Criminal Justice, Mental Health, Mental
Retardation, and Criminal Justice: General Professional Obligations, Standard
7.4.2(c) (1989).

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462, 5 P.3d at 452 (citing HRS §§ 704-404 and 704-406(1)). We

therefore emphasize that, while HRS § 704-404 does not

affirmatively require a trial court to investigate the

competency of a defendant, it does require a court to consider

indicators of a defendant’s unfitness that are before the court.

III. Conclusion

For the foregoing reasons, the ICA’s February 27, 2014

Judgment on Appeal and the circuit court’s October 11, 2012

Judgment of Conviction and Sentence are vacated. This case is

remanded to the circuit court for further proceedings.

Alen M. Kaneshiro /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
James M. Anderson
for respondent /s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

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