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Electronically Filed
Supreme Court
SCWC-13-0000069
17-JUN-2015
09:09 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
IKAIKA REED,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-13-0000069
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000069; CR. NO. 12-1-0899)
JUNE 17, 2015
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
The sole issue raised in Petitioner Ikaika Reed’s
application for writ of certiorari is whether the Intermediate
Court of Appeals (ICA) gravely erred in holding that the trial
court did not abuse its discretion when it denied Reed’s motion
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to substitute retained counsel in place of his court-appointed
counsel. We agree with Reed that the circuit court abused its
discretion, resulting in a denial of his right to privately
retained counsel of choice under article 1, section 14 of the
Hawaiʻi Constitution. Accordingly, we vacate the ICA’s June 9,
2014 judgment on appeal affirming the Circuit Court of the First
Circuit’s (circuit court)1 judgment of conviction and sentence
for assault in the first degree.
I. Background
Reed was arraigned on June 21, 2012 for the charge of
assault in the first degree2 in violation of Hawaiʻi Revised
Statutes (HRS) § 707-710.3 At that time he was assigned the
trial week of August 20, 2012.4 If convicted, Reed faced a ten-
1
The Honorable Dexter D. Del Rosario presided.
2
The allegations against Reed stemmed from an incident that
occurred at Waianae Boat Harbor. In the early morning of June 10, 2012,
Alvin Kalahiki and a few of his family members and friends were “talking
story” at the boat harbor following a fundraiser they attended at a bar
nearby. Kalahiki testified that while at the boat harbor, he and Reed were
involved in an altercation, wherein Reed punched him in the face while
holding a knife. Kalahiki suffered a laceration that extended from “the tip
of his ear to the tip of his nose.”
3
HRS § 707-710 (2014) provides, as it did at the time of the
offense:
(1) A person commits the offense of assault in the
first degree if the person intentionally or knowingly
causes serious bodily injury to another person.
(2) Assault in the first degree is a class B felony.
4
Following the arraignment, the State filed a notice of
eligibility for sentencing pursuant to HRS §§ 706-661 and 706-662(1). Under
(continued. . .)
2
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year sentence with a possible mandatory minimum of three years
and four months without the possibility of parole, based on his
potential status as a repeat offender.5 The Office of the Public
Defender was appointed as his counsel on July 5, 2012.
Twenty-seven days later, on August 1, 2012, Reed’s
deputy public defender (DPD) orally made his first motion to
continue trial because he had not yet received a recording of
the grand jury proceedings. The State did not object and
informed the court that it had not yet provided Reed with all
discovery. The circuit court granted the continuance and set
trial for October 1, 2012.
On September 25, 2012 —approximately ninety days after
his arraignment—Reed filed a second motion to continue. The
DPD’s declaration filed along with the motion stated that the
death of one of Reed’s percipient witnesses, the State’s recent
disclosure of three witnesses and release of additional
(. . . continued)
these statutes, based on Reed’s previous convictions, he could be subject to
a twenty-year term of imprisonment. See HRS §§ 706-661(3), 706-662(1)
(2014). The State did not pursue such an extended sentence following Reed’s
conviction.
5
Class B felonies, such as assault in the first degree, are
subject to a maximum indeterminate sentence of ten years imprisonment. HRS §
706-660(1)(a) (2014). Pursuant to HRS § 706-606.5(1)-(2) (2014), individuals
convicted of Class B felonies, who have certain previous felony convictions
within the relevant time period, will be subject to mandatory minimum periods
of imprisonment without the possibility of parole. Here, Reed had a previous
conviction that qualified him for “a mandatory minimum period of imprisonment
without possibility of parole” of three years and four months. HRS § 706-
606.5(1)(a)(iii).
3
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statements from the complaining witness, and the need to
interview recently discovered defense witnesses required a
continuance.6
The next day, at the September 26, 2012 trial call, the
circuit court inquired as to the State’s position on Reed’s
request for a continuance. The State informed the court that it
was ready for trial, noted that the DPD’s declaration was
accurate, and made no objection to Reed’s second motion to
continue. The circuit court proceeded to ask the parties about
Reed’s terroristic threatening case, which was also before the
court.7 Ultimately, the court granted Reed’s second motion to
6
Specifically, the declaration stated in relevant part:
b. On September 19, 2012, I learned that one of
the defense’s percipient witnesses . . . was
murdered the week before;
c. On September 20, 2012, the State provided
notice and contact information for at least two (2)
additional witnesses. At that time, the State also
disclosed additional statements from the complaining
witnesses [sic] that were not previously known and
that contradict his prior statements;
d. On September 24, 2012, the State provided
contact information for a third new witness;
e. I recently received information for additional
defense witnesses that I have not had the opportunity
to confirm or disclose to the State;
f. I need additional time to investigate this
case, to obtain additional evidence, and to locate
and interview witnesses[.]
7
The record indicates that Reed was represented by private counsel
in the terroristic threatening case.
4
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continue and reset the trial for October 15, 2012 with a trial
call on October 10, 2012. The court stated that the first
degree assault case would function as the “prime case” and the
terroristic threatening case as the “backup” case, noting that
if the assault case were continued, the court would proceed on
the terroristic threatening case.
Two weeks later, at the trial call on October 10,
2012, the DPD notified the court that Reed was “in the process
of potentially retaining other counsel.” On this basis and the
declaration that Reed was “still in the process of obtaining
witness information,” including contacting a potential
percipient witness, the DPD requested a third continuance with
no objection from the State.8 The court did not address the
DPD’s statement regarding Reed’s intent to substitute counsel.
It denied the third motion to continue, after concluding
sufficient time had transpired for identification and
preparation of defense witnesses:
THE COURT: In exercising the [c]ourt’s discretion on
whether to grant the continuance on the eve of trial, the
[c]ourt will follow the criteria that the Supreme Court had
made out in State v. Reid.[9] First of all, as a matter of
policy, continuance [ ] made on the eve of trial is viewed
with disfavor, and when it’s done on the basis for absence
of witnesses, the [c]ourt must make a determination as to
who is this witness, the substance of their testimony,
whether a diligent effort was made to secure the attendance
8
The circuit court did not inquire as to the State’s position on
the continuance prior to making its ruling.
9
It is unclear which case the circuit court was referring to.
5
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of this witness, the likelihood of the availability of this
witness in the future. And based on the record before this
court it is speculative at this point what that witness
would have, so the continuance is denied. I should note
that this case has been continued from -- twice already,
and this would be a third continuance. So the [c]ourt
believes that there’s been sufficient time to inform these
witnesses. The motion is denied . . . .
At the same hearing, the court addressed Reed’s previously-filed
motion to continue his terroristic threatening case. The court
granted the motion to continue the terroristic threatening case
and reset the trial for February 19, 2013.
Five days later, on the day of trial and prior to jury
selection, Reed appeared with retained counsel and renewed his
request for a trial continuance. The DPD moved to withdraw as
trial counsel, stating that Reed retained private attorney
Clayton Kimoto to represent him. Again, the court did not
inquire as to the State’s position on Reed’s motion, and the
State made no objection. The circuit court appeared to be about
to deny Reed’s request for substitution of his privately
retained counsel when Reed addressed the court. He explained to
the court that he lost confidence in his attorney because the
DPD did not engage in timely preparation of defense witnesses,
did not return phone calls regarding witnesses, and failed to
timely inform Reed of the State’s disclosure of additional
witnesses before trial. On this basis, Reed asked the court to
permit his retained counsel to represent him so that he could
receive a fair trial:
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THE COURT: Should I grant this motion, will new
counsel be ready to pick a jury this morning and to proceed
to trial?
MR. KIMOTO: May I speak, Your Honor?
THE COURT: Yes, you may.
MR. KIMOTO: Thank you.
THE COURT: And could you just state your name for the
record.
MR. KIMOTO: Oh, yes. Clayton Kimoto, Your Honor.
[Reed] was in conversation with me, and I told him that I’d
represent him, but it was contingent of course upon the
[c]ourt granting a continuance. I am not ready to proceed
to trial at this time, Your Honor, because I have not had a
chance to interview him.
I believe just in my conversation with [Reed], there
are a number of witnesses that he intends to call for his
case, and I have not had a chance to interview any of them.
THE COURT: When were you contacted?
MR. KIMOTO: I was first contacted -- pardon me, Your
Honor, if I may look at my notes. It was sometime last
week, Your Honor, it was just before -- the day before last
week’s trial call, Your Honor.
THE COURT: Okay, the [c]ourt is prepared to rule.
This issue has [] already been addressed by the appellate
court. I believe there’s a case in which under identical
circumstances the defendant had sought to replace counsel
on the eve of trial, and the [c]ourt --
[DPD]: I’m sorry for interrupting, Your Honor. I
believe that [Reed] did want to speak to the [c]ourt as
well, if the [c]ourt wants to entertain [Reed].
[REED]: The reason for my withdrawing my counsel is
because the first time we went continue the case, he was on
vacation, he couldn’t talk to my witnesses, nothing. So he
went continue that one, and the next one he went
continue’em, he end up calling my witnesses two days before
trial call just last week.
And I told him that I have like ten more witnesses,
and he no even call. I call his phone, everything, he no
return my call, then he return’em like what, five days
later. He get -- he has three more witnesses -- them have
three more witnesses. He contacted him, he didn’t even
tell me they had three more witnesses. Just like he’s
misrepresenting me all this time. That’s how I feel,
that’s why I like withdraw. All I ask is for one fair
trial, Your Honor.
7
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The DPD did not respond to Reed’s allegations:
THE COURT: [DPD], do you wish to respond?
. . . .
[DPD]: Given that there is no ethics complaint, I
don’t believe that there’s an appropriate forum in which to
address attorney/client communications, Judge.
Notwithstanding the lack of response to Reed’s
complaints regarding his counsel and without asking the State
its position on the motion, the court found Reed’s request
“dilatory,” denied Reed’s motion for withdrawal and
substitution, and elected to proceed with trial:
THE COURT: Again, I’m not going to -- well, the case
I was talking about, let me address the first issue
regarding whether new counsel is ready to proceed. The
appellate court’s already addressed that issue, and they’ve
left it in the discretion of the [c]ourt, and [the] [c]ourt
looks with disfavor on the replacement of counsel and
motion to withdraw on the eve of trial, as it may be at
times and I think in this case it can be considered as a
dilatory tactic.
However, the courts have allowed withdrawal when new
counsel is ready to proceed to trial; however, that’s not
the case here. And I had indicated on more than one
occasion that the [c]ourt wanted to start this case.
Because [Reed] has several cases, the [c]ourt wanted to
start trying these cases, so the record was clear and it’s
clear to all the parties that the [c]ourt was going to
proceed with these cases, so I’m going to deny the motion
to withdraw as counsel.
We have a jury ready to proceed, we’ll take a recess
and bring in the jury. The [c]ourt will stand in recess.
Following a short recess, the parties conducted voir
dire and a jury was impaneled. That afternoon, the State called
its first two witnesses. After the second trial day, the jury
found Reed guilty of assault in the first degree. The circuit
court sentenced Reed to ten years in prison with a mandatory
8
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minimum of three years and four months without the possibility
of parole. See supra note 5.
Reed appealed the judgment of conviction and sentence
to the ICA, contending the circuit court abused its discretion
in denying his motion for withdrawal and substitution of
counsel. The ICA held that there were “factors supporting as
well as weighing against Reed’s request,” and noted that it
could not “conclude that the [c]ircuit [c]ourt’s assessment that
Reed’s request was made for dilatory purposes was clearly
wrong.” State v. Reed, No. CAAP-13-0000069, 2014 WL 1658569, at
*5 (App. Apr. 25, 2014) (mem. op.). The ICA therefore affirmed
the judgment of conviction and sentence. Id.
II. Discussion
Reed contends that the circuit court abused its
discretion in denying his motion for withdrawal and substitution
of counsel. As explained below, we agree and conclude that Reed
was denied his right to privately retained counsel of choice
under the Hawaiʻi Constitution.
In State v. Maddagan, we recognized that the right to
counsel provided by the sixth amendment to the United States
Constitution and article 1, section 14 of the Hawaiʻi
Constitution “encompasses a right to privately retained counsel
of choice.” 95 Hawaiʻi 177, 179-80, 19 P.3d 1289, 1291-92
9
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(2001).10 The right to retained counsel of choice is among those
constitutional rights deemed of such importance that deprivation
of the right is recognized as amounting to structural error.
See State v. Cramer, 129 Hawaiʻi 296, 303, 299 P.3d 756, 763
(2013) (citing United States v. Gonzalez-Lopez, 548 U.S. 140,
150 (2006)). A structural error “affect[s] the framework within
which the trial proceeds” as opposed to “an error in the trial
process itself.” State v. Ortiz, 91 Hawaiʻi 181, 193, 981 P.2d
1127, 1139 (1999) (quoting Arizona v. Fulminate, 499 U.S. 279,
310 (1991)) (internal quotation mark omitted).11 Accordingly,
10
The sixth amendment of the United States Constitution guarantees
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . .
to have the [a]ssistance of [c]ounsel for his defen[s]e.” Similarly, article
1, section 14 of the Hawaiʻi Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the assistance
of counsel for the accused’s defense.”
11
In Gonzalez-Lopez, the United States Supreme Court also quoted
from Arizona v. Fulminate to explain structural errors as follows:
The second class of constitutional error we called
“structural defects.” These “defy analysis by
‘harmless-error’ standards” because they “affec[t]
the framework within which the trial proceeds,” and
are not “simply an error in the trial process
itself.” [Fulminate, 499 U.S. at 309-10.] See also
Neder v. United States, 527 U.S. 1, 7–9 (1999). Such
errors include the denial of counsel, see Gideon v.
Wainwright, 372 U.S. 335 (1963), the denial of the
right of self-representation, see McKaskle v.
Wiggins, 465 U.S. 168, 177–178, n.8 (1984), the
denial of the right to public trial, see Waller v.
Georgia, 467 U.S. 39, 49, n.9 (1984), and the denial
of the right to trial by jury by the giving of a
defective reasonable-doubt instruction, see Sullivan
v. Louisiana, 508 U.S. 275 (1993).
548 U.S. at 148-49 (first alteration in original) (footnote omitted). Our
court has also recognized that structural errors are not subject to harmless
(continued. . .)
10
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structural errors, including the denial of the right to retained
counsel of choice, are not subject to harmless error review.
This is because the integrity of our system of justice requires
that the accused receive retained counsel of choice. As Justice
Scalia noted in Gonzalez-Lopez, the sixth amendment right to
counsel of choice
commands, not that a trial be fair, but that a particular
guarantee of fairness be provided—to wit, that the accused
be defended by the counsel he believes to be best. “The
Constitution guarantees a fair trial through the Due
Process Clauses, but it defines the basic elements of a
fair trial largely through the several provisions of the
[s]ixth [a]mendment, including the [c]ounsel [c]lause.”
548 U.S. at 146 (quoting Strickland v. Washington, 466 U.S. 668,
684-85 (1984)). It is beyond cavil that the accused’s access to
justice depends on his or her right to retained counsel of
choice. Indeed, inherent in the right to retained counsel of
choice is the recognition that the accused should have
confidence and trust in his or her counsel, and accordingly, in
the judicial system as a whole.12
(. . . continued)
error analysis. See, e.g., Ortiz, 91 Hawaiʻi at 193, 981 P.2d at 1139
(holding that the denial of a public trial is considered a structural defect
and on this basis vacating the conviction).
There has been criticism of the dichotomy created between
structural errors subject to automatic reversal and trial errors subject to a
harmless error analysis. See, e.g., Cramer, 129 Hawaiʻi at 304-12, 299 P.3d
at 764-71 (Acoba, J., concurring). We need not resolve this issue, however,
in deciding the instant case.
12
As articulated by Justice Stevens, courts should acknowledge the
importance of “the function of the independent lawyer as a guardian of our
freedom.” Wheat v. United States, 486 U.S. 153, 172 (1988) (Stevens, J.,
dissenting) (citation omitted) (internal quotation mark omitted).
11
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Commensurate with the importance of the right to
retained counsel of choice, a presumption in its favor arises
that must be overcome before it is denied. Wheat v. United
States, 486 U.S. 153, 164 (1988). Thus, in Maddagan, we held
that in considering a motion for withdrawal and substitution of
counsel, a trial court must give “[d]ue regard for [the]
proposition” that “in light of the right to counsel, and in the
absence of countervailing considerations, a criminal defendant
should have his, her, or its choice of retained counsel.” 95
Hawaiʻi at 180, 19 P.3d at 1292.
In Cramer, this court “examine[d] the countervailing
governmental interests that should be balanced against the right
to counsel of choice.”13 129 Hawaiʻi at 301, 299 P.3d at 761.
Cramer was found guilty of several drug-related charges and at
his sentencing hearing, his privately retained counsel appeared
on his behalf, seeking to step in for the deputy public defender
and requesting a three-week continuance to prepare. Id. at 296-
97, 299 P.3d at 756-57. The trial court denied Cramer’s motion
for substitution of counsel and a continuance, stating that it
was “untimely.” Id. at 298, 299 P.3d at 758.
To review the trial court’s ruling, we looked to cases
from other jurisdictions that identified countervailing
13
Cramer was decided approximately six months after the trial in
the instant case.
12
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interests that should be balanced against the right to private
counsel of choice. First, we cited a California case that
determined the following factors should be considered by the
trial court in deciding a motion for substitution of counsel
made on the day of trial:
(1) length of the continuance; (2) whether there was a
dilatory motive for the continuance; (3) whether the
prosecution knew of the motions beforehand and whether the
prosecution objected; (4) whether the delay would have
inconvenienced the prosecution or its witnesses; (5)
whether current court-appointed counsel was prepared to
proceed; (6) whether the defendant had already retained
private counsel; and (7) whether the continuance would
interfere with the efficient administration of justice[.]
Id. at 301, 299 P.3d at 761 (citing People v. Butcher, 79 Cal.
Rptr. 618, 621 (Cal. Ct. App. 1969)). We also discussed a
Wisconsin case in which the appellate court affirmed the trial
court’s denial of a request for substitution of counsel one week
prior to trial, after considering: (1) “the length of the delay
requested”; (2) “whether competent counsel was presently
available” and ready to proceed; (3) prior continuances; (4)
inconvenience to the court, parties, and witnesses; and (5)
“whether the delay was for legitimate reasons or whether its
purpose was dilatory.” Id. at 301-02, 299 P.3d at 761-62
(citing State v. Prineas, 766 N.W.2d 206, 212 (Wis. Ct. App.
2009)).
Turning to the facts of Cramer’s case, we noted that
the circuit court only considered one factor—the “timeliness of
13
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the request”—and failed to address other relevant factors,
including “the length of the delay requested, the impact of the
delay on the prosecution, witnesses or the court, and whether
the delay was for a dilatory purpose.” Id. at 302, 299 P.3d at
762. We held that consideration of such factors led to a
conclusion that Cramer’s right to retained counsel was violated,
citing the lack of prejudice to the State, the absence of
evidence that delay would inconvenience witnesses or the court,
and the fact that a previous continuance was stipulated:
The State took no position on the request and there was no
apparent prejudice to the State. The record does not
establish that the circuit court would have been
inconvenienced by the request, particularly given that it
subsequently ordered a one-week continuance of the
sentencing hearing. The record also does not establish
that there were witnesses present at the initial hearing
who would be inconvenienced by a continuance. Furthermore,
there had been only one prior continuance in the
proceeding, which was a stipulated continuance of the trial
from September 16, 2010 to November 4, 2010. Under the
circumstances, the court’s summary denial of the motion for
substitution and a continuance as untimely was an abuse of
discretion.
Id.
As in Cramer, the record here does not reflect that
the circuit court properly balanced Reed’s right to counsel of
choice against countervailing interests. The circuit court
supported its denial of Reed’s motion for withdrawal and
substitution of counsel by stating that the request was made “on
the eve of trial” and new counsel was not ready to proceed; and
by invoking the efficient administration of justice, given that
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Reed had another criminal case pending and a jury was ready.
The court also concluded, without explanation, that Reed’s
motion could be considered a “dilatory tactic.”
However, these factors were either unsupported by the
record or insufficient to outweigh Reed’s constitutional right
to retained counsel of choice. For one, as to the circuit
court’s consideration of the purpose behind the request, Reed’s
contention that “[n]othing in the record . . . supports the
conclusion that [his] request to retain private counsel was
simply a ploy to delay his trial” is persuasive. At no time did
the State express concern that Reed engaged in tactics of delay.
All continuances were justified efforts by Reed and the State to
obtain grand jury transcripts, discovery, and potential
witnesses. The DPD informed the court at the trial call the
week before trial of Reed’s intention of obtaining substitute
counsel and Reed continued to seek new counsel despite the
court’s denial of his motion to continue. At the time of trial,
Reed had procured private counsel, and his statements regarding
appointed counsel’s failure to prepare adequately for trial
provided justification for his desire to substitute counsel,
even at that late stage of the proceeding.
Regarding the issue of timeliness, while the court
noted the motion for substitution was made “on the eve of
15
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trial,” it failed to consider that Reed had previously notified
the court of his desire to substitute his counsel.
Specifically, at the trial call held the week before trial, Reed
moved for a continuance because he was “in the process of
potentially retaining other counsel”14 and because he was
obtaining additional witness information. The circuit court
denied Reed’s motion. Because there were only two business days
between the trial call and the start of trial, Reed was left
with little opportunity to renew his request for substitution of
counsel after the court denied his request for a continuance.
Although the circuit court’s concern that new counsel
was not ready to proceed to trial was a pertinent consideration,
the court did not establish an additional crucial fact—the
length of the continuance being requested. Absent that
information, the court could not properly weigh this factor.
Moreover, the court could not reasonably expect Reed’s private
counsel to be ready for trial prior to his formal entry into the
case.
The remaining factor the circuit court relied on—
inconvenience to the court, because a jury was ready to proceed
and Reed had another criminal case pending—was an appropriate
circumstance for the court to consider. We are mindful that the
14
Reed’s privately retained counsel confirmed that Reed had first
contacted him “the day before” the October 10th trial call.
16
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efficient administration of justice is an important issue for
the trial court to address when deciding on a motion for
withdrawal and substitution of counsel. However, there is
nothing in the record to explain the extent of the inconvenience
to the court and nothing that indicates the court would not have
been able to accommodate Reed’s trial at a later date.
Moreover, the court failed to consider several factors
that weighed in favor of granting Reed’s motion. As in Cramer,
the State did not take a position on Reed’s request, and there
is no evidence in the record that the State would be prejudiced
by a delay or that witnesses would have been inconvenienced. In
addition, the court did not consider the length of the delay
requested, as it made no inquiry as to how much time private
counsel would need to be ready for trial. In terms of prior
case delay, while the court previously granted Reed two
continuances, both were brief, justified, and unopposed. The
first continuance was granted because discovery had not been
completed and the second continuance was granted after the death
of one of Reed’s witnesses and the State’s recent disclosures of
three additional witnesses, among other reasons.
Further, Reed evinced a lack of confidence in his
appointed counsel through statements to the court in support of
his request for substitution and by actually retaining counsel,
17
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who was prepared to enter an appearance if allowed a
continuance. Indeed, Reed’s explanation that he sought to
substitute counsel because he was looking for “one fair trial”
and because the DPD was “misrepresenting” him, aligns with the
reasoning behind the constitutional right to private counsel of
choice, i.e., to promote confidence between client and counsel
and accordingly protect the integrity of the judicial process:
The right to retain private counsel serves to foster the
trust between attorney and client that is necessary for the
attorney to be a truly effective advocate. Not only are
decisions crucial to the defendant’s liberty placed in
counsel’s hands, but the defendant’s perception of the
fairness of the process, and his [or her] willingness to
acquiesce in its results, depend upon his [or her]
confidence in his [or her] counsel’s dedication, loyalty,
and ability.
Maddagan, 95 Hawaiʻi at 179, 19 P.3d at 1291 (alterations in
original) (citations omitted) (quoting Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 645 (1989) (Blackmun,
J., dissenting)); cf. State v. Harter, 134 Hawaiʻi 308, 323, 340
P.3d 440, 455 (2014) (holding that although there is no absolute
right to change court-appointed counsel, the trial court must
examine the bases of a defendant’s request to replace appointed
counsel and “it must be ‘the kind of inquiry that might ease the
defendant’s dissatisfaction, distrust, or concern’” (quoting
Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991))).
This case requires us to consider whether
countervailing considerations outweighed Reed’s presumptive
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right to privately retained counsel of choice. Here, the record
reflects that the only supported justification for denying
Reed’s motion for substitution of counsel was the efficient
administration of justice. However, as noted above, the record
does not indicate that a delay would have been unduly
problematic for the circuit court. In turn, several factors
weighed in favor of granting Reed’s request, including the lack
of apparent prejudice to the State and Reed’s motivation for
obtaining new counsel. Under these circumstances, we cannot
conclude that the need for judicial efficiency justified denying
Reed his right to retained counsel of choice. As stated by the
United States Supreme Court, “a myopic insistence upon
expeditiousness in the face of a justifiable request for delay
can render the right to defend with counsel an empty formality.”
Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (citing Chandler v.
Fretag, 348 U.S. 3 (1954)).
Accordingly, the court abused its discretion in
denying Reed’s motion for withdrawal and substitution of his
retained counsel. Because the denial of the right to counsel of
choice is a structural error, we need not subject the court’s
abuse of discretion to a harmless error analysis. Cramer, 129
Hawaiʻi at 303, 299 P.3d at 763.
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III. Conclusion
For the foregoing reasons, we vacate the ICA’s June 9,
2014 judgment on appeal and the circuit court’s January 11, 2013
judgment of conviction and sentence, and remand to the circuit
court for a new trial.
Craig W. Jerome /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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