Friday, December 26, 2014

“Penetrating and Comprehensive” Approach to Motions to Withdraw

State v. Harter (HSC December 10, 2014)
Background. Letitia Harter was charged with assault of a law enforcement officer in the second degree, resisting arrest, and disorderly conduct. The charges stemmed from an incident in a Honolulu nightclub, Club 939. Harter initially called the police but the police ended up trying to arrest her for disorderly conduct. The arresting officer later testified as he attempted to “gain control” of Harter, she swung at or around him and scratched the officer’s chin.

At the arraignment, Harter was represented by the public defender. After a few continuances of the trial date and while discovery requests remained outstanding by the prosecution, Harter’s counsel requested that its office withdraw as her lawyer. Harter told the court that she was not happy with her lawyer. She said that after multiple attempts to reach her lawyer, when she finally talked to her lawyer, her lawyer she was crazy when she said she had a new job as an assistant casting director for MTV. The motion was granted and a new trial date was set. The court appointed Te-Hina Ickes as counsel.

There were more continuances with Ickes. On the fourth request for a continuance, this time by the prosecution, Ickes objected on the grounds that the defense was ready to proceed. The requested was granted over objection and set for trial. On that trial date, Ickes orally moved to withdraw as counsel. Ickes told the court that she had just been informed that Harter was unhappy with the way she was being represented and “would like me to withdraw.” Ickes explained that Harter had complained that she was not prepared, not paying enough attention, didn’t return her phone calls, and did not have enough time to prepare for trial. Ickes also pointed out that withdrawal may be necessary to avoid any later claims of ineffective assistance of counsel. Finally, Ickes told the court that there had been a breakdown in communication because “she no longer trusts me” and it was going to interfere with the way she represents her at trial. The court did not rule on the motion and ordered Harter to talk to Ickes after the hearing and come back the next day for trial.

The next day, the court asked Harter if she sat down with Ickes and talked with her. Harter said she went to the Office of Disciplinary Counsel and she did not meet with Ickes because she “didn’t hear you say that I needed to talk to my attorney.” After a heated exchange between Harter and the court, the court denied the motion to withdraw. The court ordered that if Harter still wants Ickes to represent her, she will. If not, “she will go to trial alone, by herself, without an attorney, but we’re going to trial this morning.”

Ickes represented her at trial. The jury found Harter guilty as charged. At the sentencing hearing, Harter addressed the court and made incoherent and strange claims about the FBI and the arresting officer. The court sentenced Harter to a year in jail. Ickes moved to withdraw as counsel, which was granted. A new counsel moved for reconsideration of the sentence, but it was denied. Harter appealed and the ICA affirmed.

Motion to Withdraw as Counsel. The right to the assistance of counsel in a criminal case “will not be satisfied by the mere formal appointment of an attorney.” State v. Kane, 52 Haw. 484, 486, 479 P.2d 207, 209 (1971). And even though “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 asks for new counsel, 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.” State v. Soares, 81 Hawaii 332, 355, 916 P.2d 1233, 1256 (App. 1996). The court’s inquiry must allow the court to determine if “good cause” exists to warrant substitution of counsel. Id. Typically, good causes exists if 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 the client. Id.

Trial Court’s Duty to Inquire About Conflicts of Interest. The trial court must make a “penetrating and comprehensive” inquiry when the judge should reasonably know that a conflict of interest exists. Cuyler v. Sullivan, 446 U.S. 335, 447 (1980). According to the HSC, this is a “strict requirement.” Generally, a conflict of interest arises when the attorney is in a situation that would be conducive to divided loyalties. State v. Richie, 88 Hawaii 19, 41, 960 P.2d 1227, 1249 (1998). See also Hawaii Rules of Professional Conduct Rule 1.7 (“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.” (NOTE: the new version of this rule has different requirements. Check it out here!).

The HSC examined HRPC Rule 1.7 and held that the trial court’s “good cause” inquiry should consider (1) the basis for the conflict of interest; (2) the potential that the conflict would materially interfere with counsel’s independent professional judgment in considering what actions to pursue on behalf of the client; (3) the possibility that the conflict could prevent counsel from taking courses of action that reasonably should be pursued; and (4) counsel’s opinion if his or her representation would be adversely affected. If the court finds an actual or potential conflict, the court must disqualify the attorney or explain the situation to the defendant and obtain a waiver if the defendant still wishes to continue with that attorney.

In this case, Ickes told the court at her motion to withdraw, that she felt withdrawal was necessary in order to protect herself from potential claims of ineffective assistance of counsel. The court made no inquiry if a potential conflict of interest did in fact exist. Even the next day, when Harter did not meet with Ickes and went to the Office of Disciplinary Counsel instead, the court failed to inquire about a potential conflict.

The HSC Finds a Conflict of Interest. Even though the trial court didn’t make the inquiry, the HSC found a conflict existed between Harter and Ickes. The HSC held that Ickes’ “personal interest of protecting herself professionally” would jeopardize Harter’s right to effective counsel. The HSC agreed with the a D.C. appellate court that as soon as counsel learned of the investigation of the defendant’s complaint to the ODC or its equivalent, counsel “acquired a personal interest in the way he conducted appellant’s defense—an interest independent of, and in some respects in conflict with, appellant’s interest in obtaining a judgment of acquittal.” Douglas v. United States, 488 A.2d 121, 137 (D. C. 1985). The HSC noted that Ickes was in a similar situation. Because no inquiry was made on the record, the HSC held that the record showed good cause to grant the motion to withdraw and appoint substitute counsel.

A Note: Going to the ODC Doesn’t Always Trigger Withdrawal. The HSC noted that a complaint to the ODC does not always give rise to withdrawal of counsel. That’s the entire point of the “penetrating and comprehensive inquiry.”

No Prejudice Required . . . Defense counsel is constitutionally ineffective when there is a conflict of interest. State v. Richie, 88 Hawaii at 44, 960 P.2d at 1252. Actual prejudice is not required. Id. The HSC extended the presumption of prejudice to conflicts in which a personal interest is raised and the trial court fails to conduct any inquiry into the conflict. And so, the HSC held that that trial court abused its discretion in denying the motion to withdraw and substitute counsel.

The “Breakdown in Communication” or “Irreconcilable Differences” Grounds for Withdrawal. The HSC discussed what kind of inquiry is required when a motion to withdraw as counsel is raised on the grounds that there has been irreconcilable differences or a breakdown in communication between counsel and client. The HSC explained that its discussion was to provide guidance as this motion is filed frequently across the State.

Again, like a conflict of interest, the trial court has to conduct a “penetrating and comprehensive inquiry” into the nature of the relationship between counsel and client. The HSC noted that the trial court’s inquiry should focus on the “status and quality of the attorney-client relationship” and assess the extent of such a breakdown in communication or irreconcilable differences. Moreover, the trial court also should consider the delay or inconvenience that would result from a substitution of counsel.

Trial Court’s Duty to Convene Competency Hearing. Whenever there is a reason to believe that a “physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case,” the trial court may sua sponte suspend proceedings and appoint an examiner or panel of examiners to determine the competency of the defendant. HRS § 704-404. The court is “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 Hawaii 454, 462, 5 P.3d 444, 452 (App. 2000). In this case, the HSC held that it should have been apparent to the trial court that a mental disease, disorder, or defect raised the question of Harter’s competency. Her testimony at trial and statements to the court were disjointed and bizarre. Moreover, it appeared that her mental state deteriorated by the time of the sentencing hearing. She claimed, among other things, that this was a case of mistaken identity supported by evidence from her boyfriend’s dad and a Supreme Court justice. This duty, according to the HSC, is distinct from defense counsel’s duty to raise the issue. Here, the HSC held that the trial court abused its discretion in not ordering a mental fitness examination.

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