State v. Reed.

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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. . .)

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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).

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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.

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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.

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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.

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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

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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

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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. . .)

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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).

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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.

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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

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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

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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.

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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,

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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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