State v. Sagapolutele

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAY-2025
07:56 AM
Dkt. 108 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
LUAVALU SAGAPOLUTELE, Defendant-Appellant,
and DANE T. MIZUSAWA, Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)

Defendant-Appellant Luavalu Sagapolutele

(Sagapolutele) appeals from the "Judgment of Conviction and

Sentence" (Judgment) filed on November 6, 2023 by the Circuit

Court of the First Circuit (circuit court).1

1 The Honorable Catherine H. Remigio presided.
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Sagapolutele was indicted on April 1, 2022, on charges

of Robbery in the First Degree, in violation of Hawaii Revised

Statutes (HRS) § 708-840(1)(b)(i) (2014) and/or § 708-

840(1)(b)(ii) (2014), and Burglary in the First Degree, in

violation of HRS § 708-810(1)(c) (2014). Following a jury

trial, Sagapolutele was found guilty as charged, and was

sentenced to concurrent twenty-year and ten-year terms of

imprisonment.

On appeal, Sagapolutele raises several points of

error, contending the circuit court erred in: (1) denying his

requests for new court-appointed counsel, and his counsel's

(defense counsel) requests to withdraw as counsel; (2) denying

defense counsel's request for "a continuance to investigate the

witnesses that [Sagapolutele] wanted [defense counsel] to bring

to trial"; (3) finding "that [Sagapolutele's] absence from his

own trial was voluntary"; (4) allowing police testimony that

identified Sagapolutele as "the person seen in [video footage]

committing the crime in question," thereby "allow[ing] police

testimony to invade the province of the jury"; and (5)

sentencing Sagapolutele "without considering the letter from the

complaining witness which recanted his entire testimony."

Sagapolutele further contends that defense counsel was

ineffective, and that there is insufficient evidence to support

his conviction.

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Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we determine that Sagapolutele's first point of error is

dispositive of this appeal.2

Sagapolutele contends that the circuit court erred in

denying his requests for new court-appointed counsel, and

defense counsel's requests to withdraw, on the basis that there

had been a "complete breakdown of communication" and that

Sagapolutele "had irreconcilable differences" and "could not

work professionally" with defense counsel. We review the

circuit court's denial of these requests under the abuse of

discretion standard. State v. Plichta, 116 Hawaiʻi 200, 214, 172

P.3d 512, 526 (2007); see also Hawaiʻi Rules of Penal Procedure

Rule 57 ("Withdrawal of counsel shall require the approval of

the court[.]").

2 Sagapolutele also argues, for the first time on appeal, that the
evidence adduced was insufficient to support his conviction "given that the
complaining witness recanted [in a letter submitted before the sentencing
hearing], and given that the testimony of the officers was improper and
should have been stricken." We ordinarily review "challenges to the
sufficiency of the evidence . . . on appeal, . . . because the Double
Jeopardy clause bars retrial of a defendant once a reviewing court has found
the evidence at trial to be legally insufficient to support the conviction."
See State v. Davis, 133 Hawaiʻi 102, 115, 324 P.3d 912, 925 (2014) (cleaned
up). Sagapolutele fails, however, to explain how these alleged errors
resulted in insufficient evidence to support his conviction, and "[p]oints
not argued may be deemed waived." Hawaiʻi Rules of Appellate Procedure Rule
28(b)(7).

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The record reflects that defense counsel made multiple

requests to withdraw. Defense counsel first orally requested to

withdraw during jury selection, on the basis that Sagapolutele

did not think defense counsel had done her "due diligence," and

that her legal advice was "not in his best interests." Defense

counsel explained to the circuit court that,

I do understand we are in the process of picking a jury.
This issue has come up and I have tried to resolve it
several times.
And I would just say, without going into the
specifics of our attorney-client privilege conversations,
that Mr. Sagapolutele believes at this time I have not done
my due diligence in calling certain witnesses, and, uh, he
believes my advice is -- has been not in his best
interests. So given that, he's asked for myself to be
removed at this time.

(Emphasis added.)

After asking the deputy prosecuting attorney to leave

the courtroom, the circuit court questioned defense counsel and

Sagapolutele. When asked whether he agreed with what defense

counsel said, Sagapolutele replied "[y]es," and that he

"[thought] that [it was] in [his] best interest to file that

motion." Sagapolutele declined to speak more about the conflict

on the basis of attorney-client privilege.

The circuit court stated that "[they] haven't even

started the trial portion so who knows if [they] are [going to]

call the witnesses or not." Defense counsel replied that she

was "not prepared to call any witnesses." She also explained

that she and Sagapolutele disagreed as to whether witnesses

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should be called, and that she "[thought] [the witnesses

Sagapolutele wanted to call] may open the door . . . to things

that aren't relevant."

The circuit court denied defense counsel's request to

withdraw,3 stating,

I haven't been given too many specifics. The issue
of witnesses, uh, the court indicates that we haven't even
gotten to the point of the trial where witnesses are being
called. [Defense counsel] is an experienced attorney. She
has the ability to give Mr. Sagapolutele her advice. And
whether he wants to take it or not, obviously I've already
told him it's his decision if he wants to testify even if
it's against your advice, and that's all going to be the
case.
But when it comes to the rest of it, witnesses and
all of that other stuff, the court's not going to get
involved in that. From what I've heard already, we are not
there at this point. And I don't know if we'll get there.
In the end maybe the appellate courts will have to make
this decision once more is known about who these witnesses
are and if they actually do or do not testify. But at this
point in the proceedings, no witnesses have been not called
and therefore the court's [going to] deny the request to
withdraw as counsel.

(Emphasis added.)

Defense counsel orally renewed her request to withdraw

at the close of the first day of trial, explaining that,

[R]ight before we started trial or started the afternoon
session, that is when Mr. Sagapolutele refused to come to
the court to his trial. I did have an opportunity to go
back there to see if I could resolve the situation. At
that point it was made clear to me that the communication
had stopped.
His refusal to -- well, his refusal to participate in
the defense renders me pretty much useless. And I get that
the State is -- is going to great lengths to finish this
trial, but the fact remains is that I have a breakdown of

3 After the circuit court denied the motion to withdraw, defense
counsel moved for a continuance, on the ground that "at [that] point [she]
need[ed] to explore Mr. Sagapolutele's wishes to possibly call a witness."
The circuit court denied defense counsel's request for a continuance without
prejudice to the filing of a written motion.

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communication when my client refuses to work with me. I
think at that point representation [has] to cease.
I -- these are very rare circumstances. I -- I have
not been in this position before. I am uncomfortable
proceeding given what the State has put on the record as
allegations which have not been proven. On the one hand I
cannot break the confidences of my client and I have to
protect his interests, but I think there is a competing
interest here. My own I guess I'll label it.
Um, so I -- I can only think of the course of action
of asking to -- to withdraw.

(Emphasis added.)

The circuit court declined to rule on the renewed oral

request to withdraw until defense counsel could submit a written

motion, and the motion was heard. The circuit court explained,

[I]t's hard because there's not a lot -- there's a lot --
there's a lot underneath that's being said, and it's
difficult to make decisions based on things that are not
being said. So I think we need a couple of days to reflect
on this and for me to make a decision based on what I
believe to be [defense counsel's] ability or inability to
continue in this case. It's something that I'm very much
considering.

On February 28, 2023, defense counsel filed a written

motion to withdraw as Sagapolutele's counsel. Defense counsel

represented that the motion was brought "based on

[Sagapolutele's] right to the effective assistance of counsel,

and his right to appointed counsel," pursuant to article I,

section 14 of the Hawaiʻi State Constitution, and the Sixth and

Fourteenth Amendments to the United States Constitution.

Defense counsel's declaration represented that "[t]he breakdown

in communication between [defense counsel] and [Sagapolutele

was] irreparable," and that "[defense counsel] cannot continue

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to conduct [Sagapolutele's] trial without communicating with

[Sagapolutele]."

Sagapolutele refused to appear at the March 1, 2023

hearing on defense counsel's motion to withdraw. At the

hearing, defense counsel raised conflict of interest concerns.

As she explained,

The first oral motion to withdraw as counsel was coming
from my client. And this motion -- and for his reasons of
my representation.
This motion that was filed yesterday is not based off
of Mr. Sagapolutele's desires. I have never in all my
years of practice filed a motion to withdraw in the middle
of trial, and I think that should say a lot. I'm not --
I'm not bootstrapping as it's characterized as by the
State.
Given my last interaction with Mr. Sagapolutele, I
believe now, despite whatever he says, there is a
divergence of interest here, and I am with this motion
protecting my own interests. And I don't think that can be
done with my continued representation because if I continue
to represent him, his interests, I need to represent his
interests. And I -- I simply do not think I'm in a
position to do so.
So I understand the court's inclination. I'm putting
that on the record. And I have a strong suspicion that
he's not [going to] show up. So if that is the case and
with the court's inclination, I'm going to go through this
trial. And not only is my own well-being at jeopardy. I
will face, you know, an ineffective claim. And I'm just --
I don't think that at this point that it's fair to myself.

(Emphasis added.)

The circuit court expressed its inclination to deny

defense counsel's motion to withdraw, explaining,

I've made my position clear. Um, I understand everyone's
constraints. I have the same concerns that everyone has,
but I have to go by what is filed in the motion and I have
to follow the law which requires me to give [Sagapolutele]
an opportunity to speak with me about this motion so I can
have a full discussion about it with him.
I don't know if he'll come. I don't know what he'll
say. I don't know if he'll say anything that will convince
me to grant the motion. But I still have to go that route.

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[Defense counsel] has not said anything about
anything else except physically being unable to communicate
with [Sagapolutele], but I believe that [defense counsel]
has done what she needs to do to protect herself as far as
any future motions that come up. And that's all -- that's
all we can do at this point.

(Emphasis added.) The circuit court later denied the motion

stating that "situations where counsel is hampered either by a

difference in opinion on who to call as witnesses or an

allegation that suddenly the defendant is no longer satisfied

with counsel's representation" are insufficient reasons to allow

withdrawal of counsel.

Defense counsel again renewed her request to withdraw

after the prosecution rested. Sagapolutele was still refusing

to appear at trial. Defense counsel represented that,

[A]t this point I'm renewing my request to withdraw as
counsel. It is my intention to call Mr. Sagapolutele as
that is what the plan was. And I don't have his permission
to not call him and he has a right to testify. If I don't
call him, that makes me ineffective.

Defense counsel expressed several times that her "license [was]

on the line," and that she was "trying to protect [her] own

license" by requesting to withdraw. She stated that, "[she]

still believe[d] that without [Sagapolutele's] testimony [she]

[could not] do [her] job."4

4 Defense counsel also asked for a continuance "to see if [she
could] visit [Sagapolutele] at O-Triple-C"; defense counsel's request was
denied.

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Defense counsel further expressed concern that she was

not able to advise Sagapolutele of his right to testify or not

testify. As she explained to the circuit court,

[M]y issue is he is without counsel at this -- at this
moment, and so the ramifications of him testifying or not
testifying, those I think have to be disclosed to him. Um,
I -- and I -- I recognize the court can do whatever it
wants. I just don't think at this point he's represented.
Or he refuses to speak with me so I can't give that advice.
Uh, I'm not comfortable giving that advice in cellblock. .
. .

. . . .

. . . My objection is at this point he's without
counsel. Normally before Tachibana occurs I have an
opportunity to explain the pros and cons. And the court is
right, it's his decision. Even if I want him to testify,
he can make that decision. My objection is that he's not
had that counsel. Um, so any inquiry by the court I don't
think would be -- what's the word? -- under counsel.

(Emphasis added.)

The circuit court did not allow counsel to withdraw

until after the conclusion of trial and the jury had returned

its verdict.

In State v. Harter, the Hawaiʻi Supreme Court explained

that,

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. 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."

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,

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and any delay or inconvenience that may result from the
substitution."

. . . .

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.

134 Hawaiʻi 308, 328-29, 340 P.3d 440, 460-61 (2014) (emphasis

added) (citations omitted).

Here, the record reflects defense counsel's repeated

representation that there was "a complete breakdown in [her]

communication" with Sagapolutele, as well as "irreconcilable

differences" with regard to defense strategy. Given these

representations, we conclude that the circuit court acted beyond

its discretion in denying defense counsel and Sagapolutele's

requests for new appointed counsel without conducting a

"penetrating and comprehensive inquiry" of the sort necessary to

discern "the nature of the relationship between [Sagapolutele]

and [defense] counsel," and that Sagapolutele's right to

effective assistance of counsel was therefore not adequately

protected. See id. at 329, 340 P.3d at 461 (citation omitted).

Defense counsel, moreover, represented that the

circumstances giving rise to Sagapolutele's complete rejection

of her legal assistance had created a conflict of interest.

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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. 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.

The 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." 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."

. . . .

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.

Id. at 324-25, 340 P.3d at 456-57 (emphasis added) (citations

omitted).

As in Harter, defense counsel represented on the

record that she had a "personal interest [in] protecting herself

professionally" and that this interest "would jeopardize

[Sagapolutele's] right to the effective assistance of counsel."

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See id. at 325, 340 P.3d at 457. And as in Harter, the record

demonstrates a conflict of interest due to defense counsel's

personal interest, and that the circuit court should have asked

the "probing and specific questions" necessary to elicit any

information to the contrary. See id. at 324, 340 P.3d at 456

(citation omitted).

Defense counsel clearly asserted that defense counsel

could not, under the circumstances, continue to effectively

represent Sagapolutele. Sagapolutele represented that he

thought it would be in his best interest for defense counsel to

withdraw. The circuit court should have conducted inquiries

necessary to determine whether withdrawal of counsel was

necessary to protect Sagapolutele's constitutional rights. On

this record, we conclude that the circuit court erred by not

permitting defense counsel to withdraw, and by not appointing a

new court-appointed counsel to represent Sagapolutele without

first conducting the Harter inquiries.5

5 We are mindful that defendants in criminal cases do not have a
right to pick and choose their court-appointed counsel, and we clarify that
our ruling is not based on Sagapolutele's decision to voluntarily absent
himself from his own trial in protest of appointed counsel. See State v.
Torres, 54 Haw. 502, 504, 510 P.2d 494, 496 (1973) ("[T]here is no absolute
right, constitutional or otherwise, for an indigent to have the court order a
change in court-appointed counsel."); State v. Vaimili, 135 Hawaiʻi 492, 501,
353 P.3d 1034, 1043 (2015) ("Trial may continue . . . in certain
circumstances when a defendant is voluntarily absent."). Our disposition is
based on the record before us, which exhibits a clear and complete breakdown
of communications between defense counsel and Sagapolutele. On this record,
defense counsel's withdrawal was necessary to protect Sagapolutele's
constitutional rights and to address defense counsel's conflict of interest.

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For the foregoing reasons, we vacate the circuit

court's Judgment, and remand for a new trial.

DATED: Honolulu, Hawaiʻi, May 30, 2025.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Kai Lawrence,
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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