Background
Banashihan was charged in May 2018 with six counts of sexual assault in the second degree and five counts of sexual assault in the fourth degree, allegedly committed while serving as a “cadre” (supervisor) at the Hawaii Youth Challenge Program. Nine of the eleven counts involved the same alleged victim, S.Q., a minor. Initial private counsel withdrew in November 2022 due to communication difficulties and Banashihan’s inability to pay attorney fees. The trial court appointed Aaron K. Wills as court-appointed counsel on March 15, 2023.
On June 14, 2023, three days before trial, Banashihan expressed dissatisfaction with Wills, stating his counsel “wasn’t really representing me a hundred percent.” Banashihan requested permission to rehire his previous attorneys at a reduced fee. Wills objected, citing lack of cooperation and unresolved payment issues. The trial court denied the request without conducting any inquiry into Banashihan’s concerns, proceeding to trial the following Monday.
The jury convicted Banashihan on Counts 1 through 9 and acquitted him on Count 11. During deliberations, the jury noted that Counts 2 and 9 appeared identical, and the trial court confirmed they were the same. The trial court sentenced Banashihan and entered judgment on September 30, 2024.
The Court’s Holding
The Intermediate Court of Appeals held that the trial court committed reversible error by failing to conduct a Harter inquiry before denying Banashihan’s request for substitution of counsel. Under Hawaii law, when an indigent defendant requests replacement of court-appointed counsel, the trial court must conduct a “penetrating and comprehensive examination of the defendant on the record” to determine whether good cause exists for substitution. Good cause typically exists when there is a conflict of interest, complete breakdown in communication, or an irreconcilable difference between attorney and client.
Here, Banashihan’s statement that his counsel “wasn’t really representing me a hundred percent” and his explicit request to rehire previous counsel triggered the requirement for a Harter inquiry. The trial court’s summary denial—based partly on the lack of a substitute attorney physically present—was improper. The court emphasized that the trial court may consider delay or inconvenience but must first conduct the required examination.
The court vacated the conviction and remanded for the trial court to conduct the Harter inquiry. If the trial court finds that Banashihan’s concerns about his representation were sufficiently severe to violate his constitutional right to counsel, a new trial is warranted. If the inquiry reveals no breakdown, judgment may be re-entered, subject to the court’s ruling on duplicative counts.
Key Takeaways
- Trial courts must conduct a full Harter inquiry before denying an indigent defendant’s request to substitute appointed counsel, regardless of trial proximity or practical inconvenience.
- A defendant’s statement that counsel is not representing him adequately triggers the inquiry requirement and cannot be dismissed without investigation.
- Counts 2 and 9, which the jury confirmed were duplicative (both involving touching of the same victim’s vaginal area), must be dismissed or retried with a merger instruction before judgment can be entered.
- The trial court properly excluded hearsay testimony regarding the complaining witness’s truthfulness under Hawaii Rule of Evidence 608(b).
- Prosecutor’s closing arguments about the defendant’s abuse of power and authority as a supervisor had direct relevance to the charged offenses and constituted proper argument.
Why It Matters
This decision reinforces Hawaii’s strong constitutional protection of the attorney-client relationship in criminal cases. By requiring a full inquiry even on the eve of trial, the court ensures that defendants’ legitimate concerns about counsel representation receive meaningful judicial consideration. The ruling applies regardless of whether substitute counsel is immediately available or payment remains uncertain—the trial court’s duty is to examine the defendant’s concerns, not to dismiss them based on logistical obstacles.
The opinion also clarifies that appellate courts will not tolerate duplicative counts that create constitutional violation risks. By requiring the state to either dismiss or retry duplicative charges with proper jury instructions on merger, the court prevents the anomaly where a defendant receives multiple convictions for what is essentially a single criminal act.