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Electronically Filed
Supreme Court
SCWC-29937
15-MAY-2012
09:15 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
GLENN KEOHOKAPU, JR., Petitioner/Defendant-Appellant.
NO. SCWC-29937
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29937; CR NO. 08-1-0905)
May 15, 2012
ACOBA, DUFFY, AND MCKENNA, JJ.; WITH RECKTENWALD, C.J.,
CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY ACOBA, J.
We hold in this case that the process by which a jury
was selected for the trial of Petitioner/Defendant-Appellant
Glenn Keohokapu, Jr. (Petitioner) did not result in substantial
prejudice to Petitioner notwithstanding the pretrial publicity to
which some jurors were exposed, and we therefore affirm the June
22, 2009 judgment of conviction for manslaughter entered by the
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Circuit Court of the First Circuit (the court),1 and, to the same
extent, the October 6, 2011 judgment of the Intermediate Court of
Appeals (ICA) filed pursuant to its September 22, 2011 summary
disposition order (SDO),2 see State v. Keohokapu, No. 29937, 2011
WL 4426889 (Haw. App. Sept. 22, 2011). However, we vacate
Petitioner’s extended term sentence and remand for disposition of
the case consistent with this opinion inasmuch as we hold that as
to the extended sentencing proceedings (1) where the jury must
determine whether an extended term of imprisonment is necessary
for the protection of the public it is error to instruct the jury
that the extended term sentence includes the possibility of
parole; (2) and, additionally, that in this case it was error to
admit the statement of one of the witnesses during the sentencing
phase as past recollection recorded; and (3) these errors were
not harmless beyond a reasonable doubt.
I.
The following essential matters are from the record and
the submissions of the parties.
A.
On the night of June 7, 2008, Petitioner, Petitioner’s
wife, Kauilani Keohokapu (Kauilani),3 and Petitioner’s brother
1
The Honorable Virginia L. Crandall presided.
2
The SDO was filed by the Presiding Judge Daniel R. Foley, the
Honorable Alexa D.M. Fujise, and the Honorable Lisa M. Ginoza.
3
Kauilani Keohokapu is referred to by her first name in order to
distinguish her from Petitioner.
2
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went to club “Komo Mai.” Decedent Steven Wilcox and his friend
Robin Gregory also were at the club. At some point, Petitioner
became upset because Gregory was allegedly staring at Kauilani.
Petitioner left the club and went outside to his car. Kauilani
followed Petitioner, and the two allegedly began to argue.
Later, Petitioner’s brother came out of the club to the car, and
it appears that the three argued.
During the argument, Petitioner’s brother grabbed
Kauilani’s arm and pushed her away from the car. At that moment,
Wilcox came out of the club, approached the car, and said
something to the effect of, “That’s one female.” Petitioner, who
was sitting in the car, got out and said, “[T]hat’s my wife.”
Petitioner and Wilcox then began to fight. At one point,
witnesses stated that they saw Petitioner with a metal object or
a knife in his hand. Sometime during the fight, Petitioner and
Wilcox collided, and Petitioner stabbed Wilcox in the chest.
Petitioner then went back to his car and drove away. On June 8,
2008, Wilcox died as a result of the stab wound.
B.
On June 12, 2008, Respondent/Plaintiff-Appellee State
of Hawai#i (Respondent) charged Petitioner with murder in the
second degree, Hawai#i Revised Statutes (HRS) §§ 707-701.5 (1993)4
4
HRS § 707-701.5 (1993) provides:
§ 707-701.5. Murder in the second degree (1) Except as
provided in section 707-701, a person commits the offense of
murder in the second degree if the person intentionally or
knowingly causes the death of another person.
(continued...)
3
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and 706-656 (1996).5 On June 23, 2008, Respondent gave Petitioner
notice that he was eligible to be sentenced to an extended term
of imprisonment as a persistent offender pursuant to HRS §§ 706-
661 (Supp. 2008)6 & 706-662(1) (Supp. 2008)7.
4
(...continued)
(2) Murder in the second degree is a felony for which the
defendant shall be sentenced to imprisonment as provided in
section 706-656.
5
HRS § 706-656 (1996) provides:
§ 706-656. Terms of imprisonment for first and second degree
murder and attempted first and second degree murder (1)
Persons convicted of first degree murder or first degree
attempted murder shall be sentenced to life imprisonment
without possibility of parole.
As part of such sentence the court shall order the director
of public safety and the Hawai#i paroling authority to
prepare an application for the governor to commute the
sentence to life imprisonment with parole at the end of
twenty years of imprisonment; provided that persons who are
repeat offenders under section 706-606.5 shall serve at
least the applicable mandatory minimum term of imprisonment.
(2) Except as provided in section 706-657, pertaining to
enhanced sentence for second degree murder, persons
convicted of second degree murder and attempted second
degree murder shall be sentenced to life imprisonment with
the possibility of parole. The minimum length of
imprisonment shall be determined by the Hawai#i paroling
authority; provided that persons who are repeat offenders
under section 706-606.5 shall serve at least the applicable
mandatory minimum term of imprisonment.
If the court imposes a sentence of life imprisonment without
possibility of parole pursuant to section 706-657, as part
of that sentence, the court shall order the director of
public safety and the Hawai#i paroling authority to prepare
an application for the governor to commute the sentence to
life imprisonment with parole at the end of twenty years of
imprisonment; provided that persons who are repeat offenders
under section 706-606.5 shall serve at least the applicable
mandatory minimum term of imprisonment.
6
HRS § 706-661 (Supp. 2008), referenced in § 706-662, provides:
§ 706-661. Extended terms of imprisonment. The court may
sentence a person who satisfies the criteria for any of the
categories set forth in section 706-662 to an extended term
of imprisonment, which shall have a maximum length as
follows:
(1) For murder in the second degree-life without the
possibility of parole;
(2) For a class A felony-indeterminate life term of
imprisonment;
(continued...)
4
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The July 23, 2008 minutes of the court reflect that the
subject of pretrial publicity was discussed on that date, but
there is no record of the proceedings. On March 12, 2009, the
court held a hearing to resolve several pending motions. At the
conclusion of the hearing, Petitioner’s counsel reminded the
court that there had been news reports about Wilcox’s peaceable
nature, which Petitioner’s counsel claimed were simply “not
true.”
Jury selection began on March 17, 2009, and lasted six
days. On the first day of jury selection, the court informed the
first panel of prospective jurors that “[t]here was some
publicity with respect to this case[,] and made the following
6
(...continued)
(3) For a class B felony-indeterminate twenty-year
term of imprisonment; and
(4) For a class C felony-indeterminate ten-year term
of imprisonment.
When ordering an extended term sentence, the court
shall impose the maximum length of imprisonment. The minimum
length of imprisonment for an extended term sentence under
paragraphs (2), (3), and (4) shall be determined by the
Hawai#i paroling authority in accordance with section
706-669.
(Emphases added.)
7
HRS § 706-662 (Supp. 2008) provides in relevant part:
§ 706-662. Criteria for extended terms of imprisonment. A
defendant who has been convicted of a felony may be subject
to an extended term of imprisonment under section 706-661 if
it is proven beyond a reasonable doubt that an extended term
of imprisonment is necessary for the protection of the
public and that the convicted defendant satisfies one or
more of the following criteria:
(1) The defendant is a persistent offender in that the
defendant has previously been convicted of two or more
felonies committed at different times when the
defendant was eighteen years of age or older;
(Emphases added.)
5
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statement (publicity statement):
It was reported that on June 8, 2008, in the parking lot of
Club Komo Mai in Kaneohe [Petitioner] Glenn Keohokapu, Jr.,
allegedly fatally stabbed 19-year-old Steven Wilcox after
Wilcox intervened in an argument between [Petitioner] and
his wife. Both [Petitioner] and Wilcox had consumed alcohol
in Club Komo Kai. Wilcox was described in the media as a
good samaritan.
Would you please raise your hand if you believed you
have read, hear, or know anything about this case.
For those of you who have raised your hand, thank you.
We’ll be discussing what you’ve read or heard individually
with each of you, and the others of you will be--who have
not read or heard anything will be returning on next week
Tuesday.
(Emphasis added.) The prospective jurors in the second, third,
and fourth panels were given the same apprisal. Petitioner
claims that “there is no record as to the discussion or
formulation of this statement [and that] there is no record of
whether the defense objected or not.” The record reflects,
however, that Petitioner did not object when the court read the
statement to the jury panels.
The court conducted individualized voir dire of those
jurors who indicated they had been exposed to pretrial publicity.
Jurors who stated that they could not be fair and impartial due
to media exposure were excused for cause.
Petitioner challenged for cause the remaining jurors
who had heard of the case in the media, arguing that it would be
difficult to ascertain whether the jurors could be fair and
impartial, and, thus, it would be prudent to dismiss them all.
The court rejected Petitioner’s challenge for cause.
During the first day of the regular jury selection,
Petitioner reiterated his challenge to those jurors seated in the
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jury box who had been exposed to pretrial publicity. The court
again denied Petitioner’s challenge. Nine out of the twelve
jurors ultimately selected indicated that they had heard about
the case through the television news, the newspapers, or both,
and five stated that they recalled Wilcox had been referred to as
a “Good Samaritan” or had helped by intervening in the dispute.
C.
Petitioner’s trial commenced on April 6, 2009.
Petitioner argued that Wilcox, who was carrying brass knuckles on
the night in question, was the first aggressor, and that
Petitioner acted in self-defense. On April 20, 2009, the jury
found Petitioner guilty of the included offense of manslaughter,
HRS § 707-702.8 On May 8, 2009, following the jury verdict,
Respondent gave Petitioner notice that it intended to introduce
evidence of Petitioner’s past crimes during the sentencing phase
of trial.
8
HRS § 707-702 (Supp. 2006) provides:
§ 707-702. Manslaughter (1) A person commits the offense of
manslaughter if:
(a) The person recklessly causes the death of another
person; or
(b) The person intentionally causes another person to commit
suicide.
(2) In a prosecution for murder or attempted murder in the
first and second degrees it is an affirmative defense, which
reduces the offense to manslaughter or attempted
manslaughter, that the defendant was, at the time the
defendant caused the death of the other person, under the
influence of extreme mental or emotional disturbance for
which there is a reasonable explanation. The reasonableness
of the explanation shall be determined from the viewpoint of
a reasonable person in the circumstances as the defendant
believed them to be.
(3) Manslaughter is a class A felony.
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D.
On May 27, 2009, the sentencing phase of Petitioner’s
trial began. Respondent introduced evidence that Petitioner had
engaged in domestic violence against his wife on October 20,
1994, April 3, 1996, July 13, 1996, and on two other occasions,
one sometime in January 2008 and the other on March 9, 2008.
Respondent also introduced evidence that Petitioner had allegedly
attacked a man named Gregory Balga on October 23, 1993. The jury
also heard that Petitioner had committed four other felonies, one
of which involved violence toward another person, and that
Petitioner had numerous misdemeanors on his criminal record.
1.
Respondent first called Petitioner’s wife, Kauilani, as
a witness. Kauilani testified that on April 3, 1996, while she
and Petitioner were still dating, she attempted to leave the
apartment she and Petitioner shared. Respondent asked Kauilani
whether Petitioner was holding her back from leaving, to which
Kauilani answered that she did not remember because the incident
had occurred “back in ‘96.” Respondent inquired whether Kauilani
had filed a police report the day after the incident, and
Kauilani responded that she had.
Respondent then showed the report to Kauilani.
Kauilani indicated that she had filed the report, that she
recognized the handwriting as hers, and that her signature was on
the bottom of the report. Respondent asked the court for
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permission to approach Kauilani, which was granted. It is not
clear from the record whether Respondent retrieved the report.
Respondent asked Kauilani whether the report “refresh[ed] her
recollection,” to which Kauilani answered in the affirmative.
Respondent asked Kauilani whether Petitioner had
grabbed her because he did not want her to leave. Kauilani
responded, “It says that he slapped me. . . . On the paper it
says he slapped me.” Respondent questioned, “This is your
statement, right?” and Kauilani agreed. Respondent asked, “And
you wrote it when this incident occurred? You wrote it the day
after the incident occurred; is that right?” Kauilani responded
that she did not want to “dig back up” that part of her life, but
agreed that she had written the statement. Kauilani then
testified that she and Respondent had argued, and that Petitioner
had slapped her on the face several times, grabbed her neck,
threatened to kill her, and locked her in the apartment for about
an hour. Petitioner claims that the record does not reflect that
Respondent ever retrieved the police report from Kauilani when
she was testifying.
2.
Kauilani also testified about another incident of
domestic abuse that occurred on July 13, 1996. On that occasion,
Petitioner pulled Kauilani’s hair, head-butted her, and bit her
in the eye. As a result of the incident, Kauilani suffered a
black eye, scratches, and injuries to her ears.
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3.
Respondent questioned Kauilani about a third incident
that allegedly occurred on October 20, 1994, during which
Petitioner bit Kauilani and pulled her by the stomach. During
Kauilani’s testimony, Petitioner’s counsel asked whether Kauilani
was reading from her police report.
[DEFENSE COUNSEL]: If she has it at the stand and she’s
testifying from it, I’m going to object because there’s a
refreshed recollection, and I don’t think the foundation has
been laid for that. Other than for the first police report.
It seemed like she’s testifying from that. So I missed it
as to the second police report. And this one. I don’t
think there was a request that her recollection be
refreshed. And if she is testifying from her statement, I
would object to that.
(Emphases added.) When Respondent asked Kauilani to clarify
whether she was testifying from memory, she responded, “I told
you this is a part of my life that I tried to forget. And yes,
I’m reading it from the paper.” Respondent later conceded that
Kauilani’s testimony concerning the October 1994 incident was
erroneously admitted into evidence. Keohokapu, 2011 WL 4426889,
at *5.
4.
Respondent then requested Kauilani to review a police
report from July 13, 1996 involving another incident of domestic
violence. Kauilani related that she had written the report the
day after the incident, and that her signature was on both pages
of the report. Respondent inquired whether the report helped
Kauilani remember the events of July 13, 1996. Petitioner’s
counsel objected, arguing that foundation was lacking for
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admitting the statement in evidence. The court overruled the
objection. Respondent asked Kauilani whether she remembered
Petitioner head-butting and pulling her hair on July 13, 1996.
Kauilani replied she did not because “this is 2009.”
Respondent then attempted to move the entire report
into evidence, and the court asked both counsel to approach the
bench. Petitioner’s counsel objected, contending that the entire
document should not be admitted into evidence and that Respondent
had not laid a proper foundation for Kauilani’s testimony. The
court overruled the objection, concluding that Respondent “laid
sufficient foundation for past recollection recorded. And under
the rule you read it into evidence.”
Respondent then sought to read Kauilani’s entire
statement into evidence, but the court only allowed Respondent to
read those paragraphs on which Kauilani had been questioned.
Petitioner’s counsel renewed his objection. The court permitted
Respondent to read the following statement into evidence, over
Petitioner’s objection:
As to number 4, what happened, pulled my hair, hit me,
head butt, bite, tear marks, he did this all because someone
told him that I was seeing someone else and that I have
someone’s jacket.
Number 5, why did it happen, because he told me that
I’m driving -- I’m sorry. I’m driving him crazy, only last
night he found out my number. I have a black and blue right
eye, hardly here [sic] out of my right ear. A bit shoulder,
and tear marks on my chest from [Petitioner], who is my ex-
boyfriend, who I used to live with for one and a half years.
I’m willing to prosecute.
Respondent then started to ask Kauilani about the
October 20, 1994 report that had been discussed earlier but then
withdrew the question.
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5.
Additionally, Respondent introduced evidence that on
March 11, 2008, Kauilani obtained a temporary restraining order
(TRO) against Petitioner because sometime in January 2008, and
again on March 9, 2008, Petitioner allegedly abused Kauilani by
cutting her eye, striking her, pulling her hair, choking her, and
head-butting her. The TRO was granted and remained in effect
until June 9, 2008. In April 2008, Kauilani filed a report
claiming Petitioner violated the TRO. Kauilani later testified
that she sought the TRO because Petitioner was “run[ning] around
with girls” and she wanted to get her car back from Petitioner,
and not because she needed protection. Kauilani also reported
that she had written a letter to the court asking for the TRO to
be “dropped,” and that she believed in April that the TRO was no
longer in force.
6.
Respondent also called Gregory Balga to testify about
an incident that took place on October 23, 1993. Balga testified
that he had a drinking problem, was drinking heavily on the night
in question, and, thus, could not remember whether Petitioner had
visited his home on the night in question. Respondent showed
Balga the police report he filed. Balga identified his writing,
signature, and the date and time on the document, but indicated
he still could not recall what had happened. Petitioner objected
when Respondent attempted to “move [the report] for
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identification.” Respondent answered that it was attempting to
refresh Balga’s recollection, but, since Balga could not remember
the incident, it would attempt to lay the foundation for “past
recollection recorded.”
Respondent inquired of Balga again whether his
handwriting was on the report. Balga replied, “I don’t remember
writing it. I don’t remember an officer there. I don’t remember
that. Like I said, I could have been drinking.” Balga admitted
that his name, address, social security number, age, date of
birth, and phone number were on the report. Petitioner renewed
his objection to Balga’s testimony, but the court overruled it
and allowed Respondent to read the following to the jury from the
report:
Number 4, what happened. [Petitioner] was accusing me
for fooling around with his chick . . . . We both were
talking downstairs and he kicked me in the face and I ran
upstairs and he forced [sic] way -- his way into the house
and hit my sister trying to get into the house.
After hitting my sister I tried to force him out and
close the door, but [Petitioner] kept trying to push the
door open . . . . At no time did I give Glenn permission to
enter my house . . . .
7.
In addition to this testimony, Respondent called
Honolulu Police Department (HPD) Officer Jon Yoshida. Officer
Yoshida testified that on December 17, 1994, he arrested
Petitioner for Robbery in the Second Degree, and that Petitioner
had injured the complaining witness’s mouth, jaw area, and chin
area, and had bitten the witness’s right triceps.
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8.
HPD Officer Michael Wong testified for Respondent that
on June 9, 2008, he had been assigned to arrest Petitioner in
connection with a homicide case.9 When he reached Petitioner’s
home, Officer Wong saw a female exiting the house, entering a
car, and attempting to reverse the vehicle. Officer Wong related
that he saw Petitioner “jump on to the front hood of the car[,]”
break off one of the car’s windshield wipers, and attempt to
break the windshield with his fist.
9.
Respondent called Norma Ueno, supervisor of the
criminal history records unit of the Hawai#i Criminal Justice Data
Center. Ueno identified Respondent’s Exhibit 10 as Petitioner’s
criminal history record. A redacted copy of the exhibit, Exhibit
10A, showing Petitioner’s twenty convictions was admitted into
evidence over Petitioner’s objection. Petitioner does not appear
to make any arguments in his Application concerning the admission
of his criminal history.
10.
Respondent also introduced the testimony of police
fingerprint examiner Judy Tamashiro, who compared Petitioner’s
fingerprints in this case against cases involving Burglary in the
First Degree, Robbery in the Second Degree, Promoting a Dangerous
Drug in the Third Degree, and Unlawful Use of Drug Paraphernalia,
9
It appears from Officer Wong’s testimony that the homicide case
referred to was this case.
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and determined that the fingerprints in all of those cases
belonged to Petitioner. The court took judicial notice that all
four offenses were felonies.
11.
Respondent called HPD Sergeant Stuart Yano, who
testified that on December 6, 2002, he executed a search warrant
of Petitioner’s home and found a pipe used for ingesting crystal
methamphetamine and six bags of a crystalline substance
resembling crystal methamphetamine.
12.
Following Respondent’s evidence, Petitioner moved for a
judgment of acquittal on the ground that Respondent did not prove
Petitioner was a persistent offender whose extended incarceration
was necessary for the protection of the public. The court denied
the motion. Petitioner then offered testimony from his mother,
sister, and father. Over Respondent’s objection,10 Petitioner’s
parents and sister testified that Petitioner’s father physically
abused Petitioner from ages six to seventeen. Petitioner’s
sister related that Petitioner’s father also abused Petitioner’s
mother. Petitioner’s mother reported that Petitioner had
expressed regret.
10
Respondent objected that the testimony was not relevant because
the question before the jury was whether Petitioner needed to be subjected to
an extended sentence. Petitioner responded that it was important for the jury
“to understand the source of any of the criminal . . . problems [Petitioner]
face[d].” The court overruled the objection.
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E.
During the settlement of jury instructions, Petitioner
objected to two instructions, Court’s Jury Instruction Nos. 2 and
4, concerning parole.11 Petitioner also objected to Exhibit 6,
which contained minutes generated by the Hawai#i Paroling
Authority and Exhibit 10A which showed parole violations and
criminal convictions.12 The court overruled the objections.
The court instructed the jury that for the offense of
Manslaughter, Petitioner could be “sentenced to a maximum
indeterminate term of imprisonment of [twenty] years.”13 The
court also explained to the jury that it was to answer special
11
Jury instruction no. 2 stated:
When a person has been sentenced to a term of imprisonment,
the Hawai#i Paroling Authority shall, as soon as practicable
but no later than six months after commitment to the custody
of the Director of the Department of Public Safety hold a
hearing, and on the basis of the hearing make an order
fixing the minimum term of imprisonment to be served before
the prisoner shall become eligible for parole.
Jury instruction no. 4 stated:
The following provision of law relate [sic] to “parole”, as
defined in these instructions:
No parole shall be granted unless it appears to the Hawai#i
Paroling Authority that there is a reasonable probability
that the prisoner concerned will live and remain at liberty
without violating the law and that the prisoner’s release is
not incompatible with the welfare and safety of society.
12
The minutes in Exhibit 6 contained short summaries of previous
actions by the Hawai#i Paroling Authority with respect to Petitioner’s parole
violations. Exhibit 10A showed Petitioner had committed several parole
violations and that the disposition of the cases was revocation of parole.
Exhibit 10A also showed Petitioner’s criminal convictions.
13
The jury was also charged in jury instruction No. 7 that
[f]or the offense of Manslaughter, Defendant Glenn
Keohokapu, Jr., may be subject to a maximum indeterminate
term of imprisonment of twenty years.
Petitioner did not object to this instruction.
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interrogatories regarding an extended term of imprisonment, which
would “extend the maximum length of [Petitioner’s] imprisonment
for the offense of Manslaughter from twenty years of
incarceration to life with the possibility of parole.” Over
Petitioner’s prior objection, the court orally gave the following
instructions14:
THE COURT: An indeterminate term of imprisonment is a
sentence to imprisonment for the maximum period defined by
law subject to termination at any time after service of the
minimum term of imprisonment determined by the Hawai#i
Paroling Authority.
When a person has been sentenced to a term of
imprisonment, the Hawai#i Paroling Authority shall as soon as
practicable but no later than six months after commitment to
the custody of the Director of the Department of Public
Safety hold a hearing and on the basis of the hearing make
an order fixing the minimum term of imprisonment to be
served before the prisoner shall become eligible for parole.
The Paroling Authority in its discretion may in any
particular case and at any time impose a special condition
that the prisoner will not be considered for parole unless
and until the prisoner has a record of continuance [sic]
exemplary behavior.
After sixty days[’] notice to the prosecuting attorney
the Authority in its discretion may reduce the minimum term
fixed by the order.
Parole means a conditional release of a prisoner who
has served part of the term for which he was sentenced to
14
The oral charge incorporated jury instructions Nos. 2, 3, 4, 5,
and 6. Petitioner did not object to jury instructions Nos. 3, 5, or 6.
Jury instruction no. 3 provided:
Parole means a conditional release of a prisoner who has
served part of the term for which he was sentenced to
prison.
Jury instruction no. 5 provided:
You must not discuss or consider the subject of any action
that the Hawai#i Paroling Authority may or may not take in
your deliberations of the facts at issue in this hearing.
Jury instruction no. 6 provided:
An “indeterminate term of imprisonment” is a sentence to
imprisonment for the maximum period defined by law subject
to termination at any time after service of the minimum term
of imprisonment determined by the Hawai#i Paroling
Authority.
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prison.
The following provision of law relates to parole as
defined in these instructions.
No parole shall be granted unless it appears to the
Hawai#i Paroling Authority that there is a reasonable
probability that the prisoner concerned will live and remain
at liberty without violating the law and that the prisoner’s
release is not incompatible with the welfare and safety of
society.
You must not discuss or consider the subject of any
action that the Hawai#i Paroling Authority may or may not
take in your deliberations of the facts at issue in this
hearing.
(Emphases added.)
The jury found, pursuant to special interrogatory no.
1, that Respondent proved beyond a reasonable doubt that
Petitioner was a persistent offender in that he had committed two
or more felonies at different times when he was [eighteen] years
of age or older.15 The jury also determined in response to
special interrogatory no. 2 that Respondent proved beyond a
reasonable doubt that it was “necessary for the protection of the
public to subject [Petitioner] to an extended term of
imprisonment, which would extend the maximum length of his
imprisonment for the offense of Manslaughter from twenty years of
incarceration to life with the possibility of parole[].”16
15
Special interrogatory no. 1 stated as follows:
Has the prosecution proven beyond a reasonable doubt that
the Defendant GLENN KEOHOKAPU, JR., is a persistent offender
in that he has previously been convicted of two or more
felonies committed at different times when he was eighteen
years of age or older? (Your answer must be unanimous).
16
Special interrogatory no. 2 stated as follows:
Has the prosecution proven beyond a reasonable doubt that it
is necessary for the protection of the public to subject the
Defendant, GLENN KEOHOKAPU, JR., to an extended term of
imprisonment, which would extend the maximum length of his
imprisonment for the offense of Manslaughter from twenty
(continued...)
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II.
Petitioner appealed, and relevant here, argued to the
ICA that the court erred (1) during jury selection (a) in failing
to strike the jurors who had become acquainted with the case
through the media because prejudice could be presumed from the
pretrial saturation of publicity about the crime; (b) in reading
to the entire venire the publicity statement which stated that
the media had referred to Wilcox as a “Good Samaritan”; and (c)
in formulating the publicity statement in Petitioner’s absence,
in violation of his right to be present during all stages at
trial; and (2) during the sentencing phase (a) in admitting into
evidence testimony under the “present recollection refreshed” and
“past recollection recorded” exceptions to the hearsay rule; and
(b) in instructing the jury on parole and the role of the Hawai#i
Paroling Authority. Keohokapu, 2011 WL 4426889 at *1.
III.
Regarding Petitioner’s jury selection argument, the ICA
held that nothing in the record suggested that media reports
“saturated” the public to an extent warranting a presumption of
prejudice. Keohokapu, 2011 WL 4426889 at *2. The ICA also
disagreed with Petitioner’s contention that the entire jury pool
was tainted by the court’s reading of the pretrial publicity
16
(...continued)
years of incarceration to life with the possibility of
parole? (Your answer to this question must be unanimous.)
(Emphasis added.)
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statement. Id. at *3. As to Petitioner’s contention that the
formulation of the publicity statement violated his right to be
present during all stages of trial, the ICA concluded that
Petitioner had waived the argument by not raising it before the
court. Id.
With respect to Petitioner’s contention that the court
erred during the sentencing hearing in admitting Kauilani’s
statements from April 3, 1996, July 13, 1996, and October 1994,
the ICA concluded that Kauilani’s “testimony regarding the 1996
statements to police were admissible” but that the October 1994
statement should have been excluded.17 Id. at *3-4. The ICA also
agreed with Petitioner that Balga’s statement should not have
been admitted. Id. Nevertheless, the ICA concluded that
reversal was not warranted because the errors were harmless. Id.
at *6.
Finally, with respect to Petitioner’s argument that the
court erred in giving jury instructions nos. 2 and 4 about
parole, the ICA reasoned that the “instructions accurately state
the procedures for determining the minimum term of imprisonment.”
Id. at *7. Further the ICA stated that jury instruction no. 2
did not tell the jury how much time Petitioner had to serve
before becoming eligible for parole. Id. Lastly, the ICA noted
that the court had instructed the jury in jury instruction no. 5
17
The ICA accepted Respondent’s confession of error with respect to
the October 1994 statement. Neither party disputes that Kauilani’s October
1994 statement was inadmissible, and, thus, we will not disturb the ICA’s
conclusion.
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that it could not discuss or consider in its deliberations the
subject of any action that the Hawai#i Paroling Authority might or
might not take. Id.
IV.
Petitioner lists the following questions in his
Application:
1. Whether the ICA gravely erred by holding that [Petitioner]
received a fair trial by an impartial jury where at least five of
the seated jurors recalled pretrial publicity describing the
decedent as a “Good Samaritan” and the trial court read a
publicity statement indicating that the media had described the
decedent as a “Good Samaritan”?
2. Whether the ICA gravely erred by determining that either
no evidentiary errors occurred during the sentencing phase
or that the errors which occurred were harmless?
3. Whether the ICA gravely erred by determining that no
error occurred when the trial court instructed the jury on
the irrelevant issues of parole and the role of the Hawai#i
Paroling Authority during the extended term phase of trial?
Respondent did not file a Response to the Application
(Response).
V.
Before this court, as to the jury selection process,
Petitioner argues that (1) the ICA erred when it held that
Petitioner had waived his right to be present during the
formulation of the publicity statement because (a) defendants
have a constitutional right to be present at any stage of a trial
where their substantial rights are affected; (b) Petitioner’s
substantial rights were affected, meaning that the issue could be
raised on appeal; (c) it would appear disingenuous to require
Petitioner to object when he was not present during the
formulation of the statement and when the court did not make a
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record of the formulation or discussion of the statement; and (d)
Petitioner was actually prejudiced by the statement that Wilcox
had been portrayed as a Good Samaritan because Petitioner’s
defense was self-defense, and because the Good Samaritan
statement would not have been admissible at trial; and (2) the
ICA erred in concluding that the court was able to identify and
dismiss biased jurors by conducting a thorough voir dire.
As to the evidence admitted during the sentencing
phase, Petitioner argues that the ICA erred in (1) holding that
since the defense did not object when Kauilani stated that her
memory of the April 1996 incident was refreshed, the admission of
her testimony was not a ground for reversal; (2) in deciding that
Kauilani’s July 13, 1996 statement was admissible as a past
recollection recorded; (3) in concluding that the admissions of
Kauilani’s October 1994 statement and Balga’s October 1993
statement were harmless. Petitioner maintains that these were
“aggravating factors,” and that, during the sentencing phase, the
erroneous admission of such factors cannot be harmless.
Lastly, Petitioner argues that the ICA erred when it
held that it was not error for the court to instruct the jury
concerning parole in jury instructions nos. 2 and 4. Petitioner
contends that (1) the ICA never addressed the issue of whether
the jury instructions were irrelevant; (2) even if the
instructions accurately stated the law, irrelevant instructions
could only have misled and confused the jury; (3) cases from
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other jurisdictions hold that it is reversible error to instruct
the jury concerning parole.
VI.
Both the Hawai#i and the federal constitutions guarantee
a criminal defendant the right to a trial by a jury
“substantially free from the biasing effects of inflammatory
pre-trial publicity.” Pauline, 100 Hawai#i 356, 366, 60 P.3d 306,
316 (2002) (internal citation and quotation marks omitted). Once
the accused claims that his or her right to a fair trial has been
jeopardized by external influences, such as publicity, on the
jury, the court must determine whether the influences rise to the
level of being substantially prejudicial. State v. Okumura, 78
Hawai#i 383, 394, 894 P.2d 80, 91 (1995). “If it does not rise to
such a level, the trial court is under no duty to interrogate the
jury . . . . And whether it does rise to the level of substantial
prejudice . . . is ordinarily a question ‘committed to the trial
court’s discretion . . . .’” State v. Williamson, 72 Haw. 97,
102, 807 P.2d 593, 596 (1991) (quoting State v. Keliiholokai, 58
Haw. 356, 359, 569 P.2d 891, 895 (1977)).
Where, however, the court determines that outside
influences are of a nature which could substantially prejudice
the defendant’s right to a fair trial, a rebuttable presumption
of prejudice arises. Williamson, 72 Haw. at 102, 807 P.2d at
596. The trial judge is then duty-bound to investigate the
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totality of circumstances to determine the impact of the outside
influence on the jury. Id.
A.
As to Petitioner’s first argument, the court apparently
used the publicity statement in conjunction with questions of the
jurors concerning media accounts of the incident and the jurors’
ability to be fair.18 Petitioner is correct that “‘[i]t is well
settled that an accused has a fundamental right to be present at
each critical stage of the criminal proceeding.’” State v.
Walsh, 125 Hawai#i 271, 285, 260 P.3d 350, 364 (2011) (citation
omitted). But there is no authority for the proposition, as
Petitioner suggests, that a defendant has a right to be present
during the “formulation” of the court’s questions.
Further, Petitioner was present when the court read the
publicity statement to the prospective jurors. Petitioner’s
alleged injury (the tainting of the jury) stems from the court’s
reading of the publicity statement to the jurors. Thus,
Petitioner was present during the “stage of trial” in which his
18
Because the court conducted further inquiry, the ICA inferred that
the court had concluded that the media reports were substantially prejudicial,
but not so saturating to warrant a presumption of prejudice. Keohokapu, 2011
WL 4426889, at *2. This inference, however, is not necessarily valid.
Williamson provides that if the court concludes that outside influences are
not substantially prejudicial, it is under no duty to interrogate the jury.
72 Haw. at 102, 807 P.2d at 596. Similarly, if the court finds substantial
prejudice, then it must interrogate the jury. Id. However, Williamson does
not prohibit a court from deciding, as a precautionary measure, to question
the jurors, even if the court has not concluded that there is substantial
prejudice to the defendant. Absent a ruling from the court on the question of
prejudice, it would seem incorrect for the ICA to infer that the court
implicitly determined that there was substantial prejudice to the Petitioner.
In any event, Petitioner does not appear to rely on the court’s “implicit”
finding of substantial prejudice in his Application.
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“substantial rights” could have been “adversely affected.” See
Walsh, 125 Hawai#i at 285, 260 P.3d at 364.
When the court read the publicity statement to the
prospective jurors Petitioner could have objected. He did not.
It was therefore not “disingenuous,” as Petitioner claims, for
the ICA to conclude that Petitioner failed to object to the
court’s use of the publicity statement. For the same reason, it
was not error for the ICA to conclude that Petitioner forfeited
his objection concerning the publicity statement.
B.
Assuming arguendo that Petitioner did not forfeit his
objection to the publicity statement, Petitioner was not
substantially prejudiced by the statement. In Pauline, this
court distinguished between presumed and actual prejudice:
A defendant need only demonstrate one of two different types
of prejudice in support of a motion to transfer venue:
presumed or actual. Prejudice is presumed when the record
demonstrates that the community where the trial was held was
saturated with prejudicial and inflammatory media publicity
about the crime. Prejudice is rarely presumed because
“saturation” defines conditions found only in extreme
situations. To establish actual prejudice, the defendant
must demonstrate that the jurors exhibited actual partiality
or hostility that could not be laid aside.
100 Hawai#i at 315-16, 60 P.3d at 365-66 (quoting Ainsworth v.
Calderon, 138 F.3d 787, 795 (9th Cir. 1998)) (emphasis added).
Although Petitioner does not distinguish between the two forms of
prejudice, he appears to be arguing that both “presumed” and
“actual” prejudice are satisfied.
1.
With respect to presumed prejudice, this court has
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explained that there are three factors to consider in determining
whether prejudice should be presumed:
Among the factors to be considered in a presumed prejudice
argument is whether there was a barrage of inflammatory
publicity immediately prior to trial amounting to a huge . .
. wave of public passion. An additional factor is whether
the media accounts were primarily factual, as such accounts
tend to be less prejudicial than inflammatory editorials or
cartoons. A final factor is whether the media accounts
contained inflammatory, prejudicial information that was not
admissible at trial.
Pauline, 100 Hawai#i at 316, 60 P.3d at 366 (quoting Ainsworth,
138 F.3d at 795 (citations and internal quotation marks omitted))
(emphases added). In addition to the three Ainsworth factors,
this court examines the jury selection process to determine
whether “the trial judge took sufficient steps to shield the
proceedings from the prejudicial effect of the publicity.”
Pauline, 100 Hawai#i at 317, 60 P.3d at 367.
Petitioner is correct that it would have been better
for the court to not give the publicity statement. By reading
the statement to the venires, the court alerted even those jurors
who were not aware of the publicity or who might have forgotten
about it that the incident had been in the news and that some
accounts portrayed Wilcox in a positive light. See Okumura, 78
Hawai#i at 394, 894 P.2d at 91 (explaining that questioning of
juror about media accounts in front of other potential jurors
risked tainting the jury pool). However, this does not mean that
there was presumed or actual prejudice to Petitioner.
Pauline explained that trial courts should presume
prejudice “only in ‘extreme situations.’” 100 Hawai#i at 316, 60
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P.3d at 366 (quoting State v. Kauhi, 86 Hawai#i 195, 200, 948 P.2d
1036, 1041 (1997)). This court clarified that “extensive
knowledge in the community of either the crimes or the putative
criminal is not sufficient by itself to render a trial
constitutionally unfair.” Id. (quoting State v. Graham, 70 Haw.
627, 636, 780 P.2d 1103, 1109 (1989) (quoting Dobbert v. Florida,
432 U.S. 282, 303, (1977))). For, “[i]f the mere opportunity for
prejudice or corruption is to raise a presumption that they
exist, it will be hard to maintain [a] jury trial under the
conditions of the present day.” Id. (internal citation and
quotation marks omitted).
Here, the court’s reading of the publicity statement is
not an “extreme” situation that warrants concluding that
prejudice should be presumed. As to the first Ainsworth factor,
the court’s publicity statement does not amount to or suggest
that there was a “huge wave of public passion” regarding Wilcox’s
death. Nor, as Petitioner suggests, did the court put its
imprimatur on the characterization of Wilcox as a Good Samaritan.
The court’s statement was descriptive, stating only that it had
been reported in the media that Wilcox had intervened in an
argument between Petitioner and his wife and that Wilcox had been
“described” as a Good Samaritan. These statements do not evince
strong public passion.
With regard to the second Ainsworth factor (whether the
accounts were primarily factual), the court’s single-paragraph
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publicity statement was primarily factual. The court mentioned
the date and location of the alleged offense, that Petitioner
allegedly stabbed Wilcox after he intervened in an argument
between Petitioner and his wife, and that both Petitioner and
Wilcox had consumed alcohol. The only “non-factual” statement
made by the court was that Wilcox had been described as a Good
Samaritan. Thus, it is unlikely that the publicity statement
prejudiced Petitioner.
As to the third Ainsworth factor (whether media
accounts contained inflammatory information inadmissible at
trial), again, the only statement that would not have been
admissible at trial was that Wilcox had been described as a Good
Samaritan. A single statement to that effect, however, does not
appear to be the kind of inflammatory statement that would render
it impossible for jurors to keep an open mind.
In Okumura, this court considered whether the
questioning of one juror before the rest of the jurors regarding
certain news reports substantially prejudiced the defendants. 78
Hawai#i at 390, 394-96, 894 P.2d at 87, 91-93. The defendants in
the case had been accused of two burglaries, and the juror had
seen a newscast that included an interview of a person who
alleged that he had been burglarized by the defendants. Id. The
burglary in the newscast had not been charged in the case. Id.
When the trial court questioned the juror about the
newscast, the juror stated that she might not be able to remain
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impartial because the uncharged burglary had taken place recently
and its occurrence suggested to her that the defendants had
committed the charged burglaries. Id. at 394-96, 894 P.2d at 91-
93. This court concluded that the defendants had not been
substantially prejudiced on account of the other jurors having
heard this exchange because “no facts of the other alleged
burglary were given, how [defendants] were implicated was not
stated, and [the juror’s] opinion . . . was entirely equivocal.”
Id. at 396, 894 P.2d at 93. Moreover, the record of the voir
dire indicated that the jury selected could consider the case
impartially. Id.
Here, similarly, although the court risked tainting the
jury by reading the publicity statement to all of the prospective
jurors, it does not appear that Petitioner was prejudiced. In
fact, the suggestion in Okumura that the defendants had committed
the same crime on a previous occasion as the crime that was being
charged had a greater potential for prejudice than the court’s
statement here, which was by and large a factual description of
the offense charged. The court also expressed no opinion as to
the correctness of the media reports. Finally, as discussed
below, the court conducted extensive voir dire of those jurors
who indicated a familiarity with media reports about the incident
and struck those jurors who said that they could not be
impartial. Consequently, Petitioner was not substantially
prejudiced by the publicity statement.
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2.
Petitioner also argues that although the court engaged
in a thorough voir dire, “[this] does not mean that the jury was
fair and impartial.” In order to show actual prejudice,
Petitioner “must demonstrate that the jurors exhibited actual
partiality or hostility that could not be laid aside.” Pauline,
100 Hawai#i at 315, 60 P.3d at 365. Petitioner, however, does not
point to anything in the proceedings that would suggest that any
of the jurors who sat on the jury exhibited any partiality or
hostility that could not be set aside. Petitioner’s only
contention appears to be that the court’s publicity statement was
prejudicial because five of the “eight or nine” jurors who
remembered the media reports also recalled that the decedent had
been described as a Good Samaritan. Petitioner does not explain,
however, how the fact that those jurors remembered the press
statements resulted in an inability to keep an open mind.
In fact, the five jurors referenced by Petitioner all
stated in response to questioning by the court and by Petitioner
that they could keep an open mind. Thus, in answer to the
question whether he remembered “the good samaritan feature [of
the news cast],” Juror 16 responded that he recalled that aspect
of the story but that he did not react strongly to it, and that
he would be able to set all of the publicity aside and make his
decision based on what he heard in court. The other four jurors
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testified similarly. Petitioner does not refer to anything in
the record that would suggest that any jurors who exhibited bias
were retained on the jury. Thus, the ICA did not err in
concluding that the court identified and dismissed those jurors
who exhibited bias by conducting a thorough voir dire.
VII.
Petitioner also contends that evidence was erroneously
admitted during the sentencing phase of the trial.
A.
Petitioner argues that the ICA erred in holding that he
forfeited his contention that Kauilani’s testimony concerning the
April 3, 1996 domestic violence incident was inadmissible.
According to Petitioner, Kauilani indicated that she was reading
from the police report, and since there is no indication that the
prosecution retrieved the police report, the testimony was
inadmissible.
1.
Although Petitioner suggests that the ICA erred in
concluding that the defense did not object, the record does not
reveal any objections on the part of the defense with respect to
Kauilani’s testimony concerning the April 1996 incident. Thus,
Petitioner is wrong to imply that he objected or that his failure
to object had no effect. Petitioner’s failure to object matters
to the extent that this court will only notice the alleged error
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if it is plain and if it affected Petitioner’s substantial
rights. Walsh, 125 Hawai#i at 284, 260 P.3d at 363.
2.
In any event, even assuming there was no forfeiture,
the ICA correctly concluded that Kauilani’s testimony was
admissible. “When used to refresh [a] witness’s present
recollection, a writing is solely employed to jog the memory of
the testifying witness.” State v. Dibenedetto, 80 Hawai#i 138,
144, 906 P.2d 624, 630 (App. 1995). If the writing does not
refresh the witness’s memory, the witness may not testify about
or read the contents of the writing into evidence unless the
writing is admitted under another rule of evidence. State v.
Espiritu, 117 Hawai#i 127, 137, 176 P.3d 885, 895 (2008).
Kauilani first testified that she could not remember
the April 1996 incident because it had taken place many years
earlier. However, when Respondent asked her whether her memory
was refreshed by the police report, Kauilani answered in the
affirmative.19 Respondent continued to ask questions of Kauilani,
and she testified that she and Respondent had argued on April 3,
1996, that Petitioner had slapped her on the face several times,
19
Subsequently, Kauilani stated, “On the paper it says he slapped
me[,]” in response to the question whether Petitioner had grabbed her to
prevent her from leaving the apartment. Thus, the record might suggest, at
least with respect to this question, that Kauilani was reading from the police
report. On the other hand, it is possible that Kauilani was just stating that
the report (which she had read previously when her recollection was being
refreshed) stated that Petitioner slapped her. In any event, Petitioner, did
not object.
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grabbed her neck, threatened to kill her, and locked her in the
apartment for about an hour. Petitioner implies that Kauilani
could not remember these incidents by noting that the record does
not reflect that Respondent ever took the police reports from
her. However, there is nothing in the record to indicate that
Kauilani’s memory was not refreshed with respect to these
allegations. As such, it was not improper for this testimony to
come in under the “past recollection refreshed” exception.
B.
Petitioner also maintains that the ICA erred in holding
that Kauilani’s July 13, 1996 statement was admissible as past
recollection recorded because Kauilani testified that her memory
was not awakened by the report and the report should therefore
not have been admitted as past recollection recorded. Hawai#i
Rules of Evidence (HRE) Rule 802.1(4) defines past recollection
recorded as follows:
(4) Past recollection recorded. A memorandum or record
concerning a matter about which the witness once had
knowledge but now has insufficient recollection to enable
the witness to testify fully and accurately, shown to have
been made or adopted by the witness when the matter was
fresh in the witness’ memory and to reflect that knowledge
correctly. If admitted, the memorandum or record may be
read into evidence but may not itself be received as an
exhibit unless offered by an adverse party.
The commentary to HRE Rule 802.1 provides in pertinent part,
“Paragraph (4): This paragraph is identical with Fed. R. Evid.
803(5), and it restates the common-law hearsay exception for
recorded recollection, see State v. Altergott, 57 H. 492, 559
P.2d 728 (1977).”
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As the ICA correctly reasoned, “[t]he commentary to
Rule 803(5) of the Federal Rules of Evidence (FRE)20 acknowledges
that ‘[n]o attempt is made in the exception to spell out the
method of establishing . . . accuracy of the record, leaving them
to be dealt with as the circumstances of the particular case
might indicate.’” Keohokapu, 2011 WL 4426889 at *4. (footnote,
brackets, and ellipsis in original). Commenting on FRE 803(5),
M. Graham, Federal Practice and Procedure: Evidence § 7046 at
486-91 (interim ed. 2006) states the following as to establishing
the accuracy of the record:
A record or memorandum is admissible as an exception to the
hearsay rule if the proponent can show that the witness once
had personal knowledge of the matter, that the record or
memorandum was prepared or adopted by him when it was fresh
in his memory, that it accurately reflected his knowledge,
and that the witness currently has insufficient recollection
to enable him to testify fully and accurately[.] The
witness may testify either that he remembers making an
accurate recording of the event in question which he now no
longer sufficiently remembers, that he routinely makes
accurate records of this kind, or, if the witness has
entirely forgotten the exact situation in which the
recording was made, that he is confident from the
circumstances that he would not have written or adopted such
description of the facts unless that description truly
described his observations at the time.
(Footnotes omitted.) (Emphases added.)
In State v. Sua, 92 Hawai#i 61, 75, 987 P.2d 959, 973
(1999), this court upheld the admission of a witness’s statement
as past recollection recorded where the witness, “wrote the
statement himself, indicating that he ‘once had knowledge’ of the
20
FRE Rule 803(5) is identical to HRE Rule 802.1(4). State v.
Bloss, 3 Haw. App. 274, 278, 649 P.2d 1176, 1179 (1982); see also commentary
to HRE Rule 802.1(4). When the HRE rule is identical to a FRE rule, “we may
refer to federal case law for assistance in construing our Rule.” State v.
Jhun, 83 Hawai#i 472, 478, 927 P.2d 1355, 1361 (1996) (brackets omitted).
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information contained therein[;] . . . signed the statement,
thereby adopting it as his own[;] . . . the statement was made
less than a month after the incident, [and] we may fairly infer
that it was given when the events were still ‘fresh [in the
witness’s] memory[]’[;] [and where the witness] testified at
trial that he was unable to remember writing the statement.” See
also Bloss, 3 Haw. App. at 278, 649 P.2d at 1179 (concluding that
past recollection was satisfied with respect to a traffic
citation where the witness “[made the citation] when the matter
was fresh in his memory, in fact contemporaneously, and [where
the citation’s contents] accurately reflected [the witness’s]
knowledge of the matter”).
In this case, as the ICA correctly concluded, although
Kauilani did not sign her July 13, 1996 statement under penalty
of perjury, the statement satisfies the criteria for the past
recollection recorded exception. Kauilani testified that she
remembered the incident on July 13, or at least “the part with
me,” but that she could not remember the specific allegations of
abuse that were described in the statement. She also testified
that the statement was in her writing, contained her signature,
and that she wrote the report the day following the incident.
Thus, Respondent established that Kauilani had personal knowledge
of the July 13 incident, that her statement was prepared when it
was fresh in her memory (the day after the incident), that it
accurately reflected her knowledge, and that she currently had
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insufficient recollection to testify fully and accurately. See
Sua, 92 Hawai#i at 75, 987 P.2d at 973. The ICA was therefore
correct that the July 13 statement was admissible as past
recollection recorded.
Petitioner is wrong that Kauilani’s testimony
concerning her July 13 statement was not admissible because
Kauilani testified that her memory was not awakened by the
report. To the contrary, to satisfy the past recollection
recorded exception, the witness must have “once had knowledge,”
but must “now ha[ve] insufficient recollection to enable the
witness to testify fully and accurately.” HRE Rule 802.1(4).
Had Kauilani testified that she could recall the incidents in her
statement, as Petitioner contends was necessary, her statement
would not have been admissible under the exception of past
recollection recorded. Therefore, the ICA did not err on account
of the statement’s failure to reawaken Kauilani’s memory. Cf.
Espiritu, 117 Hawai#i at 136, 176 P.3d at 894 (concluding that
police report did not qualify under past recollection recorded
because the report was not shown to have been made by the witness
when the matter was fresh in the witness’s memory).
VIII.
The ICA also concluded that it was error for the court
to admit Balga’s testimony because Respondent failed to establish
the foundation that Balga made his statement when the matter was
fresh in his memory and reflected his knowledge correctly. See
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Keohokapu, 2011 WL 4426889, at *5. Petitioner does not quarrel
with that conclusion and Respondent did not file a writ
application or a response to Petitioner’s Application.21
Although Balga acknowledged that the signature and
handwriting on the report were his, and it appears that the
statement was made shortly after the incident, Balga also stated
that he did not remember making the report because he had “been
involved in alcohol and drugs for a long time . . . [and] just
got sober not even a year ago.” He also testified that he could
not remember an officer being in his apartment on the night of
the incident. Because of his drinking problem, Balga could not
recall making an accurate recording of the event and did not
express any confidence in the accuracy of the statement
attributed to him. As the ICA correctly found, Balga’s alcohol
and drug use cast doubt on the reliability of his statement, and
there was no other evidence that buttressed Balga’s account. See
Keohokapu, 2011 WL 4426889, at *5. As such, Respondent did not
establish that Balga once had personal knowledge of the matter
described in the statement or that the statement accurately
reflected Balga’s knowledge at the time.
21
Consequently, the correctness of the ICA’s ruling is not
implicated in the instant writ. See State v. Eid, --- P.3d ---, No. SCWC-
29587, 2012 WL 503231, at *19 (Haw. Jan. 26, 2012) (Acoba, J., concurring)
(noting that because Respondent neither filed an application for writ of
certiorari from the judgment of the ICA nor a response to Petitioner’s
application the issues raised on appeal by Respondent were not implicated in
the writ). However, because at oral argument Respondent contested the ICA’s
ruling on this issue, it is considered here in order to confirm and clarify
the ICA’s conclusion.
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Respondent nevertheless maintains that United States v.
Porter, 986 F.2d 1014, 1016 (6th Cir. 1993), supports its
position. In Porter, the defendant’s girlfriend made a written
statement to the police claiming the defendant ordered her to
dispose of cocaine and cash, but, at the defendant’s trial,
recanted, claiming that she could not remember making the
statement because she was confused and on drugs at the time the
statement was made. Id. The statement was read into evidence as
past recollection recorded. Id. The Sixth Circuit Court of
Appeals held that it was not error to admit the statement.
Porter is distinguishable from this case. The Sixth
Circuit explained that the district court made a “very careful”
analysis of the statements and found sufficient indicia of
trustworthiness. Id. at 1017. As in this case, the statement of
the witness in Porter contained the witness’s signature and was
apparently made shortly after the incident. Id. However, in
Porter, unlike in this case, there were additional factors that
established the trustworthiness of the statement. Id. The
witness in Porter (1) admitted to making the statement; (2)
signed the statement on each of its five pages; (3) changed the
wording and initialed the changes eleven times; and, (4) made the
statement under penalty of perjury. Id. The statement also
contained considerable detail that was internally consistent, and
it was consistent with other uncontradicted evidence that had
already been admitted. Id. Further, the district court
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determined that the defendant’s girlfriend was being evasive at
trial and was recanting out of her recently professed desire to
marry the defendant or out of fear of the defendant. Id. No
analogous factors were found by the court in this case. Porter,
therefore, does not assist Respondent. The ICA was thus correct
in concluding that Balga’s statement was admitted in error.
IX.
Petitioner also maintains that the ICA was wrong in
holding that there was no error in the court’s jury instructions
referencing parole. Relying on precedent from other
jurisdictions, Petitioner asserts that the court’s instruction to
the jury during the sentencing phase concerning the possibility
that Petitioner might be paroled was likely to mislead and
confuse the jury by inviting it to consider irrelevant matters,
even if the instruction was technically correct.
A.
Under Apprendi v. New Jersey, 530 U.S. 466 (2000), and
its progeny, the trier of fact must find beyond a reasonable
doubt any fact that increases the penalty for a crime beyond the
prescribed statutory maximum. State v. Maugaotega, 115 Hawai#i
432, 442, 168 P.3d 562, 572 (2007) (reversing prior case law that
adopted the then-majority view and explaining that any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to the jury and proved beyond a
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reasonable doubt); State v. Jess, 117 Hawai#i 381, 394, 184 P.3d
133, 146 (2008) (“[I]n light of Cunningham, except for prior
convictions, multiple convictions, and admissions, ‘any fact,
however labeled, that serves as a basis for an extended term
sentence must be proved beyond a reasonable doubt to the trier of
fact.’”) (citation omitted) (emphasis in original). The
“statutory maximum” discussed in Apprendi is the maximum sentence
a judge could impose based solely on the facts reflected in the
jury verdict or admitted by the defendant. Blakely v.
Washington, 542 U.S. 296, 303-04 (2004).
Since Apprendi only requires that juries find the facts
that increase a defendant’s sentence beyond the statutory
maximum, in general, instructions about the length of the ensuing
sentence or about the possibility that a defendant’s sentence
might be reduced through parole or commutation would be
irrelevant. Thus, for example, under HRS § 706-656(2), the
sentence for a person convicted of murder in the second degree is
life with the possibility of parole:
(2) Except as provided in section 706-657, pertaining to
enhanced sentence for second degree murder, persons
convicted of second degree murder and attempted second
degree murder shall be sentenced to life imprisonment with
possibility of parole. . . .
HRS § 706-656(2) (Emphasis added.) However, the court may
increase the sentence of a person convicted of murder in the
second degree to life without the possibility of parole under HRS
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§ 706-657,22 whereby life without the possibility of parole may be
imposed if the jury finds as facts that the murder was especially
heinous, atrocious, or cruel. This statute has been construed in
a series of cases, the latest of which was State v. Peralto, 95
Hawai#i 1, 6, 18 P.3d 204, 208 (2001), in which this court held
that the phrase “especially heinous, atrocious, or cruel,
manifesting exceptional depravity” provided adequate notice of
the conduct prohibited. Peralto did not say that the jury should
be told that finding that the murder was especially heinous,
atrocious, or cruel would result in an enhanced sentence.
Peralto, however, stated that the sentencing jury should be
“instructed according to Young.” Peralto, 95 Hawai#i at 6, 18
P.3d at 208. State v. Young, 93 Hawai#i 224, 235, 999 P.2d 230,
241 (2000), in turn refers to State v. Janto, 92 Hawai#i 19, 986
P.2d 306 (1999). Janto described the bifurcated proceedings that
22
HRS § 706-657 provides:
§ 706-657. Enhanced sentence for second degree murder
The court may sentence a person who has been convicted of
murder in the second degree to life imprisonment without
possibility of parole under section 706-656 if the court
finds that the murder was especially heinous, atrocious, or
cruel, manifesting exceptional depravity or that the person
was previously convicted of the offense of murder in the
first degree or murder in the second degree in this State or
was previously convicted in another jurisdiction of an
offense that would constitute murder in the first degree or
murder in the second degree in this State. As used in this
section, the phrase “especially heinous, atrocious, or
cruel, manifesting exceptional depravity” means a
conscienceless or pitiless crime which is unnecessarily
torturous to a victim and “previously convicted” means a
sentence imposed at the same time or a sentence previously
imposed which has not been set aside, reversed, or vacated.
(Emphasis added.)
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should be used for guilt and sentencing:
[T]he court shall instruct the jury that it must determine
whether the prosecution has proved, beyond a reasonable
doubt, that the murder was “especially heinous, atrocious,
or cruel.” The jury’s finding must be unanimous in order for
the court, in the exercise of its sound discretion, to
consider an enhanced sentence. The jury shall then conduct
its deliberations and submit its findings in response to a
special verdict form. If the jury does not come to a
unanimous decision that the murder was “especially heinous,
atrocious, or cruel” beyond a reasonable doubt, no enhanced
sentence shall be imposed. Pursuant to the language of HRS §
706–657, if the jury does find unanimously that the murder
was “especially heinous, atrocious, or cruel” beyond a
reasonable doubt, the court may, in its discretion, impose
an enhanced sentence.
Id. at 35, 986 P.2d at 322 (emphases added).
There is no suggestion in Janto that the jury should be
instructed that if it finds that a murder was committed in an
especially heinous, atrocious, or cruel manner, the maximum
length of the defendant’s sentence will increase from life with
the possibility of parole to life without the possibility of
parole. Likewise, there is no reason to so instruct the jury in
the instant case. Apprendi is satisfied as long as the jury
finds the relevant facts. Under HRS § 706-661, the jury does not
determine the sentence--that is the province of the court, which
may choose, in its discretion, not to impose an extended term.
X.
In general, instructions that apprise the jury of the
possibility of post-conviction actions of other government
agencies are unnecessary, and should be avoided.23 The California
23
The United States Supreme Court in Simmons v. South Carolina, 512
U.S. 154, 168-69 (1994) (plurality), held that a capital defendant has a
federal constitutional right to inform the sentencing jury about his or her
parole ineligibility “if the State rests its case for imposing the death
(continued...)
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Supreme Court in People v. Ramos, 689 P.2d 430, 441-44 (Cal.
1984)24, considered whether it was proper to instruct the jury on
the governor’s commutation power. In Ramos, the instruction at
issue informed the jury that the governor could commute a
sentence of life without parole, but did not inform the jury that
the governor could also commute a sentence of death. Id. at 438-
44. In addition to holding that the instruction was inaccurate,
the Ramos court held that even if the instruction were accurate,
it was inconsistent with the California Constitution. Id.
Ramos explained that instructions that permit a
sentencing jury to consider a variety of postconviction actions
by other governmental entities--parole, commutation, trial court
review--were improper. Id. Consideration of postconviction
actions was “inconsistent with the jury’s proper decision-making
23
(...continued)
penalty at least in part on the premise that the defendant will be dangerous
in the future, [because] the fact that the alternative sentence to death is
life without parole will necessarily undercut the State’s argument regarding
the threat the defendant poses to society.” Justice O’Connor, concurring in
the judgment, agreed that “[w]here the prosecution specifically relies on a
prediction of future dangerousness in asking for the death penalty, . . . the
elemental due process requirement that a defendant not be sentenced to death
‘on the basis of information which he had no opportunity to deny or explain’
[requires that the defendant be afforded an opportunity to introduce evidence
on this point].” Id. at 175 (O’Connor, J., concurring) (citation omitted)
(brackets and ellipsis in original). Justice O’Connor also stated that in a
state in which parole is available, “the Constitution does not require (or
preclude) jury consideration of that fact.” Id. at 176 (O’Connor, J.,
concurring). Simmons is not at issue here since this is not a capital case
(and Hawai#i has no death penalty) and this case does not involve Petitioner’s
ineligibility for parole.
24
Ramos is still the law in California. See People v. Beames, 153
P.3d 955, 972 (Cal. 2007) (“Generally, reference to the commutation power is
improper because it ‘invites the jury to consider matters that are both
totally speculative and that should not, in any event, influence the jury’s
determination.’”) (citing Ramos, 689 P.2d 430).
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role,” given the speculative nature of the inquiry the
instruction engenders, especially in light of the difficulty
involved in attempting to predict what a particular defendant
would be like in the future when parole or commutation may be
considered. Id. The Ramos court cited twenty-five other
jurisdictions that had reached similar conclusions, while
acknowledging that three jurisdictions had reached the opposite
result. Id. at 442 n.10.
Ramos provided two reasons for concluding that it is
improper to invite the jury to consider post-conviction actions.
First, an instruction on the possibility of commutation (or
parole) invites the jury to go beyond its proper role and attempt
to “preempt” the executive’s authority by imposing a sentence
that will at least minimize the opportunity for commutation (or
parole). Id. at 443. Second, such an instruction “may tend to
diminish the jury’s sense of responsibility for its action”
because “[k]nowledge on the part of the jury . . . may imply to a
jury that if it mistakenly convicts an innocent man, or
mistakenly fails to recommend mercy, the error may be corrected
by others.”25 Id.
25
On the other hand, other jurisdictions have held that instructions
on the meaning of parole are proper. One rationale is that a sentencing jury
(or a jury that recommends a sentence to the judge) ought to be fully aware of
the consequences of a sentence in order to make a determination as to which
sentence is appropriate. See Brewer v. State, 417 N.E.2d 889, 908-09 (Ind.
1981); State v. Grisby, 647 P.2d 6, 10 (Wash. 1982) (holding that although
juries should not be told about parole in general, when a statute requires the
jury to decide between a sentence that includes parole and one that does not,
the jury should be told about parole so that it can make an informed
decision). However, as explained infra, since the jury here does not
(continued...)
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XI.
In this case, HRS § 706-662 sets forth the facts the
jury must find in order to authorize the court to increase the
defendant’s sentence beyond the statutory maximum for the offense
of manslaughter. HRS § 706-662 was amended in 2007 “to ensure
that the procedures used to impose extended terms of imprisonment
comply with the requirements set forth by the United States
Supreme Court and Hawa[i#i] [S]upreme [C]ourt.”26 Commentary to
HRS § 706-662. The legislature intended “that these amendments
apply to any case that requires resentencing because of the
decisions in the Apprendi, Blakely, Booker, Cunningham, and
Maugaotega cases.” Id.
The statutory scheme contemplates that the court and
the jury will have distinct roles. The procedure for imposing
extended terms of imprisonment, located in HRS § 706-664 (Supp.
25
(...continued)
determine or recommend the length of the sentence, but “finds the facts
necessary for the imposition of an extended term of imprisonment,” HRS §
706-604, the Brewer rationale would not apply in this case.
26
The commentary to HRS § 706-662 states in relevant part:
After further consideration in light of the Cunningham case,
the Hawaii supreme court issued an opinion in State v.
Maugaotega, ___P.3d ___, 2007 WL 2823760, Oct. 1, 2007 (No.
26657), which held that statutes governing Hawaii's extended
term sentencing are unconstitutional because they require a
judge rather than a jury to find facts, other than those of
prior or concurrent convictions, necessary to enhance a
defendant's sentence beyond the ordinary or standard term
authorized by the jury’s verdict. . . . The purpose of this
Act is to amend Hawaii’s extended term sentencing statutes
to ensure that the procedures used to impose extended terms
of imprisonment comply with the requirements set forth by
the United States Supreme Court and Hawaii supreme court.
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2008),27 provides that if the jury (the trier of fact) finds the
facts that are necessary for the imposition of an extended term
sentence under HRS § 706-662, the court may impose an
indeterminate term of imprisonment as provided in HRS § 706-661.
HRS § 706-662 provides that a defendant “who has been convicted
of a felony may be subject to an extended term of imprisonment
under section 706-661 if it is proven beyond a reasonable doubt
that an extended term of imprisonment is necessary for the
protection of the public[,]” and if the defendant satisfies one
or more of the other criteria listed therein. The sentencing
terms or ranges are located in HRS § 706-661, which provides that
“the court may sentence a person who satisfies the criteria for
any of the categories set forth in section 706-662,” to an
extended term of imprisonment.28 (Emphasis added.)
27
HRS § 706-664 (Supp. 2008), which provides as follows:
§ 706-664. Procedure for imposing extended terms of
imprisonment. (1) Hearings to determine the grounds for
imposing extended terms of imprisonment may be initiated by
the prosecutor or by the court on its own motion. The court
shall not impose an extended term unless the ground therefor
has been established at a hearing after the conviction of
the defendant and written notice of the ground proposed was
given to the defendant pursuant to subsection (2). . . .
(2) Notice of intention to seek an extended term of
imprisonment under section 706-662 shall be given to the
defendant within thirty days of the defendant’s arraignment.
. . .
(3) If the jury, or the court if the defendant has waived
the right to a jury determination, finds that the facts
necessary for the imposition of an extended term of
imprisonment under section 706-662 have been proven beyond a
reasonable doubt, the court may impose an indeterminate term
of imprisonment as provided in section 706-661.
(Emphasis added.)
28
Although the court may sentence a person who satisfies the
criteria set forth in HRS § 706-661 to an extended term, “[w]hen ordering an
(continued...)
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The language of these statutes makes clear that jury is
responsible only for determining whether the prosecution has
proven beyond a reasonable doubt the facts necessary for the
imposition of an extended term of imprisonment. HRS § 706-664;
HRS § 706-662. The jury is not responsible for sentencing. That
responsibility lies with the court, which “may,” in its
discretion, then sentence the defendant to an extended term of
imprisonment as set forth in HRS § 706-661. In other words, even
if the jury finds the facts that would warrant an extended term
sentence, because HRS § 706-664 and HRS § 706-661 utilize the
word “may,” the court retains the discretion to not impose an
extended term sentence. See Gray v. Admin. Dir. of the Court, 84
Hawai#i 138, 149, 931 P.2d 580, 591 (1997) (“[T]he close proximity
of the contrasting verbs ‘may’ and ‘shall’ requires a
non-mandatory, i.e., a discretionary, construction of the term
‘may.’” ) (emphasis in original).
Nevertheless, for an extended term sentence to be
imposed under HRS § 706-662, the jury must find that a longer
term than the statutory maximum is necessary for the protection
of the public. Under the statute the jury in effect must
consider whether it is necessary, in order to protect the public,
to incarcerate the defendant for a longer term than that which
the defendant would otherwise serve. To make that determination,
28
(...continued)
extended term sentence, the court shall impose the maximum length of
imprisonment.” HRS § 706-661 (emphasis added).
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the jury must consider the maximum length of the two potential
terms in an appropriate manner.29
Manslaughter is a class A felony, see HRS § 707-702,
and is punishable by an “indeterminate term of imprisonment of
twenty years without the possibility of suspension of sentence or
probation.”30 HRS § 706-659. If, however, the criteria for any
of the categories set forth in HRS § 706-662 are satisfied, then
the court may impose an indeterminate term of life imprisonment
for a class A felony. HRS § 706-661. To determine whether an
extended term of imprisonment is necessary for the protection of
the public, however, the jury should not be instructed about the
procedures of the Hawai#i Paroling Authority, or that the sentence
includes the possibility of parole, for the reasons discussed
supra and infra.31 The jury can make an intelligent determination
29
The other factor Petitioner’s jury had to find was that Petitioner
had committed two or more felonies when he was eighteen years of age or older.
Petitioner does not contest that this factor was satisfied.
30
Parole, however, is allowed because the sentence is
“indeterminate.” See Commentary on HRS § 706-659 (“This bill effects this
purpose by denying suspension of sentence and probation as sentencing options
in class A convictions, but retains, through indeterminate sentence, the
option of parole by the paroling authority in order that unusual extenuating
circumstances can be given due consideration.”).
31
Thus, it was also improper to include references to parole and to
the indeterminate nature of the terms in jury instructions nos. 3, 5, 6 and 7
and in special interrogatory no. 2. Although Petitioner did not object to
these in his Application, he recognized during oral argument that he should
have objected. It would be inconsistent to conclude that jury instructions
nos. 2 and 4 were admitted in error, but to hold that references to parole in
jury instructions nos. 3, 5, 6, and 7 and in special interrogatory no. 2 were
proper. As discussed, infra, the error in admitting jury instructions no. 2
and 4 was not harmless. Hawai#i Rules of Penal Procedure (HRPP) Rule 52(b)
defines plain error as, “Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.”
We may “employ our HRPP Rule 52(b) discretion to correct errors that are not
harmless beyond a reasonable doubt and to disregard those errors that are
(continued...)
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as to whether it is necessary to incarcerate the defendant for an
extended term to protect the public if instructed that the term
will involve maximums of twenty years and life. Whether the
defendant will ever be paroled is pure speculation since parole
is dependent on circumstances in the future and is discretionary
with the Hawai#i Paroling Authority.
Since the jury is only responsible for finding the
facts that may result in an extended term sentence, there was no
basis for asking the jury whether the prosecution had proven that
it was necessary for the protection of the public to subject
Petitioner to an “extended term of imprisonment, which could
extend the maximum length of [Petitioner’s] imprisonment for the
offense of Manslaughter from twenty years of incarceration to
life with the possibility of parole.” Nor was it necessary to
give the jury instructions on how the Hawai#i Paroling Authority
sets the minimum prison term. The jury should instead have been
instructed and asked whether it was necessary to extend
Petitioner’s sentence from a possible twenty year sentence to a
possible life sentence for the protection of the public. Also,
an interrogatory phrased in this manner would have been accurate
31
(...continued)
harmless beyond a reasonable doubt.” State v. Nichols, 111 Hawai#i 327, 335,
141 P.3d 974, 982 (2006). “[T]he same standard of review is to be applied
both in cases in which a timely objection to a jury instruction was made and
those in which no timely objection was made.” Id. In this case, in order to
provide guidance to the court and to correct errors in the jury instructions
that were not harmless beyond a reasonable doubt, we employ our discretion and
notice that references to parole in jury instructions nos. 3, 5, 6, and 7 and
in special interrogatory no. 2 were as improper as jury instructions nos. 2
and 4.
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and at the same time would not direct the jury’s attention to the
potential issues of parole.32 This would be the appropriate way
for the jury to consider the maximum length of the two potential
terms.33
XII.
As expressed by the Ramos court and other courts, a
jury whose attention is drawn to the issue of parole might choose
the harsher sentence for fear that the defendant will not serve
the complete term of the more lenient sentence, or may not take
its task seriously because it believes mistakes in sentencing can
be corrected by the paroling agency. This would be improper and
would frustrate the statutory scheme. In Ramos, the court
explained that speculation as to parole was inappropriate, given
the difficulty involved in attempting to predict what a
particular defendant may be like in the future when parole or
commutation may be considered. 689 P.2d at 441-44. Here, the
32
The jury also heard references to parole because Exhibit 10A
showed that Petitioner had several parole violations, and Exhibit 6 contained
the parole minutes of the Hawai#i Paroling Authority regarding those
violations. Exhibit 6 and Exhibit 10A were admitted into evidence over
Petitioner’s objections. However, Petitioner has not appealed the propriety
of the admission of those records into evidence. In any event, this matter
need not be addressed inasmuch as we remand the case with respect to admission
of Balga’s statement in the police report and the extended sentencing hearing.
33
This case does not involve a choice between life with the
possibility of parole and life without the possibility of parole, such as in
the case of a motion for extended term for the offense of murder in the second
degree pursuant to HRS § 706-661(1). See n.6. supra. The court may impose an
extended term of life without parole under HRS § 706-661(1) if the jury finds
pursuant to HRS § 706-662 that an extended term is necessary for the
protection of the public, as well as one or more of the factors specified
under HRS § 706-662. A like instruction in such a case would be to instruct
the jury to consider whether the defendant’s sentence should be extended from
possible life imprisonment to a definite (or fixed) sentence of life
imprisonment.
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risk of jury speculation that arises from instructing the jury
about the sentence range and parole would engender even more
questionable results because the court retains discretion to not
impose an extended term sentence. HRS § 602-664; HRS § 602-661.
In fact, the court itself recognized that the possibility of
parole was not a proper factor for the jury to consider inasmuch
as the court instructed the jury in instruction no. 5 that it
should not consider the possibility of parole in reaching a
verdict.
The ICA, however, concluded that jury instructions no.
2 and 4 were appropriate because they were accurate. But, as
noted supra, courts have determined that even accurate
instructions concerning parole can be injurious. Those courts
have reasoned that the instruction still allows the jury to
speculate regarding the future conduct of the defendant and
actions of the parole board. See, e.g., Ramos, 689 P.2d at 441-
44.
The ICA also found no error in this case because the
court explicitly instructed the jurors not to discuss or consider
the subject of any action that the Hawai#i Paroling Authority may
or may not take, and juries are generally presumed to follow the
instructions of the court.34 See State v. Smith, 91 Hawai#i 450,
34
As noted, supra, jury instruction no. 5 instructed the jury to
“not discuss or consider the subject of any action that the Hawai#i Paroling
Authority may or may not take in your deliberations of the facts at issue in
this hearing.” This would be an appropriate instruction to give if the jury
were to inquire about parole. See Beames, 153 P.3d at 972 (“[W]hen the jury
makes a specific inquiry about how a postconviction proceeding such as
(continued...)
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461, 984 P.2d 1276, 1287 (App. 1999). But the presumption that
juries follow the instructions is not absolute. Thus, in Smith,
although the ICA recognized the presumption that juries adhere to
court instructions, it held that the prejudice to the defendant
caused by improper comments on the part of the prosecution were
not cured by court instructions advising the jury that remarks
made by counsel were not evidence. Id. Similarly, in State v.
Kahinu, 53 Haw. 536, 548, 498 P.2d 635, 643 (1972), this court
held that a cautionary instruction may be insufficient to cure
prejudice when the prosecution deliberately introduces irrelevant
evidence resulting in an “evidential harpoon.” Kahinu
establishes that, in certain circumstances, a curative
instruction may be insufficient to overcome the prejudice caused
by an error. Id.
Here, a presumption that the jury followed the
instruction of the court to not consider the actions of the
parole board is not compelling because, by also instructing the
jury regarding the actions of the parole board, the court
effectively invited the jury to consider these actions in
deciding whether the facts warranted an extended sentence. That
is, the court informed the jury of the effect the parole board’s
decision would have on both an indeterminate twenty-year sentence
34
(...continued)
commutation might affect defendant’s sentence, we have suggested that trial
courts issue a short statement emphasizing that it would be a violation of the
jury’s duty to consider the possibility of commutation in determining the
appropriate sentence.”) (internal quotation marks and citation omitted).
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subject to parole, and a sentence of life with the possibility of
parole. If the jury was not to consider the actions of the
parole board, the effect the parole board’s actions might have
with respect to the jury’s decision should not have been set
forth in the instructions. As one court put it, “[a] voluntary
statement on the part of the trial court referring to the power
of the Board of Pardons . . . might make the jury believe that
the statement has been made for the express purpose of calling
such power to their attention and thus might have a tendency to
influence them in their verdict.” State v. Carroll, 69 P.2d 542,
563 (Wyo. 1937).
Discussing parole with the jury also carried the risk
that the jury would not appreciate the gravity of its duty,
believing that its mistakes might be corrected by some other
entity. See Ramos, 689 P.2d at 443. Even assuming the jury had
a “right to be informed regarding the available choices,” as
those jurisdictions that allow instructions regarding parole
appear to hold, the instruction here would unnecessarily court
error because, as the court recognized, the potential actions of
the parole board should not enter into the jury’s deliberations.
Further, instructing the jury concerning parole and the role of
the paroling authority while at the same time admonishing the
jury not to consider parole and the role of the paroling
authority is inconsistent and likely to confuse the jury.
Finally, the matter of parole was simply a matter outside the
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scope of the jury’s function, which is limited to finding the two
operative facts under HRS § 706-662. See State v. Prosser, 186
S.W.3d 330, 331-33 (Mo. App. 2005) (“issues such as parole . . .
are considered extraneous to the jury’s determination of guilt
and punishment”) (emphasis in original). As such, it was error
for the court to instruct the jury on parole.
XIII.
The next question is whether the errors in the
admission of Kauilani’s and Balga’s testimony and in the jury
instructions were harmless beyond a reasonable doubt.35 See State
35
Petitioner argues that the harmless error doctrine does not apply
to errors that take place during the sentencing phase. However, the harmless
error doctrine does apply to errors implicating sentencing. See State v.
Rivera, 106 Hawai#i 146, 165-66, 102 P.3d 1044, 1063-1064 (2004), overruled on
other grounds by Maugaotega, 115 Hawai#i at 442-43, 168 P.3d at 572-73; State
v. Alpaca, 96 Hawai#i 17, 25, 25 P.3d 792, 800 (2001) (“The fact that the
error, in this case, implicates [defendant’s] sentence and not his conviction
does not render the harmless error doctrine inapplicable.”); Washington v.
Recuenco, 548 U.S. 212, 222 (2006) (holding that error involving Blakely v.
Washington, 542 U.S. at 303-04, and the failure to submit a sentencing factor
to a jury, like the failure to submit an element on an offense to the jury, is
not structural error and is therefore subject to harmless error review); see
also United States v. Montgomery, 635 F.3d 1074, 1092 (8th Cir. 2011)(“Even if
we conclude that the district court erred [in allowing jury to hear certain
evidence during the penalty phase of a capital trial], we cannot reverse or
vacate a federal death sentence on account of an error that is harmless beyond
a reasonable doubt.”). Petitioner’s argument that the ICA could not consider
whether the court’s errors during sentence were harmless therefore is
incorrect.
It should be noted that dissent’s reasoning in Rivera that
Hawai#i’s intrinsic-extrinsic sentencing paradigm was inconsistent with
Blakely was later sustained by Maugaotega. Compare Rivera, 106 Hawai#i at
173, 102 P.3d at 1071 (Acoba, J., dissenting, joined by Duffy, J.)
(disagreeing with “the majority’s rationale for distinguishing [the]
‘intrinsic-extrinsic’ paradigm from the implication’s of Blakely”), with
Garcia v. State, 125 Hawai#i 429, 263 P.3d 709 (2010) (explaining that, in
Rivera, a majority of this court held that, under the intrinsic-extrinsic
distinction, facts which exposed a defendant to an extended prison term
sentence were not required to be submitted to the jury, but that, in
Maugaotega, a majority of this court acknowledged that, in light of Cunningham
v. California, 549 U.S. 270 (2007), except for prior convictions, multiple
convictions, and admissions, any fact that serves as a basis for an extended
term sentence must be proved beyond a reasonable doubt to the trier of fact)
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v. Veikoso, 126 Hawai#i 267, 276, 270 P.3d 997, 1006 (2011)
(“Regarding the erroneous admission of evidence by a trial court,
this court has said that[, e]ven if the trial court erred in
admitting evidence, a defendant’s conviction will not be
overturned if the error was harmless beyond a reasonable
doubt[.]”) (citation omitted) (internal brackets in original).
When assessing whether an error is harmless, the question is
whether, in light of the entire proceedings, there is “a
reasonable possibility that [the] error might have contributed”
to the verdict. Id. (internal quotation marks and citation
omitted). The jury’s first finding was that Petitioner committed
two or more felonies since he turned 18. The court took judicial
notice that Petitioner had committed four felonies. The felonies
were unrelated to the testimony that was erroneously admitted or
to the erroneous jury instructions concerning parole.36 As such,
it is unlikely that the erroneous testimony and jury instructions
had any effect on the jury’s determination that Respondent had
proven beyond a reasonable doubt that Petitioner committed two or
more felonies. However, there is a reasonably possibility that
the erroneously admitted testimony and the jury instructions had
an effect on the jury’s consideration of whether an extended term
of imprisonment was necessary for the protection of the public.
36
Again, the felonies were burglary in the first degree, robbery in
the second degree, promoting a dangerous drug in the third degree, and
unlawful use of drug paraphernalia. It appears that Kauilani’s and Balga’s
testimony had nothing to do with these offenses.
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A.
The improperly admitted testimony consisted of
Kauilani’s testimony concerning the incident of domestic abuse on
October 1994, and Balga’s testimony concerning the incident in
October 1993. In addition to that testimony, the jury heard
(properly admitted) testimony regarding incidents of domestic
abuse on April 3, 1996, during which Petitioner injured and
threatened to kill Kauilani; on July 13, 1996, during which
Petitioner bit and head-butted Kauilani; on March 11, 2008, when
Kauilani obtained a TRO because of incidents of domestic abuse in
January 2008 and March 2008; and an incident on June 9, 2008, in
which Officer Wong said he saw Petitioner hit the windshield of
Kauilani’s car with his fist and break the windshield wiper of
the car as Kauilani attempted to leave. In light of this
testimony, it is unlikely that the October 1994 incident had much
of an impact on whether the jury believed that Petitioner had
engaged in domestic abuse toward Kauilani on multiple occasions
in the past.
The erroneous admission of Balga’s testimony, however,
is much more troubling. Other than the incident with which
Petitioner was charged and the domestic violence incidents,
Respondent’s witnesses testified to only two incidents in which
Petitioner was aggressive toward someone other than Kauilani--the
Balga incident, and a second incident in which Petitioner injured
a man during the commission of a robbery in 1994. It is
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reasonably possible that a jury could have concluded that the
incidents involving Kauilani alone were not enough to find that
an extended term of imprisonment was necessary to protect the
public. It is also reasonably possible that, without Balga’s
testimony, testimony alluding to only one other incident, dating
back to 1994, eleven to twelve years before Petitioner allegedly
committed the charged offense, would not have been enough to
cause the jury to find that the extended term was necessary.
Thus, the admission of Balga’s testimony was not harmless beyond
a reasonable doubt.
B.
As to the erroneous inclusion of parole in the jury
instructions and interrogatories nos. 2 and 4, erroneous jury
instructions are presumed to be harmful and will result in
reversal unless it affirmatively appears from the record as a
whole that the error was not prejudicial. State v. Mark, 123
Hawai#i 205, 219, 231 P.3d 478, 492 (2010). It does not
“affirmatively” appear from the record that the instructions were
harmless. The jury may have decided that it was necessary to
incarcerate Petitioner for a longer term because it sought to
prevent Petitioner from being paroled for as long as possible.
The jury may also have believed that any errors with respect to
the extended term sentence would be corrected by the Hawai#i
Paroling Authority. This would be improper because it would
undermine the statutory scheme that entrusts decisions concerning
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parole to the executive branch. Whether Petitioner could be
paroled in the future was plainly not relevant to the jury’s
consideration of whether an extended term sentence was necessary
for the protection of the public. If parole is highlighted in
the jury instructions, as it was here, it is reasonable to infer
that the jury might consider it. As noted, the instruction to
disregard parole was rendered confusing and inconsistent with the
other five instructions given by the court with respect to
parole. Under the circumstances, then, it does not affirmatively
appear from the record that the jury might not have considered
the potential actions of the Hawai#i Paroling Authority in its
deliberations. Thus, it is reasonably possible that the effect
of the jury instruction errors contributed to the jury verdict on
the extended term motion and was therefore not harmless.
Further, given that there were both evidentiary errors and jury
instruction errors, it is also reasonably possible that the
cumulative effect of these errors contributed to the jury
verdict. See State v. Pemberton, 71 Haw. 466, 473, 796 P.2d 80,
84 (1990) (holding that the cumulative weight of errors was
harmful); State v. Amorin, 58 Haw. 623, 626, 574 P.2d 895, 900
(1997) (same).
XIV.
Accordingly, we vacate the October 6, 2011 judgment of
the ICA in part as to the harmlessness of the evidentiary error
involving the admission of Balga’s police report statement and as
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to Petitioner’s extended term sentence, and affirm the ICA’s
judgment in all other respects. We vacate the June 22, 2009
judgment of conviction and sentence of the court in part as to
the same matters, affirm the said judgment in all other respects,
and remand to the court for proceedings consistent with this
opinion.
Cynthia A. Kagiwada, /s/ Simeon R. Acoba, Jr.
for petitioner
/s/ James E. Duffy, Jr.
James M. Anderson, deputy
prosecuting attorney, /s/ Sabrina S. McKenna
for respondent
59