State v. Ho

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Electronically Filed
Supreme Court
SCWC-29131
14-MAY-2012
09:37 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

vs.

PATRICK K.K. HO, Petitioner/Defendant-Appellant.

NO. SCWC-29131

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29131; CR. NO. 05-1-0282(3))

May 14, 2012

RECKTENWALD, C.J., ACOBA, DUFFY, AND MCKENNA, JJ.;
WITH NAKAYAMA, J., DISSENTING

AMENDED OPINION OF THE COURT BY ACOBA, J.

We hold that under the circumstances here, the circuit

court of the first circuit (the court) plainly erred when during

jury selection it removed two jurors for cause on the motion of

Respondent/Plaintiff-Appellee State of Hawai#i (Respondent) after

the jury panel already had been passed for cause and

Petitioner/Defendant-Appellant Patrick K.K. Ho (Petitioner) and

Respondent had already exhausted their peremptory challenges.
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This procedure violated Rule 241 of the Hawai#i Rules of Penal

Procedure (HRPP), which provides that “[c]hallenges for cause may

be made at any time prior to the exercise of peremptory

challenges[,]” (emphasis added), and in effect abrogated the

parity in the number of peremptories each side is guaranteed

pursuant to Hawai#i Revised Statutes (HRS) § 635-30.2 As a

result, we vacate Petitioner’s April 24, 2008 judgment of
conviction and sentence entered by the court and the December 1,

2011 judgment of the Intermediate Court of Appeals (ICA) and

remand this case for a new trial.

I.

On May 3, 2004, Petitioner was indicted for three

counts of First Degree Sexual Assault, HRS §§ 707-730(1)(b) and

(1)(c),3 and nine counts of Third Degree Sexual Assault, HRS §§

1
The various provisions of HRPP Rule 24 are discussed infra.

2
HRS § 635-30 (1993) provides:

In criminal cases, if the offense charged is
punishable by life imprisonment, each side is entitled
to twelve peremptory challenges. If there are two or
more defendants jointly put on trial for such an
offense, each of the defendants shall be allowed six
challenges. In all other criminal trials by jury each
side is entitled to three peremptory challenges. If
there are two or more defendants jointly put on trial
for such an offense, each of the defendants shall be
allowed two challenges. In all cases the State shall
be allowed as many challenges as are allowed to all
defendants.

(Emphases added.)

3
HRS § 707-730 (Supp. 2004) provides in relevant part:

§ 707-730. Sexual assault in the first degree. (1) A person
commits the offense of sexual assault in the first degree
if:

(continued...)

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707-732(1)(b) and (1)(c).4 According to Respondent, Petitioner,

who was 64 years old at the time, sexually assaulted his

granddaughter (CW), the complaining witness, during a twelve-

month period before and after her fourteenth birthday.

Petitioner was tried, and the jury returned a verdict of guilty

on two counts of First Degree Sexual Assault and three counts of

Third Degree Sexual Assault. Petitioner was acquitted of the
remaining counts.

A.

Petitioner appealed and raised two points before the

ICA that are relevant to his Application for Writ of Certiorari

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(...continued)
. . .

(b) The person knowingly engages in sexual penetration with
another person who is less than fourteen years old;
(c) The person knowingly engages in sexual penetration with
a person who is at least fourteen years old but less than
sixteen years old; provided that:
(i) The person is not less than five years older than
the minor; and
(ii) The person is not legally married to the minor;
. . .
(2) Sexual assault in the first degree is a class A felony.

4
HRS § 707-732 (Supp. 2004) provides in relevant part:

§ 707-732. Sexual assault in the third degree. (1) A person
commits the offense of sexual assault in the third degree
if:
. . .

(b) The person knowingly subjects to sexual contact another
person who is less than fourteen years old or causes such a
person to have sexual contact with the person;
(c) The person knowingly engages in sexual contact with a
person who is at least fourteen years old but less than
sixteen years old or causes the minor to have sexual contact
with the person; provided that:
(i) The person is not less than five years older than
the minor; and
(ii) The person is not legally married to the minor
. . .
(2) Sexual assault in the third degree is a class C felony.

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(Application). As to the first point, Petitioner argued that the

court’s refusal to disqualify two jurors who were sexually

assaulted as teenagers compelled Petitioner to use two of his

three peremptories to remove the jurors from the jury panel. In

his Application, Petitioner relates that Juror 19 told the court

that she had been sexually assaulted as a child “between the age

[sic] of 11 to 14,” “but nevertheless felt she could be fair.”

According to Petitioner, when “[a]sked by defense counsel if she

understood the presumption of innocence, [Juror 19] said,

‘there’s a possibility that he is guilty because we’re here.’”

The court refused Petitioner’s request to excuse Juror 19 for

cause.

Petitioner also claims that the court erroneously

failed to strike Juror 23a for cause. Like Juror 19, Juror 23a

stated that she had been a victim of sexual assault, but claimed

she could nevertheless be fair. She also reported having a

friend in law enforcement. According to Petitioner, the court
cut off defense counsel’s attempt to question Juror 23a, and

refused Petitioner’s request to strike Juror 23a for cause.

Petitioner maintains that he “was forced [to] use two

of his three peremptories to remove [Juror 19] and [Juror 23a]

from the panel[,]” and that Respondent made no attempt to remove

these jurors from the panel. Petitioner also claims “[h]e used

the third [peremptory challenge] to remove [another] Juror [],

who had found someone guilty in a prior criminal case and

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testified she would find [Petitioner] guilty too if she only

suspected his guilt.”

As to his second point, Petitioner argued to the ICA

that the court erred in removing two other jurors for cause

at Respondent’s request after Petitioner exercised all of his

peremptories, based on identical grounds urged by Respondent

before the parties exercised their peremptory challenges.

Petitioner recounts in his Application that Respondent asked the

court to disqualify Juror 43a and Juror 8a for cause because they

allegedly had problems speaking or understanding English. The

court initially refused to excuse the jurors for cause. After

all the jurors were passed for cause, the parties exercised their

peremptory challenges. Respondent did not use its peremptory

challenges to excuse Juror 43a or Juror 8a, despite having

challenged them for cause.

Petitioner relates that “[Respondent] waited until

after [the panel had been passed for cause and] all peremptories

had been exercised, and then ‘renewed’ [its] request to
disqualify [Juror 43a and Juror 8a] based on the same grounds

[given previously]”:
[Respondent:] I’m going to again renew my motion to excuse for
cause jurors in chairs number 2 and 5, [8a] and [43a] . . . on the
grounds that they cannot communicate effectively in the English
language.

(Emphasis in original.)

This time, the court conducted additional voir dire and

then granted Respondent’s motion to disqualify Juror 43a and

Juror 8a, for the same reasons Respondent had urged before the

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parties had exhausted their peremptory challenges. Petitioner

states that “the court did not ask [Petitioner’s] position on the

renewed motion, presumably because defense counsel had already

passed both jurors for cause, and opposed the State’s motion for

disqualification when it was lodged before the peremptories were

exercised.” (Emphasis in original.) Juror 43a and Juror 8a were

replaced by Juror 7 and Juror 9, who were passed for cause. The
court did not give the parties additional peremptory challenges

with respect to the replacement jurors. Juror 7 and Juror 9 sat

on the jury and participated in rendering the verdict.

B.

On November 14, 2011, the ICA upheld Petitioner’s

conviction in a split decision. State v. Ho, No. 29131, 2011 WL

5518045 (Haw. App. Nov. 14, 2011) (SDO). According to the ICA,

on appeal, Petitioner contended that “his peremptory challenges

were impaired because the Family Court (a) erred in refusing to

dismiss Jurors 19 and 23a for cause because both jurors stated
during voir dire that they were sexually assaulted in the past

and (b) ‘lacked jurisdiction’ to dismiss jurors 43a and 8a for

cause, and to replace them with jurors 7 and 9, after peremptory

challenges had been made.” Id. at *1. The ICA majority

concluded as to the first alleged error that the court did err in

not striking Juror 19 and Juror 23a for cause. Id. However, the

majority concluded that Petitioner failed to meet his burden of

establishing that his right to exercise peremptory challenges was

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denied or impaired. Id. (citing State v. Iuli, 101 Hawai#i 196,

205-06, 65 P.3d 143, 152-53 (2003)).

As to the second error alleged (regarding Juror 43a and

Juror 8a), the majority concluded that “the fact that

[Petitioner] did not object to jurors 7 or 9 for cause means that

[Petitioner’s] right of peremptory challenge was not denied or

impaired.” Id. (citing State v. Graham, 70 Haw. 627, 634, 780
P.2d 1103, 1107-08 (1989)) (emphasis added). The majority quoted

the following language from Graham:
A defendant . . . cannot sit in silence and accept a
juror as unprejudiced and fair and then subsequently allege
error in the retention of the same juror.

The result can be no different where a member of the
jury panel is not challenged for cause and is later excused
on a peremptory challenge. No error can be predicated on the
trial court’s failure to excuse the proposed juror for cause
since the court was not asked to rule on the matter and did
not rule.

Id. (quoting Graham, 70 Haw. at 634, 780 P.2d at 1107-08)

(ellipsis in original).

The majority did acknowledge that the ICA had twice

“found plain error in trial courts’ mishandling of challenges for

cause and peremptory challenges” under HRPP Rule 24(d)5 in State

5
HRPP Rule 24(d) (2001) provides:

(d) Sequence for Challenging of Jurors. Challenges for cause may
be made at any time prior to the exercise of peremptory
challenges. The prosecutor and the defendant, shall alternately
state their peremptory challenges, if any, the prosecutor
beginning, and the defendant ending. In case there are more than
two defendants in any case, the order of precedence of their
challenges, if not agreed upon by them, shall be determined by the
court.

(Emphases added.) HRPP Rule 24(d) was amended in 2011 to incorporate several
minor grammatical changes. HRPP Rule 24(d) now provides:

(continued...)

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v. Timas, 82 Hawai#i 499, 923 P.2d 916 (App. 1996) and State v.

Carvalho, 79 Hawai#i 165, 174, 880 P.2d 217, 226 (App. 1994).

Ho, 2011 WL 5518045, at *1 n.3. But it maintained,
The Hawai#i Supreme Court, however, has never itself
extended plain error to the issue of the ordering of
peremptory and for cause challenges. Rather, the supreme
court has, to this point, required first that defendants
establish that peremptory rights have to be denied or
impaired before a showing of prejudice will be excused.
Iuli, 101 Hawai#i at 204, 65 P.3d at 151. Such an ordering
of the analysis is particularly appropriate where, as here,
the trial court could have-even at any time during trial
under HRPP Rule 24(c)[6 ]-replaced jurors 43a and 8a if they

5
(...continued)
(d) Sequence for challenging of jurors. Challenges for
cause may be made at any time prior to the exercise of
peremptory challenges. The prosecutor and the defendant
shall alternately state their peremptory challenges, if any,
the prosecutor beginning, and the defendant ending. In case
there are more than 2 defendants in any case, the order of
precedence of their challenges, if not agreed upon by them,
shall be determined by the court.

These changes are not material.

6
HRPP Rule 24(c) (2001) provides:

(c) Alternate Jurors. The court may direct that not more
than 4 jurors in addition to the regular jury be called and
impaneled to sit as alternate jurors who shall, in the order
in which they are called, replace jurors who, prior to the
time the jury retires to consider its verdict, become or are
found to be unable or disqualified to perform their duties.
An alternate juror who does not replace a regular juror
shall be discharged when the jury retires to consider its
verdict. When the court directs that one or more alternate
jurors be impaneled, each defendant shall be entitled to 1
additional peremptory challenge which may be used to
challenge the alternate jurors only; and other peremptory
challenges allowed to challenge the regular jurors shall not
be used to challenge alternate jurors.

(Emphasis added.) Effective July 1, 2011, HRPP Rule 24(c) (2011) now states:

(c) Alternate jurors. The court may direct that not more
than 4 jurors in addition to the regular jury be called and
impaneled to sit as alternate jurors who shall, in the order
in which they are called, replace jurors who, prior to the
time the jury retires to consider its verdict, become or are
found to be unable or disqualified to perform their duties.
When the court directs that one or more alternate jurors be
impaneled, each defendant shall be entitled to 1 additional
peremptory challenge which may be used to challenge the
alternate jurors only; and other peremptory challenges
(continued...)

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were found "unable or disqualified to perform their duties,"
and where the alleged error could have been rectified by
allowing additional peremptory challenges, if it had first
been brought to the trial court's attention. Under the
circumstances, we believe that the application of plain
error is unwarranted.

Id. (emphases added).

The ICA dissent was silent as to Petitioner’s

contention that the court erred in failing to excuse Juror 19 and

Juror 23a for cause. However, as to Juror 43a and Juror 8a, the
dissent would have held that Petitioner’s “right to exercise his

peremptory challenges was impaired.” Id. at *3 (Ginoza, J.,

dissenting) (citing Timas, 82 Hawai#i at 499, 923 P.2d at 916,

Carvalho, 79 Hawai#i at 165, 880 P.2d at 217, and HRPP Rule

24(d)). According to the dissent, the ICA “has held as to

alternate jurors that ‘the defendant shall not be called upon to

exercise [peremptory] challenge[s] until all potential alternate

jurors have been examined and passed on challenges for cause[.]’”

Id. at *4 (quoting Timas, 82 Hawai#i at 509, 923 P.2d at 926

(quoting Carvalho, 79 Hawai#i at 172, 880 P.2d at 224)).
The dissent reasoned that (1) Respondent “challenged

jurors 43a and 8a for cause, but they were not initially

dismissed”; (2) after Petitioner “used his last peremptory

6
(...continued)
allowed to challenge the regular jurors shall not be used to
challenge alternate jurors. When the regular jurors retire
to begin deliberations, the alternate jurors may be held in
recess until a verdict is received. If an alternate juror
replaces a regular juror after deliberations have begun, the
court shall instruct the jury to begin its deliberations
anew.

The differences between the two versions of the rule do not affect the outcome
of this case.

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challenge, [Respondent] renewed its ‘for cause’ challenge to

jurors 43a and 8a, who were then dismissed for cause”; and (3)

“jurors 7 and 9 were then added to replace jurors 43a and 8a.”

Id. The dissent concluded that “[e]ven though [Petitioner] did

not challenge jurors 7 or 9 for cause or challenge the [court’s]

procedure, under Timas and Carvalho it was plain error to dismiss

jurors 43a and 8a for cause and replace them with jurors 7 and 9

after [all of Petitioner’s] peremptory challenges had been used.”

Id.

According to the dissent, there was no need for

Petitioner to show prejudice because “‘the denial or impairment

of a defendant’s right of peremptory challenge in a criminal case

is reversible error not requiring a showing of prejudice.’” Id.

(quoting Timas, 82 Hawai#i at 509, 923 P.2d at 926 (quoting

Carvalho, 79 Hawai#i at 174, 880 P.2d at 226)). The dissent

distinguished Iuli and State v. Kauhi, 86 Hawai#i 195, 948 P.2d

1036 (1997), where trial courts allegedly abused their discretion

in refusing to excuse a juror for cause and the defendant then
utilized a peremptory challenge to remove that juror, from

Carvalho and Timas, where “the right to exercise peremptory

challenges is denied or impaired when a defendant is called on to

exercise the challenges before prospective jurors are passed for

cause.” Id. (emphasis added).

II.

Petitioner lists the following questions in his

Application:

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A. Did the ICA commit grave error, and render a decision
inconsistent with supreme court and ICA precedent, when it
acknowledged major errors during jury selection, but found
no impairment of [Petitioner’s] statury [sic] right to
peremptory challenges?

B. Did the trial court commit plain error, and impair “one
of the most important rights secured to the accused in a
criminal case,” when it forced [Petitioner] to use two-out-
of-three peremptories to remove patently biased jurors that
should have been disqualified for cause?

C. Did the trial court commit plain error, and impair “once of the
most important rights secured to the accused in a criminal case,”
when it granted the state’s “renewed” motion to disqualify two
jurors after the exercise of peremptory challenges, based on
identical grounds urged before?

(Capitalization omitted and emphases added.)

Respondent filed a Response to the Application

(Response). Respondent contends that Petitioner’s use of his

peremptory challenges as to the sexually abused jurors (Juror 19

and Juror 23a) was not impaired because Petitioner did not ask

for additional peremptory challenges, did not tell the court that

his use of peremptory challenges was impaired, and did not

challenge the impartiality of the final jury. Respondent cites

Iuli, 101 Hawai#i at 200-02, 65 P.3d at 147-49, Ross v. Oklahoma,

487 U.S. 81, 83 (1988), and United States v. Martinez-Salazar,

528 U.S. 304, 307 (2000), in support of this contention. As to

Juror 8a and Juror 43a, Respondent argues that by striking these

jurors the court ensured that Petitioner’s trial would be fair;

that HRPP Rule 24(c) “seems to acknowledge” a court’s authority

to excuse jurors just prior to the time the jury retires to

consider its verdict; and (apparently) that Petitioner should

have requested additional peremptory challenges and should have

objected.

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Petitioner filed a Reply to Response to Application for

Certiorari (Reply). In his Reply, Petitioner argues, as to Juror

19 and Juror 23a, that peremptory challenges are a necessary part

of trial by jury. Petitioner further argues that he had to use

two of his three peremptories to cure trial errors, and therefore

the degree of impairment of his peremptories “far exceeds” the

single peremptory lost to the defendants in Iuli, Ross, and
Martinez-Salazar. As to Juror 8a and Juror 43a, Petitioner

states that Respondent did not address the argument that the

right to exercise peremptory challenges is denied or impaired

when a defendant is called to exercise peremptory challenges

before prospective jurors are passed for cause.

III.

The jury selection process is governed by HRS § 635-30

and HRPP Rule 24.7 In cases like this one, that do not involve

7
HRPP Rule 24 (a) and (b) (2001), provide as follows:

(a) Conduct of Jury Selection. At the discretion of the
court, the parties may present a “mini-opening statement” to
the jury panel prior to the commencement of jury selection.
The mini-opening statement shall be limited to a brief
statement of the facts expected to be proven. The court
shall permit the parties or their attorneys to conduct the
examination of prospective jurors or shall itself conduct
the examination. In the latter event the court shall permit
the parties or their attorneys to supplement the examination
by such further inquiry as it deems proper.

(b) Peremptory Challenges. If the offense charged is
punishable by life imprisonment, each side is entitled to 12
peremptory challenges. If there are 2 or more defendants
jointly put on trial for such an offense, each of the
defendants shall be allowed 6 peremptory challenges. In all
other criminal trials by jury, each side is entitled to 3
peremptory challenges. If there are 2 or more defendants
jointly put on trial for such an offense, each of the
defendants shall be allowed 2 peremptory challenges. In all
cases, the prosecution shall be allowed as many peremptory
(continued...)

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an offense punishable by life in prison, each side is entitled to

three peremptory challenges to strike the jurors on the panel who

have been passed for cause. HRS § 635-30; HRPP Rule 24(b). In

addition, HRPP Rule 24(c) allows up to four “alternate” jurors to

be impaneled, in case one of the “regular juror[s]” becomes

unqualified. The parties are given one peremptory challenge to

strike alternate jurors. HRPP Rule 24(c).

Challenges for cause are permitted only before the

exercise of peremptory challenges for both regular and alternate

jurors. HRPP Rule 24(d). This means that when the parties

exercise their peremptories they know who the potential regular

jurors and the potential alternates are. See id. Once the

jurors have been passed for cause, the prosecution and the

defendant alternately state their peremptory challenges. HRPP

Rule 24(d). In all cases, the prosecution is allowed only as

many challenges as are allowed to the defendant. HRS § 635-30;

HRPP Rule 24(b).
IV.

We believe that Question C in the Application must be

answered in the affirmative and is dispositive. Accordingly, we

do not reach Questions A and B. For the reasons stated herein,

the case is remanded for a new trial.

7
(...continued)
challenges as are allowed to all defendants.

(Emphases added.) HRPP Rule 24(a) and (b) did not change as a result of the
2011 amendments to HRPP Rule 24. HRPP Rule 24 (c) and (d) are reproduced
supra.

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A.

We begin by reviewing Carvalho, 79 Hawai#i 165, 880

P.2d 217, which is instructive. Carvalho involved HRPP Rule

24(c), under which a defendant is entitled to “[one] peremptory

challenge which may be used to challenge the alternate jurors

only.” Pursuant to HRS § 635-30 and HRPP Rule 24(b), the

prosecution “shall be allowed as many” peremptory challenges “as

are allowed to all defendants.” In Carvalho, the circuit court

passed one alternate for cause and gave each party an opportunity

to exercise a peremptory challenge. 79 Hawai#i at 171, 880 P.2d

at 223. The prosecution indicated that it would “waive” its

peremptory challenge and the defense exercised its peremptory

challenge to strike the juror. Id. The circuit court then

called another alternate juror. Id. At that point, the

defendant could no longer exercise a peremptory challenge, having

exhausted his one peremptory to strike the first juror. Id.

However, the prosecution was given the opportunity to exercise

another peremptory challenge. Id. The ICA held that the circuit

court plainly erred because the defendant had been compelled to

exhaust his peremptory challenge before all the alternates had

been passed for cause, in violation of HRPP Rule 24(d), and the

prosecution, in effect, was afforded a “second” peremptory

challenge, in violation of HRS § 635-30 and HRPP Rule 24(b),

which guarantee the parties an equal number of peremptory

challenges. See id.

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Similarly, in Timas, as in Carvalho, the ICA concluded

that the circuit court plainly erred in calling and passing for

cause an alternate juror after the defendant had exercised his

one peremptory challenge. Timas, 82 Hawai#i at 509, 923 P.2d at

926. In Timas, which was a multi-defendant case, the circuit

court called the first alternate juror and announced that each

defendant would be entitled to one peremptory challenge. See id.

at 507, 923 P.2d at 924. One of the defendants exercised his
peremptory challenge. Id. The circuit court then called

additional alternate jurors. Id. The same defendant was not

able to exercise a peremptory challenge with respect to the

additional alternate jurors, because he had exhausted his one

peremptory challenge in striking the first alternate juror. Id.

The ICA held that the defendant’s right to one

peremptory challenge pertained to all of the alternate jurors and

that the procedure used by the circuit court did not conform to

that announced in Carvalho. Id. at 509, 923 P.2d at 926. The

ICA also held that the defendant was not required to show

prejudice, and that although the defendant had not raised the

point on appeal, the defendant’s statutory right to exercise a

peremptory challenge had been impaired, resulting in a denial of

his substantial rights. Id. The ICA therefore concluded that

the plain error doctrine applied. Id.

V.

These cases illustrate the distinct nature of errors

involving a court’s failure to strike jurors for cause before the

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parties have exercised their peremptories, and errors that occur

after the parties have exercised their peremptories. Carvalho

and Timas involved an error that occurred after the parties had

exercised their peremptories. Carvalho, 79 Hawai#i at 171-72,

880 P.2d at 223-24; Timas, 82 Hawai#i at 509, 923 P.2d at 926.

Because the Carvalho court called additional alternate jurors

after the defendants exercised their peremptory challenges, the

defendants were not aware of the composition of the entire jury

panel before exhausting their peremptory challenge. Therefore,

the defendants were deprived of the opportunity to exercise their

peremptory challenge with respect to all of the alternate jurors.

Id. In Carvalho, the ICA explained that the court’s error was

compounded because it allowed the prosecution an additional

peremptory challenge after the defendant had exercised his single

peremptory challenge. 79 Hawai#i at 171-72, 880 P.2d at 223-24.

Under those circumstances, in Carvalho and in Timas, the ICA

concluded that the defendants’ right to exercise peremptory

challenges had been denied or impaired. Carvalho, 79 Hawai#i at

171-72, 880 P.2d at 223-24; Timas, 82 Hawai#i at 509, 923 P.2d at

926.

VI.

Under Question C in the Application, the issue is

whether Petitioner’s right to exercise peremptory challenges was

impaired when the court entertained Respondent’s challenges for

cause after the parties had exercised their peremptory

challenges.

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A.

As mentioned, Petitioner contends that the court erred

in striking Juror 43a and Juror 8a for cause upon Respondent’s

motion after all the jurors in the jury box had already been

passed for cause. According to Petitioner, the practice of

allowing Respondent two challenges for cause after peremptory

challenges had been exercised is prohibited by HRPP Rule 24(d)

and by case law, and resulted in Respondent effectively having

two additional peremptory challenges. Petitioner states that:
After exercising three peremptory challenges against other
jurors, the State was allowed to renew its challenge for
cause against [Juror 43a] and [Juror 8a], ostensibly giving
it five peremptories to [Petitioner's] one. Moreover,
[Petitioner’s] sole peremptory was exercised before [Jurors
43a and 8a] were replaced. Two court rules require that
challenges for cause be made ‘prior to the exercise of
peremptory challenges’ . . . . Otherwise, litigants cannot
compare the relative qualifications and attitudes of all 12
jurors examined and passed for cause . . . .

(Internal citations omitted and emphasis added.)
As noted before, the ICA majority concluded that

Petitioner’s right to exercise his peremptory challenges was not

impaired because (1) Petitioner did not object to Juror 7 or

Juror 9 for cause (citing Graham, 70 Haw. at 634, 780 P.2d at
1107-08); (2) under HRPP Rule 24(c) the court could have replaced

Juror 43a and Juror 8a if these were found unable or disqualified

to perform their duties at any time before trial; (3) under Iuli,

Petitioner should have objected and asked for additional

peremptory challenges; and (4) there was no plain error in the

absence of an objection by Petitioner. Ho, 2011 WL 5518045, at

*1. Respondent argues that (1) the court performed its duty to

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ensure Petitioner’s trial would be had before a fair and

impartial jury; (2) HRPP Rule 24(c) seems to acknowledge the

circuit court’s authority to excuse jurors until just prior to

the time the jury retires to consider its verdict; and (3)

Petitioner should have objected and requested additional

peremptory challenges.8

VII.

To reiterate, HRPP Rule 24(d) allows challenges for

cause only before the parties have exercised their peremptory

challenges. HRPP Rule 24(d) (“Challenges for cause may be made

at any time prior to the exercise of peremptory challenges.”).

In Carvalho, in the context of alternate jurors, the ICA

explained that the right to exercise peremptory challenges is a

right that applies with respect to all potential alternate

jurors, and that the courts were not allowed to give one party

more peremptories than the other:
Only after all potential alternates were passed for cause
could Defendant properly exercise his one peremptory
challenge as contemplated by HRPP Rule 24(c). The procedure
[whereby the court asked the parties to exercise their
peremptories after the first alternate was passed for cause
and then passed another alternate for cause] prejudiced
Defendant because he was compelled to exhaust his peremptory
challenge before all the prospective alternate jurors were
passed for cause.

Moreover, once the State waived its challenge it was
foreclosed from exercising any more peremptory challenges
because the State is only “allowed as many peremptory
challenges as are allowed to [the] defendant[ ].” HRS §
635–30; HRPP Rule 24(b). The court’s procedure, as a matter
of fact, resulted in the State gaining an extra challenge
not afforded the defendant, giving it an unfair advantage in
selecting the jurors who ultimately decided the case.

8
Respondent does not mention the dissent and does not expressly
take a position on plain error.

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We hold, therefore, that the defendant’s right to one
peremptory challenge to alternate jurors under HRPP Rule
24(c) is a right pertaining to all the alternate jurors and
therefore the defendant shall not be called upon to exercise
the challenge until all potential alternate jurors have been
examined and passed on challenges for cause.

79 Hawai#i at 172, 880 P.2d at 224 (emphases added).

In light of HRS § 635-30, HRPP Rule 24, Carvalho, and

Timas, it is evident that the procedure the court followed during

jury selection was improper. Respondent only “renewed” its
motion to have Juror 43a and Juror 8a struck for cause after the

parties exhausted their peremptory challenges. As Petitioner

contends, by striking jurors for cause after Petitioner exercised

his peremptory challenges, (1) the court deprived Petitioner of

the opportunity to compare and contrast the relative

qualifications of the twelve jurors passed for cause before

exercising his peremptory challenges; and (2) Petitioner was

deprived of the opportunity to exercise any peremptory challenges

with respect to the two jurors (Juror 7 and Juror 9) who replaced

Juror 43a and 8a. See Carvalho, 79 Hawai#i at 172, 880 P.2d at

224 (holding, with respect to alternate jurors, that the right to

exercise a peremptory challenge is a right pertaining to all the

alternate jurors).

Further, by allowing Respondent to challenge two jurors

for cause after both parties exhausted their peremptory

challenges, the court for all practical purposes gave Respondent

two additional peremptory challenges. Indeed, this case and

Carvalho are essentially indistinguishable. See 79 Hawai#i 165,

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880 P.2d 217. Here, as in Carvalho, when that court struck

Respondent’s jurors for cause after peremptories had been

exercised, that court gave Respondent two additional

opportunities to shape the jury. As discussed, for-cause

challenges under HRPP Rule 24 should occur before peremptories to

ensure the parties have the opportunity to exercise their

peremptories as to all prospective jurors. Carvalho, 79 Hawai#i

at 172, 880 P.2d at 224. By granting Respondent’s motion to
strike the jurors for cause after the parties had fully exhausted

their peremptory challenges, the court in effect gave the

prosecution additional peremptory challenges. This violated HRS

§ 635-30 and HRPP Rule 24(b) because the prosecution is only

allowed “as many challenges as are allowed to [the]

defendant[].”9

VIII.

The ICA majority, however, did not believe that

Petitioner’s right to exercise his peremptory challenges was

impaired because Petitioner “did not object to Jurors 7 or 9 for

cause.”10 Ho, 2011 WL 5518045, at *1. The majority reasoned

that a defendant cannot accept a juror as unprejudiced and unfair

and then subsequently allege error in the retention of the same

juror. Id. (citing Graham, 70 Haw at 634, 780 P.2d at 1107-08).

9
However, in the unusual circumstance where disqualifying factors
may become evident after peremptory challenges have been exhausted, the
circuit court, in the appropriate exercise of its discretion, may replace a
juror. In such an instance, the parties should be afforded an equal number of
peremptory challenges to the seating of the replacement jurors. This would
preserve the parity among the parties with respect to peremptory challenges
that is guaranteed by HRS § 635-30 and HRPP Rule 24(b).

10
This section corresponds to the first argument made by the ICA and
by Respondent. See supra p.17.

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However, Petitioner’s complaint as to the replacement of Juror 8a

and Juror 43a with Juror 7 and Juror 9 was not that the latter

were biased, but rather that, in effect, the prosecution was

given additional peremptory challenges and therefore had an

unfair advantage in shaping the jury.11 Respectfully, it would

have been disingenuous for Petitioner to request that Juror 7 and

Juror 9 be removed for cause because Petitioner apparently did
not have reason to challenge those jurors for cause.

In a similar vein, Respondent contends that by removing

Juror 8a and Juror 43a the court ensured that Petitioner’s trial

was fair. This claim is debatable because, although Respondent

claims that these jurors had trouble communicating in English,

Petitioner objected to the removal of those two jurors, and the

court initially agreed they should be passed for cause. Cause

aside, a party may prefer to keep the twelve jurors that have

been passed for cause, sensing that those that remain in the jury

pool may be less accepting of the party’s position than others
already seated. In any event, as explained supra, it was

violative of HRS § 635-30 and HRPP Rule 24(b) for the court, in

effect, to give Respondent more peremptory challenges, and thus

11
The ICA majority’s reference to Graham is inapposite. In Graham,
the defendant complained that he had to exercise his peremptory challenges
with respect to jurors who should have been stricken for cause even though the
defendant failed to challenge those jurors for cause. 70 Haw. at 634, 780
P.2d at 1108. This court held that the defendant could not complain of the
circuit court’s failure to strike the jurors for cause because he had not
challenged the jurors for cause before the circuit court. Id. Again,
Petitioner’s complaint here is not that Jurors 8a, 43a, 7, or 9 should have
been removed for cause, but rather that Juror 8a and Juror 43a should not have
been struck for cause upon Respondent’s motion after the peremptory
challenges, and that the fact that they were meant that, practically speaking,
Respondent was able to exercise additional peremptory challenges.

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more opportunities to shape the final jury membership, than were

given to Petitioner.

IX.

The ICA majority and Respondent, however, also cite the

portion of HRPP Rule 24(c) that states that the court has

authority to excuse jurors until just “prior to the time the jury

retires to consider its verdict, [who] become or are found to be
unable or disqualified to perform their duties,” implying that it

was not error for the court to strike Juror 8a and Juror 43a for

cause after the parties had exhausted their peremptories.12 The

language cited by the ICA majority and the Respondent have been

taken out of context. The quoted phrase is part of a sentence in

HRPP Rule 24(c) that indicates that if a regular juror is found

unable to perform his or her duties, the court may replace the

regular juror with one of the alternate jurors who has already

been impaneled. Specifically, and to reiterate, HRPP Rule 24(c)

states:
The court may direct that not more than 4 jurors in addition
to the regular jury be called and impaneled to sit as
alternate jurors who shall, in the order in which they are
called, replace jurors who, prior to the time the jury
retires to consider its verdict, become or are found to be
unable or disqualified to perform their duties. An
alternate juror who does not replace a regular juror shall
be discharged when the jury retires to consider its verdict.
When the court directs that one or more alternate jurors be
impaneled, each defendant shall be entitled to 1 additional
peremptory challenge which may be used to challenge the
alternate jurors only; and other peremptory challenges
allowed to challenge the regular jurors shall not be used to
challenge alternate jurors.

(Emphasis added.)

12
This section corresponds to the second argument made by the ICA
majority and Respondent. See supra p.17.

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In other words, alternate jurors who have already been

passed for cause and survived peremptory challenges and thus have

been ultimately chosen as alternate jurors for the case may be

used to replace “regular” jurors during trial when regular

jurors, for some reason or another, become disqualified. Id.

Thus, by no means does HRPP Rule 24(c) change the procedure the

court must follow during jury selection and allow the court to
entertain motions to strike jurors for cause after the parties

have already exhausted their peremptory strikes. This reading of

HRPP Rule 24(c) is foreclosed by HRPP Rule 24(d), which allows

challenges for cause prior to the exercise of peremptory

challenges.13

X.

The ICA majority and Respondent also believe that Iuli

forecloses Petitioner’s challenge to the court’s grant of

Respondent’s renewed motion for cause, because Petitioner did not

request additional peremptory challenges and, seemingly, because
he did not point to any other jurors that he would have

excused.14 However, Iuli was not concerned with the

circumstances here and thus is distinguishable. Iuli involved a

challenge for cause made before the parties exercised their

peremptory challenges. 101 Hawai#i at 200-05, 65 P.3d at 147-

152. This court declined to decide whether the circuit court

13
A limited exception to this rule is described in footnote 10.

14
This section corresponds to the third argument made by the ICA
majority and Respondent. See supra, p.17.

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erred in denying the defendant’s challenge for cause, but held

that the defendant had not shown that his rights were impaired

because the defendant had not identified other jurors he would

have struck and did not ask for additional peremptory challenges.

Id. There was no allegation in Iuli that the court had done

anything improper after the jurors were passed for cause and the

peremptory challenges ended. See id. The parties in Iuli
exercised their peremptories with full knowledge of the twelve

jurors who had been passed for cause. See id.

Here, in contrast, the court struck two jurors for

cause at Respondent’s behest after the court had already passed

the jurors for cause and after the parties had exercised their

peremptories. As noted before, this meant that Petitioner did

not have the opportunity to exercise his peremptories after

comparing the relative qualifications of the twelve jurors passed

for cause, that Petitioner was not able to exercise peremptories

with respect to Juror 7 and Juror 9, and that Respondent for all

practical purposes exercised two additional peremptory

challenges. Iuli simply did not address a situation where the

court allowed additional challenges to jurors after the parties

have exercised their peremptories.

Instead, the court’s error in this case is much more

like that in Carvalho, 79 Hawai#i at 172, 880 P.2d at 224, where

that court granted an additional peremptory challenge to the

prosecution after the defendant had exercised his peremptory

challenge. Iuli did not overrule Carvalho, and in fact cited

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that decision approvingly. Iuli, 101 Hawai#i at 204, 65 P.3d at

151. Carvalho was also cited approvingly in Kauhi.15 See Kauhi,

86 Hawai#i at 198, 948 P.2d 1036 (explaining that because the

right to exercise peremptory challenges is one of the most

important secured to defendants, the denial or impairment of that

right is reversible error not requiring a showing of prejudice)

(quoting Carvalho, 70 Hawai#i at 172, 880 P.2d at 224)).

Accordingly, respectfully, the ICA was also wrong when

it said, “The Hawai#i Supreme Court [has] never itself extended

plain error to the issue of the ordering of peremptory and for

cause challenges.” Ho, 2011 WL 5518045, at *1. Iuli and Kauhi

both cited Carvalho, in which the court applied the plain error

doctrine, approvingly. Moreover, in Iuli and Kauhi there was no

need to apply the plain error doctrine because in both instances

the defendants objected and asked the court to strike the

contested jurors for cause. See Iuli, 101 Hawai#i at 205-06, 65

P.3d at 152-53; Kauhi, 86 Hawai#i at 197-200, 948 P.2d at 1038-
1041.

15
In Kauhi, the defendant challenged for cause a prospective juror
because the juror was currently employed as a deputy prosecuting attorney with
the City and County of Honolulu, the same office employing the prosecutor
trying the defendant’s case. 86 Hawai#i at 197-98, 948 P.2d at 1038-39. The
trial court denied the challenge for cause, and the defendant used his last
peremptory challenge to excuse the juror. Id. at 198, 948 P.2d at 1039.
Subsequently, the defendant requested two additional peremptory challenges and
identified the jurors against whom he would utilize those challenges. Id.
The request was denied. Id. This court held that the trial court erred in
failing to excuse the juror for cause, and that because the defendant had to
use his last peremptory challenge to excuse the erroneously retained juror,
thereby foreclosing the defendant from peremptorily challenging at least one
of the two additional prospective jurors he wanted to excuse, the defendant’s
right to exercise his peremptory challenges was denied or impaired. Id. at
200, 948 P.2d at 1041.

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Because Respondent was allowed to challenge jurors

after the parties had exercised their peremptories, Respondent

had an unfair advantage in selecting the jurors who ultimately

decided the case. See id. Petitioner was therefore not able to

exercise his rights to the same extent as Respondent. See HRS §

630-30 and HRPP Rule 24(b). Petitioner was unable to exercise

his peremptories with respect to all of the twelve regular jurors

because he had already exhausted his peremptories by the time the

court, upon Respondent’s motion, substituted Juror 43a and Juror

8a with Juror 7 and Juror 9. Petitioner can therefore establish

that his statutory right to exercise peremptory challenges was

impaired.

Further, as explained, supra, Petitioner need not

establish prejudice in order to succeed. “[T]he denial or

impairment of a defendant’s right of peremptory challenge in a

criminal case is reversible error not requiring a showing of

prejudice.” Timas, 82 Hawai#i at 509, 923 P.2d at 926 (internal

citation and quotation marks omitted). Since the right to
exercise a peremptory challenge is “one of the most important of

the rights secured to an accused in a criminal case, the denial

or impairment of that right is reversible error not requiring a

showing of prejudice.” Kauhi, 86 Hawai#i at 198, 948 P.2d at

1039 (quoting Carvalho, 79 Hawai#i at 172, 880 P.2d at 224); see

also Iuli, 101 Hawai#i at 204, 65 P.3d at 151 (“[T]he denial or

impairment of [the right to exercise peremptory challenges] is

reversible error not requiring a showing of prejudice.”) (quoting

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Kauhi, 86 Hawai#i at 198, 948 P.2d at 1039 (quoting Carvalho, 79

Hawai#i at 172, 880 P.2d at 224))(ellipsis omitted).

Thus, “in this jurisdiction a defendant has a right to

exercise his peremptory challenges as the statute provides and no

court would uphold, as being nonprejudicial, the deprivation of

the statutory right to exercise peremptory challenges, even

though that right is solely dependent on statute, and not on a
constitutional right.” Carvalho, 79 Hawai#i at 174, 880 P.2d at

226 (quoting State v. Echineque, 73 Haw. 100, 107, 828 P.2d 276,

279 (1992)) (internal quotations and ellipsis omitted). As

stated in Carvalho, “the denial or impairment of a defendant’s

right of peremptory challenge in a criminal case is reversible

error not requiring a showing of prejudice.” Thus, “the

historical underpinning of peremptory challenges and substantial

authority support the adoption of this rule.” Carvalho, 79

Hawai#i at 174, 880 P.2d at 226.

XI.
Finally, the ICA would not have applied the doctrine of

plain error because the court could have granted additional

peremptory challenges had Petitioner objected.16 Ho, 2011 WL

5518045, at *1 n.3. However, the ICA’s approach would contradict

both Carvalho, 79 Hawai#i at 174, 880 P.2d at 226, and Timas, 82

Hawai#i at 509, 923 P.2d at 926, in which plain error was taken

from errors that are essentially indistinguishable from the one

16
This section corresponds to the fourth argument made by the ICA
majority, see supra p.17. As noted, supra, Respondent did not mention plain
error or the dissent.

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alleged here. If the defendants’ substantial rights were

affected in those cases, as the ICA held, Petitioner’s

substantial rights were affected in this case.

Furthermore, as discussed, supra, in Carvalho, 79

Hawai#i at 174, 880 P.2d at 226, and Timas, 82 Hawai#i at 509, 923

P.2d at 926, as in this case, the defendant did not object to the

court’s improper procedure. However, “appellate courts, in the
public interest, may on their own motion, notice errors to which

no exception has been taken if the errors are obvious, and if the

errors otherwise seriously affect the fairness, integrity or

public reputation of judicial proceedings.” Carvalho, 79

Hawai#i at 174, 880 P.2d at 226 (internal quotation marks and

citations omitted). Thus, in Carvalho, the ICA concluded that

the court’s error was “obvious, and it affected the fairness and

integrity of the jury selection process . . . [and therefore]

required reversal.” Id. Similarly, in Timas, where an alternate

juror was improperly impaneled and the defendant did not raise
the error on appeal, the ICA noticed the error and held that it

was plain. 82 Hawai#i at 509, 923 P.2d at 926. Likewise, in

Kauhi, although the contested juror did not participate in

rendering the verdict, this court nevertheless reversed the

defendant’s conviction when the circuit court erroneously failed

to strike the juror for cause. 86 Hawai#i at 200, 948 P.2d at

1041. In line with these cases, here the error was obvious and

affected the fairness and the integrity of the selection process.

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XII.

Based on the foregoing, the ICA’s December 1, 2011

judgment and the court’s April 24, 2008 judgment are vacated and

the case remanded for a new trial.

Peter Van Name Esser, /s/ Mark E. Recktenwald
for petitioner/
defendant-appellant. /s/ Simeon R. Acoba, Jr.
Keith M. Kaneshiro, /s/ James E. Duffy, Jr.
Prosecuting Attorney,
and Donn Fudo, Deputy /s/ Sabrina S. McKenna
Prosecuting Attorney,
for respondent/
plaintiff-appellee.

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