State v. Lafoga.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-MAR-2023
08:14 AM
Dkt. 31 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

BRANDON FETU LAFOGA and RANIER INES, also known as Schizo,
Petitioners/Defendants-Appellants.

SCWC-XX-XXXXXXX

CERTIORARI FROM THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX; CASE NO. 1PC161001176)

MARCH 15, 2023

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ.,
AND WILSON, J., CONCURRING IN PART AND DISSENTING IN PART 1

OPINION OF THE COURT BY EDDINS, J.

This case addresses (1) a constitutional challenge to a

jury selection process that identified prospective jurors by

1 At the time of this opinion’s publication, Justice Wilson’s concurrence
and dissent is forthcoming.
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number, not name, and (2) a challenge to extended term

sentencing jury instructions for attempted murder.

We affirm Brandon Lafoga and Ranier Ines’ convictions. But

we remand for a new extended term sentencing hearing and

resentencing.

I.

The State alleged Brandon Lafoga and Ranier Ines committed

several crimes. It charged Lafoga with attempted murder in the

second degree, conspiracy to commit murder in the second degree,

carrying or use of firearm in the commission of a separate

felony, kidnapping, and ownership or possession prohibited of

any firearm or ammunition by a person convicted of certain

crimes (felon in possession). In the same indictment, the State

charged Ines with accomplice to attempted murder in the second

degree, conspiracy to commit murder, kidnapping, and robbery in

the first degree.

On the eve of trial, after ruling on several motions in

limine, the trial court decided to seat an innominate jury.

Everyone would refer to prospective jurors by number, not name.

The court told the parties it would conceal the prospective

jurors’ identifying information, including their names, phone

numbers, and addresses. Only the court would have that

information.

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Ines’ counsel asked the court to clarify. Did the court

intend to disclose the prospective jurors’ names to defense

counsel and the prosecution? The court did not. The

prosecution objected. The deputy prosecuting attorney dubbed

the process “dehumanizing.” Ines’ counsel agreed, adding that

the attorneys needed the jurors’ names to research information

about the prospective jurors. Then, the prosecution asked why

the court planned to deviate from the standard jury selection

procedure. “I’m trying to head off a juror in this panel

saying, I’m afraid to serve,” the court explained. Ines’

counsel repeated her concern: no names impaired jury selection

preparation and execution. Counsel proposed that the attorneys

receive the jurors’ full names “but we both will not provide the

list to our clients, but they will be present with us when we do

jury selection.”

After further discussion, the court indicated it would tell

the jurors about the number system, but not why they’d be called

numbers. The court aimed to “quell anxiety”: “I have, in the

past, had to inform jurors to quell anxiety, that there’s been

no incidents whatsoever. I do believe that’s the situation

here, but I don’t want it to be raised in the entire panel’s

consciousness at all because we want them to serve.”

Lafoga’s counsel wondered about the process. Did the court

mean the lawyers would not know the prospective jurors’ names?

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The court clarified its plan and explained the ground rules: the

defense and prosecution (not the defendants and public) would

know the names of the jurors, but not their addresses or phone

numbers. Also, no one could say the jurors’ names on the

record.

After that, the attorneys raised no concerns. Defense

counsel made no objection to keeping the jurors’ names from the

defendants. Later, right before jury selection began, the court

asked if counsel objected to the number system. No one did.

During its introductory remarks, the court told the

prospective jurors they would be identified by number. The

court implied that this procedure protected the jurors’ privacy.

Ladies and gentlemen, when [the bailiff] did the initial
roll call for this jury panel, each of you were given a
card with your name on it along with your number. Please
remember that number, that is your number, and for the rest
of the proceedings in this case you will be addressed by
that number. Your actual names are known to the Court and
to the attorneys, and other than a sealed list that will be
kept for court records, no one else will know your actual
names, so the public can’t get your names and they cannot
get your contact information, so only court and counsel
will have your names. For the rest of the proceedings
you’ll be addressed by your number.

(Emphasis added.)

Trial happened in November 2019. The jury found Lafoga

guilty of attempted murder, use of firearm in a separate felony,

kidnapping, and felon in possession of a firearm. Answering a

special interrogatory, the jury found that the kidnapping count

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merged with the attempted murder count, and later the court

dismissed the kidnapping charge.

The jury found Ines guilty of accomplice to attempted

murder, kidnapping, and robbery in the first degree. Answering

a special interrogatory, the jury found that the kidnapping and

robbery counts merged with the accomplice to attempted murder

count, and later the court dismissed the kidnapping and robbery

charges.

The verdicts did not end the jury’s service. They remained

for an extended term sentencing hearing. The jury had to decide

whether extending Lafoga and Ines’ ordinary statutory maximum

sentences was “necessary for the protection of the public.” HRS

§§ 706-662 (2014), 706-664 (2014).

For each defendant’s attempted murder convictions, the

court gave an extended term jury instruction and posed a special

interrogatory. The court’s instructions and interrogatories

conformed to the Hawaiʻi Standard Jury Instructions – Criminal.

Lafoga’s instruction read in part:

[T]he prosecution has alleged that BRANDON FETU LAFOGA is a
persistent offender, a multiple offender, and that extended
terms of imprisonment are necessary for the protection of
the public. The prosecution has the burden of proving
these allegations beyond a reasonable doubt. It is your
duty to decide, in each count, whether the prosecution has
done so by answering the following three essential
questions on special interrogatory forms that will be
provided to you:

1. Has the prosecution proved beyond a reasonable doubt
that Defendant BRANDON FETU LAFOGA is a persistent offender
in that he has previously been convicted of two or more

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felonies committed at different times when he was eighteen
years of age or older?

2. Has the prosecution proved beyond a reasonable doubt
that Defendant BRANDON FETU LAFOGA is a multiple offender
in that he is being sentenced for two or more felonies?

3. Has the prosecution proved beyond a reasonable doubt
that it is necessary for the protection of the public to
extend the sentences for Defendant BRANDON FETU LAFOGA in
Count 2 [Attempted Murder] from a possible life term of
imprisonment to a definite life term of
imprisonment . . . ?

(Emphasis added.) The court’s companion special interrogatory

read in part: “Has the prosecution proved beyond a reasonable

doubt that it is necessary for the protection of the public to

extend the sentence in Count 2 for Defendant BRANDON FETU LAFOGA

from a possible life term of imprisonment to a definite life

term of imprisonment?” (Emphasis added.)

Ines’ extended term jury instruction mostly tracked

Lafoga’s, reading in part:

[T]he prosecution has alleged that RANIER INES is a
persistent offender and that extended terms of imprisonment
are necessary for the protection of the public. The
prosecution has the burden of proving these allegations
beyond a reasonable doubt. It is your duty to decide, in
each count, whether the prosecution has done so by
answering the following two essential questions on special
interrogatory forms that will be provided to you:

1. Has the prosecution proved beyond a reasonable doubt
that Defendant RANIER INES 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?

2. Has the prosecution proved beyond a reasonable doubt
that it is necessary for the protection of the public to
extend the sentences for Defendant RANIER INES in Count 1
[Accomplice to Attempted Murder] from a possible life term
of imprisonment to a definite life term of
imprisonment . . . ?

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(Emphasis added.) Ines’ special interrogatory asked the jury

about his accomplice to attempted murder conviction, in part:

“Has the prosecution proved beyond a reasonable doubt that it is

necessary for the protection of the public to extend the

sentence in Count 1 for Defendant RANIER INES from a possible

life term of imprisonment to a definite life term of

imprisonment?” (Emphasis added.)

The defendants had objected to those instructions and

special interrogatories. The word “possible” could mislead the

jury into thinking that there would not be a life term of

imprisonment unless they received an extended life term of

imprisonment, the defendants insisted.

The jury found the State had proven the extended term

sentencing elements for Lafoga’s attempted murder conviction;

same for Ines’ accomplice to attempted murder conviction.

Now eligible for the extended life without the possibility

of parole term, the defendants faced sentencing. HRS § 706-661

(2014). The court sentenced Lafoga to an extended term of life

without parole for attempted murder. Because the jury made

extended term findings for Lafoga’s two other convictions, the

court increased his imprisonment to life with the possibility of

parole for use of firearm in a separate felony, and a twenty-

year term with the possibility of parole for felon in

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possession. On appeal, Lafoga only challenges the extended term

jury instructions for the attempted murder conviction.

As for Ines, the court sentenced him to an extended term of

life without parole for his accomplice to attempted murder

conviction.

The defendants appealed. They each raised four points of

error. The Intermediate Court of Appeals consolidated their

appeals. In a published opinion, the ICA affirmed Lafoga and

Ines’ convictions.

Both Lafoga and Ines petitioned for certiorari. We

accepted cert, and per Hawaiʻi Rules of Appellate Procedure Rule

40.1, limited the scope of our review to two issues: the jury

selection issue and the jury instructions issue.

II.

Lafoga and Ines argue that the circuit court empaneled an

anonymous jury. They maintain the court’s jury selection method

violated their constitutional right to a presumption of

innocence and an impartial jury.

We disagree. There was no constitutional violation.

First, we discuss the defendants’ claim that their jury was

anonymous or “partially anonymous.” It was not.

With an anonymous jury, defense counsel and the prosecution

do not know the prospective jurors’ names. “[O]ne necessary

component” of an anonymous jury is that the jurors’ names are

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withheld from the attorneys and parties. United States v.

Harris, 763 F.3d 881, 885-86 (7th Cir. 2014); United States v.

Ross, 33 F.3d 1507, 1521 n.27 (11th Cir. 1994) (describing an

anonymous jury as one where the jurors’ names and information

are concealed from the public, lawyers, and defendants); see

also Abraham Abramovsky & Jonathan I. Edelstein, Anonymous

Juries: In Exigent Circumstances Only, 13 St. John’s J. Legal

Comment. 457, 457-58 (1999) (identifying United States v.

Barnes, 604 F.2d 121 (2nd Cir. 1979), where a New York federal

district court in 1977 kept secret the jurors’ names and

addresses in an organized crime trial, as the first “anonymous”

jury trial in state or federal courts.).

Nor was the jury a “partially anonymous” jury. See State

v. Samonte, 83 Hawaiʻi 507, 928 P.2d 1 (1996) (trial court

ordered that the first names, street addresses, and phone

numbers of prospective jurors and their spouses be redacted from

juror-information cards, and thereby empaneled a “partially

anonymous jury.”). Because Lafoga’s and Ines’ counsel and the

prosecution knew the full names of the prospective jurors, the

jury was not a completely or partially anonymous jury.

This case’s jury is better described as a confidential

jury. A confidential jury withholds a juror’s name from the

public, but not the parties. See Harris, 763 F.3d at 885-86

(distinguishing between a confidential jury, where jury

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information is available to the parties but not the public, and

an anonymous jury, where the information is withheld from both

the public and the parties). A confidential jury mainly

concerns the public’s First Amendment right to access trial

proceedings, not the parties’ right to the jurors’ information.

See Oahu Publications Inc. v. Ahn, 133 Hawaiʻi 482, 495-96, 331

P.3d 460, 473-74 (2014) (balancing the public’s First Amendment

right to access judicial proceedings with the due process

concerns of the parties); Harris, 763 F.3d at 886 (explaining

that a confidential jury challenge “focuses on whether access to

the courts has been properly denied.”).

Lafoga and Ines do not raise an access-to-the-courts

challenge. Rather, their claims focus on the court’s numbers

system and its decision to keep the jurors’ names from them.

An anonymous jury hobbles both sides. The defense and

prosecution lose the ability to uncover useful information for

jury selection and trial purposes. See United States v. Stone,

No. CR 19-0018 (ABJ), 2020 WL 1892360, at *33 n.54 (D.D.C. Apr.

16, 2020) (quoting Nancy Gertner, Judith H. Mizner, & Joshua

Dubin, The Law of Juries, Chapter 3 Section 3 at § 3.28, § 3.31,

10th ed. (2018) for the conclusions that “[t]he internet, and in

particular social media . . . offers the possibility of a rich

source of information about jurors that escapes the constraints

of formal voir dire” and “[a]t the very minimum, pre-trial

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investigation of potential jurors . . . can provide counsel with

the justification for more probing voir dire questions . . . .

And it can provide a direct basis for a cause challenge to a

particular juror.”).

But a confidential jury does not have this problem. With

the potential jurors’ names in hand, handy info is keystrokes

away. See id. (citing Thaddeous Hoffmeister, Investigating

Jurors in the Digital Age: One Click at a Time, 60 U. Kan. L.

Rev. 611, 612 (2012) for the observation that “[t]he speed and

ease by which information about jurors is now discovered online

has led attorneys to increasingly investigate and research

jurors. In fact, the practice has become fairly commonplace,

with courts, practitioners, and state bar associations all

approving and encouraging its use.”).

Here, the defense and prosecution knew the prospective

jurors’ names. Before (and during) jury selection, the lawyers

had a chance to learn more about these citizens. The court’s

method did not deprive the parties of information-gathering

techniques, like online and social media research, that might

discover helpful information to challenge a juror for cause,

exercise a peremptory challenge, or tailor an argument. Lafoga

and Ines fail to show how the circuit court prejudiced their

ability to meaningfully conduct jury selection.

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A confidential jury and an anonymous jury have their

differences, but they also have a common feature: jurors are

identified by number, not name. See State v. Sandoval, 788

N.W.2d 172, 194-95 (Neb. 2010) (“numbers jury” empaneled when

the court identified potential jurors by number, and counsel,

but not the defendant, knew their names).

A numbers jury may undermine the presumption of innocence.

A person called a number may think their anonymity is necessary

to protect them or someone else from a dangerous person - the

defendant. See Samonte, 83 Hawaiʻi at 519, 928 P.2d at 12-13

(“An anonymous jury raises the specter that the defendant is a

dangerous person from whom the jurors must be protected, thereby

implicating the defendant’s constitutional right to a

presumption of innocence.”).

A numbers jury is drastic. Trial courts should sparingly

use this jury selection method. Evidence has to support an

innominate jury. For a fully anonymous, partially anonymous, or

confidential jury, a trial court must detail a “strong reason”

the jury or jury system needs protection and make clear,

evidence-based findings to support the conclusion. Then, the

court must take reasonable precautions to minimize prejudice to

the defendant. Id. at 520, 928 P.2d at 14. Reasonable measures

to minimize prejudice include an example suggested by Samonte:

“a plausible and nonprejudicial reason for not disclosing [the

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jurors’] identities . . . (e.g., the trial court could instruct

the jurors that the purpose for juror anonymity is to protect

the jurors from contacts by the news media, thereby implying

that juror anonymity is not the result of threats from the

criminal defendant).” Id. at 522, 928 P.2d at 16.

Here, the trial court used Samonte’s media-centered

alternative reason to explain the confidential jury method. The

trial court told prospective jurors: “Your actual names are

known to the Court and to the attorneys, and other than a sealed

list that will be kept for court records, no one else will know

your actual names, so the public can’t get your names and they

cannot get your contact information.” Later, the court advised

the seated jury:

Ladies and gentlemen, also, as we continue through this
trial, you are going to be referred to by your juror number
as well as your chair number. Your names are not made part
of the public record of this case. You already see that
there is a camera here in the courtroom. While they are
permitted to cover the proceedings, the press is not
allowed to have any likeness of yours, so they can’t take
any pictures of you, they cannot take any video of you,
they cannot depict the jury in this case. So in addition
to your names, your likeness will not be made part of the
public record or available to the public in any way in this
case.

There may be some naivete surrounding a court-crafted

plausible reason. Jurors may not buy it. And this has the

potential to erode the court’s integrity. For this reason and

the chipping of the presumption of innocence that comes from

seating an anonymous or confidential jury, we disfavor a jury

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selection process that uses numbers, not names, to identify

prospective jurors.

Here, we conclude there was no strong, evidence-rooted

reason to empanel a confidential jury. The court’s hunch that

some jurors might say they are “afraid to serve” does not

support a confidential jury. The presumption of innocence

doesn’t take a backseat to abstract notions. The court

should’ve handled this jury selection like any trial: a juror

who expresses a fearful outlook that impairs impartiality will

get excused for cause. Accordingly, unless there is evidence

supporting a strong reason to have a numbers jury, see Samonte,

83 Hawaiʻi at 520-21, 928 P.2d at 14-15 (jury tampering), the

normal jury selection process should unfold with the jurors

addressed by their names.

We turn to something undetected by trial counsel. The

parties and court overlooked HRS § 612-18(c) (Supp. 2014), which

provides that the names of prospective jurors and the “contents

of [their] juror qualification forms . . . shall be made

available to the litigants concerned.” (On appeal, Ines

mentioned the law as part of his Samonte analysis). Learning

information from the juror qualification forms, however, is not

an absolute right. Because the law’s language is directory; it

can be disregarded if necessary to protect the safety of the

jury or the integrity of the jury system. Id. 83 Hawaiʻi at 523,

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928 P.2d at 17 (determining that the “shall” in HRS § 612-18(c)

is directory, not mandatory). Still, there must be a strong

reason to dodge HRS § 612-18, and per above, the court lacked

one.

But the trial court’s failure to adhere to HRS § 612-18(c)

or provide a strong reason for the confidential jury selection

process, does not alone make the defendants’ trial

constitutionally unfair. Defense counsel did not object to the

court’s jury selection method. But even if they did, the

court’s error did not impact Lafoga and Ines’ constitutional

rights. See State v. Mundon, 121 Hawaiʻi 339, 368, 219 P.3d

1126, 1155 (2009) (providing that when there is no reasonable

possibility that a trial court’s error contributed to a

defendant’s conviction, the error is “harmless beyond a

reasonable doubt.”).

Neither Lafoga nor Ines point to anything that shows how

the court’s jury selection method prejudiced them. And our

examination of the record does not show that the defendants were

prejudiced. Before jury selection the lawyers had a chance to

gather helpful information. During jury selection the lawyers

engaged the prospective jurors and learned things about their

backgrounds and attitudes. Defense counsel rejected jurors,

exercising most of their twelve peremptory challenges and

waiving the rest. Lafoga and Ines sat next to defense counsel

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throughout jury selection. Though they did not know the jurors’

names, the defendants saw and heard the prospective jurors.

Nothing in the record suggests the defendants were unable to

meaningfully participate and aid counsel during jury selection.

The trial was constitutionally sound, and we affirm the ICA

in this respect.

III.

The convictions stand. But the defendants’ life without

the possibility of parole sentences do not.

For the defendants’ attempted murder convictions, we hold

that the court’s extended term sentencing jury instructions and

special interrogatories were prejudicially erroneous and

misleading.

Under HRS § 706–662, a defendant convicted of a felony “may

be subject to an extended term of imprisonment” if a jury finds

beyond a reasonable doubt that the extended term is “necessary

for the protection of the public” and the defendant satisfies

certain criteria, like being a “persistent offender.”

Lafoga and Ines concede they were persistent offenders.

Their challenge focuses on the jury’s “necessary for the

protection of the public” finding for their attempted murder

convictions. The two argue the court’s extended term jury

instruction and special interrogatory confused and misled the

jury.

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Lafoga’s extended term jury instruction queried:

Has the prosecution proved beyond a reasonable doubt that
it is necessary for the protection of the public to extend
the sentences for Defendant BRANDON FETU LAFOGA in Count 2
[Attempted Murder] from a possible life term of
imprisonment to a definite life term of
imprisonment . . . ?

(Emphasis added.) Likewise, Lafoga’s special interrogatory

asked, in part: “Has the prosecution proved beyond a reasonable

doubt that it is necessary for the protection of the public to

extend the sentence in Count 2 for Defendant BRANDON FETU LAFOGA

from a possible life term of imprisonment to a definite life

term of imprisonment?” (Emphasis added.)

Ines’ extended term jury instruction similarly queried:

2. Has the prosecution proved beyond a reasonable doubt
that it is necessary for the protection of the public to
extend the sentences for Defendant RANIER INES in Count 1
[Accomplice to Attempted Murder] from a possible life term
of imprisonment to a definite life term of
imprisonment . . . ?

(Emphasis added.) And Ines’ special interrogatory asked, in

part: “Has the prosecution proved beyond a reasonable doubt that

it is necessary for the protection of the public to extend the

sentence in Count 1 for Defendant RANIER INES from a possible

life term of imprisonment to a definite life term of

imprisonment?” (Emphasis added.)

The defendants maintain that “possible life term of

imprisonment” portends a “less-than-life sentence.” A “possible

life term of imprisonment” compared to a “definite life term of

imprisonment” indicates that they will possibly get a sentence

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shorter than life. The word “possible” may spur the jury to

select the harsher option, they say. Lafoga and Ines argue the

jury instructions did not properly convey the options. A

“possible” life term, meant they were going to get a life term –

not something less than life - regardless of the jury’s answer

to the interrogatory.

The State counters that the extended term sentencing jury

instructions and special interrogatories were fine. They came

from State v. Keohokapu and tracked the Hawaiʻi Standard Jury

Instructions – Criminal (HAWJIC). See, e.g., HAWJIC 19.3.1A.

Persistent Offender: H.R.S. § 706-662(1) (asking whether “the

prosecution proved beyond a reasonable doubt that it is

necessary for the protection of the public to extend the

Defendant’s sentence from a . . . possible life term of

imprisonment” to a “definite life term of imprisonment”).

The ICA sided with the State, holding that “[t]he extended

term jury instruction for both defendants was not erroneous

under State v. Keohokapu.” 127 Hawaiʻi 91, 276 P.3d 660 (2012).

It stressed that the jury instructions were similar to an

instruction suggested in a footnote by the Keohokapu majority

and identical to the standard jury instructions. The ICA

pointed out that Keohokapu advised: “[t]o determine whether an

extended term of imprisonment is necessary for the protection of

the public, . . . the jury should not be instructed about the

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procedures of the Hawaiʻi Paroling Authority, or that the

sentence includes the possibility of parole.”

We clarify Keohokapu and straighten our case law to align

with the statutory language of Hawaiʻi’s extended term sentencing

laws.

To start, we discuss Keohokapu. The jury found the

defendant guilty of manslaughter, a class A felony offense with

an “indeterminate term of imprisonment of twenty years without

the possibility of suspense of sentence or probation.” HRS

§ 706-659 (2014). The State moved for extended term sentencing.

Per HRS § 706-664, the Sixth Amendment, and article I section 14

of the Hawaiʻi Constitution, a jury finding is required to make a

defendant eligible for a sentence exceeding the ordinary

statutory maximum. Apprendi v. New Jersey, 530 U.S. 466, 494

(2000); Flubacher v. State, 142 Hawaiʻi 109, 118-19, 414 P.3d

161, 170-71 (2018). Thus, the trial court asked Keohokapu’s

jury: “Has the prosecution proven beyond a reasonable doubt that

it is necessary for the protection of the public to subject

[Keohokapu] 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?” Keohokapu, 127 Hawaiʻi at 100 n.16, 276

P.3d at 669 n.16. The court also gave instructions that defined

“indeterminate term of imprisonment” and discussed many aspects

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of “parole.” It rejected long defense instructions about parole

procedures and processes. Id. at 99-100, 276 P.3d at 668-69.

Keohokapu addressed a discrete question: “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 Hawaiʻi Paroling Authority during the

extended term phase of trial?” Id. at 101, 276 P3d at 670.

Both the majority and dissent endorsed instructions that

sidestepped explanations about parole roles, procedures, and

processes. See Keohokapu, 127 Hawaiʻi at 116, 276 P.3d at 685.

(Recktenwald, C.J., dissenting in part) (agreeing with the

majority that “additional information about how the parole

process works . . . was not required by the statute”).

But the dissent critiqued the majority’s reluctance to

mention or even use the word “parole” in extended term jury

instructions. It spotlighted a flaw with the majority’s

framework: the majority failed to account for a jury decision

after a second-degree murder conviction; that is, whether the

defendant should receive an extended term of life without

parole, rather than a sentence of life with the possibility of

parole. Id. at 123-24, 276 P.3d 692-93. Pointing to HRS § 706-

661, the dissent explained that a jury could not meaningfully

choose between those two sentences without knowing about parole

and “[t]hus the legislature clearly contemplated that juries

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would not be shielded from the fact that parole is available.”

Id. at 116, 276 P.3d at 685.

The Keohokapu majority, in response, recommended an

extended term sentencing instruction for a second-degree murder

case: “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.” Id. at 112

n.33, 276 P.3d at 681 n.33.

The ICA used this footnote, and the HAWJIC standard jury

instructions it inspired, to support upholding the trial court’s

instructions in Lafoga and Ines’ case.

Because now the conceptual discussion in Keohokapu has real

controversy, we clarify that a jury considering extended term

sentencing for second-degree murder must determine whether the

prosecution has proved beyond a reasonable doubt that it is

necessary for the protection of the public to extend a sentence

from life with the possibility of parole to life without the

possibility of parole. A few reasons guide our holding.

First, the legislature was clear. HRS §§ 706-662 and 706-

664 set forth the criteria and procedures for extended term

sentencing, and HRS § 706-661 specifies the “length” of an

extended sentence. If it is “necessary for the protection of

the public,” then a person convicted of second-degree murder may

be sentenced to “life without the possibility of parole.” HRS

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§ 706-661. The legislature’s extended term sentencing laws

contemplate that the jury will decide whether a person is

eligible for a sentence of life without the possibility of

parole or life with the possibility of parole. And, by

extension, the jury will consider the word “parole.”

No evidence or jury instructions describing parole matters

are needed for the jury to consider the difference between life

with and life without parole. Keohokapu’s holding is satisfied

in this respect. “Parole” is all the jury needs to hear. The

jury inquiry depends on the word “parole” but does not depend on

the nuances of parole.

A jury navigates complex words and concepts. The

collective wisdom of twelve citizens is a defining virtue of

America’s jury trial system. We believe jurors will use their

common understanding and knowledge to grasp what “parole” means

for purposes of extended term sentencing. Cf. State v. David,

149 Hawaiʻi 469, 475-76, 494 P.3d 1202, 1208-09 (2021) (providing

that blood alcohol levels and the association between excessive

alcohol consumption and aggression are within the common

knowledge and experience of ordinary jurors). That is, “life

with the possibility of parole” means the defendant may someday

get out of prison. And “life without the possibility of parole”

means the defendant will never get out of prison. So there is

no reason to define or explain “parole.”

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Second, a jury can only make a reasoned sentencing decision

after a murder conviction if it knows about the parole option.

The possibility of parole is the only difference between an

extended sentence and an ordinary sentence for second-degree

murder. To make its “necessary for the protection of the

public” finding, the jury needs to know that difference. “There

is no way that a jury could meaningfully make that decision

without being informed of the difference between life with, and

life without, the possibility of parole.” Keohokapu, 127 Hawaiʻi

at 116, 276 P.3d at 685. (Recktenwald, C.J., dissenting in

part).

Third, the Keohokapu footnote understates the ordinary

statutory maximum for murder. A “possible life term of

imprisonment” compared to a “definite life term of imprisonment”

suggests that a defendant will possibly get a sentence less than

life. At least one of twelve jurors may interpret a “possible

life term of imprisonment” to mean a defendant might get a life

sentence or they might get less than a life sentence. A juror

believing the latter may find the extended sentence is necessary

because of a misplaced belief that the defendant would otherwise

not receive a “life” sentence. As Lafoga’s trial attorney put

it:

[T]he phrase possible life term of imprisonment could leave
the jury to think that there’s not going to be a life term
of imprisonment. If the jury is led to believe that
there’s not going to be a life term of imprisonment, then

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it’s –- it’s more likely that they will say that an
extended term is necessary for the protection of the
public.

The Keohokapu dissent foresaw confusion and prejudice: “An

interrogatory phrased in the manner suggested by the majority

could lead a jury to reasonably infer that a sentence of ‘life’

means exactly what it says, e.g., that the defendant will remain

imprisoned for the remainder of [their] life. However, that

inference would not necessarily be accurate, because a defendant

such as Keohokapu would be eligible for parole.” Keohokapu, 127

Hawaiʻi at 123, 276 P.3d at 692.

Here, we hold the extended term sentencing instructions and

special interrogatories were prejudicially erroneous and

misleading. Stanley v. State, 148 Hawaiʻi 489, 500-01, 479 P.3d

107, 118-19 (2021). We remand for resentencing on the

defendants’ extended term sentences for attempted murder, and

rule that this opinion only applies to Lafoga and Ines and cases

that are on direct review or not yet final. See Lewi v. State,

145 Hawaiʻi 333, 349 n.21, 452 P.3d 330, 346 n.21 (2019).

IV.

This case is remanded for a new extended term sentencing

hearing and resentencing. In all other respects the ICA’s June

20, 2022 judgment on appeal, the circuit court’s February 20,

2020 judgment of conviction and sentence for Lafoga, and the

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circuit court’s September 2, 2020 amended judgment of conviction

and sentence for Ines are affirmed.

William Li /s/ Mark E. Recktenwald
for petitioner Brandon Fetu /s/ Paula A. Nakayama
Lafoga
/s/ Sabrina S. McKenna
Kai Lawrence /s/ Todd W. Eddins
for petitioner Ranier Ines

Stephen K. Tsushima
for respondent

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