State v. Lafoga

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
06-APR-2023
07:50 AM
Dkt. 33 OPCD

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)

APRIL 6, 2023

CONCURRING AND DISSENTING OPINION BY WILSON, J.,
ASSIGNED BY REASON OF VACANCY

I. INTRODUCTION

The Majority condones an anonymous jury1 that violates

the defendants’ fundamental right to twelve impartial judges of

1 “Anonymous jury” is the appropriate categorization of the jury
empaneled in the instant case. The term “anonymous jury” encompasses
“various situations where courts withhold juror information”:

continued...
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the facts guaranteed to them by the sixth amendment of the

United States Constitution and article I, section 14 of the

Hawaiʻi Constitution. By assuming, without evidence, that the

defendants are perceived as dangerous by the twelve citizens who

will decide their guilt or innocence, the Circuit Court of the

...continued

For example, in State v. Sandoval, 280 Neb. 309, 788 N.W.2d
172 (Neb. 2010), the court explained, “[t]he term
‘anonymous jury’ encompasses the withholding of a broad
spectrum of information. Generally, an ‘anonymous jury’
describes a situation where juror identification
information is withheld from the public and the parties
themselves. The least secretive form of an anonymous jury
is where only the jurors’ names are withheld from the
parties. This procedure may also be called an innominate
jury or, if jurors are referred to by number rather than
name, a numbers jury.” Here, we refer to what the County
Court did as empaneling an anonymous jury, because the
court referred to the prospective jurors by assigned
numbers and not by their names.

People v. Flores, 62 N.Y.S.3d 68, 73–74 (N.Y. App. Div. 2017), aff’d, 114
N.E.3d 141 (N.Y. 2018) (cleaned up and emphases added).

The jury in the instant case is thus properly classified as an
anonymous jury, where the jurors’ names and personal information were
withheld from the defendants, the public, and the press, and jurors were
referred to by number only. See id. (“Here, we refer to what the County
Court did as empaneling an anonymous jury, because the court referred to the
prospective jurors by assigned numbers and not by their names.”) (emphasis
added).
The Majority incorrectly concludes that the jury was not anonymous.
The Majority claims that “[t]his case’s jury is better described as a
confidential jury” that “withholds a juror’s name from the public, but not
the parties.” The Majority’s characterization of the record is incorrect.
Defendants Brandon Lafoga and Ranier Ines were completely denied access to
any part of the prospective jurors’ names. Such a misinterpretation of the
record ignores the threat to a fair trial posed by keeping anonymous the
quintessential information needed by the accused to determine if the judge is
fair—the identity of the twelve people sitting in judgment.

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First Circuit (“circuit court”)2 also deprived defendants of the

constitutional right to be presumed not guilty in violation of

article I, section 14 of the Hawaiʻi Constitution. The

unjustified withholding of jurors’ names from the defendants

further violated article I, section 14 of the Hawaiʻi

Constitution by unduly restricting voir dire, which deprived the

defendants of effective assistance of counsel. In addition, the

circuit court’s belief that the jurors would be afraid to serve

on this jury infers that the defendants were deprived of their

right to an impartial judge, in violation of article I, section

5 of the Hawaiʻi Constitution. Each of these errors are

structural.

Structural error is an error of magnitude that

threatens the very fairness of the trial process. No

justification or evidentiary weighing can render the breach of

such fundamental fairness inconsequential. The error cannot be

justified on appeal by a finding that the error was “harmless”.

Structural error “‘affec[ts] the framework within which the

trial proceeds,’ and is not simply ‘an error in the trial

process itself.’” State v. Reed, 135 Hawaiʻi 381, 386, 351 P.3d

1147, 1152 (2015) (citing State v. Ortiz, 91 Hawai‘i 181, 193,

2 The Honorable Paul B.K. Wong presided.

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981 P.2d 1127, 1139 (1999) (quoting Arizona v. Fulminante, 499

U.S. 279, 310 (1991))). The commission of structural error

requires that the victim of the error receive a new trial.

Secreting the identity of judges erodes public

confidence in our judiciary. Any attempt to do so requires this

court’s highest scrutiny. Without any evidence of danger posed

by the defendants to the jury, the court cannot contravene the

presumption of innocence by creating an atmosphere of presumed

guilt as an excuse to conduct the adjudication of guilt behind

the cloak of anonymity. The tradition of identified judges and

jurors is a centerpiece of fairness in our criminal justice

system. A defendant has “a right to a jury of known individuals

. . . because the verdict is both personalized and personified

when rendered by 12 known fellow citizens.” United States v.

Sanchez, 74 F.3d 562, 565 (5th Cir. 1996). The circuit court’s

failure to honor Brandon Lafoga’s and Ranier Ines’

constitutional rights to (1) the presumption of innocence, (2)

an impartial jury, (3) the effective assistance of counsel, and

(4) an impartial tribunal is an abuse of discretion that

necessitates a new trial for defendants. I respectfully

dissent.

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II. DISCUSSION

A. The circuit court violated the defendants’ presumption of
innocence and the right to an impartial jury.

Approximately two weeks before trial in the instant

case, the circuit court sua sponte insisted on redacting all

identifying information about prospective jurors from the juror

questionnaires provided to the parties. With no explanation as

to why, the circuit court informed the prosecutor, defense

counsel and defendants that the prosecution and defense counsel

would receive the prospective juror questionnaires, yet “all

identifying information will be redacted: phone numbers, street

addresses, zip codes and their towns . . . and [c]ourt will

redact their names as well.” (emphasis added). Prospective

jurors would be referred to by number only.

The unilateral action of the judge was immediately

recognized by the attorneys as improper. The prosecution

objected to the anonymous jury on the grounds that the process

was incredibly dehumanizing to the jurors, telling the court “I

do object to that because I think it's incredibly -- in my

respectful opinion, I think it's dehumanizing.” Ines’ counsel

joined the prosecution’s objection, adding her specific concerns

that the parties needed to know who the prospective jurors were

in order to effectively prepare for voir dire, and identify any

potential bias in the jury. To that end, Ines’ counsel informed

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the circuit court “I do agree with [the prosecution’s] concern.3

But if -- my concern is, we need to know who [the jurors] are

for our research purposes and preparing voir dire. In other

words, is there a conflict of interest or potential conflict of

interest? Do I know the juror, that’s what I’m mainly concerned

about.” (Emphases added). In an attempt to obtain the names of

the jurors for all parties, Ines’ counsel assured the circuit

court that she would have no objection if the judge simply

“prefers that we not say the juror’s name on the record[.]” The

circuit court still insisted on withholding the jurors’ names.

For the State and the defense, it was clear: because

there was no indication that the jurors would be afraid of the

defendants, there was no reason to deprive the defendants of

knowledge of the names of the twelve judges of the facts.

Because the circuit court insisted on juror anonymity, the

prosecution inquired as to why. Without pointing to any

evidence, inference, or allegation of any potential threat to

the jury, the judge explained: “I’m trying to head off a juror

in this panel saying, I’m afraid to serve.”

3 It is clear that Ines’ counsel immediately joined the
prosecution’s objection to an anonymous jury with the phrase “I agree with
[the prosecution’s] concerns” followed by additional reasons why the court’s
anonymous jury was objectionable (including counsel’s need to prepare for
voir dire, and to identify any conflicts of interests).

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In response to the circuit court’s groundless

insistence on an anonymous jury, Ines’ counsel again sought to

minimize prejudice to the defendants. To that end, Ines’

counsel requested that the circuit court at least supply the

names of the prospective jurors to counsel, who would then be

required to keep the names secret from the defendants. The

circuit court ultimately agreed: it would provide to the

prosecution and defense attorneys the list of prospective

jurors’ names with “street addresses and telephone numbers still

redacted.” In so doing the circuit court immediately acted in

favor of the government. The prosecution was permitted to know

the identity of the twelve judges of the facts; the defendants

themselves were not. Preserving this imbalance, the circuit

court instructed defense counsel to keep the names of the jurors

secret from their clients: the jurors would remain anonymous to

the defendants, the public, and the press…but not to the

prosecution.

Faced with the circuit court’s insistence on

anonymity, Ines’ counsel made one final effort to mitigate the

prejudice to the defendants the anonymous jury would pose.

Specifically, she requested that the circuit court take the

reasonable precaution to “explain[] to the jury the reason why”

they would be referred to by number only “and that it’s not

meant to be offensive.” (Emphases added). The judge declined

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this request, stating that while he would explain to the jurors

that they would be given numbers, he would not provide a

rationale to the jury for why their identities would be kept

anonymous: “I don't want to give them the [c]ourt’s rationale

as to why we’re not referring to their names in court.”

(Emphasis added).

Over objection of counsel the jurors’ names and

personal identifying information were completely concealed by

the court from all persons and parties to the case, other than

the circuit court and counsel, and the jurors were not to be

given an explanation as to why.

Thus, Lafoga and Ines were deprived of the critical

knowledge of the identity of the twelve judges who sat as jurors

to determine whether they were guilty or innocent of the array

of charges brought against them: attempted murder in the second

degree, conspiracy to commit murder in the second degree,

kidnapping, robbery in the first degree, carrying or use of

firearm in the commission of a separate felony, and ownership or

possession prohibited of any firearm or ammunition by a person

convicted of certain crimes (felon in possession). The ordinary

maximum sentences for these charges ranged from five-year to

twenty-year terms of imprisonment; extended maximum sentences

would expose the defendants to life in prison without the

possibility of parole.

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The twelve judges who were never known to the

defendants ultimately found them guilty.4 In accordance with the

further request of the prosecutor who was privy to their

identity, the twelve people who anonymously declared the

defendants guilty thereafter also adjudged them eligible for

extended life sentences without the possibility of parole.

1. The anonymous jury violated the defendants’
presumption of innocence.

Here, the circuit court decided that juror anonymity

was necessary to prevent prospective jurors from saying they

were “afraid to serve.” Yet there was no evidence in the record

to support this presumption. There was simply no basis for the

judge to assume that the prospective jurors had any reason to

believe that their fellow members of the community, who were

presumed innocent, posed any threat to the jury at all. There

was no inference or allegation that the defendants would attempt

to harm, or tamper with, the jury. Likewise, there was no

inference or allegation that the defendants would attempt to

4 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
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.

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harm or interfere with any witnesses, or the judicial process.

Further, there was no indication that jurors would be subjected

to the type of extensive publicity that might bring about

intimidation and harassment from the media, and/or the public.

As such, the circuit court erroneously imposed juror anonymity

in the instant case, and unjustifiably impaired the defendants’

presumption of innocence in the process.

The Majority and the ICA concede that the circuit

court had no basis to believe anonymity was required to protect

the jury, and that an anonymous jury should not have been

ordered. Specifically, the ICA held that the circuit court’s

belief that jurors would be “afraid to serve” was “insufficient

to establish a ‘strong reason to believe that the jury needs

protection’ to justify the modified jury procedure used in this

case.” (Emphasis added). The Majority agreed, referring to the

circuit court’s belief as a mere “hunch” for which there was “no

strong, evidence-rooted reason[.]” (Emphasis added). The

Majority further expressed concern that “[t]he court should’ve

handled this jury selection like any trial[.]” Nonetheless, the

Majority concluded the action of the circuit court was of no

consequence. Respectfully, the sua sponte action of the circuit

court violated the defendants’ constitutional right to be

presumed innocent by imposing, without justification, an

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anonymous jury that inferred the defendants’ dangerousness and

guilt.

The presumption of innocence is “the undoubted

law, axiomatic and elementary[.]” Coffin v. United States, 156

U.S. 432, 453 (1895). The presumption of innocence is “vital

and fundamental[.]” Id. at 460. It is “a basic component of a

fair trial under our system of criminal justice.” Estelle v.

Williams, 425 U.S. 501, 503 (1976). As such, “its enforcement

lies at the foundation of the administration of our criminal

law.” Coffin, 156 U.S. at 453.

Protecting the presumption of innocence was a

signature issue in State v. Samonte, 83 Hawaiʻi 507, 928 P.2d 1

(1996), where the trial court empaneled a partially anonymous

jury in response to demonstrated jury tampering. Even under

such circumstances, the Samonte court recognized that an

anonymous jury jeopardizes a defendant’s “constitutional right

to a presumption of innocence” by inferring the defendant is

guilty or dangerous. Samonte, 83 Hawaiʻi at 519, 928 P.2d at 12–

13 (“[a]n 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.”) (citation omitted and emphasis

added). In order to protect the presumption of innocence, the

Samonte court applied a now-settled two-part test (the

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“anonymous jury test”) to determine the degree to which the

presumption of innocence can be impaired by the empaneling of an

anonymous jury. See id. at 520, 928 P.2d at 14. The anonymous

jury test prohibits the withholding of jurors’ names from a

defendant without: (1) a “strong reason to believe that the

jury needs protection” and (2) “taking reasonable precautions to

minimize any prejudicial effects on the defendant and to ensure

that his fundamental rights are protected.” Id.

In contrast to Samonte, where jury tampering supplied

the “strong reason” to justify juror anonymity, the circuit

court here had no justification at all to believe anonymity was

required to protect the jury. Thus, the circuit court withheld

the jurors’ names from the defendants’ without demonstrating any

threat to juror safety. It is therefore indisputable that the

circuit court failed to satisfy the first prong of the anonymous

jury test. Because there was no strong reason to withhold juror

names from the defendants, the defendants’ “right to be tried

before a panel of identified jurors was not required to be

sacrificed in this case.” Sanchez, 74 F.3d at 565.

Failing the first prong of the Samonte anonymous jury

test constitutes structural error and is not subject to harmless

error review. See id. (empaneling an anonymous jury without

evidence it was warranted was not subject to harmless error

review). Without any strong reason for doing so, the trial

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court cannot sua sponte reengineer the structural framework of a

fair trial, and sweep away constitutional protections

specifically devised to protect the right to a fair trial. See

Flores, 62 N.Y.S.3d at 74, 76 (harmless error did not apply

where the anonymous jury was empaneled without “good cause[.]”).

Where the extreme prejudice to the defense caused by the

imposition of an anonymous jury is not justified pursuant to the

first factor of the anonymous jury test, consideration of the

second factor is precluded. See Sanchez, 74 F.3d at 565

(empaneling an anonymous jury without justification was not

subject to harmless error review; no further analysis as to

whether the district court took reasonable precaution to

mitigate any prejudice to the defendant was required to vacate

the conviction and reverse).

Because the Majority found no justification for the

circuit court’s empaneling of an anonymous jury, harmless error

does not apply, and the Majority should not have proceeded to

second prong of the anonymous jury test to consider whether the

circuit court’s error could be deemed harmless. See id.

Therefore, the following analysis is provided only to further

demonstrate that imposition of the anonymous jury fails the

second prong of the anonymous jury test as well.

Here, the circuit court imposed an anonymous jury

without legal justification, and thereafter took no action to

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mitigate against a juror’s inference that juror anonymity was to

protect them from “threats from the criminal defendant[.]”

Samonte, 83 Hawaiʻi at 522, 928 P.2d at 16. Because “[a]n

anonymous jury raises the specter that the defendant is a

dangerous person from whom the jurors must be protected,” id. at

519, 928 P.2d at 12, a “plausible and nonprejudicial reason” for

why the jurors are to be anonymous must be explained to jurors.

This is to mitigate the impact of the anonymous jury on the

defendant’s presumption of innocence. Id. at 516, 928 P.2d at

22. As set forth above, defense counsel specifically requested

that the circuit court provide the jurors with a reason as to

why they were anonymous, and let the jurors know “it’s not meant

to be offensive.” The circuit court explicitly refused to do

so, stating “I don’t want to give them the [c]ourt's rationale

as to why we’re not referring to their names in court.” The

record further reflects that the circuit court failed to supply

the jury with any reason for why the jurors were to be

anonymous, let alone a “plausible and nonprejudical reason.”

Id. The judge’s refusal to supply the jurors with any

explanation for their anonymity illustrates that the circuit

court failed to “decrease[] the probability that the jurors

would infer that the defendant is guilty or dangerous[.]” Id.

at 522, 928 P.2d at 16. As such, the circuit court clearly

failed the second prong of the Samonte test, which requires the

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trial court to “take reasonable precautions to minimize any

prejudicial effects on the defendant, and to ensure that his

fundamental rights were protected.” Id. at 520, 928 P.2d at 14.

The Majority holds that the circuit court took the

reasonable precaution of providing jurors with a “plausible and

non-prejudicial reason” for their anonymity, and that the

circuit court’s error in withholding jurors’ names without

“strong reason” was therefore harmless. To support its holding,

the Majority acknowledges that Samonte instructs trial courts to

provide anonymous jurors with the highly specific “plausible and

non-prejudicial reason” that the jurors’ 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 (emphasis

added). The Majority thereafter concludes, without analysis or

explanation, that “[h]ere, the trial court used Samonte’s media-

centered alternative reason to explain the confidential jury

method[.]” The record does not support the Majority’s

assertion.

The record is devoid of any language that purports to

explain to the jury that they are anonymous for purposes of

protecting them from being contacted by the media. The Majority

appears to argue that the following circuit court instructions

to the seated jury supplied the prospective jurors with

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“Samonte’s media-centered alternative reason” as to why they

were to remain anonymous:

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.

(Emphasis added).

As the plain language makes clear, there is no basis to infer

from this statement that the circuit court explained to the jury

their anonymity was required to “protect the jurors from being

contacted by the news media.” The court’s statement to the

seated jury merely mentions the camera’s presence in the

courtroom, and sets forth the camera’s prohibitions against

capturing any juror likeliness. There is no language with

respect to any concerns that the media may attempt to contact

the jurors. There is no rationale supplied in this statement as

to why juror anonymity is required. Without a plausible and

nonprejudicial reason for juror anonymity, the jury is left with

the unmitigated inference of the defendants’ dangerousness and

guilt.

To be clear, none of the language in the circuit

court’s statement infers the jury needs protection from the

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media. There is no language with respect to protecting the

jurors’ phones from ringing, or their doors from being knocked

on, or jurors being approached and/or contacted in any way by

anyone, let alone the media. As such, this statement does not

supply the Samonte-required explanation to the jury that the

reason for their 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.” Samonte at 522, 928 P.2d at 16.

Therefore, the circuit court did not “use[] Samonte’s

media-centered alternative reason to explain” anonymity to the

jurors. The Majority points to no other support for inferring

that the circuit court took reasonable precautions to mitigate

the prejudice of an anonymous jury in the instant case. The

record demonstrates that the circuit court plainly failed to

provide any plausible alternative explanation to the jury as to

why their names were being withheld. Because the trial court

did nothing to mitigate against a juror’s inference that juror

anonymity is to protect them from “threats from the criminal

defendant[,]” the trial court clearly failed the second prong

of the Samonte anonymous jury test as well. Samonte at 522, 928

P.2d at 16.

Depriving a defendant of the presumption of innocence

without “strong reason” and without taking “reasonable

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precautions” to “minimize any prejudicial effects on the

defendant” constitutes structural error. See Flores, 62

N.Y.S.3d at 74, 76-77 (the empaneling of an anonymous jury

without cause and without reasonable precaution was not subject

to harmless error analysis). Under both prongs of the anonymous

jury test articulated in Samonte, the circuit court’s decision

to empanel an anonymous jury cannot be upheld.

2. The anonymous jury violated the defendants’
right to an impartial jury.

The circuit court’s insistence on juror anonymity

without cause also violated the defendants’ right to an

impartial jury. As set forth above, defense counsel objected to

the anonymous jury, arguing that jurors’ names were essential to

ensuring an impartial jury could be empaneled: “[W]e need to

know who [jurors] are for our research purposes and preparing

voir dire. . . .[I]s there a conflict of interest or potential

conflict of interest? Do I know the juror[?] [T]hat’s what I’m

mainly concerned about.” (cleaned up and emphasis added).

Notwithstanding the clear articulation of need by defense

counsel, the circuit court was unbending in its insistence that

defendants would be precluded from learning the identity of the

jurors. Thus, the circuit court declined defense counsel’s

well-articulated request to supply the defendants with the

jurors’ names in order to procure an unbiased jury. By denying

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the defendants the names of the jurors, the circuit court

severely restricted the defendants’ ability to assist counsel

with voir dire, and vet prospective jurors for potential

prejudice. By removing an essential tool of the defense to

obtain a fair jury, the court violated the defendants’

constitutional right to an impartial jury.

“As with the presumption of innocence, the right of

trial by an impartial jury is guaranteed to a criminal defendant

by the state constitution (Art. I, Sec. 11)5 and by the Sixth

Amendment of the federal constitution as applicable to the

States through the Fourteenth Amendment, as well by principles

of due process under both the state and federal constitutions.”

State v. Pokini, 55 Haw. 640, 526 P.2d 94 (1974). Protecting

the right to an impartial jury was another signature concern of

this court in Samonte. Specifically, the Samonte court warned

that juror anonymity impairs a defendant’s rights to an

impartial jury by adversely affecting voir dire: “a criminal

defendant has a constitutional right to an impartial jury. We

are ... mindful of the fact that juror anonymity denies a

defendant information that might be helpful in the exercise of

his or her right to utilize peremptory challenges during voir

5 These rights now reside in article I, section 14 of the Hawaiʻi
Constitution.

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dire.” Samonte, 83 Hawaiʻi at 519, 928 P.2d at 13 (internal

quotations and citations omitted and emphases added).

Because the circuit court here withheld the jurors’

names from the defendants, the defendants were denied the

“constitutional guarantee . . . of an impartial jury.” Id. By

contrast, even in Samonte, where anonymity was deemed justified

due to jury tampering, the defendant was not deprived of the

learning the identities of the jurors. “The parties [including

the defendant] knew the last names of the jurors.” Id. Thus,

the defense “was able to exercise peremptory challenges and

conduct a thorough voir dire because the jury was not completely

anonymous.” Id. at 522, 928 P.2d at 16. Because the defendant

“knew the last names of the jurors[,]” Samonte’s voir dire was

not unduly restricted. The same cannot be said for the

defendants in the instant case.

Voir dire is the structural process through which the

constitutional right of trial by an impartial jury is given

effect. To protect the integrity of the voir dire process, the

legislature provides defendants in Hawaiʻi with the statutory

right “to examine a proposed juror as to the proposed juror’s

qualifications, interest, or bias that would affect the

trial[.]” Hawaiʻi Revised Statutes (“HRS”) § 635-27 (emphasis

added). A prospective juror’s name is essential for examining a

prospective jurors’ “qualifications, interest, or bias.” Id.

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As such, the name of a prospective juror is likely to be the

most important piece of information the accused can apply in

voir dire to empanel an impartial jury. In recognition of the

fundamental importance of juror identity to the attainment of a

fair trial, the legislature acted to compel the disclosure of

prospective jurors’ names to defendants in a criminal trial.

Pursuant to HRS § 612-18(c), “the names of prospective jurors to

be summoned to sit as a jury, and the contents of juror

qualification forms completed by those jurors, shall be made

available to the litigants concerned.” (Emphases added). It is

beyond question that this statutory mandate compelling

disclosure of juror names to defendants at trial protects

substantive rights: this court in Samonte specifically

emphasized that “the purpose of HRS § 612–18(c) is to uphold a

criminal defendant’s constitutional guarantees of a presumption

of innocence and an impartial jury[.]” Samonte, 83 Hawaiʻi at

519, 928 P.2d at 13 (emphasis added). The import of HRS § 612–

18(c) with respect to empaneling an impartial jury is clear:

making the names of prospective jurors available to the accused

is essential to ensuring the defense is able to sufficiently

probe the prospective jurors for potential prejudice.

The defendants in the instant case were thus denied

the ability to sufficiently discern bias in the jury pool. The

defendants were placed at a greater disadvantage than the

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defendant in Samonte, where it was determined that jury

tampering justified juror anonymity. Because Samonte was

supplied the last names of the prospective jurors, the Samonte

court held that “the trial court took reasonable precautions to

minimize any prejudicial effects on Samonte and to ensure that

his fundamental rights were protected.” Id. at 523, 928 P.2d at

17. Conversely, there was no justification in the instant case

to empanel an anonymous jury. Nor were there any “reasonable

precautions” taken by the circuit court to “minimize any

prejudicial effects on the defendant[s]” to “ensure that [their]

fundamental rights [were] protected[.]” Id. at 521, 928 P.2d at

15.

Here, the circuit court completely withheld every part

of the jurors’ names from the defendants without legal

justification. As noted, compounding the error, the circuit

court then did nothing to mitigate a juror’s inference that

juror anonymity is to protect them from “threats from the

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

As with the presumption of innocence, depriving the

defendants of their right to an impartial jury without “strong

reason” and without taking “reasonable precautions” to “minimize

any prejudicial effects on the defendant” further constitutes

structural error. See Flores, 62 N.Y.S.3d at 74, 76-77 (the

empaneling of an anonymous jury without cause and without

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reasonable precaution was not subject to harmless error

analysis). Under the anonymous jury test articulated in

Samonte, the circuit court’s decision to empanel an anonymous

jury stripped defendants of rights fundamental to their

receiving a fair trial.

B. The trial court committed structural error by denying
defendants’ effective assistance of counsel and unduly
restricting voir dire.

The same facts that constituted a deprivation of the

defendants’ rights to an impartial jury constituted a

deprivation of the right to counsel by (1) impermissibly

interfering with defense counsel’s ability to conduct and

control the defense strategy, (2) unduly restricting voir dire,

and (3) preventing the defendants from “participat[ing] fully

and fairly in the adversary factfinding process.” Herring v.

New York, 422 U.S. 853, 858 (1975).

The right to effective assistance of counsel includes

the right to conduct and control defense strategy. Strickland

v. Washington, 466 U.S. 668, 686 (1984) (“Government violates

the right to effective assistance when it interferes in certain

ways with the ability of counsel to make independent decisions

about how to conduct the defense.”) (emphases added). Court

restrictions on representation constitute impermissible

interference with defense counsel. Herring, 422 U.S. at 857

(“[T]he right to the assistance of counsel has been understood

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to mean that there can be no restrictions upon the function of

counsel in defending a criminal prosecution[.]”) (emphasis

added). Preventing a defendant from participating fully and

fairly in their defense also violates the right to effective

assistance of counsel. Id. at 858 (“The right to the assistance

of counsel has thus been given a meaning that ensures to the

defense in a criminal trial the opportunity to participate fully

and fairly in the adversary factfinding process.”) (emphasis

added). Hawaiʻi courts have recognized that “[t]he sixth

amendment and article I, section 14 of the Hawaiʻi Constitution

guarantee an accused the right to the assistance of counsel in

his or her defense, ... as well as the right to present

a defense.” State v. Vliet, 91 Hawaiʻi 288, 294, n. 3, 983 P.2d

189, 195, n. 3 (1999) (internal citations omitted). “[T]he

defendant has a constitutional right under the sixth amendment

to offer a defense, and, as an adjunct to this right, to devise

a proper and appropriate trial strategy to blunt or otherwise

neutralize the thrust of the prosecution’s case-in-chief.”

State v. Kupau, 10 Haw. App. 503, 516, 879 P.2d 559, 565

(1994), aff’d and remanded, 76 Hawaiʻi 387, 879 P.2d 492 (1994).

Here, the court’s anonymous jury restricted the

function of defense counsel, and prevented the defendants from

“participat[ing] fully and fairly” in their defense. Herring,

422 U.S. at 858. By requiring defense counsel to keep the names

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of prospective jurors secret from their clients, the court

interposed a firewall between counsel and their clients that (1)

precluded their ability to communicate to each other about trial

strategy and controlling their defense, and (2) destroyed their

ability to effectively engage in voir dire.

This court has recognized that “the erroneous

deprivation of the right to counsel under article I, section 14

of the Hawaiʻi Constitution is a structural error not subject to

harmless error analysis[.]” Akau v. State, 144 Hawaiʻi 159, 162,

439 P.3d 111, 114 (2019). As such, “no showing of prejudice is

required[.]” Id. The unjustified withholding of jurors’ names

effected a court-imposed restriction on voir dire that precluded

the defendants from “participat[ing] fully and fairly” in the

jury selection process. Herring, 422 U.S. at 858. Because the

jurors’ names were withheld from the defendants, they were

rendered unable to assist counsel in the development of defense

strategy by conducting voir dire with information critical to

the selection of twelve fair judges of the facts. Because the

defendants did not know who the prospective jurors were,

defendants could not “participate fully and fairly” in the

defense strategy aimed at discovering whether a prospective

juror may be prejudiced on the basis of knowledge of, or

relationships with, the defendants themselves, and/or potential

witnesses. Id. The defendants were thus deprived of the

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effective assistance of counsel, and harmless error does not

apply. Akau, 144 Hawaiʻi at 162, 439 P.3d at 114. Id.

Additionally, because the jurors were kept anonymous from the

defendants, it cannot be known whether the jurors were

prejudiced against the defendants due to a negative interaction

with a potential juror in the past. This court has considered

that “an error may be properly considered structural when the

impact of the error on conviction is impossible to reliably

assess and when harmless error review would require the

appellate court to engage in pure speculation.” State v. Loher,

140 Hawaiʻi 205, 222, 398 P.3d 794, 811 (2017). Because there is

no way of “reliably assessing” the impact of the circuit court’s

error in the instant case, harmless error review would require

the court to “engage in pure speculation” about whether any of

the prospective jurors harbored such undetected bias towards the

defendants. Id. Accordingly, harmless error analysis does not

apply.

The withholding of the jurors’ names from the

defendants also constituted an impermissible interference with

defense counsel’s ability to control the defense. Strickland v.

Washington, 466 U.S. at 686 (“Government violates the right to

effective assistance when it interferes in certain ways with the

ability of counsel to make independent decisions about how to

conduct the defense.”). Because the circuit court withheld the

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jurors’ names from the defendants, the defense attorneys could

not seek and obtain key information from defendants about

prospective jurors that would shape and inform trial strategy;

this was a “restriction[n] on the function of counsel” and trial

strategy was thus impaired. Herring, 422 U.S. at 857. Because

defense counsel lost the ability to consult with their clients

about discerning potential prejudice in the jury pool, counsel

was no longer able to “make independent decisions about how to

conduct the defense.” Strickland v. Washington, 466 U.S. at

686.

The deprivation of the defendants’ right to counsel

again constitutes structural error “not subject to harmless

error analysis[.]” Akau, 144 Hawaiʻi at 162, 439 P.3d at 114.

As such, “no showing of prejudice is required[.]” Id.

C. The trial court committed structural error by denying
the defendants an impartial tribunal.

The circuit court judge explained that he empaneled an

anonymous jury in the instant case because he presumed a juror

would say “I’m afraid to serve.” The judge elaborated that he

did not want to give the jurors his rationale for keeping them

anonymous because he believed that if he did, he would have to

“quell anxiety” amongst the jurors and assure them “that there's

been no incidents” in the past by stating: “I have, in the past,

had to inform jurors to quell anxiety, that there's been no

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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.” (Emphases

added). The judge thus “believe[d]” that the “situation here”

would give jurors "anxiety” that would lead them to say “I’m

afraid to serve.” As conceded by the Majority, it is

indisputable that the judge had no “evidence-rooted reason” to

harbor such beliefs, and consequently empanel an anonymous jury.

The circuit court’s “hunch” that some jurors might say they are

“afraid to serve” does not support an anonymous jury. However,

the court’s “hunch” does imply that the judge himself believed

the jurors had reason to be afraid to serve. This belief

implies a lack of neutrality on the part of the judge, because

it implies the judge passed judgment on the facts of the case,

as well as on the character of the defendants. The judge

concluded that the defendants were not to be trusted with the

names of the potential jurors. The complete absence of any

evidence suggesting the defendants could not be trusted evinces

a belief by the judge that, merely based on the accusations

against them, defendants were not to be trusted with the names

of the jurors. As noted by the Majority, “[f]or 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

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support the conclusion.” (Emphasis added). The Majority

concurs the circuit court judge lacked any such evidence-based

findings in the instant case. Therefore, without evidence to

support the judge’s belief that the jury was facing a threat, or

had reason to be afraid, the inference that the judge “assumed

the role of a prosecutor” and presumed the defendants guilty

pervades. State v. Silva, 78 Hawaiʻi 115, 120, 890 P.2d 702, 707

(App. 1995), overruled on other grounds by Tachibana v. State,

79 Hawaiʻi 226, 900 P.2d 1293 (1995). This inference “seriously

compromise[s] the fundamental tenet of judicial impartiality

which must underlie criminal trials[.]” Silva, 78 Hawaiʻi at

121, 890 P.2d at 708. Because “the violation of

the Hawaiʻi constitutional right to an impartial judge is so

basic to a fair trial that it can never be treated as harmless

error[,]” the judge’s empaneling of an anonymous jury

constituted structural error and remand for a fair trial is

required. Id.

III. CONCLUSION

There is no dispute that the circuit court erred in

empaneling a jury whose identity was disguised behind a number.

The Majority’s holding portends a future where it is deemed

harmless for judges to act upon no record to deny defendants the

fundamental right to a fair trial judged by a known jury. I

depart from such a profound weakening of the right to a fair

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trial. Respectfully, withholding the names of the twelve jurors

from the defendants without any basis violated Lafoga’s and

Ines’ constitutional rights to the presumption of innocence,

right to counsel, right to an impartial jury, and right to an

impartial judge of the law. In so doing the circuit court

committed structural error tearing the fundamental fabric of a

fair trial. Error of such consequence is not subject to

harmless review. The ICA’s June 20, 2022 judgment on appeal,

the circuit court’s February 20, 2020 judgment of conviction and

sentence for Lafoga,6 and the circuit court’s September 2, 2020

amended judgment of conviction and sentence for Ines should be

vacated with instructions on remand to allow defendants to

conduct voir dire without restriction. Accordingly, I

respectfully dissent.7

/s/ Michael D. Wilson

6 Mr. Brandon Lafoga stands forever deprived of a fair trial in the
instant case, as he died in custody on February 5, 2023.

7 I concur with the Majority’s opinion that the extended term
sentencing instructions and special interrogatories were prejudicially
erroneous and misleading, and that remand for a new extended term sentencing
hearing and resentencing is required.

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