*1 Kaeo, George Deputy Prosecuting Attorney (Barry Chung, Prosecuting Attorney, counsel) plaintiff- appellee. HAWAII,
STATE OF Plaintiff-Appellee, v. JAMES POKINI, Defendant-Appellant.
NO. 5485 HAWAII, STATE OF Plaintiff-Appellee, v. WILLIAM MOORE, Defendant-Appellant.
NO. 5486 AUGUST RICHARDSON, C.J., LEVINSON, KOBAYASHI, MENOR,
OGATA AND JJ. LEVINSON, OPINION OF THE BY COURT J. defendants-appellants jointly Pokini and Moore were subsequently thirty tried and convicted and sentenced robbery of the alleged in a Oahu parts for their years prison April armed individuals several Sugar Company variety substantial claims they raised a appeal On 1972. *2 denied, that we trial and therefore a fair right
that their their convictions sentences. must reverse necessary. agrees reversal majority A of this court Menor entirety. its joins opinion this in Ogata Justice Justice joins opinion. in III of this finds re- part Menor also Justice judge’s procedure, versible in trial voir but for error dire in I of expressed part are those reasons which different from separate opinion. are in his and which set forth opinion, this VOIR DIRE PROSPECTIVE I. RESTRICTED OF JURORS PUBLICITY IN THE AREA OF PRE-TRIAL is whether the trial appellants issue raised first pros- voir dire of pre-trial “pre-empting” erred in judge jurors. pective view, my
In
the issue here is not whether
jurors,
prospective
in
dire of
“pre-empting”
voir
erred
give adequately dispelled
the examination he did
but whether
“im
not render
possibility
certain veniremen could
’
exposure
as a result of their
partial’ verdicts
these cases
pre-trial publicity
robbery
extensive
in which
of another
federal1 and
appellants
were defendants. Both the
require,
protection
state2 constitutions
as a basic
of the indi
”
case,
jury.
“impartial
Among
vidual
a criminal
an
things,
by jury
requirement
other
means trial
substan
tially
biasing
inflammatory pre-trial
from the
free
effects
Dowd,
(1961);
Irvin v.
366
717
State v. Waki
publicity.
U.S.
nekona,
574,
678,
579-80,
P.2d
682
While
53 Haw.
499
Procedure au
24(a)
Rule
the Hawaii
of Criminal
Rules
all or
of the “examina
part
thorizes the trial
to conduct
himself, thereby expediting the
jurors
of prospective
tion”
that rule
not sanction
process
selecting
jury,
does
constitutionally.
adequate
which is less than
examination
(7th
Dellinger,
v.
472 F.2d
370-77
Compare United States
Const,
& XIV.
amends. VI
U.S.
I,
§ 11.
Const,
art.
Hawaii
denied,
1912),
Cir.
(1973) with United
cert.
U.S.
States
Eastwood,
(5th
1973).
In the the showing pre- factual of adverse trial publicity made is appellants the That substantial. publicity included dozens of as newspaper articles as well trial, coverage concerning radio and television the conviction sentencing Pokini, and Moore and the others for so-called “Liberty jewel robbery.” coverage House Much dealt testimony Low, with the prosecution for the an of Robert alleged accomplice of the whose was appellants, evidence prosecution’s also crucial in cases under review here. It photographs appellants included of the in reports alleged handcuffs as well as of their courtroom out- Advertiser, bursts. One article in the Feb- Honolulu dated ruary 1973, purports testimony in his to cover Pokini’s Liberty trial, own behalf and states in its lead House paragraph: Pokini, 35, police main- K. an ex-convict who
James plotted major tain number of robberies and murders- year, his for-hire on Oahu last took the witness stand in Thursday presented own defense and with the barely picture enough intelli- slow-witted oaf gence tie his to own shoelaces. 14,1973, carried a front of March
The Honolulu Star-Bulletin Life,” in story Robbery as Leader page “LH Gets headlined case, in the judge in that also the judge which the trial “moving cases, labelling as quoted is Pokini present stating as robbery quoted and in which Moore force” day guilty second had decided he judge “the [Moore] the trial. began case Publicity concerning Liberty House — mid-March, December, through early 1972 and lasted present only weeks before the commencement two involved in many individuals highlighted It of the same trial. witness Robert Judge Chang, prosecution present trial — repeatedly Low, appellants, and the Moore Pokini responsible a “gang” that Pokini was the leader of suggested and murders on Oahu. for several recent robberies pre-trial quantity, quality, timing of this Given the on the trial to conduct a publicity, was incumbent thorough-going they examination of veniremen who indicated exposed exception had to it. Yet without been perfunctory generalized questions which eli relied on solely responses subjective cited from these on their ability impartial.3 ignore pre-trial publicity and be fair and to inquiry extent and refused allow into the expressly He Tanaka, impanelled prospective juror subsequently questioning who was appears judge’s publicity juror, typical approach It issue. of the trial as transcript as follows: Tanaka, you which have been as to news media matters THE COURT: Miss defendants, any exposed concerning media either the two did news you opinion regarding guilt or innocence matter cause form in this defendants case? No. PROSPECTIVE TANAKA: JUROR opinion guilt your Do mind an COURT: now have formed THE *4 in case? or innocence of defendants this TANAKA: No. PROSPECTIVE JUROR you guilt of the defendants in Can determine the or innocence THE COURT: case, entirely upon anything produced this and not let this the evidence in case heard, seen, may prior you on have or read about either the defendants you guilt your determine the affect or influence decision? Can occasions here, only upon and not let these other of the defendants the evidence innocence your affect or influence decision? matters that the Court TANAKA: I will let the evidence PROSPECTIVE JUROR — know, you my position. gave final me as on words, only In THE COURT: other evidence that hear this case? Right. TANAKA: PROSPECTIVE JUROR
644 specific
nature publicity matters jurors to which had pre-trial exposed. publicity been Where is as extensive and as likely here, prejudicial as it was right to an constitutional impartial requires objective examination into as well as subjective indicia of In non-prejudice. Silverthorne v. United States, (9th 1968), denied, 400 F.2d Cir. cert. (1971), U. example, S. the court held that extensive pre-trial publicity of compelled the case trial judge on voir of prospective jurors dire to ascertain “ivhat information the jurors had accumulated.” (Emphasis original.) Abbrevi ated inquiry jurors’ subjective ability into the fair impartial inadequate, the court held.
[Wjhether a juror solely can render verdict based on evidence adduced the courtroom should not be ad- judged juror’s self-righteous- own assessment of something ness without more. at (emphasis original); Note,
Id. see Voir Dire in Fed- Protecting eral Criminal Trials: Right Defendant’s Jury, Impartial 274-75 United L.J. Ind. Supreme suggested States policy Court reasons behind requirement inquiry possibility of more detailed into the prejudice publicity stated, from pre-trial when it inIrvinv. Doiud, supra 728:
No doubt each was sincere when he said that he impartial petitioner, would be fair and but psychological impact requiring such declaration before one’s fellows is its often father.
There is an essential subjective difference between objective juror impartiality. evidence of The federal and state require constitutions to attempt adduce both pre-trial publicity where is as extensive that preceding the appellants. trial of these Silverthorne v. United supra. judge’s express The trial refusal do was reversible so error it foreclosed from because his consideration crucial evidence bias, possible juror thereby rendering fatally uninformed the exercise of his discretion to excuse for cause. Very Pyun, questions THE well. Mr. on the Court has COURT: based necessary juror, any and the asked answers is not to dwell further on the pretrial publicity regarding juror.
645 II. THE TRIAL MISCONDUCT JUDGE’S DEFENSE COUNSEL
TOWARDS system of criminal fairness our the ethic of to Essential maintain a trial responsibility of is the jurisprudence The attitude impartiality. appearance the attitude matters entrusted necessary in those is because impartiality requires fairness fundamental judge’s discretion to the trial solely by the facts guided that discretion that he exercise idiosyncratic against party a pique his the law and 387; supra at See, Dellinger, v. United States e.g., counsel. 153, (1942). appear Culin, The 36 Haw. 158
Territory v. Van
First,
for at least two reasons.
is
impartiality
ance of
essential
by offering visible
general
respect
the law
it fosters
second,
in a
integrity.
And
judiciary’s
evidence of
helps excise from
judicial impartiality
appearance
trial the
judge’s
jury’s
under the
consideration
those matters
position.
a
necessarily
party’s
the merits of
views on
influential
(1933);
See,
e.g., Quercia v. United
These of fairness embrace considerations treatment of no less than themselves. parties counsel injudicious an attor expressed against An attitude held and ney likely judge’s approach to matters in the to color impress entrusted his as well case discretion and, inferentially, attorney that he idea disfavors the See, attorney represents. e.g., United States position denied, 1204, Porter, (8th Cir.), cert. 441 F.2d 1213-16 (1971); State, 242 Ark. 411 S.W.2d U. Davis S. danger posed is the fair trial So serious demeaning
judge’s unwarranted remarks defense counsel jury, them errors of presence of the the law considers proportions. rights constitutional constitutional compromised by rights defendant such conduct include law, process pro due in a criminal assistance counsel secution, trialby impartial jury. type an error Once therefore, identified, appellate court must reverse resulting conscientiously conclude conviction unless it can setting particular that “in the case error so is] [the] [the unimportant insignificant may, consistent with [it] *6 ” Constitution, the Federal be deemed harmless. Chapman v. California, 18, (1967). 22 386 U.S. The error must be “harm beyond less a doubt,” 24, reasonable id. at for if a there is possibility’ ‘reasonable complained the matter of might conviction,” have contributed to the the error must give a Porter, rise to 1215, reversal. United States v. supra at Fahy Connecticut, quoting 85, v. 375 U.S. 86-87 A assessing crucial if not determinative consideration beyond whether a constitutional is a error harmless reasona- ble is the strength prosecution’s doubt on of the case guilt. defendant’s See v. Chapman California, supra 22. example, Porter, For v. United States supra, held constitu- tionally harmless trial judge’s criticisms of defense counsel in the presence jury only of the because the court viewed the record as a as presenting guilt. whole a “strong” case of 441 Accord, State, 642, 647, F.2d at 1215. v. Kinna 84 Nev. 447 32, (1968) (“the P.2d necessary 35 amount misconduct depends strong convincing reverse on how and is the evi- guilt”). Williams, People 690, dence But see 40 A.D.2d (1972) (even 267 336 N.Y.S.2d where of guilt evidence strong, may misconduct towards defense counsel warrant reversal). connection,
In this
guilt
“strong”
a case of
is never
if
testimony
evidence essential to conviction is
an alleged
credibility
accomplice
subjects
whose
the defendant
to se
vere attack. A trial judge’s departure from the desired norm
impartiality
necessarily
in such a case is
reversible error.
Thomas,
68,
882,
State v.
St. 2d
'g
Ohio
303 N.E.2d
aff
(1973);
State,
App.
Ohio
2d
The trial
hostile attitude towards defense counsel
trial,
was evident
inception
from the
Prior
these cases.
example,
appellant
judge
Pokini moved
disqualify
ground that
personal
himself on the
he held a
bias
counsel,
against
Pyun,
Pokini. Pokini’s
Matthew
accom-
awith
supporting affidavit
and Pokini’s
panied this motion
601-7(b).
faith,
§
good
required
HRS
certificate
Pyun’s
was limited to statement
Although this certificate
honestly
the matters
that Pokini
believed
good faith belief
affidavit,
errone
the trial
in the motion
contained
Pyun
challenged
his
ously
the witness stand
placed
in the affidavit.
faith
in the facts averred
Pokini
good
belief
lengthy
(1921). After
Cf. Berger v. United
This and others out of the during mind the trial.” the trend the court’s “reflected] *7 many Culin, at with the Territory supra Coupled v. Van 158. defense counsel impropriety
other of towards instances instructions, Pyun During proceedings jury example, objected Mr. to settle for by newly proposed ground to a the on the that in its modified instruction entirety jury participants to the the other in the would tend mislead role of given copy alleged robbery. Although defense counsel had been of the instruction only morning, Pyun's objection basically although that and the thrust of Mr. was factual, judge openly Pyun citing legal for the trial nonetheless berated Mr. no authority doing again support position. displayed his In he an in so once unfor- tendency advocacy personal challenge with a to his tunate to confuse zealous Pyun's professional ability: authority. also disdain for Mr. He revealed obvious Pyun, totally your position in with this is without Mr. connection instruction asking you lawyer practicing keeping in a trial The is for the the court. Court your asking you authority position. legal support The You have none. Court particular improve your objection regarding so that can to a sentence the Court instruction, possible. if this instruction, purpose settling with the instructions to come out best steadfastly cooperation of all the minds involved in the trial. You have with the Court, Court; willing you being and instead of to assist the refused assist the contrary you willing position, to assist the Court. have taken and are not Now, you Pyun, thing position takes a Mr. the first do whenever Court out, straighten things prejudice. is to claim bias and Pyun, you ready yourself lawyer present as a Mr. when are to conduct you way
legal for the Court to look at so that can assist the authorities Court — you legal you give your should with authorities when assistance to the Court matters, trying straighten you in then will that are out the Court understand trial, never, trying you during But assist the Court. have course of authority positions you presented legal all of the have taken: and one you legal authority?" constantly: your has “What is You have not Court asked any. your presented position should, presenting any legal feels in The Court not assisting authority as an officer of the is not Court Court. judge presence they
committed the trial jury, a deep reveal and thorough-going against contempt bias appellants’ legal for the representation. judge’s The trial of mind state and conduct in this regard fundamentally were judicial at odds with his responsibilities.5 Similarly, it be jury likely cannot said that many vituperative affected against outbursts defense judge the trial counsel made As the presence. United Supreme Quercia States Court stated in v. United supra 470: judge
The influence of the trial necessarily on the “is properly great weight” lightest and “his word or deference, may intimation is received with prove ” controlling. catalogue There follows a judge’s of some the trial criti- They of defense jury. go cisms counsel of the beyond “lightest far his on the quality word intimation” the defense.
During opening statement the appellant counsel, Sherwood, Moore’s Michael inter rupted on his own motion several times to admonish Sher argue objected wood not to the law. When Sherwood to these interruptions,6 the judge rejoined: 5 The Ethics, Canons of “as a standard of conduct for members adopted Judicial of the Hawaii Rule of this in relevant Judiciary” by court, rules provide part: A 5. Essential Conduct. be attentive, should im- temperate, patient, and, since he is law and it to partial, facts, to administer he should apply diligent endeavoring the law and studious to ascertain principles *8 the facts. judge 9. Consideration and Others. A should be considerate of Jurors
jurors, witnesses others in court. and attendance the upon judge 10. Courtesy counsel, A should be courteous to Civility. especially young appearing to those who are and also to all others inexperienced, or justice in the concerned administration the court. 15. . in Conduct Trial. . . Interference judge Conversation between the counsel court often but necessary, judge the should be studious to avoid controversies which are to obscure the apt litigants unjust merits of the between and lead to its In dispute disposition. addressing litigants, counsel, witnesses, he should avoid a controversial manner or tone. See Canons of Ethics No. which a trial Judicial provides, part, judge you yourself manner, in a competent When conduct interrupt you, will not Mr. pro- Court Please Sherwood. yourself competently please ceed .... And conduct lawyer. a proper manner as . . . response objection by Pyun during In to Mr. Mr. statement, opening trial judge Sherwood’s also an- nounced, jury for the hear: you
[Ejvery speak up against time Court when something, has said will Court the Court have comment Pyun. that, against you, you Mr. want I to know Mr. Pyun.7
Later, statement, Pyun engaged opening while in his own Mr. suggested jury “angry” during that if he seemed trial the should against Though not hold it his client. objection there was no language prosecution, this judge interjected: trial The court request would like to kindly counsel if he would his angry leave self out of the courtroom from here on out. The court will appreciate it.
Upon Pyun’s comment, Mr. objection tenor of this judge responded:
Very well. Pyun, you Mr. keep rising keep on on making day statements. The hopes one will keep learn not to rising, just but let matters lie.
In the Mr. course of Sherwood’s a key cross-examination of prosecution witness, alleged Philip Sylva, accomplice Sylva’s ruled questions concerning inadmissible involvement in murder with the unconnected case. The following colloquy then occurred: arguments should avoid of counsel in their interruptions clarify his except mind toas and he should not be positions, tempted to unnecessary learning judgment. or a display premature (1910), State v. 59 Wash. P. Compare Phillips, 257, 109 1047, 1049 where Washington following Court of held that the Supreme comments of the trial prejudicial, to defense counsel in the of constituted reversible error: Fitzgerald: Judge: “Mr. I expect your connect honor. You can [evidence], Fitzgerald: Judge: make lot of declarations. Mr. to what the court except says. Fitzgerald: Judge: time
Every the court take an Mr. I will. speaks exception. time the Every court bats eye his take an exception.” *9 650 totally precluding me from
Mr. Is the Sherwood: Court might have relevance going into matters which testimony? credibility this man’s character Sherwood, you that it has stand Mr. if believe The Court: you lawyer as a in this case. The Court ing proceed should you do under already objection. has If sustained you think suggests area in the Court stand the are about it.8 jury,
It is in of the presence clear that these remarks opinion conveying judge’s contemptuous counsel, As improper.9 capabilities palpably of defense were held on a record Appeals the Court of for the Seventh Circuit judge, a trial reflecting improprieties similar committed ineptness, jury, before the es “gratuitous implications of sarcasm, jus were not pecially impact with the added tified,” v. United States and constituted reversible error. Dellinger, at supra 387-88. judge’s misconduct prejudicial nature by the record factual counsel in accentuated
towards defense
It shows that
guilt.
appellants’
on the
question
testimony
largely
of Robert
case
on the
prosecution’s
turned
robbery
Sylva,
alleged participants
Philip
two
Low
in return
immunity
prosecution
granted
who had
been
testimony
and Pokini. The defense
against
Moore
for
challenges
part
extensive
to the cred-
rested
the most
credibility
alleged
ibility
witnesses. Where the
these
said,
issue,
as it
testimony
key
never be
accomplice
is a
can
Porter,
1215, that
supra
v.
at
the case
was United States
Indeed,
Thomas,
lengthy
supra.
guilt
“strong.
^State v.
cases, during
which
one
these
deliberations
deadlocked,
point the foreman indicated
8
476,
1968).
State,
(Okla.
Compare
the court
477
where
Dale v.
441 P.2d
Crim.
reprimand
judge's
counsel
fora trial
of defense
reversed
conviction
objected
questions
jury.
his client
to certain
asked of
counsel had
Defense
judge responded
during
prosecution,
cross-examination
asking
the difference" between direct examination
if counsel “understood]
cross-examination.
(1967);
State,
See,
State
e.g.,
242 Ark.
S.W.2d
Davis
(Okla.
215, 220-21
1969);
(Mo.
This court Van State, 548-49, 542, App. 1 57 S.E. quoting Sharpton Ga. 929, (1907): 932
Every practitioner eagerly jurors how alert are knows every bench, utterance from the and how sensitive juror slightest judicial expression. mind to the judge’s short-tempered The trial abuse of defense counsel in jury, by repetition, “clings exacerbated ’ the mind like a epidermis. State, tattoo ’Carlile v. 129 860, 865, 862, Fla. 176 efficacy So. 864 Counsel’s in eyes jury could have been diminished trial remarks; this, judge’s and a trial such where the entire premised ability defense is on counsel’s to impeach the cred ibility testimony, of accomplice such conduct from the bench especially devastating. The five members of this court are — unanimous their disapproval judge’s the trial remarks only among difference us is whether those remarks were However, reversible non-reversible error. since these are to grounds anyway, cases be reversed on other hopefully guidance will draw disapproval from our should preside he at the retrial of these cases.
III. EX PARTE COMMUNICATIONS BY THE TRIAL JUDGE
WITH THE DURING ITS JURY DELIBERATIONS three during On occasions jury’s deliberations sent written jury communications without reconvening first affording the court and appellants their opportunity counsel an present. to be One was in re sponse request to a written juror Baugh from to be excused duty10 from jury as well a report as to from the bailiff that dictionary there an open jury in the room.11 The other two Baugh's request duty The matter jury to be excused from is treated fully part opinion. IV of this message judge's The trial written read as follows: hereby Jury any The Court instructs the that the are not to look books whatsoever, including dictionaries, Any may which be in the room. word seeking response questions
were
to written
fact,”
“accessory
before the
concepts
definitions of
crime,”
upon
assault
“aggravated
“scene of the
person.”12
—
Menor,
majority
consisting
A
of this court
of Justice
Ogata,
myself
agree
judge’s
that the
ex
Justice
jury during
with the
parte communications
deliberations
Irebaria,
353, 358,
See
were reversible error.
State
55 Haw.
(1974) (dicta).
519 P.2d
A defendant
in criminal
“right
a procedural
pres
case has
to be
constitutional13
jury.”
ent whenever
the court
with the
communicates
Eyman,
(9th
1972);
Bustamante v.
F.2d
see
*11
456
Cir.
R.
30(d).
right
Because this
is of constitu
Crim. P.
Hawaii
dimensions, moreover, at
very
the
least
it is enforce
tional
a
appeal by
prosecu
able
reversal unless the
requiring
on
rule
beyond a
right
tion
that a
the
was harmless
shows
violation of
at
Dellinger,
See
States v.
supra
reasonable doubt.14
United
Schor,
(2d
1969).
377-80;
26, 30
v.
F.2d
Cir.
United States
418
parte judge-jury
the
Apart
question
from
whether the ex
error,”
we
the out
communications were “harmless
note
man
set a Hawaii statute
a
of this court which
decision
635-43,
§
appellants’
date reversal of the
HRS
convictions.
cases,15
as
during
provides
trial of these
follows:
effective
of,
Jury
is to
have a definition
and desire to
do not understand
request
given by
request
such a
become
be
Should
such definition
Court.
your
following
necessary, please phrase
question
manner:
in the
word:_”
Jury
following
please
define for the
“Will
Court
legal
message
say
nothing
word
a
about whether the
That is all the
should
word or not.
requests
jury duty
at this
The
from
time.
Court
No
is to
excused
by
jurors do
as instructed
the Court.
all
their best to deliberate
12
copies of
instruc-
to the
verbatim written
The
transmitted
touching
concepts
previously
in his initial
tions
on these
he had
read to the
which
charge.
13
Const,
Const,
I,
XIV;
§
Hawaii
art.
11.
&
amends. VI
U.S.
phrasing
policy
error
of the rule
harmless constitutional
behind and
'file
person prejudiced
a burden to show
error]
on someone other than
[the
"oastf]
18,
California,
Chapman
In the area
386 U.S.
that was harmless.”
communications,
prosecution
to show
parte judge-jury
is on the
the burden
ex
beyond
a reasonable doubt. Bustamante
harmless
the communications were
1972).
(9th
Eyman,
456 F.2d
Cir.
1, 1973, by
July
L.
repealed,
ch.
has
been
effective
The statute
since
2B(n).
§
parties
person
the cause
trial either in
Unless the
through
attorneys,
shall file therein their written
may
consent
that the
charge
jury orally,
it shall
court,
duty
except
provided
be the
section
231-25,
writing
charge
and read its
to reduce
to the
jury;
manuscript
charge, signed
and the
of such
court,
cause, and
a
shall be filed in the
shall constitute
Whenever,
part of the record thereof.
and as
as the
often
duty,
depart
party
court shall
such
either
to such suit
from
right,
shall be entitled as a matter
to demand and have
granted
new trial
such cause.16
added).
(Emphasis
portion
The
sug-
italicized
of this statute
gests
degree
that the
prejudice
resulting
an improper
judge-jury communication is irrelevant
right
to a new
trial. This interpretation
firmly
supported by The Great
Fernandez,
E. K.
Wilno v.
(1938),
direct violation of the terms of the statute. The statute it duty makes the court, in the absence of the written parties consent of the attorneys, or their to reduce writing to charge jury. read its charge to the The question was writing reduced to but was not read to the jury, and the parties record shows that neither the nor attorneys gave their written proce- consent to the dure provides parties followed. The statute that the shall entitled, be as a right, matter a of to new trial whenever
the depart duty court shall imposed from the upon it the statute. 1955, 231-24, quoted § printers The text that of RLH since the of the Hawaii inadvertently
Revised Statutes omitted certain words of the statute. followed, that here procedure
Some courts hold the though error, given is harmless where the instruction correctly law opinions states the but none of the examined statutory provisions provi- us similar to disclose of are not subject. sions our statute on We concerned a with the That is matter for the wisdom statute. statute, by
legislature. what the conse- prescribing The duty be, by the its quence departure of a court from shall mandatory exception it we makes that sustain the to giving question of in the manner herein the instruction unnecessary set forth for us to consider the and makes question. substance of the instruction in at 34 Haw. 606. Great with the Wilno does not concern itself demands “legal technicality” a of bothersome devoid substance. solidly policy.
The decision is
based in
It
considerations
recognizes
recognized
what other courts have
without the aid
—
§
legislative
right
declaration such as HRS 635-43
attorney
that
litigant
present
and his
to be
state
crucial
deliberating
with a
of case which the
communicates
important
on matters of substance
far too
leave to
See,
vagaries
e.g.,
“harmless
error” rule.
Shields
Harris,
United States,
(1927); People v.
Because HRS 635-43 been since trial, necessarily applicabil- it supra, lants’ see note 15 has no trials, analysis ity appeals future trials. In from future our judge-jury will whether parte of ex communications look to they beyond were harmless a reasonable doubt. See note 14 supra.
Indeed, only present apply even if we standard to the cases, required. beyond reversal do find harmless We jury, judge’s reasonable doubt the trial submission to the deliberations, during instructions, copies of written of three previously given orally, dealing “accessory with concepts fact,” crime,” “aggravate/! before the “scene of the ” upon person. authority assault there is While this state support the provision of an entire set of unmarked instruc deliberating case, jury Peters, tions to in a criminal State v. 1, 6, (1959), Haw. judge’s 352 P.2d the trial
procedure transmitting piecemeal some instructions to the unprecedented highly prejudi exclusion others was cases, There dealing cial. were dozens of in these instructions important presump with such matters as the defense innocence, testify, right tion of an not to accused authority jury special skepticism of the to view testimony immunity alleged accomplices granted instructions, jury As prosecution. to these forced to rely memory previous charge. on its oral But instruc accessory liability on the and the elements of tions aggravated jury assault were afforded the procedure
written form. Inherent in this was the insidious danger place emphasis that the undue focus and would danger heightened on the written instructions18 it so that in which that he has erred he point may law. supposed change ruling injustice error, it and if and that reconsider his convinced of mistrials due inadvertent errors thus be obviated. may 250 U.S. 82. was also forced to on its for the substance Unfortunately, rely memory following given instruction, before: orally several days *14 day
unusually period jury delib- long three and one-half erations.
IV. BETWEEN THE UNAUTHORIZED COMMUNICATIONS BAILIFF AND THE DELIBERATIONS DURING JURY JURY jury deliberating days, had After the been for over three judge following juror received the note from Alma Baugh:
Message to the Court. have been accused the Bailiff doing my job I ask properly. of not Therefore to be ex- duty. jury cused from however, judge her, trial
The refused to excuse see note supra, jury few hours later the returned verdicts of “hearing,” At guilty against appellants. post-verdict ostensibly underlying juror Baugh’s to ascertain the facts appellants that the had been message possibility and the Baugh single ques- trial prejudiced, judge juror asked tion substance: Baugh,
THE Mrs. would like to at this COURT: Court anything that is inquire time whether contained message, of what is in this did it subject matter contained any way you being as a prevent able to continue in this impartial juror fair case? BAUGH. No. It did not.
JUROR
did not ask
details of
the incident
Baugh
inquire
juror
bailiff. Nor did he
whether
had talked
incident,
so,
they
jurors about the
and if
whether
with other
Only
it.
had
over
after
examination
demonstrated concern
of the event
Baugh by Mr.
did the facts
juror
Sherwood
the third
emerge:
jurors adjourned
as the
for lunch on
begin to
juror
deliberations,
bailiff stated to
day
the court’s
you
your knitting,
might be
you
put
“If
down
Baugh,
would
foreclosing
inquiry Mr.
your job.” After
further
able to do
no
restated,
or
direction or idea is
rule,
repeated
If
these instructions
any
single out
are not to
must be inferred. You
thereon is intended
none
emphasis
ignore
instruction,
or
sentence,
any
any
specific point
particular
regard each in
as a whole and to
all the instructions
but
are to consider
others,
light
of all the others.
impact
into the
with the bailiff
Sherwood
confrontation
mind,
juror Baugh’s
found that
state of
had
Baugh
properly
job.”
“done the
system of
by jury
Trial
is considered fundamental
to our
zealously
justice.
protects
The law therefore
criminal
efficacy
right
by erecting strong presump
has
prejudice
integrity
tion of
when the
deliberations
compromised by
non-jurors.
been
unauthorized contact with
See,
States,
(1954);
Remmer
e.g.,
v. United
347 U.S.
Mattox v. United
146 U.S.
148-50
While
conclusive,
presumption
prejudice
is not
“the burden
*15
establish,
heavily
rests
notice to
the Government to
after
defendant,
hearing
that
with the
such contact
States,
United
was harmless to the defendant.” Remmer v.
supra
(emphasis added).
at
influence need
229
The outside
directly
to
guilt
not touch
on the
or innocence of the defendant
enough
trigger
presumption
prejudice
the
it is
during
period
jury
the crucial
deliberations there was
remotely
private
bearing even
on the trial or
communication
See,
States,
jury’s
e.g.,
the
functions in it.
United
Gold v.
352
(1957) (per curiam),
764,
reported
U.S. 985
facts
in 237 F.2d
(D.C.
1956)
State,
(Bazelon, J., dissenting);
775
Cir.
Laine v.
App.,
(1972).
Ind.
unauthorized is communication the to first, actually place, second, what took whether the im pact clearly prejudicial” of the communication “was (5th v. Betner, 116, the defendant. United States 489 F.2d 1974). addition, hearing at judge In the must afford a “full Cir. any which relevant to counsel free to introduce evidence [are] States, 399 F.2d alleged conversation.” Morgan the v. United (5th denied, 1968), cert. Cir. 393 U.S. standards, procedure the fol against When measured these by demonstrably inadequate judge lowed the trial many respects.
(1) discharge judge improperly attempted The trial entire burden State. As Remmer proof placed on the 229, mandates, at burden is on supra United with the “Government to establish . . . that . . . contact juror was added.) harmless.” (Emphasis Badgwell See State, (Okla. 1966) 418 P.2d (showing Crim. of unau- “automatically thorized shifts communication the burden by upon non-prejudice the state to competent show evi- dence”). hearing, Yet at the State offered no evidence choosing rely “showing” instead to on the of non- purported prejudice judge made it within himself. While is bring of a the discretion to examine witnesses “to ’’ out facts have not parties, needed which been elicited necessarily his responsi- discretion circumscribed bility a pro- “not assume the role of an advocate or of [to] Cleary, E. secutor.” McCormick’s Handrook 1972). § 8, 12,13 (2d clearly Law Evidence ed. find it improper attempted carry for the trial judge to have hearing State’s entire burden in this his proof when it was primary sit responsibility judgment on the facts. See Canons Ethics No. 15. Judicial (2) non-prejudice There was evidence of insufficient s remark. if it is Even assumed bailiff properly attempted discharge entire State’s burden woefully
proof, hearing the record of to this inadequate end. circumstances Several combined to make the remark of juror Baugh particularly dangerous appel bailiff to First, deliberating lengthy lants. had been for the *16 period days Second, three was made. when remark they had earlier of a indicated deadlock Third, you “If message to the itself court. the comment your your knitting, you would down put might able to do — its job” attempt by on face was an the bailiff to accelerate jury’s jury already at a deliberations time when was regard by very length burdened this previous of their Fourth, arguably deliberations.19 the remark the bailiff singled juror Baugh out as a “recalcitrant obstructionist” may thus have pressured personally her to accede to the 19 115, (1974) (finding State, App., Lambert v. 306 N.E.2d 118 Ind. Cf. question deliberating jury they harmless a bailiff’s whether would be afternoon; simple inquiry this finished no or threat in find intimidation “[w]e added). deliberations”) jury (emphasis cause a which would accelerate their
659 Finally, impact the actual majority.20 desires of the point disgruntle her to the Baugh was to juror remark on duty. these despite Yet relief from further requesting that the on the record circumstances, only indication juror Baugh’s was impact prejudicial no remark left bailiff’s response impartiality subjective self-assessed statement of re the bailiff’s whether single question, judge’s being continue able to way any prevented] “in mark part I of this in this case.” juror impartial a fair and as Cf. “heavy” discharge of the This does not constitute opinion. prejudice. an to show absence government on the burden “clear, States, at It is not 229. supra v. United Remmer ’ distinct, convincing that the remark of proof’ concise jury’s deliberations. Scott v. impact had on the bailiff no State, (Okla. 1969). judge’s 272, 448 P.2d Crim. subjec Baugh to assess her own request juror generalized benefit, just had voted to his after she “impartiality” for tive Irvin v. its answer. appellants, invited own convict Cf. inquiry Dowd, Obviously probing a more into 728. supra needed, unless, Baugh impact juror its was incident protect was bound to suggests, the record finally that the trial guilty at all costs. note jury’s verdicts of any, if entirely any impact, into the inquiry judge omitted Baugh. than had on the other the bailiff’s remark in their delib any jurors were “accelerated” other Whether impatience the trial expression of the bailiff’s erations State, Lambert v. evidently to know. did not care Cf. 115, App., Ind. 306 N.E.2d impact on the hearing (3) were denied a Appellants full by Remmer v. hearing required remark. The the bailiffs meaningful States, necessarily includes supra, United prejudice evidence of to adduce for the defense opportunity jury. Mor- with the contact stemming from unauthorized important especially This supra. v. United gan (1966) (finding 803, State, App. Gregg 195 So.2d Ala. Cf. county money; costing was that the case remark to the harmless a bailiff’s obstinacy, stupidity, impute mala fides to nothing “[tjhere this remark] [in them; minority any singling obstruc- jury, as recalcitrant no out or to *17 added). tionists”) (emphasis showing non-prejudice fragile the initial is as as where consistently trial judge inquiry was here. Yet the foreclosed juror Baugh’s princi- the defense into state of mind the hearing. his under- pal expressed issue the He erroneous standing purpose he stated: inquiry when and, juror; as only transpired
This
to what
between the
necessary,
not
juror
if
whether
was
able
function
juror. That’s all.
course,
legal
applicable
standard is
whether the
Of
juror Baugh
influence rendered
“not able
function
outside
there
juror,”
possibility
as a
but whether
was
reasonable
jurors
that
her or other
in their
it influenced
deliberations. Cf.
(5th
1972),
United
Paz v.
462 F.2d
745-46
Cir.
denied,
end,
this
cert.
(1) “Had at point reached decision in own mind as to what your your going verdict was to be? (2) Baugh, reading “Mrs. were you the individual who was a dictionary?” highly hearing. Both were relevant questions ostensible purpose sought juror Baugh first to discover directly whether was indecisive on the question guilt might and hence whether the remark of the bailiff have her to reach pressured agreement guilt. with those already convinced of The second was aimed indirectly end, same insofar as use of dictionary room present might juror Baugh have indicated troubled about the law to application facts these cases.
V. CONCLUSION appel- majority has A of this court voted reverse opinion, and Part III of this in lants’ sentences. convictions majority concur, all and the which three members majority, of the individual members of the articulated views throughout opinion separate opinion and in the ofJustice represent Menor, the rationales for that result. and remanded for new trial.
Reversed Pyun, Pyun counsel) .(Lkenaga .K. and for MatthewS Jr defendant-appellant Pokini. James (Hart, Sherwood,Leavitt, Blanch- Michael R. Sherwood counsel) defendant-appellant Hall William and for field Moore. attorney (Law- deputy prosecuting Libman, Charlotte E. attorney, deputy prosecuting Grean, with her on rence S. counsel) attorney, Barry Chung, prosecuting briefs, the for plaintiff-appellee. MENOR, OF
CONCURRING OPINION J. and in convictions I the reversal ofthe defendants’ concur join below, remand in the in the order of sentences new trial. I of Mr. Levinson’s I am accord with Part III Justice agree judge’s opinion commu with him that with the in the of the defendants nications their counsel constituted reversible error.1 absence
II my agree that the conduct of also brother Justice primary pointed out that his motivation In fairness should be defendants, having jury, spare counsel the inconvenience was inconvenience, however, posed question. time the Mere reconvene each prime trial. consideration a criminal should never
voir
prospective
dire examination of
area
pre-trial publicity
inherently
My reasons,
defective.
however,
altogether
same,
entirely
are
for I am not
convinced that
pre-trial
the nature and extent
publicity
in this case warrants the application of Silverthorne v. United
(9th
1968),
I am satisfied that the
pros
voir dire examination of the
pective jurors,
entirety,
viewed
its
was adequate for the
purpose
ascertaining
whether or not a prospective
*19
was qualified to
But in focusing
scope
inquiry
serve.
the
of its
solely upon whether
not
prospective juror
the
was qualified
in judgment,
to sit
overlooked,
completely
court
consequently ignored, the
equally
other
of
basic function
voir dire
In Choy v.
examination.
Otaguro,
(1932)
The is peremptorily deeply jurisprudence. Alabama, 202, American Swain v. 380 U.S. guaranteed In 218-219 Hawaii it is defen- criminal by H.R.Cr.P., 24(b); § dant rule and statute. Rule HRS 1973). (Supp. rights 635-29 It is important “one the most accused,” States, secured to the Pointer v. United 151 U.S. 396, (1894), impairment right denial or “[t]he error a showing prejudice.” reversible without Swain Alabama, supra 219. is particularly
The voir dire Takara examination Juror unduly inquiry illustrative of restrictive allowed defense judge.2 counsel the trial It a clear of the also indication 2 Portion of voir dire examination of Takara: Juror Takara, you MR. PYUN: Mr. do remember what about Pokini? read Mr. the voir concept of the functions of judge’s erroneous permit- have been The defendants should dire examination. the prospective and extent of into nature inquire
ted only to them pre-trial publicity, if enable juror’s exposure to intelligently. challenges their peremptory to exercise undoubtedly concerned judge properly The trial had might these have prejudicial about effect disclosures have upon prospective jurors. problem This could other voir been obviated individual dire outside jurors, prospective as in the case of of the other was done however, Defense requests, Pekelo. counsel’s procedure ap- meet the trial type of failed to court’s proval. of the trial to allow defense counsel to refusal jurors’ prospective and extent
inquire into nature exposure pre-trial publicity impairment was a serious challenges right peremptory the defendants’ to exercise their intelligently. This error. Swain v. constituted reversible Cf. 370 (1892). Alabama, v. United 146 U.S. supra; Lewis considerations, pre-trial
Where external
such
adverse
publicity, may give
possibility
rise to a real
of unconscious
bias,
should mindful of
admonition
385-6, 204
A.2d
Van Duyne,
court in State v.
43 N.J.
(1965):
(1964),
cert. denied
[The ] seriously pretrial are to to a subjected publicity adverse altogether interests can efface it defendant’s minds, how hard and unconscious no matter conscious they sympathetic that try to do so. The law to must meaningful in viewpoint, sympathy and must make the Generally, TAKARA: sir. PROSPECTIVE JUROR you you MR. tell what PYUN: Can me read? question. THE The Court will disallow the COURT: it, Well, area; might go will so I MR. I'dlike into that disallow PYUN: to Court as well sit down. already inquired juror, juror and the has THE COURT: The Court has anything opinion; that in the indicated that he has formed nor he has read no would decision; therefore, past qualified. his he influence is Very passed as is con- well. Mr. Takara for insofar the Court has been cause cerned; Pyun, you long questions, have no other Mr. the Court will so proceed. only by This
practical public world of trials. can be done carefully requiring judges analyze to and evaluate words, when he attitude demeanor impartial is asserts mind and one which free from regardless prejudice newspaper public- of the improper If, disavowal, ity. any spite the trial court has lingering juror’s capacity impartiality, doubt about the for (Emphasis added) he should be excused from service. III agree I with Mr. Levinson that it is essential to Justice fair presiding trial that the judge at all endeavor times to maintain an attitude and appearance of fairness and im- partiality. I part company my Where brother Justice degree which subjected to the trial here has been alleged criticism for his misconduct towards defense counsel and the might conclusion drawn that such conduct have infected verdicts. justification not offered as a the trial judge’s
While conduct, suggest I that a reading would fair will record that one-way reveal it was not all a I simply street.3 would following excerpts containing are from record some the so-called “vituperative” outbursts out of which were taken context: Sherwood, just your present opening THE COURT: Mr. statement. This argument now. my opening statement, your MR. SHERWOOD: This is Honor. opening dwelling It’s THE COURT: not an now statement. You are on the thing law, to, regarding objected same that the Prosecutor dwells which was and which was sustained. Honor, object relating my MR. PYUN: I will Your Court’s remarks — Grean, objected, said, objections. objected Mr. when I “The law is” and I — point. it And I’d like to make clear that is a clear Pyun, every speak you you up against THE COURT: Mr. if wish time against something, when the has said Court will have comment Court Court you, Pyun. that, Pyun. Mr. I want to know Mr. Very well, right your your have to do that. But I MR. PYUN: Honor. You up compelled record like the to know that feel to stand set the would Court every my my straight against words and use time Court chooses twist client, against in this case. defense Pyun, twisting your objected THE Mr. Court is not words. COURT: You your arguing objection law. *21 because the sustained and Prosecutor argue law, requested just present bird’s-eye not to view of Prosecutor present. what he intends to dignity orderly remind the trial that and procedure usually by firmness, can fairly the courtroom be maintained judiciously and asserted. Conduct extraneous to actual guilt determination of the innocence the accused often- times personal obscures the integrity and inherent fairness impartiality judge. such When conduct has the undoing further effect of ably the results of an otherwise competently regulated trial, justice invariably must suffer thereby. however, suggest, This is not to that overzealous- counsel, ness which exceeds the bounds of propriety, lightly regarded. should be
Having
entirety,
in its
viewed
record
I am not satisfied
reasonably
that
complained
can
be said that the conduct
here infected the
appellate
verdicts. In our
review of cases
easily
tried before a
we should not so
that its
assume
continually ready
members stand
violate
oaths as
slightest
Hashimoto,
on
provocation.
State v.
Haw.
Experience and indicate .. . that composite jury time, Sherwood, doing. please you’re atAnd Mr. that is what not So stick opening statement.
[*] sjs % is £ right. your opening THE COURT: All Present statement. Honor, may object, record, MR. Your SHERWOOD: I the Court continually interrupting competent aggressive me? Mr. Grean is a Pros- ecutor, your up objected. supposed Honor. He has stood The Court is neutral, your enough being attorney compe- Honor. It’s hard in a defense case; interruptions, object tent Prosecutor and I to the Court’s constant your Honor. manner, you yours competent THE in a the Court COURT: When conduct elf interrupt you, competently, proceed will not Mr. Sherwood. Please within the opening an terms of statement. Honor, object MR. SHERWOOD: Your I would like to to those remarks. And again point acting represents sponte. I that out the Court is sua Mr. Grean case, your something object in this can if is State Honor. He he feels there objectionable. object, nothing objection- And if he doesn’t assume there able. Sherwood, you THE Mr. COURT: the Court would like to have understand can, simply lawyers Court not what bound do court. The Court manner, motion, yourself please proper its own lawyer, And move. as a conduct is, purpose floor; and stick to the for which now have the and that present opening arguments law, statement. No on the Mr. Sherwood. *22 judges and intelligence than most far more possesses weigh the lawyers ability fairly evi- it. The credit irrelevancies, equity and to dence, to assess to discard lawyers judges alike is prejudicial comment of ignore strength system. United States underlying (8th 1971). Porter, 441 F.2d Cir. Finally, suggest following I reminder would concurring opinion in in his Mr. Frankfurter Johnson Justice (1943), always apropos 318 U.S. United appellate review: cases, reviewing particularly important criminal In imaginatively appellate for courts to re-live the whole trial episodes extract in abstract not to isolation procedure. evidence and of To turn crimi- questions of promotes the appeal quest nal into a no more error justice than standards of acquiesce ends of low prosecution. criminal opinion, II reasons stated in Parts of this
For the however, I would reverse. KOBAYASHI, OPINION OF
DISSENTING J. RICHARDSON, C.J., WITH WHOM JOINS I dissent. allege following: appellants
The pre-empting abused its discretion I. That the court pre- in the area jurors prospective dire of voir appellants’ publicity. defense trial court toward That the conduct of the II. a fair appellants counsel, jury, denied trial. judge between
III. That the communications deliberation, presence of defen- without the jury during trial. a fair counsel, appellants or defense denied dants aat directed a bailiff That the comment of IV. trial. a fair appellants denied OF APPELLANTS’ DIRE PRE-EMPTION VOIR OF IN THE AREA OF PROSPECTIVE JURORS PRE-TRIAL PUBLICITY its question herein is whether the trial court abused discretionary powers asking questions prospective regard ability its each own satisfaction *23 juror, through appellants who had heard of or read about the sources, impartial the news media or other to render an verdict. jurors
A review of the that the record reveals of twelve finally case, who were selected to sit the three indicated they had heard of or appellant read about the Pokini newspaper the or some of other form news media. appellants’
On
voir
of
jurors,
dire
the three
their
prior to
jurors,
selection as
appellants
sought
to elicit of the jurors
responses
jurors
detailed
what the
of
heard or read concern
ing
appellants.
the
permit
trial court refused to
the
asking
questions
of
replies
such
pres
the
thereof
the
ence
prospective jurors.
of the other
The trial
stated
court
appellants may
the
individually
conduct
such
voir dire
jurors
of
the
out of the
all
prospective
of
the other
jurors,
necessary,
if
at a proper time. The trial court then
conducted its own
of
jurors
voir dire
three
relative
pre-trial publicity to determine
jurors
whether or
the said
prejudicially
were
by
pre-trial publicity
affected
further
to determine
necessity
whether “there is a
to have
”
individual voir dire.
necessity
The record
“a
does notreflect
to have individual voir dire”
nor does
record show
by
demand
the appellants, after the trial
voir
court’s
dire
prior to the
appellants’
challenges,
exercise of
peremptory
for
ground
individual voir dire on
necessity.
I am of the
opinion that
the trial
court’s
dire
the three
voir
properly
question
publicity.
covered the
pre-trial
inherent
do not
the pre-trial publicity
believe
in this case warrants the
States,
(9th
application of Silverthorne v. United
On the followed by court, 24(a) Rule of the Hawaii Rules Criminal (HRCrP)
Procedure
reads:
shall
(a)
permit
The court
Examination
Jurors.
attorneys
m conduct the examination
parties or their
the examination.
prospective jurors
shall itself conduct
or
permit
parties
shall
In the latter event the court
by such
attorneys
supplement
the examination
inquiry as it deems proper.
further
24(a)
powers
Rule
trial
broad
discre
gives
voir dire.1 See United States
may
into what
be covered on
tion
Eastwood,
1973).
said Rule
(5th
Under
Thus on the court’s 635-28, § 24(a) prior to amendment Rule and HRS HRCrP 1, 1973, July read Act effective which SLH follows: cases,
§ In all civil or Challenging cause. 635-28 for criminal, challenge any juror drawn party may either *24 judge, trial, presiding assigned for cause to be to the objection urged may validity who determine added), juror (emphasis competency against a opinion proper of the that trial conducted am judicial appellants’ over of its when took exercise discretion in and prospective voir dire of three counsel’s of said limiting thereafter said voir dire counsel’s further jurors. prospective COUNSEL OF COURT TOWARD DEFENSE
CONDUCT they in which Appellants have a of instances cited number jury, un- court, of the allege that trial competency of necessarily personal bemaed the conduct case. prejudice appellants’ appellants’ counsel to (8th Porter, 1204, 1213-15 Cir. 441 F.2d In United States 24(a) 24(a) copy of Criminal the Federal Rules HRCrP Rule is of Rule helpful appropriate. Thus, law case is with minor deviations. federal Procedure 1971), involving a case a similar situation where the factual trial court had made remarks the conduct of various de- counsel, fense the court stated:
Although discipline on rare occasion of counsel or may require by parties court, unusual action there always neutrality should remain all above else the of the manifesting inkling trial court no of one-sided- ness bias. comments of trial When court exceed the discipline disparagement fair boundaries of official litigant’s case, counsel or of a charged error must follow. then It is happened that this here. We have reviewed the many agree record and of the court’s comments on, exceeded, bordered fines in some instances the con- (Footnote judicial omitted) propriety. fully judges We are aware that are human and suc- impatience. cumb to common frailties such as But a trial important must ever be mindful of the role he occupies presiding rights over trial where valuable litigants duty and liberties of the are at stake. He is bound patience rulings to exercise and restraint his sothat the right parties imparital fundamental to a fair and protected preserved. [sic] . . . Whether or not error reason court’s com prejudicial require
ments is so new is not application. resolved standard of facile The rule was Fahy stated in a similar Connecticut, context (1963), 85, 86-87, 229, U.S. 11L.Ed.2d 171 S.Ct. possibility” harmless error not if there is a “reasonable complained might that the matter have contributed to Judge . . the conviction. . ofthis court observed Johnsen (8 1960), 767, in Homan v. United 279F.2d 771 Cir. cert. denied 364 U.S. 5 L.Ed.2d S.Ct. 88: may prejudicial Errors of the trial court which *25 being capable case, ain close criminal in of the sense affecting possibly result, such situation of can any possibility well be without such in a rational strong case, and not thus entitle the defendant to a must, reviewing of The
reversal his conviction. course, say that the be able to with fair assurance of not, operation with natural complained errors could had, regarded setting proceedings total and be in the any influencing having effect. possessed may machines which be tested . . . are not isolated Jurors analysis. They possess by computerized each for bias varying emotions, intelligence and human reactions indicate, however, that study degrees. Experience than intelligence far composite jury possesses more fairly lawyers ability to judges and to it. The most credit irrelevancies, evidence, to assess to discard weigh the lawyers and equity ignore to comment of prejudicial system. jury underlying strength alike judges say will in all improper This comment always ignored. speak be Each record for cases must (Footnote omitted.) . . itself. . 1972). Carrion, F.2d 704 (9th Cir. also United States v.
See and, tests Upon applying review of the record stated Porter, am the made opinion that the remarks appellants’ presence jury, court toward in the counsel although unjudiciously prejudi- at times were not expressed, cial warrant reversal of the conviction. COMMUNICATION
JUDGE-JURY appellants contend court committed by communicating with the jury reversible error without appellants appellants’ and the counsel. that, after the case had The record indicates been submit- deliberation, engaged the trial court ted to the answering jury regard- practice questions written ing aspects of the trial. These answers were writ- various occasions, at least the trial court submitted ing, three court, reconvening said answers to the without and to present counsel appellants allow the in the of the said answers. participate resolution primarily the court The written answers of consisted given jury, prior verbatim instructions re-submission *26 dictionary by an the as to the use of admonition court deliberating was informed was in the which the court room.
The that at the time record further indicates the responses to submit the written one set of the decided to that was he had the questions jurors, received from the court attorneys case, in contact all of the involved clerk they explain opportunity object would have objections duly later The made as to each date. were instruc- by said procedure to the followed court. tion Irebaria, 353, 1246, 358, In State v. P.2d 55 Haw. (1974), this court stated: First, any all of the authorities are accord by response jury the trial court to the must be open court parties present. (Emphasis with all and their counsel added.)
Furthermore, part, HRCrP Rule 30 reads in relevant as fol- lows:
(d) orally Oral Comment. The shall in no court case modify qualify, explain any jury or to the instruction pursuant (b) whether settled pursuant to subdivision or (c) If, during subdivision of this rule. deliberation on its instructions, verdict request shall further may court instruct in accordance with further instructions court prepared ivriting, and reduced to submitting added.) (Emphasis same to counsel. first § addition, 89, In (repealed HRS 635-43 Act SLH July 1, 1973) effective provides part: relevant § writing Charge except 635-43 to be in when. Unless parties in person through cause on trial either attorneys, file therein their written that the consent may charge jury orally, court the court shall . . . writing charge jury. reduce read its to the manuscript charge, signed by court, shall be cause, filed in the and shall a part constitute of the record Whenever, thereof. departs as often as the duty, entitled, such party either shall as a suit right, granted matter to demand and have new the cause. Fernandez,
In this court in The Great Wilno v. 1935, the 603, 606, 3745, R.L.H. construing
Haw. Sec. 635-43, § stated: predecessor of HRS the statute. wisdom of are not concerned We statute, by prescribing consequence what . . . The be, makes it duty from its shall the court departure *27 mandatory granted]. trial a new be [that § and in in nature my opinion procedural In HRS 635-43 that Rule 30 therefore hold with said Rule 30.1 would conflict § notwithstandingIrebaria, And pre-empts 635-43.2 HRS concluding though the that expressed reasons hereinafter error, I is not a reversible would trial court erred error Fernandez, supra. overrule The Great Wilno v. that the between the
There
little doubt
communications
during
by
jury,
jury,
and the
deliberations
trial court
appellants,
counsel and
appellants’
without
that such a
jurisdictions
was
Certain
have ruled
error.
a
conviction.
compels
reversal of defendant’s
communication
Robertson,
(3d
1940); Parfet
821
Cir.
See Arrington v.
114 F.2d
(10th
Co.,
City
Insurance
F.2d 361
Cir.
v. Kansas
128
Life
denied,
(1942); Breslin v. National
1942),
654
cert.
317 U.S.
Co.,
(3d
1930);
v. United
Surety
An examination of these cases so these instances were complained of in communications prejudicial, prompted that the courts were unquestionably all generalized rulings regard with such make broad communications. taken a
The more recent
this issue have
different
cases on
to treat the
is for the
courts
approach.
appellate
The trend
prej
as a
if it
be shown that
error
“harmless error”3
cannot
United
communication. See
States
udice arose from the
Schor,
Jackson,
(5th
1972); United States v.
affect shall substantial holdings I am that opinion of the the recent cases are sound. record, opinion am
After a review of the I that appellants prejudiced have not been court’s ex parte jury. communication The instructions as alleged properly communications are drafted and error mainly prior instruc- constitute verbatim restatement of tions. hold that exparte would therefore communication court, case, not a under the record of this reversible
error.
BAILIFF-JUROR COMMUNICATIONS Finally, appellants allege they were denied fair result comment made the bailiff court to one jurors. record shows charge bailiff who had *28 jury following made the jurors comment to one of the as the jury suspended their the go deliberation of verdict to to lunch: you your “If put knitting, you would down might be to able do your job.”
As a remark, juror (Mrs. result of this Baugh) the sent to the following court the note: to
Message by the court. have been accused the bailiff of doing my job Therefore, properly. I ask to be excused duty. jury from
The trial juror’s request court denied the excused, to be and further, denied appellants motion the mistrial based in part on the bailiff’s juror. remark to the return
Subsequent of the verdict the and jurors after all polled affirming verdict, the had the been exception excused all the with the juror Baugh, whom the court asked remain. to objection, appellants’
Over juror Baugh the court called to the witness stand placed her under oath. After some preliminary questions, following the court asked question juror Baugh: Baugh, Q. Mrs. like at this Court would to time
inquire anything whether that is subject contained what is message, any matter of contained in this did it in way prevent being able to as a fair continue impartial juror in this case?
A. No. It did not. counsel, The court then afforded each prosecu- both the appellants, tion and the opportunity question to juror on his own.
In Remmer v. (1954), United 347 U.S. court stated: case, any
In criminal private communication, con- tact, tampering, directly indirectly, or with a juror during a trial pending is, about the matter before the reasons, for obvious deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions during directions of the court made trial, with full knowledge parties. The presumption conclusive, is not heavily but the burden rests upon the establish, Government to hearing after notice defendant, juror such contact with the was harm- (Citations less to the omitted.) defendant. court,
In the instant case the trial all parties, proceeding conducted to determine whether said was appellants communication the bailiff harmful and concluded it was not harmful. that, though
I am opinion the bailiff’s comment presumptively prejudicial, appellants’ right though compromised. a fair trial was not And Remmer heavily upon states that the “burden rests the Government . . . that . . . was establish such contact harmless to the preclude defendant” Remmer does not the trial court from conducting inquiry its own appel- to determine whether or not *29 prejudiced by lants were bailiff’s juror. contact with the hearing juror Baugh And since the record on the shows that appellants prejudiced were not the presumption prej- exists, longer notwithstanding udice no the initiation of the hearing by at the than inquiry pros- court rather ecution. I would therefore hold that the trial court’s refusal and the excuse court’s denial of the motion for mistrial do not constitute reversible errors.
Thus, affirm. would