Opinion
SCWC-20-0000175
03-15-2023
STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Brandon Fetu LAFOGA and Ranier Ines, also known as Schizo, Petitioners/Defendants-Appellants.
William Li for petitioner Brandon Fetu Lafoga Kai Lawrence for petitioner Ranier Ines Stephen K. Tsushima, Honolulu for respondent
William Li for petitioner Brandon Fetu Lafoga
Kai Lawrence for petitioner Ranier Ines
Stephen K. Tsushima, Honolulu for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ., AND WILSON, J., CONCURRING IN PART AND DISSENTING IN PART
At the time of this opinion's publication, Justice Wilson's concurrence and dissent is forthcoming.
OPINION OF THE COURT BY EDDINS, J.
[152 Hawai'i 531]
This case addresses (1) a constitutional challenge to a jury selection process that identified prospective jurors by number, not name, and (2) a challenge to extended term sentencing jury instructions for attempted murder.
We affirm Brandon Lafoga and Ranier Ines' convictions. But we remand for a new extended term sentencing hearing and resentencing.
I.
The State alleged Brandon Lafoga and Ranier Ines committed several crimes. It charged Lafoga with attempted murder in the second degree, conspiracy to commit murder in the second degree, carrying or use of firearm in the commission of a separate felony, kidnapping, and ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes (felon in possession). In the same indictment, the State charged Ines with accomplice to attempted murder in the second degree, conspiracy to commit murder, kidnapping, and robbery in the first degree.
On the eve of trial, after ruling on several motions in limine, the trial court decided to seat an innominate jury. Everyone would refer to prospective jurors by number, not name. The court told the parties it would conceal the prospective jurors' identifying information, including their names, phone numbers, and addresses. Only the court would have that information.
Ines' counsel asked the court to clarify. Did the court intend to disclose the prospective jurors' names to defense counsel and the prosecution? The court did not. The prosecution objected. The deputy prosecuting attorney dubbed the process "dehumanizing." Ines' counsel agreed, adding that the attorneys needed the jurors' names to research information about the prospective jurors. Then, the prosecution asked why the court planned to deviate from the standard jury selection procedure. "I'm trying to head off a juror in this panel saying, I'm afraid to serve," the court explained. Ines' counsel repeated her concern: no names impaired jury selection preparation and execution. Counsel proposed that the attorneys receive the jurors' full names "but we both will not provide the list to our clients, but they will be present with us when we do jury selection."
After further discussion, the court indicated it would tell the jurors about the number system, but not why they'd be called numbers. The court aimed to "quell anxiety": "I have, in the past, had to inform jurors to quell anxiety, that there's been no incidents whatsoever. I do believe that's the situation here, but I don't want it to be raised in the entire panel's consciousness at all because we want them to serve."
Lafoga's counsel wondered about the process. Did the court mean the lawyers would not know the prospective jurors' names? The court clarified its plan and explained the ground rules: the defense and prosecution
[152 Hawai'i 532] (not the defendants and public) would know the names of the jurors, but not their addresses or phone numbers. Also, no one could say the jurors' names on the record.
After that, the attorneys raised no concerns. Defense counsel made no objection to keeping the jurors' names from the defendants. Later, right before jury selection began, the court asked if counsel objected to the number system. No one did.
During its introductory remarks, the court told the prospective jurors they would be identified by number. The court implied that this procedure protected the jurors' privacy.
Ladies and gentlemen, when [the bailiff] did the initial roll call for this jury panel, each of you were given a card with your name on it along with your number. Please remember that number, that is your number, and for the rest of the proceedings in this case you will be addressed by that number. Your actual names are known to the Court and to the attorneys, and other than a sealed list that will be kept for court records, no one else will know your actual names, so the public can't get your names and they cannot get your contact information , so only court and counsel will have your names. For the rest of the proceedings you'll be addressed by your number.
(Emphasis added.)
Trial happened in November 2019. The jury found Lafoga guilty of attempted murder, use of firearm in a separate felony, kidnapping, and felon in possession of a firearm. Answering a special interrogatory, the jury found that the kidnapping count merged with the attempted murder count, and later the court dismissed the kidnapping charge.
The jury found Ines guilty of accomplice to attempted murder, kidnapping, and robbery in the first degree. Answering a special interrogatory, the jury found that the kidnapping and robbery counts merged with the accomplice to attempted murder count, and later the court dismissed the kidnapping and robbery charges.
The verdicts did not end the jury's service. They remained for an extended term sentencing hearing. The jury had to decide whether extending Lafoga and Ines' ordinary statutory maximum sentences was "necessary for the protection of the public." HRS §§ 706-662 (2014), 706-664 (2014).
For each defendant's attempted murder convictions, the court gave an extended term jury instruction and posed a special interrogatory. The court's instructions and interrogatories conformed to the Hawai‘i Standard Jury Instructions – Criminal.
Lafoga's instruction read in part:
[T]he prosecution has alleged that BRANDON FETU LAFOGA is a persistent offender, a multiple offender, and that extended terms of imprisonment are necessary for the protection of the public. The prosecution has the burden of proving these allegations beyond a reasonable doubt. It is your duty to decide, in each count, whether the prosecution has done so by answering the following three essential questions on special interrogatory forms that will be provided to you:
1. Has the prosecution proved beyond a reasonable doubt that Defendant BRANDON FETU LAFOGA is a persistent offender in that he has previously been convicted of two or more felonies committed at different times when he was eighteen years of age or older?
2. Has the prosecution proved beyond a reasonable doubt that Defendant BRANDON FETU LAFOGA is a multiple offender in that he is being sentenced for two or more felonies?
3. Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentences for Defendant BRANDON FETU LAFOGA in Count 2 [Attempted Murder] from a possible life term of imprisonment to a definite life term of imprisonment ... ?
(Emphasis added.) The court's companion special interrogatory read in part: "Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentence in Count 2 for Defendant BRANDON FETU LAFOGA from a possible life term of imprisonment
[152 Hawai'i 533]
to a definite life term of imprisonment ?" (Emphasis added.)
Ines' extended term jury instruction mostly tracked Lafoga's, reading in part:
[T]he prosecution has alleged that RANIER INES is a persistent offender and that extended terms of imprisonment are necessary for the protection of the public. The prosecution has the burden of proving these allegations beyond a reasonable doubt. It is your duty to decide, in each count, whether the prosecution has done so by answering the following two essential questions on special interrogatory forms that will be provided to you:
1. Has the prosecution proved beyond a reasonable doubt that Defendant RANIER INES is a persistent offender in that he has previously been convicted of two or more felonies committed at different times when he was eighteen years of age or older?
2. Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentences for Defendant RANIER INES in Count 1 [Accomplice to Attempted Murder] from a possible life term of imprisonment to a definite life term of imprisonment ... ?
(Emphasis added.) Ines' special interrogatory asked the jury about his accomplice to attempted murder conviction, in part: "Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentence in Count 1 for Defendant RANIER INES from a possible life term of imprisonment to a definite life term of imprisonment ?" (Emphasis added.)
The defendants had objected to those instructions and special interrogatories. The word "possible" could mislead the jury into thinking that there would not be a life term of imprisonment unless they received an extended life term of imprisonment, the defendants insisted.
The jury found the State had proven the extended term sentencing elements for Lafoga's attempted murder conviction; same for Ines' accomplice to attempted murder conviction.
Now eligible for the extended life without the possibility of parole term, the defendants faced sentencing. HRS § 706-661 (2014). The court sentenced Lafoga to an extended term of life without parole for attempted murder. Because the jury made extended term findings for Lafoga's two other convictions, the court increased his imprisonment to life with the possibility of parole for use of firearm in a separate felony, and a twenty-year term with the possibility of parole for felon in possession. On appeal, Lafoga only challenges the extended term jury instructions for the attempted murder conviction.
As for Ines, the court sentenced him to an extended term of life without parole for his accomplice to attempted murder conviction.
The defendants appealed. They each raised four points of error. The Intermediate Court of Appeals consolidated their appeals. In a published opinion, the ICA affirmed Lafoga and Ines' convictions.
Both Lafoga and Ines petitioned for certiorari. We accepted cert, and per Hawai‘i Rules of Appellate Procedure Rule 40.1, limited the scope of our review to two issues: the jury selection issue and the jury instructions issue.
II.
Lafoga and Ines argue that the circuit court empaneled an anonymous jury. They maintain the court's jury selection method violated their constitutional right to a presumption of innocence and an impartial jury.
We disagree. There was no constitutional violation.
First, we discuss the defendants' claim that their jury was anonymous or "partially anonymous." It was not.
With an anonymous jury, defense counsel and the prosecution do not know the prospective jurors' names. "[O]ne necessary component" of an anonymous jury is that the jurors' names are withheld from the attorneys and parties. United States v. Harris, 763 F.3d 881, 885-86 (7th Cir. 2014) ; United States v. Ross, 33 F.3d 1507, 1521 n.27 (11th Cir. 1994) (describing an anonymous jury as
[152 Hawai'i 534] one where the jurors' names and information are concealed from the public, lawyers, and defendants); see also Abraham Abramovsky & Jonathan I. Edelstein, Anonymous Juries: In Exigent Circumstances Only, 13 St. John's J. Legal Comment. 457, 457-58 (1999) (identifying United States v. Barnes, 604 F.2d 121 (2nd Cir. 1979), where a New York federal district court in 1977 kept secret the jurors' names and addresses in an organized crime trial, as the first "anonymous" jury trial in state or federal courts.).
Nor was the jury a "partially anonymous" jury. See State v. Samonte, 83 Hawai‘i 507, 928 P.2d 1 (1996) (trial court ordered that the first names, street addresses, and phone numbers of prospective jurors and their spouses be redacted from juror-information cards, and thereby empaneled a "partially anonymous jury."). Because Lafoga's and Ines' counsel and the prosecution knew the full names of the prospective jurors, the jury was not a completely or partially anonymous jury.
This case's jury is better described as a confidential jury. A confidential jury withholds a juror's name from the public, but not the parties. See Harris, 763 F.3d at 885-86 (distinguishing between a confidential jury, where jury information is available to the parties but not the public, and an anonymous jury, where the information is withheld from both the public and the parties). A confidential jury mainly concerns the public's First Amendment right to access trial proceedings, not the parties' right to the jurors' information. See Oahu Publications Inc. v. Ahn, 133 Hawai‘i 482, 495-96, 331 P.3d 460, 473-74 (2014) (balancing the public's First Amendment right to access judicial proceedings with the due process concerns of the parties); Harris, 763 F.3d at 886 (explaining that a confidential jury challenge "focuses on whether access to the courts has been properly denied.").
Lafoga and Ines do not raise an access-to-the-courts challenge. Rather, their claims focus on the court's numbers system and its decision to keep the jurors' names from them.
An anonymous jury hobbles both sides. The defense and prosecution lose the ability to uncover useful information for jury selection and trial purposes. See United States v. Stone, 613 F.Supp.3d 1, 42 n.54 (D.D.C. 2020) (quoting Nancy Gertner, Judith H. Mizner, & Joshua Dubin, The Law of Juries, Chapter 3 Section 3 at § 3.28, § 3.31, 10th ed. (2018) for the conclusions that "[t]he internet, and in particular social media ... offers the possibility of a rich source of information about jurors that escapes the constraints of formal voir dire" and "[a]t the very minimum, pre-trial investigation of potential jurors ... can provide counsel with the justification for more probing voir dire questions .... And it can provide a direct basis for a cause challenge to a particular juror.").
But a confidential jury does not have this problem. With the potential jurors' names in hand, handy info is keystrokes away. See id. (citing Thaddeous Hoffmeister, Investigating Jurors in the Digital Age: One Click at a Time, 60 U. Kan. L. Rev. 611, 612 (2012) for the observation that "[t]he speed and ease by which information about jurors is now discovered online has led attorneys to increasingly investigate and research jurors. In fact, the practice has become fairly commonplace, with courts, practitioners, and state bar associations all approving and encouraging its use.").
Here, the defense and prosecution knew the prospective jurors' names. Before (and during) jury selection, the lawyers had a chance to learn more about these citizens. The court's method did not deprive the parties of information-gathering techniques, like online and social media research, that might discover helpful information to challenge a juror for cause, exercise a peremptory challenge, or tailor an argument. Lafoga and Ines fail to show how the circuit court prejudiced their ability to meaningfully conduct jury selection.
A confidential jury and an anonymous jury have their differences, but they also have a common feature: jurors are identified by number, not name. See State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172, 194-95 (2010) ("numbers jury" empaneled when the court identified potential jurors by number, and
[152 Hawai'i 535] counsel, but not the defendant, knew their names).
A numbers jury may undermine the presumption of innocence. A person called a number may think their anonymity is necessary to protect them or someone else from a dangerous person – the defendant. See Samonte, 83 Hawai‘i at 519, 928 P.2d at 12-13 ("An anonymous jury raises the specter that the defendant is a dangerous person from whom the jurors must be protected, thereby implicating the defendant's constitutional right to a presumption of innocence.").
A numbers jury is drastic. Trial courts should sparingly use this jury selection method. Evidence has to support an innominate jury. For a fully anonymous, partially anonymous, or confidential jury, a trial court must detail a "strong reason" the jury or jury system needs protection and make clear, evidence-based findings to support the conclusion. Then, the court must take reasonable precautions to minimize prejudice to the defendant. Id. at 520, 928 P.2d at 14. Reasonable measures to minimize prejudice include an example suggested by Samonte: "a plausible and nonprejudicial reason for not disclosing [the jurors'] identities ... (e.g., the trial court could instruct the jurors that the purpose for juror anonymity is to protect the jurors from contacts by the news media, thereby implying that juror anonymity is not the result of threats from the criminal defendant)." Id. at 522, 928 P.2d at 16.
Here, the trial court used Samonte's media-centered alternative reason to explain the confidential jury method. The trial court told prospective jurors: "Your actual names are known to the Court and to the attorneys, and other than a sealed list that will be kept for court records, no one else will know your actual names, so the public can't get your names and they cannot get your contact information." Later, the court advised the seated jury:
Ladies and gentlemen, also, as we continue through this trial, you are going to be referred to by your juror number as well as your chair number. Your names are not made part of the public record of this case. You already see that there is a camera here in the courtroom. While they are permitted to cover the proceedings, the press is not allowed to have any likeness of yours, so they can't take any pictures of you, they cannot take any video of you, they cannot depict the jury in this case. So in addition to your names, your likeness will not be made part of the public record or available to the public in any way in this case.
There may be some naivete surrounding a court-crafted plausible reason. Jurors may not buy it. And this has the potential to erode the court's integrity. For this reason and the chipping of the presumption of innocence that comes from seating an anonymous or confidential jury, we disfavor a jury selection process that uses numbers, not names, to identify prospective jurors.
Here, we conclude there was no strong, evidence-rooted reason to empanel a confidential jury. The court's hunch that some jurors might say they are "afraid to serve" does not support a confidential jury. The presumption of innocence doesn't take a backseat to abstract notions. The court should've handled this jury selection like any trial: a juror who expresses a fearful outlook that impairs impartiality will get excused for cause. Accordingly, unless there is evidence supporting a strong reason to have a numbers jury, see Samonte, 83 Hawai‘i at 520-21, 928 P.2d at 14-15 (jury tampering), the normal jury selection process should unfold with the jurors addressed by their names.
We turn to something undetected by trial counsel. The parties and court overlooked HRS § 612-18(c) (Supp. 2014), which provides that the names of prospective jurors and the "contents of [their] juror qualification forms ... shall be made available to the litigants concerned." (On appeal, Ines mentioned the law as part of his Samonte analysis). Learning information from the juror qualification forms, however, is not an absolute right. Because the law's language is directory; it can be disregarded if necessary to protect the safety of the jury or the integrity of the jury system. Id. 83 Hawai‘i at 523, 928 P.2d at 17 (determining that the "shall" in HRS § 612-18(c) is directory, not mandatory). Still, there must be a strong reason to
[152 Hawai'i 536] dodge HRS § 612-18, and per above, the court lacked one.
But the trial court's failure to adhere to HRS § 612-18(c) or provide a strong reason for the confidential jury selection process, does not alone make the defendants' trial constitutionally unfair. Defense counsel did not object to the court's jury selection method. But even if they did, the court's error did not impact Lafoga and Ines' constitutional rights. See State v. Mundon, 121 Hawai‘i 339, 368, 219 P.3d 1126, 1155 (2009) (providing that when there is no reasonable possibility that a trial court's error contributed to a defendant's conviction, the error is "harmless beyond a reasonable doubt.").
Neither Lafoga nor Ines point to anything that shows how the court's jury selection method prejudiced them. And our examination of the record does not show that the defendants were prejudiced. Before jury selection the lawyers had a chance to gather helpful information. During jury selection the lawyers engaged the prospective jurors and learned things about their backgrounds and attitudes. Defense counsel rejected jurors, exercising most of their twelve peremptory challenges and waiving the rest. Lafoga and Ines sat next to defense counsel throughout jury selection. Though they did not know the jurors' names, the defendants saw and heard the prospective jurors. Nothing in the record suggests the defendants were unable to meaningfully participate and aid counsel during jury selection.
The trial was constitutionally sound, and we affirm the ICA in this respect.
III.
The convictions stand. But the defendants' life without the possibility of parole sentences do not.
For the defendants' attempted murder convictions, we hold that the court's extended term sentencing jury instructions and special interrogatories were prejudicially erroneous and misleading.
Under HRS § 706–662, a defendant convicted of a felony "may be subject to an extended term of imprisonment" if a jury finds beyond a reasonable doubt that the extended term is "necessary for the protection of the public" and the defendant satisfies certain criteria, like being a "persistent offender."
Lafoga and Ines concede they were persistent offenders. Their challenge focuses on the jury's "necessary for the protection of the public" finding for their attempted murder convictions. The two argue the court's extended term jury instruction and special interrogatory confused and misled the jury.
Lafoga's extended term jury instruction queried:
Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentences for Defendant BRANDON FETU LAFOGA in Count 2 [Attempted Murder] from a possible life term of imprisonment to a definite life term of imprisonment ... ?
(Emphasis added.) Likewise, Lafoga's special interrogatory asked, in part: "Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentence in Count 2 for Defendant BRANDON FETU LAFOGA from a possible life term of imprisonment to a definite life term of imprisonment ?" (Emphasis added.)
Ines' extended term jury instruction similarly queried:
2. Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentences for Defendant RANIER INES in Count 1 [Accomplice to Attempted Murder] from a possible life term of imprisonment to a definite life term of imprisonment ... ?
(Emphasis added.) And Ines' special interrogatory asked, in part: "Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentence in Count 1 for Defendant RANIER INES from a possible life term of imprisonment to a definite life term of imprisonment ?" (Emphasis added.)
The defendants maintain that "possible life term of imprisonment" portends a "less-than-life
[152 Hawai'i 537] sentence." A "possible life term of imprisonment" compared to a "definite life term of imprisonment" indicates that they will possibly get a sentence shorter than life. The word "possible" may spur the jury to select the harsher option, they say. Lafoga and Ines argue the jury instructions did not properly convey the options. A "possible" life term, meant they were going to get a life term – not something less than life – regardless of the jury's answer to the interrogatory.
The State counters that the extended term sentencing jury instructions and special interrogatories were fine. They came from State v. Keohokapu and tracked the Hawai‘i Standard Jury Instructions – Criminal (HAWJIC). See, e.g., HAWJIC 19.3.1A. Persistent Offender: H.R.S. § 706-662(1) (asking whether "the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the Defendant's sentence from a ... possible life term of imprisonment" to a "definite life term of imprisonment").
The ICA sided with the State, holding that "[t]he extended term jury instruction for both defendants was not erroneous under State v. Keohokapu." 127 Hawai‘i 91, 276 P.3d 660 (2012). It stressed that the jury instructions were similar to an instruction suggested in a footnote by the Keohokapu majority and identical to the standard jury instructions. The ICA pointed out that Keohokapu advised: "[t]o determine whether an extended term of imprisonment is necessary for the protection of the public, ... the jury should not be instructed about the procedures of the Hawai‘i Paroling Authority, or that the sentence includes the possibility of parole."
We clarify Keohokapu and straighten our case law to align with the statutory language of Hawai‘i's extended term sentencing laws.
To start, we discuss Keohokapu. The jury found the defendant guilty of manslaughter, a class A felony offense with an "indeterminate term of imprisonment of twenty years without the possibility of suspense of sentence or probation." HRS § 706-659 (2014). The State moved for extended term sentencing. Per HRS § 706-664, the Sixth Amendment, and article I section 14 of the Hawai‘i Constitution, a jury finding is required to make a defendant eligible for a sentence exceeding the ordinary statutory maximum. Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; Flubacher v. State, 142 Hawai‘i 109, 118-19, 414 P.3d 161, 170-71 (2018). Thus, the trial court asked Keohokapu's jury: "Has the prosecution proven beyond a reasonable doubt that it is necessary for the protection of the public to subject [Keohokapu] to an extended term of imprisonment, which would extend the maximum length of his imprisonment for the offense of Manslaughter from twenty years of incarceration to life with the possibility of parole?" Keohokapu, 127 Hawai‘i at 100 n.16, 276 P.3d at 669 n.16. The court also gave instructions that defined "indeterminate term of imprisonment" and discussed many aspects of "parole." It rejected long defense instructions about parole procedures and processes. Id. at 99-100, 276 P.3d at 668-69.
Keohokapu addressed a discrete question: "Whether the ICA gravely erred by determining that no error occurred when the trial court instructed the jury on the irrelevant issues of parole and the role of the Hawai‘i Paroling Authority during the extended term phase of trial?" Id. at 101, 276 P.3d at 670. Both the majority and dissent endorsed instructions that sidestepped explanations about parole roles, procedures, and processes. See Keohokapu, 127 Hawai‘i at 116, 276 P.3d at 685. (Recktenwald, C.J., dissenting in part) (agreeing with the majority that "additional information about how the parole process works ... was not required by the statute").
But the dissent critiqued the majority's reluctance to mention or even use the word "parole" in extended term jury instructions. It spotlighted a flaw with the majority's framework: the majority failed to account for a jury decision after a second-degree murder conviction; that is, whether the defendant should receive an extended term of life without parole, rather than a sentence of life with the possibility of parole. Id. at 123-24, 276 P.3d at 692-93. Pointing to HRS § 706-661, the dissent explained that a jury could not meaningfully choose between those two sentences
[152 Hawai'i 538] without knowing about parole and "[t]hus the legislature clearly contemplated that juries would not be shielded from the fact that parole is available." Id. at 116, 276 P.3d at 685.
The Keohokapu majority, in response, recommended an extended term sentencing instruction for a second-degree murder case: "instruct the jury to consider whether the defendant's sentence should be extended from possible life imprisonment to a definite (or fixed) sentence of life imprisonment." Id. at 112 n.33, 276 P.3d at 681 n.33.
The ICA used this footnote, and the HAWJIC standard jury instructions it inspired, to support upholding the trial court's instructions in Lafoga and Ines' case.
Because now the conceptual discussion in Keohokapu has real controversy, we clarify that a jury considering extended term sentencing for second-degree murder must determine whether the prosecution has proved beyond a reasonable doubt that it is necessary for the protection of the public to extend a sentence from life with the possibility of parole to life without the possibility of parole. A few reasons guide our holding.
First, the legislature was clear. HRS §§ 706-662 and 706-664 set forth the criteria and procedures for extended term sentencing, and HRS § 706-661 specifies the "length" of an extended sentence. If it is "necessary for the protection of the public," then a person convicted of second-degree murder may be sentenced to "life without the possibility of parole." HRS § 706-661. The legislature's extended term sentencing laws contemplate that the jury will decide whether a person is eligible for a sentence of life without the possibility of parole or life with the possibility of parole. And, by extension, the jury will consider the word "parole."
No evidence or jury instructions describing parole matters are needed for the jury to consider the difference between life with and life without parole. Keohokapu's holding is satisfied in this respect. "Parole" is all the jury needs to hear. The jury inquiry depends on the word "parole" but does not depend on the nuances of parole.
A jury navigates complex words and concepts. The collective wisdom of twelve citizens is a defining virtue of America's jury trial system. We believe jurors will use their common understanding and knowledge to grasp what "parole" means for purposes of extended term sentencing. Cf. State v. David, 149 Hawai‘i 469, 475-76, 494 P.3d 1202, 1208-09 (2021) (providing that blood alcohol levels and the association between excessive alcohol consumption and aggression are within the common knowledge and experience of ordinary jurors). That is, "life with the possibility of parole" means the defendant may someday get out of prison. And "life without the possibility of parole" means the defendant will never get out of prison. So there is no reason to define or explain "parole."
Second, a jury can only make a reasoned sentencing decision after a murder conviction if it knows about the parole option. The possibility of parole is the only difference between an extended sentence and an ordinary sentence for second-degree murder. To make its "necessary for the protection of the public" finding, the jury needs to know that difference. "There is no way that a jury could meaningfully make that decision without being informed of the difference between life with, and life without, the possibility of parole." Keohokapu, 127 Hawai‘i at 116, 276 P.3d at 685. (Recktenwald, C.J., dissenting in part).
Third, the Keohokapu footnote understates the ordinary statutory maximum for murder. A "possible life term of imprisonment" compared to a "definite life term of imprisonment" suggests that a defendant will possibly get a sentence less than life. At least one of twelve jurors may interpret a "possible life term of imprisonment" to mean a defendant might get a life sentence or they might get less than a life sentence. A juror believing the latter may find the extended sentence is necessary because of a misplaced belief that the defendant would otherwise not receive a "life" sentence. As Lafoga's trial attorney put it:
[T]he phrase possible life term of imprisonment could leave the jury to think that there's not going to be a life term of imprisonment. If the jury is led to believe
[152 Hawai'i 539]
that there's not going to be a life term of imprisonment, then it's – it's more likely that they will say that an extended term is necessary for the protection of the public.
The Keohokapu dissent foresaw confusion and prejudice: "An interrogatory phrased in the manner suggested by the majority could lead a jury to reasonably infer that a sentence of ‘life’ means exactly what it says, e.g., that the defendant will remain imprisoned for the remainder of [their] life. However, that inference would not necessarily be accurate, because a defendant such as Keohokapu would be eligible for parole." Keohokapu, 127 Hawai‘i at 123, 276 P.3d at 692.
Here, we hold the extended term sentencing instructions and special interrogatories were prejudicially erroneous and misleading. Stanley v. State, 148 Hawai‘i 489, 500-01, 479 P.3d 107, 118-19 (2021). We remand for resentencing on the defendants' extended term sentences for attempted murder, and rule that this opinion only applies to Lafoga and Ines and cases that are on direct review or not yet final. See Lewi v. State, 145 Hawai‘i 333, 349 n.21, 452 P.3d 330, 346 n.21 (2019).
IV.
This case is remanded for a new extended term sentencing hearing and resentencing. In all other respects the ICA's June 20, 2022 judgment on appeal, the circuit court's February 20, 2020 judgment of conviction and sentence for Lafoga, and the circuit court's September 2, 2020 amended judgment of conviction and sentence for Ines are affirmed.
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 the facts guaranteed to them by the sixth amendment of the United States Constitution and article I, section 14 of the Hawai‘i 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 First Circuit ("circuit court") also deprived defendants of the constitutional right to be presumed not guilty in violation of article I, section 14 of the Hawai‘i Constitution. The unjustified withholding of jurors' names from the defendants further violated article I, section 14 of the Hawai‘i Constitution by unduly
The Honorable Paul B.K. Wong presided.
[152 Hawai'i 540] 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 Hawai‘i 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 Hawai‘i 381, 386, 351 P.3d 1147, 1152 (2015) (citing State v. Ortiz, 91 Hawai‘i 181, 193, 981 P.2d 1127, 1139 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (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.
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 the circuit court "I do agree with [the prosecution's] concern. 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
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).
[152 Hawai'i 541] 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."
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 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.
The twelve judges who were never known to the defendants ultimately found them guilty. 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.
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.
[152 Hawai'i 542] 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 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 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, 15 S.Ct. 394, 39 L.Ed. 481 (1895). The presumption of innocence is "vital and fundamental[.]" Id. at 460, 15 S.Ct. 394. It is "a basic component of a fair trial under our system of criminal justice." Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). As such, "its enforcement lies at the foundation of the administration of our criminal law." Coffin, 156 U.S. at 453, 15 S.Ct. 394.
Protecting the presumption of innocence was a signature issue in State v. Samonte, 83 Hawai‘i 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 Hawai‘i 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 "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
[152 Hawai'i 543] 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 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 mitigate against a juror's inference that juror anonymity was to protect them from "threats from the criminal defendant[.]" Samonte, 83 Hawai‘i 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 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.
[152 Hawai'i 544] 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 " 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 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 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
[152 Hawai'i 545] 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 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 ) 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 dire." Samonte, 83 Hawai‘i at 519, 928 P.2d at 13 (internal quotations and citations omitted and emphases added).
These rights now reside in article I, section 14 of the Hawai‘i Constitution.
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 Hawai‘i with the statutory right "to examine a proposed juror as to the proposed juror's qualifications, interest, or bias that would affect the trial[.]" Hawai‘i Revised Statutes ("HRS") § 635-27 (emphasis added). A prospective juror's name is essential for examining a prospective jurors' "qualifications, interest, or bias." Id. 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 Hawai‘i 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
[152 Hawai'i 546] placed at a greater disadvantage than the 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 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, 95 S.Ct. 2550, 45 L.Ed.2d 593 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 95 S.Ct. 2550 ("[T]he right to the assistance of counsel has been understood 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, 95 S.Ct. 2550 ("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). Hawai‘i courts have recognized that "[t]he sixth amendment and article I, section 14 of the Hawai‘i 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 Hawai‘i 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 Hawai‘i 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, 95 S.Ct. 2550. By requiring defense counsel to keep the names of prospective
[152 Hawai'i 547] 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 Hawai‘i Constitution is a structural error not subject to harmless error analysis[.]" Akau v. State, 144 Hawai‘i 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, 95 S.Ct. 2550. 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 effective assistance of counsel, and harmless error does not apply. Akau, 144 Hawai‘i 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 Hawai‘i 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, 104 S.Ct. 2052 ("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 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, 95 S.Ct. 2550. 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, 104 S.Ct. 2052.
The deprivation of the defendants' right to counsel again constitutes structural error "not subject to harmless error analysis[.]" Akau, 144 Hawai‘i 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 incidents whatsoever. I do believe that's the situation here, but I
[152 Hawai'i 548] 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 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 Hawai‘i 115, 120, 890 P.2d 702, 707 (App. 1995), overruled on other grounds by Tachibana v. State, 79 Hawai‘i 226, 900 P.2d 1293 (1995). This inference "seriously compromise[s] the fundamental tenet of judicial impartiality which must underlie criminal trials[.]" Silva, 78 Hawai‘i at 121, 890 P.2d at 708. Because "the violation of the Hawai‘i 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 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, 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.
Mr. Brandon Lafoga stands forever deprived of a fair trial in the instant case, as he died in custody on February 5, 2023.
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.