State v. Chin. , 135 Haw. 437 ( 2015 )

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Electronically Filed
Supreme Court
SCWC-13-0002469
25-JUN-2015
07:59 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
SUSAN CHIN, Petitioner/Defendant-Appellant.
SCWC-13-0002469
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0002469; CR. NO. 12-1-0331)
June 25, 2015
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.
OPINION OF THE COURT BY POLLACK, J.
A fair trial by an impartial jury is a basic
protection provided by the United States Constitution and the
Hawaiʻi State Constitution to the accused in a criminal case.
State v. Keliiholokai, 58 Haw. 356, 357, 569 P.2d 891, 893
(1977). Inherent in this protection is the defendant’s right to
receive a fair trial by an impartial jury, free from improper
prejudice resulting from outside influences or juror misconduct.
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Id. Where the existence of an outside influence such as juror
misconduct is brought to the attention of the trial court, the
court must ascertain the extent of the influence and then, in
its sound discretion, take appropriate measures to assure a fair
trial. Id. In this case, we are called upon to consider the
circumstances in which a court is required to investigate an
allegation of inappropriate communication between a juror and a
witness during the pendency of a criminal trial.
I. BACKGROUND
On February 28, 2012, a grand jury indicted Susan Chin
with two counts of theft in the first degree, one count of
attempted theft in the first degree, and three counts of money
laundering.1 The charges related to conduct allegedly engaged
in by Chin when she was acting as a caregiver for the
complainant. The alleged conduct involves theft of the proceeds
from the sale of the complainant’s home, use of the
complainant’s annuities and money from a joint account held by
Chin and the complainant, transfer of money from the
complainant’s account to Chin’s relatives, and change of
beneficiaries of the complainant’s annuities.
1
Counts I and II charged Theft in the First Degree, Hawaii Revised
Statutes (HRS) §§ 708-830.5(1)(a) and 708-830(1); Count III charged Attempted
Theft in the First Degree, HRS §§ 705-500(1)(b), 708-830.5(1)(a) and 708-
830(1)); and Counts IV–VI charged Money Laundering, HRS § 708A-3
(1)(a)(ii)).
2
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A. Trial
Jury trial in the case began on March 15, 2013. 2
Charles Bowen was the neighbor and friend of the complainant in
this case. Bowen introduced the complainant to Chin, who he had
been friends with for over twenty years.
After the passing of her husband and as she advanced
into her eighties, the complainant had difficulty caring for
herself. There were concerns that the complainant was being
taken advantage of financially by a couple, which eventually came
to the attention of Adult Protective Services (APS). The APS
caseworker consulted Bowen regarding the complainant and asked
whether the complainant had any relatives who could assist her.
The caseworker was not confident that the complainant’s niece,
who lived in California, would be able to adequately care for the
complainant. Accordingly, the APS caseworker sought out a third-
party caregiver, and Chin, who had become close friends with the
complainant, was allowed to assist as her caregiver.
The complainant lived with Chin for several months in
2010. During that time, Bowen saw them on a weekly basis at
barbecues and other functions. When the father of Chin’s
children died, Chin had to travel to New York, and during this
timeframe, the complainant moved back to her home in Aiea. Bowen
2
The Honorable Karen S. S. Ahn presided over the trial and post-
trial proceedings in this case.
3
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testified that Chin received a check in the amount of $500,000 on
a life insurance policy sometime in 2010.
The complainant later moved back in with Chin. In
February 2011, the complainant revoked the power of attorney
appointing her niece and executed a new power of attorney
appointing Chin as her agent. 3 Also in February 2011, the
complainant closed her bank account that she had shared with her
deceased husband, and she opened a new account jointly held by
herself and Chin. Around this time, Chin emailed a realtor
regarding potentially selling the complainant’s house and finding
her a place in an assisted living community.
Chin introduced the complainant to her financial
advisor after the complainant complained about her prior
financial advisor in front of Bowen, Chin, and others. The
complainant cashed in one of her annuities, receiving about
$30,000. The complainant requested to name Chin as a beneficiary
of her remaining two annuities; however, the financial advisor
counseled her to instead add Chin as a contingent beneficiary and
to designate a family member as the primary beneficiary. Chin
subsequently withdrew approximately $8,000 from the joint account
in the complainant and Chin’s name to pay off the loan on Chin’s
car.
3
The complainant’s attorney testified that he did not believe that
the complainant was under the undue influence of Chin.
4
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The complainant’s home sold for $639,000, and she
received $605,114.67 from escrow. 4 The complainant and Chin went
to the bank to deposit the proceeds of the sale of the property.
They deposited the proceeds into several joint accounts:
$200,000 into an account held by Chin and her older son, $200,000
into an account held by Chin and her younger son, $100,000 into
an account held by the complainant and Chin, and $100,000 into an
account held by Chin and her mother. 5
On August 9, 2011, Chin was returning from a trip with
the complainant at which time the complainant’s grandniece was
waiting for them at the airport in Honolulu to take the
complainant home with her. Six days later, with her grandniece’s
assistance, the complainant revoked the power of attorney held by
Chin and withdrew the remaining money from the bank account which
she held with Chin. They also reported to the bank authorities
that there was a problem with all of Chin’s accounts.
When Chin approached the bank to inquire about the
missing funds on August 16, 2011, she was told that the
complainant had withdrawn the money from the account held by Chin
and the complainant. At that point, Chin attempted to withdraw
the bulk of the funds from the two accounts she held with her
4
The realtor who listed the property testified that the
complainant appeared competent during the transaction.
5
Individual bank accounts were insured up to $250,000.
5
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sons but was told that she could not do so, as the bank had
frozen the accounts. Chin removed her name from her son’s joint
accounts and added her sister’s name instead. Also on August 16,
2011, Chin filed a missing persons report with the Honolulu
Police Department (HPD), declaring that the complainant’s
grandniece had taken the complainant away and that money was
stolen money from Chin’s personal, preexisting account. On
August 30, 2011, HPD officers seized the accounts held by Chin.
At the conclusion of the evidence, the jury found Chin
guilty of theft of the proceeds from sale of complainant’s home
(Count I), changing the name of ownership of two joint accounts
(Count IV), and taking $8,000 from the joint account to pay off
Chin’s car (Count VI); the jury found Chin not guilty of Count
III and were unable to reach a unanimous verdicts on Counts II
and V.
B. Chin’s Motion for a New Trial
Chin timely filed a Motion for New Trial (motion)
based upon an asserted violation of her right to due process,
confrontation of witnesses, and a fair trial as guaranteed by
the federal and state constitutions. The motion was supported
by a declaration of Charles Bowen (Declaration) who explained
that he had been called to testify as a witness at Chin’s trial
because as a person who was previously a neighbor to the
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complainant, he had information to share regarding some of the
events that took place between the complainant and Chin. His
Declaration stated that, during trial, a juror approached him in
the men’s room and spoke to him about possible employment:
3. During the course of my testimony I explained my job
status and the fact that I was a civilian employee of the
United States government. I also explained that I had a
top secret security clearance.
4. After I testified I was approached in the men’s room by
a gentleman. He inquired about the possibility of
employment and handed me a business card. Attached hereto
as Exhibit “A” is a true and correct copy of the business
card provided by the man.
5. I realized later that the individual who handed me his
business card was one of the jurors in Susan Chin’s case;
6. Upon this realization I told Susan about the encounter
and gave her the card;
7. I never called or communicated any further with the
juror after that encounter in the men’s room.
8. After learning of the verdict in this case I spoke with
Susan’s attorney by telephone and told him about the
encounter . . . .
Attached as Exhibit “A” to the Declaration was a photocopy of a
business card with the following information:
[JUROR’S NAME], USN Ret.
M.A. HSM, B, S. SC&E, A. S. IS
line entirely blacked out [apparently street address]
Suite xxxxx
Honolulu, HI xxxxx
Residence: (808)xxxxxxx
Mobile: xxxxxxx
Facsimile: (808) xxxxxxx
xxxxxxxx@hawaiii.rr.com[6]
6
An “x” has been used here to indicate that the information was
blacked out on the exhibit that was filed with the court; presumably the
(continued . . .)
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The memorandum in support of the motion for new trial indicated
that the juror who had provided the business card was the
foreperson of the jury in Chin’s case. 7 The memorandum contended
that the juror “sought a favor from Ms. Chin’s witness Charles
Bowen, which was not forthcoming.” The favor involved
“approach[ing] Charles Bowen for a job.” The defense
maintained, “The fact that Mr. Bowen did not respond to his
advance may have had a significant inappropriate influence on
the deliberative process in this case.” Therefore, Chin argued
that the actions of the juror “in communicating with Mr. Bowen
was highly prejudicial warranting a new trial.”
In its response to the motion, the State noted that
the granting or denial of a motion for new trial is within the
sound discretion of the trial court and would not be disturbed
absent a clear abuse of discretion. The State submitted that
the legal framework for determining whether a defendant in a
criminal case has been denied a fair trial by an impartial jury
is for the trial court initially “to determine whether the
nature of the alleged deprivation rises to the level of being
(continued . . .)
blacked out information contained the juror’s address, phone numbers and
email address.
7
According to the defense’s memorandum supporting the motion, the
foreperson “is a retired United States Navy service member,” which would
appear to coincide with the notation on the business card indicating “USN
Ret.”
8
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substantially prejudicial.” “The defendant bears the burden of
making a prima facie showing” of the deprivation. The State
maintained that, if the defendant fails to meet her burden, the
court is under no duty to investigate the totality of
circumstances surrounding the alleged deprivation to determine
its impact on jury impartiality.
The State argued it was “pure speculation” that Mr.
Bowen “may have had a significant inappropriate influence upon
the deliberative process.” The State contended that “the
defendant must establish that the jury was ‘influenced by the
alleged misconduct.’” The State also noted that the contact and
communication did not involve inadmissible evidence or any
aspect of the case itself. “Instead it involved an
insignificant ‘background witness’ who admitted that he had no
knowledge of the disposition of the proceeds from the sale of
the victim’s house-the main disputed issue during the trial.”
Consequently, the State asserted that the defendant failed to
present, specific, substantial evidence of possible juror
misconduct,” and the court would not abuse its discretion in
denying the motion for new trial.
On May 24, 2013, the circuit court held a hearing on
the motion. 8 The court issued written findings of fact,
8
The record does not contain a transcript of the hearing.
9
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conclusions of law, and an order on June 5, 2013. The court
found Chin’s argument that the improper communication may have
had an inappropriate influence on the deliberative process to be
“pure speculation.” The court concluded that, based on the
record, “the nature of the alleged deprivation did not rise to
the level of being ‘substantially prejudicial.’” The court
reasoned that the timing and mixed nature of the verdicts
undermined Chin’s argument that she was deprived of a fair trial
by an impartial jury.
The circuit court also noted that defense counsel
requested the court to interrogate the jurors or give defense
counsel permission to do so. However, the court concluded that
under State v. Furutani, 76 Hawaiʻi 172, 180, 873 P.2d 51, 59
(1994), the trial court is under no duty to interrogate the jury
unless the defendant presents evidence demonstrating a
substantially prejudicial deprivation. Accordingly, the circuit
court denied Chin’s motion.
The circuit court sentenced Chin to a ten-year term
of imprisonment for Counts I and IV and a five-year term of
imprisonment for Count VI, all terms to run concurrently, and the
court ordered restitution in the amount of $523,762.15 less any
amounts recovered from accounts or by law enforcement. The
circuit court entered its Judgment of Conviction and Sentence on
July 19, 2013. Chin filed a timely notice of appeal.
10
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C. Appeal to the Intermediate Court of Appeals
On appeal to the Intermediate Court of Appeals (ICA),
Chin contended that the trial court abused its discretion in
denying her motion for new trial. 9 Chin argued that she
satisfied her initial burden of making a prima facie showing of
a deprivation that “could substantially prejudice [her] right to
a fair trial” by an impartial jury. Chin maintained that
although the “foreperson of her jury was ordered not to have
contact with any witnesses in this case,” the juror approached
“the main defense witness in the case to seek a job.” Chin
argued that because the job did not materialize, it is not “pure
speculation,” to conclude that the “ juror possibly sought a
quid pro quo, and not receiving any response from Mr. Bowen was
upset.”
Chin reasoned that once she provided the Declaration
and the juror’s business card to the court, a rebuttable
presumption of prejudice was raised and it was the State’s
burden to prove harmlessness. Chin contended that any private
communication or contact with a juror during a criminal trial
about the matter pending before the jury is presumptively
prejudicial and requires a hearing to determine the
9
Chin also contended that there was insufficient evidence to
support the guilty verdicts in Counts I, IV and VI. Chin has not raised
these issues in her Application for Writ of Certiorari.
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circumstances of the improper contact and the extent of any
prejudice to the defendant. Chin argued that the State failed
to meet its burden to overcome the rebuttable presumption
because no evidence of harmlessness was proffered. Chin
concluded that the inappropriate contact by the foreperson in
this case undermined the concept of a fair trial and was highly
prejudicial.
In its Answering Brief, the State contended that Chin
failed to make a prima facie showing that her right to a fair
trial by an impartial jury was substantially prejudiced. The
State maintained that Bowen’s Declaration did not indicate that
the foreperson made any reference to the evidence in this case,
that Bowen’s conversation with the foreperson was communicated
to the other jurors, or that the other jurors were influenced by
the alleged misconduct. The State argued that because Chin
failed to demonstrate that the juror’s actions rose to the “level
of being substantially prejudicial,” the circuit court was under
no duty to recall the jury for questioning, and the court did not
abuse its discretion in denying her motion for a new trial.
In her Reply Brief, Chin contends that the State’s
argument with regard to the sufficiency of the evidence
presented by Chin “is fundamentally flawed” because Chin was
prohibited from establishing such facts. Chin noted that she
requested permission to question the jurors or to have the court
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do so, but the request was denied. Chin noted that Rule
3.5(e)(4)(ii) of the Hawaiʻi Rules of Professional Conduct
required her to obtain permission from the court to conduct an
inquiry of the jury regarding juror misconduct. Chin argued that
once she documented what had occurred to the court, a rebuttable
presumption of prejudice arose and it was the burden of the State
to prove that the inappropriate contact was harmless.
The ICA issued its Summary Disposition Order (SDO) on
October 29, 2014. The ICA found that Chin was required to “make
a prima facie showing of a deprivation that could substantially
prejudice his or her right to a fair trial by an impartial jury.”
According to the ICA, “Had the circuit court ‘determine[d] that
the alleged deprivation [was] substantially prejudicial, the
[circuit] court then [would become] duty bound to further
investigate the totality of circumstances surrounding the alleged
deprivation to determine its impact on jury impartiality.’”
(Quoting State v. Yamada, 108 Hawaiʻi 474, 479, 122 P.3d 254, 259
(2005)). The ICA pointed out that the circuit court found that
the nature of the deprivation alleged by Chin did not rise to the
level of substantial prejudice, and the ICA further noted that
the timing and mixed nature of the verdicts undermined Chin’s
argument that she was deprived of a fair trial. The ICA
concluded that the circuit court did not abuse its discretion in
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denying the motion for new trial and affirmed the Judgment of
Conviction and Sentence.
II. DISCUSSION
In her Application for Writ of Certiorari, Chin
contends that she satisfied her initial burden of making a prima
facie showing of a deprivation that could substantially prejudice
her right to a fair trial by an impartial jury. Chin maintains
that when evidence is provided to the court that an extrinsic
influence may have tainted the trial, the court should hold a
hearing to determine the extent of the prejudice to the
defendant. Chin asserts that she is entitled to a new trial
because the trial court refused to conduct an appropriate
inquiry.
The State responds that Chin failed to meet her burden
of showing that her right to an impartial jury was substantially
prejudiced. Thus, the State argues that the circuit court was
under no duty to recall the foreperson for questioning, and
consequently the court did not abuse its discretion in denying
the motion for new trial.
A. The Williamson Test
The Hawaiʻi Constitution requires, as a fundamental
protection of an individual in a criminal case, trial by an
impartial jury. State v. Pokini, 55 Haw. 640, 641, 526 P.2d 94,
99 (1974). The defendant bears the initial burden of making a
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prima facie showing of a deprivation that “could substantially
prejudice [his or her] right to a fair trial” by an impartial
jury. 10 State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596
(1991) (emphasis added); see also Furutani, 76 Hawaiʻi at 181,
873 P.2d at 60. Once the defendant makes a prima facie showing
of a deprivation, “a rebuttable presumption of prejudice is
raised.” Williamson, 72 Haw. at 102, 807 P.2d at 596.
Therefore, the analysis in Williamson initially focuses on the
general nature of the outside influence and whether it “could”
substantially prejudice a defendant; if the court so finds, then
a rebuttable presumption of prejudice is raised that triggers
the court’s obligation to investigate the totality of the
circumstances. Id.
The circuit court and the ICA applied an incomplete
formulation of the Williamson test in examining the juror
misconduct in this case. Instead of applying the Williamson
analysis--which requires that the trial court first determine
whether the misconduct “could substantially prejudice the
defendant’s right to a fair trial”--the circuit court and the
10
That prima facie case includes a presentation by the defendant of
“some specific, substantial evidence” showing the occurrence of the outside
influence that may have possibly biased the juror. State v. Yamada, 108
Hawaiʻi 474, 479, 122 P.3d 254, 259 (2005); State v. Pauline, 100 Hawaiʻi 356,
381, 60 P.3d 306, 331 (2002); Furutani, 76 Hawaiʻi at 181, 873 P.2d at 60.
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ICA considered whether Chin presented evidence demonstrating
that she was substantially prejudiced. 11
Under the circuit court and the ICA’s interpretation,
the first step considers whether the alleged misconduct
substantially prejudiced the defendant’s right to a fair trial.
In this formulation, the focus of the defendant’s initial burden
is to demonstrate that the specific misconduct rises to the
level of being substantially prejudicial in order to trigger the
court’s duty to investigate. This interpretation is
inconsistent with Williamson.
The origin of the test used by the circuit court and
the ICA is the following passage from Keliiholokai: “the initial
step for the trial court to take . . . is to determine whether
the nature of the [outside influence] rises to the level of
being substantially prejudicial.” Keliiholokai, 58 Haw. at 359,
569 P.2d at 895. When viewed in isolation, this passage does
not reflect the actual holding of the Keliiholokai decision or
the law as pronounced in our subsequent cases.
In Keliiholokai, the issue was whether the jury had
been improperly influenced by a newspaper article. Id. at 361,
11
The circuit court stated, “Because [Chin] has failed to meet her
burden of presenting sufficient evidence of a deprivation that rises to the
level of being ‘substantially prejudicial[,]’ the [ ] motion for new trial is
denied.” Similarly, the ICA indicated that the trial court would be bound to
investigate the circumstances of the misconduct only if the trial court
“determined that the alleged deprivation was substantially prejudicial.”
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569 P.2d at 893. This court explained that the first
consideration was whether the contents of the article were of a
nature that could be substantially prejudicial.
Thus, the initial step for the trial court to take, once a
claim of prejudicial news accounts is made, is to determine
whether the nature of the news accounts rises to the level
of being substantially prejudicial.
Id. at 359, 569 P.2d at 894-95 (citation omitted) (quoting
United States v. Jones, 542 F.2d 186, 194 (4th Cir. 1976)).
Thus, in the context of the question of whether a jury received
improper information through a news article, the initial
evaluation is to examine the “nature” of the improper influence
or alleged misconduct.
The Keliiholokai court ruled that the news account
disclosed the defendant’s prior convictions. Id. at 360, 569
P.2d at 895. As the defendant in Keliiholokai had not testified
in his own behalf and there was “no indication of any relevant
and proper purpose for which evidence of [his] prior convictions
would have been admissible at trial,” the convictions should not
have been before the jury. Id.
[W]e hold that the nature of the article containing
appellant’s prior convictions was substantially prejudicial
and rose to “that degree of prejudice” which “triggered the
court’s responsibility to investigate further by
specifically questioning the jury.” All of the factors
present in the instant case should have prompted the trial
court to conduct “an immediate voir dire inquiry to
determine if the jurors had read the offensive articles
and, if they had, whether they could nonetheless render a
fair and true verdict.” This, the trial court failed to
do. Accordingly, we conclude that appellant was denied a
fair trial.
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Id. at 360, 569 P.2d at 896 (emphases added) (citations omitted)
(quoting Jones, 542 F.2d at 194, and United States v. Thomas,
463 F.2d 1061, 1063 (7th Cir. 1972)) (alteration omitted). The
Keliiholokai court first examined the general “nature” of the
outside influence, and having determined that it had the
potential to substantially prejudice him, applied a presumption
of prejudice in favor of the defendant. Id.
Accordingly, although the nature of the news article
was “substantially prejudicial,” the court in Keliiholokai did
not require the defendant to show that he had been prejudiced.
Indeed, it was unknown if any of the jurors had read the
article. Id. at 361, 569 P.2d at 893. The error by the trial
court was in failing to recognize that the article was of a
nature that, if read by a juror, could be substantially
prejudicial to the defendant, and therefore the trial court was
required to investigate whether any of the jurors had been
exposed to the contents of the article.
Subsequently, this court’s decision in Williamson
considered whether a defendant was prejudiced by a dictionary
discovered in the jury room following deliberations.
Williamson, 72 Haw. at 98, 807 P.2d at 594. Similar to
Keliiholokai, the Williamson decision first considered whether
the influence was of a nature that could substantially prejudice
the defendant’s right to a fair trial. Id. at 102-04, 807 P.2d
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at 596. The court observed, “During the course of a trial, a
juror’s obtaining of extraneous definitions or statements of law
differing from that intended by the court is misconduct which
may result in prejudice to the defendant’s constitutional right
to a fair trial.” Id. at 102-03, 807 at 596 (emphasis added).
Also parallel to Keliiholokai, once the nature of the misconduct
was determined to have the potential to substantially prejudice
the defendant, this court charged the trial court with a duty to
adequately investigate the misconduct. “[B]y not inquiring into
the identity of the juror who brought the dictionary and
obtaining a personal explanation from him or her as to its use,
the trial court did not have before it the totality of
circumstances surrounding the misconduct to decide whether it
was harmless.” Id. at 104, 807 P.2d at 597.
Williamson and Keliiholokai require the same procedure
of the trial court when an improper influence is raised: (1) an
initial determination that the outside influence is of a nature
that could substantially prejudice a defendant’s right to a fair
trial and, once that general nature has been established, (2) an
investigation of the totality of the circumstances. The
Williamson and Keliiholokai formulations are equivalent because
both refer to “the nature” of the outside influence, indicating
that the initial test looks at the general type of improper
conduct alleged. Thus, Keliiholokai instructs a trial court to
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examine whether the nature of the outside influence “rises to
the level of being substantially prejudicial,” Id. at 359, 569
P.2d at 895, and Williamson recognizes that this directive
requires that the trial court determine whether “such influence
is of a nature which could substantially prejudice the
defendant’s right to a fair trial.” 72 Haw. at 102, 807 P.2d at
596.
Since Williamson, this court has most frequently cited
the Keliiholokai and Williamson formulations together. For
example, State v. Bailey, 126 Hawaiʻi 383, 271 P.3d 1142 (2012),
recently cited the following passage from Furutani:
[W]hen a defendant in a criminal case claims a deprivation
of the right to a fair trial by an impartial jury, the
initial step for the trial court to take is to determine
whether the nature of the alleged deprivation rises to the
level of being substantially prejudicial. If it does not
rise to such a level, the trial court is under no duty to
interrogate the jury. And whether it does rise to the
level of substantial prejudice is ordinarily a question
committed to the trial court’s discretion.
Where the trial court does determine that such
alleged deprivation is of a nature which could
substantially prejudice the defendant’s right
to a fair trial, a rebuttable presumption of
prejudice is raised. The trial judge is then
duty bound to further investigate the totality
of circumstances surrounding the alleged
deprivation to determine its impact on jury
impartiality. The standard to be applied in
overcoming such a presumption is that the
alleged deprivation must be proved harmless
beyond a reasonable doubt.
The defendant bears the initial burden of
making a prima facie showing of a deprivation
that could substantially prejudice his or her
right to a fair trial by an impartial jury.
But once a rebuttable presumption of prejudice
is raised, the burden of proving harmlessness
falls squarely on the prosecution.
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Bailey, 126 Hawaiʻi at 399-400, 271 P.3d at 1158-59 (emphases
added) (quoting Furutani, 76 Hawaiʻi at 180–81, 873 P.2d at 59–
60). Similar passages setting forth both formulations were
stated in State v. Keohokapu, 127 Hawaiʻi 91, 102, 276 P.3d 660,
671 (2012), Yamada, 108 Hawaiʻi at 478-79, 122 P.3d at 258-59,
and State v. Samonte, 83 Hawaiʻi 507, 523-24, 928 P.2d 1, 17-18
(1996). 12 Thus, the decisions of this court have most frequently
cited the Keliiholokai and Williamson formulations together as a
single test that first examines whether the general nature of
the misconduct could substantially prejudice the right to a fair
trial. This test does not require a defendant to prove
substantial prejudice before a court has a duty to investigate
the circumstances.
For instance, in Bailey, the issue presented was
whether a juror’s statements to the other members of the jury
concerning the defendant’s prior convictions warranted a new
12
When only the Keliiholokai formulation has been cited, this court
determined that the nature of the misconduct was of a type that could not
substantially prejudice a defendant. See State v. Gabalis, 83 Hawaiʻi 40, 45-
46, 924 P.2d 534, 540-41(1996) (citing only the Keliiholokai formulation and
affirming denial of new trial based on a general rule that “information
regarding the reputation of an establishment or a community location is, in
and of itself, insufficiently prejudicial to warrant the grant of a new
trial”); see also State v. Kim, 103 Hawaiʻi 285, 291, 81 P.3d 1200, 1206-07
(2003) (citing only the Keliiholokai formulation and affirming trial court’s
denial on motion for new trial because allegedly improper juror comments did
“not constitute information from outside sources, and, thus, were not
improper”); Pauline, 100 Hawaiʻi at 381-82, 60 P.3d at 331-32 (citing only the
Keliiholokai formulation and affirming trial court’s denial of motion for new
trial based on paucity of evidence demonstrating that the alleged misconduct
occurred).
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trial. Bailey, 126 Hawaiʻi at 385, 271 P.3d at 1144. This court
cited both the Keliiholokai and Williamson formulations and
concluded that the defendant “met his burden of ‘making a prima
facie showing of a deprivation that could substantially
prejudice his or her right to a fair trial by an impartial
jury.’” Id. at 399-400, 271 P.3d at 1158-59 (emphasis added)
(quoting Furutani, 76 Hawaiʻi at 180–81, 873 P.2d at 59–60). We
concluded in Bailey that the trial court’s “decision to
investigate the impact of [the juror’s] statements on juror
impartiality was proper.” 13 Id. at 400, 271 P.3d at 1159. Thus,
Bailey applied the test, as stated in Williamson, that the court
first examines the general nature of the misconduct, and if such
misconduct is generally of a nature that could substantially
prejudice a defendant, the trial court is required to
investigate the totality of the circumstances surrounding the
outside influence.
Consequently, the circuit court should not have denied
Chin’s motion for new trial on the basis that she failed to
present sufficient evidence of a deprivation that rose to the
level of being substantially prejudicial. The ICA similarly
erred when it indicated that the trial court would be bound to
13
Following a review of the trial court’s investigation, this court
reversed the trial court’s denial of a new trial because the juror’s
statements were “insurmountably prejudicial” and thus were not harmless
beyond a reasonable doubt. Bailey, 126 Hawaiʻi at 403, 271 P.3d at 1162
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investigate the circumstances of the misconduct only if the
trial court “determined that the alleged deprivation was
substantially prejudicial.” 14
B. The Alleged Misconduct
Turning to the present case, Chin alleged contact
occurred between a witness and a juror that may have had a
significant, inappropriate influence upon the deliberative
process. Whether contact between a juror and a witness during
trial represents an outside influence of a nature that could
substantially prejudice a defendant has not been expressly
addressed by this court. The United States Supreme Court has
stated, “Private communications, possibly prejudicial, between
jurors and . . . witnesses . . . are absolutely forbidden, and
invalidate the verdict, at least unless their harmlessness is
made to appear.” Mattox v. United States, 146 U.S. 140, 150
(1892) (ordering a new trial based, in part, on improper
comments made by the court bailiff in the presence of the
jurors). The Court has also stated,
14
If the test applied by the trial court and the ICA were correct,
in order for the presumption of prejudice to be invoked, the court would
first have to find that substantial prejudice was already present. It would
not be logical to apply a presumption of prejudice when prejudice has already
been found.
It is equally incongruous that the nature of the outside
influence must be shown to rise to “substantial” prejudice when the
rebuttable presumption invokes mere “prejudice.” That is, under the trial
court’s and ICA’s formulation, substantial prejudice, a higher standard,
would have to be present in order to create a rebuttable presumption of mere
“prejudice,” a lower standard.
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In a criminal case, any private communication, contact, or
tampering directly or indirectly, with a juror during a
trial about the matter pending before the jury is, for
obvious reasons, deemed presumptively prejudicial, if not
made in pursuance of known rules of the court and the
instructions and directions of the court made during the
trial, with full knowledge of the parties.
Remmer v. United States, 347 U.S. 227, 229 (1954) (emphases
added) (remanding to the trial court with directions to hold a
hearing to determine whether a communication between an unknown
person and a juror was harmful to the defendant). Contact
between witnesses and jurors is “generally improper” because it
raises a fundamental concern of whether the jury reached “their
verdict based solely on the evidence presented at trial” or was
“improperly influenced by inappropriate contacts.” Dillard v.
State, 3 A.3d 403, 408-09 (Md. Ct. App. 2010) (quoting Jenkins
v. State, 375 Md. 284, 301, 825 A.2d 1008, 1018 (2003)).
This court has made similar pronouncements indicating
a strong policy of preventing outside influence on a jury. “The
law . . . zealously protects the efficacy of the right to jury
trial by erecting a strong presumption of prejudice when the
integrity of jury deliberations has been compromised by
unauthorized contact with non-jurors.” Pokini, 55 Haw. at 656,
526 P.2d at 108 (citing to Remmer, 347 U.S. at 229, and Mattox,
146 U.S. at 148-150). “The outside influence need not touch
directly on the guilt or innocence of the defendant to trigger
the presumption of prejudice--it is enough that during the
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crucial period of jury deliberations there was a private
communication bearing even remotely on the trial or the jury’s
functions in it.” Id.
Similarly, in State v. Messamore, the ICA considered a
possibly prejudicial conversation overheard in the hallway by
one of the jurors during a trial recess. 2 Haw. App. 643, 652,
639 P.2d 413, 420 (1982), abrogated on other grounds by State v.
Moore, 82 Hawaiʻi 202, 921 P.2d 122 (1996). The ICA found it
“inherent” in the protection of the right to a fair trial “that
a defendant receive a trial by an impartial jury free from
outside influences” and ordered a new trial. Id. at 652, 639
P.2d at 419-20.
Thus, in accordance with the decisions of the Supreme
Court and of this court, we hold that any contact or private
communication, unless trivial, 15 during trial between a juror and
a witness represents an outside influence of a nature that could
substantially prejudice a defendant’s right to a fair trial.
See Williamson, 72 Haw. at 102, 807 P.2d at 596.
Chin also alleged that the witness-juror contact was
in violation of a specific court instruction to the jury to not
15
A court may find that brief salutations, such as good morning or
good afternoon, are trivial when there are no circumstances present
indicating that the communication was anything other than benign. However,
if the court is not aware of the substance of the contact, the court has a
duty to investigate the nature of the communication, including whether it
concerned a matter pending before the jury. See Remmer, 347 U.S. at 229.
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talk to witnesses. Conduct of a juror that is contrary to the
instructions of the court may constitute grounds for a finding
of juror misconduct. 16 In Furutani, the jury’s disregard of the
court’s instruction that they were not to “draw any inference
unfavorable to [the defendant] because he did not testify in
this case, or give any consideration to this fact in your
deliberation” was one factor in this court’s determination that
the State had not overcome the rebuttable presumption of
prejudice. 76 Hawaiʻi at 177, 186-87, 873 P.2d at 56, 65-66.
While we do not consider whether a violation of any
court instruction may warrant investigation, here, the court’s
instruction to the jury specifically directed “Do not talk to
the defendant, lawyers, witnesses or anybody else connected with
this case.” As the instruction here is consistent with our
historical policy of preventing outside influence on a jury, the
violation of that instruction provides additional evidence that
the influence is of a nature that could substantially prejudice
a defendant’s right to a fair trial. See Pokini, 55 Haw. at
657, 526 P.2d at 108 (articulating a policy to “zealously
protect[] the efficacy of the right to jury trial by erecting a
strong presumption of prejudice when the integrity of jury
16
“‘Juror misconduct’ does not necessarily mean a juror’s bad faith
or malicious motive but means a violation of or departure from an established
rule or procedure for production of a valid verdict.” Oahu Publ’ns Inc. v.
Ahn, 133 Hawaiʻi 482, 490 n.8, 331 P.3d 460, 468 n.8 (2014).
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deliberations has been compromised by unauthorized contact with
non-jurors”).
The circuit court was provided substantive evidence
that there was contact between Bowen and the jury foreperson
that was of a nature that could substantially prejudice Chin’s
right to a fair trial. Accordingly, Chin made a prima facie
showing of juror misconduct that required the court to ascertain
the extent and effect of the improper influence.
C. The Court’s Duty to Investigate
When there is juror misconduct that presents a
potential for substantial prejudice to a defendant’s right to a
fair trial, there is a “rebuttable presumption of prejudice,”
and “[t]he trial judge is then duty bound to further investigate
the totality of circumstances surrounding the outside influence
to determine its impact on jury impartiality.” Williamson, 72
Haw. at 102, 807 P.2d at 596 (emphasis added). An investigation
into the totality of circumstances includes an “individual
examination of potentially tainted jurors, outside the presence
of the other jurors, to determine the influence, if any, of the
extraneous matters.” Id.
For example, in Williamson, the trial court did “not
inquir[e] into the identity of the juror who brought the
dictionary and obtain[] a personal explanation from him or her
as to its use”; thus, “the trial court did not have before it
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the totality of circumstances surrounding the misconduct to
decide whether it was harmless.” Id. at 104, 807 P.2d at 597.
In contrast, in State v. Amorin, 58 Haw. 623, 574 P.2d 895
(1978), the trial court had effectively investigated the
totality of the circumstances, including examination of the
relevant juror. Id. at 626, 574 P.2d at 898. Accordingly, this
court affirmed the finding of the trial court that the
misconduct “did not infect the rest of the jury” and was
“satisfied beyond a reasonable doubt that the juror misconduct .
. . was harmless and a new trial was properly denied.” Id. at
631, 574 P.2d at 900.
Thus, where a prima facie case of improper influence
has been shown, raising a presumption of prejudice, the totality
of the circumstances includes, at a minimum, the court’s
examination of the juror or jurors involved in the misconduct.
In short, there must be sufficient findings such that a
reviewing court “can determine whether the [outside influence]
was harmless or not.” Messamore, 2 Haw. App. at 652, 639 P.2d
at 420 (finding reversible error in the trial court’s failure to
inquire into the totality of the circumstances surrounding
statements overheard by a juror).
To overcome the presumption of prejudice, the State
must prove that the outside influence on the jury was harmless
beyond a reasonable doubt. Williamson, 72 Haw. at 102, 807 P.2d
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at 596; see Furutani, 76 Hawaiʻi at 181, 873 P.2d at 60 (“[T]he
burden of proving harmlessness falls squarely on the
prosecution.”). The trial court’s investigation of the totality
of the circumstances is a necessary prerequisite to finding that
the misconduct was harmless beyond a reasonable doubt. See
Amorin, 58 Haw. at 631, 574 P.2d at 900.
Therefore, in this case the circuit court was required
to investigate the totality of circumstances surrounding the
outside influence to determine its impact on the jury’s
impartiality. See Williamson, 72 Haw. at 102, 807 P.2d at 596.
The court’s investigation should have included, at a minimum, an
examination of the foreperson. In such an examination, the
circuit court might have inquired as to whether the foreperson
had heard and understood the court’s instruction not to “talk to
the . . . witnesses”; whether there was a reason for not
complying with this instruction; whether the foreperson gave the
witness a business card with personal contact information in
expectation of a response; whether the foreperson had approached
any other witness; and whether the foreperson told other jurors
or talked to other persons about his contact with Bowen. The
court might have also considered whether it was advisable to ask
other jurors whether the contact between the foreperson and the
witness was discussed during deliberations.
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Because Chin made a prima facie showing of juror
misconduct of a nature that had the potential to substantially
prejudice her right to a fair trial, the burden was on the State
to rebut the presumption of prejudice by showing that the
contact was harmless beyond a reasonable doubt. In light of the
absence of an inquiry by the circuit court as to the totality of
the circumstances surrounding the potential misconduct, there
was no showing by the State that such misconduct was harmless
beyond a reasonable doubt. Therefore, it was error for the
trial court to deny Chin’s motion for new trial without
investigation into the totality of the circumstances surrounding
the outside influence.
III. CONCLUSION
We reaffirm the procedure set forth in Williamson that
applies when there is an allegation of an improper influence
upon a jury. This procedure calls for a court to initially
determine whether the improper influence is generally of a
nature that could substantially prejudice a defendant’s right to
a fair trial. Williamson, 72 Haw. at 102, 807 P.2d at 596. If
a court finds that the improper influence could be substantially
prejudicial, then a rebuttable presumption of prejudice is
raised, and the trial court must investigate the totality of the
circumstances surrounding the outside influence. Id. When the
alleged improper influence involves nontrivial contact between a
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juror and a witness during trial, we hold that such contact
raises a rebuttable presumption of prejudice, and a court is
required to investigate the totality of the surrounding
circumstances.
In this case, the circuit court was required to
investigate the circumstances surrounding the nontrivial
communication between a defense witness and the jury foreperson.
Because the circuit court did not conduct such an investigation,
we cannot conclude that Chin’s fundamental right to a fair trial
by an impartial jury was not compromised. Accordingly, the
ICA’s December 5, 2014 Judgment on Appeal and the circuit
court’s July 19, 2013 Judgment of Conviction and Sentence are
vacated, and the case is remanded to the circuit court for a new
trial.
William A. Harrison /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
31