State v. Ho

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Electronically Filed
Supreme Court
SCWC-29131
14-MAY-2012
09:37 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
PATRICK K.K. HO, Petitioner/Defendant-Appellant.
NO. SCWC-29131
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29131; CR. NO. 05-1-0282(3))
May 14, 2012
RECKTENWALD, C.J., ACOBA, DUFFY, AND MCKENNA, JJ.;
WITH NAKAYAMA, J., DISSENTING
AMENDED OPINION OF THE COURT BY ACOBA, J.
We hold that under the circumstances here, the circuit
court of the first circuit (the court) plainly erred when during
jury selection it removed two jurors for cause on the motion of
Respondent/Plaintiff-Appellee State of Hawai#i (Respondent) after
the jury panel already had been passed for cause and
Petitioner/Defendant-Appellant Patrick K.K. Ho (Petitioner) and
Respondent had already exhausted their peremptory challenges.
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This procedure violated Rule 241 of the Hawai#i Rules of Penal
Procedure (HRPP), which provides that “[c]hallenges for cause may
be made at any time prior to the exercise of peremptory
challenges[,]” (emphasis added), and in effect abrogated the
parity in the number of peremptories each side is guaranteed
pursuant to Hawai#i Revised Statutes (HRS) § 635-30.2 As a
result, we vacate Petitioner’s April 24, 2008 judgment of
conviction and sentence entered by the court and the December 1,
2011 judgment of the Intermediate Court of Appeals (ICA) and
remand this case for a new trial.
I.
On May 3, 2004, Petitioner was indicted for three
counts of First Degree Sexual Assault, HRS §§ 707-730(1)(b) and
(1)(c),3 and nine counts of Third Degree Sexual Assault, HRS §§
1
The various provisions of HRPP Rule 24 are discussed infra.
2
HRS § 635-30 (1993) provides:
In criminal cases, if the offense charged is
punishable by life imprisonment, each side is entitled
to twelve peremptory challenges. If there are two or
more defendants jointly put on trial for such an
offense, each of the defendants shall be allowed six
challenges. In all other criminal trials by jury each
side is entitled to three peremptory challenges. If
there are two or more defendants jointly put on trial
for such an offense, each of the defendants shall be
allowed two challenges. In all cases the State shall
be allowed as many challenges as are allowed to all
defendants.
(Emphases added.)
3
HRS § 707-730 (Supp. 2004) provides in relevant part:
§ 707-730. Sexual assault in the first degree. (1) A person
commits the offense of sexual assault in the first degree
if:
(continued...)
2
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707-732(1)(b) and (1)(c).4 According to Respondent, Petitioner,
who was 64 years old at the time, sexually assaulted his
granddaughter (CW), the complaining witness, during a twelve-
month period before and after her fourteenth birthday.
Petitioner was tried, and the jury returned a verdict of guilty
on two counts of First Degree Sexual Assault and three counts of
Third Degree Sexual Assault. Petitioner was acquitted of the
remaining counts.
A.
Petitioner appealed and raised two points before the
ICA that are relevant to his Application for Writ of Certiorari
3
(...continued)
. . .
(b) The person knowingly engages in sexual penetration with
another person who is less than fourteen years old;
(c) The person knowingly engages in sexual penetration with
a person who is at least fourteen years old but less than
sixteen years old; provided that:
(i) The person is not less than five years older than
the minor; and
(ii) The person is not legally married to the minor;
. . .
(2) Sexual assault in the first degree is a class A felony.
4
HRS § 707-732 (Supp. 2004) provides in relevant part:
§ 707-732. Sexual assault in the third degree. (1) A person
commits the offense of sexual assault in the third degree
if:
. . .
(b) The person knowingly subjects to sexual contact another
person who is less than fourteen years old or causes such a
person to have sexual contact with the person;
(c) The person knowingly engages in sexual contact with a
person who is at least fourteen years old but less than
sixteen years old or causes the minor to have sexual contact
with the person; provided that:
(i) The person is not less than five years older than
the minor; and
(ii) The person is not legally married to the minor
. . .
(2) Sexual assault in the third degree is a class C felony.
3
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(Application). As to the first point, Petitioner argued that the
court’s refusal to disqualify two jurors who were sexually
assaulted as teenagers compelled Petitioner to use two of his
three peremptories to remove the jurors from the jury panel. In
his Application, Petitioner relates that Juror 19 told the court
that she had been sexually assaulted as a child “between the age
[sic] of 11 to 14,” “but nevertheless felt she could be fair.”
According to Petitioner, when “[a]sked by defense counsel if she
understood the presumption of innocence, [Juror 19] said,
‘there’s a possibility that he is guilty because we’re here.’”
The court refused Petitioner’s request to excuse Juror 19 for
cause.
Petitioner also claims that the court erroneously
failed to strike Juror 23a for cause. Like Juror 19, Juror 23a
stated that she had been a victim of sexual assault, but claimed
she could nevertheless be fair. She also reported having a
friend in law enforcement. According to Petitioner, the court
cut off defense counsel’s attempt to question Juror 23a, and
refused Petitioner’s request to strike Juror 23a for cause.
Petitioner maintains that he “was forced [to] use two
of his three peremptories to remove [Juror 19] and [Juror 23a]
from the panel[,]” and that Respondent made no attempt to remove
these jurors from the panel. Petitioner also claims “[h]e used
the third [peremptory challenge] to remove [another] Juror [],
who had found someone guilty in a prior criminal case and
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testified she would find [Petitioner] guilty too if she only
suspected his guilt.”
As to his second point, Petitioner argued to the ICA
that the court erred in removing two other jurors for cause
at Respondent’s request after Petitioner exercised all of his
peremptories, based on identical grounds urged by Respondent
before the parties exercised their peremptory challenges.
Petitioner recounts in his Application that Respondent asked the
court to disqualify Juror 43a and Juror 8a for cause because they
allegedly had problems speaking or understanding English. The
court initially refused to excuse the jurors for cause. After
all the jurors were passed for cause, the parties exercised their
peremptory challenges. Respondent did not use its peremptory
challenges to excuse Juror 43a or Juror 8a, despite having
challenged them for cause.
Petitioner relates that “[Respondent] waited until
after [the panel had been passed for cause and] all peremptories
had been exercised, and then ‘renewed’ [its] request to
disqualify [Juror 43a and Juror 8a] based on the same grounds
[given previously]”:
[Respondent:] I’m going to again renew my motion to excuse for
cause jurors in chairs number 2 and 5, [8a] and [43a] . . . on the
grounds that they cannot communicate effectively in the English
language.
(Emphasis in original.)
This time, the court conducted additional voir dire and
then granted Respondent’s motion to disqualify Juror 43a and
Juror 8a, for the same reasons Respondent had urged before the
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parties had exhausted their peremptory challenges. Petitioner
states that “the court did not ask [Petitioner’s] position on the
renewed motion, presumably because defense counsel had already
passed both jurors for cause, and opposed the State’s motion for
disqualification when it was lodged before the peremptories were
exercised.” (Emphasis in original.) Juror 43a and Juror 8a were
replaced by Juror 7 and Juror 9, who were passed for cause. The
court did not give the parties additional peremptory challenges
with respect to the replacement jurors. Juror 7 and Juror 9 sat
on the jury and participated in rendering the verdict.
B.
On November 14, 2011, the ICA upheld Petitioner’s
conviction in a split decision. State v. Ho, No. 29131, 2011 WL
5518045 (Haw. App. Nov. 14, 2011) (SDO). According to the ICA,
on appeal, Petitioner contended that “his peremptory challenges
were impaired because the Family Court (a) erred in refusing to
dismiss Jurors 19 and 23a for cause because both jurors stated
during voir dire that they were sexually assaulted in the past
and (b) ‘lacked jurisdiction’ to dismiss jurors 43a and 8a for
cause, and to replace them with jurors 7 and 9, after peremptory
challenges had been made.” Id. at *1. The ICA majority
concluded as to the first alleged error that the court did err in
not striking Juror 19 and Juror 23a for cause. Id. However, the
majority concluded that Petitioner failed to meet his burden of
establishing that his right to exercise peremptory challenges was
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denied or impaired. Id. (citing State v. Iuli, 101 Hawai#i 196,
205-06, 65 P.3d 143, 152-53 (2003)).
As to the second error alleged (regarding Juror 43a and
Juror 8a), the majority concluded that “the fact that
[Petitioner] did not object to jurors 7 or 9 for cause means that
[Petitioner’s] right of peremptory challenge was not denied or
impaired.” Id. (citing State v. Graham, 70 Haw. 627, 634, 780
P.2d 1103, 1107-08 (1989)) (emphasis added). The majority quoted
the following language from Graham:
A defendant . . . cannot sit in silence and accept a
juror as unprejudiced and fair and then subsequently allege
error in the retention of the same juror.
The result can be no different where a member of the
jury panel is not challenged for cause and is later excused
on a peremptory challenge. No error can be predicated on the
trial court’s failure to excuse the proposed juror for cause
since the court was not asked to rule on the matter and did
not rule.
Id. (quoting Graham, 70 Haw. at 634, 780 P.2d at 1107-08)
(ellipsis in original).
The majority did acknowledge that the ICA had twice
“found plain error in trial courts’ mishandling of challenges for
cause and peremptory challenges” under HRPP Rule 24(d)5 in State
5
HRPP Rule 24(d) (2001) provides:
(d) Sequence for Challenging of Jurors. Challenges for cause may
be made at any time prior to the exercise of peremptory
challenges. The prosecutor and the defendant, shall alternately
state their peremptory challenges, if any, the prosecutor
beginning, and the defendant ending. In case there are more than
two defendants in any case, the order of precedence of their
challenges, if not agreed upon by them, shall be determined by the
court.
(Emphases added.) HRPP Rule 24(d) was amended in 2011 to incorporate several
minor grammatical changes. HRPP Rule 24(d) now provides:
(continued...)
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v. Timas, 82 Hawai#i 499, 923 P.2d 916 (App. 1996) and State v.
Carvalho, 79 Hawai#i 165, 174, 880 P.2d 217, 226 (App. 1994).
Ho, 2011 WL 5518045, at *1 n.3. But it maintained,
The Hawai#i Supreme Court, however, has never itself
extended plain error to the issue of the ordering of
peremptory and for cause challenges. Rather, the supreme
court has, to this point, required first that defendants
establish that peremptory rights have to be denied or
impaired before a showing of prejudice will be excused.
Iuli, 101 Hawai#i at 204, 65 P.3d at 151. Such an ordering
of the analysis is particularly appropriate where, as here,
the trial court could have-even at any time during trial
under HRPP Rule 24(c)[6 ]-replaced jurors 43a and 8a if they
5
(...continued)
(d) Sequence for challenging of jurors. Challenges for
cause may be made at any time prior to the exercise of
peremptory challenges. The prosecutor and the defendant
shall alternately state their peremptory challenges, if any,
the prosecutor beginning, and the defendant ending. In case
there are more than 2 defendants in any case, the order of
precedence of their challenges, if not agreed upon by them,
shall be determined by the court.
These changes are not material.
6
HRPP Rule 24(c) (2001) provides:
(c) Alternate Jurors. The court may direct that not more
than 4 jurors in addition to the regular jury be called and
impaneled to sit as alternate jurors who shall, in the order
in which they are called, replace jurors who, prior to the
time the jury retires to consider its verdict, become or are
found to be unable or disqualified to perform their duties.
An alternate juror who does not replace a regular juror
shall be discharged when the jury retires to consider its
verdict. When the court directs that one or more alternate
jurors be impaneled, each defendant shall be entitled to 1
additional peremptory challenge which may be used to
challenge the alternate jurors only; and other peremptory
challenges allowed to challenge the regular jurors shall not
be used to challenge alternate jurors.
(Emphasis added.) Effective July 1, 2011, HRPP Rule 24(c) (2011) now states:
(c) Alternate jurors. The court may direct that not more
than 4 jurors in addition to the regular jury be called and
impaneled to sit as alternate jurors who shall, in the order
in which they are called, replace jurors who, prior to the
time the jury retires to consider its verdict, become or are
found to be unable or disqualified to perform their duties.
When the court directs that one or more alternate jurors be
impaneled, each defendant shall be entitled to 1 additional
peremptory challenge which may be used to challenge the
alternate jurors only; and other peremptory challenges
(continued...)
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were found "unable or disqualified to perform their duties,"
and where the alleged error could have been rectified by
allowing additional peremptory challenges, if it had first
been brought to the trial court's attention. Under the
circumstances, we believe that the application of plain
error is unwarranted.
Id. (emphases added).
The ICA dissent was silent as to Petitioner’s
contention that the court erred in failing to excuse Juror 19 and
Juror 23a for cause. However, as to Juror 43a and Juror 8a, the
dissent would have held that Petitioner’s “right to exercise his
peremptory challenges was impaired.” Id. at *3 (Ginoza, J.,
dissenting) (citing Timas, 82 Hawai#i at 499, 923 P.2d at 916,
Carvalho, 79 Hawai#i at 165, 880 P.2d at 217, and HRPP Rule
24(d)). According to the dissent, the ICA “has held as to
alternate jurors that ‘the defendant shall not be called upon to
exercise [peremptory] challenge[s] until all potential alternate
jurors have been examined and passed on challenges for cause[.]’”
Id. at *4 (quoting Timas, 82 Hawai#i at 509, 923 P.2d at 926(quoting Carvalho, 79 Hawai#i at 172, 880 P.2d at 224)).
The dissent reasoned that (1) Respondent “challenged
jurors 43a and 8a for cause, but they were not initially
dismissed”; (2) after Petitioner “used his last peremptory
6
(...continued)
allowed to challenge the regular jurors shall not be used to
challenge alternate jurors. When the regular jurors retire
to begin deliberations, the alternate jurors may be held in
recess until a verdict is received. If an alternate juror
replaces a regular juror after deliberations have begun, the
court shall instruct the jury to begin its deliberations
anew.
The differences between the two versions of the rule do not affect the outcome
of this case.
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challenge, [Respondent] renewed its ‘for cause’ challenge to
jurors 43a and 8a, who were then dismissed for cause”; and (3)
“jurors 7 and 9 were then added to replace jurors 43a and 8a.”
Id. The dissent concluded that “[e]ven though [Petitioner] did
not challenge jurors 7 or 9 for cause or challenge the [court’s]
procedure, under Timas and Carvalho it was plain error to dismiss
jurors 43a and 8a for cause and replace them with jurors 7 and 9
after [all of Petitioner’s] peremptory challenges had been used.”
Id.According to the dissent, there was no need for
Petitioner to show prejudice because “‘the denial or impairment
of a defendant’s right of peremptory challenge in a criminal case
is reversible error not requiring a showing of prejudice.’” Id.(quoting Timas, 82 Hawai#i at 509, 923 P.2d at 926 (quoting
Carvalho, 79 Hawai#i at 174, 880 P.2d at 226)). The dissent
distinguished Iuli and State v. Kauhi, 86 Hawai#i 195, 948 P.2d
1036 (1997), where trial courts allegedly abused their discretion
in refusing to excuse a juror for cause and the defendant then
utilized a peremptory challenge to remove that juror, from
Carvalho and Timas, where “the right to exercise peremptory
challenges is denied or impaired when a defendant is called on to
exercise the challenges before prospective jurors are passed for
cause.” Id. (emphasis added).
II.
Petitioner lists the following questions in his
Application:
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A. Did the ICA commit grave error, and render a decision
inconsistent with supreme court and ICA precedent, when it
acknowledged major errors during jury selection, but found
no impairment of [Petitioner’s] statury [sic] right to
peremptory challenges?
B. Did the trial court commit plain error, and impair “one
of the most important rights secured to the accused in a
criminal case,” when it forced [Petitioner] to use two-out-
of-three peremptories to remove patently biased jurors that
should have been disqualified for cause?
C. Did the trial court commit plain error, and impair “once of the
most important rights secured to the accused in a criminal case,”
when it granted the state’s “renewed” motion to disqualify two
jurors after the exercise of peremptory challenges, based on
identical grounds urged before?
(Capitalization omitted and emphases added.)
Respondent filed a Response to the Application
(Response). Respondent contends that Petitioner’s use of his
peremptory challenges as to the sexually abused jurors (Juror 19
and Juror 23a) was not impaired because Petitioner did not ask
for additional peremptory challenges, did not tell the court that
his use of peremptory challenges was impaired, and did not
challenge the impartiality of the final jury. Respondent cites
Iuli, 101 Hawai#i at 200-02, 65 P.3d at 147-49, Ross v. Oklahoma,
487 U.S. 81, 83 (1988), and United States v. Martinez-Salazar,
528 U.S. 304, 307 (2000), in support of this contention. As to
Juror 8a and Juror 43a, Respondent argues that by striking these
jurors the court ensured that Petitioner’s trial would be fair;
that HRPP Rule 24(c) “seems to acknowledge” a court’s authority
to excuse jurors just prior to the time the jury retires to
consider its verdict; and (apparently) that Petitioner should
have requested additional peremptory challenges and should have
objected.
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Petitioner filed a Reply to Response to Application for
Certiorari (Reply). In his Reply, Petitioner argues, as to Juror
19 and Juror 23a, that peremptory challenges are a necessary part
of trial by jury. Petitioner further argues that he had to use
two of his three peremptories to cure trial errors, and therefore
the degree of impairment of his peremptories “far exceeds” the
single peremptory lost to the defendants in Iuli, Ross, and
Martinez-Salazar. As to Juror 8a and Juror 43a, Petitioner
states that Respondent did not address the argument that the
right to exercise peremptory challenges is denied or impaired
when a defendant is called to exercise peremptory challenges
before prospective jurors are passed for cause.
III.
The jury selection process is governed by HRS § 635-30
and HRPP Rule 24.7 In cases like this one, that do not involve
7
HRPP Rule 24 (a) and (b) (2001), provide as follows:
(a) Conduct of Jury Selection. At the discretion of the
court, the parties may present a “mini-opening statement” to
the jury panel prior to the commencement of jury selection.
The mini-opening statement shall be limited to a brief
statement of the facts expected to be proven. The court
shall permit the parties or their attorneys to conduct the
examination of prospective jurors or shall itself conduct
the examination. In the latter event the court shall permit
the parties or their attorneys to supplement the examination
by such further inquiry as it deems proper.
(b) Peremptory Challenges. If the offense charged is
punishable by life imprisonment, each side is entitled to 12
peremptory challenges. If there are 2 or more defendants
jointly put on trial for such an offense, each of the
defendants shall be allowed 6 peremptory challenges. In all
other criminal trials by jury, each side is entitled to 3
peremptory challenges. If there are 2 or more defendants
jointly put on trial for such an offense, each of the
defendants shall be allowed 2 peremptory challenges. In all
cases, the prosecution shall be allowed as many peremptory
(continued...)
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an offense punishable by life in prison, each side is entitled to
three peremptory challenges to strike the jurors on the panel who
have been passed for cause. HRS § 635-30; HRPP Rule 24(b). In
addition, HRPP Rule 24(c) allows up to four “alternate” jurors to
be impaneled, in case one of the “regular juror[s]” becomes
unqualified. The parties are given one peremptory challenge to
strike alternate jurors. HRPP Rule 24(c).
Challenges for cause are permitted only before the
exercise of peremptory challenges for both regular and alternate
jurors. HRPP Rule 24(d). This means that when the parties
exercise their peremptories they know who the potential regular
jurors and the potential alternates are. See id. Once the
jurors have been passed for cause, the prosecution and the
defendant alternately state their peremptory challenges. HRPP
Rule 24(d). In all cases, the prosecution is allowed only as
many challenges as are allowed to the defendant. HRS § 635-30;
HRPP Rule 24(b).
IV.
We believe that Question C in the Application must be
answered in the affirmative and is dispositive. Accordingly, we
do not reach Questions A and B. For the reasons stated herein,
the case is remanded for a new trial.
7
(...continued)
challenges as are allowed to all defendants.
(Emphases added.) HRPP Rule 24(a) and (b) did not change as a result of the
2011 amendments to HRPP Rule 24. HRPP Rule 24 (c) and (d) are reproduced
supra.
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A.
We begin by reviewing Carvalho, 79 Hawai#i 165, 880
P.2d 217, which is instructive. Carvalho involved HRPP Rule
24(c), under which a defendant is entitled to “[one] peremptory
challenge which may be used to challenge the alternate jurors
only.” Pursuant to HRS § 635-30 and HRPP Rule 24(b), the
prosecution “shall be allowed as many” peremptory challenges “as
are allowed to all defendants.” In Carvalho, the circuit court
passed one alternate for cause and gave each party an opportunity
to exercise a peremptory challenge. 79 Hawai#i at 171, 880 P.2d
at 223. The prosecution indicated that it would “waive” its
peremptory challenge and the defense exercised its peremptory
challenge to strike the juror. Id. The circuit court then
called another alternate juror. Id. At that point, the
defendant could no longer exercise a peremptory challenge, having
exhausted his one peremptory to strike the first juror. Id.However, the prosecution was given the opportunity to exercise
another peremptory challenge. Id. The ICA held that the circuit
court plainly erred because the defendant had been compelled to
exhaust his peremptory challenge before all the alternates had
been passed for cause, in violation of HRPP Rule 24(d), and the
prosecution, in effect, was afforded a “second” peremptory
challenge, in violation of HRS § 635-30 and HRPP Rule 24(b),
which guarantee the parties an equal number of peremptory
challenges. See id.
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Similarly, in Timas, as in Carvalho, the ICA concluded
that the circuit court plainly erred in calling and passing for
cause an alternate juror after the defendant had exercised his
one peremptory challenge. Timas, 82 Hawai#i at 509, 923 P.2d at
926. In Timas, which was a multi-defendant case, the circuit
court called the first alternate juror and announced that each
defendant would be entitled to one peremptory challenge. See id.
at 507, 923 P.2d at 924. One of the defendants exercised his
peremptory challenge. Id. The circuit court then called
additional alternate jurors. Id. The same defendant was not
able to exercise a peremptory challenge with respect to the
additional alternate jurors, because he had exhausted his one
peremptory challenge in striking the first alternate juror. Id.The ICA held that the defendant’s right to one
peremptory challenge pertained to all of the alternate jurors and
that the procedure used by the circuit court did not conform to
that announced in Carvalho. Id. at 509, 923 P.2d at 926. The
ICA also held that the defendant was not required to show
prejudice, and that although the defendant had not raised the
point on appeal, the defendant’s statutory right to exercise a
peremptory challenge had been impaired, resulting in a denial of
his substantial rights. Id. The ICA therefore concluded that
the plain error doctrine applied. Id.V.
These cases illustrate the distinct nature of errors
involving a court’s failure to strike jurors for cause before the
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parties have exercised their peremptories, and errors that occur
after the parties have exercised their peremptories. Carvalho
and Timas involved an error that occurred after the parties had
exercised their peremptories. Carvalho, 79 Hawai#i at 171-72,
880 P.2d at 223-24; Timas, 82 Hawai#i at 509, 923 P.2d at 926.
Because the Carvalho court called additional alternate jurors
after the defendants exercised their peremptory challenges, the
defendants were not aware of the composition of the entire jury
panel before exhausting their peremptory challenge. Therefore,
the defendants were deprived of the opportunity to exercise their
peremptory challenge with respect to all of the alternate jurors.
Id. In Carvalho, the ICA explained that the court’s error was
compounded because it allowed the prosecution an additional
peremptory challenge after the defendant had exercised his single
peremptory challenge. 79 Hawai#i at 171-72, 880 P.2d at 223-24.
Under those circumstances, in Carvalho and in Timas, the ICA
concluded that the defendants’ right to exercise peremptory
challenges had been denied or impaired. Carvalho, 79 Hawai#i at
171-72, 880 P.2d at 223-24; Timas, 82 Hawai#i at 509, 923 P.2d at
926.
VI.
Under Question C in the Application, the issue is
whether Petitioner’s right to exercise peremptory challenges was
impaired when the court entertained Respondent’s challenges for
cause after the parties had exercised their peremptory
challenges.
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A.
As mentioned, Petitioner contends that the court erred
in striking Juror 43a and Juror 8a for cause upon Respondent’s
motion after all the jurors in the jury box had already been
passed for cause. According to Petitioner, the practice of
allowing Respondent two challenges for cause after peremptory
challenges had been exercised is prohibited by HRPP Rule 24(d)
and by case law, and resulted in Respondent effectively having
two additional peremptory challenges. Petitioner states that:
After exercising three peremptory challenges against other
jurors, the State was allowed to renew its challenge for
cause against [Juror 43a] and [Juror 8a], ostensibly giving
it five peremptories to [Petitioner's] one. Moreover,
[Petitioner’s] sole peremptory was exercised before [Jurors
43a and 8a] were replaced. Two court rules require that
challenges for cause be made ‘prior to the exercise of
peremptory challenges’ . . . . Otherwise, litigants cannot
compare the relative qualifications and attitudes of all 12
jurors examined and passed for cause . . . .
(Internal citations omitted and emphasis added.)
As noted before, the ICA majority concluded that
Petitioner’s right to exercise his peremptory challenges was not
impaired because (1) Petitioner did not object to Juror 7 or
Juror 9 for cause (citing Graham, 70 Haw. at 634, 780 P.2d at
1107-08); (2) under HRPP Rule 24(c) the court could have replaced
Juror 43a and Juror 8a if these were found unable or disqualified
to perform their duties at any time before trial; (3) under Iuli,
Petitioner should have objected and asked for additional
peremptory challenges; and (4) there was no plain error in the
absence of an objection by Petitioner. Ho, 2011 WL 5518045, at
*1. Respondent argues that (1) the court performed its duty to
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ensure Petitioner’s trial would be had before a fair and
impartial jury; (2) HRPP Rule 24(c) seems to acknowledge the
circuit court’s authority to excuse jurors until just prior to
the time the jury retires to consider its verdict; and (3)
Petitioner should have objected and requested additional
peremptory challenges.8
VII.
To reiterate, HRPP Rule 24(d) allows challenges for
cause only before the parties have exercised their peremptory
challenges. HRPP Rule 24(d) (“Challenges for cause may be made
at any time prior to the exercise of peremptory challenges.”).
In Carvalho, in the context of alternate jurors, the ICA
explained that the right to exercise peremptory challenges is a
right that applies with respect to all potential alternate
jurors, and that the courts were not allowed to give one party
more peremptories than the other:
Only after all potential alternates were passed for cause
could Defendant properly exercise his one peremptory
challenge as contemplated by HRPP Rule 24(c). The procedure
[whereby the court asked the parties to exercise their
peremptories after the first alternate was passed for cause
and then passed another alternate for cause] prejudiced
Defendant because he was compelled to exhaust his peremptory
challenge before all the prospective alternate jurors were
passed for cause.
Moreover, once the State waived its challenge it was
foreclosed from exercising any more peremptory challenges
because the State is only “allowed as many peremptory
challenges as are allowed to [the] defendant[ ].” HRS §
635–30; HRPP Rule 24(b). The court’s procedure, as a matter
of fact, resulted in the State gaining an extra challenge
not afforded the defendant, giving it an unfair advantage in
selecting the jurors who ultimately decided the case.
8
Respondent does not mention the dissent and does not expressly
take a position on plain error.
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We hold, therefore, that the defendant’s right to one
peremptory challenge to alternate jurors under HRPP Rule
24(c) is a right pertaining to all the alternate jurors and
therefore the defendant shall not be called upon to exercise
the challenge until all potential alternate jurors have been
examined and passed on challenges for cause.
79 Hawai#i at 172, 880 P.2d at 224 (emphases added).
In light of HRS § 635-30, HRPP Rule 24, Carvalho, and
Timas, it is evident that the procedure the court followed during
jury selection was improper. Respondent only “renewed” its
motion to have Juror 43a and Juror 8a struck for cause after the
parties exhausted their peremptory challenges. As Petitioner
contends, by striking jurors for cause after Petitioner exercised
his peremptory challenges, (1) the court deprived Petitioner of
the opportunity to compare and contrast the relative
qualifications of the twelve jurors passed for cause before
exercising his peremptory challenges; and (2) Petitioner was
deprived of the opportunity to exercise any peremptory challenges
with respect to the two jurors (Juror 7 and Juror 9) who replaced
Juror 43a and 8a. See Carvalho, 79 Hawai#i at 172, 880 P.2d at
224 (holding, with respect to alternate jurors, that the right to
exercise a peremptory challenge is a right pertaining to all the
alternate jurors).
Further, by allowing Respondent to challenge two jurors
for cause after both parties exhausted their peremptory
challenges, the court for all practical purposes gave Respondent
two additional peremptory challenges. Indeed, this case and
Carvalho are essentially indistinguishable. See 79 Hawai#i 165,
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880 P.2d 217. Here, as in Carvalho, when that court struck
Respondent’s jurors for cause after peremptories had been
exercised, that court gave Respondent two additional
opportunities to shape the jury. As discussed, for-cause
challenges under HRPP Rule 24 should occur before peremptories to
ensure the parties have the opportunity to exercise their
peremptories as to all prospective jurors. Carvalho, 79 Hawai#i
at 172, 880 P.2d at 224. By granting Respondent’s motion to
strike the jurors for cause after the parties had fully exhausted
their peremptory challenges, the court in effect gave the
prosecution additional peremptory challenges. This violated HRS
§ 635-30 and HRPP Rule 24(b) because the prosecution is only
allowed “as many challenges as are allowed to [the]
defendant[].”9
VIII.
The ICA majority, however, did not believe that
Petitioner’s right to exercise his peremptory challenges was
impaired because Petitioner “did not object to Jurors 7 or 9 for
cause.”10 Ho, 2011 WL 5518045, at *1. The majority reasoned
that a defendant cannot accept a juror as unprejudiced and unfair
and then subsequently allege error in the retention of the same
juror. Id. (citing Graham, 70 Haw at 634, 780 P.2d at 1107-08).
9
However, in the unusual circumstance where disqualifying factors
may become evident after peremptory challenges have been exhausted, the
circuit court, in the appropriate exercise of its discretion, may replace a
juror. In such an instance, the parties should be afforded an equal number of
peremptory challenges to the seating of the replacement jurors. This would
preserve the parity among the parties with respect to peremptory challenges
that is guaranteed by HRS § 635-30 and HRPP Rule 24(b).
10
This section corresponds to the first argument made by the ICA and
by Respondent. See supra p.17.
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However, Petitioner’s complaint as to the replacement of Juror 8a
and Juror 43a with Juror 7 and Juror 9 was not that the latter
were biased, but rather that, in effect, the prosecution was
given additional peremptory challenges and therefore had an
unfair advantage in shaping the jury.11 Respectfully, it would
have been disingenuous for Petitioner to request that Juror 7 and
Juror 9 be removed for cause because Petitioner apparently did
not have reason to challenge those jurors for cause.
In a similar vein, Respondent contends that by removing
Juror 8a and Juror 43a the court ensured that Petitioner’s trial
was fair. This claim is debatable because, although Respondent
claims that these jurors had trouble communicating in English,
Petitioner objected to the removal of those two jurors, and the
court initially agreed they should be passed for cause. Cause
aside, a party may prefer to keep the twelve jurors that have
been passed for cause, sensing that those that remain in the jury
pool may be less accepting of the party’s position than others
already seated. In any event, as explained supra, it was
violative of HRS § 635-30 and HRPP Rule 24(b) for the court, in
effect, to give Respondent more peremptory challenges, and thus
11
The ICA majority’s reference to Graham is inapposite. In Graham,
the defendant complained that he had to exercise his peremptory challenges
with respect to jurors who should have been stricken for cause even though the
defendant failed to challenge those jurors for cause. 70 Haw. at 634, 780
P.2d at 1108. This court held that the defendant could not complain of the
circuit court’s failure to strike the jurors for cause because he had not
challenged the jurors for cause before the circuit court. Id. Again,
Petitioner’s complaint here is not that Jurors 8a, 43a, 7, or 9 should have
been removed for cause, but rather that Juror 8a and Juror 43a should not have
been struck for cause upon Respondent’s motion after the peremptory
challenges, and that the fact that they were meant that, practically speaking,
Respondent was able to exercise additional peremptory challenges.
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more opportunities to shape the final jury membership, than were
given to Petitioner.
IX.
The ICA majority and Respondent, however, also cite the
portion of HRPP Rule 24(c) that states that the court has
authority to excuse jurors until just “prior to the time the jury
retires to consider its verdict, [who] become or are found to be
unable or disqualified to perform their duties,” implying that it
was not error for the court to strike Juror 8a and Juror 43a for
cause after the parties had exhausted their peremptories.12 The
language cited by the ICA majority and the Respondent have been
taken out of context. The quoted phrase is part of a sentence in
HRPP Rule 24(c) that indicates that if a regular juror is found
unable to perform his or her duties, the court may replace the
regular juror with one of the alternate jurors who has already
been impaneled. Specifically, and to reiterate, HRPP Rule 24(c)
states:
The court may direct that not more than 4 jurors in addition
to the regular jury be called and impaneled to sit as
alternate jurors who shall, in the order in which they are
called, replace jurors who, prior to the time the jury
retires to consider its verdict, become or are found to be
unable or disqualified to perform their duties. An
alternate juror who does not replace a regular juror shall
be discharged when the jury retires to consider its verdict.
When the court directs that one or more alternate jurors be
impaneled, each defendant shall be entitled to 1 additional
peremptory challenge which may be used to challenge the
alternate jurors only; and other peremptory challenges
allowed to challenge the regular jurors shall not be used to
challenge alternate jurors.
(Emphasis added.)
12
This section corresponds to the second argument made by the ICA
majority and Respondent. See supra p.17.
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In other words, alternate jurors who have already been
passed for cause and survived peremptory challenges and thus have
been ultimately chosen as alternate jurors for the case may be
used to replace “regular” jurors during trial when regular
jurors, for some reason or another, become disqualified. Id.
Thus, by no means does HRPP Rule 24(c) change the procedure the
court must follow during jury selection and allow the court to
entertain motions to strike jurors for cause after the parties
have already exhausted their peremptory strikes. This reading of
HRPP Rule 24(c) is foreclosed by HRPP Rule 24(d), which allows
challenges for cause prior to the exercise of peremptory
challenges.13
X.
The ICA majority and Respondent also believe that Iuli
forecloses Petitioner’s challenge to the court’s grant of
Respondent’s renewed motion for cause, because Petitioner did not
request additional peremptory challenges and, seemingly, because
he did not point to any other jurors that he would have
excused.14 However, Iuli was not concerned with the
circumstances here and thus is distinguishable. Iuli involved a
challenge for cause made before the parties exercised their
peremptory challenges. 101 Hawai#i at 200-05, 65 P.3d at 147-
152. This court declined to decide whether the circuit court
13
A limited exception to this rule is described in footnote 10.
14
This section corresponds to the third argument made by the ICA
majority and Respondent. See supra, p.17.
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erred in denying the defendant’s challenge for cause, but held
that the defendant had not shown that his rights were impaired
because the defendant had not identified other jurors he would
have struck and did not ask for additional peremptory challenges.
Id. There was no allegation in Iuli that the court had done
anything improper after the jurors were passed for cause and the
peremptory challenges ended. See id. The parties in Iuli
exercised their peremptories with full knowledge of the twelve
jurors who had been passed for cause. See id.
Here, in contrast, the court struck two jurors for
cause at Respondent’s behest after the court had already passed
the jurors for cause and after the parties had exercised their
peremptories. As noted before, this meant that Petitioner did
not have the opportunity to exercise his peremptories after
comparing the relative qualifications of the twelve jurors passed
for cause, that Petitioner was not able to exercise peremptories
with respect to Juror 7 and Juror 9, and that Respondent for all
practical purposes exercised two additional peremptory
challenges. Iuli simply did not address a situation where the
court allowed additional challenges to jurors after the parties
have exercised their peremptories.
Instead, the court’s error in this case is much more
like that in Carvalho, 79 Hawai#i at 172, 880 P.2d at 224, where
that court granted an additional peremptory challenge to the
prosecution after the defendant had exercised his peremptory
challenge. Iuli did not overrule Carvalho, and in fact cited
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that decision approvingly. Iuli, 101 Hawai#i at 204, 65 P.3d at
151. Carvalho was also cited approvingly in Kauhi.15 See Kauhi,
86 Hawai#i at 198, 948 P.2d 1036 (explaining that because the
right to exercise peremptory challenges is one of the most
important secured to defendants, the denial or impairment of that
right is reversible error not requiring a showing of prejudice)
(quoting Carvalho, 70 Hawai#i at 172, 880 P.2d at 224)).
Accordingly, respectfully, the ICA was also wrong when
it said, “The Hawai#i Supreme Court [has] never itself extended
plain error to the issue of the ordering of peremptory and for
cause challenges.” Ho, 2011 WL 5518045, at *1. Iuli and Kauhi
both cited Carvalho, in which the court applied the plain error
doctrine, approvingly. Moreover, in Iuli and Kauhi there was no
need to apply the plain error doctrine because in both instances
the defendants objected and asked the court to strike the
contested jurors for cause. See Iuli, 101 Hawai#i at 205-06, 65
P.3d at 152-53; Kauhi, 86 Hawai#i at 197-200, 948 P.2d at 1038-
1041.
15
In Kauhi, the defendant challenged for cause a prospective juror
because the juror was currently employed as a deputy prosecuting attorney with
the City and County of Honolulu, the same office employing the prosecutor
trying the defendant’s case. 86 Hawai#i at 197-98, 948 P.2d at 1038-39. The
trial court denied the challenge for cause, and the defendant used his last
peremptory challenge to excuse the juror. Id. at 198, 948 P.2d at 1039.
Subsequently, the defendant requested two additional peremptory challenges and
identified the jurors against whom he would utilize those challenges. Id.The request was denied. Id. This court held that the trial court erred in
failing to excuse the juror for cause, and that because the defendant had to
use his last peremptory challenge to excuse the erroneously retained juror,
thereby foreclosing the defendant from peremptorily challenging at least one
of the two additional prospective jurors he wanted to excuse, the defendant’s
right to exercise his peremptory challenges was denied or impaired. Id. at
200, 948 P.2d at 1041.
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Because Respondent was allowed to challenge jurors
after the parties had exercised their peremptories, Respondent
had an unfair advantage in selecting the jurors who ultimately
decided the case. See id. Petitioner was therefore not able to
exercise his rights to the same extent as Respondent. See HRS §
630-30 and HRPP Rule 24(b). Petitioner was unable to exercise
his peremptories with respect to all of the twelve regular jurors
because he had already exhausted his peremptories by the time the
court, upon Respondent’s motion, substituted Juror 43a and Juror
8a with Juror 7 and Juror 9. Petitioner can therefore establish
that his statutory right to exercise peremptory challenges was
impaired.
Further, as explained, supra, Petitioner need not
establish prejudice in order to succeed. “[T]he denial or
impairment of a defendant’s right of peremptory challenge in a
criminal case is reversible error not requiring a showing of
prejudice.” Timas, 82 Hawai#i at 509, 923 P.2d at 926 (internal
citation and quotation marks omitted). Since the right to
exercise a peremptory challenge is “one of the most important of
the rights secured to an accused in a criminal case, the denial
or impairment of that right is reversible error not requiring a
showing of prejudice.” Kauhi, 86 Hawai#i at 198, 948 P.2d at
1039 (quoting Carvalho, 79 Hawai#i at 172, 880 P.2d at 224); see
also Iuli, 101 Hawai#i at 204, 65 P.3d at 151 (“[T]he denial or
impairment of [the right to exercise peremptory challenges] is
reversible error not requiring a showing of prejudice.”) (quoting
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Kauhi, 86 Hawai#i at 198, 948 P.2d at 1039 (quoting Carvalho, 79
Hawai#i at 172, 880 P.2d at 224))(ellipsis omitted).
Thus, “in this jurisdiction a defendant has a right to
exercise his peremptory challenges as the statute provides and no
court would uphold, as being nonprejudicial, the deprivation of
the statutory right to exercise peremptory challenges, even
though that right is solely dependent on statute, and not on a
constitutional right.” Carvalho, 79 Hawai#i at 174, 880 P.2d at
226 (quoting State v. Echineque, 73 Haw. 100, 107, 828 P.2d 276,
279 (1992)) (internal quotations and ellipsis omitted). As
stated in Carvalho, “the denial or impairment of a defendant’s
right of peremptory challenge in a criminal case is reversible
error not requiring a showing of prejudice.” Thus, “the
historical underpinning of peremptory challenges and substantial
authority support the adoption of this rule.” Carvalho, 79
Hawai#i at 174, 880 P.2d at 226.
XI.
Finally, the ICA would not have applied the doctrine of
plain error because the court could have granted additional
peremptory challenges had Petitioner objected.16 Ho, 2011 WL
5518045, at *1 n.3. However, the ICA’s approach would contradict
both Carvalho, 79 Hawai#i at 174, 880 P.2d at 226, and Timas, 82
Hawai#i at 509, 923 P.2d at 926, in which plain error was taken
from errors that are essentially indistinguishable from the one
16
This section corresponds to the fourth argument made by the ICA
majority, see supra p.17. As noted, supra, Respondent did not mention plain
error or the dissent.
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alleged here. If the defendants’ substantial rights were
affected in those cases, as the ICA held, Petitioner’s
substantial rights were affected in this case.
Furthermore, as discussed, supra, in Carvalho, 79
Hawai#i at 174, 880 P.2d at 226, and Timas, 82 Hawai#i at 509, 923
P.2d at 926, as in this case, the defendant did not object to the
court’s improper procedure. However, “appellate courts, in the
public interest, may on their own motion, notice errors to which
no exception has been taken if the errors are obvious, and if the
errors otherwise seriously affect the fairness, integrity or
public reputation of judicial proceedings.” Carvalho, 79
Hawai#i at 174, 880 P.2d at 226 (internal quotation marks and
citations omitted). Thus, in Carvalho, the ICA concluded that
the court’s error was “obvious, and it affected the fairness and
integrity of the jury selection process . . . [and therefore]
required reversal.” Id. Similarly, in Timas, where an alternate
juror was improperly impaneled and the defendant did not raise
the error on appeal, the ICA noticed the error and held that it
was plain. 82 Hawai#i at 509, 923 P.2d at 926. Likewise, in
Kauhi, although the contested juror did not participate in
rendering the verdict, this court nevertheless reversed the
defendant’s conviction when the circuit court erroneously failed
to strike the juror for cause. 86 Hawai#i at 200, 948 P.2d at
1041. In line with these cases, here the error was obvious and
affected the fairness and the integrity of the selection process.
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XII.
Based on the foregoing, the ICA’s December 1, 2011
judgment and the court’s April 24, 2008 judgment are vacated and
the case remanded for a new trial.
Peter Van Name Esser, /s/ Mark E. Recktenwald
for petitioner/
defendant-appellant. /s/ Simeon R. Acoba, Jr.
Keith M. Kaneshiro, /s/ James E. Duffy, Jr.
Prosecuting Attorney,
and Donn Fudo, Deputy /s/ Sabrina S. McKenna
Prosecuting Attorney,
for respondent/
plaintiff-appellee.
29