Juror Misconduct Should have been a Mistrial--not Switching the Juror

State v. Bailey (HSC March 1, 2012)

Background. Peter Bailey was indicted with four counts of sexual assault in the first degree. HRS § 707-730(1)(b). The circuit court granted Bailey's motion in limine to exclude any evidence of prior criminal convictions at trial. Jury selection lasted several days. After the jury had been selected, however, Bailey moved for a mistrial on the grounds that the courtroom doors had been locked. The circuit court denied the motion and proceeded to trial.

The Trial. The minor complainant testified at trial. She testified that she knew Bailey through the singing activities at their church. One night, Bailey called her and asked to meet him at the church to practice singing. She got permission from her mother and Bailey picked her up and took her to the church. She testified that Bailey approached her from behind and ordered to engage in various sexual acts. She took off her clothes and did so. Her uncle walked in on them and she put on her clothes and left. She heard Bailey tell her uncle that he had made a mistake. The minor's brother testified that he went to the church that night and saw Bailey and his sister undressed in the copy room. Bailey came out with clothes on, gave him around $18, and told him that he would drop off his sister in about 20 minutes. The brother left the church and ran to get help. The uncle testified too. He testified that the brother told him about what was happening. He ran to the church and confronted Bailey while his girlfriend called 911. At the settling of jury instructions, the prosecution asked for included offenses of attempted sexual assault in the first degree. Bailey objected that that would be inappropriate because there no evidence of an attempt. The circuit court overruled the objection and instructed the jury that if Bailey was not found guilty of sexual assault in the first degree or if the jury could not reach a unanimous verdict, it "must consider" whether Bailey attempted to commit sexual assault in the first degree.

The Deliberations and Special Hearing. After closing argument and during deliberation, the circuit court reminded the alternate jurors not to discuss the case with anyone until they have been dismissed. During deliberations, the jurors requested to speak with the circuit court judge "regarding information that a juror has that has affected our deliberations." The circuit court requested that the jury elaborate. The jury, in a separate communication, informed the circuit court that a juror told them that he knew Bailey had a prior charge which compromised them. They wanted to know how to proceed. Deliberations were suspended and each juror was individually questioned.

The foreperson explained that juror No. 9 told them that Bailey had been charged with attempted murder or something like that. They stopped right away after that. The foreperson added that this information would not affect his ability to be fair and impartial. Juror No. 9 was questioned. He acknowledged that what he did was wrong and that he just blurted it out, and that he did not intend to "cloud anybody's mind." Other jurors testified that they remember what Juror No. 9 said, but tried to block it out or disregard it.

Bailey moved for a mistrial. The prosecution conceded that Juror No. 9's statements were prejudicial and that he should be dismissed. But the prosecution objected to an outright mistrial. The motion was denied, Juror No. 9 was replaced by an alternate, a new foreperson was selected, and deliberations began again. The new jury deliberated for three days. The jury found Bailey guilty of attempted sexual assault in the first degree. Bailey filed a motion for new trial reasserting the same grounds. The motion was denied. Bailey was sentenced to 20 years of imprisonment for each count as well as consecutively for an unrelated case. Bailey appealed, and the ICA affirmed. Bailey petitioned for certiorari; the prosecution did not respond.

The Shifting Burden in Proving (and Disproving) Constitution-Violating Juror Misconduct. "The sixth amendment to the United States Constitution and article I, section 14 of the Hawai'i Constitution guarantee the criminally accused a fair trial by an impartial jury. If any juror was not impartial, a new trial must be granted." State v. Kim, 103 Hawai'i 285, 290-91, 81 P.3d 1200, 1205-06 (2003). But not all juror misconduct warrants a new trial; no trial will be granted "if it can be shown that the jury could not have been influenced by the alleged misconduct." Id.

When a defendant claims juror misconduct deprived him or her of the right to a fair trial, the circuit court must first determine if "the nature of the alleged deprivation rises to the level of being substantially prejudiced." State v. Furutani, 76 Hawai'i 172, 180-81, 873 P.2d 51, 59-60 (1994). If it does arise to that level, "a rebuttable presumption of prejudice is raised. The trial judge is then duty bound to further investigate the totality of the circumstances surrounding the alleged deprivation to determine its impact on jury impartiality." Id. To overcome the presumption, the deprivation must be harmless beyond a reasonable doubt. Id. The defendant has to provide prima facie evidence that the deprivation "could substantially prejudice his or her right to a fair trial by an impartial jury," but once the presumption is raised, the burden shifts to the prosecution to prove the harmlessness of the deprivation. Id.

The Juror's Statements about Bailey's Suspected Criminal History Violated Bailey's Right to a Fair Trial. The HSC held that Bailey met his burden of showing prima facie evidence of a deprivation that could substantially prejudice his right to a fair trial by an impartial jury. It was enough to show that there was an improper discussion about his prior record. Thus, the circuit court did not err in investigating further. However, the HSC held that the circuit court erred in finding the discussion harmless beyond a reasonable doubt. This analysis required "an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Tuua, 125 Hawai'i 10, 13, 250 P.3d 273, 276 (2011). The court must also consider the "totality of the circumstances surrounding the alleged deprivation to determine its impact on jury impartiality." Furutani, 76 Hawai'i at 181, 873 P.2d at 60.

The HSC held that Juror No. 9's statement that she did not believe Bailey's statement to the police in this case because of his criminal record was highly inflammatory and prejudicial and it was likely to impact the jurors. Moreover, mentioning that Bailey might have been convicted of or charged with murder has been considered "so prejudicial as to deprive the defendant of his constitutional right to a fair trial." State v. Pokini, 57 Haw. 17, 21, 548 P.2d 1397, 1399-1400 (1976); State v. Hamala, 72 Haw. 289, 291, 834 P.2d 275, 276 (1992). This is also the kind of prejudicial effect that could not be cured by a cautionary instruction. State v. Loa, 83 Hawai'i 335, 354, 926 P.2d 1258, 1277 (1996). In this case, the HSC held that although there might have been sufficient evidence to convict Bailey, the prejudicial effect of Juror No. 9's statements were so prejudicial that it deprived him of the right to a fair trial. The circuit court abused its discretion and the HSC ordered a new trial.

Lesser-Included Offenses of Attempt were Properly Given. The trial court "must instruct juries as to any included offenses when there is a rational basis on the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense[.]" State v. Haanio, 94 Hawai'i 405, 413, 16 P.3d 246, 254 (2001). Here, the HSC held that a "rational juror" could conclude that Bailey intended to commit sexual penetration, but failed in doing so. The HSC reasoned that in State v. Behrendt, 124 Hawai'i 90, 237 P.3d 1156 (2010), it held that when there was evidence of both sexual penetration and sexual contact--the kind of conduct needed to prove sexual assault in the 3d degree--there was a rational basis for including that as a lesser-included offense. Id. at 110, 237 P.3d at 1176. Apparently, the same logic applied to attempted sexual assault. So even if there was no sexual contact, but rather a thwarted effort to penetrate, that would be enough to instruct on attempted sexual assault in the first degree.

There was Substantial Evidence of Attempted Sexual Assault 1st. When it comes to evaluating the sufficiency of evidence, "[t]he test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact." State v. Kalaola, 124 Hawai'i 43, 49, 237 P.3d 1109, 1115 (2010). "'Substantial evidence' as to every material element of the offense charged is credible evidence which is of sufficient quantity and probative value to enable a person of reasonable caution to support a conclusion." Id. The evidence must be viewed in the light most favorable to the prosecution. Id.

The HSC held that there was substantial evidence supporting the verdict. A person attempts to commit a crime when the person intentionally "engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in the course of conduct intended to culminate in the person's commission of the crime." HRS § 705-500(1)(b). A person commits sex assault in the first degree when the person "knowingly engages in sexual penetration with another person who is less than fourteen years old." HRS § 707-730(1)(b). Thus, the HSC formulated that to find Bailey guilty of attempted sex assault in the first degree the prosecution must prove "(1) Bailey intentionally engaged in conduct; (2) under the circumstances as Bailey believed them to be, the conduct constituted a substantial step in a course of conduct; and (3) Bailey intended the course of conduct to culminate in sexual penetration with" the minor. According to the HSC, there was sufficient evidence to support the conviction of attempted sex assault in the first degree.


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