Sentencing Jury Needs to Know the Extended Terms, but not Parole.

State v. Keohokapu (HSC May 15, 2012)

Background. George Keohokapu was charged with murder in the second degree. HRS § 707-701.5. The prosecution later gave notice that Keohokapu was eligible for extended terms of imprisonment as a persistent offender. HRS §§ 706-661 and 662(1). Keohokapu, his wife Kauilani Keohokapu, and his brother, went to club "Komo Mai." Steven Wilcox and his friend Robin Gregory were there too. At some point in the night, Keohokapu got mad because Gregory was apparently staring at Kauilani. Keohokapu left the club and went to his car. Kauilani followed and an argument started. The brother came out and joined the argument. The brother grabbed Kauilani's arm as Wilcox walked out. He approached them and they started arguing. Keohokapu fought with Wilcox. A witness later testified that he saw Keohokapu with a metal object or a knife. Keohokapu collided with Wilcox and Wilcox was stabbed in the chest. Keohokapu drove away and Wilcox died from his injuries.

Trial. On the first day of jury selection, the trial court informed the prospective jurors that there had been some publicity associated with the case namely that Wilcox was depicted as a Good Samaritan. Keohokapu did not object to the trial court's statement. Voir dire lasted six days. Jurors told the court that they had been exposed to the media coverage of the case. Keohokapu moved to strike them for cause. The court denied the challenges. Nine of the twelve jurors on the panel testified that they had heard about the case on the t.v. news, newspapers, or both. Five of the nine recalled hearing that Wilcox was a Good Samaritan.

During the trial, Keohokapu argued that Wilcox was the initial aggressor and that he had brass knuckles. The jury rejected the self-defense claim and found Wilcox guilty of manslaughter. The prosecution filed notice of its intention to seek extended terms at sentencing. The sentencing phase began.

Sentencing Trial. The prosecution introduced evidence of incidents where Keohokapu was a domestic abuser and that he had attacked a man named Gregory Balga. The rest of his criminal history was also presented to the jury including crimes of violence. Kauilani also testified about the violent relationship she had with Keohokapu. During her testimony, Kauilani had difficulty recalling incidents in the past and was constantly referring to police reports. Finally, the prosecution moved to admit a statement she wrote from a 1996 police report. It was admitted over Keohokapu's objection. Balga also testified. The statement was read to the jury but the statement itself stayed out. When the prosecution rested, Keohokapu presented evidence that he himself had been abused as a child and that he had regretted his past.

The trial court instructed the jury on extended terms. The court instructed the jury that normally, a manslaughter conviction carries the maximum sentence of an indeterminate term of 20 years with the possibility of parole. However, an extended term carries life with the possibility of parole. The court instructed that an "indeterminate term" is a sentence "subject to termination at any after service of a minimum term determined by the Hawai'i Paroling Authority." The court also gave instructions as to what the HPA does in determining a minimum term. It also provided definitions for parole and cautioned not to speculate about what the HPA may or may not do. The jury found that the Keohokapu was a persistent offender and that it was necessary for the protection of the public to extend the manslaughter term to life with the possibility of parole. Keohokapu appealed. The ICA affirmed.

What to do when a Jury is Under the Influence. A defendant has the right to a jury that is "substantially free from the biasing effects of inflammatory pre-trial publicity." State v. Pauline, 100 Hawai'i 356, 366, 60 P.3d 306, 316 (2002). Once the defendant claims that external influences have infringed upon the right to a fair trial, the trial court must determine if the influences are substantially prejudicial. State v. Okumura, 78 Hawai'i 383, 394, 894 P.2d 80, 91 (1995). If it does not arise to the level of substantial prejudice, the court has "no duty to interrogate the jury." State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991). However, once the court determines that outside influences could substantially prejudice the right to a fair trial, prejudice is presumed and can be rebutted by the prosecution. Id. At that point, the court must investigate the totality of the circumstances to determine the impact of the outside influences.

Jury was Not Prejudiced--Presumptively or Actually--by the Trial Court's Publicity Statement. The HSC rejected Keohokapu's argument that the jury selection was fundamentally flawed when the court read the publicity statement about Wilcox being a Good Samaritan. The HSC noted that there are three factors that weigh in favor of presumed prejudice: (1) "a barrage of inflammatory publicity immediately prior to trial amounting to a huge . . . wave of public passion"; (2) the nature of the media accounts--factual accounts being less prejudicial than editorials or cartoons; and (3) "whether the media accounts contained inflammatory, prejudicial information that was not admissible at trial." State v. Pauline, 100 Hawai'i at 316, 60 P.3d at 366. Additionally, the appellate court examines whether the trial court took steps to shield the jury from prejudicial media exposure. Id. at 317, 60 P.3d at 367. The HSC agreed that it would have been better if the trial court did not read the publicity statement, but this did not give rise to prejudice warranting reversal. None of the three factors were met.

Nor was actual prejudice found. Actual prejudice requires the defendant to show that "jurors exhibited actual partiality or hostility that could not be laid aside." State v. Pauline, 100 Hawai'i at 315, 60 P.3d at 365. Nothing in the record shows anything like that.

Testimony--once Recollection Refreshed--need not Track Contents of the Writing. The HSC next examined evidentiary issues that arose during the sentencing phase of the trial. First, it examined Kauilani's testimony. She could not recall specific instances in which she was abused. The prosecution asked her to read a police report to refresh her recollection. She read it and testified that she remembered. She testified about specific details about an incident involving domestic violence. The HSC patently rejected Keohokapu's argument that this was improper. "When used to refresh [a] witness's present recollection, a writing is solely employed to jog the memory of the testifying witness." State v. Dibenedetto, 80 Hawai'i 138, 144, 906 P.2d 624, 630 (App. 1995). If the writing does not refresh the person's recollection, the witness cannot testify about or read the contents of the writing. State v. Espiritu, 117 Hawai'i 127, 137, 176 P.3d 885, 895 (2008). That fact that Kauilani's testimony contained details that were not part of the writing used to refresh her recollection had no part in the analysis.

Admitting the Statement from the Police Report Wasn't Error Either. The HSC also examined the admission of Kauilani's written statement in a 1996 police report based on HRE Rule 802.1(4):

(4) Past recollection recorded. A memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

The HSC held that there was no error in reading the statement into evidence. Kauilani testified that she remembered the incident from 1996 and identified the statement as her own writing even though she never signed it. Finally, she noted that she wrote it on the day after the incident. This was sufficient foundation to read the statement to the jury.

Sentencing Juries Finds the Facts, the Sentencing Court Imposes the Extended Term Sentence (if it wants to). Before a court can impose an extended term of imprisonment under HRS § 706-661, the prosecution must first prove beyond a reasonable doubt "that an extended term of imprisonment is necessary for the protection of the public and that" the defendant is one of the six enumerated kinds of offenders listed in HRS § 706-662. Juries for extended term sentences are relatively new in Hawai'i and there are currently no standard jury instructions. The HSC agreed with Keohokapu that it was improper for the circuit court to provide instructions informing the jury about parole, the HPA, and indeterminate terms of imprisonment.

According to the HSC, the jury is asked to determine two facts: (1) whether an extended term is necessary to protect the public; and (2) whether the defendant is one of the enumerated offenders. If both facts were proven beyond a reasonable doubt, the jury's job is over. The sentencing court ultimately considers whether to impose the extended term. See HRS § 706-661 ("The court may sentence a person who satisfies the criteria for any of the categories set forth in section 706-662 to an extended term").

Even Though it may be Relevant, Juries Should not Know that Parole was Possible. The HSC was aware of the jury's duty and even noted that to determine if an extended term was necessary to protect the public, it is only natural for the jury to learn what the original term is as well as the extended term. However, apprising jurors about post-conviction actions by other governmental agencies should be avoided. The HSC relied heavily on People v. Ramos, 689 P.2d 430 (Cal. 1984), which held that instructions to sentencing juries allowing them to consider the many different post-conviction actions by other governmental entities like the parole board, commutation by the governor, or even review by the trial court, were improper. Id. at 441-444. The California Supreme Court explained that it was "inconsistent with the jury's proper decision-making role" and invited it to speculate about what would happen. Id.

According to the HSC, the "jury can make an intelligent determination as to whether it is necessary to incarcerate the defendant for an extended term to protect the public if instructed that the term will involve maximums of twenty years to life." It does not need to know about parole or even if the defendant will serve the entire term--extended or not. The jury did not need to know that parole was possible.

Chief Justice Recktenwald's Concurrence and Dissent. The CJ disagreed with this approach. He wrote that simply informing the jury that the extended term would move it from 20 years imprisonment to life is inaccurate. It denies the fact that Keohokapu would be eligible for parole. This eligibility, according to the CJ, is relevant and necessary for the jury to know about in order to determine if the extended term is needed to protect the public. Chief Justice Recktenwald also took issue with this approach because in some circumstances, the extended term goes from life with parole to life without parole. This approach would make this distinction impossible to articulate to the jury. Justice Nakayama joined.

Other Stuff . . . The HSC addressed the harmlessness of confessed error by the prosecution during the sentencing phase. The HSC disagreed with the ICA and held that it was not harmless. The case was vacated for a new sentencing trial.