Anonymous jurors, a Rule 48 Reset, No Lessers, and Life Without Parole

OVERRULED IN PART 

State v. Lafoga (ICA April 27, 2022)

A note on the structure of this opinion. Judge Karen Nakasone’s ICA opinion addresses several different issues throughout these cases without a summation of the facts for each issue.

 

Background. Brandon Fetu Lafoga was indicted with attempted murder in the 2d degree, conspiracy to commit murder in the 2d degree, carrying or using a firearm in the commission of a separate felony, and other counts. Ranier Ines was indicted as an accomplice to attempted murder in the 2d degree, conspiracy to commit murder, and other counts.

 

At their trials, the complainant, Kele Stout testified. Stout testified that he worked with Ines at a custom countertop company. They were on a job in downtown Honolulu, when they got into an argument. As Stout was driving in a van, Ines pulled out a gun from his backpack and hit him in the head with it. Stout started bleeding. Ines ordered Stout to drive to Waianae. He threatened to shoot him and pointed the gun at him while he made some phone calls. Ines when through his wallet. He said, “I’m not gonna kill you. We’re just gonna beat you and let you go.” On Ines’s orders, Stout drove to a house in Sea Country. Lafoga was there and took Stout into the garage. There, Ines and Lafoga beat Stout with fists and a baseball bat, then they went inside the house. Stout heard them talking to each other and a third man. He heard Ines say, “I’m gonna go leave and pick up my girlfriend, take care of him.” Ines walks into the garage and sees Stout wiggling out of restraints. They beat him again and put him in a van. Lafoga drove away. Ines did not go with him.

 

Stout testified that at some point the van stopped and he heard Lafoga talking to another person outside the van. He heard Lafoga bragging to the person about what had happened. The van started driving again and Lafoga told him that this would be the “first person he is going to kill[.]” Lafoga drove to a quiet spot, climbed into the back of the van, and shot Stout in the face. Stout rolled over and broke his restraints. Lafoga started driving again, but when he realized Stout was still alive, he turned back and shot Stout in the torso and buttock.

 

Stout hear Lafoga calling people trying to find someone to give him a ride. He heard Lafoga say that he was going to burn the van with him in it. Then Lafoga got out of the van and left the engine running. Stout jumped into the driver’s seat and drove himself to the Waianae Coast Comprehensive Health Center. He was transferred to Queen’s Medical in town, where he was treated for four gunshot wounds.

 

Randi DeCosta testified at trial. She was Lafoga’s girlfriend at the time. She testified that Lafoga called her that day and described how he had beat up a man in the garage and was taking him “up the valley” to shoot him. Hours later he called her again. He was worried because the man and van were gone. She testified that Lafoga made arrangements to fly to Alaska. After that, he called her again and testified that he sounded “happy” and “proud” that he got away. Ricol Arakai, a family relative, also testified that Lafoga told her about a time when he pulled a man out of a vehicle, beat him, and then shot him.

 

The jury found Lafoga guilty of the charges. It also found him a “persistent offender.” The circuit court—with the Hon. Judge Paul B. K. Wong presiding—sentenced both Lafoga to life with the possibility of parole and the consecutive term of 20 years for use of a firearm in the commission of a separate offense. Ines was sentenced as an accomplice to attempted murder and was found to be a persistent offender. The circuit court sentenced him to life without parole. Both appealed.

 

The Rule 48 issue. Lafoga filed a pretrial motion to dismiss pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 48(b).

 

[T]he court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months:

(1) from the date of arrest if bail is set or from the filing of the charge, whichever is sooner, on any offense based on the same conduct or arising from the same criminal episode for which the arrest or charge was made; or

          . . .

(3) from the date of mistrial, order granting a new trial or remand, in cases where such events require a new trial . . . .

 

Id.

 

Lafoga at some point in this case pleaded guilty, withdrew the plea, and set the case for trial. From the withdrawal of his plea to the start of trial, 92 relevant days passed. That, according to Lafoga, should have been added to the time from his arrest and setting of bail to the first defense-requested continuance. See HRPP Rule 48(c) (exceptions to the 6-month period that do not count toward dismissal). The ICA disagreed.

 

Relying on cases from other jurisdictions, the ICA held that the withdrawal of the guilty plea and resetting of trial was an “order granting a new trial” pursuant to HRPP Rule 48(b)(3) thereby resetting the 180-day clock. See Commonwealth v. Jensch, 469 A.2d 632, 636 (Pa. Super. Ct. 1983) (“It is well established that the withdrawal of a guilty plea, like the grant of a new trial, begins . . . period in which the [prosecution] must bring a defendant to trial”); Kennedy v. State, 763 S.W.2d 648, 649 (Ark. 1989) (order allowing withdrawal of guilty plea analogous to order granting a “new trial.”).

 

The Circuit Court’s tinkering with jury selection and empanelment. Before trial, the circuit court was concerned about juror safety. It initially was going to withhold the names and addresses of jurors from the defendants and their lawyers. Both the prosecution and the defense objected. The circuit court then “compromised” by providing the names only to Lafoga and Ines’s lawyers. The circuit court also ordered that the jurors be referred to not by their name, but by their number. During jury selection, the circuit court informed the panel that their names and contact information had been withheld from “the public” but the lawyers knew them. It did not tell jurors and potential jurors that they were withheld only from the defendants. That procedure was challenged on appeal.

 

Circuit court’s withholding the names of jurors from the defendant (kinda sorta) met Samonte test for anonymous jury. Trial courts may require an “anonymous jury” for the protection of the jurors and their families. United States v. Harris, 763 F.3d 881, 886 (7th Cir. 2014). That means it will withhold information about the jurors like their names and contact information from the parties and their lawyers. Id. A partially-anonymous jury provides information only to the lawyers, but not their clients.

 

In general, the court should not order the empaneling of an anonymous jury without (a) concluding that there is strong reason to believe that the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his [or her] fundamental rights are protected. Within these parameters, the decision whether or not to empanel an anonymous jury is left to the [trial] court’s discretion.

 

State v. Samonte, 83 Hawai'i 507, 520, 928 P.2d 1, 14 (1996). The first prong—a “strong reason to believe that the jury needs protection”—is based on several factors:

 

Sufficient reason for empaneling an anonymous jury has been found to exist upon a showing of some combination of several factors, including: (1) the defendant’s involvement in organized crime, (2) the defendant’s participation in a group with the capacity to harm jurors, (3) the defendant’s past attempts to interfere with judicial process, (4) the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and (5) extensive publicity that could enhance the possibility the jurors’ names would become public and expose them to intimidation or harassment.

 

Id.

 

Here, the circuit court did not apply these factors. It simply commented that it “anticipated” fear or anxiety from the jury without any evidence of it. While the ICA held that this was not good enough to meet the first prong, the parties failed to object and moved onto the second prong.

 

The second prong—the steps taken to reduce prejudice to the defendant—requires a neutral explanation for the anonymity:

 

The trial court should give anonymous jurors a plausible and nonprejudicial reason for not disclosing their identities that decreases the probability that the jurors would infer that the defendant is guilty or dangerous (e.g., the trial court could instruct the jurors that the purpose for juror anonymity is to protect the juror from contacts by the news media, thereby implying that juror anonymity is not the result of threats from the criminal defendant).

 

Id. at 522, 928 P.2d at 16. The ICA held that the circuit court’s explanation that names have been withheld to the “public” was neutral and decreased any probability of prejudice. According to the ICA, the jurors could not “infer that the Circuit Court’s procedure was anything other than a policy that respected and sought to protect the jurors’ privacy from the general public and the media, that had nothing to do with the guilt or potential dangerousness of either defendant.”

 

Is the failure to object a new factor for the first prong? The ICA’s analysis here is curious. Both parties did not object or refute this procedure. That’s not among any of the five Samonte factors in the first prong to determine whether there is a “strong reason to believe that the jury needs protection.” So what would have happened if Lafoga or Ines objected? It would seem that the second prong—the steps taken by the court once there has been a legitimate finding of a need to protect the jury—would be irrelevant since it hinges on the first.

 

The violation of HRS § 612-18(c). Ines’s challenge to the empaneling took a different angle. “The names of prospective jurors to be summoned to sit as a jury, and the contents of juror qualification forms completed by those jurors, shall be made available to the litigants concerned.” HRS § 612-18(c). Without an objection below, the ICA reviewed the challenge for plain error. State v. Barnes, 145 Hawai'i 213, 18, 450 P.3d 743, 748 (2019).

 

The ICA first examined the word “litigants.” It’s not defined by statute and the court resorted “to legal or other well accepted dictionaries . . . to determine the ordinary meaning of” the word. Wells Fargo Bank, N. A. v. Omiya, 142 Hawai'i 439, 449-450, 420 P.3d 370, 380-381. A “litigant” is the “party to a lawsuit; the plaintiff or defendant in a court action, whether an individual, firm, corporation, or other entity.” Black’s Law Dictionary, 1119 (11th ed.  2019). And so the statute appears to have require the names of prospective jurors and qualification forms to be made available to Lafoga and Ines.

 

. . . but hold that thought. That’s not the end of it though. HRS Chapter 612 is governed by HRS § 612-23:

 

          Challenging compliance with selection procedures. (a) Promptly after the moving party discovered or by the exercise of diligence could have discovered the grounds therefor, and in any event before the trial jury is sworn to try the case, a party may move to stay the proceedings, and in a criminal case to quash the indictment, or for other appropriate relief, on the ground of substantial failure to comply with this chapter in selecting the grand or trial jury.

          (b) . . . If the court determines that . . . there has been a substantial failure to comply with this chapter and that the moving party has been prejudiced thereby, the court shall stay the proceedings . . ., quash an indictment, or grant other appropriate relief.

          (c) The procedures prescribed by this section are the exclusive means by which a person accused of a crime . . . may challenge a jury on the ground that the jury was not selected in conformity with this chapter.

 

In other words, a statutory violation is not enough. There must be a “substantial failure to comply” with HRS Chapter 612. State v. Villeza, 85 Hawai'i 258, 265, 942 P.2d 522, 529 (1997). The ICA noted that there was no motion here and even if there was, the violation of HRS § 612-18(c) was not “substantial” enough to prejudice the Ines. The ICA held that there was no plain error.

 

The refusal to instruct the jury on assault as lesser-included offenses for Lafoga’s attempted murder charge was correct. The circuit court rejected and refused to instruct the jury that assault in the first degree and second were lesser-included offenses to attempted murder in the second degree. “Jury instructions on lesser-included offenses must be given where there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense.” State v. Kaeo, 132 Hawai'i 451, 465, 323 P.3d 95, 109 (2014).

 

The ICA agreed with the circuit court that there was no rational basis supporting assault in the first degree and second because it was analogous to the facts in State v. Moore, 82 Hawai'i 202, 211-212, 921 P.2d 122, 131-132 (1996). In that case, the HSC upheld the refusal to instruct on lesser-included assault offenses for attempted murder when Moor fired at least six shots at point blank range at his wife, waited 30 minutes to help her, and made no attempt to render aid. Id. From those facts, the HSC held that “no reasonable juror could rationally infer that Moor contemplated a result other than” her death. Id. at 212, 921 P.2d at 132.

 

The ICA rejected Lafoga’s argument that there was a rational basis supporting the theory of a second shooter in the van. Stout’s testimony was unclear if Lafoga was the only person who shot at him. He stopped at some point to talk to someone and it was unclear if others were in the vehicle. The ICA, however, examined Lafoga’s statements through the testimony of Stout, DeCosta, and Arakai.

 

ICA: Conspiracy to commit assault is not a lesser-included offense to conspiracy to commit murder. The circuit court took a different approach with Ines. The circuit court instructed the jury about accomplice liability for attempted murder and conspiracy to commit murder as a lesser-included offense. Ines requested conspiracy to commit assault in the first, second, and third degree as included offenses below that. The request was refused.

 

An offense is included when it is “established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” HRS § 701-109(4)(a). “The general rule is that an offense is included if it is impossible to commit the greater without also committing the lesser.” State v. Manuel, 148 Hawai'i 434, 440, 477 P.3d 874, 880 (2020). The ICA noted that as an accomplice to attempted murder, there is no requirement that the prosecution prove bodily injury—which is essential to prove assault. The ICA also noted that a conspiracy to commit murder does not require proof of bodily injury either. Thus, the ICA held that it was possible to commit the greater offenses without committing the allegedly lesser offenses of assault.

 

Aren’t there other kinds of lesser? The ICA held that assault is not a lesser pursuant to the general rule and HRS § 701-109(4)(a). But there’s more than one way to have a lesser included offense. A lesser-included offense can also arise when it “differs from the offense charged only in the respect that a lesser serious injury or risk of injury to the same person . . . or a different state of mind indicating lesser degree of culpability suffices to establish its commission.” HRS § 701-109(4)(c). The ICA did not address if a conspiracy assault by beating up Stout, which is exactly what Ines said they would do to Stout as they drove from Honolulu to Waianae would be included under this subsection.

 

“Murder” also means attempted murder when it comes to extended sentencing. Extended sentencing is available when the criteria in HRS § 706-662 apply. HRS § 706-661. When it comes to “murder in the second degree” the sentence is extended to “life without the possibility of parole[.]” HRS § 706-661(1). For class A felonies, the extended sentence is from 20 years to “life with the possibility of parole.” HRS § 706-661(2). Because the statute does not expressly include attempted murder, the defendants argued that the statute did not apply. “Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another.” HRS § 1-16.

 

The ICA examined the Hawai'i Penal Code to address the kinds of offenses. While murder and attempted murder are felonies, they are not the same thing as a class A felony. HRS § 701-107. Moreover, an attempted offense is “an offense of the same class and grade as the most serious offense which is attempted.” HRS § 705-502. See also HRS § 706-610(1) (“Apart from first and second degree murder and attempted first and second degree murder, felonies defined by this Code are classified . . . into three classes”).

 

A “rational, sensible and practicable interpretation of a statute is preferred to one which is unreasonable or impracticable, because the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality.” In re Doe, 90 Hawai'i 246, 251, 978 P.2d 684, 689 (1999). The ICA rejected the defendants’ reading of the extended sentencing statute. To hold that it does not apply to attempted murder while an extended sentence applied class A felonies (or other felony for that matter), is illogical and absurd. The statute applied.

 

No error in instructing the jury on the extended terms either. The ICA upheld the circuit court’s extended sentencing instruction. The circuit court told the jury that extending the sentence would go from a “possible life-term sentence” to a “definite life-term of imprisonment.” There was no reference to parole possibilities.

 

For extended sentencing to occur, the jury “must find that a longer term than the statutory maximum is necessary for the protection of the public.” State v. Keohokapu, 127 Hawai'i 91, 111, 276 P.3d 660, 680 (2012). The HSC in Keohokapu cautioned that juries “should not be instructed about the procedures of the Hawai'i Paroling Authority, or that the sentence includes the possibility of parole.” Id. The sentence in that case revolved around instructions extending manslaughter from 20 years to life with the possibility of parole. Id. at 110, 276 P.3d at 679. When it comes to extending a sentence from life with the possibility of parole to life without, the HSC provided this guidance:

 

This case does not involve a choice between life with the possibility of parole and life without the possibility of parole, such as in the case of a motion for extended term for the offense of murder in the second degree . . . . The court may impose an extended term of life without parole under HRS § 706-661(1) if the jury finds pursuant to HRS § 706-662 that an extended term is necessary for the protection of the public, as well as one or more of the factors described in HRS § 706-662. A like instruction in such a case would be to instruct the jury to consider whether the defendant’s sentence should be extended from possible life imprisonment to a definite (or fixed) sentence of life imprisonment.

 

Id. at 112 n. 33, 276 P.3d at 681 n. 33. The ICA held that the circuit court’s instruction is consistent with the HSC’s guidance in footnote 33 and did not err in giving the instruction.