Anonymous jurors was harmless error, but standardized instructions on extended term sentencing was erroneous

 State v. Lafoga (HSC March 15, 2023)

Background. Brandon Lafoga and Ranier Ines were indicted. Lafoga was charged with attempted murder in the second degree, conspiracy to commit murder in the second degree, carrying or use of a firearm while in the commission of a separate felony, kidnapping, and prohibited ownership of a firearm and ammunition. Ines was charged as an accomplice to attempted murder in the second degree, conspiracy to commit murder, and robbery in the first degree.

 

The circuit court—with the Hon. Judge Paul Wong presiding—ruled that the jury would be “innominate.” That is, everyone would refer to the prospective jurors by number, and not by name. the parties would conceal the jurors’ identifying information like their name, phone number, and address. The court alone had that information. Both the prosecution and defense counsel objected. The judge explained that in the past he encountered anxious jurors who would be too afraid to serve. The court compromised by allowing counsel for the parties to know the names of jurors, but not their addresses or phone numbers. The parties were also prohibited from saying the jurors’ names on the record. No further objections were made.

 

After a trial—and the facts in that trial can be found here—the jury found Lafoga guilty of attempted murder, use of a firearm in a separate kidnapping, kidnapping, and being a felon in possession of a firearm. They also found that the kidnaping merged with attempted murder. The kidnapping charge was dismissed. Ines was found guilty of accomplice to attempted murder, kidnapping, and robbery in the first degree. The kidnapping and robbery counts also merged with the accomplice to attempted murder count and were dismissed.

 

Jurors remained for the extended hearing portion of trial. The jury had to determine if extending their sentences from life with the possibility of parole to life without parole (LWOP) was “necessary for the protection of the public.” HRS §§ 706-662 and 706-664. The court’s instructions informed the jury that if extended, their sentences would go from “a possible life term of imprisonment to a definite life term of imprisonment.” There was no reference to parole. Both defendants objected on the grounds that “definite” was confusing and urged the court to provide instructions on the parole process. Their instructions were refused. The jury found the facts necessary to extend the sentence. The circuit court extended their sentences to LWOP. Lafoga received consecutive LWOP sentences making it the harshest in Hawai'i history. Both defendants appealed. The ICA affirmed in a published opinion. They petitioned for a writ of certiorari. Before this opinion was issued, Lafoga died.

 

Confidential jurors (i.e., withholding names from the public and the defendants) are constitutional. The HSC began by pointing out that this is not an anonymous jury in which the defense and the prosecution do not know any of the prospective jurors’ names. See United States v. Harris, 763 F.3d 881, 885-886 (7th Cir. 2014); United States v. Ross, 33 F.3d 1507, 1521 n. 27 (11th Cir. 1994). Nor was it a “partially anonymous” jury in which some of the information is withheld. State v. Samonte, 83 Hawai'i 507, 928 P.2d 1 (1996). The HSC described this as a “confidential jury” in which information is kept from the public.

 

Confidential jurors address the public’s right to access trial under the First Amendment, not the parties’ right to juror information. See Oahu Publications Inc. v. Ahn, 133 Hawai'i 482, 495-496, 331 P.3d 460, 473-474 (2014). The defendants did not raise this as an access-to-courts challenge either. Their focus was on keeping the information from them and they are not members of the public. The HSC found there was no prejudice to the defendants because counsel were free to use “information-gathering techniques, like online and social media research, that might discover helpful information to challenge a juror for cause, exercise a peremptory challenge, or tailor an argument.”

 

Is counsel ineffective for not spying on jurors? The HSC noted the practice of searching for potential jurors online ahead of trial is so common now that it is encouraged:

 

With the potential jurors’ names in hand, handy info is keystrokes away. See id. (citing Thaddeous Hoffmeister, Investigating Jurors in the Digital Age: One Click at a Time, 60 U. Kan. L. Rev. 611, 612 (2012) for observation that “[t]he speed and easy by which information about jurors is now discovered online has led attorneys to increasingly investigate and research jurors. In fact, the practice has become fairly commonplace, with courts, practitioners, and state bar associations all approving and encouraging its use.”).

 

The HSC never addressed this point, but the question may eventually arise if counsel’s failure to do that constitutes ineffective assistance of counsel.

 

The circuit court’s use of numbers instead of names was not supported by the record . . . The HSC next examined the use of numbers instead of names. It described this as “drastic” and can undermine the presumption of innocence. It “raises the specter that the defendant is a dangerous preson from whom the jurors must be protected, thereby implicating the defendant’s constitutional right to a presumption of innocence.” State v. Samonte, 83 Hawai'i at 519, 928 P.2d at 12-13. Thus, the HSC cautioned that it should be used sparingly and must be based on evidence of a “strong reason” the jury needs the protection and then make clear findings supporting the conclusion. Id. at 520, 928 P.2d at 14.

 

The trial court here explained to the jurors that using numbers instead of names was not to protect them from the defendants, but to shield them from the media that was covering the case. This reason was, according to the HSC, “naivete” and jurors “may not buy it.” Moreover, the circuit court made this decision based on a “hunch that some jurors might say they are ‘afraid to serve[.]’” This was insufficient evidence to depart from the normal procedure of using names.

 

. . . notwithstanding HRS § 612-18(c) . . . Ines argued to the ICA that this procedure also violated HRS § 612-18(c), which provides that names of jurors and their qualification forms “shall be made available to the litigants concerned.” The “shall” here, however, is director, not mandatory. State v. Samonte, 83 Hawai'i at 523, 928 P.2d at 17.

 

. . . and didn’t warrant a new trial. Nevertheless, the HSC affirmed the conviction. The error was harmless beyond a reasonable doubt. See State v. Mundon, 121 Hawai'i 339, 368, 219 P.3d 1126, 1155 (2009). The defendants could not show how this method of selecting the jury prejudiced them. The lawyers had a chance to gather information, lawyers engaged with prospective jurors and learned about their backgrounds and attitudes, jurors were rejected, and the defendants sat with their lawyers. The trial was constitutionally sound.

 

The extended sentencing phase, however, needs to be vacated. The HSC examined the jury instructions during the extended sentencing phase. Upon conviction, a defendant is subject to an extended term of imprisonment if the jury finds beyond a reasonable doubt that the extended term is “necessary for the protection of the public” and the defendant meets certain statutory criteria such as being a “persistent offender.” HRS § 706-662. The defendants here were charged as “persistent offenders” and the challenge focuses on the jury’s determination that the extended term is “necessary for the protection of the public.”

 

Jurors need to know the extended term is life without parole, not a “definite life term of imprisonment.” The circuit court’s instructions tracked the HAWJIC standardized instructions for life sentences. The question for the jury was whether it was necessary for the protection of the public to extend the sentence “from a possible life term of imprisonment to a definite life term of imprisonment.”

 

In State v. Keohokapu, 127 Hawai'i 91, 276 P.3d 660 (2012), the HSC examined the instruction that asked jurors to determine if it was necessary to extend a class A felony from twenty years to life with the possibility of parole. Id. at 127 Hawai'i at 100 n. 16, 276 P.3d at 669 n. 16. The HSC held that the jury did not need to be instructed about parole procedures. Id. at 116, 276 P.3d at 685. The majority in Keohakapu recommended that the instruction for second-degree murder ask juror 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 HSC now “clarified” that the jurors need to know the difference between the ordinary sentence of life with the possibility of parole and LWOP. First, the statute is clear in its terms. HRS § 706-661. The jury must hear the word “parole.” Here’s how the HSC put it:

 

No evidence or jury instructions describing parole matters are needed for the jury to consider the difference between life with and life without parole. Keohokapu’s holding is satisfied in this respect. “Parole” is all the jury needs to hear. The jury inquiry depends on the word “parole” but does not depend on the nuances of parole.

          A jury navigates complex words and concepts. The collective wisdom of twelve citizens is a defining virtue of America’s jury trial system. We believe jurors will use their common understanding and knowledge to grasp what “parole” means for purposes of extended term sentencing. That is, “life with the possibility of parole” means the defendant may someday get out of prison. And “life without the possibility of parole” means the defendant will never get out of prison. So there is no reason to define or explain “parole.”

 

The HSC held that the instructions, though following the standard pattern instructions, were erroneous and vacated the case for a new sentencing trial.

Justice Wilson’s Concurrence and Dissent. Justice Wilson took issue with the majority’s analysis on the anonymous jury procedure. For him, the way it went down raised a number of structural errors. Withholding the names of jurors from the defendants deprived them of their constitutional right to be presumed not guilty—a significant due process violation of Article I, Section 14 of the Hawai'i Constitution. Justice Wilson wrote that it “unduly restrict[ed] voir dire, which deprived the defendants of effective assistance of counsel.” The circuit court’s belief that jurors would be too scared to serve also deprived the defendants of a fair and impartial tribunal. He wrote that the judge “assumed the role of the prosecutor” and presumed guilt. State v. Silva, 78 Hawai'i 115, 120, 890 P.2d 702, 707 (App. 1995), overruled on other grounds in Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995).

 

In perhaps one of his last dissenting opinions as an associate justice, he worries about the future:

 

There is no dispute that the circuit court erred in empaneling a jury whose identity was disguised behind a number. The Majority’s holding portends a future where it is deemed harmless for judges to act upon no record to deny defendants the fundamental right to a fair trial judged by a known jury. I depart from such a profound weakening of the right to a fair trial. Respectfully, withholding the names of the twelve jurors from the defendants without any basis violated Lafoga’s and Ines’ constitutional rights to the presumption of innocence, right to counsel, right to an impartial jury, and right to an impartial judge.

 

 

He agreed with the majority’s analysis on the extended term instructions and the remand for a new extended term sentencing hearing and resentencing.