76 Hawai'i 172, State v. Furutani

• Citation: 873 P.2d 51,76 Hawaii 172
• Decision Date: 27 April 1994
• Docket Number: No. 15557,15557
• Parties: 76 Hawai'i 172 STATE of Hawai'i, Plaintiff-Appellant, v. Henry H. FURUTANI, Defendant-Appellee, and Rachel R. Furutani, Defendant.
• Court: Supreme Court of Hawai'i

Page 51

873 P.2d 51

76 Hawai'i 172

STATE of Hawai'i, Plaintiff-Appellant, v. Henry H. FURUTANI, Defendant-Appellee, and Rachel R. Furutani, Defendant.

No. 15557.

Supreme Court of Hawai'i.

April 27, 1994.

Syllabus by the Court

1. As a general matter, the granting or denial of a motion for new trial is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. The same principle is applied in the context of a motion for new trial premised on juror misconduct.

2. The trial court abuses its discretion when it clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant.

3. A fair trial by an impartial jury is guaranteed to the criminally accused by both the sixth amendment to the United States Constitution and article I, § 14 of the Hawai'i Constitution, as well as by principles of due process under both the state and federal constitutions.

4. Because the right to an impartial jury in a criminal trial is so fundamental to the entire judicial system, a criminal defendant is entitled to twelve impartial jurors. Thus, the trial court must grant a motion for new trial if any member (or members) of the jury was not impartial; failure to do so necessarily constitutes an abuse of discretion.

5. The trial judge, at a hearing on a motion for new trial, acts as the trier of fact.

6. A trial court's findings of fact are subject to the clearly erroneous standard of review. A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed.

7. Where there is substantial evidence, which is credible evidence of sufficient quantity and probative value to justify a reasonable person in reaching conclusions that support the findings of fact, the findings of fact cannot be set aside. Moreover, an appellate court will not pass upon issues dependent upon credibility of witnesses and the weight of the evidence; this is the province of the trial judge.

8. A conclusion of law is not binding upon the appellate court and is freely reviewable for its correctness. A conclusion of law is ordinarily reviewed under the right/wrong standard. Thus, a conclusion of law that is supported by the trial court's findings of fact and that reflects an application of the correct rule of law will not be overturned. However, a conclusion of law that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the trial court's conclusions are dependent upon the facts and circumstances of each individual case.

9. Not all juror misconduct necessarily dictates the granting of a new trial. A new trial will not be granted if it can be shown that the jury could not have been influenced by the alleged misconduct. Rule 52(a) of the Hawai'i Rules of Penal Procedure directs that any error will be harmless and disregarded if it does not affect the substantial rights of the complaining party.

10. When a defendant in a criminal case claims a deprivation of the right to a fair trial by an impartial jury, the trial court must first determine whether the nature of the alleged deprivation rises to the level of being substantially prejudicial. If it does not, the trial court is under no duty to interrogate the jury. And whether it does rise to the level of substantial prejudice is ordinarily a question committed to the trial court's discretion.

11. Where the trial court determines that an alleged deprivation is of a nature that could substantially prejudice the defendant's right to a fair trial, a rebuttable presumption of prejudice is raised. The trial judge is then duty bound to investigate the totality of circumstances surrounding the alleged deprivation to determine its impact on jury impartiality. The standard to be applied in overcoming the presumption is that the alleged deprivation must be proved harmless beyond a reasonable doubt.

12. The defendant bears the initial burden of making a prima facie showing of a deprivation that could substantially prejudice his or her right to a fair trial by an impartial jury. But once a rebuttable presumption of prejudice is raised, the burden of proving harmlessness falls squarely on the prosecution.

13. In general, proof that a juror was biased against the defendant or lied on voir dire to the defendant's prejudice entitles the defendant to a new trial. This is because in order to exercise the right to a fair and impartial jury in a meaningful way, a defendant interrogates prospective jury members in order to reach his or her own conclusions as to who should sit on that jury. It is the duty of each prospective juror to answer the questions propounded to him or her fully, fairly, and truthfully in order that the juror's qualifications can be assessed and that the challenges, peremptory or for cause, can be utilized intelligently.

14. Every failure of a potential juror to respond to a question during voir dire does not entitle a defendant to a new trial. The defendant must meet the threshold burden of a prima facie showing that the failure rises to the level of being substantially prejudicial.

15. Under some circumstances a juror's nondisclosure of information during jury selection may be grounds for a new trial. Where, for example, a juror deliberately misrepresents important biographical information relevant to a challenge for cause or a peremptory challenge or knowingly conceals a bias or hostility towards the defendant, a new trial might be necessary. In such instances the juror's deliberate misrepresentation or knowing concealment is itself evidence that the juror was likely incapable of rendering a fair and impartial verdict in the matter.

16. Proof of a juror's inadvertent nondisclosure of information of only peripheral significance fails to meet the defendant's prima facie burden of demonstrating presumptive prejudice.

17. Insofar as a juror's knowing concealment of a bias or hostility towards the defendant can itself be evidence that the juror was likely incapable of rendering a fair and impartial verdict, the converse can also be true; direct evidence of incapability of rendering a fair and impartial verdict may legitimately give rise to an inference of prior knowing concealment.

18. A bare allusion in the jury room to a defendant's failure to testify when immediately suppressed by admonitions from fellow jurors that such comment is improper will not of itself cause the judgment of conviction to be set aside. Accordingly, a mere casual reference to such failure, standing alone, is not substantially prejudicial to the defendant. To constitute reversible error, such reference must amount to a discussion by the jurors or be used as a circumstance against the accused.

19. The difficulty in showing prejudice arising from juror misconduct during deliberations is that, under Rule 606(b) of the Hawai'i Rules of Evidence, the appellate court cannot consider jurors' testimony as to the effect of improper statements upon them. The appellate court can only consider whether such statements were made and whether, given the statements, the appellate court can say that the defendant had a trial before an impartial jury.

Given the difficulty in making a showing of prejudice under these constraints, when a criminal defendant makes a prima facie showing that improper juror comments during deliberations have been used as a circumstance against him or her, there is a presumption of prejudice and the verdict will be set aside unless the prosecution makes a showing beyond a reasonable doubt that the jurors' comments could not have affected the verdict.

Edwin L. Baker and Lawrence A. Goya, Deputy Attys. Gen., on the briefs, Honolulu, for plaintiff-appellant State of Hawai'i.

William H. Feldhacker, on the briefs, Kalaheo, Kaua'i, for defendant-appellee Henry H. Furutani.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

LEVINSON, Justice.

The plaintiff-appellant State of Hawai'i (hereafter State or prosecution) appeals the August 7, 1991 findings of fact (FOFs), conclusions of law (COLs), and order of the Fifth Circuit Court (circuit court) granting the defendant-appellee Henry H. Furutani's motion for new trial pursuant to Rule 33 of the Hawai'i Rules of Penal Procedure (HRPP). ¹

The State urges that the circuit court committed the following reversible errors in granting Furutani's motion for new trial: (1) finding that defense counsel had obtained an express affirmative commitment from the jurors--by way of a collective "response" to an inquiry posed during voir dire--that they would not hold Furutani's failure to testify or otherwise present evidence in his own behalf against him; (2) finding that, despite the opportunity afforded at voir dire to reveal bias or prejudice against a defendant who failed to testify or present evidence of innocence, there was an appearance that one or more jurors "may have harbored such a bias and prejudice ... and indicated the contrary"; (3) finding that one or more jurors committed misconduct during jury deliberations by mentioning and discussing Furutani's failure to testify and present evidence of his innocence in spite of the circuit court's instruction that they were not to do so; (4) finding that Furutani was prejudiced by the misconduct; (5) finding that "it would be speculation" for the circuit court to find that the prejudice had been cured by "reminders" of other jurors during deliberations that it was improper to discuss or consider Furutani's failure; and (6) concluding that "the possible misconduct at voir dire and the misconduct during deliberations deprived [Furutani] of a trial by twelve fair and impartial jurors."

Although we hold that those portions of the circuit court's FOFs finding that the jurors "responded" during voir dire that they would not hold...