77 Hawai'i 235, State v. Joseph

• Citation: 883 P.2d 657
• Decision Date: 20 October 1994
• Docket Number: No. 15829,15829
• Court: Court of Appeals of Hawai'i
• Parties: 77 Hawai'i 235 STATE of Hawai'i, Plaintiff-Appellee, v. Charles JOSEPH, Defendant-Appellant.

Page 657

883 P.2d 657

77 Hawai'i 235

STATE of Hawai'i, Plaintiff-Appellee, v. Charles JOSEPH, Defendant-Appellant.

No. 15829.

Intermediate Court of Appeals of Hawai'i.

Oct. 20, 1994.

[77 Hawai'i 236] Richard D. Gronna (Winston Mirikitani with him on the brief), Honolulu, for defendant-appellant.

James M. Anderson, Deputy Prosecuting Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and WATANABE, JJ.

HEEN, Judge.

On November 29, 1991, Defendant-Appellant Charles Joseph (Defendant) was convicted on the basis of a prior jury verdict and sentenced for the offenses of Promoting a Dangerous Drug in the Third Degree, Hawai'i Revised Statutes (HRS) § 712-1243 (1985); Unlawful Use of Drug Paraphernalia, HRS § 329-43.5(a) (Supp.1992); and Promoting a Detrimental Drug in the Third Degree, HRS § 712-1249 (1985). Defendant timely appealed, and we affirm.

I.

At the trial that began on October 17, 1991, the State introduced evidence the police had recovered when they executed a search warrant for a room at 85-1230 Kumaipo Street, Wai'anae, allegedly occupied by Defendant and his girl friend. The evidence included drug paraphernalia found within the room, including bong pipes, a "Pelstar" scale, "zip lock" bags, straws whose ends were heat sealed, a "two gram" scale, a marijuana pipe, a butane lighter, and a water pipe. Police testimony indicated that all of these items are commonly used in the ingestion or distribution of drugs.

One police officer described how the straws, already sealed at both ends, would be cut in half and weighed on the two gram scale. The half straw would then be filled with drugs and the cut end heated and sealed by crimping it with a hemostat.

The State also introduced the following evidence recovered from the bottom drawer of a dresser in the room: three wallets, methamphetamine, marijuana, a bong, two pairs of scissors, two cigarette lighters, and a cut straw. One of the wallets (the wallet) held, among other things, Defendant's driver's license.

Finally, the State introduced a four-channel "scanner" ¹ and a photograph of a sign on the floor next to the dresser which stated: "Keep Out of this Room Beware of Dogs Property ... [Defendant's girl friend] and Charlie." All the evidence was sent into the jury room for its examination during deliberations.

The jury began deliberating in the afternoon of October 24, 1991. On October 25, 1991, at approximately 9:53 a.m., the jury asked the court in a written message: "Can we use a straw found in Charles' wallet as evidence even if it wasn't brought up in court?" The jury continued deliberating.

At approximately 11:03 a.m. on October 25, the court met with both counsel to consider the jury's inquiry. The court examined the wallet and found several items that had not been identified during the trial. ² Within the wallet's coin purse the court found "a straw similar to the kind of straw with one end sealed, one end opened, that was produced during the court session[.]" The court also discovered a list of numbers on a slip of laminated paper, which turned out to be a list of police radio frequencies (the list) that one of the police officers had testified was in the wallet. ³ , ⁴ Defense counsel moved for a mistrial on the ground of prosecutorial misconduct, claiming that the prosecutor was somehow responsible for the straw going into the jury room without being introduced as evidence. During the conference, the court bailiff reported that the jury had reached a verdict on all of the counts (original verdicts) and signed the appropriate verdict forms. ⁵ The court never viewed the verdicts. Instead the court denied the motion for a mistrial and at 11:22 a.m. responded to the jury in writing as follows: "No, you cannot use the straw found in Charles' wallet as evidence. Please deliberate and return a verdict with that in mind. Attached are new blank forms." The original verdict forms, which had already been signed by the foreperson, were placed in the case file; however, they were not received in open court and were not stamped as "filed."

We cannot tell from the record whether the jury resumed deliberations immediately or after a lunch break. The jury reached new verdicts (final verdicts), and at 1:38 p.m., the court convened to receive them. The court asked the foreperson if the jury "[took] into account in their deliberations the court's answer to [the jury's] communication number one?" The foreperson responded in the affirmative. The court polled the jury and, after the individual jurors indicated their agreement with the verdicts, ordered the verdicts filed.

On November 1, 1991, Defendant filed a motion for judgment of acquittal or new trial, which was denied after a hearing. After the judgment and sentence of the court, Defendant appealed.

II.

The law is clear that a defendant is entitled to trial by a fair and impartial jury free from outside influences. State v. Furutani, 76 Hawai'i 172, 873 P.2d 51 (Sup.1994). A jury's exposure to an outside influence that could substantially prejudice the defendant's right to a fair and impartial jury creates a rebuttable presumption of prejudice. The question of whether the outside influence could substantially prejudice the defendant's right to a fair trial is ordinarily a question for the trial judge. If the trial judge answers no, then the trial judge need take no further action. However, if the trial judge finds that the outside influence could substantially prejudice the defendant's right to a fair trial, the trial judge is then required to further investigate the totality of the circumstances surrounding the outside influence to determine its impact on the jury's impartiality. The totality of circumstances should include separate examination of the individual jurors to determine any influence by the extraneous matters. To overcome the presumption of prejudice created by such exposure, the outside influence must be proven harmless beyond a reasonable doubt. Id.

III.

The issues raised by the appeal are: (1) Was the straw in evidence when it was discovered by the jury? ⁶ (2) Did the court commit reversible error in not following the Williamson procedure before refusing to accept the original verdicts? and (3) Did the court commit reversible error when it failed to follow Williamson with respect to the final verdicts? We find no reversible error.

IV.

The law requires that items exposed to the jury must have been properly received in evidence in open court. State v. Keliiholokai, 58 Haw. 356, 569 P.2d 891 (1977). In our view, the straw was not properly received in evidence.

We note, first, that it is the responsibility of counsel for both sides in a trial to examine the items to be presented to the jury for their consideration to ensure that the jury is not exposed to matters not admitted into evidence. ⁷ State v. Estrada, 69 Haw. 204, 221, 738 P.2d 812, 824 (1987). In a criminal case, defense counsel may have a heavier burden to guard against such exposure, since failure to object to the inclusion of non-evidentiary material may constitute a waiver, see Government of the Virgin Islands v. Joseph, 685 F.2d 857 (3d Cir.1982); United States v. Strassman, 241 F.2d 784, 786 (2d Cir.1957); People v. Bieber, 835 P.2d 542 (Colo.App.1992). ⁸ Under the circumstances of this case, we do not deem Defendant's failure to object as a waiver, since it is rather clear that defense counsel did not know that the straw was in the wallet.

Simple logic dictates that the party wishing to introduce an item in evidence must present proper proof of its authenticity and identification. See A. Bowman, Hawaii [Hawai'i] Rules of Evidence Manual (Bowman), § 901-2 (1990). In other words, the proponent of the evidence must prove that the item is what the proponent claims it is. Id. The proponent of the item must "lay the foundation" for its receipt in evidence in order "to prevent inadmissible evidence from being suggested to the jury by any means." M. Graham, Authentication and Identification--Laying an Adequate Foundation (Graham), 25 Crim.L.Bull. 566, 566 (1989). The determination of whether a proper foundation has been established lies within the discretion of the trial court and its determination will not be overturned absent a showing of clear abuse. State v. Evans, 247 Mont. 218, 227, 806 P.2d 512, 518 (1991). Proper identification and foundation are established when the prosecution shows that the exhibit is connected with the crime and identified as such. Id. Evidence is admissible if the court, in the exercise of its wide discretion in such matters, decides that "sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification." 5 J. Weinstein & M. Berger, Weinstein's Evidence p 901(a)m at 901-16, -17 (1983).

Citing State v. Ferreira, 152 Ariz. 289, 731 P.2d 1233 (1986), the State argues that when the wallet was admitted into evidence all of its contents were admitted also. However, Ferreira is not on point, since the article in question in that case had in fact been received in evidence.

In our view, the policies underlying the authentication and identification requirements also support the principle that the proponent should lay a sufficient foundation for each item of evidence which the proponent intends to expose to the jury, including items within a container. We recognize that there may be cases where, for practical or other reasons, it may be necessary or desirable in the trial court's discretion to consider a container's contents as having been admitted in evidence when the container was admitted. However, those cases should be limited to situations where the container's contents are unique and readily identifiable by their appearance or not subject to alteration, substitution, or change of condition. See State v. DeSilva, 64 Haw. 40, 636 P.2d 728 (1981).

Where the item within a container is neither...