85 Hawai'i 49, State v. Napulou

• Decision Date: 09 April 1997
• Docket Number: No. 17653,17653
• Citation: 936 P.2d 1297,85 Hawaii 49
• Parties: 85 Hawai'i 49 STATE of Hawai'i, Plaintiff-Appellee, v. Craig NAPULOU, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 1297

936 P.2d 1297

85 Hawai'i 49

STATE of Hawai'i, Plaintiff-Appellee, v. Craig NAPULOU, Defendant-Appellant.

No. 17653.

Intermediate Court of Appeals of Hawai'i.

April 9, 1997.

Reconsideration Denied April 28, 1997.

Certiorari Denied May 20, 1997.

[85 Hawai'i 51] Joyce Matsumori-Hoshijo, Deputy Public Defender, on the brief, Honolulu, for defendant-appellant.

Caroline M. Mee, Deputy Prosecuting Attorney, City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

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

BURNS, Chief Judge.

Defendant Craig Napulou (Napulou) appeals from the November 22, 1993, Judgment finding him guilty of Attempted Murder in the Second Degree, Hawai'i Revised Statutes (HRS) §§ 705-500 and 707-701.5(1) (1993) (Count I), Burglary in the First Degree, HRS § 708-810(1)(c) (1993) (Count II), and Assault in the Second Degree, HRS § 707-711(1)(d) (1993) (Count III), and sentencing him for Count I to incarceration for life with the possibility of parole, for Count II to incarceration for ten years, and for Count III to incarceration for five years, all terms to run concurrently. We affirm.

On November 20, 1991, a grand jury indicted Napulou for the above offenses. The charges stemmed from a stabbing and slashing of two Japanese tourists who stumbled upon a burglar in their Waikiki vacation rental. On April 27, 1993, Napulou filed a Notice of Alibi Defense. The jury trial began on September 9, 1993. Defense counsel's opening argument indicated that Napulou was asserting an alibi defense.

In this appeal, Napulou contends that the trial court reversibly erred when it: (1) denied Napulou's motion seeking a mistrial because a discussion the jurors had regarding Napulou's family tainted the jury; (2) allowed the State to cross-examine Napulou about whether he told his family or his girlfriend's family that he had been working on the day of the offenses; and (3) overruled Napulou's objection to the prosecutor's comment, during closing argument, on Napulou's failure to call corroborating witnesses.

DISCUSSION

A. Juror Tainting by Outside Influences

On September 20, 1993, the second day of jury deliberations, some of the jurors had a brief discussion before lunch about the possibility that members of Napulou's family had followed them from the courtroom to the parking area and whether there was any need for additional courthouse security. After lunch one of the jurors, either No. 12 or No. 2, asked the bailiff about courthouse security or protection for the jurors. The bailiff instructed the jurors not to discuss the matter among themselves and said that he would ask the court about their concerns. The jury continued to deliberate. The court, without consulting counsel, instructed the bailiff to tell the jurors to frame their concerns in a written communication to the court.

Later that same day, the court received Communication No. 2, written by jurors Nos. 9 and 12, which read as follows:

Some jurors have noticed members of [Napulou's] family following them downstairs and toward the car garage. If a guilty verdict is given[,] could there be danger to some of us or has some arrangement been made for protection. (More than one juror)

After consulting with counsel, the court then conducted a voir dire of each juror to determine whether the jurors had experienced being followed by Napulou's family members, whether they had discussed such an experience with other jurors, whether the incidents and/or the discussion affected the ability of any juror to be fair and impartial, and whether the jurors could consider only the evidence and the law and deliberate fully and fairly. Napulou and his counsel were present in court during the hearing.

The voir dire of individual jurors was conducted outside of the presence of the other jurors. When asked whether they had experienced being followed or whether they had any concerns, the jurors responded as follows:

Juror No. 1: "No."

Juror No. 2: "No, I don't think anybody followed me, no, but you know ... I was a little uncomfortable to tell you the truth.... Well, because when we were waiting outside, they're right there, and they would watch us pretty intently, and sitting up here sometimes, you know, if I looked, then somebody's always looking, you know, so I just felt uncomfortable, you know.... I just said I felt a little uncomfortable sometimes."

Juror No. 3: "No, your hono[r]."

Juror No. 4: "No, I did not."

Juror No. 5: "No."

A follow-up colloquy occurred between defense counsel and juror No. 5:

[Q]: Was [sic] there any comments or looks or things that made you feel uncomfortable?

Juror [No. 5]: No verbal, no communication at all. They were just sitting downstairs.

[Q]: Nothing that made you feel intimidated?

Juror [No. 5]: No.

* * *

[Q]: And with respect to the concerns of the others, does that make you feel uncomfortable for them, like maybe they're having difficulty at this point in time?

Juror [No. 5]: I think they were just concerned that people were there from the time we were selecting the jurors and they could recognize us anywhere, and I believe one person lives in the area that Mr. Napulou's family lives.

[Q]: And which person was that?

Juror [No. 5]: That would have been [No. 12], and [No. 9] ... I think she lives in that area, also.

Jurors Nos. 6 and 8: "No."

Juror No. 7: "No, I haven't. I've noticed the defendant's family when you go to smoke break, but I haven't felt that they were following us, just happened to be going to the same places."

Juror No. 9: "Actually not. The first thing I, the first time it was brought up I mentioned it to my mom I was going to jury duty, and she says[,] 'What's going to happen?' But she lives in California, and I said, 'I've never heard anything like that in Hawaii [Hawai'i], don't worry about it.' And so I didn't think of anything at all until it was brought up again today."

Juror No. 10: "No. I saw the family here about the courtroom and I had no problem with it whatsoever."

Juror No. 11: "No."

Juror No. 12: "No, I didn't ... but some of us were just wondering, you know, what might happen. I guess we hear it on T.V. and stuff, you know, and we just kind of were wondering."

When asked whether there was a discussion about this in the jury deliberation room, the jurors said:

Juror No. 1: "Not really a discussion. I think the question was just posed, you know, somebody had just questioned it, and they wrote it out to give to the bailiff."

Juror No. 2: "A little, because we didn't realize we weren't supposed to talk about it until [the bailiff] told us just write it down, don't talk about it, so we talked a little about it."

Juror No. 3: "It was brought up at one time."

Juror No. 4: "Yes, it was ... [j]ust as it was stated on the piece of paper."

Juror No. 5: "Yes, it was."

Juror No. 6: "Yes ... it was a brief discussion. It wasn't during the deliberation, it was before we had really started the deliberation on the issues.... Nobody was talking about it in terms of deciding one way or another. They were just talking in general, you know, could something happen to somebody, but it was not in the context of should we decide this or decide that. We were not at that point."

Juror No. 7: "No, except the people that raised the initial question[.]"

Juror No. 8: "Yes, sir."

Juror No. 9: [Question not asked.]

Juror No. 10: "No. There were, you know, a few comments around the table, but I didn't notice any discussion at great length or any great concern."

Juror No. 11: "I think I was in the bathroom when they discussed it, well, when they talked about it. Well, I came in and I heard sort of the ending of the conversation."

Juror No. 12: "Yes.... I discussed this along with other jurors ... mostly females."

When asked which of the jurors had the main concerns or who brought it up, the jurors responded as follows:

Juror No. 1: "I think it was [No. 12]."

Juror No. 2: "[No. 12] ... seemed really concerned."

Juror No. 3: "I don't know the individual's name.... Female."

Juror No. 4: "[No. 12] and ... [No. 9]."

Juror No. 5: "I believe it was [No. 12].... And I believe [No. 2] and [No. 9] also expressed it. I just mentioned that they were down there when I went downstairs, but no one's followed me."

Juror No. 6: "[No. 12], ... but she didn't seem to specifically say anything had happened to her, she just wondered in general, could something happen, you know, I mean could something happen to someone, and the rest of us sort of said that's why we have a jury system, there's 12 of us, it's not just one person who decides, and that we're protected."

* * *

"[I]t was a brief discussion. It wasn't during the deliberation, it was before we had really started the deliberation on the issues, and nobody--I felt we had resolved it, and they just thought maybe we should bring it up just in case."

Juror No. 7: "I know who she is but I can't remember her name or number right offhand."

Juror No. 8: "[No. 2]."

Juror No. 9: "I just know her first name is [No. 12]."

Juror No. 10: "I don't recall, one or two of the ladies."

Juror No. 11: "When I came in, I'm not sure who exactly was saying it, but one of the ladies[.]"

Juror No. 12: "I forgot their names. It's mostly females."

To follow up, juror No. 12 was asked the following questions by defense counsel:

[Q]: Okay. What about, do you feel uncomfortable where you live where there might be somebody in your area that might intimidate you or cause you to feel discomfort?

Juror [No. 12]: No. Basically the question arose because I guess, like I said, sometimes we see it on T.V. and stuff, and everybody was just wondering, you know, what if you know the person's family, or somebody might come up and ask us things or, you know, it's just a matter of speaking, you know, in there what if this and what if that, but actually we weren't, you know, bothered by anybody or anything like that.

[Q]: Okay. And it appears from your responses so far that this isn't...