Kaluna v. Iranon
| Decision Date | 27 December 1996 |
| Docket Number | Civil No. 95-01062 ACK. |
| Citation | 952 F.Supp. 1426 |
| Parties | Jaime Kainoa KALUNA, Petitioner, v. George IRANON, Director, Department of Public Safety, State of Hawaii, Respondent. |
| Court | Hawaii Supreme Court |
Reginald P. Minn, Honolulu, HI, for Petitioner.
Alfred B. Castillo, Jr., Prosecuting Attorney County of Kauai, Lihue, Kauai, HI, for Respondent.
ORDER ADOPTING MAGISTRATE'S FINDINGS AND RECOMMENDATION TO DENY § 2254 PETITION
On December 22, 1995, Petitioner Jaime Kainoa Kaluna filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, seeking a writ prohibiting the State of Hawaii from further prosecuting him on charges originally brought in State of Hawaii v. Kaluna, Criminal No. 93-0086 (Fifth Circuit Court). Respondent filed its Memorandum in Opposition of Petition for Habeas Corpus on February 26, 1996, to which Petitioner filed his Reply on March 22, 1996.
On July 24, 1996, the Magistrate Judge thereafter issued a Findings and Recommendation ("F & R") that the Petition for Writ of Habeas Corpus be denied. Specifically, Magistrate Judge Kurren recommended that Petitioner's claim be denied because (1) retrial of Petitioner would not amount to double jeopardy and (2) the state trial judge's decision to refuse the requested Allen instruction was not improper. On August 5, 1996, Petitioner filed objections to the Magistrate Judge's F & R, on the grounds that the Magistrate's findings concerning the use of the Allen instruction in state court was erroneous, and that the authority cited to support the F & R was distinguishable.
For the following reasons, the Court ADOPTS the Magistrate Judge's F & R and accordingly DENIES the Petition for Writ of Habeas Corpus.
Petitioner is presently in the custody of the State of Hawaii and has exhausted his state court remedies. On May 28, 1993, the State of Hawaii filed an amended complaint against Petitioner, charging him with second-degree murder, criminal conspiracy, possession or use of a firearm during the commission of a felony, and second-degree theft. Petitioner's trial began on October 12, 1993.
The jury deliberations at trial form the central facet of Petitioner's § 2254 claims. The jury began deliberations on Friday, October 15, 1993. The jury did not deliberate on the weekend dates of October 16 and 17, but resumed deliberations on Monday, October 18. On October 19, the jury sent the court a communication that it was deadlocked. At Petitioner's request, the trial court gave the jury a more emphatic instruction on deliberating toward an unanimous verdict. The jury resumed deliberations through October 21, 1996, at which time, by agreement of both counsel for Petitioner and the government, the trial court decided to individually poll the jurors to determine whether the jury could eventually reach a verdict. Nine jurors indicated that the jury would be unable to reach a verdict under any circumstance, while three jurors stated the jury might reach a verdict if given more time to deliberate.
At this point Petitioner requested the trial court to give an "Allen instruction" and allow the jury further time to deliberate. The trial court denied Petitioner's requests, however, and declared a mistrial.
Petitioner then filed a Motion to Dismiss Amended Complaint, asserting that the Double Jeopardy Clause prevented a retrial. The trial court denied Petitioner's motion. Petitioner appealed to the Hawaii Supreme Court, which affirmed the trial court's order. The Hawaii Supreme Court stated that the declaration of a mistrial was supported by manifest necessity, therefore allowing retrial of the claims against Petitioner. Petitioner then requested this Court to issue a writ of habeas corpus prohibiting the State of Hawaii from further prosecuting him on the charges in this case.
Any party may object to a Magistrate's case dispositive proposed order, findings, or recommendation. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Local Rule 404-2. The district court must make a de novo determination of those portions of the Magistrate's findings to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendation made by the Magistrate. Id.
De novo review means the court must consider the matter anew, as if it had not been heard before and as if no decision previously had been rendered. Ness v. Comm'r, 954 F.2d 1495, 1497 (9th Cir.1992). Thus, although the district court need not hold a de novo hearing, the court's obligation is to arrive at its own independent conclusion about those portions of the Magistrate's findings or recommendation to which objections are made. United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989).
The Court may accept those portions of the Magistrate's findings and recommendation which are not objected to if it is satisfied that there is no clear error on the face of the record. See Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir.1974).
In the F & R, the Magistrate Judge found that the Double Jeopardy Clause of the Fifth Amendment would not be triggered by further prosecution of the Petitioner on the charges in this case. The Magistrate Judge further found that, although the trial judge incorrectly stated that an Allen instruction is not appropriate under both the Hawaii Constitution and the United State Constitution, there was no actual prejudice to Petitioner. See infra. The Magistrate's findings indicated that there was no evidence that the Allen instruction was "clearly warranted" and, notwithstanding the erroneous statement that the Allen instruction is unconstitutional, there was no actual prejudice to Petitioner. The Magistrate further found that the trial court's decision to forego further jury deliberations and declare a mistrial was supported by "manifest necessity."
Petitioner's objections to the Magistrate's findings fall within the following categories: (1) objections to the findings on the use of the Allen instruction under the circumstances of this case; (2) objections to the findings regarding the individual polling of the jury; and (3) objections to the authority cited in support of the Magistrate's findings.
Petitioner's habeas corpus petition alleges that the state trial court erred in denying Petitioner's request for an Allen-type instruction to the jury after the jury appeared deadlocked for a second time. The Court finds the state trial judge properly denied Petitioner's request for this instruction.
First, Petitioner wanted the trial court to give a "full" Allen instruction. The full Allen instruction which Petitioner requested is attached as Exhibit A to this Order. See attached. Such instructions are prohibited under Hawaii law, however, since the Hawaii Supreme Court bars any use of an Allen instruction after the jury has begun deliberations. Hawaii v. Villeza, 72 Haw. 327, 333-35, 817 P.2d 1054, 1058 (1991); Hawaii v. Fajardo, 67 Haw. 593, 600-02, 699 P.2d 20, 25 (1985). The trial court thus would have committed reversible error if it had given the Allen instruction which Petitioner sought. Although the Ninth Circuit does not categorically prohibit the use of an Allen instruction after the first indication of a jury deadlock, the Ninth Circuit disfavors such instructions. U.S. v. Nickell, 883 F.2d 824, 828 (9th Cir.1989). As the Ninth Circuit explains, "Allen instructions have been repeatedly criticized as constituting an unwarranted intrusion by the court upon the province of the jury." Id. Further, the Hawaii Supreme Court has similarly explained that Allen instructions are unduly coercive on the jury's deliberations. Fajardo, 699 P.2d at 25. In particular, the Hawaii Supreme Court has emphasized that the two elements of Allen instructions which are "most problematical" are an "admonition to minority jurors and [a] remark that the case must be decided or retried." Id. at p. 24.
Second, the trial court in this case had already once given a modified Allen instruction after the jury's first deadlock. At the time of Petitioner's request for an Allen instruction, the trial judge had given the jury a supplemental instruction on deliberating toward an unanimous verdict, in response to the first jury deadlock. In that charge the trial judge instructed the jurors to re-examine their views and to consider the views of their fellow jurors, and to ask themselves whether they should question the correctness of their own positions. This initial supplemental instruction which the trial court gave in this case was a "modified" Allen instruction, permissible under both Ninth Circuit and Hawaii law. For example the language of the instruction used in this case is similar to that the Ninth Circuit described as an "Allen-type" charge in Nickell. Nickell, 883 F.2d at 827-28. Similarly, under Hawaii case law, the Hawaii Supreme Court has approved the language which the trial court gave in this case. In Fajardo, while categorically rejecting Allen instructions, the Hawaii Supreme Court specifically stated that it would have been proper for the trial court to have given a supplemental instruction similar to the deliberation instruction given to the jury in that case before deliberations. Fajardo, 699 P.2d at 25 n. 2. The Hawaii Supreme Court in Fajardo stated by way of example that the trial court could have given the following instruction after the jury initially indicated it was deadlocked:
A verdict must represent the considered judgment of each juror, and in order to return a verdict, it is necessary that each juror agree thereto. In other words your verdict must be unanimous. Each of you must decide the case for yourself, but it is yourduty [sic] to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without...
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