State v. Bailey
| Decision Date | 01 March 2012 |
| Docket Number | No. SCWC–30278.,SCWC–30278. |
| Citation | 271 P.3d 1142,126 Hawai'i 383 |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Peter Kalani BAILEY, Petitioner/Defendant–Appellant. |
| Court | Hawaii Supreme Court |
Jon N. Ikenaga, Deputy Public Defender, for petitioner/defendant-appellant.
Michael S. Kagami, Deputy Prosecuting Attorney, for respondent/plaintiff-appellee.
Peter Kalani Bailey was convicted in the Circuit Court of the Third Circuit on four counts of attempted sexual assault in the first degree in violation of Hawai‘i Revised Statutes (HRS) §§ 705–500 and 707–730(1)(b), cited infra, in relation to an incident on July 22, 2007 in which Bailey allegedly attempted to engage in four acts of sexual penetration with MM, who was twelve years old at the time.1 The ICA affirmed Bailey's convictions. State v. Bailey, No. 30278, 125 Hawai‘i 245, 2011 WL 2520275 (Haw.App. Apr. 25, 2011).
Several events occurred during trial, which are the subject of Bailey's application for a writ of certiorari. First, it appears that the courtroom doors were locked for part of the jury selection, and Bailey argues that this closure of the courtroom violated his constitutional right to a public trial. Second, during the jury's deliberations, Juror Nine informed the other jurors that Bailey had previously been charged with and/or convicted of murder. Bailey argues that Juror Nine's statements constituted juror misconduct, and that the circuit court abused its discretion in denying his motion for mistrial in relation to these statements. Third, Bailey challenges the circuit court's decision to replace Juror Nine with an alternate juror after deliberations had begun, in violation of Hawai‘i Rules of Penal Procedure Rule 24(c).2 Bailey argues that this error was not harmless beyond a reasonable doubt. Finally, Bailey argues that there was no rational basis in the evidence for instructing the jury on the included offense of attempted sexual assault in the first degree, of which he was eventually convicted, and that the evidence presented at trial was insufficient to support his convictions.
We hold that the circuit court abused its discretion in denying Bailey's motion for mistrial, because Juror Nine's statements regarding Bailey's prior murder charge and/or conviction were not harmless beyond a reasonable doubt. Accordingly, the circuit court's judgment of conviction and sentence must be vacated. However, we further hold that the jury was properly instructed on the offense of attempted sexual assault in the first degree, and that the evidence was sufficient to support each of Bailey's convictions. Accordingly, we remand to the circuit court for a new trial on the four counts of attempted sexual assault in the first degree. See State v. Kalaola, 124 Hawai‘i 43, 51, 237 P.3d 1109, 1117 (2010) (); State v. Feliciano, 62 Haw. 637, 644, 618 P.2d 306, 311 (1980) (), superseded by statute on other grounds as stated in State v. Rumbawa, 94 Hawai‘i 513, 517, 17 P.3d 862, 866 (App.2001).
In light of our resolution of these issues, we do not address Bailey's arguments that the circuit court erred in denying his motion for mistrial based on the locking of the courtroom doors, and in seating an alternate juror after deliberations had begun.
The following factual background is taken from the record on appeal.
On August 9, 2007, the grand jury returned an indictment charging Peter Kalani Bailey3 with four counts of sexual assault in the first degree in violation of HRS § 707–730(1)(b).4 Each of the four counts of the indictment alleged that, on or about July 22, 2007, Bailey engaged in sexual penetration with a person who was less than fourteen years old. Count 1 alleged that Bailey engaged in "digital penetration." Count 2 alleged that Bailey engaged in "penile penetration." Count 3 alleged that Bailey engaged in "cunnilingus." Count 4 alleged that Bailey engaged in "fellatio."
Prior to trial, defense counsel filed several motions in limine. Relevant to Bailey's application, defense counsel sought to exclude evidence of any prior criminal convictions. The State did not object, and the circuit court agreed to exclude evidence of Bailey's prior criminal record.
Jury selection was conducted over the course of several days. On May 12, 2008, Bailey orally moved for a mistrial on the ground that the courtroom doors were locked during a portion of jury selection on May 7, 2008. The circuit court denied Bailey's motion for mistrial, and decided to recall the jurors from the afternoon of May 7, 2008 so that the court could reexamine them.5
The State called MM as its first witness. MM testified that she was 12 years old at the time of trial. She attended the church of the First Assembly of God, where she participated in singing on Fridays. She explained that Bailey was one of the adults in charge of the youth activities, including singing.
MM testified that Bailey telephoned her house on a Sunday during the "[n]ighttime," and asked if MM could go to the church to practice singing. MM received permission from her mother and Bailey picked her up and drove her to the church.
MM testified that after they arrived at the church, Bailey went to the bathroom and she waited outside. After Bailey exited the bathroom, he approached MM from behind and "wrap[ped] his arm around [her] ... stomach." He told her that she was "stiff." Bailey eventually told MM to go with him to the "copy room."
MM testified that the lights in the copy room were on. She and Bailey sat down and sang one or two songs. Bailey then asked MM to "come to him" and to "bend down on [her] knees." Bailey then massaged MM's shoulders from behind her. MM had not asked for a massage.
MM testified that Bailey then "made [her] lie on the floor" facing down with her head facing away from the door. Bailey then pulled up MM's jacket and began rubbing oil on her back. He told her that "he [had] to take off [her] bra cause the oil's gonna go on top [of] it." MM testified that Bailey unhooked her bra, and then "took off [her] shirt and jacket." Bailey continued to massage MM toward her "butt" and then removed her underwear and pants. Bailey continued to spread oil on MM and massage MM's back and butt.
Bailey then left the room for a few minutes. After Bailey returned, he told MM that her brother KM had come and that Bailey had given him some money. MM asked Bailey why he had given her brother money, but Bailey did not respond. Bailey then "undressed himself" and told MM to "face upwards." MM complied.
MM testified that she told Bailey that she had her "menstruation [at] that time" and Bailey responded, "It's okay." Bailey then placed MM's "bra on top [of her] mouth" and turned off the lights. He then placed her bra on her eyes and "told [her] to suck on his penis." MM did not say anything. Bailey then "put his penis in [her] mouth" and "his finger up [her] vagina." Bailey also "licked [MM's] vagina." Bailey then "went down to [her] legs and he put his penis in [her] vagina." MM was "[s]cared" and thinking about whether she was "still gonna be a virgin."
MM then heard footsteps outside, and her uncle ("Uncle") opened the door. MM testified that Bailey's penis was "still on [her]" when Uncle opened the door and she was still nude. MM had "one leg ... up on [Bailey's] shoulders and one down." When she heard the door open, MM took the bra off her eyes, and Uncle told her to "put on [her] clothes and go outside." MM heard Bailey tell Uncle that he "made a mistake." MM got dressed and went outside. MM's mother eventually arrived, and MM "asked her for water" "to take out the, urn, germs from [Bailey's] penis." MM "washed [her] mouth" with the water. MM then went to a hospital and was examined.
On cross-examination, defense counsel asked MM about statements she made to a detective a day or two following the incident. MM testified that she told the detective that Bailey had "grabbed" her side after he exited the bathroom at the church. MM further testified as follows:
Defense counsel also questioned MM regarding the alleged penile penetration by Bailey as follows6 :
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