State v. Mara

• Decision Date: 15 February 2002
• Docket Number: No. 22413.,22413.
• Citation: 98 Haw. 1,41 P.3d 157
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Dean MARA, Defendant-Appellant.
• Court: Hawaii Supreme Court

41 P.3d 157

98 Haw. 1

STATE of Hawai`i, Plaintiff-Appellee, v. Dean MARA, Defendant-Appellant.

No. 22413.

Supreme Court of Hawai`i.

February 15, 2002.

As Amended February 20, 2002.

Joyce K. Matsumori-Hoshijo, Deputy Public Defender, on the briefs, for defendant-appellant.

James M. Anderson, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.

MOON, C.J., RAMIL, and ACOBA, JJ.

Opinion of the Court by MOON, C.J.

On March 11, 1999, following a jury trial presided over by the Honorable Dexter Del Rosario, defendant-appellant Dean Mara was convicted of: manslaughter, in violation of Hawai`i Revised Statutes (HRS) § 707-702(1)(a) (1993)¹; reckless endangering in the first degree, in violation of HRS § 707-713 (1993)²; and place to keep firearm, in violation of HRS § 134-6(c) (Supp.1996).³ On appeal, Mara argues that his convictions should be reversed because the trial court erred by: (1) disqualifying fifty-one prospective jurors who admitted having knowledge about the present case without permitting counsel to question them; (2) denying Mara's motions for continuance and mistrial when the defense was unable to locate a witness whose existence was not disclosed until trial; and (3) failing to grant a mistrial based on the deputy prosecutor's improper remarks during rebuttal argument concerning the presumption of innocence. For the reasons set forth below, we affirm Mara's conviction and sentence.

I. BACKGROUND

This case arose out of a "drive by" shooting incident that occurred on January 15, 1997, in which Mara, who was a passenger in a car driven by Vanessa Joseph, shot and killed Stella Jensen, a passenger in a car driven by Gary Akopian.

On June 17, 1997, Mara was indicted on charges of: murder in the second degree of Jensen (Count I); attempted murder in the first degree of Jensen and Akopian (Count II); attempted murder in the second degree of Akopian (Count III); possession of a firearm by a person convicted of certain crimes (Count IV); possession of ammunition by a person convicted of certain crimes (Count V); and place to keep loaded firearm (Count VI).

A. Jury Selection

It was undisputed by the parties that this case received extensive pretrial publicity, including considerable television, radio, and newspaper coverage. According to Mara's May 22, 1998 statement on pretrial publicity, the news media reported, inter alia, that shots were fired from a passing car, leaving one person dead, and that, shortly after the shooting, police located the suspect car, which had been burned and abandoned in the Wai`anae area.

At a May 22, 1998 pretrial hearing, the trial court informed the prosecution and defense of its intended method of obtaining a sufficient number of potential jurors in the jury venire to ensure that a jury could be impaneled. Specifically, the court indicated:

From the court's experience, the court believes that given the nature of this case and there being twelve peremptories to decide the court needs a minimum number of 80 jurors to begin jury selection in order to assure completion of jury selection without the need of obtaining additional panels necessary from jury pool.

As a practical matter, this court is able to seat a maximum of approximately 85 jurors.

And because there was pretrial publicity in this case, the court also anticipate[s] that there may be jurors that have heard about this case necessitating individual [v]oir [d]ire.

In addition, the nature of the charges and the approximate length of the trial, two weeks, may also result in greater reluctance in jurors to serve on this particular case.

For that reason, the court has asked the jury pool [staff] to summon a larger than normal pool of jurors.

What I've been informed by the jury pool staff is that they have summoned two hundred one jurors for all of the trials beginning on Tuesday, May 26th. We will not know how many jurors will show up until that day.

Jury pool staff [have] also informed the court that they will need a minimum of 85 jurors from this pool to serve on the other courts.

So this will be the tentative procedure the court will follow:

On Tuesday morning the court will address the entire jury panel that was summoned [for jury duty] at nine o'clock. There will not be any court reporter present. Counsel need not be present, but they are welcome to be present to observe the process.

The court will have the clerk administer the jury oath to answer truthfully all questions concerning their qualifications to serve as jurors.

The court will also inform the jury of the charges, the title of the case, . . . and the approximate length of the trial of eight days or two weeks from May 26th to June 5th with the possibility that it may go into the week of June 8th.

The court will inform the jury that there was media coverage of this case.

The court will then read a statement which [Defense Counsel] has prepared.

. . . .

The court will then read the statement to the jury to refresh their recollection of whether they had heard about this case from the media or any other sources.

And this prepared statement will be made a part of the record.

. . . .

Now, depending on the number of jurors who indicate they have heard about this case, the court will instruct all or part of those jurors who have heard about this case to serve on the other trials that are scheduled for that date.

And in the event that there is more than 85 jurors remaining who will be available for this trial, any [excess] jurors will also be sent to [other] courtrooms.

Both counsels objected to the court's proposed procedure on the grounds that (1) HRS § 635-27 (1993), pertaining to a party's right to examine potential jurors, see infra, gives each party the right to examine potential jurors for cause and (2) this court, in State v. Echineque, 73 Haw. 100, 828 P.2d 276, reconsideration denied, 73 Haw. 625, 832 P.2d 1129 (1992), determined that trial courts must strictly comply with the statutory requirements set forth in HRS chapters 635 (pertaining to trial procedure) and 612, part I (pertaining to selection and service of jurors). Additionally, Mara argued that the court's proposed method of narrowing the jury pool violated HRS § 612-4 (1993), see infra, which sets forth specific grounds for the qualification and disqualification of a juror, because the statutory grounds for disqualification do not include disqualifying a juror based on pretrial publicity. Mara also objected on the grounds that the procedure violated his rights to due process and to trial by an impartial jury.

In response to the objections, the court stated:

If you can—both counsel can show me in the statute that what this court proposes violates the impaneling of jurors, I may agree with you. But you need to point out [to] the court specifically about the law.

[Echinique] referred to the struck jury method.⁴

. . . .

What I'm doing is clearly not a struck jury method.

I'm trying to find a way to bring 85 people in to this courtroom. You will have a chance to question all of these people, if we get that far.

If I could fit 200 people, I would bring them in here. But when these courtrooms were built, they were not built for high publicity cases.

So I had to come up with a system.

In addition, we have a budget. We—All of the courts cannot summon as many jurors as they want.

So jury pool has summoned a large panel [of] 200 citizens. And we hope to use it efficiently so that we can have jurors for all of the trials that are set on Tuesday.

The court is trying to find some method in which I can have jurors available for which we can select twelve fair and impartial people to decide this case, do it efficiently, and also have jurors from this pool available so the other courts can start rather than I take all 200 people.

And, as a practical matter, I cannot fit them in this courtroom unless we have jury selection someplace else.

And you're telling me that under the law we have to question all 200 people.

Finally, after considering the memoranda submitted by counsel and hearing all of the argument, the court overruled the objections, stating:

With respect to the State's concern that they would be having—by following this method the court would be selecting jurors who are uninformed, the court does not necessarily agree with that position.

What I would be excluding from this trial is jurors who have heard about this case. That means jurors who have not [sic] seen any media coverage. This does not mean that the court would be excluding jurors who are not educated, doesn't read other parts of the newspaper or watch other things in the news or books that they read.

If you are seeking a particular type of juror, you will have the jury cards. You will have an opportunity to question them regarding educational background, literature that they read, opinions that they may have, the whole gamut of questions that may be available to you to determine whether they can be fair and impartial.

The court then instructed both counsel to be present at the proceeding and stated that it would put the substance of the proceeding on the record. For various reasons not pertinent to this appeal, the trial was continued and eventually set for the week of December 7, 1998.

Early on December 7, 1998, the judge and counsel met with the potential jurors summoned to serve in trials on that day. The court later placed on the record the following statement concerning the meeting, which both counsel agreed was accurate:

[T]he court went down to the jury pool to address the jurors that were summoned to serve on this particular case. There were 214 jurors that had been summoned for this trial. There were 50 no-shows, so there was a total of 164 jurors or potential jurors present in the jury pool.

. . . .

. . . The court did explain to the jurors the reason why such a large number of jurors had been summoned and that was for the reason that we would not know until they arrive as to what the total number we

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