State v. Shiroma, 15864

• Decision Date: 25 May 1993
• Docket Number: No. 15864,15864
• Citation: 9 Haw.App. 578,855 P.2d 34
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Brian S. SHIROMA, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 34

855 P.2d 34

9 Haw.App. 578

STATE of Hawaii, Plaintiff-Appellee, v. Brian S. SHIROMA, Defendant-Appellant.

No. 15864.

Intermediate Court of Appeals of Hawai'i.

May 25, 1993.

Certiorari Denied July 12, 1993.

Syllabus by the Court

1. The circuit court's unlawful utilization of the "struck jury" method to select the jury was not plain error because the jury that rendered the verdict convicting defendant was fair and impartial, and the error did not seriously affect the fairness, integrity, or public reputation of the trial or affect the substantial rights of the defendant.

2. If evidence of other crimes is probative of any fact of consequence in the determination of the case other than to show some propensity to commit the crime at trial, the court must then consider whether the prejudicial impact of the evidence would be substantially greater than its probative worth. In deciding that question, a variety of matters must be considered.

Clayton C. Ikei, on the brief, Honolulu, for defendant-appellant.

James H.S. Choi, Deputy Pros. Atty., City & County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

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

BURNS, Chief Judge.

Defendant Brian S. Shiroma (Shiroma) was charged with (1) Terroristic Threatening in the First Degree, Hawaii Revised Statutes (HRS) § 707-716(1)(d); (2) Sexual Assault in the Third Degree, HRS § 707-732(1)(e); and (3) Kidnapping, HRS § 707-720(1)(d). All three charges allegedly involved the same female victim (the Woman). The jury found Shiroma guilty of the lesser-included offenses of Terroristic Threatening in the Second Degree, HRS § 707-717 (1985), and Unlawful Imprisonment in the Second Degree, HRS § 707-722 (1985), but not guilty of Sexual Assault in the Third Degree. Shiroma appeals the December 12, 1991 judgment entered in accordance with the jury's verdict. We affirm.

I.

The circuit court unlawfully used a twenty-two person "struck jury" method to impanel the jury. See State v. Echineque, 73 Haw. 100, 828 P.2d 276 (1992). If Shiroma had objected to this method of jury selection, we would be compelled to reverse. Since Shiroma did not object, the question is whether the use of the "struck jury" method to select the jury was plain error. HRS § 641-16 (1985); Hawaii Rules of Appellate Procedure Rule 28(b)(4)(D). An error is plain error if it "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings[,]" State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676 (1988) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)), or affected the substantial rights of the appellant. HRS § 641-16 (1985).

In the absence of HRS § 641-16's mandate, the "struck jury" method would be a reasonable method to select the jury. Shiroma participated in the selection of the jury and did not object to any of the 12 jurors who heard the evidence and rendered the verdict. The jury that rendered the verdict was fair and impartial. The fact that the jury was not selected as required by HRS § 635-26(a) did not negatively and seriously affect the fairness, integrity, or public reputation of Shiroma's jury trial. Neither did it affect Shiroma's substantial rights. Therefore, the trial judge's error in the process used to select the jury was not plain error.

II.

Shiroma contends that the trial court allowed the State, over his objection, to violate Hawaii Rules of Evidence (HRE) Rule 404(b). That rule states as follows:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible where such evidence is probative of any other fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.

The Hawaii Supreme Court has explained the trial court's duty under HRE 404(b) in relevant part as follows:

Yet even when the evidence of other crimes, wrongs or acts tends to establish a fact of consequence to the determination of the case, the trial court is still obliged to exclude the evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Haw.R.Evid. 404(b) Commentary (quoting the House Judiciary Committee Report accompanying the Federal Rules of Evidence).

* * * * * *

As we observed, when evidence of other crimes, wrongs, and acts is offered by the prosecution, the problem for the trial court is one "of classifying and then balancing[, if necessary]." E.W. Cleary, [McCormick on Evidence § 190 (3d ed. 1984) ]. If its purpose is only "to show some propensity to commit the crime at trial, there is no room for ad hoc balancing. The evidence is then unequivocally inadmissible[.]" Id. If it is probative of any other fact of consequence in the determination of the case, the court must then consider whether the prejudicial impact of the evidence would be substantially greater than its probative worth. And,

[i]in deciding whether the danger of unfair prejudice and the like substantially outweighs the incremental probative value, a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the...