State v. Yamada, 26506.
| Decision Date | 21 October 2005 |
| Docket Number | No. 26506.,26506. |
| Citation | 122 P.3d 254 |
| Parties | STATE of Hawai`i, Plaintiff-Appellant, v. Kaleokalani YAMADA, Defendant-Appellee. |
| Court | Hawaii Supreme Court |
James M. Anderson, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellant.
Harrison L. Kiehm, on the briefs, for defendant-appellee.
Plaintiff-appellant State of Hawai`i [hereinafter, the prosecution] appeals from the March 15, 2004 findings of fact, conclusions of law and order of the Circuit Court of the First Circuit, the Honorable Michael A. Town presiding, granting a new trial to defendant-appellee Kaleokalani Yamada, who had been convicted of two counts of robbery in the first degree, in violation of Hawai`i Revised Statutes (HRS) § 708-840(1)(b)(i) and (ii) (Supp.1998),1 and one count of assault in the first degree, in violation of HRS § 707-710 (1993).2 On appeal, the prosecution contends that the trial court abused its discretion in granting Yamada's motion for new trial inasmuch as the court based its decision on the sole ground that a juror slept through twelve minutes of defense counsel's one-hour long closing argument, "without a showing of actual prejudice from the defense or a finding of prejudice by the circuit court, and where the record as a whole evinced no prejudice to defendant." For the following reasons, we vacate the circuit court's March 15, 2004 order and remand this case for sentencing.
On July 9, 2003, Yamada was charged by complaint with two counts of robbery in the first degree and one count of assault in the first degree. Trial commenced on November 24, 2003. The sole issue contested at trial was the identity of the perpetrator. During his opening statement, defense counsel stated to the jury:
Mistaken identity, ladies and gentlemen. . . . The evidence will show that [Yamada] is not guilty[.] [T]he evidence will show that there are a lot of inaccuracies here. There's a lot of inconsistencies. There's reasonable doubt, and the State cannot prove these charges beyond a reasonable doubt because [Yamada] did not do this.
At trial, the prosecution presented two witnesses who positively identified Yamada in a police lineup. Yamada presented one alibi witness who testified that she was with him at her house on the night of the incident and that Yamada had remained with her until the next afternoon. Additionally, Yamada's then-employer testified for the defense as to Yamada's physical appearance and pertinent company policies regarding physical appearance to contradict the prosecution witnesses' physical descriptions of the perpetrator.
On December 2, 2003, after the court read its instructions to the jury, the parties presented closing arguments. During defense counsel's closing argument, the bailiff signaled to the judge that a juror "might be sleeping." The judge noticed that one of the jurors' "head was over," although he could not see her eyes.3 At that point, the judge interrupted defense counsel, asking, At that point, the judge noticed that the foreperson either "A[,] opened her eyes and was awake, or B[,] woke up." Despite the interruption, defense counsel continued his argument without repeating or requesting to repeat any portion of his argument. After the prosecution's rebuttal, the court made its final charge to the jury with instructions to return at 8:30 a.m. the next morning, unless it reached a verdict that afternoon. The jury did not reach a verdict and was, therefore, instructed to return the following day.
The next morning, outside of the jury's presence, defense counsel moved for a mistrial on the following grounds: (1) several jurors "seemed sleepy [during defense counsel's closing argument] and did not consider the closing argument" and (2) the prosecution made improper statements regarding certain evidence during its closing argument.4 In support of Yamada's motion for mistrial, defense counsel recalled:
I think it was two or three jurors who seemed to be very sleepy. In fact, one of the jurors looked like she was sleeping. In fact, that juror turned out to be the foreperson of the jury.
The prosecution similarly recounted that another juror, Joe Gomez, appeared drowsy during closing argument:
[Prosecution]: Your honor, I did not notice [the foreperson]. However, I did notice the gentleman right next to her. I forget his name.
THE COURT: Gomez.
[Prosecution]: [Gomez] had his eyes closed so what I did is I dropped — while I was doing my closing argument, he had his eyes closed and wasn't looking at me so I dropped the pictures and made kind of a loud sound and it didn't appear that he was sleeping because as soon as I did that, he looked up and, you know, it's like he focused his attention. . . .
After hearing further argument, the court ruled:
On the allegation there may have been a sleeping juror, I'm going to deny the mistrial now without prejudice to raise it again depending on the verdict, with your preference, [defense] counsel, to take some testimony from the foreperson if she was asleep later assuming today and if so, only [the foreperson] or Mr. Gomez[.]
The court also noted that, because a third juror, Thomas Saka,
After the court denied Yamada's motion, the jury returned a unanimous verdict finding Yamada guilty as charged on all counts. The court then dismissed the jury, except for the three jurors, who were believed to be sleeping during closing arguments. The court then proceeded to voir dire Saka, Gomez, and the foreperson. Of the three jurors, only Saka admitted to sleeping during the parties' closing arguments:5
THE COURT: [Saka], it's the procedure if someone — if a juror is perceived to maybe have closed their eyes or gone to sleep during — not the trial but closing, did at anytime during closing arguments when [the prosecution] or [defense counsel] were arguing the case, did you go to sleep?
[Saka]: I may have passed out a couple of seconds, but I did notice on the Power Point, I think it was during [the prosecution's closing argument] and when I did open them, it came back up, it was pretty much on the same bullet point.
THE COURT: What would have been the longest time that you would have gone to sleep?
[Saka]: Maybe ten, 15 seconds. I'm not sure.
THE COURT: Ten or 15 seconds? Okay. . . .
[Prosecution]: If I understand correctly, [Saka], this was on my closing?
[Saka]: I'm pretty sure.
[Prosecution]: And you recall any similar event when [defense counsel] was presenting their closing?
[Saka]: I think it might have been [during defense counsel's closing argument] because actually it was on this — it was on the — this board that was being shown.
[Prosecution]: You're saying the white board underneath the clock?
[Saka]: Yes.
[Saka]: No, I don't.
[Defense counsel]: Do you remember what witness I was talking about or what part of the case I was talking about?
[Saka]: Not specifically, no.
[Defense counsel]: And you said it was just ten to 15 seconds or so?
[Saka]: I think so. I think when I — you were still on the same bullet point, yes.
[Defense counsel]: And you weren't really drifting out in any part or were you drifting?
[Saka]: I may have been drifting. I'm not sure.
[Saka]: I think less than that.
[Defense counsel]: About how much? I'm sorry.
[Saka]: Maybe 20 percent at the most.
[Defense counsel]: 20 percent at most? Okay. Okay. And do you recall if it was basically at the beginning part of my closing or the end of my closing?
[Saka]: Probably more towards the middle.
[Defense counsel]: More towards the middle? Okay. Thank you very much.
The court summarized the jurors' statements:
It sounds to me like [the foreperson], even though her eyes were closed, was able to hear. She may have been a little drowsy, so to speak, but people get drowsy. Mr. Gomez clearly was wide awake. [Saka] said he was asleep for ten to 15 seconds, but he doesn't know. He may have missed as much as 20 percent of the defense closing.
The court dismissed the jurors and directed defense counsel to file a written motion for new trial.
On December 12, 2003, Yamada filed a motion for new trial, wherein he argued that, inter alia, juror misconduct deprived him of a fair trial and a new trial was required "in the interests of justice." On January 29, 2004, the court heard argument on the motion.
On March 14, 2004, the court entered an order granting Yamada's motion for new trial, finding and concluding as follows:
FINDINGS OF FACT
1. A complaint was filed on July 9, 2003, charging [Yamada] with two (2) counts of Robbery in the First Degree and one (1) count of Assault in the First Degree for an incident that occurred on February 14, 2003. Following a jury trial, [Yamada] was convicted as charged of all offenses on December 3, 2003.
2. Defendant's Motion for a New trial (hereinafter "Motion") was filed on December 12, 2003, within the time period specified by Rule 33, Hawai`i Rules of Penal Procedure. Inter alia, the Motion claimed that a new trial should be granted because a juror fell asleep during defense counsel's closing argument. . . .
3. The Court granted the Motion on the sole basis that a juror was asleep for about twenty per cent (20%) of defense counsel's closing argument, that was approximately one hour long, thus the juror was asleep for about twelve (12) minutes.
4. The Court had "serious discomfort" with [the prose...
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