State v. Keohokapu

127 Hawai'i 91

276 P.3d 660

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Glenn KEOHOKAPU, Jr., Petitioner/Defendant–Appellant.

No. SCWC–29937.

Supreme Court of Hawai‘i.

May 15, 2012.

Cynthia A. Kagiwada, for petitioner.

James M. Anderson, deputy prosecuting attorney, for respondent.

ACOBA, DUFFY, and McKENNA, JJ.; with RECKTENWALD, C.J., Concurring and Dissenting, with whom NAKAYAMA, J., Joins.

Opinion of the Court by ACOBA, J.

We hold in this case that the process by which a jury was selected for the trial of Petitioner/Defendant–Appellant Glenn Keohokapu, Jr. (Petitioner) did not result in substantial prejudice to Petitioner notwithstanding the pretrial publicity to which some jurors were exposed, and we therefore affirm the June 22, 2009 judgment of conviction for manslaughter entered by the Circuit Court of the First Circuit (the court),¹ and, to the same extent, the October 6, 2011 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its September 22, 2011 summary disposition order (SDO),² see State v. Keohokapu, No. 29937, 2011 WL 4426889 (Haw.App. Sept. 22, 2011). However, we vacate Petitioner's extended term sentence and remand for disposition of the case consistent with this opinion inasmuch as we hold that as to the extended sentencing proceedings (1) where the jury must determine whether an extended term of imprisonment is necessary for the protection of the public it is error to instruct the jury that the extended term sentence includes the possibility of parole; (2) and, additionally, that in this case it was error to admit the statement of one of the witnesses during the sentencing phase as past recollection recorded; and (3) these errors were not harmless beyond a reasonable doubt.

I.

The following essential matters are from the record and the submissions of the parties.

A.

On the night of June 7, 2008, Petitioner, Petitioner's wife, Kauilani Keohokapu (Kauilani),³ and Petitioner's brother went to club "Komo Mai." Decedent Steven Wilcox and his friend Robin Gregory also were at the club. At some point, Petitioner became upset because Gregory was allegedly staring at Kauilani. Petitioner left the club and went outside to his car. Kauilani followed Petitioner, and the two allegedly began to argue. Later, Petitioner's brother came out of the club to the car, and it appears that the three argued.

During the argument, Petitioner's brother grabbed Kauilani's arm and pushed her away from the car. At that moment, Wilcox came out of the club, approached the car, and said something to the effect of, "That's one female." Petitioner, who was sitting in the car, got out and said, "[T]hat's my wife." Petitioner and Wilcox then began to fight. At one point, witnesses stated that they saw Petitioner with a metal object or a knife in his hand. Sometime during the fight, Petitioner and Wilcox collided, and Petitioner stabbed Wilcox in the chest. Petitioner then went back to his car and drove away. On June 8, 2008, Wilcox died as a result of the stab wound.

B.

On June 12, 2008, Respondent/Plaintiff–Appellee State of Hawai‘i (Respondent) charged Petitioner with murder in the second degree, Hawai‘i Revised Statutes (HRS) §§ 707–701.5 (1993)⁴ and 706–656 (1996).⁵ On June 23, 2008, Respondent gave Petitioner notice that he was eligible to be sentenced to an extended term of imprisonment as a persistent offender pursuant to HRS §§ 706–661 (Supp.2008)⁶ & 706–662(1) (Supp.2008)⁷ .

The July 23, 2008 minutes of the court reflect that the subject of pretrial publicity was discussed on that date, but there is no record of the proceedings. On March 12, 2009, the court held a hearing to resolve several pending motions. At the conclusion of the hearing, Petitioner's counsel reminded the court that there had been news reports about Wilcox's peaceable nature, which Petitioner's counsel claimed were simply "not true."

Jury selection began on March 17, 2009, and lasted six days. On the first day of jury selection, the court informed the first panel of prospective jurors that "[t]here was some publicity with respect to this case[,] and made the following statement (publicity statement):

It was reported that on June 8, 2008, in the parking lot of Club Komo Mai in Kaneohe [Petitioner] Glenn Keohokapu, Jr., allegedly fatally stabbed 19–year–old Steven Wilcox after Wilcox intervened in an argument between [Petitioner] and his wife. Both [Petitioner] and Wilcox had consumed alcohol in Club Komo Kai. Wilcox was described in the media as a good Samaritan.

Would you please raise your hand if you believed you have read, hear, or know anything about this case.

For those of you who have raised your hand, thank you. We'll be discussing what you've read or heard individually with each of you, and the others of you will be—who have not read or heard anything will be returning on next week Tuesday.

(Emphasis added.) The prospective jurors in the second, third, and fourth panels were given the same appraisal. Petitioner claims that "there is no record as to the discussion or formulation of this statement [and that] there is no record of whether the defense objected or not." The record reflects, however, that Petitioner did not object when the court read the statement to the jury panels.

The court conducted individualized voir dire of those jurors who indicated they had been exposed to pretrial publicity. Jurors who stated that they could not be fair and impartial due to media exposure were excused for cause.

Petitioner challenged for cause the remaining jurors who had heard of the case in the media, arguing that it would be difficult to ascertain whether the jurors could be fair and impartial, and, thus, it would be prudent to dismiss them all. The court rejected Petitioner's challenge for cause.

During the first day of the regular jury selection, Petitioner reiterated his challenge to those jurors seated in the jury box who had been exposed to pretrial publicity. The court again denied Petitioner's challenge. Nine out of the twelve jurors ultimately selected indicated that they had heard about the case through the television news, the newspapers, or both, and five stated that they recalled Wilcox had been referred to as a "Good Samaritan" or had helped by intervening in the dispute.

C.

Petitioner's trial commenced on April 6, 2009. Petitioner argued that Wilcox, who was carrying brass knuckles on the night in question, was the first aggressor, and that Petitioner acted in self-defense. On April 20, 2009, the jury found Petitioner guilty of the included offense of manslaughter, HRS § 707–702.⁸ On May 8, 2009, following the jury verdict, Respondent gave Petitioner notice that it intended to introduce evidence of Petitioner's past crimes during the sentencing phase of trial.

D.

On May 27, 2009, the sentencing phase of Petitioner's trial began. Respondent introduced evidence that Petitioner had engaged in domestic violence against his wife on October 20, 1994, April 3, 1996, July 13, 1996, and on two other occasions, one sometime in January 2008 and the other on March 9, 2008. Respondent also introduced evidence that Petitioner had allegedly attacked a man named Gregory Balga on October 23, 1993. The jury also heard that Petitioner had committed four other felonies, one of which involved violence toward another person, and that Petitioner had numerous misdemeanors on his criminal record.

1.

Respondent first called Petitioner's wife, Kauilani, as a witness. Kauilani testified that on April 3, 1996, while she and Petitioner were still dating, she attempted to leave the apartment she and Petitioner shared. Respondent asked Kauilani whether Petitioner was holding her back from leaving, to which Kauilani answered that she did not remember because the incident had occurred "back in '96." Respondent inquired whether Kauilani had filed a police report the day after the incident, and Kauilani responded that she had.

Respondent then showed the report to Kauilani. Kauilani indicated that she had filed the report, that she recognized the handwriting as hers, and that her signature was on the bottom of the report. Respondent asked the court for permission to approach Kauilani, which was granted. It is not clear from the record whether Respondent retrieved the report. Respondent asked Kauilani whether the report "refresh[ed] her recollection," to which Kauilani answered in the affirmative.

Respondent asked Kauilani whether Petitioner had grabbed her because he did not want her to leave. Kauilani responded, "It says that he slapped me.... On the paper it says he slapped me." Respondent questioned, "This is your statement, right?" and Kauilani agreed. Respondent asked, "And you wrote it when this incident occurred? You wrote it the day after the incident occurred; is that right?" Kauilani responded that she did not want to "dig back up" that part of her life, but agreed that she had written the statement. Kauilani then testified that she and Respondent had argued, and that Petitioner had slapped her on the face several times, grabbed her neck, threatened to kill her, and locked her in the apartment for about an hour. Petitioner claims that the record does not reflect that Respondent ever retrieved the police report from Kauilani when she was testifying.

2.

Kauilani also testified about another incident of domestic abuse that occurred on July 13, 1996. On that occasion, Petitioner pulled Kauilani's hair, head-butted her, and bit her in the eye. As a result of the incident, Kauilani suffered a black eye, scratches, and injuries to her ears.

3.

Respondent questioned Kauilani about a third incident that allegedly occurred on October 20, 1994, during which Petitioner bit Kauilani and pulled her by the stomach. During Kauilani's testimony, Petitioner's counsel asked whether Kauilani was reading from her police report.

[DEFENSE COUNSEL]: If she has it at the stand and she's testifying from it, I'm going to object because there's a refreshed recollection, and I don't think the

...