State v. Pokini

CONCURRING OPINION OF

MENOR, J.

I concur in the reversal of the defendants’ convictions and sentences in the court below, and join in the order of remand for new trial.

I

I am in accord with Part III of Mr. Justice Levinson’s opinion and agree with him that the trial judge’s communications with the jury in the absence of the defendants and their counsel constituted reversible error. 1

II

I also agree with my brother Justice that the conduct of the *662 voir dire examination of prospective jurors in the area of pre-trial publicity was inherently defective. My reasons, however, are not altogether the same, for I am not entirely convinced that the nature and extent of the pre-trial publicity in this case warrants the application of Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968), cert. denied 400 U.S. 1022 (1971).

I am satisfied that the voir dire examination of the prospective jurors, viewed in its entirety, was adequate for the purpose of ascertaining whether or not a prospective juror was qualified to serve. But in focusing the scope of its inquiry solely upon whether or not the prospective juror was qualified to sit in judgment, the trial court completely overlooked, and consequently ignored, the other equally basic function of the voir dire examination. In Choy v. Otaguro, 32 Haw. 543 (1932) this court pointed out that the purpose of the voir dire is not simply to aid the presiding judge in determining whether a juror should be excused for cause but also to enable a party to exercise his right of peremptory challenge intelligently. Accord, Carr v. Kinney, 41 Haw. 166 (1955). To accomplish this latter purpose, a party must be afforded ample opportunity, albeit within reasonable limits, to inquire into those matters which might have a tendency to unduly influence a juror in the discharge of his duties but whose answers on the voir dire may not be sufficient to support a challenge for cause.

The right to challenge peremptorily is deeply ingrained in American jurisprudence. Swain v. Alabama, 380 U.S. 202, 218-219 (1965). In Hawaii it is guaranteed a criminal defendant by rule and by statute. H.R.Cr.P., Rule 24(b); HRS § 635-29 (Supp. 1973). It is “one of the most important rights secured to the accused,” Pointer v. United States, 151 U.S. 396, 408 (1894), and “[t]he denial or impairment of the right is reversible error without a showing of prejudice.” Swain v. Alabama, supra at 219 .

The voir dire examination of Juror Takara is particularly illustrative of the unduly restrictive inquiry allowed defense counsel by the trial judge. 2 It is also a clear indication of the *663 trial judge’s erroneous concept of the functions of the voir dire examination. The defendants should have been permitted to inquire into the nature and extent of the prospective juror’s exposure to pre-trial publicity, if only to enable them to exercise their peremptory challenges intelligently.

The trial judge undoubtedly was properly concerned about the prejudicial effect these disclosures might have had upon the other prospective jurors. This problem could have been obviated by individual voir dire outside of the presence of the other jurors, as was done in the case of prospective juror Pekelo. Defense counsel’s requests, however, for that type of procedure failed to meet with the trial court’s approval.

The refusal of the trial judge to allow defense counsel to inquire into the nature and extent of the prospective jurors’ exposure to pre-trial publicity was a serious impairment of the defendants’ right to exercise their peremptory challenges intelligently. This constituted reversible error. Cf. Swain v. Alabama, supra; Lewis v. United States, 146 U.S. 370 (1892).

Where external considerations, such as adverse pre-trial publicity, may give rise to a real possibility of unconscious bias, the trial judge should be mindful of the admonition of the court in State v. Van Duyne, 43 N.J. 369, 385-6 , 204 A.2d 841, 850 (1964), cert. denied 380 U.S. 987 (1965):

[The defendant expresses ] grave doubt that jurors who are subjected to pretrial publicity seriously adverse to a defendant’s interests can efface it altogether from their conscious and unconscious minds, no matter how hard they try to do so. The law must be sympathetic to that viewpoint, and must make the sympathy meaningful in a *664 practical world of public trials. This can be done only by requiring trial judges to analyze and evaluate carefully the words, attitude and demeanor of the juror when he asserts an impartial mind and one which is free from prejudice regardless of the improper newspaper publicity. If, in spite of the disavowal, the trial court has any lingering doubt about the juror’s capacity for impartiality, he should be excused from service. (Emphasis added)

III

I agree with Mr. Justice Levinson that it is essential to a fair trial that the presiding judge endeavor at all times to maintain an attitude and appearance of fairness and impartiality. Where I part company with my brother Justice is the degree to which the trial judge here has been subjected to criticism for his alleged misconduct towards defense counsel and the conclusion drawn that such conduct might have infected the verdicts.

While not offered as a justification for the trial judge’s conduct, I would suggest that a fair reading of the record will reveal that it was not all a one-way street. 3 I would simply *665 remind the trial court that dignity and orderly procedure in the courtroom can usually be maintained by firmness, fairly and judiciously asserted. Conduct extraneous to the actual determination of the guilt or innocence of the accused oftentimes obscures the personal integrity and inherent fairness and impartiality of the trial judge. When such conduct has the further effect of undoing the results of an otherwise ably and competently regulated trial, justice must invariably suffer thereby. This is not to suggest, however, that overzealousness of counsel, which exceeds the bounds of propriety, should be lightly regarded.

Having viewed the record in its entirety, I am not satisfied that it can reasonably be said that the conduct complained of here infected the verdicts. In our appellate review of cases tried before a jury we should not so easily assume that its members stand continually ready to violate their oaths as jurors on the slightest provocation. State v. Hashimoto, 46 Haw. 183 , 377 P.2d 728 (1962).

Experience and study indicate .. . that the composite jury *666 possesses far more intelligence than most judges and lawyers credit to it. The ability to fairly weigh the evidence, to discard irrelevancies, to assess equity and to ignore prejudicial comment of lawyers and judges alike is the underlying strength of the jury system. United States v. Porter, 441 F.2d 1204, 1215 (8th Cir. 1971).

Finally, I would suggest that the following reminder by Mr. Justice Frankfurter in his concurring opinion in Johnson v. United States, 318 U.S. 189, 202 (1943), is always apropos on appellate review:

In reviewing criminal cases, it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and of procedure. To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.

For the reasons stated in Parts I and II of this opinion, however, I would reverse.

In fairness to the trial judge it should be pointed out that his primary motivation was to spare the jury, the defendants, and counsel the inconvenience of having to reconvene each time the jury posed a question. Mere inconvenience, however, should never be a prime consideration in a criminal trial.

Portion of voir dire examination of Juror Takara:

MR. PYUN: Mr. Takara, do you remember what you read about Mr. Pokini?

*663 PROSPECTIVE JUROR TAKARA: Generally, sir.

MR. PYUN: Can you tell me what you read?

THE COURT: The Court will disallow the question.

MR. PYUN: Well, I'dlike to go into that area; the Court will disallow it, so I might as well sit down.

THE COURT: The Court has already inquired of the juror, and the juror has indicated that he has formed no opinion; nor would anything that he has read in the past influence his decision; and therefore, he is qualified.

Very well. Mr. Takara has been passed for cause insofar as the Court is concerned; and so long as you have no other questions, Mr. Pyun, the Court will proceed.

The following are excerpts from the record containing some of the so-called “vituperative” outbursts of the trial judge which were taken out of context:

THE COURT: Mr. Sherwood, just present your opening statement. This is argument now.

MR. SHERWOOD: This is my opening statement, your Honor.

THE COURT: It’s not an opening statement. You are now dwelling on the same thing that the Prosecutor dwells on regarding law, which was objected to, and which was sustained.

MR. PYUN: Your Honor, I will object to the Court’s remarks relating to my objections. Mr. Grean, when I objected, said, “The law is” — and I objected at that point. And I’d like to make it clear that that is a clear —

THE COURT: Mr. Pyun, if you wish to — every time you speak up against the Court when the Court has said something, the Court will have a comment against you, Mr. Pyun. I want you to know that, Mr. Pyun.

MR. PYUN: Very well, your Honor. You have your right to do that. But I would like the Court to know that I feel compelled to stand up and set the record straight every time the Court chooses to twist my words and use it against my client, or against the defense in this case.

THE COURT: Mr. Pyun, the Court is not twisting your words. You objected because the Prosecutor was arguing law. The court sustained your objection and requested the Prosecutor not to argue law, just to present a bird’s-eye view of what he intends to present.

*665 And at this time, Mr. Sherwood, that is not what you’re doing. So please stick to the opening statement.

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THE COURT: All right. Present your opening statement.

MR. SHERWOOD: Your Honor, may I object, for the record, to the Court continually interrupting me? Mr. Grean is a competent and aggressive Prosecutor, your Honor. He has not stood up and objected. The Court is supposed to be neutral, your Honor. It’s hard enough being a defense attorney with a competent Prosecutor in the case; and I object to the Court’s constant interruptions, your Honor.

THE COURT: When you conduct yours elf in a competent manner, the Court will not interrupt you, Mr. Sherwood. Please proceed competently, within the terms of an opening statement.

MR. SHERWOOD: Your Honor, I would like to object to those remarks. And again I point out that the Court is acting sua sponte. Mr. Grean represents the State in this case, your Honor. He can object if he feels there is something objectionable. And if he doesn’t object, I assume that there is nothing objectionable.

THE COURT: Mr. Sherwood, the Court would like to have you understand that the Court is not simply bound by what lawyers do in court. The Court can, on its own motion, move. And please conduct yourself in a proper manner, as a lawyer, and stick to the purpose for which you now have the floor; and that is, to present an opening statement. No arguments on the law, Mr. Sherwood.