# State v. Pokini

> Hawaii Supreme Court · August 29, 1974 · 55 Haw. 640

URL: https://www.frixlaw.com/law-library/cases/9791590

## Case

- **Full name:** STATE OF HAWAII, Plaintiff-Appellee, v. JAMES POKINI, Defendant-Appellant; And STATE OF HAWAII, Plaintiff-Appellee, v. WILLIAM MOORE, Defendant-Appellant
- **Court:** Hawaii Supreme Court
- **Decided:** August 29, 1974
- **Citations:** 55 Haw. 640; 526 P.2d 94; 1974 Haw. LEXIS 141
- **Precedential status:** Published
- **Opinion:** Dissent by Kobayashi
- **Judges:** Richardson, Levinson, Kobayashi, Ogata, Menor
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9791590

## How later opinions describe it (automated extraction)

- recognizing that a court’s views on the merits of a party’s position are “necessarily influential” on the jury
- noting that the right to trial by jury is “considered fundamental to our system of criminal justice.”

## Opinion text

DISSENTING OPINION OF
KOBAYASHI, J.
WITH WHOM RICHARDSON, C.J., JOINS
I dissent.
The appellants allege the following:
I. That the trial court abused its discretion in pre-empting appellants’ voir dire of prospective jurors in the area of pretrial publicity.
II. That the conduct of the trial court toward defense counsel, in the presence of the jury, denied appellants a fair trial.
III. That the communications between the trial judge and the jury during deliberation, without the presence of defendants or defense counsel, denied appellants a fair trial.
IV. That the comment of a bailiff of the court directed at a juror denied appellants a fair trial.
*667 PRE-EMPTION OF APPELLANTS’ VOIR DIRE OF PROSPECTIVE JURORS IN THE AREA OF PRE-TRIAL PUBLICITY
The question herein is whether the trial court abused its discretionary powers in asking questions of prospective jurors to its own satisfaction with regard to the ability of each juror, who had heard of or read about the appellants through the news media or other sources, to render an impartial verdict.
A review of the record reveals that of the twelve jurors who were finally selected to sit on the case, three indicated that they had heard of or read about the appellant Pokini in the newspaper or some other form of news media.
On appellants’ voir dire of the three jurors, prior to their selection as jurors, appellants sought to elicit of the jurors detailed responses of what the jurors heard or read concerning the appellants. The trial court refused to permit the asking of such questions and the replies thereof in the presence of the other prospective jurors. The trial court stated that the appellants may conduct such a voir dire individually of the jurors out of the presence of all the other prospective jurors, if necessary, at a proper time. The trial court then conducted its own voir dire of the three jurors relative to the pre-trial publicity to determine whether or not the said jurors were prejudicially affected by the pre-trial publicity and further to determine whether “there is a necessity to have individual voir dire. ” The record does notreflect “a necessity to have individual voir dire” nor does the record show a demand by the appellants, after the trial court’s voir dire and prior to the exercise of appellants’ peremptory challenges, for an individual voir dire on the ground of necessity. I am of the opinion that the trial court’s voir dire of the three jurors properly covered the question inherent in pre-trial publicity. I do not believe 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).
On the question of the propriety of the procedure followed by the trial court, Rule 24(a) of the Hawaii Rules of Criminal
*668 Procedure (HRCrP) reads:
(a) Examination of Jurors. The court shall permit the parties or their attorneys m conduct the examination of prospective jurors or shall itself conduct the examination. In the latter event the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper.
Rule 24(a) gives the trial judge broad powers and discretion into what may be covered on voir dire. 1 See United States v. Eastwood, 489 F.2d 818 (5th Cir. 1973). Under said Rule 24(a), the trial court has the power to conduct the entire examination of prospective jurors. See United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969); Paschen v. United States, 70 F.2d 491 (7th Cir. 1934); Ungerleider v. United States, 5 F.2d 604 (4th Cir. 1925).
Thus based on the trial court’s authority as provided by HRCrP Rule 24(a) and by HRS § 635-28, prior to amendment by Act 89, SLH 1972, effective July 1, 1973, which read as follows:
§ 635-28 Challenging for cause. In all cases, civil or criminal, either party may challenge any juror drawn for the trial, for cause to be assigned to the presiding judge, who may determine the validity of the objection urged against the competency of the juror (emphasis added),
I am of the opinion that the trial court conducted a proper exercise of its judicial discretion when it took over appellants’ counsel’s voir dire of the three prospective jurors and in limiting thereafter said counsel’s further voir dire of said prospective jurors.
CONDUCT OF COURT TOWARD DEFENSE COUNSEL
Appellants have cited a number of instances in which they allege that the trial court, in the presence of the jury, unnecessarily bemaed the conduct and personal competency of appellants’ counsel to the prejudice of appellants’ case.
In United States v. Porter, 441 F.2d 1204, 1213-15 (8th Cir. *669 1971), a case involving a similar factual situation where the trial court had made various remarks on the conduct of defense counsel, the court stated:
Although on rare occasion discipline of counsel or parties may require unusual action by the court, there should always remain above all else the neutrality of the trial court manifesting to the jury no inkling of one-sidedness or bias. When comments of the trial court exceed the boundaries of fair discipline by official disparagement of counsel or of a litigant’s case, then error must follow. It is charged that this happened here. We have reviewed the record and agree that many of the court’s comments bordered on, and in some instances exceeded, the confines of judicial propriety. (Footnote omitted)
We are fully aware that judges are human and succumb to common frailties such as impatience. But a trial judge must ever be mindful of the important role he occupies in presiding over a trial where valuable rights and liberties of the litigants are at stake. He is duty bound to exercise patience and restraint in his rulings so that the fundamental right of the parties to a fair and imparital [sic] trial is protected and preserved. . . .
Whether or not error by reason of the court’s comments is so prejudicial as to require a new trial is not resolved by a standard of facile application. The rule was stated in a similar context in Fahy v. Connecticut, 375 U.S. 85, 86-87 , 84 S.Ct. 229 , 11 L.Ed.2d 171 (1963), that error is not harmless if there is a “reasonable possibility” that the matter complained of might have contributed to the conviction. . . . Judge Johnsen of this court observed in Homan v. United States, 279 F.2d 767, 771 (8 Cir. 1960), cert. denied 364 U.S. 866 , 81 S.Ct. 110 , 5 L.Ed.2d 88 :
Errors of the trial court which may be prejudicial in a close criminal case, in the sense of being capable in such a situation of possibly affecting the result, can well be without any such rational possibility in a strong case, and thus not entitle the defendant to a *670 reversal of his conviction. The reviewing court must, of course, be able to say with fair assurance that the errors complained of could not, with natural operation in the total setting and proceedings had, be regarded as having possessed any influencing effect.
. . . Jurors are not isolated machines which may be tested for bias by computerized analysis. They each possess human emotions, reactions and intelligence of varying degrees. Experience and study indicate, however, that the composite jury 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. This is not to say that the improper comment will in all cases be ignored. Each record must always speak for itself. . . . (Footnote omitted.)
See also United States v. Carrion, 463 F.2d 704 (9th Cir. 1972).
Upon review of the record and, applying the tests stated in Porter, I am of the opinion that the remarks made by the trial court toward appellants’ counsel in the presence of the jury, although at times unjudiciously expressed, were not prejudicial to warrant a reversal of the conviction.
JUDGE-JURY COMMUNICATION
The appellants contend that the trial court committed reversible error by communicating with the jury without the presence of the appellants and the appellants’ counsel.
The record indicates that, after the case had been submitted to the jury for deliberation, the trial court engaged in the practice of answering written questions from the jury regarding various aspects of the trial. These answers were in writing, and on at least three occasions, the trial court submitted said answers to the jury without reconvening the court, to allow the appellants and their counsel to be present and to participate in the resolution of the said answers.
The written answers of the court consisted primarily of a verbatim re-submission of prior instructions given to the jury, *671 and an admonition by the court as to the use of a dictionary which the court was informed was in the deliberating room.
The record further indicates that at the time the trial judge decided to submit the written responses to one set of the questions that was received from the jurors, he had the court clerk contact all of the attorneys involved in the case, to explain that they would have an opportunity to object at a later date. The objections were duly made as to each instruction and as to the said procedure followed by the court.
In State v. Irebaria, 55 Haw. 353, 358 , 519 P.2d 1246, 1250 (1974), this court stated:
First, all of the authorities are in accord that any response by the trial court to the jury must be in open court with all parties and their counsel present. (Emphasis added.)
Furthermore, HRCrP Rule 30 reads in relevant part, as follows:
(d) Oral Comment. The court shall in no case orally qualify, modify or explain to the jury any instruction whether settled pursuant to subdivision (b) or pursuant to subdivision (c) of this rule. If, during deliberation on its verdict the jury shall request further instructions, the court may further instruct the jury in accordance with instructions prepared by the court and reduced to ivriting, first submitting the same to counsel. (Emphasis added.)
In addition, HRS § 635-43 (repealed by Act 89, SLH 1972, effective July 1, 1973) provides in relevant part:
§ 635-43 Charge to be in writing except when. Unless the parties to the cause on trial either in person or through their attorneys, file therein their written consent that the court may charge the jury orally, the court shall . . . reduce to writing and read its charge to the jury. The manuscript of the charge, signed by the court, shall be filed in the cause, and shall constitute a part of the record thereof. Whenever, and as often as the court departs from such duty, either party to the suit shall be entitled, as a matter of right, to demand and have granted a new trial of the cause.
In 1938, this court in The Great Wilno v. Fernandez, 34 *672 Haw. 603, 606 , in construing Sec. 3745, R.L.H. 1935, the predecessor of HRS § 635-43, stated:
We are not concerned with the wisdom of the statute. . . . The statute, by prescribing what the consequence of a departure by the court from its duty shall be, makes it mandatory [that a new trial be granted].
In my opinion HRS § 635-43 is procedural in nature and in conflict with said Rule 30.1 would therefore hold that Rule 30 pre-empts HRS § 635-43. 2 And notwithstandingIrebaria, for the reasons expressed hereinafter concluding that though the trial court erred the error is not a reversible error, I would overrule The Great Wilno v. Fernandez, supra.
There is little doubt that the communications between the trial court and the jury, during deliberations by the jury, without the presence of appellants’ counsel and appellants, was error. Certain jurisdictions have ruled that such a communication compels a reversal of defendant’s conviction. See Arrington v. Robertson, 114 F.2d 821 (3d Cir. 1940); Parfet v. Kansas City Life Insurance Co., 128 F.2d 361 (10th Cir. 1942), cert. denied, 317 U.S. 654 (1942); Breslin v. National Surety Co., 114 F.2d 65 (3d Cir. 1930); Shields v. United States, 273 U.S. 583 (1927).
An examination of these cases reveals, however, that the communications complained of in these instances were so unquestionably prejudicial, that the courts were prompted to make broad and generalized rulings with regard to all such communications.
The more recent cases on this issue have taken a different approach. The trend is for the appellate courts to treat the error as a “harmless error” 3 if it cannot be shown that prejudice arose from the communication. See United States v. Jackson, 470 F.2d 684 (5th Cir. 1972); United States v. Schor, 418 F.2d 26 (2d Cir. 1969); Sultan v. United States, 249 F.2d 385 (5th Cir. 1957); United States v. Titus, 221 F.2d 571 (2d Cir. 1955).
*673 I am of the opinion that the holdings in the recent cases are sound.
After a review of the record, I am of the opinion that the appellants have not been prejudiced by the trial court’s ex parte communication with the jury. The instructions and communications alleged as error are properly drafted and constitute mainly a verbatim restatement of prior instructions.
I would therefore hold that the ex parte communication by the court, under the record of this case, was not a reversible error.
BAILIFF-JUROR COMMUNICATIONS
Finally, appellants allege that they were denied a fair trial as a result of a comment made by the bailiff of the court to one of the jurors.
The record shows that the bailiff who had charge of the jury made the following comment to one of the jurors as the jury suspended their deliberation of the verdict to go to lunch: “If you would put down your knitting, you might be able to do your job.”
As a result of this remark, the juror (Mrs. Baugh) sent to the court the following note:
Message to the court. I have been accused by the bailiff of not doing my job properly. Therefore, I ask to be excused from jury duty.
The trial court denied the juror’s request to be excused, and further, denied a motion by the appellants for mistrial based in part on the bailiff’s remark to the juror.
Subsequent to the return of the verdict by the jury and after all the jurors had been polled affirming their verdict, the trial court excused all the jurors with the exception of juror Baugh, whom the court asked to remain.
Over appellants’ objection, the court called juror Baugh to the witness stand and placed her under oath. After some preliminary questions, the court asked the following question of juror Baugh:
*674 Q. Mrs. Baugh, the Court would like to at this time inquire whether anything that is contained — the subject matter of what is contained in this message, did it in any way prevent you from being able to continue as a fair and impartial juror in this case?
A. No. It did not.
The court then afforded each counsel, both the prosecution and the appellants, the opportunity to question the juror on his own.
In Remmer v. United States, 347 U.S. 227, 229 (1954), the court stated:
In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. (Citations omitted.)
In the instant case the trial court, in the presence of all the parties, conducted a proceeding to determine whether the said communication by the bailiff was harmful to appellants and concluded it was not harmful.
I am of the opinion that, though the bailiff’s comment to the juror was presumptively prejudicial, the appellants’ right to a fair trial was not compromised. And though Remmer states that the “burden rests heavily upon the Government to establish . . . that such contact . . . was harmless to the defendant” Remmer does not preclude the trial court from conducting its own inquiry to determine whether or not appellants were prejudiced by the bailiff’s contact with the juror. And since the record on the hearing of juror Baugh shows that the appellants were not prejudiced the presumption of prejudice no longer exists, notwithstanding the initiation of the inquiry at the hearing by the trial court rather than the prosecution. I would therefore hold that the trial court’s refusal *675 to excuse the juror and the court’s denial of the motion for mistrial do not constitute reversible errors.
Thus, I would affirm.
HRCrP Rule 24(a) is a copy of Rule 24(a) of the Federal Rules of Criminal Procedure with minor deviations. Thus, federal case law is helpful and appropriate.
Hawaii Const, art. V, § 6.
HRCrP Rule 52 reads:
(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9791590. Public record. Not legal advice.