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State of Hawai'i v Keohokapu

Case No. SCWC-29937 (HI S.Ct., May. 15, 2012)

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), 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), 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), 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.








 

 

Judge(s): Simeon R. Acoba, Jr.
Jurisdiction: Hawaii Supreme Court
Related Categories: Constitutional Law
 
Supreme Court Judge(s)
Simeon Acoba, Jr.
James Duffy, Jr.
Sabrina McKenna
Paula Nakayama
Mark Recktenwald

 
Appellant Lawyer(s) Appellant Law Firm(s)
James Anderson Office of the City and County of Honolulu Prosecuting Attorney

 
Appellee Lawyer(s) Appellee Law Firm(s)
Cynthia Kagiwada

 

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is dependent on circumstances in the future and is discretionary under section 706-606.5 shall serve at least the applicable although balga acknowledged that the signature and had occurred “back in ‘96.” respondent inquired whether kauilani prevent petitioner from being paroled for as long as possible. public to subject [petitioner] to an extended term of in any event, even assuming there was no forfeiture, and punishment”) (emphasis in original). as such, it was error of petitioner’s home and found a pipe used for ingesting crystal both in cases in which a timely objection to a jury instruction was made and the ramos court held that even if the instruction were accurate, about the crime. prejudice is rarely presumed because and remand to the court for proceedings consistent with this been reported in the media that wilcox had intervened in an got sober not even a year ago.” he also testified that he could information contained therein[;] . . . signed the statement, statement himself, indicating that he ‘once had knowledge’ of the ruling on this issue, it is considered here in order to confirm and clarify life without parole will necessarily undercut the state’s argument regarding sentence a person who satisfies the criteria for any of the settled that an accused has a fundamental right to be present at sentence or about the possibility that a defendant’s sentence instructions of the court. see state v. smith, 91 hawai#i 450,34 were unrelated to the testimony that was erroneously admitted or hawai#i 138, 149, 931 p.2d 580, 591 (1997) (“[t]he close proximity the accuracy of the record: ***for publication in west’s hawai#i reports and pacific reporter*** doubt, that the murder was “especially heinous, atrocious, prejudice, he appears to be arguing that both “presumed” and espiritu, 117 hawai#i 127, 137, 176 p.3d 885, 895 (2008). saturated with prejudicial and inflammatory media publicity (emphases added.) b. ***for publication in west’s hawai#i reports and pacific reporter*** remembered the incident on july 13, or at least “the part with porter, unlike in this case, there were additional factors that risk of jury speculation that arises from instructing the jury wilcox intervened in an argument between [petitioner] and that the hawai#i paroling authority may or may not take in had injured the complaining witness’s mouth, jaw area, and chin the jury during the sentencing phase concerning the possibility agencies are unnecessary, and should be avoided. the california23 which contained minutes generated by the hawai#i paroling statement (publicity statement): even if the instruction was technically correct. the jury should be told about parole so that it can make an informed establishes that, in certain circumstances, a curative paragraphs (2), (3), and (4) shall be determined by the imprisonment. (1) hearings to determine the grounds for concluding that the court identified and dismissed those jurors 2. whether the ica gravely erred by determining that either the court rejected petitioner’s challenge for cause. judgment of acquittal on the ground that respondent did not prove knowledge but now has insufficient recollection to enable lastly, petitioner argues that the ica erred when it wilcox came out of the club, approached the car, and said discretion, then sentence the defendant to an extended term of referred to was this case. ***for publication in west’s hawai#i reports and pacific reporter*** ***for publication in west’s hawai#i reports and pacific reporter*** prejudice “only in ‘extreme situations.’” 100 hawai#i at 316, 60 the car as kauilani attempted to leave. in light of this or more of the other criteria listed therein. the sentencing jury to decide between a sentence that includes parole and one that does not, that he did not remember making the report because he had “been (2) murder in the second degree is a felony for which the other five instructions given by the court with respect to citation where the witness “[made the citation] when the matter felonies committed at different times when he was eighteen prejudicial because five of the “eight or nine” jurors who (...continued)6 prejudiced petitioner. 25 explained that there are three factors to consider in determining second degree to life without the possibility of parole under hrs april 3, 1996 domestic violence incident was inadmissible. the question before the jury was whether petitioner needed to be subjected to the second degree, promoting a dangerous drug in the third degree, and kauilani’s testimony concerning the incident of domestic abuse on consider an enhanced sentence. the jury shall then conduct defense was self-defense, and because the good samaritan statement on the part of the trial court referring to the power would not have been admissible under the exception of past home, officer wong saw a female exiting the house, entering a a. the statutory scheme contemplates that the court and an hour. petitioner claims that the record does not reflect that not harmless beyond a reasonable doubt. “past recollection recorded” exceptions to the hearsay rule; and objection to the publicity statement, petitioner was not petitioner’s counsel renewed his objection. the court permitted the statement has been made for the express purpose of calling black eye, scratches, and injuries to her ears. the paroling authority in its discretion may in any of the jury instruction errors contributed to the jury verdict on court. id. (b) in instructing the jury on parole and the role of the hawai#i parole. likewise, there is no reason to so instruct the jury in the language of these statutes makes clear that jury is petitioner was actually prejudiced by the statement that wilcox authority and exhibit 10a which showed parole violations and federal constitutional right to inform the sentencing jury about his or her terms.33 hearing. death. nor, as petitioner suggests, did the court put its reasonable possibility that [the] error might have contributed” ***for publication in west’s hawai#i reports and pacific reporter*** to media exposure were excused for cause. that allegedly occurred on october 20, 1994, during which the governor could also commute a sentence of death. id. at 438- 2008), provides that if the jury (the trier of fact) finds the27 as to petitioner’s first argument, the court apparently increase the sentence of a person convicted of murder in the testimony, testimony alluding to only one other incident, dating of a felony may be subject to an extended term of imprisonment offense of manslaughter from twenty years of incarceration to decision). however, as explained infra, since the jury here does not however, that petitioner did not object when the court read the nature, which petitioner’s counsel claimed were simply “not prospective jurors petitioner could have objected. he did not. statement to the jury panels. however, how the fact that those jurors remembered the press 2. your deliberations of the facts at issue in this hearing. contained inflammatory, prejudicial information that was not ***for publication in west’s hawai#i reports and pacific reporter*** where their substantial rights are affected; (b) petitioner’s kauilani testified that her memory was not awakened by the 3. additionally, respondent introduced evidence that on made by counsel were not evidence. id. similarly, in state v. and 706-656 (1996). on june 23, 2008, respondent gave petitioner5 mandatory minimum term of imprisonment. indeterminate term of imprisonment of [twenty] years.” the13 disagreed with petitioner’s contention that the entire jury pool handwriting was on the report. balga replied, “i don’t remember and drug use cast doubt on the reliability of his statement, and is necessary for the protection of the public to subject the judgment of conviction and sentence of the court in part as to appear to hold, the instruction here would unnecessarily court fact, the suggestion in okumura that the defendants had committed the same matters, affirm the said judgment in all other respects, the jury must consider the maximum length of the two potential probability that the prisoner concerned will live and remain 26657), which held that statutes governing hawaii's extended ***for publication in west’s hawai#i reports and pacific reporter*** error because, as the court recognized, the potential actions of ‘intrinsic-extrinsic’ paradigm from the implication’s of blakely”), with conscienceless or pitiless crime which is unnecessarily entirely forgotten the exact situation in which the was fresh in his memory, in fact contemporaneously, and [where signature, and the date and time on the document, but indicated calderon, 138 f.3d 787, 795 (9th cir. 1998)) (emphasis added). because the report was not shown to have been made by the witness petitioner’s objections. however, petitioner has not appealed the propriety sentence shall be imposed. pursuant to the language of hrs § the offense charged. the court also expressed no opinion as to evidence over petitioner’s objection. petitioner does not appear petitioner is wrong to imply that he objected or that his failure presumed or actual. prejudice is presumed when the record petitioner’s trial commenced on april 6, 2009. no parole shall be granted unless it appears to the it was necessary for the protection of the public to subject the jurors, even if the court has not concluded that there is substantial petitioner challenged for cause the remaining jurors parole means a conditional release of a prisoner who a judge could impose based solely on the facts reflected in the operative facts under hrs § 706-662. see state v. prosser, 186 to “preempt” the executive’s authority by imposing a sentence the instant case. apprendi is satisfied as long as the jury mistakenly fails to recommend mercy, the error may be corrected harmless. the jury may have decided that it was necessary to a. although the ica recognized the presumption that juries adhere to option of parole by the paroling authority in order that unusual extenuating porter is distinguishable from this case. the sixth and she testified that she and respondent had argued on april 3, prejudice, it would seem incorrect for the ica to infer that the court ***for publication in west’s hawai#i reports and pacific reporter*** parole? (your answer to this question must be unanimous.) we conclude that the district court erred [in allowing jury to hear certain hrs § 706-661 (supp. 2008), referenced in § 706-662, provides:6 § 706-657. enhanced sentence for second degree murder length of imprisonment for an extended term sentence under you this is a part of my life that i tried to forget. and yes, a record or memorandum is admissible as an exception to the 84 (1990) (holding that the cumulative weight of errors was january 2008 and march 2008; and an incident on june 9, 2008, in finds the relevant facts. under hrs § 706-661, the jury does not ***for publication in west’s hawai#i reports and pacific reporter*** “described” as a good samaritan. these statements do not evince that the phrase “especially heinous, atrocious, or cruel, defendant will ever be paroled is pure speculation since parole but must “now ha[ve] insufficient recollection to enable the not remember an officer being in his apartment on the night of 58 pauline, 100 hawai#i at 316, 60 p.3d at 366 (quoting ainsworth, petitioner also maintains that the ica erred in holding 5. petitioner was a persistent offender whose extended incarceration the governor’s commutation power. in ramos, the instruction at claims that “there is no record as to the discussion or but not so saturating to warrant a presumption of prejudice. keohokapu, 2011 been described as a good samaritan. petitioner does not explain, the indeterminate nature of the terms in jury instructions nos. 3, 5, 6 and 7 extend the maximum length of [petitioner’s] imprisonment for the v. california, 549 u.s. 270 (2007), except for prior convictions, multiple manslaughter if: petitioner for robbery in the second degree, and that petitioner respondent also called gregory balga to testify about degree murder shall be sentenced to life imprisonment with doubt[.]”) (citation omitted) (internal brackets in original). decision would have on both an indeterminate twenty-year sentence it appears from officer wong’s testimony that the homicide case9 been admitted. id. nevertheless, the ica concluded that longer in force. (1) the defendant is a persistent offender in that the when a person has been sentenced to a term of october 1994, and balga’s testimony concerning the incident in imprisonment. served part of the term for which he was sentenced to supreme court in people v. ramos, 689 p.2d 430, 441-44 (cal. upstairs and he forced [sic] way -- his way into the house evidence testimony under the “present recollection refreshed” and kauilani did not sign her july 13, 1996 statement under penalty (2) in a prosecution for murder or attempted murder in the “affirmatively” appear from the record that the instructions were ***for publication in west’s hawai#i reports and pacific reporter*** (continued...) confuse the jury by inviting it to consider irrelevant matters, 4, concerning parole. petitioner also objected to exhibit 6,11 “to understand the source of any of the criminal . . . problems [petitioner] admitting evidence, a defendant’s conviction will not be jury instructions nos. 3, 5, 6, and 7 and in special interrogatory no. 2 were prejudice. keohokapu, 2011 wl 4426889 at *2. the ica also club komo mai in kaneohe [petitioner] glenn keohokapu, jr., formulation of the publicity statement violated his right to be imprisonment, which would extend the maximum length of his drug in the third degree, and unlawful use of drug paraphernalia, who exhibited bias by conducting a thorough voir dire. whether she was testifying from memory, she responded, “i told imposed which has not been set aside, reversed, or vacated. follows: cruel, manifesting exceptional depravity” means a as past recollection recorded where the witness, “wrote the prepare an application for the governor to commute the shall not impose an extended term unless the ground therefor disregard parole was rendered confusing and inconsistent with the testified that she and respondent had argued, and that petitioner defendant who has been convicted of a felony may be subject particular case and at any time impose a special condition juries should not be told about parole in general, when a statute requires the jury that if it mistakenly convicts an innocent man, or of hawai#i (respondent) charged petitioner with murder in the 39 responsible only for determining whether the prosecution has incarcerate petitioner for a longer term because it sought to the paroling authority while at the same time admonishing the recollection recorded. therefore, the ica did not err on account on this point].” id. at 175 (o’connor, j., concurring) (citation omitted) walsh, 125 hawai#i 271, 285, 260 p.3d 350, 364 (2011) (citation jhun, 83 hawai#i 472, 478, 927 p.2d 1355, 1361 (1996) (brackets omitted). has been established at a hearing after the conviction of the jury found, pursuant to special interrogatory no. witnesses stated that they saw petitioner with a metal object or omitted). the jury’s first finding was that petitioner committed following respondent’s evidence, petitioner moved for a contends that (1) the ica never addressed the issue of whether murder in the second degree in this state. as used in this [f]or the offense of manslaughter, defendant glenn defendant has previously been convicted of two or more the ica’s conclusion. be told that finding that the murder was especially heinous, criteria set forth in hrs § 706-661 to an extended term, “[w]hen ordering an assuming arguendo that petitioner did not forfeit his boyfriend, who i used to live with for one and a half years. id. at 35, 986 p.2d at 322 (emphases added). and that she wrote the report the day following the incident. unlawful use of drug paraphernalia. it appears that kauilani’s and balga’s (emphasis added.) undermine the statutory scheme that entrusts decisions concerning brackets, and ellipsis in original). commenting on fre 803(5), you must not discuss or consider the subject of any action determine or recommend the length of the sentence, but “finds the facts that it could not discuss or consider in its deliberations the who indicated a familiarity with media reports about the incident wl 4426889 (haw. app. sept. 22, 2011). however, we vacate demonstrates that the community where the trial was held was 33 have reasoned that the instruction still allows the jury to counsel objected, arguing that foundation was lacking for stated, and [the juror’s] opinion . . . was entirely equivocal.” statement was made shortly after the incident, balga also stated persons convicted of first degree murder or first degree impose an extended term sentence. hrs § 602-664; hrs § 602-661. porter, 986 f.2d 1014, 1016 (6th cir. 1993), supports its consideration of whether an extended term sentence was necessary the commentary to hre rule 802.1 provides in pertinent part, (and hawai#i has no death penalty) and this case does not involve petitioner’s ***for publication in west’s hawai#i reports and pacific reporter*** argument is whether there was a barrage of inflammatory to object had no effect. petitioner’s failure to object matters hawai#i 383, 394, 894 p.2d 80, 91 (1995). “if it does not rise to hrs § 706-657 provides:22 admission of kauilani’s and balga’s testimony and in the jury application: admissible at trial was that wilcox had been described as a good a witness. kauilani testified that on april 3, 1996, while she charged had a greater potential for prejudice than the court’s the prisoner shall become eligible for parole. criminal history records unit of the hawai#i criminal justice data the harsher sentence for fear that the defendant will not serve in club komo kai. wilcox was described in the media as a involved in attempting to predict what a particular defendant raised on appeal; (c) it would appear disingenuous to require to a jury, like the failure to submit an element on an offense to the jury, is circuit explained that the district court made a “very careful” publicity with respect to this case[,] and made the following paroling authority. this would be improper because it would recorded recollection, see state v. altergott, 57 h. 492, 559 the other factor petitioner’s jury had to find was that petitioner29 paroled in the future was plainly not relevant to the jury’s the ica, however, concluded that jury instructions no. entity. see ramos, 689 p.2d at 443. even assuming the jury had /s/ james e. duffy, jr. honorable alexa d.m. fujise, and the honorable lisa m. ginoza. for a class a felony. hrs § 706-661. to determine whether an possibility of parole under section 706-656 if the court kauilani indicated that she had filed the report, that she doubt any fact that increases the penalty for a crime beyond the birth, and phone number were on the report. petitioner renewed have objected. it would be inconsistent to conclude that jury instructions also bloss, 3 haw. app. at 278, 649 p.2d at 1179 (concluding that keohokapu, jr., may be subject to a maximum indeterminate adopted the then-majority view and explaining that any fact that involved in alcohol and drugs for a long time . . . [and] just exhibit unless offered by an adverse party. harmless beyond a reasonable doubt and to disregard those errors that are (1) for murder in the second degree-life without the jury, the court must determine whether the influences rise to the center. ueno identified respondent’s exhibit 10 as petitioner’s twenty years without the possibility of suspension of sentence or again, the felonies were burglary in the first degree, robbery in36 influence on the jury. id. and at the same time would not direct the jury’s attention to the about it that the incident had been in the news and that some when the court read the publicity statement to the testimony, it is unlikely that the october 1994 incident had much harmless beyond a reasonable doubt.” state v. nichols, 111 hawai#i 327, 335, defines plain error as, “plain errors or defects affecting substantial rights fingerprint examiner judy tamashiro, who compared petitioner’s hawai#i at 390, 394-96, 894 p.2d at 87, 91-93. the defendants in petitioner left the club and went outside to his car. kauilani its task seriously because it believes mistakes in sentencing can the correctness of the media reports. finally, as discussed § 706-664. procedure for imposing extended terms of under section 706-606.5 shall serve at least the applicable robin gregory also were at the club. at some point, petitioner manifesting exceptional depravity” provided adequate notice of imprisonment for the offense of manslaughter from twenty years of that ‘[n]o attempt is made in the exception to spell out the washington, 542 u.s. 296, 303-04 (2004). other grounds by maugaotega, 115 hawai#i at 442-43, 168 p.3d at 572-73; state the foundation that balga made his statement when the matter was p.2d 306 (1999). janto described the bifurcated proceedings that ***for publication in west’s hawai#i reports and pacific reporter*** 2. penalty at least in part on the premise that the defendant will be dangerous of prejudice arises. williamson, 72 haw. at 102, 807 p.2d at 10a, showing petitioner’s twenty convictions was admitted into that she did not want to “dig back up” that part of her life, but appeals (ica) filed pursuant to its september 22, 2011 summary apply to any case that requires resentencing because of the it was inconsistent with the california constitution. id. would “extend the maximum length of [petitioner’s] imprisonment wilcox had consumed alcohol. the only “non-factual” statement the witness to testify fully and accurately, shown to have break the windshield with his fist. 36 defendant within thirty days of the defendant’s arraignment. particular defendant may be like in the future when parole or the improperly admitted testimony consisted of express any confidence in the accuracy of the statement of the director of the department of public safety hold a court instructions, it held that the prejudice to the defendant jury instruction no. 3 provided: terms in an appropriate manner.29 the case of a motion for extended term for the offense of murder in the second jurors, it does not appear that petitioner was prejudiced. in although petitioner suggests that the ica erred in respondent called norma ueno, supervisor of the kauilani obtained a tro because of incidents of domestic abuse in in general, instructions that apprise the jury of the § 706-662. criteria for extended terms of imprisonment. a prosecution retrieved the police report, the testimony was here, a presumption that the jury followed the court that there had been news reports about wilcox’s peaceable head-butting her. the tro was granted and remained in effect the parole minutes of the hawai#i paroling authority regarding those the conduct prohibited. peralto did not say that the jury should possibility of parole; term than the statutory maximum is necessary for the protection 1994, april 3, 1996, july 13, 1996, and on two other occasions, the court conducted individualized voir dire of those (2) for a class a felony-indeterminate life term of prejudice, then it must interrogate the jury. id. however, williamson does in state v. sua, 92 hawai#i 61, 75, 987 p.2d 959, 973 47 the news cast],” juror 16 responded that he recalled that aspect (...continued)28 concerning a matter about which the witness once had of perjury, the statement satisfies the criteria for the past proven beyond a reasonable doubt the facts necessary for the phase, petitioner argues that the ica erred in (1) holding that dispose of cocaine and cash, but, at the defendant’s trial, 1. extent, the october 6, 2011 judgment of the intermediate court of by others.” id.25 3. whether the ica gravely erred by determining that no that the prisoner will not be considered for parole unless (...continued)16 jury instruction no. 2 stated:11 error doctrine does apply to errors implicating sentencing. see state v. kauilani’s car with his fist and break the windshield wiper of an extended sentence. petitioner responded that it was important for the jury reversal unless it affirmatively appears from the record as a we hold in this case that the process by which a jury attacked a man named gregory balga on october 23, 1993. the jury statement because she was confused and on drugs at the time the the jury instructions, as it was here, it is reasonable to infer not object. might indicate.’” keohokapu, 2011 wl 4426889 at *4. (footnote, “aggravating factors,” and that, during the sentencing phase, the kauilani’s memory was not refreshed with respect to these 45 yoshida testified that on december 17, 1994, he arrested erroneously admitted into evidence. keohokapu, 2011 wl 4426889, 44. in addition to holding that the instruction was inaccurate, 1996, that petitioner had slapped her on the face several times, that the statement was in her writing, contained her signature, but no later than six months after commitment to the custody the public, however, the jury should not be instructed about the 16 after the incident occurred; is that right?” kauilani responded on the meaning of parole are proper. one rationale is that a sentencing jury you must not discuss or consider the subject of any 22 public safety and the hawai#i paroling authority to prepare the hawaii supreme court issued an opinion in state v. sufficient foundation for past recollection recorded. and under (brackets and ellipsis in original). justice o’connor also stated that in a petitioner suggests, that a defendant has a right to be present 1, that respondent proved beyond a reasonable doubt that and allowed respondent to read the following to the jury from the acoba, duffy, and mckenna, jj.; with recktenwald, c.j., with respect to petitioner’s contention that the court ***for publication in west’s hawai#i reports and pacific reporter*** objection. respondent asked kauilani whether she remembered error occurred when the trial court instructed the jury on that kauilani’s july 13, 1996 statement was admissible as past ***for publication in west’s hawai#i reports and pacific reporter*** be “dropped,” and that she believed in april that the tro was no james m. anderson, deputy testified that on december 6, 2002, he executed a search warrant says he slapped me.” respondent questioned, “this is your caused by improper comments on the part of the prosecution were of the jurors who sat on the jury exhibited any partiality or incidents involving kauilani alone were not enough to find that in the future, [because] the fact that the alternative sentence to death is violence. kauilani related that she had written the report the ***for publication in west’s hawai#i reports and pacific reporter*** 2 and 4 were appropriate because they were accurate. but, as 6. 09:15 am concluding that the defense did not object, the record does not pauline explained that trial courts should presume (continued...) that will at least minimize the opportunity for commutation (or (1997) (same). petitioner argues that the harmless error doctrine does not apply35 the submissions of the parties. interrogatories regarding an extended term of imprisonment, which alleged injury (the tainting of the jury) stems from the court’s of public safety and the hawai#i paroling authority to criminal history record. a redacted copy of the exhibit, exhibit when a person has been sentenced to a term of imprisonment, result. id. at 442 n.10. hostility that could not be set aside. petitioner’s only it was reported that on june 8, 2008, in the parking lot of [defense counsel]: if she has it at the stand and she’s first panel of prospective jurors that “[t]here was some establish that balga once had personal knowledge of the matter hawai#i’s intrinsic-extrinsic sentencing paradigm was inconsistent with that were not harmless beyond a reasonable doubt, we employ our discretion and reasonably possible that a jury could have concluded that the with each of you, and the others of you will be--who have should be used for guilt and sentencing: petitioner acted in self-defense. on april 20, 2009, the jury 1. reasonable doubt); state v. jess, 117 hawai#i 381, 394, 184 p.3d was “especially heinous, atrocious, or cruel” beyond a the ica in part as to the harmlessness of the evidentiary error v. veikoso, 126 hawai#i 267, 276, 270 p.3d 997, 1006 (2011) march 11, 2008, kauilani obtained a temporary restraining order 11 was refreshed by the police report, kauilani answered in the erred during the sentencing hearing in admitting kauilani’s “actual” prejudice are satisfied. manslaughter is a class a felony, see hrs § 707-702, parole to the executive branch. whether petitioner could be the prosecutor or by the court on its own motion. the court the defendant and written notice of the ground proposed was there is no suggestion in janto that the jury should be imposition of an extended term of imprisonment. hrs § 706-664; (...continued)34 and until the prisoner has a record of continuance [sic] imposing extended terms of imprisonment may be initiated by ***for publication in west’s hawai#i reports and pacific reporter*** years of incarceration to life with the possibility of petitioner’s sentence from a possible twenty year sentence to a as to the third ainsworth factor (whether media bloss, 3 haw. app. 274, 278, 649 p.2d 1176, 1179 (1982); see also commentary error, in this case, implicates [defendant’s] sentence and not his conviction “substantial rights” could have been “adversely affected.” see contained considerable detail that was internally consistent, and the night in question, was the first aggressor, and that of manslaughter. hrs § 706-662 was amended in 2007 “to ensure formulation of the statement and when the court did not make a incorrect. murder in the second degree to life imprisonment without 22, 2009 judgment of conviction for manslaughter entered by the possibility of post-conviction actions of other government not incompatible with the welfare and safety of society. that the prisoner concerned will live and remain at liberty respondent nevertheless maintains that united states v. description of the facts unless that description truly not an “extreme” situation that warrants concluding that special interrogatory no. 2 that respondent proved beyond a b. 12 impartially. id. it is unlikely that the erroneous testimony and jury instructions that he had a drinking problem, was drinking heavily on the night sister, and father. over respondent’s objection, petitioner’s10 paroling authority during the extended term phase of trial? on june 9, 2008, he had been assigned to arrest petitioner in substantial rights were affected, meaning that the issue could be imprisonment, the hawai#i paroling authority shall as soon as and 6. petitioner did not object to jury instructions nos. 3, 5, or 6. petitioner’s extended term sentence and remand for disposition of ***for publication in west’s hawai#i reports and pacific reporter*** as to the second police report. and this one. i don’t maximum, in general, instructions about the length of the ensuing ***for publication in west’s hawai#i reports and pacific reporter*** the ica to conclude that petitioner failed to object to the ***for publication in west’s hawai#i reports and pacific reporter*** e. whether the court’s errors during sentence were harmless therefore is report. on the other hand, it is possible that kauilani was just stating that 706-604, the brewer rationale would not apply in this case. actions by the hawai#i paroling authority with respect to petitioner’s parole 2 past recollection recorded. id. the sixth circuit court of fact.’”) (citation omitted) (emphasis in original). the erroneous admission of such factors cannot be harmless. the oral charge incorporated jury instructions nos. 2, 3, 4, 5,14 ***for publication in west’s hawai#i reports and pacific reporter*** defendant shall be sentenced to imprisonment as provided in to the verdict. id. (internal quotation marks and citation (continued...) (ica no. 29937; cr no. 08-1-0905) forfeited his contention that kauilani’s testimony concerning the methamphetamine and six bags of a crystalline substance term sentencing are unconstitutional because they require a section, the phrase “especially heinous, atrocious, or concurring). simmons is not at issue here since this is not a capital case prescribed statutory maximum. state v. maugaotega, 115 hawai#i (3) if the jury, or the court if the defendant has waived kauilani’s testimony, petitioner’s counsel asked whether kauilani regarding petitioner’s jury selection argument, the ica recollection recorded exception. kauilani testified that she petitioner lists the following questions in his jury must find in order to authorize the court to increase the threatened to kill her, and locked her in the apartment for about sentence is appropriate. see brewer v. state, 417 n.e.2d 889, 908-09 (ind. decedent as a “good samaritan”? the procedures for determining the minimum term of imprisonment.” “saturation” defines conditions found only in extreme not structural error and is therefore subject to harmless error review); see application the issues raised on appeal by respondent were not implicated in the hawai#i paroling authority shall, as soon as practicable according to petitioner, kauilani indicated that she was reading 706–657, if the jury does find unanimously that the murder and tear marks on my chest from [petitioner], who is my ex- was sitting in the car, got out and said, “[t]hat’s my wife.” its progeny, the trier of fact must find beyond a reasonable have a constitutional right to be present at any stage of a trial supreme court notice that he was eligible to be sentenced to an extended term respondent then requested kauilani to review a police or may not take, and juries are generally presumed to follow the went to club “komo mai.” decedent steven wilcox and his friend signed the statement on each of its five pages; (3) changed the improper to invite the jury to consider post-conviction actions. 54 (3) manslaughter is a class a felony. contention appears to be that the court’s publicity statement was jurors ultimately selected indicated that they had heard about pauline, 100 hawai#i at 317, 60 p.3d at 367. imprisonment as set forth in hrs § 706-661. in other words, even 138 f.3d at 795 (citations and internal quotation marks omitted)) further, instructing the jury concerning parole and the role of exist, it will be hard to maintain [a] jury trial under the with girls” and she wanted to get her car back from petitioner, ‘may.’” ) (emphasis in original). the case had been accused of two burglaries, and the juror had parole was not a proper factor for the jury to consider inasmuch 19 “instructed according to young.” peralto, 95 hawai#i at 6, 18 also heard that petitioner had committed four other felonies, one was fresh in her memory (the day after the incident), that it 48 again on march 9, 2008, petitioner allegedly abused kauilani by judgment in all other respects. we vacate the june 22, 2009 have read, hear, or know anything about this case. as to whether it is necessary to incarcerate the defendant for an when assessing whether an error is harmless, the question is trial that he was unable to remember writing the statement.” see substantially prejudiced on account of the other jurors having with the hawai#i paroling authority. kauilani remember the events of july 13, 1996. petitioner’s further, given that there were both evidentiary errors and jury defendant, glenn keohokapu, jr., to an extended term of refresh balga’s recollection, but, since balga could not remember 21 violations. exhibit 10a showed petitioner had committed several parole xiii. to the erroneous jury instructions concerning parole. as such,36 would object to that. extended terms of imprisonment, located in hrs § 706-664 (supp. 38 under section 706-661 if it is proven beyond a reasonable doubt kauilani’s arm and pushed her away from the car. at that moment, or hostility that could not be laid aside. in the past. statement should have been excluded. id. at *3-4. the ica also17 those jurisdictions that allow instructions regarding parole the extended term sentence would be corrected by the hawai#i imprisonment under section 706-662 shall be given to the insufficient recollection to testify fully and accurately. see practicable but no later than six months after commitment to to the extent that this court will only notice the alleged error a reasonable doubt.”). petitioner’s argument that the ica could not consider had not laid a proper foundation for kauilani’s testimony. the trustworthiness. id. at 1017. as in this case, the statement of both the hawai#i and the federal constitutions guarantee jurors who stated that they could not be fair and impartial due writing is admitted under another rule of evidence. state v. held that it was not error for the court to instruct the jury however labeled, that serves as a basis for an extended term the ica also found no error in this case because the basis for asking the jury whether the prosecution had proven that that there was a “huge wave of public passion” regarding wilcox’s ica erred in concluding that the court was able to identify and and fourth panels were given the same apprisal. petitioner statement, as petitioner contends was necessary, her statement with respect to presumed prejudice, this court has clear from the record whether respondent retrieved the report. 173, 102 p.3d at 1071 (acoba, j., dissenting, joined by duffy, j.) attributed to him. as the ica correctly found, balga’s alcohol committed the charged offense, would not have been enough to ***for publication in west’s hawai#i reports and pacific reporter*** kauilani replied she did not because “this is 2009.” petitioner then went back to his car and drove away. on june 8, been made or adopted by the witness when the matter was this hearing.” this would be an appropriate instruction to give if the jury handwriting on the report were his, and it appears that the samaritan. a single statement to that effect, however, does not 9. ***for publication in west’s hawai#i reports and pacific reporter*** (“regarding the erroneous admission of evidence by a trial court, 102, 807 p.2d 593, 596 (1991) (quoting state v. keliiholokai, 58 18 agreed that she had written the statement. kauilani then (3) for a class b felony-indeterminate twenty-year fingerprints in this case against cases involving burglary in the totally speculative and that should not, in any event, influence the jury’s potential issues of parole. this would be the appropriate way32 7. hrs § 706-662. the legislature intended “that these amendments 100 hawai#i at 315-16, 60 p.3d at 365-66 (quoting ainsworth v. received a fair trial by an impartial jury where at least five of or read the contents of the writing into evidence unless the instructed and asked whether it was necessary to extend come in under the “past recollection refreshed” exception. the media had referred to wilcox as a “good samaritan”; and (c) statement would not have been admissible at trial; and (2) the the parole board should not enter into the jury’s deliberations. number 4, what happened. [petitioner] was accusing me without possibility of parole. sentence to imprisonment for the maximum period defined by (noting that because respondent neither filed an application for writ of fair and impartial.” in order to show actual prejudice, court held a hearing to resolve several pending motions. at the defined in these instructions. wording and initialed the changes eleven times; and, (4) made the for the protection of the public. if parole is highlighted in least with respect to this question, that kauilani was reading from the police respondent’s witnesses testified to only two incidents in which of the explanation shall be determined from the viewpoint of talking downstairs and he kicked me in the face and i ran that the extended term sentence includes the possibility of longer sufficiently remembers, that he routinely makes s.w.3d 330, 331-33 (mo. app. 2005) (“issues such as parole . . . testified similarly. petitioner does not refer to anything in nevertheless, for an extended term sentence to be involving the admission of balga’s police report statement and as the same crime on a previous occasion as the crime that was being of the public. under the statute the jury in effect must § 706-657, whereby life without the possibility of parole may be22 stated in response to questioning by the court and by petitioner incarceration to life with the possibility of parole[].”16 § 706-656. terms of imprisonment for first and second degree as to the erroneous inclusion of parole in the jury proceedings from the prejudicial effect of the publicity.” extended term of imprisonment. (emphasis added.)28 fresh in the witness’ memory and to reflect that knowledge report from july 13, 1996 involving another incident of domestic suicide. “saturated” the public to an extent warranting a presumption of situations. to establish actual prejudice, the defendant here, the court’s reading of the publicity statement is (4) past recollection recorded. a memorandum or record the bottom of the report. respondent asked the court for refer to federal case law for assistance in construing our rule.” state v. since the defense did not object when kauilani stated that her distinguish her from petitioner. believed them to be. ***for publication in west’s hawai#i reports and pacific reporter*** his wife. both [petitioner] and wilcox had consumed alcohol (emphasis added.) the prospective jurors in the second, third, 133, 146 (2008) (“[i]n light of cunningham, except for prior ***for publication in west’s hawai#i reports and pacific reporter*** need not be addressed inasmuch as we remand the case with respect to admission for the jury to consider the maximum length of the two potential accounts contained inflammatory information inadmissible at into evidence, and the court asked both counsel to approach the the writ). however, because at oral argument respondent contested the ica’s instructions are presumed to be harmful and will result in statement under penalty of perjury. id. the statement also vii. review--were improper. id. consideration of postconviction respondent first called petitioner’s wife, kauilani, as hrs § 706-662. the jury is not responsible for sentencing. that u.s. 154, 168-69 (1994) (plurality), held that a capital defendant has a 241 (2000), in turn refers to state v. janto, 92 hawai#i 19, 986 unanimous decision that the murder was “especially heinous, document should not be admitted into evidence and that respondent circuit court of the first circuit (the court), and, to the same1 or more felonies at different times when he was [eighteen] years her testimony was not a ground for reversal; (2) in deciding that appear to be the kind of inflammatory statement that would render knowledge in the community of either the crimes or the putative where, however, the court determines that outside instructed that if it finds that a murder was committed in an recorded exception, the witness must have “once had knowledge,” rules of evidence (hre) rule 802.1(4) defines past recollection xi. first degree or murder in the second degree in this state or ***for publication in west’s hawai#i reports and pacific reporter*** (...continued)23 first, an instruction on the possibility of commutation (or will involve maximums of twenty years and life. whether the defendant’s sentence beyond the statutory maximum for the offense marry the defendant or out of fear of the defendant. id. no earlier. however, when respondent asked her whether her memory accurate recording of the event in question which he now no evidence resulting in an “evidential harpoon.” kahinu consequently, the correctness of the ica’s ruling is not21 subject of pretrial publicity was discussed on that date, but the statement to the venires, the court alerted even those jurors the right to a jury determination, finds that the facts respondent also introduced the testimony of police on may 27, 2009, the sentencing phase of petitioner’s kauilani’s july 13, 1996 statement was admissible as a past authority is inconsistent and likely to confuse the jury. recording was made, that he is confident from the has served part of the term for which he was sentenced to and hit my sister trying to get into the house. ***for publication in west’s hawai#i reports and pacific reporter*** indeterminate term of imprisonment as provided in hrs § 706-661. during the “formulation” of the court’s questions. the defendant glenn keohokapu, jr., is a persistent offender court erred in giving jury instructions nos. 2 and 4 about person; or that she had written a letter to the court asking for the tro to facts that are necessary for the imposition of an extended term years of age or older? (your answer must be unanimous). he still could not recall what had happened. petitioner objected that the procedures used to impose extended terms of imprisonment (emphasis added.) served before the prisoner shall become eligible for parole. 51 discussing parole with the jury also carried the risk role,” given the speculative nature of the inquiry the ***for publication in west’s hawai#i reports and pacific reporter*** recollection recorded; (3) in concluding that the admissions of statement were harmless. petitioner maintains that these were supreme court and hawa[i#i] [s]upreme [c]ourt.” commentary to26 (emphasis added.) v. alpaca, 96 hawai#i 17, 25, 25 p.3d 792, 800 (2001) (“the fact that the when respondent attempted to “move [the report] for the defendant would otherwise serve. to make that determination, parents and sister testified that petitioner’s father physically influence them in their verdict.” state v. carroll, 69 p.2d 542, defendant was eighteen years of age or older; balga the police report he filed. balga identified his writing, thereby adopting it as his own[;] . . . the statement was made prejudice to the defendant. absent a ruling from the court on the question of resembling crystal methamphetamine. strong public passion. parole, however, is allowed because the sentence is30 prison. of trial. prison. petitioner was charged and the domestic violence incidents, 27 34 court distinguished between presumed and actual prejudice: respondent did not file a response to the application recollection recorded because kauilani testified that her memory the rule you read it into evidence.” judge rather than a jury to find facts, other than those of told him that i was seeing someone else and that i have in addition to this testimony, respondent called imposed under hrs § 706-662, the jury must find that a longer admitting the statement in evidence. the court overruled the recollection recorded. the judgment, agreed that “[w]here the prosecution specifically relies on a admit the statement of one of the witnesses during the sentencing honolulu police department (hpd) officer jon yoshida. officer the case consistent with this opinion inasmuch as we hold that as inadmissible. provide guidance to the court and to correct errors in the jury instructions of imprisonment as a persistent offender pursuant to hrs §§ 706- kauilani responded that she had. respondent gave petitioner notice that it intended to introduce cause the jury to find that the extended term was necessary. at *6. glenn keohokapu, jr. (petitioner) did not result in substantial a “right to be informed regarding the available choices,” as to hre rule 802.1(4). when the hre rule is identical to a fre rule, “we may thus, it was also improper to include references to parole and to31 “paragraph (4): this paragraph is identical with fed. r. evid. 7 convictions, multiple convictions, and admissions, ‘any fact, of the categories set forth in hrs § 706-662 are satisfied, then sentencing jury to consider a variety of postconviction actions report: opinion. iv. it was consistent with other uncontradicted evidence that had her. however, there is nothing in the record to indicate that ***for publication in west’s hawai#i reports and pacific reporter*** issue informed the jury that the governor could commute a kauilani’s testimony concerning the october 1994 incident was ***for publication in west’s hawai#i reports and pacific reporter*** nos. 2 and 4 were admitted in error, but to hold that references to parole in decisions in the apprendi, blakely, booker, cunningham, and kahinu, 53 haw. 536, 548, 498 p.2d 635, 643 (1972), this court believing that its mistakes might be corrected by some other 44 considered. id. the ramos court cited twenty-five other haw. 356, 359, 569 p.2d 891, 895 (1977)). statements resulted in an inability to keep an open mind. witness in porter (1) admitted to making the statement; (2) criminal convictions. the court overruled the objections.12 method of establishing . . . accuracy of the record, leaving them electronically filed a. (response). committed the charged burglaries. id. at 394-96, 894 p.2d at 91- 461, 984 p.2d 1276, 1287 (app. 1999). but the presumption that 5 life with the possibility of parole: repeat offenders under section 706-606.5 shall serve at term of imprisonment of twenty years. impartial because the uncharged burglary had taken place recently threatened to kill kauilani; on july 13, 1996, during which to admit balga’s testimony because respondent failed to establish the following provision of law relates to parole as 803(5), and it restates the common-law hearsay exception for the ica concluded that kauilani’s “testimony regarding the 1996 court also explained to the jury that it was to answer special totality of circumstances to determine the impact of the outside was previously convicted in another jurisdiction of an 1994 statement was inadmissible, and, thus, we will not disturb the ica’s 52 not have been admitted as past recollection recorded. hawai#i from the police report, and since there is no indication that the 1. ***for publication in west’s hawai#i reports and pacific reporter*** ica that the court erred (1) during jury selection (a) in failing or that the errors which occurred were harmless? respondent then showed the report to kauilani. the court instructed the jury that for the offense of of imprisonment. record of the formulation or discussion of the statement; and (d) that he saw petitioner “jump on to the front hood of the car[,]” after further consideration in light of the cunningham case, 144, 906 p.2d 624, 630 (app. 1995). if the writing does not minimum term of imprisonment determined by the hawai#i petitioner argues that the ica erred in holding that he 486-91 (interim ed. 2006) states the following as to establishing the citation’s contents] accurately reflected [the witness’s] 12. conclusion. petitioner bit and head-butted kauilani; on march 11, 2008, when maugaotega cases.” id. [t]he court shall instruct the jury that it must determine viii. (continued...) petitioner was a persistent offender in that he had committed two apartment for about an hour. petitioner implies that kauilani not cured by court instructions advising the jury that remarks parole means a conditional release of a prisoner who has in special interrogatory no. 2 were as improper as jury instructions nos. 2 exhibit 10a also showed petitioner’s criminal convictions. under apprendi v. new jersey, 530 u.s. 466 (2000), and that. like i said, i could have been drinking.” balga admitted under hrs § 706-662. a like instruction in such a case would be to instruct the jury was also charged in jury instruction no. 7 that13 ***for publication in west’s hawai#i reports and pacific reporter*** xii. the authority in its discretion may reduce the minimum term the possibility of parole to life without the possibility of act is to amend hawaii’s extended term sentencing statutes with respect to the jury’s decision should not have been set was tainted by the court’s reading of the pretrial publicity juror about media accounts in front of other potential jurors ix. fixing the minimum term of imprisonment to be served before instruction errors, it is also reasonably possible that the petitioner argues that (1) the ica erred when it held that (continued...) this court has said that[, e]ven if the trial court erred in murder and attempted first and second degree murder (1) recall making an accurate recording of the event and did not protection of the public[,]” and if the defendant satisfies one respondent questioned kauilani about a third incident kauilani also testified about another incident of impartial. consequently, petitioner was not substantially and petitioner were still dating, she attempted to leave the determine whether an extended term of imprisonment is necessary a defendant need only demonstrate one of two different types commutation may be considered. 689 p.2d at 441-44. here, the ***for publication in west’s hawai#i reports and pacific reporter*** 596. the trial judge is then duty-bound to investigate the these in his application, he recognized during oral argument that he should the ica correctly concluded that kauilani’s testimony was ***for publication in west’s hawai#i reports and pacific reporter*** notice that petitioner had committed four felonies. the felonies ineligibility for parole. petitioner reiterated his challenge to those jurors seated in the a knife in his hand. sometime during the fight, petitioner and non-mandatory, i.e., a discretionary, construction of the term which officer wong said he saw petitioner hit the windshield of of the july 13 incident, that her statement was prepared when it instruction may be insufficient to overcome the prejudice caused 2. 93. this court concluded that the defendants had not been to incarcerate the defendant for a longer term than that which before becoming eligible for parole. id. lastly, the ica noted should not consider the possibility of parole in reaching a to the entire venire the publicity statement which stated that b. analogous factors were found by the court in this case. porter, instructions were harmless beyond a reasonable doubt. see state35 was necessary for the protection of the public. the court denied p.3d at 366 (quoting state v. kauhi, 86 hawai#i 195, 200, 948 p.2d a. recognized the handwriting as hers, and that her signature was on jury regarding the actions of the parole board, the court “not discuss or consider the subject of any action that the hawai#i paroling an incident that took place on october 23, 1993. balga testified became upset because gregory was allegedly staring at kauilani. blakely was later sustained by maugaotega. compare rivera, 106 hawai#i at d. rivera, 106 hawai#i 146, 165-66, 102 p.3d 1044, 1063-1064 (2004), overruled on id. at *7. further the ica stated that jury instruction no. 2 connection with a homicide case. when he reached petitioner’s9 subsequently, kauilani stated, “on the paper it says he slapped19 of balga’s statement in the police report and the extended sentencing hearing. probation.” hrs § 706-659. if, however, the criteria for any30 as to number 4, what happened, pulled my hair, hit me, alleged that he had been burglarized by the defendants. id. the torturous to a victim and “previously convicted” means a 55 given to the defendant pursuant to subsection (2). . . . described in the statement or that the statement accurately abused petitioner from ages six to seventeen. petitioner’s grabbed her neck, threatened to kill her, and locked her in the before this court, as to the jury selection process, imprisonment for the offense of manslaughter from twenty scope of the jury’s function, which is limited to finding the two ***for publication in west’s hawai#i reports and pacific reporter*** (...continued)31 comply with the requirements set forth by the united states 23 less than a month after the incident, [and] we may fairly infer jury . . . . and whether it does rise to the level of substantial phase as past recollection recorded; and (3) these errors were burglary in the newscast had not been charged in the case. id. the next question is whether the errors in the court’s use of the publicity statement. for the same reason, it true.” rights. walsh, 125 hawai#i at 284, 260 p.3d at 363. of age or older. the jury also determined in response to15 showed that petitioner had several parole violations, and exhibit 6 contained sua, 92 hawai#i at 75, 987 p.2d at 973. the ica was therefore night he found out my number. i have a black and blue right 563 (wyo. 1937). § 706-661. extended terms of imprisonment. the court may area, and had bitten the witness’s right triceps. recanted, claiming that she could not remember making the agreed with petitioner that balga’s statement should not have the irrelevant issues of parole and the role of the hawai#i hrs § 707-702. on may 8, 2009, following the jury verdict,8 had filed a police report the day after the incident, and for the offense of manslaughter from twenty years of below, the court conducted extensive voir dire of those jurors thus, the admission of balga’s testimony was not harmless beyond during the settlement of jury instructions, petitioner a. give the jury instructions on how the hawai#i paroling authority and is punishable by an “indeterminate term of imprisonment of convicted of second degree murder and attempted second enter my house . . . . in this case, as the ica correctly concluded, although and 4 was not harmless. hawai#i rules of penal procedure (hrpp) rule 52(b) 10 no evidentiary errors occurred during the sentencing phase permission to approach kauilani, which was granted. it is not implicitly determined that there was substantial prejudice to the petitioner. mandatory minimum term of imprisonment. a “good samaritan” or had helped by intervening in the dispute. a man during the commission of a robbery in 1994. it is withdrew the question. reduces the offense to manslaughter or attempted other jurisdictions hold that it is reversible error to instruct ***for publication in west’s hawai#i reports and pacific reporter*** recollection, a writing is solely employed to jog the memory of parole. if the jury was not to consider the actions of the incarceration to life with the possibility of parole.” over b. think there was a request that her recollection be ***for publication in west’s hawai#i reports and pacific reporter*** of imprisonment is necessary for the protection of the court overruled the objection, concluding that respondent “laid would frustrate the statutory scheme. in ramos, the court (or a jury that recommends a sentence to the judge) ought to be fully aware of later, petitioner’s brother came out of the club to the car, and prejudiced by the publicity statement. recollection,” to which kauilani answered in the affirmative. heinous, atrocious, or cruel. this statute has been construed in statements to police were admissible” but that the october 1994 petitioner also argues that although the court engaged of the board of pardons . . . might make the jury believe that about the sentence range and parole would engender even more prejudice . . . is ordinarily a question ‘committed to the trial respondent objected that the testimony was not relevant because10 peralto, however, stated that the sentencing jury should be at liberty without violating the law and that the prisoner’s during the argument, petitioner’s brother grabbed 11. (emphases added). in addition to the three ainsworth factors, in his memory, that it accurately reflected his knowledge, petitioner had waived his right to be present during the determine the sentence--that is the province of the court, which been laid for that. other than for the first police report. appropriate sentence.”) (internal quotation marks and citation omitted). 46 impartial, and, thus, it would be prudent to dismiss them all. i’m driving -- i’m sorry. i’m driving him crazy, only last the jury may also have believed that any errors with respect to october 1993. in addition to that testimony, the jury heard parole board is not compelling because, by also instructing the (1999), this court upheld the admission of a witness’s statement the jury also heard references to parole because exhibit 10a32 whether the prosecution has proved, beyond a reasonable ***for publication in west’s hawai#i reports and pacific reporter*** implicated in the instant writ. see state v. eid, --- p.3d ---, no. scwc- petitioner’s objection: petitioner pulled kauilani’s hair, head-butted her, and bit her thus, respondent established that kauilani had personal knowledge (tro) against petitioner because sometime in january 2008, and release is not incompatible with the welfare and safety of who had heard of the case in the media, arguing that it would be had personal knowledge of the matter, that the record or extended term sentence. see gray v. admin. dir. of the court, 84 ***for publication in west’s hawai#i reports and pacific reporter*** hpd officer michael wong testified for respondent that back to 1994, eleven to twelve years before petitioner allegedly hrs § 706-664 (supp. 2008), which provides as follows:27 sentence under hrs § 706-662, the court may impose an possibility of parole. . . . that petitioner might be paroled was likely to mislead and not substantially prejudicial, it is under no duty to interrogate the jury. ***for publication in west’s hawai#i reports and pacific reporter*** the witness in porter contained the witness’s signature and was the possibility of parole. the minimum length of the media accounts were primarily factual, as such accounts ***for publication in west’s hawai#i reports and pacific reporter*** subject of any action that the hawai#i paroling authority might or the incident, it would attempt to lay the foundation for “past necessary for the imposition of an extended term of an order fixing the minimum term of imprisonment to be ***for publication in west’s hawai#i reports and pacific reporter*** be corrected by the paroling agency. this would be improper and and not because she needed protection. kauilani also reported vacate a federal death sentence on account of an error that is harmless beyond ‘on the basis of information which he had no opportunity to deny or explain’ although the court may sentence a person who satisfies the28 35 there was presumed or actual prejudice to petitioner. (b) the person intentionally causes another person to commit established the trustworthiness of the statement. id. the prior or concurrent convictions, necessary to enhance a disposition order (sdo), see state v. keohokapu, no. 29937, 20112 parole, the ica reasoned that the “instructions accurately state possible life sentence for the protection of the public. also, ***for publication in west’s hawai#i reports and pacific reporter*** someone’s jacket. an enhanced sentence. x. break off one of the car’s windshield wipers, and attempt to trial began. respondent introduced evidence that petitioner had hrs § 706-656 (1996) provides:5 consider whether it is necessary, in order to protect the public, that they could keep an open mind. thus, in answer to the (2) except as provided in section 706-657, pertaining to take in your deliberations of the facts at issue in this of his criminal history. 26 (continued...) influences are of a nature which could substantially prejudice 72 haw. at 102, 807 p.2d at 596. similarly, if the court finds substantial 41 accounts were primarily factual), the court’s single-paragraph any of the categories set forth in section 706-662,” to an instructions and interrogatories nos. 2 and 4, erroneous jury petitioner is wrong that kauilani’s testimony action that the hawai#i paroling authority may or may not petitioner argued that wilcox, who was carrying brass knuckles on as to the evidence admitted during the sentencing 49 6 ***for publication in west’s hawai#i reports and pacific reporter*** each critical stage of the criminal proceeding.’” state v. whether, in light of the entire proceedings, there is “a testifying from it, i’m going to object because there’s a certiorari from the judgment of the ica nor a response to petitioner’s did not tell the jury how much time petitioner had to serve witness’s] memory[]’[;] [and where the witness] testified at felonies committed at different times when the the erroneously admitted testimony and the jury instructions had dire indicated that the jury selected could consider the case more felonies. however, there is a reasonably possibility that ***for publication in west’s hawai#i reports and pacific reporter*** this case does not involve a choice between life with the33 petitioner’s prior objection, the court orally gave the following whether petitioner was holding her back from leaving, to which respondent called hpd sergeant stuart yano, who the court’s statement was descriptive, stating only that it had hrs § 706-662 provides that a defendant “who has been convicted the incident. because of his drinking problem, balga could not to be dealt with as the circumstances of the particular case the custody of the director of the department of public manslaughter, that the defendant was, at the time the point to anything in the proceedings that would suggest that any prejudice or corruption is to raise a presumption that they reasonable doubt, the court may, in its discretion, impose 8. 28 concurring and dissenting, with whom nakayama, j., joins the record that would suggest that any jurors who exhibited bias twenty years of imprisonment; provided that persons who are the ica accepted respondent’s confession of error with respect to17 statements from april 3, 1996, july 13, 1996, and october 1994, finding of substantial prejudice in his application. the court may impose an indeterminate term of life imprisonment recollection recorded.” allegations. as such, it was not improper for this testimony to admitted during the sentencing phase of the trial. good samaritan. heard this exchange because “no facts of the other alleged reading of the publicity statement to the jurors. thus, . wave of public passion. an additional factor is whether the ica also concluded that it was error for the court fre rule 803(5) is identical to hre rule 802.1(4). state v.20 of an impact on whether the jury believed that petitioner had criminal is not sufficient by itself to render a trial not read or heard anything will be returning on next week the following provision of law relate [sic] to “parole”, as cynthia a. kagiwada, /s/ simeon r. acoba, jr. the defendant’s right to a fair trial, a rebuttable presumption partiality or hostility that could not be laid aside.” pauline, explained that speculation as to parole was inappropriate, given maugaotega, a majority of this court acknowledged that, in light of cunningham or cruel.” the jury’s finding must be unanimous in order for verdict. on the other hand, other jurisdictions have held that instructions25 and its occurrence suggested to her that the defendants had decedent as a “good samaritan” and the trial court read a publicity immediately prior to trial amounting to a huge . . 44. of the report. respondent inquired whether the report helped the court: an indeterminate term of imprisonment is a has the prosecution proven beyond a reasonable doubt that petitioner to an “extended term of imprisonment, which could if it is plain and if it affected petitioner’s substantial protection of the public, as well as one or more of the factors specified found petitioner guilty of the included offense of manslaughter, possibility of parole pursuant to section 706-657, as part during the first day of the regular jury selection, that the jury might consider it. as noted, the instruction to since the jury is only responsible for finding the here, similarly, although the court risked tainting the are considered extraneous to the jury’s determination of guilt the threat the defendant poses to society.” justice o’connor, concurring in id. at 396, 894 p.2d at 93. moreover, the record of the voir respondent then started to ask kauilani about the by other governmental entities--parole, commutation, trial court 1. whether the ica gravely erred by holding that [petitioner] his objection concerning the publicity statement. in a thorough voir dire, “[this] does not mean that the jury was abuse that were described in the statement. she also testified parole board, the effect the parole board’s actions might have may choose, in its discretion, not to impose an extended term. question whether he remembered “the good samaritan feature [of with regard to the second ainsworth factor (whether the me,” but that she could not remember the specific allegations of i’m willing to prosecute. eye, hardly here [sic] out of my right ear. a bit shoulder, number 5, why did it happen, because he told me that speculate regarding the future conduct of the defendant and increases the penalty for a crime beyond the prescribed statutory murder in the second degree if the person intentionally or two or more felonies since he turned 18. the court took judicial grabbed her because he did not want her to leave. kauilani to the extended sentencing proceedings (1) where the jury must it impossible for jurors to keep an open mind. life imprisonment with parole at the end of twenty years of seen a newscast that included an interview of a person who respondent to read the following statement into evidence, over actions of the parole board. see, e.g., ramos, 689 p.2d at 441- in violation of his right to be present during all stages at whole that the error was not prejudicial. state v. mark, 123 purpose by denying suspension of sentence and probation as sentencing options sentence of life without parole, but did not inform the jury that instruction engenders, especially in light of the difficulty one sometime in january 2008 and the other on march 9, 2008. cartoons. a final factor is whether the media accounts length of the defendant’s sentence will increase from life with admissible at trial. respondent inquired of balga again whether his an application for the governor to commute the sentence to for respondent substantially prejudiced by the statement. in pauline, this admissible. “when used to refresh [a] witness’s present ii. paroling authority. petitioner was present during the “stage of trial” in which his p.3d 955, 972 (cal. 2007) (“generally, reference to the commutation power is the jury will have distinct roles. the procedure for imposing in class a convictions, but retains, through indeterminate sentence, the it was therefore not “disingenuous,” as petitioner claims, for petitioner also contends that evidence was erroneously the sdo was filed by the presiding judge daniel r. foley, the2 appeals held that it was not error to admit the statement. it is proven beyond a reasonable doubt that an extended term that his name, address, social security number, age, date of as the court instructed the jury in instruction no. 5 that it prejudice should be presumed. as to the first ainsworth factor, ramos explained that instructions that permit a [requires that the defendant be afforded an opportunity to introduce evidence exemplary behavior. correctly. if admitted, the memorandum or record may be ***for publication in west’s hawai#i reports and pacific reporter*** ***for publication in west’s hawai#i reports and pacific reporter*** the extended term motion and was therefore not harmless. read those paragraphs on which kauilani had been questioned. . . . to make any arguments in his application concerning the admission which some jurors were exposed, and we therefore affirm the june by an error. id. questioning of one juror before the rest of the jurors regarding close the door, but [petitioner] kept trying to push the the erroneous admission of balga’s testimony, however, garcia v. state, 125 hawai#i 429, 263 p.3d 709 (2010) (explaining that, in (a) the person recklessly causes the death of another of imprisonment determined by the hawai#i paroling ***for publication in west’s hawai#i reports and pacific reporter*** hearing, and on the basis of the hearing make an order to termination at any time after service of the minimum term jeopardized by external influences, such as publicity, on the determination.’”) (citing ramos, 689 p.2d 430). jury by reading the publicity statement to all of the prospective among the factors to be considered in a presumed prejudice abuse on april 3, 1996, during which petitioner injured and petitioner had waived the argument by not raising it before the imprisonment, which would extend the maximum length of his word “may,” the court retains the discretion to not impose an washington, 542 u.s. at 303-04, and the failure to submit a sentencing factor ramos is still the law in california. see people v. beames, 15324 imprisonment for the maximum period defined by law subject 53 although petitioner does not distinguish between the two forms of could not remember these incidents by noting that the record does terms or ranges are located in hrs § 706-661, which provides that statement into evidence, but the court only allowed respondent to statement here, which was by and large a factual description of respondent then attempted to move the entire report scwc-29937 imprimatur on the characterization of wilcox as a good samaritan. and struck those jurors who said that they could not be statement to the police claiming the defendant ordered her to ***for publication in west’s hawai#i reports and pacific reporter*** tuesday. she was testifying. days. on the first day of jury selection, the court informed the witness may testify either that he remembers making an in the supreme court of the state of hawai#i preclude) jury consideration of that fact.” id. at 176 (o’connor, j., kauilani answered that she did not remember because the incident kauilani’s testimony concerning the april 1996 incident. thus, hawai#i 1, 6, 18 p.3d 204, 208 (2001), in which this court held the subject of any action that the hawai#i paroling authority may had slapped her on the face several times, grabbed her neck, convictions, and admissions, any fact that serves as a basis for an extended conditions of the present day.” id. (internal citation and affirmative. respondent continued to ask questions of kauilani,19 procedures of the hawai#i paroling authority, or that the sentence in okumura, this court considered whether the head butt, bite, tear marks, he did this all because someone facts that may result in an extended term sentence, there was no trial), again, the only statement that would not have been vi. face[d].” the court overruled the objection. as part of such sentence the court shall order the director petitioner “must demonstrate that the jurors exhibited actual ***for publication in west’s hawai#i reports and pacific reporter*** followed petitioner, and the two allegedly began to argue. ability to be fair. petitioner is correct that “‘[i]t is well18 the consequences of a sentence in order to make a determination as to which a reasonable person in the circumstances as the defendant jurors concerning media accounts of the incident and the jurors’ harmful); state v. amorin, 58 haw. 623, 626, 574 p.2d 895, 900 jury instruction no. 4 stated: expressed regret. of imprisonment as provided in section 706-661. williamson provides that if the court concludes that outside influences are public. it is also reasonably possible that, without balga’s cutting her eye, striking her, pulling her hair, choking her, and this court examines the jury selection process to determine refreshed) stated that petitioner slapped her. in any event, petitioner, did memory of the april 1996 incident was refreshed, the admission of m. graham, federal practice and procedure: evidence § 7046 at of the statement’s failure to reawaken kauilani’s memory. cf. reversal was not warranted because the errors were harmless. id. 42 a reasonable doubt. might not take. id. necessary for the imposition of an extended term of imprisonment,” hrs § certiorari to the intermediate court of appeals courts issue a short statement emphasizing that it would be a violation of the identification.” respondent answered that it was attempting to must demonstrate that the jurors exhibited actual partiality position. in porter, the defendant’s girlfriend made a written term of imprisonment; and the following essential matters are from the record and verdict. see state v. pemberton, 71 haw. 466, 473, 796 p.2d 80, (4) for a class c felony-indeterminate ten-year term in concluding that balga’s statement was admitted in error. state of hawai#i, respondent/plaintiff-appellee, extended term to protect the public if instructed that the term police report did not qualify under past recollection recorded respondent ever retrieved the police report from kauilani when paroling authority. keohokapu, 2011 wl 4426889 at *1. such power to their attention and thus might have a tendency to p.2d 728 (1977).” parole ineligibility “if the state rests its case for imposing the death actions was “inconsistent with the jury’s proper decision-making referencing parole. relying on precedent from other hearsay rule if the proponent can show that the witness once statement was made. id. the statement was read into evidence as does not render the harmless error doctrine inapplicable.”); washington v. something to the effect of, “that’s one female.” petitioner, who when the matter was fresh in the witness’s memory). apparently made shortly after the incident. id. however, in those in which no timely objection was made.” id. in this case, in order to jury instruction no. 5 provided: jurisdictions that had reached similar conclusions, while term sentence must be proved beyond a reasonable doubt to the trier of fact) writing it. i don’t remember an officer there. i don’t remember in that he has previously been convicted of two or more might be reduced through parole or commutation would be engaged in domestic violence against his wife on october 20, 24 the report (which she had read previously when her recollection was being the commentary to hrs § 706-662 states in relevant part:26 “the court may sentence a person who satisfies the criteria for we’ll be discussing what you’ve read or heard individually when the trial court questioned the juror about the provided in section 707-701, a person commits the offense of espiritu, 117 hawai#i at 136, 176 p.3d at 894 (concluding that i. may be noticed although they were not brought to the attention of the court.” that the court had instructed the jury in jury instruction no. 5 overturned if the error was harmless beyond a reasonable petitioner also maintains that the ica was wrong in p.3d at 208. state v. young, 93 hawai#i 224, 235, 999 p.2d 230, prosecuting attorney, /s/ sabrina s. mckenna more of the following criteria: state in which parole is available, “the constitution does not require (or not reflect that respondent ever took the police reports from kauilani keohokapu is referred to by her first name in order to3 enhanced sentence for second degree murder, persons ***for publication in west’s hawai#i reports and pacific reporter*** petitioner does not contest that this factor was satisfied. imposed if the jury finds as facts that the murder was especially of the contrasting verbs ‘may’ and ‘shall’ requires a (emphases added.) was not error for the ica to conclude that petitioner forfeited was previously convicted of the offense of murder in the shall impose the maximum length of imprisonment. the minimum balga incident, and a second incident in which petitioner injured noted supra, courts have determined that even accurate it should be noted that dissent’s reasoning in rivera that authority. accounts portrayed wilcox in a positive light. see okumura, 78 law subject to termination at any time after service of the hrs § 706-662 (supp. 2008) provides in relevant part:7 manslaughter, petitioner could be “sentenced to a maximum the date and location of the alleged offense, that petitioner petitioner and wilcox then began to fight. at one point, objected to two instructions, court’s jury instruction nos. 2 and the court had concluded that the media reports were substantially prejudicial, which there is a reasonable explanation. the reasonableness for the court to not give the publicity statement. by reading 14 memorandum was prepared or adopted by him when it was fresh ramos provided two reasons for concluding that it is had been portrayed as a good samaritan because petitioner’s imprisonment; provided that persons who are repeat offenders the potential actions of the hawai#i paroling authority in its decision based on what he heard in court. the other four jurors makes a specific inquiry about how a postconviction proceeding such as (disagreeing with “the majority’s rationale for distinguishing [the] 432, 442, 168 p.3d 562, 572 (2007) (reversing prior case law that 10. sister related that petitioner’s father also abused petitioner’s no parole shall be granted unless it appears to the hawai#i vs. me[,]” in response to the question whether petitioner had grabbed her to held that a cautionary instruction may be insufficient to cure acknowledging that three jurisdictions had reached the opposite dismiss biased jurors by conducting a thorough voir dire. constitutionally unfair.” id. (quoting state v. graham, 70 haw. parole. under the circumstances, then, it does not affirmatively after hitting my sister i tried to force him out and extended term of imprisonment is necessary for the protection of witness to testify fully and accurately.” hre rule 802.1(4). attempted murder shall be sentenced to life imprisonment no. scwc-29937 if the court imposes a sentence of life imprisonment without especially heinous, atrocious, or cruel manner, the maximum had kauilani testified that she could recall the incidents in her day after the incident, and that her signature was on both pages finally, with respect to petitioner’s argument that the remembered the media reports also recalled that the decedent had that increase a defendant’s sentence beyond the statutory proven beyond a reasonable doubt that petitioner committed two or (2) except as provided in section 706-657, pertaining to jury verdict or admitted by the defendant. blakely v. v. kauilani first testified that she could not remember “statutory maximum” discussed in apprendi is the maximum sentence ***for publication in west’s hawai#i reports and pacific reporter*** the united states supreme court in simmons v. south carolina, 51223 “substantially free from the biasing effects of inflammatory the jury to consider whether the defendant’s sentence should be extended from life with the possibility of parole.” nor was it necessary to 29 imprisonment shall be determined by the hawai#i paroling that the jury would not appreciate the gravity of its duty, in fact, the court itself recognized that the possibility of sets the minimum prison term. the jury should instead have been pursuant to hrs § 706-662 that an extended term is necessary for the paroling authority that there is a reasonable probability knowingly causes the death of another person. 4. october 20, 1994 report that had been discussed earlier but then recorded as follows: respondent asked kauilani whether petitioner had claiming petitioner violated the tro. kauilani later testified recuenco, 548 u.s. 212, 222 (2006) (holding that error involving blakely v. the seated jurors recalled pretrial publicity describing the for those of you who have raised your hand, thank you. special interrogatory no. 1 stated as follows:15 therefore, does not assist respondent. the ica was thus correct 432 u.s. 282, 303, (1977))). for, “[i]f the mere opportunity for circumstances can be given due consideration.”). you wrote it when this incident occurred? you wrote it the day pretrial saturation of publicity about the crime; (b) in reading glenn keohokapu, jr., petitioner/defendant-appellant. jury box who had been exposed to pretrial publicity. the court subject to parole, and a sentence of life with the possibility of violations and that the disposition of the cases was revocation of parole. for the protection of the public it is error to instruct the jury extended term of life without parole under hrs § 706-661(1) if the jury finds ***for publication in west’s hawai#i reports and pacific reporter*** respondent then sought to read kauilani’s entire effectively invited the jury to consider these actions in the accused claims that his or her right to a fair trial has been imprisonment under section 706-662 have been proven beyond a opinion of the court by acoba, j. sentence for a person convicted of murder in the second degree is sentence to life imprisonment with parole at the end of engaged in domestic abuse toward kauilani on multiple occasions jury selection began on march 17, 2009, and lasted six hawai#i paroling authority that there is a reasonable the honorable virginia l. crandall presided.1 instruction of the court to not consider the actions of the finds that the murder was especially heinous, atrocious, or violations. exhibit 6 and exhibit 10a were admitted into evidence over whether the defense objected or not.” the record reflects, the jury instructions were irrelevant; (2) even if the instructions concerning parole can be injurious. those courts quotation marks omitted). has the prosecution proven beyond a reasonable doubt that it 100 hawai#i at 315, 60 p.3d at 365. petitioner, however, does not respondent also introduced evidence that petitioner had allegedly ***for publication in west’s hawai#i reports and pacific reporter*** second degree, hawai#i revised statutes (hrs) §§ 707-701.5 (1993)4 he would be able to set all of the publicity aside and make his read into evidence but may not itself be received as an allegedly fatally stabbed 19-year-old steven wilcox after hawai#i at 394, 894 p.2d at 91 (explaining that questioning of a criminal defendant the right to a trial by a jury enhanced sentence for second degree murder, persons the court may sentence a person who has been convicted of ***for publication in west’s hawai#i reports and pacific reporter*** 13 court explicitly instructed the jurors not to discuss or consider rule 803(5) of the federal rules of evidence (fre) acknowledges20 1981); state v. grisby, 647 p.2d 6, 10 (wash. 1982) (holding that although parole; (2) and, additionally, that in this case it was error to concerning her july 13 statement was not admissible because that it was given when the events were still ‘fresh [in the extended term sentence, the court shall impose the maximum length of 706-669. 627, 636, 780 p.2d 1103, 1109 (1989) (quoting dobbert v. florida, hawai#i 205, 219, 231 p.3d 478, 492 (2010). it does not ***for publication in west’s hawai#i reports and pacific reporter*** prejudice when the prosecution deliberately introduces irrelevant conclusion of the hearing, petitioner’s counsel reminded the certain news reports substantially prejudiced the defendants. 78 categories set forth in section 706-662 to an extended term an effect on the jury’s consideration of whether an extended term iii. to strike the jurors who had become acquainted with the case between petitioner and his wife, and that both petitioner and the court’s publicity statement does not amount to or suggest instructions :14 responsibility lies with the court, which “may,” in its of that sentence, the court shall order the director of (emphases added.) when respondent asked kauilani to clarify defined in these instructions: there was no other evidence that buttressed balga’s account. see of imprisonment, which shall have a maximum length as 57 held that nothing in the record suggested that media reports application or a response to petitioner’s application.21 petitioner appealed, and relevant here, argued to the statement. id. at *3. as to petitioner’s contention that the as noted, supra, jury instruction no. 5 instructed the jury to34 refreshed recollection, and i don’t think the foundation has accordingly, we vacate the october 6, 2011 judgment of an extended term of imprisonment was necessary to protect the influence of extreme mental or emotional disturbance for and that the witness currently has insufficient recollection until june 9, 2008. in april 2008, kauilani filed a report 9 at *5. to petitioner’s extended term sentence, and affirm the ica’s first degree, robbery in the second degree, promoting a dangerous 2008, wilcox died as a result of the stab wound. responded, “it says that he slapped me. . . . on the paper it correct that the july 13 statement was admissible as past in any event, petitioner does not appear to rely on the court’s “implicit” 43 661 (supp. 2008) & 706-662(1) (supp. 2008) .6 7 prevent her from leaving the apartment. thus, the record might suggest, at further, petitioner was present when the court read the and five stated that they recalled wilcox had been referred to as refresh the witness’s memory, the witness may not testify about jury instruction no. 6 provided: formulation of this statement [and that] there is no record of offense that would constitute murder in the first degree or after sixty days[’] notice to the prosecuting attorney reasonable doubt that it was “necessary for the protection of the first and second degrees it is an affirmative defense, which questionable results because the court retains discretion to not since apprendi only requires that juries find the facts forth in the instructions. as one court put it, “[a] voluntary (continued...) appear from the record that the jury might not have considered on june 12, 2008, respondent/plaintiff-appellee state the october 1994 statement. neither party disputes that kauilani’s october trial; and (2) during the sentencing phase (a) in admitting into and 4. used the publicity statement in conjunction with questions of the also united states v. montgomery, 635 f.3d 1074, 1092 (8th cir. 2011)(“even if sentence, because hrs § 706-664 and hrs § 706-661 utilize the petitioner had numerous misdemeanors on his criminal record. difficult to ascertain whether the jurors could be fair and 30 burglary were given, how [defendants] were implicated was not commutation might affect defendant’s sentence, we have suggested that trial as the ica correctly reasoned, “[t]he commentary to (...continued)25 through the media because prejudice could be presumed from the includes the possibility of parole, for the reasons discussed was selected for the trial of petitioner/defendant-appellant again denied petitioner’s challenge. nine out of the twelve finally, the matter of parole was simply a matter outside the improper because it ‘invites the jury to consider matters that are both prejudice to petitioner notwithstanding the pretrial publicity to hrs § 706-656(2) (emphasis added.) however, the court may to enable him to testify fully and accurately[.] the 17 the testifying witness.” state v. dibenedetto, 80 hawai#i 138, the complete term of the more lenient sentence, or may not take knowledge of the matter”). formulation of the publicity statement because (a) defendants defendant caused the death of the other person, under the proper. as discussed, infra, the error in admitting jury instructions no. 2 evidence during the penalty phase of a capital trial], we cannot reverse or the july 23, 2008 minutes of the court reflect that the 141 p.3d 974, 982 (2006). “[t]he same standard of review is to be applied level of being substantially prejudicial. state v. okumura, 78 section 706-656. the minutes in exhibit 6 contained short summaries of previous12 elemental due process requirement that a defendant not be sentenced to death safety hold a hearing and on the basis of the hearing make the april 1996 incident because it had taken place many years 1984) , considered whether it was proper to instruct the jury on24 testimony had nothing to do with these offenses. rivera, a majority of this court held that, under the intrinsic-extrinsic of the admission of those records into evidence. in any event, this matter trial and was recanting out of her recently professed desire to defendant's sentence beyond the ordinary or standard term for fooling around with his chick . . . . we both were “indeterminate.” see commentary on hrs § 706-659 (“this bill effects this was reading from her police report. jurors who indicated they had been exposed to pretrial publicity. car, and attempting to reverse the vehicle. officer wong related petitioner bit kauilani and pulled her by the stomach. during report. to the contrary, to satisfy the past recollection apartment she and petitioner shared. respondent asked kauilani keohokapu, 2011 wl 4426889, at *5. as such, respondent did not keohokapu, 2011 wl 4426889, at *5. petitioner does not quarrel it seemed like she’s testifying from that. so i missed it would be like in the future when parole or commutation may be convicted of second degree murder and attempted second omitted). but there is no authority for the proposition, as least the applicable mandatory minimum term of imprisonment. deciding whether the facts warranted an extended sentence. that publicity statement was primarily factual. the court mentioned wife, kauilani keohokapu (kauilani), and petitioner’s brother3 of imprisonment was necessary for the protection of the public. circumstances that he would not have written or adopted such irrelevant. thus, for example, under hrs § 706-656(2), the already been admitted. id. further, the district court 15-may-2012 present during all stages of trial, the ica concluded that we may “employ our hrpp rule 52(b) discretion to correct errors that are not of imprisonment comply with the requirements set forth by visited his home on the night in question. respondent showed the united states supreme court and hawaii supreme court. jurisdictions, petitioner asserts that the court’s instruction to parole). id. at 443. second, such an instruction “may tend to with that conclusion and respondent did not file a writ the case through the television news, the newspapers, or both, accurately reflected her knowledge, and that she currently had ---o0o--- because the court conducted further inquiry, the ica inferred that18 (emphases added.) who were not aware of the publicity or who might have forgotten jury not to consider parole and the role of the paroling is, the court informed the jury of the effect the parole board’s imprisonment.” hrs § 706-661 (emphasis added). 50 a series of cases, the latest of which was state v. peralto, 95 ***for publication in west’s hawai#i reports and pacific reporter*** special verdict form. if the jury does not come to a possibility of parole and life without the possibility of parole, such as in it appears that the three argued. special interrogatory no. 2 stated as follows:16 and in special interrogatory no. 2. although petitioner did not object to without violating the law and that the prisoner’s release is degree pursuant to hrs § 706-661(1). see n.6. supra. the court may impose an accurate records of this kind, or, if the witness has petitioner was aggressive toward someone other than kauilani--the because “[k]nowledge on the part of the jury . . . may imply to a domestic abuse that occurred on july 13, 1996. on that occasion, of which involved violence toward another person, and that degree murder shall be sentenced to life imprisonment with § 707-702. manslaughter (1) a person commits the offense of instructions accurately stated the law, irrelevant instructions in the eye. as a result of the incident, kauilani suffered a cumulative effect of these errors contributed to the jury respondent asked kauilani whether the report “refresh[ed] her reflected balga’s knowledge at the time. 37 of the story but that he did not react strongly to it, and that made by the court was that wilcox had been described as a good of prejudice in support of a motion to transfer venue: hrs § 707-702 (supp. 2006) provides:8 described his observations at the time. (...continued)4 door open . . . . at no time did i give glenn permission to c. i’m reading it from the paper.” respondent later conceded that in this case, hrs § 706-662 sets forth the facts the 40 kauilani’s october 1994 statement and balga’s october 1993 hrs § 707-701.5 (1993) provides:4 the court, in the exercise of its sound discretion, to 316 (2002) (internal citation and quotation marks omitted). once the motion. petitioner then offered testimony from his mother, juries follow the instructions is not absolute. thus, in smith, evidence of petitioner’s past crimes during the sentencing phase walsh, 125 hawai#i at 285, 260 p.3d at 364. ***for publication in west’s hawai#i reports and pacific reporter*** its deliberations and submit its findings in response to a wilcox collided, and petitioner stabbed wilcox in the chest. sentence imposed at the same time or a sentence previously notice that references to parole in jury instructions nos. 3, 5, 6, and 7 and were retained on the jury. thus, the ica did not err in belonged to petitioner. the court took judicial notice that all samaritan. thus, it is unlikely that the publicity statement possible life imprisonment to a definite (or fixed) sentence of life (footnotes omitted.) (emphases added.) statement, right?” and kauilani agreed. respondent asked, “and that she sought the tro because petitioner was “run[ning] around court’s discretion . . . .’” state v. williamson, 72 haw. 97, as expressed by the ramos court and other courts, a the jury concerning parole. jury whose attention is drawn to the issue of parole might choose argument between petitioner and his wife and that wilcox had been (continued...) wl 4426889, at *2. this inference, however, is not necessarily valid. could only have misled and confused the jury; (3) cases from parole) invites the jury to go beyond its proper role and attempt prediction of future dangerousness in asking for the death penalty, . . . the sentence were not required to be submitted to the jury, but that, in had any effect on the jury’s determination that respondent had diminish the jury’s sense of responsibility for its action” to ensure that the procedures used to impose extended terms petitioner did not object to this instruction. (2) notice of intention to seek an extended term of atrocious, or cruel” beyond a reasonable doubt, no enhanced is much more troubling. other than the incident with which pre-trial publicity.” pauline, 100 hawai#i 356, 366, 60 p.3d 306, 1036, 1041 (1997)). this court clarified that “extensive supra and infra. the jury can make an intelligent determination31 allegedly stabbed wilcox after he intervened in an argument risked tainting the jury pool). however, this does not mean that petitioner to object when he was not present during the fresh in his memory and reflected his knowledge correctly. see 29587, 2012 wl 503231, at *19 (haw. jan. 26, 2012) (acoba, j., concurring) in formulating the publicity statement in petitioner’s absence, ***for publication in west’s hawai#i reports and pacific reporter*** bench. petitioner’s counsel objected, contending that the entire 15 that an extended term of imprisonment is necessary for the in fact, the five jurors referenced by petitioner all concerning parole in jury instructions nos. 2 and 4. petitioner reveal any objections on the part of the defense with respect to whether prejudice should be presumed: xiv. public and that the convicted defendant satisfies one or maximum must be submitted to the jury and proved beyond a not prohibit a court from deciding, as a precautionary measure, to question maugaotega, ___p.3d ___, 2007 wl 2823760, oct. 1, 2007 (no. (properly admitted) testimony regarding incidents of domestic refreshed. and if she is testifying from her statement, i atrocious, or cruel would result in an enhanced sentence. distinction, facts which exposed a defendant to an extended prison term 4 authority may or may not take in your deliberations of the facts at issue in 59 four offenses were felonies. 31 jury’s duty to consider the possibility of commutation in determining the may 15, 2012 whether “the trial judge took sufficient steps to shield the an interrogatory phrased in this manner would have been accurate for petitioner 3 to errors that take place during the sentencing phase. however, the harmless petitioner is correct that it would have been better there is no record of the proceedings. on march 12, 2009, the were to inquire about parole. see beames, 153 p.3d at 972 (“[w]hen the jury holding that there was no error in the court’s jury instructions the difficulty involved in attempting to predict what a deliberations. thus, it is reasonably possible that the effect imprisonment; society. tend to be less prejudicial than inflammatory editorials or authorized by the jury’s verdict. . . . the purpose of this determined that the defendant’s girlfriend was being evasive at an “indeterminate term of imprisonment” is a sentence to cruel, manifesting exceptional depravity or that the person mother. petitioner’s mother reported that petitioner had to an extended term of imprisonment under section 706-661 if on the night of june 7, 2008, petitioner, petitioner’s would you please raise your hand if you believed you reasonable doubt, the court may impose an indeterminate term 32 had committed two or more felonies when he was eighteen years of age or older. 20 newscast, the juror stated that she might not be able to remain and determined that the fingerprints in all of those cases when ordering an extended term sentence, the court authority; provided that persons who are repeat offenders petitioner head-butting and pulling her hair on july 13, 1996. publicity statement to the prospective jurors. petitioner’s for the court to instruct the jury on parole. publicity statement indicating that the media had described the 56 § 707-701.5. murder in the second degree (1) except as if the jury finds the facts that would warrant an extended term in question, and, thus, could not remember whether petitioner had analysis of the statements and found sufficient indicia of past recollection was satisfied with respect to a traffic was not awakened by the report and the report should therefore ***for publication in west’s hawai#i reports and pacific reporter*** fixed by the order. sentence must be proved beyond a reasonable doubt to the trier of 8 hawai#i paroling authority in accordance with section such a level, the trial court is under no duty to interrogate the his objection to balga’s testimony, but the court overruled it


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