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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 15-MAR-2023 08:14 AM Dkt. 31 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
BRANDON FETU LAFOGA and RANIER INES, also known as Schizo, Petitioners/Defendants-Appellants.
SCWC-XX-XXXXXXX
CERTIORARI FROM THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX; CASE NO. 1PC161001176)
MARCH 15, 2023
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ., AND WILSON, J., CONCURRING IN PART AND DISSENTING IN PART 1
OPINION OF THE COURT BY EDDINS, J.
This case addresses (1) a constitutional challenge to a
jury selection process that identified prospective jurors by
1 At the time of this opinion’s publication, Justice Wilson’s concurrence and dissent is forthcoming. *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
number, not name, and (2) a challenge to extended term
sentencing jury instructions for attempted murder.
We affirm Brandon Lafoga and Ranier Ines’ convictions. But
we remand for a new extended term sentencing hearing and
resentencing.
I.
The State alleged Brandon Lafoga and Ranier Ines committed
several crimes. It charged Lafoga with attempted murder in the
second degree, conspiracy to commit murder in the second degree,
carrying or use of firearm in the commission of a separate
felony, kidnapping, and ownership or possession prohibited of
any firearm or ammunition by a person convicted of certain
crimes (felon in possession). In the same indictment, the State
charged Ines with accomplice to attempted murder in the second
degree, conspiracy to commit murder, kidnapping, and robbery in
the first degree.
On the eve of trial, after ruling on several motions in
limine, the trial court decided to seat an innominate jury.
Everyone would refer to prospective jurors by number, not name.
The court told the parties it would conceal the prospective
jurors’ identifying information, including their names, phone
numbers, and addresses. Only the court would have that
information.
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Ines’ counsel asked the court to clarify. Did the court
intend to disclose the prospective jurors’ names to defense
counsel and the prosecution? The court did not. The
prosecution objected. The deputy prosecuting attorney dubbed
the process “dehumanizing.” Ines’ counsel agreed, adding that
the attorneys needed the jurors’ names to research information
about the prospective jurors. Then, the prosecution asked why
the court planned to deviate from the standard jury selection
procedure. “I’m trying to head off a juror in this panel
saying, I’m afraid to serve,” the court explained. Ines’
counsel repeated her concern: no names impaired jury selection
preparation and execution. Counsel proposed that the attorneys
receive the jurors’ full names “but we both will not provide the
list to our clients, but they will be present with us when we do
jury selection.”
After further discussion, the court indicated it would tell
the jurors about the number system, but not why they’d be called
numbers. The court aimed to “quell anxiety”: “I have, in the
past, had to inform jurors to quell anxiety, that there’s been
no incidents whatsoever. I do believe that’s the situation
here, but I don’t want it to be raised in the entire panel’s
consciousness at all because we want them to serve.”
Lafoga’s counsel wondered about the process. Did the court
mean the lawyers would not know the prospective jurors’ names?
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The court clarified its plan and explained the ground rules: the
defense and prosecution (not the defendants and public) would
know the names of the jurors, but not their addresses or phone
numbers. Also, no one could say the jurors’ names on the
record.
After that, the attorneys raised no concerns. Defense
counsel made no objection to keeping the jurors’ names from the
defendants. Later, right before jury selection began, the court
asked if counsel objected to the number system. No one did.
During its introductory remarks, the court told the
prospective jurors they would be identified by number. The
court implied that this procedure protected the jurors’ privacy.
Ladies and gentlemen, when [the bailiff] did the initial roll call for this jury panel, each of you were given a card with your name on it along with your number. Please remember that number, that is your number, and for the rest of the proceedings in this case you will be addressed by that number. Your actual names are known to the Court and to the attorneys, and other than a sealed list that will be kept for court records, no one else will know your actual names, so the public can’t get your names and they cannot get your contact information, so only court and counsel will have your names. For the rest of the proceedings you’ll be addressed by your number.
(Emphasis added.)
Trial happened in November 2019. The jury found Lafoga
guilty of attempted murder, use of firearm in a separate felony,
kidnapping, and felon in possession of a firearm. Answering a
special interrogatory, the jury found that the kidnapping count
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merged with the attempted murder count, and later the court
dismissed the kidnapping charge.
The jury found Ines guilty of accomplice to attempted
murder, kidnapping, and robbery in the first degree. Answering
a special interrogatory, the jury found that the kidnapping and
robbery counts merged with the accomplice to attempted murder
count, and later the court dismissed the kidnapping and robbery
charges.
The verdicts did not end the jury’s service. They remained
for an extended term sentencing hearing. The jury had to decide
whether extending Lafoga and Ines’ ordinary statutory maximum
sentences was “necessary for the protection of the public.” HRS
§§ 706-662 (2014), 706-664 (2014).
For each defendant’s attempted murder convictions, the
court gave an extended term jury instruction and posed a special
interrogatory. The court’s instructions and interrogatories
conformed to the Hawaiʻi Standard Jury Instructions – Criminal.
Lafoga’s instruction read in part:
[T]he prosecution has alleged that BRANDON FETU LAFOGA is a persistent offender, a multiple offender, and that extended terms of imprisonment are necessary for the protection of the public. The prosecution has the burden of proving these allegations beyond a reasonable doubt. It is your duty to decide, in each count, whether the prosecution has done so by answering the following three essential questions on special interrogatory forms that will be provided to you:
1. Has the prosecution proved beyond a reasonable doubt that Defendant BRANDON FETU LAFOGA is a persistent offender in that he has previously been convicted of two or more
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felonies committed at different times when he was eighteen years of age or older?
2. Has the prosecution proved beyond a reasonable doubt that Defendant BRANDON FETU LAFOGA is a multiple offender in that he is being sentenced for two or more felonies?
3. Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentences for Defendant BRANDON FETU LAFOGA in Count 2 [Attempted Murder] from a possible life term of imprisonment to a definite life term of imprisonment . . . ?
(Emphasis added.) The court’s companion special interrogatory
read in part: “Has the prosecution proved beyond a reasonable
doubt that it is necessary for the protection of the public to
extend the sentence in Count 2 for Defendant BRANDON FETU LAFOGA
from a possible life term of imprisonment to a definite life
term of imprisonment?” (Emphasis added.)
Ines’ extended term jury instruction mostly tracked
Lafoga’s, reading in part:
[T]he prosecution has alleged that RANIER INES is a persistent offender and that extended terms of imprisonment are necessary for the protection of the public. The prosecution has the burden of proving these allegations beyond a reasonable doubt. It is your duty to decide, in each count, whether the prosecution has done so by answering the following two essential questions on special interrogatory forms that will be provided to you:
1. Has the prosecution proved beyond a reasonable doubt that Defendant RANIER INES is a persistent offender in that he has previously been convicted of two or more felonies committed at different times when he was eighteen years of age or older?
2. Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentences for Defendant RANIER INES in Count 1 [Accomplice to Attempted Murder] from a possible life term of imprisonment to a definite life term of imprisonment . . . ?
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(Emphasis added.) Ines’ special interrogatory asked the jury
about his accomplice to attempted murder conviction, in part:
“Has the prosecution proved beyond a reasonable doubt that it is
necessary for the protection of the public to extend the
sentence in Count 1 for Defendant RANIER INES from a possible
life term of imprisonment to a definite life term of
imprisonment?” (Emphasis added.)
The defendants had objected to those instructions and
special interrogatories. The word “possible” could mislead the
jury into thinking that there would not be a life term of
imprisonment unless they received an extended life term of
imprisonment, the defendants insisted.
The jury found the State had proven the extended term
sentencing elements for Lafoga’s attempted murder conviction;
same for Ines’ accomplice to attempted murder conviction.
Now eligible for the extended life without the possibility
of parole term, the defendants faced sentencing. HRS § 706-661
(2014). The court sentenced Lafoga to an extended term of life
without parole for attempted murder. Because the jury made
extended term findings for Lafoga’s two other convictions, the
court increased his imprisonment to life with the possibility of
parole for use of firearm in a separate felony, and a twenty-
year term with the possibility of parole for felon in
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possession. On appeal, Lafoga only challenges the extended term
jury instructions for the attempted murder conviction.
As for Ines, the court sentenced him to an extended term of
life without parole for his accomplice to attempted murder
conviction.
The defendants appealed. They each raised four points of
error. The Intermediate Court of Appeals consolidated their
appeals. In a published opinion, the ICA affirmed Lafoga and
Ines’ convictions.
Both Lafoga and Ines petitioned for certiorari. We
accepted cert, and per Hawaiʻi Rules of Appellate Procedure Rule
40.1, limited the scope of our review to two issues: the jury
selection issue and the jury instructions issue.
II.
Lafoga and Ines argue that the circuit court empaneled an
anonymous jury. They maintain the court’s jury selection method
violated their constitutional right to a presumption of
innocence and an impartial jury.
We disagree. There was no constitutional violation.
First, we discuss the defendants’ claim that their jury was
anonymous or “partially anonymous.” It was not.
With an anonymous jury, defense counsel and the prosecution
do not know the prospective jurors’ names. “[O]ne necessary
component” of an anonymous jury is that the jurors’ names are
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withheld from the attorneys and parties. United States v.
Harris, 763 F.3d 881, 885-86 (7th Cir. 2014); United States v.
Ross, 33 F.3d 1507, 1521 n.27 (11th Cir. 1994) (describing an
anonymous jury as one where the jurors’ names and information
are concealed from the public, lawyers, and defendants); see
also Abraham Abramovsky & Jonathan I. Edelstein, Anonymous
Juries: In Exigent Circumstances Only, 13 St. John’s J. Legal
Comment. 457, 457-58 (1999) (identifying United States v.
Barnes, 604 F.2d 121 (2nd Cir. 1979), where a New York federal
district court in 1977 kept secret the jurors’ names and
addresses in an organized crime trial, as the first “anonymous”
jury trial in state or federal courts.).
Nor was the jury a “partially anonymous” jury. See State
v. Samonte, 83 Hawaiʻi 507, 928 P.2d 1 (1996) (trial court
ordered that the first names, street addresses, and phone
numbers of prospective jurors and their spouses be redacted from
juror-information cards, and thereby empaneled a “partially
anonymous jury.”). Because Lafoga’s and Ines’ counsel and the
prosecution knew the full names of the prospective jurors, the
jury was not a completely or partially anonymous jury.
This case’s jury is better described as a confidential
jury. A confidential jury withholds a juror’s name from the
public, but not the parties. See Harris, 763 F.3d at 885-86
(distinguishing between a confidential jury, where jury
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information is available to the parties but not the public, and
an anonymous jury, where the information is withheld from both
the public and the parties). A confidential jury mainly
concerns the public’s First Amendment right to access trial
proceedings, not the parties’ right to the jurors’ information.
See Oahu Publications Inc. v. Ahn, 133 Hawaiʻi 482, 495-96, 331
P.3d 460, 473-74 (2014) (balancing the public’s First Amendment
right to access judicial proceedings with the due process
concerns of the parties); Harris, 763 F.3d at 886 (explaining
that a confidential jury challenge “focuses on whether access to
the courts has been properly denied.”).
Lafoga and Ines do not raise an access-to-the-courts
challenge. Rather, their claims focus on the court’s numbers
system and its decision to keep the jurors’ names from them.
An anonymous jury hobbles both sides. The defense and
prosecution lose the ability to uncover useful information for
jury selection and trial purposes. See United States v. Stone,
No. CR 19-0018 (ABJ), 2020 WL 1892360, at *33 n.54 (D.D.C. Apr.
16, 2020) (quoting Nancy Gertner, Judith H. Mizner, & Joshua
Dubin, The Law of Juries, Chapter 3 Section 3 at § 3.28, § 3.31,
10th ed. (2018) for the conclusions that “[t]he internet, and in
particular social media . . . offers the possibility of a rich
source of information about jurors that escapes the constraints
of formal voir dire” and “[a]t the very minimum, pre-trial
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investigation of potential jurors . . . can provide counsel with
the justification for more probing voir dire questions . . . .
And it can provide a direct basis for a cause challenge to a
particular juror.”).
But a confidential jury does not have this problem. With
the potential jurors’ names in hand, handy info is keystrokes
away. See id. (citing Thaddeous Hoffmeister, Investigating
Jurors in the Digital Age: One Click at a Time, 60 U. Kan. L.
Rev. 611, 612 (2012) for the observation that “[t]he speed and
ease by which information about jurors is now discovered online
has led attorneys to increasingly investigate and research
jurors. In fact, the practice has become fairly commonplace,
with courts, practitioners, and state bar associations all
approving and encouraging its use.”).
Here, the defense and prosecution knew the prospective
jurors’ names. Before (and during) jury selection, the lawyers
had a chance to learn more about these citizens. The court’s
method did not deprive the parties of information-gathering
techniques, like online and social media research, that might
discover helpful information to challenge a juror for cause,
exercise a peremptory challenge, or tailor an argument. Lafoga
and Ines fail to show how the circuit court prejudiced their
ability to meaningfully conduct jury selection.
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A confidential jury and an anonymous jury have their
differences, but they also have a common feature: jurors are
identified by number, not name. See State v. Sandoval, 788
N.W.2d 172, 194-95 (Neb. 2010) (“numbers jury” empaneled when
the court identified potential jurors by number, and counsel,
but not the defendant, knew their names).
A numbers jury may undermine the presumption of innocence.
A person called a number may think their anonymity is necessary
to protect them or someone else from a dangerous person - the
defendant. See Samonte, 83 Hawaiʻi at 519, 928 P.2d at 12-13
(“An anonymous jury raises the specter that the defendant is a
dangerous person from whom the jurors must be protected, thereby
implicating the defendant’s constitutional right to a
presumption of innocence.”).
A numbers jury is drastic. Trial courts should sparingly
use this jury selection method. Evidence has to support an
innominate jury. For a fully anonymous, partially anonymous, or
confidential jury, a trial court must detail a “strong reason”
the jury or jury system needs protection and make clear,
evidence-based findings to support the conclusion. Then, the
court must take reasonable precautions to minimize prejudice to
the defendant. Id. at 520, 928 P.2d at 14. Reasonable measures
to minimize prejudice include an example suggested by Samonte:
“a plausible and nonprejudicial reason for not disclosing [the
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jurors’] identities . . . (e.g., the trial court could instruct
the jurors that the purpose for juror anonymity is to protect
the jurors from contacts by the news media, thereby implying
that juror anonymity is not the result of threats from the
criminal defendant).” Id. at 522, 928 P.2d at 16.
Here, the trial court used Samonte’s media-centered
alternative reason to explain the confidential jury method. The
trial court told prospective jurors: “Your actual names are
known to the Court and to the attorneys, and other than a sealed
list that will be kept for court records, no one else will know
your actual names, so the public can’t get your names and they
cannot get your contact information.” Later, the court advised
the seated jury:
Ladies and gentlemen, also, as we continue through this trial, you are going to be referred to by your juror number as well as your chair number. Your names are not made part of the public record of this case. You already see that there is a camera here in the courtroom. While they are permitted to cover the proceedings, the press is not allowed to have any likeness of yours, so they can’t take any pictures of you, they cannot take any video of you, they cannot depict the jury in this case. So in addition to your names, your likeness will not be made part of the public record or available to the public in any way in this case.
There may be some naivete surrounding a court-crafted
plausible reason. Jurors may not buy it. And this has the
potential to erode the court’s integrity. For this reason and
the chipping of the presumption of innocence that comes from
seating an anonymous or confidential jury, we disfavor a jury
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selection process that uses numbers, not names, to identify
prospective jurors.
Here, we conclude there was no strong, evidence-rooted
reason to empanel a confidential jury. The court’s hunch that
some jurors might say they are “afraid to serve” does not
support a confidential jury. The presumption of innocence
doesn’t take a backseat to abstract notions. The court
should’ve handled this jury selection like any trial: a juror
who expresses a fearful outlook that impairs impartiality will
get excused for cause. Accordingly, unless there is evidence
supporting a strong reason to have a numbers jury, see Samonte,
83 Hawaiʻi at 520-21, 928 P.2d at 14-15 (jury tampering), the
normal jury selection process should unfold with the jurors
addressed by their names.
We turn to something undetected by trial counsel. The
parties and court overlooked HRS § 612-18(c) (Supp. 2014), which
provides that the names of prospective jurors and the “contents
of [their] juror qualification forms . . . shall be made
available to the litigants concerned.” (On appeal, Ines
mentioned the law as part of his Samonte analysis). Learning
information from the juror qualification forms, however, is not
an absolute right. Because the law’s language is directory; it
can be disregarded if necessary to protect the safety of the
jury or the integrity of the jury system. Id. 83 Hawaiʻi at 523,
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928 P.2d at 17 (determining that the “shall” in HRS § 612-18(c)
is directory, not mandatory). Still, there must be a strong
reason to dodge HRS § 612-18, and per above, the court lacked
one.
But the trial court’s failure to adhere to HRS § 612-18(c)
or provide a strong reason for the confidential jury selection
process, does not alone make the defendants’ trial
constitutionally unfair. Defense counsel did not object to the
court’s jury selection method. But even if they did, the
court’s error did not impact Lafoga and Ines’ constitutional
rights. See State v. Mundon, 121 Hawaiʻi 339, 368, 219 P.3d
1126, 1155 (2009) (providing that when there is no reasonable
possibility that a trial court’s error contributed to a
defendant’s conviction, the error is “harmless beyond a
reasonable doubt.”).
Neither Lafoga nor Ines point to anything that shows how
the court’s jury selection method prejudiced them. And our
examination of the record does not show that the defendants were
prejudiced. Before jury selection the lawyers had a chance to
gather helpful information. During jury selection the lawyers
engaged the prospective jurors and learned things about their
backgrounds and attitudes. Defense counsel rejected jurors,
exercising most of their twelve peremptory challenges and
waiving the rest. Lafoga and Ines sat next to defense counsel
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throughout jury selection. Though they did not know the jurors’
names, the defendants saw and heard the prospective jurors.
Nothing in the record suggests the defendants were unable to
meaningfully participate and aid counsel during jury selection.
The trial was constitutionally sound, and we affirm the ICA
in this respect.
III.
The convictions stand. But the defendants’ life without
the possibility of parole sentences do not.
For the defendants’ attempted murder convictions, we hold
that the court’s extended term sentencing jury instructions and
special interrogatories were prejudicially erroneous and
misleading.
Under HRS § 706–662, a defendant convicted of a felony “may
be subject to an extended term of imprisonment” if a jury finds
beyond a reasonable doubt that the extended term is “necessary
for the protection of the public” and the defendant satisfies
certain criteria, like being a “persistent offender.”
Lafoga and Ines concede they were persistent offenders.
Their challenge focuses on the jury’s “necessary for the
protection of the public” finding for their attempted murder
convictions. The two argue the court’s extended term jury
instruction and special interrogatory confused and misled the
jury.
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Lafoga’s extended term jury instruction queried:
Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentences for Defendant BRANDON FETU LAFOGA in Count 2 [Attempted Murder] from a possible life term of imprisonment to a definite life term of imprisonment . . . ?
(Emphasis added.) Likewise, Lafoga’s special interrogatory
asked, in part: “Has the prosecution proved beyond a reasonable
doubt that it is necessary for the protection of the public to
extend the sentence in Count 2 for Defendant BRANDON FETU LAFOGA
Ines’ extended term jury instruction similarly queried:
2. Has the prosecution proved beyond a reasonable doubt that it is necessary for the protection of the public to extend the sentences for Defendant RANIER INES in Count 1 [Accomplice to Attempted Murder] from a possible life term of imprisonment to a definite life term of imprisonment . . . ?
(Emphasis added.) And Ines’ special interrogatory asked, in
part: “Has the prosecution proved beyond a reasonable doubt that
it is necessary for the protection of the public to extend the
sentence in Count 1 for Defendant RANIER INES from a possible
The defendants maintain that “possible life term of
imprisonment” portends a “less-than-life sentence.” A “possible
life term of imprisonment” compared to a “definite life term of
imprisonment” indicates that they will possibly get a sentence
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shorter than life. The word “possible” may spur the jury to
select the harsher option, they say. Lafoga and Ines argue the
jury instructions did not properly convey the options. A
“possible” life term, meant they were going to get a life term –
not something less than life - regardless of the jury’s answer
to the interrogatory.
The State counters that the extended term sentencing jury
instructions and special interrogatories were fine. They came
from State v. Keohokapu and tracked the Hawaiʻi Standard Jury
Instructions – Criminal (HAWJIC). See, e.g., HAWJIC 19.3.1A.
Persistent Offender: H.R.S. § 706-662(1) (asking whether “the
prosecution proved beyond a reasonable doubt that it is
Defendant’s sentence from a . . . possible life term of
imprisonment” to a “definite life term of imprisonment”).
The ICA sided with the State, holding that “[t]he extended
term jury instruction for both defendants was not erroneous
under State v. Keohokapu.” 127 Hawaiʻi 91, 276 P.3d 660 (2012).
It stressed that the jury instructions were similar to an
instruction suggested in a footnote by the Keohokapu majority
and identical to the standard jury instructions. The ICA
pointed out that Keohokapu advised: “[t]o determine whether an
extended term of imprisonment is necessary for the protection of
the public, . . . the jury should not be instructed about the
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procedures of the Hawaiʻi Paroling Authority, or that the
sentence includes the possibility of parole.”
We clarify Keohokapu and straighten our case law to align
with the statutory language of Hawaiʻi’s extended term sentencing
laws.
To start, we discuss Keohokapu. The jury found the
defendant guilty of manslaughter, a class A felony offense with
an “indeterminate term of imprisonment of twenty years without
the possibility of suspense of sentence or probation.” HRS
§ 706-659 (2014). The State moved for extended term sentencing.
Per HRS § 706-664, the Sixth Amendment, and article I section 14
of the Hawaiʻi Constitution, a jury finding is required to make a
defendant eligible for a sentence exceeding the ordinary
statutory maximum. Apprendi v. New Jersey, 530 U.S. 466, 494
(2000); Flubacher v. State, 142 Hawaiʻi 109, 118-19, 414 P.3d
161, 170-71 (2018). Thus, the trial court asked Keohokapu’s
jury: “Has the prosecution proven beyond a reasonable doubt that
it is necessary for the protection of the public to subject
[Keohokapu] to an extended term of imprisonment, which would
extend the maximum length of his imprisonment for the offense of
Manslaughter from twenty years of incarceration to life with the
possibility of parole?” Keohokapu, 127 Hawaiʻi at 100 n.16, 276
P.3d at 669 n.16. The court also gave instructions that defined
“indeterminate term of imprisonment” and discussed many aspects
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of “parole.” It rejected long defense instructions about parole
procedures and processes. Id. at 99-100, 276 P.3d at 668-69.
Keohokapu addressed a discrete question: “Whether the ICA
gravely erred by determining that no error occurred when the
trial court instructed the jury on the irrelevant issues of
parole and the role of the Hawaiʻi Paroling Authority during the
extended term phase of trial?” Id. at 101, 276 P3d at 670.
Both the majority and dissent endorsed instructions that
sidestepped explanations about parole roles, procedures, and
processes. See Keohokapu, 127 Hawaiʻi at 116, 276 P.3d at 685.
(Recktenwald, C.J., dissenting in part) (agreeing with the
majority that “additional information about how the parole
process works . . . was not required by the statute”).
But the dissent critiqued the majority’s reluctance to
mention or even use the word “parole” in extended term jury
instructions. It spotlighted a flaw with the majority’s
framework: the majority failed to account for a jury decision
after a second-degree murder conviction; that is, whether the
defendant should receive an extended term of life without
parole, rather than a sentence of life with the possibility of
parole. Id. at 123-24, 276 P.3d 692-93. Pointing to HRS § 706-
661, the dissent explained that a jury could not meaningfully
choose between those two sentences without knowing about parole
and “[t]hus the legislature clearly contemplated that juries
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would not be shielded from the fact that parole is available.”
Id. at 116, 276 P.3d at 685.
The Keohokapu majority, in response, recommended an
extended term sentencing instruction for a second-degree murder
case: “instruct the jury to consider whether the defendant’s
sentence should be extended from possible life imprisonment to a
definite (or fixed) sentence of life imprisonment.” Id. at 112
n.33, 276 P.3d at 681 n.33.
The ICA used this footnote, and the HAWJIC standard jury
instructions it inspired, to support upholding the trial court’s
instructions in Lafoga and Ines’ case.
Because now the conceptual discussion in Keohokapu has real
controversy, we clarify that a jury considering extended term
sentencing for second-degree murder must determine whether the
prosecution has proved beyond a reasonable doubt that it is
necessary for the protection of the public to extend a sentence
from life with the possibility of parole to life without the
possibility of parole. A few reasons guide our holding.
First, the legislature was clear. HRS §§ 706-662 and 706-
664 set forth the criteria and procedures for extended term
sentencing, and HRS § 706-661 specifies the “length” of an
extended sentence. If it is “necessary for the protection of
the public,” then a person convicted of second-degree murder may
be sentenced to “life without the possibility of parole.” HRS
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§ 706-661. The legislature’s extended term sentencing laws
contemplate that the jury will decide whether a person is
eligible for a sentence of life without the possibility of
parole or life with the possibility of parole. And, by
extension, the jury will consider the word “parole.”
No evidence or jury instructions describing parole matters
are needed for the jury to consider the difference between life
with and life without parole. Keohokapu’s holding is satisfied
in this respect. “Parole” is all the jury needs to hear. The
jury inquiry depends on the word “parole” but does not depend on
the nuances of parole.
A jury navigates complex words and concepts. The
collective wisdom of twelve citizens is a defining virtue of
America’s jury trial system. We believe jurors will use their
common understanding and knowledge to grasp what “parole” means
for purposes of extended term sentencing. Cf. State v. David,
149 Hawaiʻi 469, 475-76, 494 P.3d 1202, 1208-09 (2021) (providing
that blood alcohol levels and the association between excessive
alcohol consumption and aggression are within the common
knowledge and experience of ordinary jurors). That is, “life
with the possibility of parole” means the defendant may someday
get out of prison. And “life without the possibility of parole”
means the defendant will never get out of prison. So there is
no reason to define or explain “parole.”
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Second, a jury can only make a reasoned sentencing decision
after a murder conviction if it knows about the parole option.
The possibility of parole is the only difference between an
extended sentence and an ordinary sentence for second-degree
murder. To make its “necessary for the protection of the
public” finding, the jury needs to know that difference. “There
is no way that a jury could meaningfully make that decision
without being informed of the difference between life with, and
life without, the possibility of parole.” Keohokapu, 127 Hawaiʻi
at 116, 276 P.3d at 685. (Recktenwald, C.J., dissenting in
part).
Third, the Keohokapu footnote understates the ordinary
statutory maximum for murder. A “possible life term of
imprisonment” compared to a “definite life term of imprisonment”
suggests that a defendant will possibly get a sentence less than
life. At least one of twelve jurors may interpret a “possible
life term of imprisonment” to mean a defendant might get a life
sentence or they might get less than a life sentence. A juror
believing the latter may find the extended sentence is necessary
because of a misplaced belief that the defendant would otherwise
not receive a “life” sentence. As Lafoga’s trial attorney put
it:
[T]he phrase possible life term of imprisonment could leave the jury to think that there’s not going to be a life term of imprisonment. If the jury is led to believe that there’s not going to be a life term of imprisonment, then
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it’s –- it’s more likely that they will say that an extended term is necessary for the protection of the public.
The Keohokapu dissent foresaw confusion and prejudice: “An
interrogatory phrased in the manner suggested by the majority
could lead a jury to reasonably infer that a sentence of ‘life’
means exactly what it says, e.g., that the defendant will remain
imprisoned for the remainder of [their] life. However, that
inference would not necessarily be accurate, because a defendant
such as Keohokapu would be eligible for parole.” Keohokapu, 127
Hawaiʻi at 123, 276 P.3d at 692.
Here, we hold the extended term sentencing instructions and
misleading. Stanley v. State, 148 Hawaiʻi 489, 500-01, 479 P.3d
107, 118-19 (2021). We remand for resentencing on the
defendants’ extended term sentences for attempted murder, and
rule that this opinion only applies to Lafoga and Ines and cases
that are on direct review or not yet final. See Lewi v. State,
145 Hawaiʻi 333, 349 n.21, 452 P.3d 330, 346 n.21 (2019).
IV.
This case is remanded for a new extended term sentencing
hearing and resentencing. In all other respects the ICA’s June
20, 2022 judgment on appeal, the circuit court’s February 20,
2020 judgment of conviction and sentence for Lafoga, and the
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circuit court’s September 2, 2020 amended judgment of conviction
and sentence for Ines are affirmed.
William Li /s/ Mark E. Recktenwald for petitioner Brandon Fetu /s/ Paula A. Nakayama Lafoga /s/ Sabrina S. McKenna Kai Lawrence /s/ Todd W. Eddins for petitioner Ranier Ines
Stephen K. Tsushima for respondent