State v. Pokini

526 P.2d 94, 55 Haw. 640, 1974 Haw. LEXIS 141

Opinions

OPINION OF THE COURT BY

LEVINSON, J.

The defendants-appellants Pokini and Moore were jointly tried and subsequently convicted and sentenced to thirty years in prison for their alleged parts in a robbery of the Oahu Sugar Company by several armed individuals on April 28, 1972. On appeal they raised a variety of substantial claims that their right to a fair trial was denied, and therefore that we must reverse their convictions and sentences.

A majority of this court agrees that reversal is necessary. Justice Ogata joins this opinion in its entirety. Justice Menor joins in part III of this opinion. Justice Menor also finds reversible error in the trial judge’s voir dire procedure, but for reasons which are different from those expressed in part I of this opinion, and which are set forth in his separate opinion.

I. RESTRICTED VOIR DIRE OF PROSPECTIVE JURORS IN THE AREA OF PRE-TRIAL PUBLICITY

The first issue raised by the appellants is whether the trial judge erred in “pre-empting” the pre-trial voir dire of prospective jurors.

In my view, the issue here is not whether the trial judge erred in “pre-empting” the voir dire of prospective jurors, but whether the examination he did give adequately dispelled the possibility that certain veniremen could not render “impartial’ ’ verdicts in these cases as a result of their exposure to extensive pre-trial publicity of another robbery trial in which the appellants were defendants. Both the federal¹ and the state² constitutions require, as a basic protection of the individual in a criminal case, trial by an “impartial jury. ” Among other things, this requirement means trial by a jury substantially free from the biasing effects of inflammatory pre-trial publicity. Irvin v. Dowd, 366 U.S. 717 (1961); State v. Wakinekona, 53 Haw. 574, 579-80, 499 P.2d 678, 682 (1972). While Rule 24(a) of the Hawaii Rules of Criminal Procedure authorizes the trial judge to conduct all or part of the “examination” of prospective jurors himself, thereby expediting the process of selecting a jury, that rule does not sanction an examination which is less than adequate constitutionally. Compare United States v. Dellinger, 472 F.2d 340, 370-77 (7th Cir. 1912), cert. denied, 410 U.S. 970 (1973) with United States v. Eastwood, 489 F.2d 818 (5th Cir. 1973).

In particular, the required examination of prospective jurors must be sufficiently detailed to discover whether they hold any prejudice as a result of exposure to pre-trial publicity. The scope of the examination should vary, of course, with the extent, quality, and timing of pre-trial publicity present in each case. In United States v. Tropiano, 418 F.2d 1069, 1079-80 (2d Cir. 1969), for example, the court held that the passage of approximately eight months’ time between the last instances of adverse publicity and the date of trial legitimized the exclusive use in voir dire of a generalized inquiry into the impact of pre-trial publicity on prospective jurors. Similarly, this court has indicated that the amount and nature of pretrial publicity directly determine the lengths to which a trial judge must go on voir dire to assess the possibility of prejudice resulting from that publicity. State v. Wakinekona, supra at 579-80, 499 P.2d at 682.

In the present cases, the factual showing of adverse pretrial publicity made by the appellants is substantial. That publicity included dozens of newspaper articles as well as radio and television coverage concerning the trial, conviction and sentencing of Pokini, Moore and others for the so-called “Liberty House jewel robbery.” Much of the coverage dealt with the testimony for the prosecution of Robert Low, an alleged accomplice of the appellants, whose evidence was also crucial to the prosecution’s cases in the trial under review here. It included photographs of the appellants in handcuffs as well as reports of their alleged courtroom outbursts. One article in the Honolulu Advertiser, dated February 16, 1973, purports to cover Pokini’s testimony in his own behalf at the Liberty House trial, and states in its lead paragraph:

James K. Pokini, 35, an ex-convict who police maintain plotted a number of major robberies and murders-for-hire on Oahu last year, took the witness stand in his own defense Thursday and presented the jury with the picture of a slow-witted oaf with barely enough intelligence to tie his own shoelaces.

The Honolulu Star-Bulletin of March 14,1973, carried a front page story headlined as “LH Robbery Leader Gets Life,” in which the trial judge in that case, also the trial judge in the present cases, is quoted as labelling Pokini the “moving force” in the robbery and in which Moore is quoted as stating “the judge had decided he [Moore] was guilty the second day of the trial.

Publicity concerning the Liberty House case began in early December, 1972 and lasted through mid-March, 1973 — only two weeks before the commencement of the present trial. It highlighted many of the same individuals involved in the present trial — Judge Chang, prosecution witness Robert Low, and the appellants, Moore and Pokini — and repeatedly suggested that Pokini was the leader of a “gang” responsible for several recent robberies and murders on Oahu.

Given the quantity, quality, and timing of this pre-trial publicity, it was incumbent on the trial judge to conduct a thorough-going examination of veniremen who indicated they had been exposed to it. Yet without exception the trial judge relied on perfunctory and generalized questions which elicited responses from these jurors solely on their subjective ability to ignore pre-trial publicity and be fair and impartial.³ He expressly refused to allow inquiry into the extent and nature of the specific matters of publicity to which jurors had been exposed. Where pre-trial publicity is as extensive and as likely prejudicial as it was here, the constitutional right to an impartial jury requires examination into objective as well as subjective indicia of non-prejudice. In Silverthorne v. United States, 400 F.2d 627, 638 (9th Cir. 1968), cert. denied, 400 U. S. 1022 (1971), for example, the court held that extensive pre-trial publicity of the case compelled the trial judge on voir dire of prospective jurors to ascertain “ivhat information the jurors had accumulated.” (Emphasis in original.) Abbreviated inquiry into the jurors’ subjective ability to be fair and impartial was inadequate, the court held.

[Wjhether a juror can render a verdict based solely on evidence adduced in the courtroom should not be adjudged on that juror’s own assessment of self-righteousness without something more.

Id. at 639 (emphasis in original); see Note, Voir Dire in Federal Criminal Trials: Protecting the Defendant’s Right to an Impartial Jury, 48 Ind. L.J. 269, 274-75 (1973). The United States Supreme Court suggested the policy reasons behind the requirement of a more detailed inquiry into the possibility of prejudice from pre-trial publicity when it stated, inIrvinv. Doiud, supra at 728:

No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father.

There is an essential difference between subjective and objective evidence of juror impartiality. The federal and state constitutions require the trial judge to attempt to adduce both where pre-trial publicity is as extensive as that preceding the trial of these appellants. Silverthorne v. United States, supra. The trial judge’s express refusal to do so was reversible error because it foreclosed from his consideration crucial evidence of possible juror bias, thereby rendering fatally uninformed the exercise of his discretion not to excuse jurors for cause.

II. THE TRIAL JUDGE’S MISCONDUCT TOWARDS DEFENSE COUNSEL

Essential to the ethic of fairness in our system of criminal jurisprudence is the responsibility of a trial judge to maintain the attitude and appearance of impartiality. The attitude of impartiality is necessary because in those matters entrusted to the trial judge’s discretion fundamental fairness requires that he exercise that discretion guided solely by the facts and the law and not by his idiosyncratic pique against a party or counsel. See, e.g., United States v. Dellinger, supra at 387; Territory v. Van Culin, 36 Haw. 153, 158 (1942). The appearance of impartiality is essential for at least two reasons. First, it fosters respect for the law in general by offering visible evidence of the judiciary’s integrity. And second, in a jury trial the appearance of judicial impartiality helps excise from those matters under the jury’s consideration the judge’s necessarily influential views on the merits of a party’s position. See, e.g., Quercia v. United States, 289 U.S. 466 (1933); Territory v. Peterson, 23 Haw. 476, 484 (1916).

These considerations of fairness embrace a trial judge’s treatment of counsel no less than of the parties themselves. An injudicious attitude held and expressed against an attorney is likely to color the judge’s approach to matters in the case entrusted to his discretion as well as to impress the jury with the idea that he disfavors the attorney and, inferentially, the position the attorney represents. See, e.g., United States v. Porter, 441 F.2d 1204, 1213-16 (8th Cir.), cert. denied, 404 U. S. 830 (1971); Davis v. State, 242 Ark. 43, 411 S.W.2d 531, 536 (1967). So serious is the danger to a fair trial posed by a judge’s unwarranted remarks demeaning defense counsel in the presence of the jury, that the law considers them errors of constitutional proportions. The constitutional rights of the defendant compromised by such conduct include the rights to due process of law, assistance of counsel in a criminal prosecution, and trialby an impartial jury. Once this type of error is identified, therefore, an appellate court must reverse a resulting conviction unless it can conscientiously conclude that “in the setting of [the] particular case [the error is] so unimportant and insignificant that [it] may, consistent with the Federal Constitution, be deemed harmless. ” Chapman v. California, 386 U.S. 18, 22 (1967). The error must be “harmless beyond a reasonable doubt,” id. at 24, for if there is a ‘reasonable possibility’ that the matter complained of might have contributed to the conviction,” the error must give rise to a reversal. United States v. Porter, supra at 1215, quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963).

A crucial if not determinative consideration in assessing whether a constitutional error is harmless beyond a reasonable doubt is the strength of the prosecution’s case on the defendant’s guilt. See Chapman v. California, supra at 22. For example, United States v. Porter, supra, held constitutionally harmless a trial judge’s criticisms of defense counsel in the presence of the jury only because the court viewed the record as a whole as presenting a “strong” case of guilt. 441 F.2d at 1215. Accord, Kinna v. State, 84 Nev. 642, 647, 447 P.2d 32, 35 (1968) (“the amount of misconduct necessary to reverse depends on how strong and convincing is the evidence of guilt”). But see People v. Williams, 40 A.D.2d 690, 336 N.Y.S.2d 267 (1972) (even where evidence of guilt is strong, misconduct towards defense counsel may warrant reversal).

In this connection, a case of guilt is never “strong” if evidence essential to conviction is the testimony of an alleged accomplice whose credibility the defendant subjects to severe attack. A trial judge’s departure from the desired norm of impartiality in such a case is necessarily reversible error. State v. Thomas, 36 Ohio St. 2d 68, 303 N.E.2d 882, aff'g 33 Ohio App. 2d 7, 291 N.E.2d 780 (1973); see Dale v. State, 441 P.2d 476, 478 (Okla. Crim. 1968) (“in a close case, where the evidence is sharply conflicting, it is prejudicial error to rebuke counsel in the presence of the jury and . . . the same requires reversal”).

The trial judge’s hostile attitude towards defense counsel was evident from the inception of these cases. Prior to trial, for example, the appellant Pokini moved the trial judge to disqualify himself on the ground that he held a personal bias against Pokini. Pokini’s counsel, Matthew Pyun, accompanied this motion and Pokini’s supporting affidavit with a certificate of good faith, as required by HRS § 601-7(b). Although this certificate was limited to a statement of Pyun’s good faith belief that Pokini honestly believed the matters contained in the motion and affidavit, the trial judge erroneously placed Pyun on the witness stand and challenged his good faith belief in the facts averred by Pokini in the affidavit. Cf. Berger v. United States, 255 U.S. 22 (1921). After a lengthy exchange as to the purpose of such a procedure, the trial judge suddenly and petulantly found that Pyun had not acted in “good faith,” and thereupon dismissed the motion to disqualify.

This incident, and others out of the presence of the jury,⁴ “reflected] the trend of the court’s mind during the trial.” Territory v. Van Culin, supra at 158. Coupled with the many other instances of impropriety towards defense counsel committed by the trial judge in the presence of the jury, they reveal a deep and thorough-going bias against and contempt for the appellants’ legal representation. The trial judge’s state of mind and conduct in this regard were fundamentally at odds with his judicial responsibilities.⁵

Similarly, it cannot be said that the jury was not likely affected by the many vituperative outbursts against defense counsel the trial judge made in their presence. As the United States Supreme Court stated in Quercia v. United States, supra at 470:

The influence of the trial judge on the jury “is necessarily and properly of great weight” and “his lightest word or intimation is received with deference, and may prove controlling. ”

There follows a catalogue of some of the trial judge’s criticisms of defense counsel in the presence of the jury. They go far beyond his “lightest word or intimation” on the quality of the defense.

During the opening statement to the jury by the appellant Moore’s counsel, Michael Sherwood, the trial judge interrupted on his own motion several times to admonish Sherwood not to argue the law. When Sherwood objected to these interruptions,⁶ the trial judge rejoined:

When you conduct yourself in a competent manner, the Court will not interrupt you, Mr. Sherwood. Please proceed competently .... And please conduct yourself in a proper manner as a lawyer. . . .

In response to an objection by Mr. Pyun during Mr. Sherwood’s opening statement, the trial judge also announced, for the jury to hear:

[Ejvery time you speak up against the Court when the Court has said something, the Court will have a comment against you, Mr. Pyun. I want you to know that, Mr. Pyun.⁷

Later, while engaged in his own opening statement, Mr. Pyun suggested to the jury that if he seemed “angry” during the trial the jury should not hold it against his client. Though there was no objection to this language by the prosecution, the trial judge interjected:

The court would like to request counsel if he would kindly leave his angry self out of the courtroom from here on out. The court will appreciate it.

Upon Mr. Pyun’s objection to the tenor of this comment, the trial judge responded:

Very well. Mr. Pyun, you keep on rising and keep on making statements. The court hopes that one day you will learn not to keep on rising, but just let matters lie.

In the course of Mr. Sherwood’s cross-examination of a key prosecution witness, alleged accomplice Philip Sylva, the trial judge ruled inadmissible questions concerning Sylva’s involvement in a murder unconnected with the case. The following colloquy then occurred:

Mr. Sherwood: Is the Court precluding me totally from going into matters which might have relevance to the character and credibility of this man’s testimony?

The Court: Mr. Sherwood, if you believe that it has standing you should proceed as a lawyer in this case. The Court has already sustained the objection. If you do not understand the area you are in the Court suggests that you think about it.⁸

It is clear that these remarks in the presence of the jury, conveying the trial judge’s contemptuous opinion of the capabilities of defense counsel, were palpably improper.⁹ As the Court of Appeals for the Seventh Circuit held on a record reflecting similar improprieties committed by a trial judge, “gratuitous implications of ineptness, before the jury, especially with the added impact of sarcasm, were not justified,” and constituted reversible error. United States v. Dellinger, supra at 387-88.

The prejudicial nature of the trial judge’s misconduct towards defense counsel in accentuated by the factual record on the question of the appellants’ guilt. It shows that the prosecution’s case turned largely on the testimony of Robert Low and Philip Sylva, two alleged participants in the robbery who had been granted immunity from prosecution in return for their testimony against Moore and Pokini. The defense rested for the most part on extensive challenges to the credibility of these witnesses. Where the credibility of alleged accomplice testimony is a key issue, it can never be said, as it was in United States v. Porter, supra at 1215, that the case of guilt is “strong. ^State v. Thomas, supra. Indeed, the lengthy deliberations of the jury in these cases, during which at one point the foreman indicated that the jury was deadlocked, lend even more credence to the argument that the cases were “close.”

This court stated, in Territory v. Van Culin, supra at 159, quoting Sharpton v. State, 1 Ga. App. 542, 548-49, 57 S.E. 929, 932 (1907):

Every practitioner knows how eagerly alert jurors are to every utterance from the bench, and how sensitive is the mind of the juror to the slightest judicial expression.

The trial judge’s short-tempered abuse of defense counsel in the presence of the jury, exacerbated by repetition, “clings to the mind like a tattoo on the epidermis. ’ ’Carlile v. State, 129 Fla. 860, 865, 176 So. 862, 864 (1937). Counsel’s efficacy in the eyes of the jury could have been diminished by the trial judge’s remarks; and in a trial such as this, where the entire defense is premised on counsel’s ability to impeach the credibility of accomplice testimony, such conduct from the bench is especially devastating. The five members of this court are unanimous in their disapproval of the trial judge’s remarks — the only difference among us is whether those remarks were reversible or non-reversible error. However, since these cases are to be reversed on other grounds anyway, hopefully the trial judge will draw guidance from our disapproval should he preside at the retrial of these cases.

III. EX PARTE COMMUNICATIONS BY THE TRIAL JUDGE WITH THE JURY DURING ITS DELIBERATIONS

On three occasions during the jury’s deliberations the trial judge sent written communications to the jury without first reconvening the court and affording the appellants and their counsel an opportunity to be present. One was in response to a written request from juror Baugh to be excused from jury duty¹⁰ as well as to a report from the bailiff that there was an open dictionary in the jury room.¹¹ The other two were in response to written questions from the jury seeking definitions of the concepts “accessory before the fact,” “scene of the crime,” and “aggravated assault upon a person.”¹²

A majority of this court — consisting of Justice Menor, Justice Ogata, and myself — agree that the trial judge’s ex parte communications with the jury during their deliberations were reversible error. See State v. Irebaria, 55 Haw. 353, 358, 519 P.2d 1246, 1250 (1974) (dicta). A defendant in a criminal case has a procedural and constitutional¹³ “right to be present whenever the court communicates with the jury.” Bustamante v. Eyman, 456 F.2d 269, 272 (9th Cir. 1972); see Hawaii R. Crim. P. 30(d). Because this right is of constitutional dimensions, moreover, at the very least it is enforceable on appeal by a rule requiring reversal unless the prosecution shows that a violation of the right was harmless beyond a reasonable doubt.¹⁴ See United States v. Dellinger, supra at 377-80; United States v. Schor, 418 F.2d 26, 30 (2d Cir. 1969).

Apart from the question whether the ex parte judge-jury communications were “harmless error,” we note at the outset a Hawaii statute and a decision of this court which mandate reversal of the appellants’ convictions. HRS § 635-43, effective during the trial of these cases,¹⁵ provides as follows:

Unless the parties to the cause on trial either in person or through their attorneys, shall file therein their written consent that the court may charge the jury orally, it shall be the duty of the court, except as provided in section 231-25, to reduce in writing and read its charge to the jury; and the manuscript of such charge, signed by the court, shall be filed in the cause, and shall constitute a part of the record thereof. Whenever, and as often as the court shall depart from such duty, either party to such suit shall be entitled as a matter of right, to demand and have granted a new trial of such cause.16

(Emphasis added). The italicized portion of this statute suggests that the degree of prejudice resulting from an improper judge-jury communication is irrelevant to the right to a new trial. This interpretation is firmly supported by The Great Wilno v. E. K. Fernandez, 34 Haw. 603 (1938), a civil case construing the precisely equivalent predecessor to HRS § 635-43, RLH 1935, § 3745. In that case, the court concluded that the submission of an additional written instruction to a deliberating jury, without first convening the court, is reversible per se under the statute unless both parties consent in writing to such a procedure. The opinion, applicable a fortiori to a criminal case, speaks directly to the “harmless error” argument. It reasons as follows:

The procedure followed by the court in this case is in direct violation of the terms of the statute. The statute makes it the duty of the court, in the absence of the written consent of the parties or their attorneys, to reduce to writing and read its charge to the jury. The charge in question was reduced to writing but was not read to the jury, and the record shows that neither the parties nor their attorneys gave their written consent to the procedure followed. The statute provides that the parties shall be entitled, as a matter of right, to a new trial whenever the court shall depart from the duty imposed upon it by the statute.

Some courts hold that the procedure here followed, though error, is harmless where the instruction given correctly states the law but none of the opinions examined by us disclose statutory provisions similar to the provisions of our statute on the subject. We are not concerned with the wisdom of the statute. That is a matter for the legislature. The statute, by prescribing what the consequence of a departure by the court from its duty shall be, makes it mandatory that we sustain the exception to the giving of the instruction in question in the manner herein set forth and makes it unnecessary for us to consider the substance of the instruction in question.

34 Haw. at 606.

The Great Wilno does not concern itself with the demands of a bothersome “legal technicality” devoid of substance. The decision is solidly based in considerations of policy. It recognizes what other courts have recognized without the aid of a legislative declaration such as HRS § 635-43 — the right of a litigant and his attorney to be present at that crucial state of a case in which the judge communicates with a deliberating jury on matters of substance is far too important to leave to the vagaries of the “harmless error” rule. See, e.g., Shields v. United States, 273 U.S. 583 (1927); People v. Harris, 43 Mich. App. 746, 204 N.W.2d 734 (1972). “Harmless error” analysis of an ex parte judge-jury communication neglects a significant reason underpinning the requirement that a judge afford the parties an opportunity to be present prior to the communication — the importance of allowing the parties an input into the trial judge’s thinking so that the resulting communication with the jury will be the best one possible and not just one that an appellate court can subsequently declare “harmless. ’’See Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 82 (1919);¹⁷ United States v. Dellinger, supra at 380 (ostensibly applies “harmless error” test, but concludes that ex parte judge-jury communication was error because “the suggestions of counsel might well have been helpful and led to a different exercise of discretion”).

Because HRS § 635-43 has been repealed since the appellants’ trial, see note 15 supra, it necessarily has no applicability to future trials. In appeals from future trials, our analysis of ex parte judge-jury communications will look to whether they were harmless beyond a reasonable doubt. See note 14 supra.

Indeed, even if we apply only that standard to the present cases, reversal is required. We do not find harmless beyond a reasonable doubt the trial judge’s submission to the jury, during deliberations, of written copies of three instructions, previously given orally, dealing with the concepts “accessory before the fact,” “scene of the crime,” and “aggravate/! assault upon a person. ” While there is authority in this state to support the provision of an entire set of unmarked instructions to a deliberating jury in a criminal case, State v. Peters, 44 Haw. 1, 6, 352 P.2d 329, 332 (1959), the trial judge’s procedure of transmitting piecemeal some instructions to the exclusion of others was unprecedented and highly prejudicial. There were dozens of instructions in these cases, dealing with such important matters to the defense as the presumption of innocence, the right of an accused not to testify, and the authority of the jury to view with special skepticism the testimony of alleged accomplices granted immunity from prosecution. As to these instructions, the jury was forced to rely on its memory of the previous oral charge. But instructions on the liability of an accessory and the elements of aggravated assault were afforded the jury by the trial judge in written form. Inherent in this procedure was the insidious danger that the jury would place undue focus and emphasis on the written instructions¹⁸ — a danger heightened by the unusually long three and one-half day period of jury deliberations.

IV. UNAUTHORIZED COMMUNICATIONS BETWEEN THE BAILIFF AND THE JURY DURING JURY DELIBERATIONS

After the jury had been deliberating for over three days, the trial judge received the following note from juror Alma Baugh:

Message to the Court. I have been accused by the Bailiff of not doing my job properly. Therefore I ask to be excused from jury duty.

The trial judge refused to excuse her, however, see note 11 supra, and a few hours later the jury returned verdicts of guilty against the appellants. At a post-verdict “hearing,” ostensibly to ascertain the facts underlying juror Baugh’s message and the possibility that the appellants had been prejudiced, the trial judge asked juror Baugh a single question of substance:

THE COURT: Mrs. Baugh, the Court would like to at this time inquire whether anything that is contained — the subject matter of what is contained in this message, did it in any way prevent you from being able to continue as a fair and impartial juror in this case?

JUROR BAUGH. No. It did not.

The judge did not ask for details of the incident with the bailiff. Nor did he inquire whether juror Baugh had talked with other jurors about the incident, and if so, whether they had demonstrated concern over it. Only after an examination of juror Baugh by Mr. Sherwood did the facts of the event begin to emerge: as the jurors adjourned for lunch on the third day of their deliberations, the court’s bailiff stated to juror Baugh, “If you would put down your knitting, you might be able to do your job.” After foreclosing further inquiry by Mr. Sherwood into the impact of this confrontation with the bailiff on juror Baugh’s state of mind, the trial judge found that juror Baugh had properly “done the job.”

Trial by jury is considered fundamental to our system of criminal justice. The law therefore zealously protects the efficacy of the right to jury trial by erecting a strong presumption of prejudice when the integrity of jury deliberations has been compromised by unauthorized contact with non-jurors. See, e.g., Remmer v. United States, 347 U.S. 227, 229 (1954); Mattox v. United States, 146 U.S. 140, 148-50 (1892). While the presumption of prejudice is not conclusive, “the burden rests heavily on the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.” Remmer v. United States, supra at 229 (emphasis added). The outside influence need not touch directly on the guilt or innocence of the defendant to trigger the presumption of prejudice — it is enough that during the crucial period of jury deliberations there was a private communication bearing even remotely on the trial or the jury’s functions in it. See, e.g., Gold v. United States, 352 U.S. 985 (1957) (per curiam), facts reported in 237 F.2d 764, 775 (D.C. Cir. 1956) (Bazelon, J., dissenting); Laine v. State, Ind. App., 289 N.E.2d 141 (1972).

The task of the trial judge at the hearing required by an unauthorized communication with the jury is to determine, first, what actually took place, and second, whether the impact of the communication “was clearly not prejudicial” to the defendant. United States v. Betner, 489 F.2d 116, 119 (5th Cir. 1974). In addition, the judge must afford a “full hearing at which counsel [are] free to introduce any evidence relevant to the alleged conversation.” Morgan v. United States, 399 F.2d 93, 97 (5th Cir. 1968), cert. denied, 393 U.S. 1025 (1969). When measured against these standards, the procedure followed by the trial judge was demonstrably inadequate in many respects.

(1) The trial judge improperly attempted to discharge the entire burden of proof placed on the State. As Remmer v. United States, supra at 229, mandates, the burden is on the “Government to establish . . . that . . . contact with the juror was harmless.” (Emphasis added.) See Badgwell v. State, 418 P.2d 114, 117 (Okla. Crim. 1966) (showing of unauthorized communication “automatically shifts the burden upon the state to show non-prejudice by competent evidence”). Yet the State offered no evidence at the hearing, choosing instead to rely on the purported “showing” of non-prejudice made by the trial judge himself. While it is within the discretion of a trial judge to examine witnesses “to bring out needed facts which have not been elicited by the parties, ’ ’ this discretion is necessarily circumscribed by his responsibility “not [to] assume the role of an advocate or of a prosecutor.” E. Cleary, McCormick’s Handrook of the Law of Evidence § 8, at 12,13 (2d ed. 1972). I find it clearly improper for the trial judge to have attempted to carry the State’s entire burden of proof in this hearing when it was his primary responsibility to sit in judgment on the facts. See Canons of Judicial Ethics No. 15.

(2) There was insufficient evidence of non-prejudice from the bailiff s remark. Even if it is assumed that the trial judge properly attempted to discharge the State’s entire burden of proof, the record of the hearing is woefully inadequate to this end. Several circumstances combined to make the remark of the bailiff to juror Baugh particularly dangerous to the appellants. First, the jury had been deliberating for the lengthy period of three days when the remark was made. Second, they had earlier indicated the presence of a deadlock in a message to the court. Third, the comment itself — “If you would put down your knitting, you might be able to do your job” — on its face was an attempt by the bailiff to accelerate the jury’s deliberations at a time when the jury was already burdened in this regard by the very length of their previous deliberations.¹⁹ Fourth, the remark by the bailiff arguably singled out juror Baugh as a “recalcitrant obstructionist” and thus may have pressured her personally to accede to the desires of the majority.²⁰ Finally, the actual impact of this remark on juror Baugh was to disgruntle her to the point of requesting relief from further jury duty. Yet despite these circumstances, the only indication on the record that the bailiff’s remark left no prejudicial impact was juror Baugh’s statement of self-assessed subjective impartiality in response to the trial judge’s single question, whether the bailiff’s remark “in any way prevented] you from being able to continue as a fair and impartial juror in this case.” Cf. part I of this opinion. This does not constitute discharge of the “heavy” burden on the government to show an absence of prejudice. Remmer v. United States, supra at 229. It is not “clear, distinct, concise and convincing proof’ ’ that the remark of the bailiff had no impact on the jury’s deliberations. Scott v. State, 448 P.2d 272, 275 (Okla. Crim. 1969). The trial judge’s generalized request of juror Baugh to assess her own subjective “impartiality” for his benefit, after she had just voted to convict the appellants, invited its own answer. Cf. Irvin v. Dowd, supra at 728. Obviously a more probing inquiry into the incident and its impact on juror Baugh was needed, unless, as the record suggests, the trial judge was bound to protect the jury’s verdicts of guilty at all costs. I note finally that the trial judge omitted entirely any inquiry into the impact, if any, that the bailiff’s remark had on the jurors other than juror Baugh. Whether any other jurors were “accelerated” in their deliberations by the bailiff’s expression of impatience the trial judge evidently did not care to know. Cf. Lambert v. State, Ind. App., 306 N.E.2d 115, 118 (1974).

(3) Appellants were denied a full hearing on the impact of the bailiffs remark. The hearing required by Remmer v. United States, supra, necessarily includes a meaningful opportunity for the defense to adduce evidence of prejudice stemming from an unauthorized contact with the jury. Morgan v. United States, supra. This is especially important where the initial showing of non-prejudice is as fragile as it was here. Yet the trial judge consistently foreclosed inquiry by the defense into juror Baugh’s state of mind — the principal issue in the hearing. He expressed his erroneous understanding of the purpose of the inquiry when he stated:

This is only as to what transpired between the juror; and, if necessary, whether the juror was not able to function as a juror. That’s all.

Of course, the applicable legal standard is not whether the outside influence rendered juror Baugh “not able to function as a juror,” but whether there was a reasonable possibility that it influenced her or other jurors in their deliberations. Cf. Paz v. United States, 462 F.2d 740, 745-46 (5th Cir. 1972), cert. denied, 414 U.S. 820 (1974). To this end, the defense asked, and sua sponte was foreclosed from pursuing by the trial judge, questions touching on juror Baugh’s level of decision or indecision on the question of guilt at the moment the bailiff accused her of not doing her job properly.²¹ If her response to these questions had indicated indecision, there would have been objective evidence that the remark did affect her thinking in ways that her simple response to the trial judge’s general question on “impartiality” did not reveal. By disallowing this line of inquiry, the trial judge rendered the hearing exceedingly one-sided and disabled the appellants from pursuing the reasonable possibility of prejudice to them resulting from the incident between the bailiff and juror Baugh.

MatthewS .K. Pyun, Jr .(Lkenaga and Pyun of counsel) for defendant-appellant James Pokini. Michael R. Sherwood (Hart, Sherwood, Leavitt, Blanch-field and Hall of counsel) for defendant-appellant William Moore. Charlotte E. Libman, deputy prosecuting attorney (Lawrence S. Grean, deputy prosecuting attorney, with her on the briefs, Barry Chung, prosecuting attorney, of counsel) for plaintiff-appellee.

V. CONCLUSION

A majority of this court has voted to reverse the appellants’ convictions and sentences. Part III of this opinion, in which all three members of the majority concur, and the views of the individual members of the majority, articulated throughout this opinion and in the separate opinion of Justice Menor, represent the rationales for that result.

Reversed and remanded for new trial.

1 U.S. Const, amends. VI & XIV.

2 Hawaii Const, art. I, § 11.

3 The questioning of prospective juror Tanaka, who was subsequently impanelled as a juror, is typical of the trial judge’s approach to the publicity issue. It appears in the transcript as follows:

THE COURT: Miss Tanaka, as to news media matters which you have been exposed to concerning either of the two defendants, did any of that news media matter cause you to form an opinion regarding the guilt or innocence of the defendants in this case?

PROSPECTIVE JUROR TANAKA: No.

THE COURT: Do you now have formed in your mind an opinion as to the guilt or innocence of the defendants in this case?

PROSPECTIVE JUROR TANAKA: No.

THE COURT: Can you determine the guilt or innocence of the defendants in this case entirely upon the evidence produced in this case, and not let anything you may have seen, heard, or read about either of the defendants on prior occasions affect or influence your decision? Can you determine the guilt or innocence of the defendants only upon the evidence here, and not let these other matters affect or influence your decision?

PROSPECTIVE JUROR TANAKA: I will let the evidence that the Court gave me as — you know, on my final position.

THE COURT: In other words, only the evidence that you hear in this case?

PROSPECTIVE JUROR TANAKA: Right.

THE COURT: Very well. Mr. Pyun, based on the questions the Court has asked and the answers of the juror, it is not necessary to dwell any further on the pretrial publicity regarding this juror.

4 During proceedings to settle jury instructions, for example, Mr. Pyun objected to a newly modified instruction proposed by the court on the ground that in its entirety it would tend to mislead the jury on the role of other participants in the alleged robbery. Although defense counsel had been given a copy of the instruction only that morning, and although the thrust of Mr. Pyun's objection was basically factual, the trial judge nonetheless openly berated Mr. Pyun for citing no legal authority in support of his position. In doing so he displayed once again an unfortunate tendency to confuse zealous advocacy with a challenge to his personal authority. He also revealed an obvious disdain for Mr. Pyun's professional ability:

Mr. Pyun, your position in connection with this instruction is totally without the keeping of a lawyer practicing in a trial court. The Court is asking you for the legal authority to support your position. You have none. The Court is asking you regarding your objection to a particular sentence so that the Court can improve this instruction, if possible.

The purpose of settling instructions is to come out with the best instruction, with the cooperation of all the minds involved in the trial. You have steadfastly refused to assist the Court; and instead of being willing to assist the Court, you have taken a contrary position, and you are not willing to assist the Court.

Now, Mr. Pyun, the first thing you do whenever the Court takes a position to straighten things out, is to claim bias and prejudice.

Mr. Pyun, when you are ready to conduct yourself as a lawyer and present legal authorities for the Court to look at so that you can assist the Court the way you should — with legal authorities — when you give your assistance to the Court in trying to straighten out matters, then the Court will understand that you are trying to assist the Court. But you have never, during the course of this trial, presented one legal authority for all of the positions that you have taken: and the Court has asked you constantly: “What is your legal authority?" You have not presented any. The Court feels that your position in not presenting any legal authority is not assisting the Court as you should, as an officer of the Court.

5 The Canons of Judicial Ethics, adopted “as a standard of conduct for members of the Hawaii Judiciary” by Rule 19 of the rules of this court, provide in relevant part:

5. Essential Conduct. A judge should be temperate, attentive, patient, impartial, and, since he is to administer the law and apply it to the facts, he should be studious of the principles of the law and diligent in endeavoring to ascertain the facts.

9. Consideration for Jurors and Others. A judge should be considerate of jurors, witnesses and others in attendance upon the court.

10. Courtesy and Civility. A judge should be courteous to counsel, especially to those who are young and inexperienced, and also to all others appearing or concerned in the administration of justice in the court.

15. Interference in Conduct of Trial. . . .

Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, he should avoid a controversial manner or tone.

6 See Canons of Judicial Ethics No. 15, which provides, in part, that a trial judge

should avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to the unnecessary display of learning or a premature judgment.

7 Compare State v. Phillips, 59 Wash. 252, 257, 109 P. 1047, 1049 (1910), where the Supreme Court of Washington held that the following comments of the trial judge to defense counsel in the presence of the jury constituted prejudicial, reversible error:

“Mr. Fitzgerald: I expect to connect this [evidence], your honor. Judge: You can make a lot of declarations. Mr. Fitzgerald: I except to what the court says. Judge: Every time the court speaks take an exception. Mr. Fitzgerald: I will. Judge: Every time the court bats his eye take an exception.”

8 Compare Dale v. State, 441 P.2d 476, 477 (Okla. Crim. 1968). where the court reversed a conviction fora trial judge's reprimand of defense counsel in the presence of the jury. Defense counsel had objected to certain questions asked of his client during cross-examination by the prosecution, and the trial judge responded by asking if counsel “understood] the difference" between direct examination and cross-examination.

9 See, e.g., Davis v. State, 242 Ark. 43, 411 S.W.2d 531, 536 (1967); State v. Hicks. 438 S.W.2d 215, 220-21 (Mo. 1969); Dale v. State. 441 P.2d 476 (Okla. Crim. 1968).

10 The matter of juror Baugh's request to be excused from jury duty is treated fully in part IV of this opinion.

11 The trial judge's written message read as follows:

The Court hereby instructs the Jury that the jurors are not to look at any books whatsoever, including dictionaries, which may be in the jury room. Any word that the jurors do not understand and desire to have a definition of, the Jury is to request such definition be given by the Court. Should such a request become necessary, please phrase your question in the following manner:

“Will the Court please define for the Jury the following word:_”

That is all the message should say — nothing about whether the word is a legal word or not.

No juror is to be excused from jury duty at this time. The Court requests that all jurors do their best to deliberate as instructed by the Court.

12 The trial judge transmitted to the jury verbatim written copies of the instruct ions touching on these concepts which he had previously read to the jury in his initial charge.

13 U.S. Const, amends. VI & XIV; Hawaii Const, art. I, § 11.

14 'file policy behind and phrasing of the rule of harmless constitutional error "oastf] on someone other than the person prejudiced by [the error] a burden to show that it was harmless.” Chapman v. California, 386 U.S. 18, 24 (1967). In the area of ex parte judge-jury communications, the burden is on the prosecution to show that the communications were harmless beyond a reasonable doubt. Bustamante v. Eyman, 456 F.2d 269 (9th Cir. 1972).

15 The statute has since been repealed, effective July 1, 1973, by L. 1972, ch. 89, § 2B(n).

16 The text quoted is that of RLH 1955, § 231-24, since the printers of the Hawaii Revised Statutes inadvertently omitted certain words of the statute.

17 The United States Supreme Court’s observations regarding this question in Fillippon are instructive:

It is not correct, however, to regard the opportunity of afterwards excepting to the instruction and to the manner of giving it as equivalent to an opportunity to be present during the proceedings. To so hold would be to overlook the primary and essential function of an exception, which is to direct the mind of the trial judge to the point in which it is supposed that he has erred in law. so that he may reconsider it and change his ruling if convinced of error, and that injustice and mistrials due to inadvertent errors may thus be obviated.

250 U.S. at 82.

18 Unfortunately, the jury was also forced to rely on its memory for the substance of the following instruction, given it orally several days before:

If in these instructions any rule, direction or idea is repeated or restated, no emphasis thereon is intended and none must be inferred. You are not to single out any particular sentence, or any specific point or instruction, and ignore the others, but you are to consider all the instructions as a whole and to regard each in the light of all the others.

19 Cf. Lambert v. State, Ind. App., 306 N.E.2d 115, 118 (1974) (finding harmless a bailiff’s question of a deliberating jury whether they would be finished by that afternoon; “[w]e find no intimidation or threat in this simple inquiry which would cause a jury to accelerate their deliberations”) (emphasis added).

20 Cf. Gregg v. State, 43 Ala. App. 538, 541, 195 So.2d 803, 806 (1966) (finding harmless a bailiff’s remark to the jury that the case was costing the county money; “[tjhere was nothing [in this remark] to impute obstinacy, stupidity, or mala fides to the jury, or to any of them; no singling out of a minority as recalcitrant obstructionists”) (emphasis added).

21 Mr. Sherwood asked the following two questions of juror Baugh, both of which were disallowed by the trial judge:

(1) “Had you at that point reached a decision in your own mind as to what your verdict was going to be?

(2) “Mrs. Baugh, were you the individual who was reading a dictionary?”

Both questions were highly relevant to the ostensible purpose of the hearing. The first sought to discover directly whether juror Baugh was indecisive on the question of guilt and hence whether the remark of the bailiff might have pressured her to reach agreement with those jurors already convinced of guilt. The second was aimed indirectly at the same end, insofar as use of the dictionary present in the jury room might have indicated juror Baugh was troubled about the application of the law to the facts of these cases.