Electronically Filed Supreme Court SCWC JAN :05 PM

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1 Electronically Filed Supreme Court SCWC JAN :05 PM NO. SCWC IN THE SUPREME COURT OF THE STATE OF HAWAIT SUSAN CHIN, Petitioner-Appellant, vs. STATE OF HAWAIT, Respondent"Appellee. CRIMINAL NO CAAP RESPONSE TO PETITIONER'S APPLICATION FOR WRIT OF CERTIORARI INTERMEDIATE COURT OF APPEALS HONORABLE CRAIG H. NAKAMURA ChiefJudge HONORABLE DANIEL R. FOLEY HONORABLE ALEXA D.M. FUJISE Associate Judges RESPONSE TO PETITIONER'S APPLICATION FOR WRIT OF CERTIORARI and CERTIFICATE OF SERVICE KEITH M. KANESHIRO 2027 Prosecuting Attorney SONJA P. MCCULLEN 7795 Deputy Prosecuting Attorney City and County of Honolulu 1060 Richards Street Honolulu, Hawai'i Telephone: (808) Attorneys for State of Hawai'i Respondent-Appellee

2 RESPONSE TO PETITIONER'S APPLICATION FOR WRIT OF CERTIORARI Pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 40.1(e), the State of Hawai'i responds in opposition to Susan Chin's application for writ of certiorari. REASON APPLICATION SHOULD NOT BE ACCEPTED Chin's application should not be accepted because she fails to demonstrate "[glrave errors of fact or law," or... [olbvious inconsistencies in the decision of the intermediate appellate court with that ofthe supreme court, federal decisions, or its own decision, and the magnitude ofthose errors or inconsistencies dictating the need for further appeal." Hawai'i Revised Statutes (HRS) (Supp. 2013). In this case, the Intermediate Court of Appeals (ICA) explained that "Hawai'i courts do not disturb a trial court's grant or denial of a motion for a new trial 'absent a clear abuse of discretion'" and that "[t]his standard applies in the context of a motion for new trial premised on juror misconduct." State v. Chin, CAAP , at 9 (Hawai'i App. October 29, 2014) (SDO). The ICA then explained that "[alccording to Chin, the juror's misconduct may have created bias against the defense because her witness's non-responsiveness to the juror's employment inquiry may have influenced the juror inappropriately." Id. The ICA concluded that this "allegation ofinappropriate influence is so attenuated by a chain ofinferences as to fail to establish the circuit court's finding of'pure speculation' to be a clear abuse of discretion." Id. at The ICA then held that "the circuit court did not abuse its

3 discretion by finding that Chin's allegation ofjuror misconduct did not constitute 'substantial prejudice.'" Id. at 10. In her application, Chin's sole contention is that "the communication which took place between the juror foreperson and [her] witness was presumptively prejudicial wearranting [sic] at minimum an inquiry of the foreperson." Judiciary Electronic Filing and Service System (JEFS) SCWC [hereinafter SCWC] Dkt. No. 1 at 6 (formatting omitted).i Chin, however, fails to expressly identify a fact or law, relied on by the ICA, as gravely erroneous. Chin also fails to expressly identify the portion ofthe ICA's decision that was obviously inconsistent with the supreme court, federal decisions, or its own decision. Finally, Chin fails to provide binding authority in this jxirisdiction to support her position that communication between a juror and witness is presumptively prejudicial. Nevertheless, contrary to Chin's contention that an inquiry ofthe jury foreperson was warranted, the ICA did not gravely err in holding that the circuit court did not abuse its discretion. The analytical framework in reviewing impartial jury challenges is as follows^ When a defendant in a criminal case claims a deprivation of the right to a fair trial by an impartial jury, the initial step for the trial court to take is to determine whether the nature ofthe alleged deprivation rises to the level ofbeing substantially prejudicial. Ifit does not rise to such a level, the trial court is under no duty to interrogate the jury. And whether it does rise to the level of substantial prejudice is ordinarily a question committed to the trial court's discretion. 1 The cited page numbers in JEFS documents are the Portable Document Format (PDF) page numbers.

4 Where the trial court does determine that such alleged deprivation is of a nature which could substantially prejudice the defendant's right to a fair trial, a rebuttable presumption of prejudice is raised. The trial judge is then duty bound to further investigate the totality ofcircumstances surrounding the alleged deprivation to determine its impact on jury impartiality. The standard to be applied in overcoming such a presumption is that the alleged deprivation must be proved harmless beyond a reasonable doubt. The defendant bears the initial burden of making a prima facie showing of a deprivation that could substantially prejudice his or her right to a fair trial by an impartial jury. But once a rebuttable presumption ofprejudice is raised, the burden of proving harmlessness falls squarely on the prosecution. State V. Bailey, 126 Hawai'i 383, , 271 P.3d 1142, (2012) (brackets omitted). Here, Chin failed to make "a prima facie showing of a deprivation that could substantially prejudice... her right to a fair trial by an impartial jury." Id. at 400, 271 P.3d at The circuit court found that "[djuring the hearing, counsel for [Chin] acknowledged that his motion was predicated solely on the declaration of [Charles] Bowen, and that he had no other evidence to offer." Dkt. No. 14 at 183. Chin does not challenge this finding in the points oferror section ofher opening brief. See Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(C) (providing, in relevant part, that "each point [of error] shall also include... when the point involves a finding or conclusion ofthe court or agency, either a quotation ofthe finding or conclusion urged as error or reference to appended findings and conclusions"); State v. Torres, 125 Hawai'i 382, 398, 262 P.3d 1006, 1022 (2011)

5 (noting that "Petitioner did not challenge any of the findings of the court, and, therefore, such findings are binding on this court"). In his declaration, Bowen stated that "[a]fter I testified I was approached in the men's room by a gentleman. He inquired about the possibility ofemployment and handed me a business card." JEFS CAAP [hereinafter CAAP] Dkt. No. 14 at 160. Juror Mehrzad Soleymani (Soleymani) was named on the business card attached to Bowen's declaration. CAAP Dkt. No. 14 at 162. Bowen makes no other statements regarding Soleymani except to say that he "never called or communicated any further with the juror after that encounter in the men's room[.]" CAAP Dkt. No. 14 at Bowen did not state that his conversation with Soleymani required a response from Bowen before the jury reached its verdict or that a failure to respond would result in a guilty verdict. Bowen's declaration did not estabhsh that his conversation with Soleymani was communicated to the other jurors or that the other jurors were influenced by this alleged misconduct. Bowen's declaration did not indicate that Soleymani made any reference to the evidence in this case, the testimony ofwitnesses, or Chin's guilt or innocence. In other words, Bowen's declaration regarding the bathroom encounter with Soleymani did not provide the circuit court with any evidence of a deprivation or that the jury was biased. In addition, the mixed verdicts^ ofthe jury imply that the jury considered each count and the evidence that apphed to each count with careful thought. 2 The jury found Chin guilty as charged in Counts 1, 4, and 6, not guilty in Count 3,

6 dispelling Chin's notion that Soleymani's actions rose to the "level ofbeing substantially prejudicial." See State v. Cordeiro, 99 Hawai'i 390, 413, 56 P.3d 692, 715 (2002) (explaining that "the jury's acquittal of [the defendant] in two of the attempted first degree murder cases... suggests that the jury, in fact, followed the circuit court's instructions and did not infer a criminal disposition from the cumulative charges"). In sum, Bowen's declaration did not provide information to the circuit court showing a deprivation or that the jury was bias. Thus, Chin, relying solely on Bowen's declaration, failed to meet her burden ofshowing that her right to an impartial jury was substantially prejudiced. As such, the circuit court was under no duty to recall Soleymani for questioning. Bailey, 126 Hawai'i at 400, 271 P. 3d at 1159 (stating that "[i]f it does not rise to such a level, the trial court is under no duty to interrogate the jury"). and was unable to reach a verdict in Counts 2 and 5. Dkt. No. 14 at 26, 28, 184.

7 CONCLUSION Based on the foregoing arguments and authority, the State requests that this Honorable Court reject Chin's application for writ ofcertiorari. Dated at Honolulu, Hawai'i: January 5, Respectfully submitted, STATE OF HAWAIT Respondent-Appellee By KEITH M. KANESHIRO Prosecuting Attorney By /s/ SONJA P. MCCULLEN Deputy Prosecuting Attorney City and County of Honolulu SCWC ; STATE v. SUSAN CHIN, Response to Petitioner's Application for Writ of Certiorari 6

8 NO. SCWC IN THE SUPREME COURT OF THE STATE OF HAWAIT SUSAN CHIN, Petitioner-Appellant, vs. STATE OF HAWAII, Respondent-Appellee. CRIMINAL NO CAAP RESPONSE TO PETITIONER'S APPLICATION FOR WRIT OF CERTIORARI INTERMEDIATE COURT OF APPEALS HONORABLE CRAIG H. NAKAMURA ChiefJudge HONORABLE DANIEL R. FOLEY HONORABLE ALEXA D.M. FUJISE Associate Judges CERTIFICATE OF SERVICE I hereby certify that on January 5, 2015, a copy ofthe Response to Petitioner's Application for Writ of Certiorari was served by electronic notification through JEFS to^ WILLIAM A. wharrison@hanilaw.net Attorney for Petitioner-Appellant /s/ SONJA P. MCCULLEN Deputy Prosecuting Attorney City and County of Honolulu