CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-13-0002469; CR. NO. 12-1-0331.
William A. Harrison for petitioner.
Sonja P. McCullen for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.
[135 Hawai'i 439] POLLACK, J.
A fair trial by an impartial jury is a basic protection provided by the United States Constitution and the Hawai'i State Constitution to the accused in a criminal case. State v. Keliiholokai, 58 Haw. 356, 357, 569 P.2d 891, 893 (1977). Inherent in this protection is the defendant's right to receive a fair trial by an impartial jury, free from improper prejudice resulting from outside influences or juror misconduct. Id. Where the existence of an outside influence such as juror misconduct is brought to the attention of the trial court, the court must ascertain the extent of the influence and then, in its sound discretion, take appropriate measures to assure a fair trial. Id. In this case, we are called upon to consider the circumstances in which a court is required to investigate an allegation of inappropriate communication between a juror and a witness during the pendency of a criminal trial.
On February 28, 2012, a grand jury indicted Susan Chin with two counts of theft in the first degree, one count of attempted theft in the first degree, and three counts of money laundering. The charges related to conduct allegedly engaged in by Chin when she was acting as a caregiver for the complainant. The alleged conduct involves theft of the proceeds from the sale of the complainant's home, use of the complainant's annuities and money from a joint account held by Chin and the complainant, transfer of money from the complainant's account to Chin's relatives, and change of beneficiaries of the complainant's annuities.
Jury trial in the case began on March 15, 2013. Charles Bowen was the neighbor and friend of the complainant in this case. Bowen introduced the complainant to Chin, who he had been friends with for over twenty years.
After the passing of her husband and as she advanced into her eighties, the complainant had difficulty caring for herself. There were concerns that the complainant was being taken advantage of financially by a couple, which eventually came to the attention of Adult Protective Services (APS). The APS caseworker consulted Bowen regarding the complainant and asked whether the complainant had any relatives who could assist her. The caseworker was not confident that the complainant's niece, who lived in California, would be able to adequately care for the complainant. Accordingly, the APS caseworker sought out a third-party caregiver, and Chin, who had become close friends with the complainant, was allowed to assist as her caregiver.
The complainant lived with Chin for several months in 2010. During that time, Bowen saw them on a weekly basis at barbecues and other functions. When the father of Chin's children died, Chin had to travel to New York, and during this timeframe, the complainant moved back to her home in Aiea. Bowen testified that Chin received a check in the amount of $500,000 on a life insurance policy sometime in 2010.
[135 Hawai'i 440] The complainant later moved back in with Chin. In February 2011, the complainant revoked the power of attorney appointing her niece and executed a new power of attorney appointing Chin as her agent. Also in February 2011, the complainant closed her bank account that she had shared with her deceased husband, and she opened a new account jointly held by herself and Chin. Around this time, Chin emailed a realtor regarding potentially selling the complainant's house and finding her a place in an assisted living community.
Chin introduced the complainant to her financial advisor after the complainant complained about her prior financial advisor in front of Bowen, Chin, and others. The complainant cashed in one of her annuities, receiving about $30,000. The complainant requested to name Chin as a beneficiary of her remaining two annuities; however, the financial advisor counseled her to instead add Chin as a contingent beneficiary and to designate a family member as the primary beneficiary. Chin subsequently withdrew approximately $8,000 from the joint account in the complainant and Chin's name to pay off the loan on Chin's car.
The complainant's home sold for $639,000, and she received $605,114.67 from escrow. The complainant and Chin went to the bank to deposit the proceeds of the sale of the property. They deposited the proceeds into several joint accounts: $200,000 into an account held by Chin and her older son, $200,000 into an account held by Chin and her younger son, $100,000 into an account held by the complainant and Chin, and $100,000 into an account held by Chin and her mother.
On August 9, 2011, Chin was returning from a trip with the complainant at which time the complainant's grandniece was waiting for them at the airport in Honolulu to take the complainant home with her. Six days later, with her grandniece's assistance, the complainant revoked the power of attorney held by Chin and withdrew the remaining money from the bank account which she held with Chin. They also reported to the bank authorities that there was a problem with all of Chin's accounts.
When Chin approached the bank to inquire about the missing funds on August 16, 2011, she was told that the complainant had withdrawn the money from the account held by Chin and the complainant. At that point, Chin attempted to withdraw the bulk of the funds from the two accounts she held with her sons but was told that she could not do so, as the bank had frozen the accounts. Chin removed her name from her son's joint accounts and added her sister's name instead. Also on August 16, 2011, Chin filed a missing persons report with the Honolulu Police Department (HPD), declaring that the complainant's grandniece had taken the complainant away and that money was stolen money from Chin's personal, preexisting account. On August 30, 2011, HPD officers seized the accounts held by Chin.
At the conclusion of the evidence, the jury found Chin guilty of theft of the proceeds from sale of complainant's home (Count I), changing the name of ownership of two joint accounts (Count IV), and taking $8,000 from the joint account to pay off Chin's car (Count VI); the jury found Chin not guilty of Count III and were unable to reach a unanimous verdicts on Counts II and V.
B. Chin's Motion for a New Trial
Chin timely filed a Motion for New Trial (motion) based upon an asserted violation of her right to due process, confrontation of witnesses, and a fair trial as guaranteed by the federal and state constitutions. The motion was supported by a declaration of Charles Bowen (Declaration) who explained that he had been called to testify as a witness at Chin's trial because as a person who was [135 Hawai'i 441] previously a neighbor to the complainant, he had information to share regarding some of the events that took place between the complainant and Chin. His Declaration stated that, during trial, a juror approached him in the men's room and spoke to him about possible employment:
3. During the course of my testimony I explained my job status and the fact that I was a civilian employee of the United States government. I also explained that I had a top secret security clearance.
4. After I testified I was approached in the men's room by a gentleman. He inquired about the possibility of employment and handed me a business card. Attached hereto as Exhibit " A" is a true and correct copy of the business card provided by the man.
5. I realized later that the individual who handed me his business card was one of the jurors in Susan Chin's case;
6. Upon this realization I told Susan about the encounter and gave her the card;
7. I never called or communicated any further with the juror after that encounter in the men's room.
8. After learning of the verdict in this case I spoke with Susan's attorney by telephone and told him about the encounter . . . .
Attached as Exhibit " A" to the Declaration was a photocopy of a business card with the ...