    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***




                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0002469
                                                              25-JUN-2015
                                                              07:59 AM



            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


          STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

                                    vs.

            SUSAN CHIN, Petitioner/Defendant-Appellant.


                            SCWC-13-0002469

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-13-0002469; CR. NO. 12-1-0331)

                              June 25, 2015

  RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.

                OPINION OF THE COURT BY POLLACK, J.

           A fair trial by an impartial jury is a basic

protection provided by the United States Constitution and the

Hawaiʻi 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.
      ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


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.

                               I.    BACKGROUND

            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.1      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.


      1
             Counts I and II charged Theft in the First Degree, Hawaii Revised
Statutes (HRS) §§ 708-830.5(1)(a) and 708-830(1); Count III charged Attempted
Theft in the First Degree, HRS §§ 705-500(1)(b), 708-830.5(1)(a) and 708-
830(1)); and Counts IV–VI charged Money Laundering, HRS § 708A-3
(1)(a)(ii)).



                                       2
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


                                 A.    Trial

               Jury trial in the case began on March 15, 2013. 2

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

        2
            The Honorable Karen S. S. Ahn presided over the trial and post-
trial proceedings in this case.



                                      3
       ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


testified that Chin received a check in the amount of $500,000 on

a life insurance policy sometime in 2010.

             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. 3         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.

       3
            The complainant’s attorney testified that he did not believe that
the complainant was under the undue influence of Chin.



                                        4
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            The complainant’s home sold for $639,000, and she

received $605,114.67 from escrow. 4       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. 5

            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

      4
            The realtor who listed the property testified that the
complainant appeared competent during the transaction.
      5
            Individual bank accounts were insured up to $250,000.



                                      5
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


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 previously a neighbor to the



                                     6
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


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 following information:


            [JUROR’S NAME], USN Ret.

            M.A. HSM, B, S. SC&E, A. S. IS

            line entirely blacked out [apparently street address]
            Suite xxxxx
            Honolulu, HI xxxxx
            Residence: (808)xxxxxxx
            Mobile: xxxxxxx
            Facsimile: (808) xxxxxxx
            xxxxxxxx@hawaiii.rr.com[6]


      6
            An “x” has been used here to indicate that the information was
blacked out on the exhibit that was filed with the court; presumably the
                                                             (continued . . .)

                                       7
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


The memorandum in support of the motion for new trial indicated

that the juror who had provided the business card was the

foreperson of the jury in Chin’s case. 7        The memorandum contended

that the juror “sought a favor from Ms. Chin’s witness Charles

Bowen, which was not forthcoming.”         The favor involved

“approach[ing] Charles Bowen for a job.”          The defense

maintained, “The fact that Mr. Bowen did not respond to his

advance may have had a significant inappropriate influence on

the deliberative process in this case.”          Therefore, Chin argued

that the actions of the juror “in communicating with Mr. Bowen

was highly prejudicial warranting a new trial.”

             In its response to the motion, the State noted that

the granting or denial of a motion for new trial is within the

sound discretion of the trial court and would not be disturbed

absent a clear abuse of discretion.         The State submitted that

the legal framework for determining whether a defendant in a

criminal case has been denied a fair trial by an impartial jury

is for the trial court initially “to determine whether the

nature of the alleged deprivation rises to the level of being


(continued . . .)
blacked out information contained the juror’s address, phone numbers and
email address.
      7
            According to the defense’s memorandum supporting the motion, the
foreperson “is a retired United States Navy service member,” which would
appear to coincide with the notation on the business card indicating “USN
Ret.”



                                      8
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


substantially prejudicial.”      “The defendant bears the burden of

making a prima facie showing” of the deprivation.           The State

maintained that, if the defendant fails to meet her burden, the

court is under no duty to investigate the totality of

circumstances surrounding the alleged deprivation to determine

its impact on jury impartiality.

            The State argued it was “pure speculation” that Mr.

Bowen “may have had a significant inappropriate influence upon

the deliberative process.”      The State contended that “the

defendant must establish that the jury was ‘influenced by the

alleged misconduct.’”     The State also noted that the contact and

communication did not involve inadmissible evidence or any

aspect of the case itself.      “Instead it involved an

insignificant ‘background witness’ who admitted that he had no

knowledge of the disposition of the proceeds from the sale of

the victim’s house-the main disputed issue during the trial.”

Consequently, the State asserted that the defendant failed to

present, specific, substantial evidence of possible juror

misconduct,” and the court would not abuse its discretion in

denying the motion for new trial.

            On May 24, 2013, the circuit court held a hearing on

the motion. 8   The court issued written findings of fact,


     8
           The record does not contain a transcript of the hearing.



                                     9
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


conclusions of law, and an order on June 5, 2013.           The court

found Chin’s argument that the improper communication may have

had an inappropriate influence on the deliberative process to be

“pure speculation.”     The court concluded that, based on the

record, “the nature of the alleged deprivation did not rise to

the level of being ‘substantially prejudicial.’”           The court

reasoned that the timing and mixed nature of the verdicts

undermined Chin’s argument that she was deprived of a fair trial

by an impartial jury.

          The circuit court also noted that defense counsel

requested the court to interrogate the jurors or give defense

counsel permission to do so.      However, the court concluded that

under State v. Furutani, 76 Hawaiʻi 172, 180, 873 P.2d 51, 59

(1994), the trial court is under no duty to interrogate the jury

unless the defendant presents evidence demonstrating a

substantially prejudicial deprivation.         Accordingly, the circuit

court denied Chin’s motion.

            The circuit court sentenced Chin to a ten-year term

of imprisonment for Counts I and IV and a five-year term of

imprisonment for Count VI, all terms to run concurrently, and the

court ordered restitution in the amount of $523,762.15 less any

amounts recovered from accounts or by law enforcement.            The

circuit court entered its Judgment of Conviction and Sentence on

July 19, 2013.    Chin filed a timely notice of appeal.

                                    10
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          C.    Appeal to the Intermediate Court of Appeals

           On appeal to the Intermediate Court of Appeals (ICA),

Chin contended that the trial court abused its discretion in

denying her motion for new trial. 9       Chin argued that she

satisfied her initial burden of making a prima facie showing of

a deprivation that “could substantially prejudice [her] right to

a fair trial” by an impartial jury.         Chin maintained that

although the “foreperson of her jury was ordered not to have

contact with any witnesses in this case,” the juror approached

“the main defense witness in the case to seek a job.”             Chin

argued that because the job did not materialize, it is not “pure

speculation,” to conclude that the “ juror possibly sought a

quid pro quo, and not receiving any response from Mr. Bowen was

upset.”

           Chin reasoned that once she provided the Declaration

and the juror’s business card to the court, a rebuttable

presumption of prejudice was raised and it was the State’s

burden to prove harmlessness.        Chin contended that any private

communication or contact with a juror during a criminal trial

about the matter pending before the jury is presumptively

prejudicial and requires a hearing to determine the


     9
            Chin also contended that there was insufficient evidence to
support the guilty verdicts in Counts I, IV and VI. Chin has not raised
these issues in her Application for Writ of Certiorari.



                                     11
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


circumstances of the improper contact and the extent of any

prejudice to the defendant.      Chin argued that the State failed

to meet its burden to overcome the rebuttable presumption

because no evidence of harmlessness was proffered.           Chin

concluded that the inappropriate contact by the foreperson in

this case undermined the concept of a fair trial and was highly

prejudicial.

          In its Answering Brief, the State contended that Chin

failed to make a prima facie showing that her right to a fair

trial by an impartial jury was substantially prejudiced.            The

State maintained that Bowen’s Declaration did not indicate that

the foreperson made any reference to the evidence in this case,

that Bowen’s conversation with the foreperson was communicated

to the other jurors, or that the other jurors were influenced by

the alleged misconduct.     The State argued that because Chin

failed to demonstrate that the juror’s actions rose to the “level

of being substantially prejudicial,” the circuit court was under

no duty to recall the jury for questioning, and the court did not

abuse its discretion in denying her motion for a new trial.

          In her Reply Brief, Chin contends that the State’s

argument with regard to the sufficiency of the evidence

presented by Chin “is fundamentally flawed” because Chin was

prohibited from establishing such facts.         Chin noted that she

requested permission to question the jurors or to have the court

                                    12
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


do so, but the request was denied.       Chin noted that Rule

3.5(e)(4)(ii) of the Hawaiʻi Rules of Professional Conduct

required her to obtain permission from the court to conduct an

inquiry of the jury regarding juror misconduct.          Chin argued that

once she documented what had occurred to the court, a rebuttable

presumption of prejudice arose and it was the burden of the State

to prove that the inappropriate contact was harmless.

           The ICA issued its Summary Disposition Order (SDO) on

October 29, 2014.    The ICA found that Chin was required to “make

a prima facie showing of a deprivation that could substantially

prejudice his or her right to a fair trial by an impartial jury.”

According to the ICA, “Had the circuit court ‘determine[d] that

the alleged deprivation [was] substantially prejudicial, the

[circuit] court then [would become] duty bound to further

investigate the totality of circumstances surrounding the alleged

deprivation to determine its impact on jury impartiality.’”

(Quoting State v. Yamada, 108 Hawaiʻi 474, 479, 122 P.3d 254, 259

(2005)).   The ICA pointed out that the circuit court found that

the nature of the deprivation alleged by Chin did not rise to the

level of substantial prejudice, and the ICA further noted that

the timing and mixed nature of the verdicts undermined Chin’s

argument that she was deprived of a fair trial.          The ICA

concluded that the circuit court did not abuse its discretion in



                                    13
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


denying the motion for new trial and affirmed the Judgment of

Conviction and Sentence.

                             II.   DISCUSSION

             In her Application for Writ of Certiorari, Chin

contends that she satisfied her initial burden of making a prima

facie showing of a deprivation that could substantially prejudice

her right to a fair trial by an impartial jury.          Chin maintains

that when evidence is provided to the court that an extrinsic

influence may have tainted the trial, the court should hold a

hearing to determine the extent of the prejudice to the

defendant.     Chin asserts that she is entitled to a new trial

because the trial court refused to conduct an appropriate

inquiry.

           The State responds that Chin failed to meet her burden

of showing that her right to an impartial jury was substantially

prejudiced.     Thus, the State argues that the circuit court was

under no duty to recall the foreperson for questioning, and

consequently the court did not abuse its discretion in denying

the motion for new trial.

                       A.    The Williamson Test

           The Hawaiʻi Constitution requires, as a fundamental

protection of an individual in a criminal case, trial by an

impartial jury.     State v. Pokini, 55 Haw. 640, 641, 526 P.2d 94,

99 (1974).     The defendant bears the initial burden of making a

                                    14
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


prima facie showing of a deprivation that “could substantially

prejudice [his or her] right to a fair trial” by an impartial

jury. 10   State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596

(1991) (emphasis added); see also Furutani, 76 Hawaiʻi at 181,

873 P.2d at 60.     Once the defendant makes a prima facie showing

of a deprivation, “a rebuttable presumption of prejudice is

raised.”    Williamson, 72 Haw. at 102, 807 P.2d at 596.

Therefore, the analysis in Williamson initially focuses on the

general nature of the outside influence and whether it “could”

substantially prejudice a defendant; if the court so finds, then

a rebuttable presumption of prejudice is raised that triggers

the court’s obligation to investigate the totality of the

circumstances.     Id.

            The circuit court and the ICA applied an incomplete

formulation of the Williamson test in examining the juror

misconduct in this case.       Instead of applying the Williamson

analysis--which requires that the trial court first determine

whether the misconduct “could substantially prejudice the

defendant’s right to a fair trial”--the circuit court and the




      10
            That prima facie case includes a presentation by the defendant of
“some specific, substantial evidence” showing the occurrence of the outside
influence that may have possibly biased the juror. State v. Yamada, 108
Hawaiʻi 474, 479, 122 P.3d 254, 259 (2005); State v. Pauline, 100 Hawaiʻi 356,
381, 60 P.3d 306, 331 (2002); Furutani, 76 Hawaiʻi at 181, 873 P.2d at 60.



                                      15
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


ICA considered whether Chin presented evidence demonstrating

that she was substantially prejudiced. 11

            Under the circuit court and the ICA’s interpretation,

the first step considers whether the alleged misconduct

substantially prejudiced the defendant’s right to a fair trial.

In this formulation, the focus of the defendant’s initial burden

is to demonstrate that the specific misconduct rises to the

level of being substantially prejudicial in order to trigger the

court’s duty to investigate.        This interpretation is

inconsistent with Williamson.

            The origin of the test used by the circuit court and

the ICA is the following passage from Keliiholokai: “the initial

step for the trial court to take . . . is to determine whether

the nature of the [outside influence] rises to the level of

being substantially prejudicial.”         Keliiholokai, 58 Haw. at 359,

569 P.2d at 895.     When viewed in isolation, this passage does

not reflect the actual holding of the Keliiholokai decision or

the law as pronounced in our subsequent cases.

            In Keliiholokai, the issue was whether the jury had

been improperly influenced by a newspaper article.            Id. at 361,

      11
            The circuit court stated, “Because [Chin] has failed to meet her
burden of presenting sufficient evidence of a deprivation that rises to the
level of being ‘substantially prejudicial[,]’ the [ ] motion for new trial is
denied.” Similarly, the ICA indicated that the trial court would be bound to
investigate the circumstances of the misconduct only if the trial court
“determined that the alleged deprivation was substantially prejudicial.”



                                     16
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


569 P.2d at 893.    This court explained that the first

consideration was whether the contents of the article were of a

nature that could be substantially prejudicial.

          Thus, the initial step for the trial court to take, once a
          claim of prejudicial news accounts is made, is to determine
          whether the nature of the news accounts rises to the level
          of being substantially prejudicial.

Id. at 359, 569 P.2d at 894-95 (citation omitted) (quoting

United States v. Jones, 542 F.2d 186, 194 (4th Cir. 1976)).

Thus, in the context of the question of whether a jury received

improper information through a news article, the initial

evaluation is to examine the “nature” of the improper influence

or alleged misconduct.

          The Keliiholokai court ruled that the news account

disclosed the defendant’s prior convictions.          Id. at 360, 569

P.2d at 895.   As the defendant in Keliiholokai had not testified

in his own behalf and there was “no indication of any relevant

and proper purpose for which evidence of [his] prior convictions

would have been admissible at trial,” the convictions should not

have been before the jury.      Id.

          [W]e hold that the nature of the article containing
          appellant’s prior convictions was substantially prejudicial
          and rose to “that degree of prejudice” which “triggered the
          court’s responsibility to investigate further by
          specifically questioning the jury.” All of the factors
          present in the instant case should have prompted the trial
          court to conduct “an immediate voir dire inquiry to
          determine if the jurors had read the offensive articles
          and, if they had, whether they could nonetheless render a
          fair and true verdict.” This, the trial court failed to
          do. Accordingly, we conclude that appellant was denied a
          fair trial.



                                      17
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Id. at 360, 569 P.2d at 896 (emphases added) (citations omitted)

(quoting Jones, 542 F.2d at 194, and United States v. Thomas,

463 F.2d 1061, 1063 (7th Cir. 1972)) (alteration omitted).             The

Keliiholokai court first examined the general “nature” of the

outside influence, and having determined that it had the

potential to substantially prejudice him, applied a presumption

of prejudice in favor of the defendant.         Id.

           Accordingly, although the nature of the news article

was “substantially prejudicial,” the court in Keliiholokai did

not require the defendant to show that he had been prejudiced.

Indeed, it was unknown if any of the jurors had read the

article.   Id. at 361, 569 P.2d at 893.        The error by the trial

court was in failing to recognize that the article was of a

nature that, if read by a juror, could be substantially

prejudicial to the defendant, and therefore the trial court was

required to investigate whether any of the jurors had been

exposed to the contents of the article.

           Subsequently, this court’s decision in Williamson

considered whether a defendant was prejudiced by a dictionary

discovered in the jury room following deliberations.

Williamson, 72 Haw. at 98, 807 P.2d at 594.           Similar to

Keliiholokai, the Williamson decision first considered whether

the influence was of a nature that could substantially prejudice

the defendant’s right to a fair trial.         Id. at 102-04, 807 P.2d

                                    18
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


at 596.   The court observed, “During the course of a trial, a

juror’s obtaining of extraneous definitions or statements of law

differing from that intended by the court is misconduct which

may result in prejudice to the defendant’s constitutional right

to a fair trial.”    Id. at 102-03, 807 at 596 (emphasis added).

Also parallel to Keliiholokai, once the nature of the misconduct

was determined to have the potential to substantially prejudice

the defendant, this court charged the trial court with a duty to

adequately investigate the misconduct.         “[B]y not inquiring into

the identity of the juror who brought the dictionary and

obtaining a personal explanation from him or her as to its use,

the trial court did not have before it the totality of

circumstances surrounding the misconduct to decide whether it

was harmless.”    Id. at 104, 807 P.2d at 597.

           Williamson and Keliiholokai require the same procedure

of the trial court when an improper influence is raised: (1) an

initial determination that the outside influence is of a nature

that could substantially prejudice a defendant’s right to a fair

trial and, once that general nature has been established, (2) an

investigation of the totality of the circumstances.           The

Williamson and Keliiholokai formulations are equivalent because

both refer to “the nature” of the outside influence, indicating

that the initial test looks at the general type of improper

conduct alleged.    Thus, Keliiholokai instructs a trial court to

                                    19
       ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


examine whether the nature of the outside influence “rises to

the level of being substantially prejudicial,” Id. at 359, 569

P.2d at 895, and Williamson recognizes that this directive

requires that the trial court determine whether “such influence

is of a nature which could substantially prejudice the

defendant’s right to a fair trial.”           72 Haw. at 102, 807 P.2d at

596.

             Since Williamson, this court has most frequently cited

the Keliiholokai and Williamson formulations together.               For

example, State v. Bailey, 126 Hawaiʻi 383, 271 P.3d 1142 (2012),

recently cited the following passage from Furutani:

             [W]hen 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 of the alleged deprivation rises to the
             level of being substantially prejudicial. If it 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.

                   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
                   of circumstances 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 of prejudice
                   is raised, the burden of proving harmlessness
                   falls squarely on the prosecution.


                                       20
       ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Bailey, 126 Hawaiʻi at 399-400, 271 P.3d at 1158-59 (emphases

added) (quoting Furutani, 76 Hawaiʻi at 180–81, 873 P.2d at 59–

60).    Similar passages setting forth both formulations were

stated in State v. Keohokapu, 127 Hawaiʻi 91, 102, 276 P.3d 660,

671 (2012), Yamada, 108 Hawaiʻi at 478-79, 122 P.3d at 258-59,

and State v. Samonte, 83 Hawaiʻi 507, 523-24, 928 P.2d 1, 17-18

(1996). 12    Thus, the decisions of this court have most frequently

cited the Keliiholokai and Williamson formulations together as a

single test that first examines whether the general nature of

the misconduct could substantially prejudice the right to a fair

trial.     This test does not require a defendant to prove

substantial prejudice before a court has a duty to investigate

the circumstances.

             For instance, in Bailey, the issue presented was

whether a juror’s statements to the other members of the jury

concerning the defendant’s prior convictions warranted a new

      12
            When only the Keliiholokai formulation has been cited, this court
determined that the nature of the misconduct was of a type that could not
substantially prejudice a defendant. See State v. Gabalis, 83 Hawaiʻi 40, 45-
46, 924 P.2d 534, 540-41(1996) (citing only the Keliiholokai formulation and
affirming denial of new trial based on a general rule that “information
regarding the reputation of an establishment or a community location is, in
and of itself, insufficiently prejudicial to warrant the grant of a new
trial”); see also State v. Kim, 103 Hawaiʻi 285, 291, 81 P.3d 1200, 1206-07
(2003) (citing only the Keliiholokai formulation and affirming trial court’s
denial on motion for new trial because allegedly improper juror comments did
“not constitute information from outside sources, and, thus, were not
improper”); Pauline, 100 Hawaiʻi at 381-82, 60 P.3d at 331-32 (citing only the
Keliiholokai formulation and affirming trial court’s denial of motion for new
trial based on paucity of evidence demonstrating that the alleged misconduct
occurred).



                                       21
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


trial.     Bailey, 126 Hawaiʻi at 385, 271 P.3d at 1144.         This court

cited both the Keliiholokai and Williamson formulations and

concluded that the defendant “met his 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.’”     Id. at 399-400, 271 P.3d at 1158-59 (emphasis added)

(quoting Furutani, 76 Hawaiʻi at 180–81, 873 P.2d at 59–60).                We

concluded in Bailey that the trial court’s “decision to

investigate the impact of [the juror’s] statements on juror

impartiality was proper.” 13      Id. at 400, 271 P.3d at 1159.        Thus,

Bailey applied the test, as stated in Williamson, that the court

first examines the general nature of the misconduct, and if such

misconduct is generally of a nature that could substantially

prejudice a defendant, the trial court is required to

investigate the totality of the circumstances surrounding the

outside influence.

             Consequently, the circuit court should not have denied

Chin’s motion for new trial on the basis that she failed to

present sufficient evidence of a deprivation that rose to the

level of being substantially prejudicial.          The ICA similarly

erred when it indicated that the trial court would be bound to

      13
            Following a review of the trial court’s investigation, this court
reversed the trial court’s denial of a new trial because the juror’s
statements were “insurmountably prejudicial” and thus were not harmless
beyond a reasonable doubt. Bailey, 126 Hawaiʻi at 403, 271 P.3d at 1162



                                     22
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


investigate the circumstances of the misconduct only if the

trial court “determined that the alleged deprivation was

substantially prejudicial.” 14

                      B.    The Alleged Misconduct

            Turning to the present case, Chin alleged contact

occurred between a witness and a juror that may have had a

significant, inappropriate influence upon the deliberative

process.    Whether contact between a juror and a witness during

trial represents an outside influence of a nature that could

substantially prejudice a defendant has not been expressly

addressed by this court.       The United States Supreme Court has

stated, “Private communications, possibly prejudicial, between

jurors and . . . witnesses . . . are absolutely forbidden, and

invalidate the verdict, at least unless their harmlessness is

made to appear.”     Mattox v. United States, 146 U.S. 140, 150

(1892) (ordering a new trial based, in part, on improper

comments made by the court bailiff in the presence of the

jurors).    The Court has also stated,
      14
            If the test applied by the trial court and the ICA were correct,
in order for the presumption of prejudice to be invoked, the court would
first have to find that substantial prejudice was already present. It would
not be logical to apply a presumption of prejudice when prejudice has already
been found.

            It is equally incongruous that the nature of the outside
influence must be shown to rise to “substantial” prejudice when the
rebuttable presumption invokes mere “prejudice.” That is, under the trial
court’s and ICA’s formulation, substantial prejudice, a higher standard,
would have to be present in order to create a rebuttable presumption of mere
“prejudice,” a lower standard.



                                     23
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          In a criminal case, any private communication, contact, or
          tampering directly or indirectly, with a juror during a
          trial about the matter pending before the jury is, for
          obvious reasons, deemed presumptively prejudicial, if not
          made in pursuance of known rules of the court and the
          instructions and directions of the court made during the
          trial, with full knowledge of the parties.

Remmer v. United States, 347 U.S. 227, 229 (1954) (emphases

added) (remanding to the trial court with directions to hold a

hearing to determine whether a communication between an unknown

person and a juror was harmful to the defendant).           Contact

between witnesses and jurors is “generally improper” because it

raises a fundamental concern of whether the jury reached “their

verdict based solely on the evidence presented at trial” or was

“improperly influenced by inappropriate contacts.”           Dillard v.

State, 3 A.3d 403, 408-09 (Md. Ct. App. 2010) (quoting Jenkins

v. State, 375 Md. 284, 301, 825 A.2d 1008, 1018 (2003)).

          This court has made similar pronouncements indicating

a strong policy of preventing outside influence on a jury.             “The

law . . . 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.”         Pokini, 55 Haw. at 656,

526 P.2d at 108 (citing to Remmer, 347 U.S. at 229, and Mattox,

146 U.S. at 148-150).     “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



                                    24
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


crucial period of jury deliberations there was a private

communication bearing even remotely on the trial or the jury’s

functions in it.”     Id.

            Similarly, in State v. Messamore, the ICA considered a

possibly prejudicial conversation overheard in the hallway by

one of the jurors during a trial recess.          2 Haw. App. 643, 652,

639 P.2d 413, 420 (1982), abrogated on other grounds by State v.

Moore, 82 Hawaiʻi 202, 921 P.2d 122 (1996).          The ICA found it

“inherent” in the protection of the right to a fair trial “that

a defendant receive a trial by an impartial jury free from

outside influences” and ordered a new trial.           Id. at 652, 639

P.2d at 419-20.

            Thus, in accordance with the decisions of the Supreme

Court and of this court, we hold that any contact or private

communication, unless trivial, 15 during trial between a juror and

a witness represents an outside influence of a nature that could

substantially prejudice a defendant’s right to a fair trial.

See Williamson, 72 Haw. at 102, 807 P.2d at 596.

            Chin also alleged that the witness-juror contact was

in violation of a specific court instruction to the jury to not

      15
            A court may find that brief salutations, such as good morning or
good afternoon, are trivial when there are no circumstances present
indicating that the communication was anything other than benign. However,
if the court is not aware of the substance of the contact, the court has a
duty to investigate the nature of the communication, including whether it
concerned a matter pending before the jury. See Remmer, 347 U.S. at 229.



                                     25
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


talk to witnesses.      Conduct of a juror that is contrary to the

instructions of the court may constitute grounds for a finding

of juror misconduct. 16     In Furutani, the jury’s disregard of the

court’s instruction that they were not to “draw any inference

unfavorable to [the defendant] because he did not testify in

this case, or give any consideration to this fact in your

deliberation” was one factor in this court’s determination that

the State had not overcome the rebuttable presumption of

prejudice.    76 Hawaiʻi at 177, 186-87, 873 P.2d at 56, 65-66.

            While we do not consider whether a violation of any

court instruction may warrant investigation, here, the court’s

instruction to the jury specifically directed “Do not talk to

the defendant, lawyers, witnesses or anybody else connected with

this case.”    As the instruction here is consistent with our

historical policy of preventing outside influence on a jury, the

violation of that instruction provides additional evidence that

the influence is of a nature that could substantially prejudice

a defendant’s right to a fair trial.         See Pokini, 55 Haw. at

657, 526 P.2d at 108 (articulating a policy to “zealously

protect[] the efficacy of the right to jury trial by erecting a

strong presumption of prejudice when the integrity of jury

      16
            “‘Juror misconduct’ does not necessarily mean a juror’s bad faith
or malicious motive but means a violation of or departure from an established
rule or procedure for production of a valid verdict.” Oahu Publ’ns Inc. v.
Ahn, 133 Hawaiʻi 482, 490 n.8, 331 P.3d 460, 468 n.8 (2014).



                                     26
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


deliberations has been compromised by unauthorized contact with

non-jurors”).

          The circuit court was provided substantive evidence

that there was contact between Bowen and the jury foreperson

that was of a nature that could substantially prejudice Chin’s

right to a fair trial.     Accordingly, Chin made a prima facie

showing of juror misconduct that required the court to ascertain

the extent and effect of the improper influence.

                C.    The Court’s Duty to Investigate

          When there is juror misconduct that presents a

potential for substantial prejudice to a defendant’s right to a

fair trial, there is a “rebuttable presumption of prejudice,”

and “[t]he trial judge is then duty bound to further investigate

the totality of circumstances surrounding the outside influence

to determine its impact on jury impartiality.”          Williamson, 72

Haw. at 102, 807 P.2d at 596 (emphasis added).          An investigation

into the totality of circumstances includes an “individual

examination of potentially tainted jurors, outside the presence

of the other jurors, to determine the influence, if any, of the

extraneous matters.”     Id.

          For example, in Williamson, the trial court did “not

inquir[e] into the identity of the juror who brought the

dictionary and obtain[] a personal explanation from him or her

as to its use”; thus, “the trial court did not have before it

                                    27
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


the totality of circumstances surrounding the misconduct to

decide whether it was harmless.”         Id. at 104, 807 P.2d at 597.

In contrast, in State v. Amorin, 58 Haw. 623, 574 P.2d 895

(1978), the trial court had effectively investigated the

totality of the circumstances, including examination of the

relevant juror.    Id. at 626, 574 P.2d at 898.        Accordingly, this

court affirmed the finding of the trial court that the

misconduct “did not infect the rest of the jury” and was

“satisfied beyond a reasonable doubt that the juror misconduct .

. . was harmless and a new trial was properly denied.”            Id. at

631, 574 P.2d at 900.

          Thus, where a prima facie case of improper influence

has been shown, raising a presumption of prejudice, the totality

of the circumstances includes, at a minimum, the court’s

examination of the juror or jurors involved in the misconduct.

In short, there must be sufficient findings such that a

reviewing court “can determine whether the [outside influence]

was harmless or not.”     Messamore, 2 Haw. App. at 652, 639 P.2d

at 420 (finding reversible error in the trial court’s failure to

inquire into the totality of the circumstances surrounding

statements overheard by a juror).

          To overcome the presumption of prejudice, the State

must prove that the outside influence on the jury was harmless

beyond a reasonable doubt.      Williamson, 72 Haw. at 102, 807 P.2d

                                    28
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


at 596; see Furutani, 76 Hawaiʻi at 181, 873 P.2d at 60 (“[T]he

burden of proving harmlessness falls squarely on the

prosecution.”).    The trial court’s investigation of the totality

of the circumstances is a necessary prerequisite to finding that

the misconduct was harmless beyond a reasonable doubt.            See

Amorin, 58 Haw. at 631, 574 P.2d at 900.

          Therefore, in this case the circuit court was required

to investigate the totality of circumstances surrounding the

outside influence to determine its impact on the jury’s

impartiality.   See Williamson, 72 Haw. at 102, 807 P.2d at 596.

The court’s investigation should have included, at a minimum, an

examination of the foreperson.       In such an examination, the

circuit court might have inquired as to whether the foreperson

had heard and understood the court’s instruction not to “talk to

the . . . witnesses”; whether there was a reason for not

complying with this instruction; whether the foreperson gave the

witness a business card with personal contact information in

expectation of a response; whether the foreperson had approached

any other witness; and whether the foreperson told other jurors

or talked to other persons about his contact with Bowen.            The

court might have also considered whether it was advisable to ask

other jurors whether the contact between the foreperson and the

witness was discussed during deliberations.



                                    29
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          Because Chin made a prima facie showing of juror

misconduct of a nature that had the potential to substantially

prejudice her right to a fair trial, the burden was on the State

to rebut the presumption of prejudice by showing that the

contact was harmless beyond a reasonable doubt.          In light of the

absence of an inquiry by the circuit court as to the totality of

the circumstances surrounding the potential misconduct, there

was no showing by the State that such misconduct was harmless

beyond a reasonable doubt.      Therefore, it was error for the

trial court to deny Chin’s motion for new trial without

investigation into the totality of the circumstances surrounding

the outside influence.

                            III. CONCLUSION

          We reaffirm the procedure set forth in Williamson that

applies when there is an allegation of an improper influence

upon a jury.    This procedure calls for a court to initially

determine whether the improper influence is generally of a

nature that could substantially prejudice a defendant’s right to

a fair trial.    Williamson, 72 Haw. at 102, 807 P.2d at 596.              If

a court finds that the improper influence could be substantially

prejudicial, then a rebuttable presumption of prejudice is

raised, and the trial court must investigate the totality of the

circumstances surrounding the outside influence.           Id.   When the

alleged improper influence involves nontrivial contact between a

                                    30
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


juror and a witness during trial, we hold that such contact

raises a rebuttable presumption of prejudice, and a court is

required to investigate the totality of the surrounding

circumstances.

          In this case, the circuit court was required to

investigate the circumstances surrounding the nontrivial

communication between a defense witness and the jury foreperson.

Because the circuit court did not conduct such an investigation,

we cannot conclude that Chin’s fundamental right to a fair trial

by an impartial jury was not compromised.         Accordingly, the

ICA’s December 5, 2014 Judgment on Appeal and the circuit

court’s July 19, 2013 Judgment of Conviction and Sentence are

vacated, and the case is remanded to the circuit court for a new

trial.

William A. Harrison                      /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Sonja P. McCullen
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




                                    31
