No. SCWC-30278 Thursday, December 1, 2011, 11 a.m.

 (Amended 09/21/11

NOTE: The recording has been edited to delete the names of jurors.

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STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. PETER KALANI BAILEY, Petitioner/Defendant-Appellant.

(Attempted Sexual Assault in the First Degree)

Attorney for Petitioner/Defendant-Appellant: John M. Tonaki, Public Defender, and Jon N. Ikenaga, Deputy Public Defender

Attorney(s) for Respondent/Plaintiff-Appellee: Michael S. Kagami, Deputy Prosecuting Attorney

NOTE: Certificate of Recusal, by Justice Sabrina S. McKenna, filed 08/10/11.

NOTE: Order assigning Circuit Court Judge Richard W. Pollack, in place of Justice Sabrina S. McKenna, recused, filed 09/02/11.

NOTE: Order accepting Application for Writ of Certiorari, filed 09/14/11.

NOTE: Order granting motion to continue date of oral argument from 11/17/11 to 12/01/11, filed 09/21/11.

COURT: MER, CJ; PAN, SRA, JED, JJ; Circuit Court Judge Richard W. Pollack, in place of Justice McKenna, recused.

The above oral argument is set in:

Supreme Court courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/defendant-appellant Peter Kalani Bailey timely petitioned this court for a writ of certiorari to review the May 16, 2011 judgment of the Intermediate Court of Appeals (ICA), entered pursuant to the ICA’s April 25, 2011 Summary Disposition Order affirming the Circuit Court for the Third Circuit’s (circuit court) December 10, 2009 Judgment of Conviction and Sentence.

Bailey was charged with four counts of sexual assault in the first degree in violation of HRS § 707-730(1)(b). Following a jury trial, Bailey was convicted on four counts of attempted sexual assault in the first degree in violation of HRS §§ 705-500 and 707-730(1)(b).

Bailey argues that (1) there was not substantial evidence to support his convictions; (2) the circuit court abused its discretion in denying his motion for a new trial based on juror misconduct, which involved a juror’s statements during deliberations concerning Bailey’s prior criminal record; (3) the circuit court erred in seating an alternate juror after deliberations had begun and such error was not harmless beyond a reasonable doubt; (4) there was no rational basis in the evidence for instructing the jury on the lesser included offenses of attempted sexual assault in the first degree; and (5) his constitutional right to a public trial was violated when the courtroom doors were locked during a portion of the jury selection process.