Opposition Brief — Nolan Espinda, Director, Hawaii Department of Public Safety, et al., Petitioners v. Royce C. Gouveia
Supreme Court briefOct 31, 2019
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71
CASE NUMBER
STATE OF HAWAII
VERDICT
CIRCUIT COURT OF THE
FIRST CIRCUIT
;
CR. NO.
I
12-1-1474
I
STATE OF HAWAII VS. (DEFENDANf)
ROYCE C. GOUVEIA
I
WE THE JURY in this case find the ~i1endant, NOT GUilTY.
DATE
FOREPERSON ,
FIRST CIRCU!T
STATE OFHAWAI!
FILED
MANSLAUGHTER
_ _ _ _,20_
_ _ _ o'clock __M.
Clerk, 4th Division
-1BIO App. 1
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FIRST CIRCUIT COURT
STATE OF HAWAII
FILED
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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAl'I
STATE OF HAWAl'I,
vs.
ROYCE C. GOUVEIA,
Defendant.
)
)
)
)
)
CR. NO. 12-1-1474
CHARGE(S):
MANSLAUGHTER
)
)
)
)
)
COMMUNICATION NO. 3 FROM THE
JURY
-------------)
COMMUNICATION NO. 3 FROM THE JURY
QUESTION:
YA..l.t Wli~la ,dlt)c/q,l.
FOREPERSON
DATE:
-2BIO App. 2
Otot·;/00 TIME: /qJo
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•·••· .
C.L\1
.
FIRST ORCUJT COURT
STATE OF HAWAII
FILED
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sEe,,- 6)2013
, 20_
------ .1:w;n Y. N,:izaki ~-~
(!er.le, 4th ,Oivisi'JA
( __ )
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAl'I
STATE OF HAWAl'I,
)
)
CR. NO. 12-1-1474
)
vs.
ROYCE C. GOUVEIA,
Defendant.
)
)
CHARGE(S):
MANSLAUGHTER
)
)
)
)
)
COMMUNICATION NO. 2 FROM THE
JURY
------------)
COMMUNICATION NO. 2 FROM THE JURY
FOREPERSON
DATE:@-0;"
-3BIO App. 3
~
TIME:./MJ..
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846
Haw.
384 PACIFIC REPORTER, 3d SERIES
2. Criminal Law O867.2
139 Hawai‘i 70
STATE of Hawai‘i, Respondent/Plaintiff–
Appellee,
v.
Royce C. GOUVEIA,
Petitioner/Defendant–Appellant.
SCWC–14–0000358
Supreme Court of Hawai‘i.
OCTOBER 25, 2016
Background:
Defendant,
who
was
charged with manslaughter, moved to dismiss declaration of mistrial based on jurors’ concerns about their safety. The Circuit Court, First Circuit, Glenn J. Kim, J.,
denied motion. Defendant appealed. The
Intermediate Court of Appeals, 2015 WL
2066780, affirmed. Defendant’s application
for writ of certiorari was accepted.
Holdings: The Supreme Court, Recktenwald, C.J., held that:
(1) Circuit Court did not rely on improper
juror testimony, concerning the effect
that jurors’ concerns about their safety
due to man in courtroom glaring at
defendant had on the verdict, when it
concluded that manifest necessity existed for mistrial;
(2) presumption of prejudice, which arose
from jurors’ concerns about their safety, was not rebutted beyond reasonable
doubt; and
(3) no reasonable alternative to mistrial
would have eliminated potential of
prejudice resulting from jurors’ concerns for their safety, and thus, manifest necessity existed for mistrial, such
that retrial of defendant would not violate double jeopardy.
Affirmed.
Nakayama, J., filed dissenting opinion.
1. Criminal Law O1155
A trial court’s declaration of a mistrial is
reviewed under the abuse of discretion standard.
A determination of manifest necessity
for a mistrial is left to the sound discretion of
the trial court.
3. Criminal Law O1147
An abuse of discretion occurs when the
decisionmaker exceeds the bounds of reason
or disregards rules or principles of law or
practice to the substantial detriment of a
party.
4. Double Jeopardy O96, 99
A mistrial is properly declared and retrial is not barred by the defendant’s right
against double jeopardy where the defendant
consented to the mistrial or there was manifest necessity for the mistrial. U.S. Const.
Amend. 5.
5. Double Jeopardy O2
The issue whether a reprosecution is
barred by double jeopardy is a question of
constitutional law. U.S. Const. Amend. 5.
6. Criminal Law O1134.29
The Supreme Court reviews questions of
constitutional law by exercising its own independent constitutional judgment based on
the facts of the case.
7. Criminal Law O1139
The Supreme Court reviews questions of
constitutional law de novo under the right/
wrong standard.
8. Criminal Law O867.19
Circuit Court did not rely on improper
juror testimony, concerning the effect that
jurors’ concerns about their safety due to
man in courtroom glaring at defendant had
on the verdict, when it concluded that manifest necessity existed for mistrial in manslaughter prosecution; Circuit Court found
that manifest necessity existed for mistrial
based on questions to jurors as to what occurred, whether incident was discussed by
jurors, when it was discussed, length of discussion, and what jurors said about the incident. Haw. R. Evid. 606(b).
9. Criminal Law O957(1)
Evidence rule, limiting jurors’ testimony
upon an inquiry into the validity of a verdict,
BIO App. 107
STATE v. GOUVEIA
Cite as 384 P.3d 846 (Hawai‘i 2016)
is inapplicable to statements made prior to
jurors reaching a verdict. Haw. R. Evid.
606(b).
10. Criminal Law O957(6)
Once a verdict has been reached, the
court cannot consider the jurors’ testimony
as to the effect of an improper statement
upon them; the court can only consider
whether such statement was made and
whether, given the statement, the court can
say that the defendant had a trial before an
impartial jury. Haw. R. Evid. 606(b).
11. Criminal Law O633.7
The right to a fair trial is guaranteed to
both defendants and to the State.
12. Criminal Law O867.4
Although the defendant has a valued
right to have his case concluded by a single
tribunal, because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and
because those circumstances do not invariably create unfairness to the accused, his
valued right to have the trial concluded by a
particular tribunal is sometimes subordinate
to the public interest in affording the prosecutor one full and fair opportunity to present
his evidence to an impartial jury.
13. Double Jeopardy O99
‘‘Manifest necessity,’’ as would warrant a
mistrial and not bar retrial based on defendant’s right against double jeopardy, is defined as circumstances in which it becomes
no longer possible to conduct the trial or to
reach a fair result based upon the evidence.
U.S. Const. Amend. 5; Haw. Rev. Stat.
§ 701-110(4) (b) (iii).
See publication Words and Phrases for
other judicial constructions and definitions.
14. Double Jeopardy O99
Manifest necessity, as would warrant a
mistrial and not bar retrial based on defendant’s right against double jeopardy, protects
the right to a fair trial for both the defendant
and the State. U.S. Const. Amend. 5; Haw.
Rev. Stat. § 701-110(4) (b) (iii).
Haw.
847
15. Double Jeopardy O99
When circumstances arise that could influence the impartiality of the jury and thus
affect the ability to reach a fair result based
on the evidence, a rebuttable presumption of
prejudice is raised when determining whether manifest necessity exists for mistrial, such
that defendant’s right against double jeopardy would not bar retrial. U.S. Const.
Amend. 5; Haw. Rev. Stat. § 701-110(4) (b)
(iii).
16. Double Jeopardy O99
To overcome a presumption of prejudice
resulting from outside influence on the jury,
the trial court, after investigating the totality
of the circumstances, must find that the outside influence on the jury was harmless beyond a reasonable doubt; if this influence
cannot be proven harmless beyond a reasonable doubt, then the court must look at all
reasonable alternatives to cure the harm before declaring a mistrial based on manifest
necessity, as would allow a retrial without
violating defendant’s right against double
jeopardy. U.S. Const. Amend. 5; Haw. Rev.
Stat. § 701-110(4) (b) (iii).
17. Double Jeopardy O99
Presumption of prejudice, which arose
from jurors’ concerns about their safety due
to man glaring at defendant during manslaughter trial, was not rebutted beyond reasonable doubt, and thus, manifest necessity
existed for mistrial, such that retrial of defendant would not violate double jeopardy;
jurors expressed actual concern for their
safety, and although no juror admitted that
the incident affected jurors’ decision-making
process, four jurors stated that discussions of
incident happened at beginning of deliberations, which indicated that those discussions
could have had effect on subsequent jury
deliberations. U.S. Const. Amend. 5; Haw.
Rev. Stat. § 701-110(4) (b) (iii).
18. Double Jeopardy O99
Once there is a showing that an outside
incident may have influenced the jury, there
is a rebuttable presumption of prejudice that
must be overcome beyond a reasonable doubt
to preclude mistrial based on manifest necessity, as would bar retrial based on defendant’s double jeopardy rights. U.S. Const.
BIO App. 108
848
Haw.
384 PACIFIC REPORTER, 3d SERIES
Amend. 5; Haw. Rev. Stat. § 701-110(4) (b)
(iii).
OPINION OF THE COURT BY
RECKTENWALD, C.J.
19. Double Jeopardy O99
This case requires us to determine whether the trial court erred in declaring a mistrial
based on jurors’ concerns about their safety.
Defendant Royce Gouveia was charged with
manslaughter and tried before the Circuit
Court of the First Circuit.1 After deliberating, the jurors sent several notes to the
court. The first note stated: ‘‘We reached a
verdict.’’ Another note expressed concern for
their safety because a man on the prosecutor’s side of the courtroom had been ‘‘glaring
and whistling at [Gouveia].’’ The circuit court
conducted voir dire of the jurors to determine what, if any, effect the incident had on
them. The circuit court then declared a mistrial based on manifest necessity. Gouveia
subsequently filed a motion to dismiss, asserting that the circuit court’s finding of
manifest necessity and declaration of a mistrial was erroneous, and that further prosecution was prohibited on double jeopardy
grounds. The circuit court denied the motion.
A prima facie showing of improper influence is all that is required to raise the presumption of prejudice; therefore, it is the
possibility of improper influence that must be
disproved in order to show that a mistrial is
not warranted based on manifest necessity,
as would bar retrial based on defendant’s
double jeopardy rights. U.S. Const. Amend.
5; Haw. Rev. Stat. § 701-110(4) (b) (iii).
20. Double Jeopardy O99
When examining the record for evidence
of manifest necessity, as would warrant a
mistrial and not bar retrial based on defendant’s right against double jeopardy, the Supreme Court must determine whether the
trial court sufficiently considered less severe
options available and balanced the accused’s
rights against the public interest. U.S.
Const. Amend. 5; Haw. Rev. Stat. § 701110(4) (b) (iii).
21. Double Jeopardy O99
No reasonable alternative to mistrial
would have eliminated potential of prejudice
resulting from jurors’ concerns for their safety due to man glaring at defendant during
manslaughter trial, and thus, manifest necessity existed for mistrial, such that retrial of
defendant would not violate double jeopardy,
where jury reached verdict, informed the
court that they reached the verdict, and then
notified the court that there was concern for
their safety. U.S. Const. Amend. 5; Haw.
Rev. Stat. § 701-110(4) (b) (iii).
Gouveia appealed the denial of his motion
to dismiss to the Intermediate Court of Appeals (ICA). The ICA affirmed the circuit
court, State v. Gouveia, CAAP–14–358, 2015
WL 2066780 (App. Apr. 30, 2015) (mem.), and
Gouveia then petitioned this court to review
the ICA’s judgment.
We conclude that the circuit court did not
abuse its discretion in concluding that there
was manifest necessity for a mistrial because
the presumption of prejudice was not overcome beyond a reasonable doubt. Accordingly, the ICA’s June 4, 2015 judgment on appeal is affirmed.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP–14–
0000358; CR. NO. 12–1–1474)
Keith S. Shigetomi, Honolulu, for petitioner.
Donn Fudo, Honolulu, for respondent.
RECKTENWALD, C.J., McKENNA,
POLLACK, AND WILSON, JJ., WITH
NAKAYAMA, J., DISSENTING
1.
I.
Background
On September 25, 2012, an altercation occurred in which Gouveia struck Albert Meyer, causing Meyer to fall and hit his head on
the pavement. Meyer was taken to the hospital by ambulance and pronounced brain dead
two days later. Gouveia was arrested and
charged with manslaughter for recklessly
causing the death of Meyer in violation of
The Honorable Glenn J. Kim presided.
BIO App. 109
STATE v. GOUVEIA
Haw.
Cite as 384 P.3d 846 (Hawai‘i 2016)
Hawai‘i Revised Statutes (HRS) § 707–
702(1)(a).
On the afternoon of June 6, 2013, the same
day the State and Gouveia made their closing
arguments in Gouveia’s trial, the jury sent
two simultaneous communications to the circuit court. Communication No. 3, signed at
2:20 p.m., stated: ‘‘We reached a verdict.’’
Communication No. 2, signed four minutes
later, stated: ‘‘Concern. This morning on
prosecutor’s side of courtroom there was a
man, shaved head, glaring and whistling at
defendant. We have concern for our safety as
jurors.’’
The circuit court told the State and Gouveia, ‘‘My intention, unless counsel TTT can
persuade me otherwise, is just to take no
action on this[.]’’ However, both counsel
agreed that the court should question the
jurors ‘‘[a]s to its effect, if any, on their
deliberations and their verdict[.]’’ The circuit
court then determined that, before opening
the verdict, it would allow counsel to voir dire
the jurors individually and would also ask
questions directly.
Before questioning the jurors, the circuit
court asked counsel whether they knew anything about the occurrence to which Communication No. 2 referred. Defense counsel stated that he was not aware of anything that
had happened. The Deputy Prosecuting Attorney (DPA) stated that she did not see
anything, but was aware that Meyer’s brother had been in the courtroom that morning,
was ‘‘pretty upset,’’ and had a shaved head.
A.
Questioning of the Jurors Regarding
Communication No. 2
The circuit court questioned all twelve jurors individually. Four jurors stated that
they witnessed an individual seated on the
prosecutor’s side of the courtroom whistling
and/or glaring at Gouveia. The incident was
brought up in the jury room, where some of
the jurors who observed the incident stated
that they ‘‘were a little bit scared.’’ When
Juror No. 4 was asked by the court, ‘‘So I
take it you have concern for your safety,’’ she
replied, ‘‘Yes.’’
Seven jurors indicated that the discussion
of the incident occurred before the verdict,
849
ranging from within ten minutes of commencing deliberation to the end of deliberation. At least four of these jurors indicated
that the discussion occurred at the beginning
of deliberations and that it was one of the
first topics discussed. All twelve jurors stated
that neither the incident itself nor the discussions of it affected their own decision, but
when Juror No. 11 was asked if the incident
‘‘appear[ed] to have an impact on other people’s decision[,]’’ she replied that ‘‘[i]t did.’’
B.
The State Moves for a Mistrial
After all of the jurors had been questioned,
the circuit court asked both the State and
Gouveia if they wanted the court to take any
further action. Gouveia said no, but the State
moved for a mistrial.
The State argued there was a manifest
necessity to declare a mistrial because the
topic of the man glaring and whistling at
Gouveia had come up during deliberations,
no one had remarked that it was an improper
topic for the jury to consider, and, based on
the statement made by Juror No. 11, the
topic had seemed to influence the other jurors. The State noted that approximately five
of the jurors had said that the topic of the
incident came up during deliberations, i.e.,
before the jury had reached its verdict. Thus,
according to the State, the verdict was ‘‘tainted.’’
The State also argued that it was important that at least three jurors said the topic
of the incident came up at the beginning of
the deliberations because, along with the fact
that the jurors decided to write a communication to the court after reaching a verdict, it
implied that it was important to some of the
jurors.
Gouveia argued that because the court had
instructed the jurors that they had to decide
the case based solely on the evidence presented, and each of the jurors said that the
discussion did not impact their decision,
there was no manifest necessity.
The circuit court determined that it was
required to look at the totality of the circumstances and find beyond a reasonable doubt
that the jurors’ concern for their personal
safety had no impact on any of the twelve
BIO App. 110
850
Haw.
384 PACIFIC REPORTER, 3d SERIES
jurors’ decisions. If it could not find that
beyond a reasonable doubt, then there would
be manifest necessity requiring a mistrial.
The circuit court then orally granted the
State’s motion for mistrial:
[W]hen I TTT apply my reason and common sense to this that at least some of
these jurors have TTT what strikes me as a
really serious concern for their personal
safety and it came up according to, at least
as I count, four or five of them, it [was]
TTT one of the first topics of discussion
when they got back in the room and started deliberating the case. Somebody
brought it up and they started talking
about it. It frankly beggars my reason and
common sense that it would have no bearing on the deliberations in this case and
therefore the verdict.
I’m going to grant the State’s motion for
mistrial. I’m going to find there’s manifest
necessity for such based on what I said TTT
and everything else that’s been put on the
record, including my questions to counsel.
The verdict’s going to be sealed for future
purposes, if any, but obviously we’re not
going to take the verdict. I’m declaring a
mistrial and I’m finding manifest necessity
for that, because I don’t think there’s anything short of a mistrial TTT that can cure
it. The verdict’s tainted, in my view, based
on my findings.
And to be explicit about it, as the finder of
fact, I don’t find it credible that all 12 of
these people despite the answer they gave
me about no impact on their decision, I
think at least one, and probably more than
one of them TTT had these serious concerns
about their safety. It really beggars my
reason and common sense that it could not
have had any impact on their deliberations
and decision in this case.
The circuit court later added:
So the record’s clear and [Defense Counsel] has this appellate issue if it becomes
one in the future, I am importing that
standard from the juror misconduct cases
in my ruling hereTTTT And I’m finding that
I cannot find beyond a reasonable doubt
that there was no impact on the deliberations or verdict in this case such that the
verdict was not tainted.
On October 22, 2013, the circuit court entered its findings of fact (FOFs), conclusions
of law (COLs), and order granting the State’s
motion for mistrial. The circuit court made
the following relevant FOFs:
9. Seven of the jurors indicated discussion of the incident occurred before the
verdict, ranging from within ten minutes of
commencing deliberation to the end of deliberation. At least four of these seven
jurors indicated discussion of the incident
occurred at the beginning of deliberations,
specifically that it was one of the first
topics discussed.
10. During the discussion of the incident
prior to verdict, the jurors who actually
observed the incident communicated to the
other jurors fear for their own safety.
11. Some of the juror answers regarding
Communication No. 2 and the incident included the following:
a. Some jurors were worried about retaliation;
b. The unidentified male’s look appeared hostile during the incident;
c. Some jurors were concerned;
d. Some jurors felt intimidated; and
e. The incident impacted other jurors’
decisions.
12. Although all twelve jurors indicated
that neither the incident itself nor the discussion regarding the incident during the
deliberations affected their own decision,
at least one juror indicated that the incident appeared to have impacted the deliberation process and decision.
13. The incident was not part of the evidence in the case at hand.
14. The verdict was never taken for this
case. At no point during the proceedings
did the Court take, read or otherwise get
any indication of the jury’s verdict.
15. The Court finds that the jurors’ statements that the incident did not affect their
decision-making process and/or deliberations are not credible as evidenced by the
plain language of Communication No. 2
and answers of the voir dire of each individual juror.
BIO App. 111
STATE v. GOUVEIA
Cite as 384 P.3d 846 (Hawai‘i 2016)
Haw.
851
16. The Court further finds that the concern for personal safety as expressed by
the jurors had an impact on the jurors’
decisions based on the totality of the circumstances present and thus its effect on
the subsequent verdict was not harmless
beyond a reasonable doubt.
court erroneously found manifest necessity
and, as such, ‘‘the continued prosecution of
Defendant violates his federal and state constitutional rights against double jeopardy[.]’’
The circuit court denied Gouveia’s motion.2
The court made the following relevant
COLs:
5. Communication No. 2 raised the concern of the Court and both counsel that the
incident may have substantially prejudiced
the right to a fair trial. After further investigating the totality of circumstances surrounding Communication No. 2, the Court
concluded at least some of the jurors were
not credible, although explicitly indicated
they were not lying. The Court’s concern is
that although all twelve jurors unanimously agreed to release Communication No. 2,
no juror admitted that the incident affected their own decision-making process. Furthermore, reason and common sense dictates that the incident did have an effect
on the deliberations hence the impartiality
of the jurors, which is not harmless beyond
a reasonable doubt[.]
TTTT
8. Under the totality of the circumstances
in light of the plain language of Communication No. 2 and the voir dire of the individual jurors, the Court finds that the jury
was not impartial in their [sic] deliberation
and decision-making process. Based on the
foregoing, there is no other remedy short
of a mistrial to cure the issue at hand as
neither a continuance nor a further jury
instruction would appropriately address
the issue of an impartial jury and its subsequent tainted verdict.
TTTT
10. The incident underlying Communication No. 2 was both beyond the court’s
control and unforeseeable. Accordingly,
based on Communication No. 2, and the
totality of the circumstances, there is manifest necessity for a mistrial.
Gouviea alleged two points of error to the
ICA: 1) the circuit court abused its discretion in declaring a mistrial because manifest
necessity was not present; and 2) the circuit
court erroneously denied his motion to dismiss for violation of double jeopardy.
Gouveia filed a motion to dismiss based on
double jeopardy, arguing that the circuit
2.
Although it is apparent from the record that the
parties believed the sealed verdict was ‘‘not
C.
Appeal to the ICA
In a memorandum opinion, the ICA affirmed the circuit court’s order denying
Gouveia’s motion to dismiss for violation of
double jeopardy. First, the ICA noted that
Gouveia’s primary argument was ‘‘his challenge to the Circuit Court’s finding that the
jurors’ statements that the incident did not
affect their decision making process and/or
their deliberations were not credible.’’ However, the ICA disagreed with Gouveia, and
deferred to the circuit court’s findings that
the jurors were not influenced by the incident or the discussion: ‘‘[T]he Circuit Court
was in a better position than this court to
assess the credibility of the jurors, understand the dynamics of the trial process in
this case, and evaluate the effect that the
external incident had on the jurors’ deliberations.’’ Accordingly, the ICA held that the
circuit court did not abuse its ‘‘broad discretion’’ in determining that manifest necessity
existed for a mistrial.
The ICA also found that the circuit court
had sufficiently considered alternative options to a mistrial when it concluded that
‘‘neither a continuance nor a further jury
instruction would appropriately address the
issue of an impartial jury and its subsequent
tainted verdict.’’ The ICA further noted that,
in any event, Gouveia had failed to argue on
appeal that the circuit court erred in failing
to consider options less severe than a mistrial.
The ICA also noted that there was a possible violation of Hawai‘i Rules of Evidence
(HRE) Rule 606(b), but that even if the
guilty,’’ this was not confirmed until the ICA
unsealed the verdict on appeal.
BIO App. 112
852
Haw.
384 PACIFIC REPORTER, 3d SERIES
circuit court violated this rule in allowing the
jurors to be questioned regarding the effect
of the incident and the discussion on their
verdict, Gouveia had waived any such argument by failing to object to the questioning
in the circuit court, failing to raise it as an
issue on appeal, and in relying on the jurors’
testimony in his appellate briefs.
The ICA rejected Gouveia’s argument that
the circuit court erroneously denied his motion to dismiss on double jeopardy grounds
because ‘‘[w]hen a trial court declares a mistrial that is supported by a proper finding of
manifest necessity, ‘retrial is not barred by
the defendant’s right against double jeopardy.’ ’’
Chief Judge Nakamura dissented on the
ground that ‘‘the Circuit Court’s finding of
manifest necessity was based on its erroneous view that such finding was per se required as a result of the jurors’ expression of
concern for their safety.’’ The dissent agreed
with the majority that any claim of error
based on HRE Rule 606(b) was waived.
Gouveia sought review in this court, presenting three questions:
1. Did a divided [ICA] erroneously affirm
the trial court’s declaration of a mistrial, at the request of [the State], over
[Gouveia’s] objection, before receiving
a jury’s not guilty verdict, based on
‘‘manifest necessity’’ when each juror
indicated that his or her verdict was
not influenced by an extra-judicial incident?
2. Did a divided [ICA] erroneously affirm
the trial court’s denial of a Motion to
Dismiss for Violation of Double Jeopardy based on the trial court’s prior
declaration of the mistrial?
3. Did a divided [ICA] erroneously rely
on testimony which should not have
been permitted pursuant to Rule
606(b) of the [HRE]?
II. Standards of Review
A.
Declaration of Mistrial and Finding of
Manifest Necessity
[1–3] A trial court’s declaration of a mistrial is reviewed under the abuse of discretion standard. A determination of manifest
necessity is likewise left to the sound discretion of the trial court. An abuse of discretion
occurs when the decisionmaker exceeds the
bounds of reason or disregards rules or principles of law or practice to the substantial
detriment of a party.
State v. Wilmer, 97 Hawai’i 238, 243, 35 P.3d
755, 760 (2001) (citation and quotation marks
omitted).
B.
Denial of Motion to Dismiss for Violation of Double Jeopardy
[4–7] ‘‘A mistrial is properly declared and
retrial is not barred by the defendant’s right
against double jeopardy where the defendant
consented to the mistrial or there was manifest necessity for the mistrial.’’ Id. at 242–43,
35 P.3d at 759–60.
The issue whether a reprosecution is
barred by double jeopardy is a question of
constitutional law. We review questions of
constitutional law by exercising our own
independent constitutional judgment based
on the facts of the case. Accordingly, we
review questions of constitutional law de
novo under the right/wrong standard.
State v. Rogan, 91 Hawai’i 405, 411–12, 984
P.2d 1231, 1237–38 (1999) (citation and internal quotation marks omitted).
III. Discussion
A.
The Circuit Court did not Rely on
Improper Juror Testimony When it
Concluded that Manifest Necessity
Existed for a Mistrial
[8] Gouveia argues in his application that
pursuant to HRE Rule 606(b), the circuit
court should not have permitted the jurors to
be questioned about whether the incident or
subsequent discussion of the incident affected
their decisions and that the ICA’s ruling that
he had waived any claim of error based on
HRE Rule 606(b) was ‘‘unfair.’’ Gouveia argues that the incompetent evidence violated
his right to a fair trial and, without it, there
was no basis for the trial court’s or the ICA’s
decisions.
HRE Rule 606(b) provides:
Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of
BIO App. 113
STATE v. GOUVEIA
Cite as 384 P.3d 846 (Hawai‘i 2016)
a verdict or indictment, a juror may not
testify concerning the effect of anything
upon the juror’s or any other juror’s mind
or emotions as influencing the juror to
assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes in connection therewith. Nor
may the juror’s affidavit or evidence of any
statement by the juror indicating an effect
of this kind be received.
[9, 10] HRE Rule 606(b) is inapplicable
to statements made prior to jurors reaching
a verdict. See State v. Bailey, 126 Hawai’i
383, 402 n.23, 271 P.3d 1142, 1161 n.23 (2012).
Once a verdict has been reached, however,
‘‘the court cannot consider the jurors’ testimony as to the effect of the improper statement upon them.’’ State v. Kim, 103 Hawai’i
285, 291, 81 P.3d 1200, 1206 (2003) (citation
and quotation marks omitted). The court
‘‘can only consider whether such statement
was made TTT and whether, given the statement, we can say that [the defendant] had a
trial before an impartial jury.’’ Id.
Here, the court’s questions to the jurors
were appropriate, except for the questions
regarding the effect of the incident on the
verdict. See id. However, the court specifically found that it did not find the jurors’ responses on that point to be credible, and in
any event, the record indicates that the bases
for the court’s decision comported with the
limitations imposed by HRE Rule 606(b).
For instance, in the written FOFs, the
circuit court found that seven jurors indicated that discussion of the incident occurred
before the verdict. At least four of these
jurors indicated that the discussion occurred
at the beginning of deliberations, and that it
was one of the first topics discussed. It also
found that the incident caused some jurors to
feel concern, intimidation, and fear retaliation. Based on these facts, the court found
that ‘‘the concern for personal safety as expressed by the jurors had an impact on the
jurors’ decisions based on the totality of the
circumstances present and thus its effect on
3.
The ICA concluded that Gouveia waived his
HRE Rule 606(b) challenge by failing to object to
the court’s questioning of the jurors as to the
effect of the incident on their decision-making.
Because we conclude that the bases for the
Haw.
853
the subsequent verdict was not harmless beyond a reasonable doubt.’’
In short, the court properly asked the
jurors what occurred, their reaction to what
occurred, whether the incident was discussed
by some or all of the jurors, when it was
discussed during deliberations, the length of
the discussion, and what other jurors said
about the incident. Based on these answers,
it concluded that there was manifest necessity for a mistrial. Accordingly, we do not
agree with Gouveia that the circuit court
relied on improper HRE Rule 606(b) testimony.3
B.
The Circuit Court did not Abuse its
Discretion in Finding that Manifest
Necessity Existed for a Mistrial Because the Presumption of a Possibility
of Unfairness was not Rebutted Beyond a Reasonable Doubt
Gouveia argues that the circuit court
abused its discretion when it found there was
manifest necessity for a mistrial. Specifically,
Gouveia contends that each juror stated that
their verdict was not influenced by the incident or subsequent discussions regarding it,
that the jurors’ concerns regarding their
safety were ‘‘peripheral to Gouveia’s guilt or
innocence[,]’’ and that there was ‘‘no evidence
that the incident was used as a circumstance
against either party.’’ Lastly, Gouveia adopts
the argument in the ICA’s dissent that ‘‘the
circuit court’s finding of manifest necessity
was based on its erroneous view that such
finding was per se required as the result of
the jurors’ expression of concern for their
safety[.]’’
We conclude that the circuit court did not
abuse its discretion in deciding that manifest
necessity existed for a mistrial because the
presumption of prejudice could not be overcome beyond a reasonable doubt and no reasonable alternatives to a mistrial were available.
court’s decision comported with the limitations
imposed by HRE Rule 606(b), we do not reach
the waiver issue, or endorse the ICA’s discussion
of that issue.
BIO App. 114
854
Haw.
384 PACIFIC REPORTER, 3d SERIES
1. The circuit court did not abuse its
discretion in finding that, under the
totality of the circumstances, manifest necessity existed to warrant a
mistrial
[11] The right to a fair trial is guaranteed to both defendants and to the State.
Although the defendant has a valued right to
have his case concluded by a single tribunal,
[12] [b]ecause of the variety of circumstances that may make it necessary to
discharge a jury before a trial is concluded,
and because those circumstances do not
invariably create unfairness to the accused,
his valued right to have the trial concluded
by a particular tribunal is sometimes subordinate to the public interest in affording
the prosecutor one full and fair opportunity to present his evidence to an impartial
jury.
State v. Quitog, 85 Hawai’i 128, 142, 938 P.2d
559, 573 (1997) (emphasis added) (quoting
Arizona v. Washington, 434 U.S. 497, 505, 98
S.Ct. 824, 54 L.Ed.2d 717 (1978)).
[13] ‘‘A mistrial is properly declared and
retrial is not barred by the defendant’s right
against double jeopardy where the defendant
consented to the mistrial or there was manifest necessity for the mistrial.’’ Wilmer, 97
Hawai’i at 242–43, 35 P.3d at 759–60. Manifest necessity is defined as ‘‘circumstances in
which it becomes no longer possible to conduct the trial or to reach a fair result based
upon the evidence.’’ Id. at 244, 35 P.3d at 761
(quoting Quitog, 85 Hawai’i at 143, 938 P.2d
at 574). Hawai‘i law states that termination of
prosecution is not improper, and thus a defendant can be retried, when ‘‘[p]rejudicial
conduct, in or outside the courtroom, makes
it impossible to proceed with the trial without
injustice to either the defendant or the
State[.]’’ HRS § 701–110(4) (b) (iii).
[14] Therefore, manifest necessity protects the right to a fair trial for both the
defendant and the State. See State v. Deguair, 136 Hawai’i 71, 91, 358 P.3d 43, 63
(2015).
In Wilmer, we noted that ‘‘[b]ecause manifest necessity is a high standard not to be
declared lightly, a trial judge should record
his or her reasons for declaring a mistrial
and include the reasons for finding manifest
necessity.’’ 97 Hawai’i at 245, 35 P.3d at 762.
Moreover, we stated that ‘‘it is impossible to
define all the circumstances that would render it proper to interfere by declaring a
mistrial’’ and that ‘‘no standard can be applied mechanically or without attention to the
particular problem confronting the trial
judge.’’ Id. at 244–45, 35 P.3d at 761–62
(citations, quotation marks, and brackets
omitted). A determination of manifest necessity is left to the sound discretion of the trial
court. Id. at 243, 35 P.3d at 760.
[15, 16] When circumstances arise that
could influence the impartiality of the jury
and thus affect the ability to reach a fair
result based on the evidence, a rebuttable
presumption of prejudice is raised. See id. at
244, 35 P.3d at 761; see also State v. Napulou, 85 Hawai’i 49, 55–56, 936 P.2d 1297,
1303–04 (1997). To overcome such a presumption, the trial court, after investigating
the totality of the circumstances, must find
that the outside influence on the jury was
harmless beyond a reasonable doubt. Wilmer,
97 Hawai’i at 244, 35 P.3d at 762. If this
influence cannot be proven harmless beyond
a reasonable doubt, then the court must look
at all reasonable alternatives to cure the
harm before declaring a mistrial. State v.
Minn, 79 Hawai’i 461, 465, 903 P.2d 1282,
1286 (1995).
[17] In the present case, upon receiving
Communication No. 2, both counsel recognized that the possibility of an improper influence existed and requested that the court
question the jurors. This possibility of an
improper influence created a rebuttable presumption of prejudice. Wilmer, 97 Hawai’i at
244, 35 P.3d at 762. The circuit court agreed
to the request, conducted voir dire of each
juror individually, and allowed both the DPA
and defense counsel to question the jurors.
Therefore, the issue here is whether the
circuit court abused its discretion in finding
that the presumption was not proven harmless beyond a reasonable doubt and no reasonable alternative to declaring a mistrial
BIO App. 115
STATE v. GOUVEIA
Cite as 384 P.3d 846 (Hawai‘i 2016)
existed.4
After questioning the jurors regarding the
incident in the courtroom, the circuit court
found that the majority of the jurors indicated that discussion of the incident occurred
prior to the verdict and that some jurors
communicated fear for their own safety. The
circuit court also found that ‘‘the concern for
personal safety as expressed by the jurors
had an impact on the jurors’ decisions based
on the totality of the circumstances present
and thus its effect on the subsequent verdict
was not harmless beyond a reasonable
doubt.’’
Based on these FOFs, the circuit court
concluded that even though no juror admitted that the incident affected their own decision-making process, ‘‘reason and common
sense dictates that the incident did have an
effect on the deliberations hence the impartiality of the jurors, which is not harmless
beyond a reasonable doubt[.]’’ The circuit
court concluded that:
[u]nder the totality of the circumstances in
light of the plain language of Communication No. 2 and the voir dire of the individual jurors TTT the jury was not impartial in
their deliberation and decision-making process, [and] there is no other remedy short
of a mistrial to cure the issue at hand as
neither a continuance nor a further jury
instruction would appropriately address
the issue of an impartial jury and its subsequent tainted verdict.
In looking at the totality of the circumstances, including the discussion of the incident in the jury room and the likelihood that
it was one of the first things discussed, the
circuit court was well within its discretion to
conclude that manifest necessity existed for a
mistrial because the presumption of prejudice was not overcome beyond a reasonable
4.
Gouveia argues that the circuit court found
that manifest necessity was ‘‘per se’’ required
due to the outside influence of the individual’s
behavior. This argument is without merit. The
circuit court asked the DPA, ‘‘don’t you think its
per se an inappropriate extraneous circumstance
that if the jurors have concerns for personal
safety based on something they observed in the
courtroom TTT that if it entered their discussions
and had an impact on any of them, that it would
taint the verdict?’’ (emphasis added). It is clear
that the court did not view the conduct as neces-
Haw.
855
doubt. Cf. Bailey, 126 Hawai‘i at 402–03, 271
P.3d 1142 (trial court should have granted a
new trial based on a juror’s remarks during
deliberations, despite other jurors saying the
remarks did not affect their verdict).
Gouveia contends the circuit court committed clear error because there was no evidence in the record that the incident affected
the jurors’ decision-making process and/or
deliberations. He bases this argument primarily on the fact that each of the twelve
jurors stated that the incident did not affect
his or her verdict, and asserts that without
evidence to the contrary, the court must
presume the jury follows the court’s instructions in not considering outside evidence or
being influenced by emotion.
[18, 19] Gouveia’s argument misconstrues
the applicable law. Once there is a showing
that an outside incident may have influenced
the jury, there is a rebuttable presumption of
prejudice that must be overcome beyond a
reasonable doubt. Napulou, 85 Hawai’i at 55–
56, 936 P.2d at 1303–04. A prima facie showing of improper influence is all that is required to raise that presumption. State v.
Chin, 135 Hawai’i 437, 448, 353 P.3d 979, 990
(2015). Therefore, it is the possibility of improper influence that must be disproved. Id.
It is Gouveia, then, who must show that the
court abused its discretion in concluding that
under the totality of the circumstances, the
outside influence was not harmless beyond a
reasonable doubt.
Gouveia compares the facts of this case to
a similar circumstance which occurred in Napulou. In Napulou, the jury sent a communication to the court after some members of
the defendant’s family were seen entering
the same parking lot as the jurors. The communication, sent immediately after the incisarily requiring a mistrial. In FOF 16, for example, the court found that based on the ‘‘totality of
the circumstances,’’ the effect on the verdict
‘‘was not harmless beyond a reasonable doubt.’’
And in COL 10, the court concluded that ‘‘based
on Communication No. 2, and the totality of the
circumstances, there is manifest necessity for a
mistrial.’’ Based on this record, we disagree with
Gouveia and the dissent that the circuit court
believed that its finding of manifest necessity was
per se required as a result of the jurors’ safety
concerns.
BIO App. 116
856
Haw.
384 PACIFIC REPORTER, 3d SERIES
dent was mentioned in the jury room and
prior to a verdict being reached, asked, ‘‘[i]f a
guilty verdict is given, could there be a danger to some of us or has some arrangement
been made for protection?’’ Napulou, 85 Hawai’i at 51–52, 936 P.2d at 1299–300. The trial
court, after conducting voir dire of the jurors, found the jurors could be impartial and
denied Napulou’s motion for a mistrial. Id. at
54, 936 P.2d at 1302. The ICA affirmed,
finding that the trial court was empowered to
assess the credibility of the jurors and that
the record supported the conclusion that any
improper comments were harmless beyond a
reasonable doubt. Id. at 56, 936 P.2d at 1304.
This case is distinguishable from Napulou.
Notably, the communication in Napulou occurred prior to the verdict, and thus the
court could rely on the jurors self-assessment
as to whether they could remain impartial.
See Bailey, 126 Hawai’i at 402 n.23, 271 P.3d
at 1161 n.23. The voir dire of the jurors in
Napulou revealed that the concerns were
‘‘peripheral to the matter of Napulou’s guilt
or innocence’’ and that ‘‘the jurors paid little
attention to members of Napulou’s family.’’
Napulou, 85 Hawai’i at 56, 936 P.2d at 1304.
Further, the trial court found the jurors’
assertions that ‘‘they could continue as impartial jurors, unaffected by the safety concerns that had disturbed them’’ to be credible. Id.
In contrast, the jury communication in the
instant case was a statement that the jurors
were actually concerned for their safety, not
merely inquiring into the possibility of danger. Additionally, at least four jurors stated
that the discussions of the incident and potential danger happened at the beginning of
deliberations, which indicates those discussions could have had an effect on the subsequent jury deliberations. Under these circumstances, the circuit court was well within
its discretion to conclude that under the totality of the circumstances, the outside influence was not harmless beyond a reasonable
doubt.
2.
No reasonable alternative to a mistrial would have eliminated the potential of prejudice
[20] After determining that there was an
outside influence on the jury, the circuit
court was required to consider all reasonable
alternatives that would be less severe than a
mistrial. ‘‘When examining the record for
evidence of manifest necessity, we must determine whether the trial court sufficiently
considered TTT less severe options available
and balance[d] the accused’s rights against
the public interest.’’ Minn, 79 Hawai’i at 465,
903 P.2d at 1286.
In Napulou, the trial judge was able to
question the jurors prior to a verdict being
delivered. During this process, the court was
able to alleviate any lingering concerns the
jurors had regarding their safety. Cf. 85
Hawai’i at 56, 936 P.2d at 1297. This, along
with the trial court’s finding that the jurors’
statements about being able to proceed without the outside influence affecting their deliberations were credible, allowed the court to
proceed without concern for the impartiality
of the jury.
In Wilmer, this court found that several
instances of prosecutorial misconduct resulted in little actual prejudice to the defendant.
97 Hawai’i at 245, 35 P.3d at 762. The inappropriate conduct arose prior to jury deliberations, and the trial court denied the defendant’s request to proceed with the trial after
finding that manifest necessity existed for a
mistrial. Id. In reversing the trial court, we
found ‘‘[w]hat little prejudice did result could
have been cured through means other than a
mistrial’’ and thus ‘‘the trial court abused its
discretion in concluding there was manifest
necessity for the mistrial because the circumstances creating an apparent need for a mistrial did not make it impossible for the trial
to proceed.’’ Id. at 245–46, 35 P.3d at 762–63.
[21] Here, unlike in Napulou and Wilmer,
the jury reached a verdict, informed the
court that they had reached the verdict, then
notified the court that there was a concern
for their safety because of the incident. Under these circumstances, the circuit court
determined that the verdict was already
tainted and that neither a continuance nor
additional jury instructions to ignore the outside influence would have been effective. This
determination was reasonable.
BIO App. 117
Haw.
STATE v. GOUVEIA
Cite as 384 P.3d 846 (Hawai‘i 2016)
Based on the facts of this case, the circuit
court’s determination that nothing short of a
mistrial would have cured the potentially impartial jury was not an abuse of discretion.
C.
Because There was Manifest Necessity
for a Mistrial, Retrial is not Barred by
Double Jeopardy
The final issue raised is whether the ICA
erroneously affirmed the trial court’s denial
of Gouveia’s motion to dismiss for violation of
double jeopardy. ‘‘A mistrial is properly declared and retrial is not barred by the defendant’s right against double jeopardy where
TTT there was manifest necessity for the
mistrial.’’ Wilmer, 97 Hawai’i at 242–43, 35
P.3d at 759–60. In light of our ruling that the
circuit court was within its discretion in concluding that manifest necessity existed, retrial of Gouveia is not barred by double jeopardy.
IV.
Conclusion
The circuit court did not abuse its broad
discretion in determining that manifest necessity existed for a mistrial. Accordingly, it
appropriately denied Gouveia’s motion to dismiss on double jeopardy grounds.
Therefore, the ICA’s June 4, 2015 judgment on appeal is affirmed, but for the reasons stated herein.
DISSENTING OPINION BY
NAKAYAMA, J.
Our review of this case focuses on two
notes sent by the jury. The first note announced to the court that the jury had
reached a verdict. The second note, signed
four minutes after the first, expressed the
jurors’ concern for their safety based on the
behavior of a man seated on the prosecutor’s
side of the courtroom. After questioning the
jurors regarding the notes, the circuit court
declared a mistrial based on manifest necessity, concluding that ‘‘the jury was not impartial in their deliberation and decision-making
process’’ because of the possibility that they
were influenced by the man’s behavior.
The Majority concludes that the circuit
court did not abuse its discretion in deciding
that manifest necessity existed for a mistrial.
857
However, under the totality of the circumstances, the record evidences that the jurors
were impartial despite expressing concern
for their safety. Additionally, under Hawai‘i
law, jurors’ safety concerns are not per se
grounds for declaring a mistrial. For these
reasons, I respectfully dissent from section
III.B of the Majority’s opinion and conclude
that manifest necessity did not exist for a
mistrial. As such, I would hold that Gouveia’s
retrial is now barred by the protection
against double jeopardy.
I.
BACKGROUND
During an argument on September 25,
2012, Gouveia punched or slapped Albert
Meyer, who then fell and struck his head on
the road. Days later, Meyer died from brain
injuries related to the fall. Gouveia was arrested and charged with manslaughter in
violation of Hawai‘i Revised Statutes § 707–
702(1)(a).
After closing arguments were made and
the jury entered deliberations, the jury sent
the court two notes. The first note stated:
‘‘We reached a verdict.’’ The second, signed
four minutes after the first, stated: ‘‘Concern. This morning on prosecutor’s side of
crtroom [sic] there was a man, shaved head,
glaring and whistling at defendant. We have
concern for our safety as jurors.’’
The circuit court conferred with counsel
for both sides. Defense counsel stated that he
knew nothing about the incident described in
the second note. The prosecutor stated that,
while she did not witness the incident, she
did know that the decedent’s brother, who
had a shaved head, was in the courtroom and
that ‘‘he was pretty upset.’’
The circuit court decided to investigate
this matter further before opening the verdict by conducting a voir dire of the jurors.
The circuit court, along with counsel for both
sides, questioned all twelve jurors individually. The voir dire revealed the following: 1)
four jurors witnessed a man, seated on the
prosecutor’s side of the courtroom, whistling
and/or glaring at Gouveia, and that this incident was brought to the attention of the
other jurors sometime during deliberations;
2) seven jurors testified that discussion of the
BIO App. 118
858
Haw.
384 PACIFIC REPORTER, 3d SERIES
incident occurred before the verdict was
reached; 3) one juror testified that the incident ‘‘appear[ed] to have an impact on other
people’s decision[,]’’ although it did not impact her decision; and 4) all twelve jurors
testified that ‘‘neither the incident itself nor
the discussion regarding the incident during
the deliberations affected their own decision[.]’’.
At the conclusion of voir dire, defense
counsel stated that he wished to take the
verdict. The State, in contrast, moved for a
mistrial, arguing that there was manifest necessity because the incident was discussed
during deliberations and seemed to influence
some jurors. When the State began to explain that the incident tainted the verdict
because of the facts of the case, the circuit
court interrupted and asked the following:
Doesn’t matter, I mean, does it even matter what the facts or what’s in dispute?
Isn’t it—don’t you think it’s per se an
inappropriate extraneous circumstance
that if the jurors have concerns for personal safety based on something they observed in the courtroom being done by
somebody in the gallery, that if it entered
their discussions and had an impact on any
of them, that it would taint the verdict?
The State agreed.
On October 22, 2013, the circuit court entered its findings of fact, conclusions of law,
and order granting the State’s motion for
mistrial, holding that there was manifest necessity for a mistrial.
II. DISCUSSION
A.
Defense counsel argued that a mistrial
based on manifest necessity was not required
because ‘‘[e]very one of the jurors’’ testified
that the incident had no impact on their
decision, and that most of the jurors indicated that the concern was more of an afterthought that had no bearing on the deliberations.
After listening to the arguments, the circuit court orally granted the State’s motion
for mistrial:
I find it difficult to really believe when I,
you know, apply my reason and common
sense to this that at least some of these
jurors have this, what strikes me as a
really serious concern for their personal
safety and it came up according to, at least
as I count, four or five of them, it came up,
was one of the first things, one of the first
1.
things, one of the first topics of discussion
when they got back in the room and started deliberating the case. Somebody
brought it up and they started talking
about it. It frankly beggars my reason and
common sense that it would have no bearing on the deliberations in this case and
therefore the verdict.
I’m going to grant the State’s motion for
mistrial. I’m going to find there’s manifest
necessity for such based on what I said
and all the—and everything else that’s
been put on the record, including my questions to counsel.
The verdict’s going to be sealed for future purposes, if any, but obviously we’re
not going to take the verdict. I’m declaring
a mistrial and I’m finding manifest necessity for that, because I don’t think there’s
anything short of a mistrial that’s going—
that can cure it. The verdict’s tainted, in
my view, based on my findings.1
Although the verdict was not unsealed at the
circuit court level, the record indicates that both
Manifest Necessity Did Not Exist For
A Mistrial.
‘‘A mistrial is properly declared and retrial
is not barred by the defendant’s right against
double jeopardy where the defendant consented to the mistrial or there was manifest
necessity for the mistrial.’’ State v. Wilmer,
97 Hawai’i 238, 242–43, 35 P.3d 755, 759–60
(2001) (citing State v. Quitog, 85 Hawai’i 128,
142, 938 P.2d 559, 573 (1997)). In this case,
Gouveia did not consent to the mistrial; thus,
our inquiry focuses on whether there was
manifest necessity for the mistrial.
‘‘Manifest necessity is defined as TTT circumstances in which it becomes no longer
possible to conduct the trial or to reach a fair
result based upon the evidence.’’ Wilmer, 97
Hawai’i at 244, 35 P.3d at 761 (quoting Quitog, 85 Hawai’i at 143, 938 P.2d at 574). When
a fair result is potentially compromised bethe court and the parties believed that the verdict
was ‘‘not guilty.’’
BIO App. 119
STATE v. GOUVEIA
Haw.
Cite as 384 P.3d 846 (Hawai‘i 2016)
cause of outside influences affecting the jury,
the court must act:
the initial step for the trial court to take
TTT is to determine whether the nature of
the [outside influence] rises to the level of
being substantially prejudicialTTTT Where
the trial court does determine that such
influence 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 outside influence to determine its impact on
jury impartialityTTTT The standard to be
applied in overcoming such a presumption
is that the outside influence on the jury
must be proven harmless beyond a reasonable doubt.
State v. Williamson, 72 Haw. 97, 102, 807
P.2d 593, 596 (1991) (internal quotation
marks and citations omitted; formatting altered); see also State v. Napulou, 85 Hawai’i
49, 55–56, 936 P.2d 1297, 1303–04 (App.
1997).
In short, Hawai‘i courts utilize a two-step
inquiry for determining whether a mistrial
based on manifest necessity is warranted
when outside influences occur: 1) whether
the nature of the outside influence on the
jury could be substantially prejudicial to a
fair trial, and, if so, 2) whether, under the
totality of the circumstances, the outside influence on the jury was harmless beyond a
reasonable doubt.
Under the first step, the circuit court correctly recognized that the outside influence
raised the possibility of substantial prejudice
to a fair trial and properly conducted an
investigation to determine the impact of the
outside influence on juror impartiality. Under
the second step, however, I conclude for two
reasons that the circuit court erred when it
held that the outside influence was not harmless beyond a reasonable doubt.
1.
The totality of the circumstances indicates that the outside influence on
the jury was harmless beyond a reasonable doubt.
First, under the totality of the circumstances, the timing and substance of the jury
859
communications, along with the jurors’ testimonies during voir dire, indicate that the
verdict was not tainted by the outside influence and was thus harmless beyond a reasonable doubt.
The record evidences that the jury signed
the first note, announcing that they had
reached a verdict, four minutes before signing the second, which expressed their safety
concern. The timing of the notes indicates
that the verdict was reached before the jurors decided to express their concern to the
court, which implies that the concern
stemmed from the verdict. This implication is
supported by the voir dire testimony of several jurors:
[THE COURT]: And do you have any
idea, was there any discussion or do you
have any inferences or anything about why
the jurors thought I should know about
this? Did they want me to do something
about it, or what was you all’s intention, if
you can tell me that, of communicating this
to me?
[JUROR # 3]: I think that everyone wanted to feel that they could leave safely
today when it was over.
(Emphasis added).
[DEFENSE COUNSEL]: Did anybody—
okay, obviously there was a decision to
inform the Court and express concern.
What kind of concern was expressed?
[JUROR # 4]: I think it was once the
verdict was read, that maybe there would
be some retaliation against, you know, of
us for whatever reason just being a juror.
TTT
[DEFENSE COUNSEL]: What were the
discussions about—the concerns, I guess,
how’s that?
[JUROR # 4]: Just like what I said before
that once the verdict was, you know, like I
said, was said, we would be in jeopardy or
could be in jeopardy.
(Emphasis added).
[THE COURT]: Best estimate. When did
[discussion of the safety concerns] first
come up—early, middle, late in the deliberations?
[JUROR # 7]: Towards the end.
BIO App. 120
860
Haw.
384 PACIFIC REPORTER, 3d SERIES
[THE COURT]: Toward the end. Not before?
[JUROR # 7]: No it wasn’t before. It
wasn’t about the case, so we weren’t really
focused on it.
TTT
[THE COURT]: Okay, that’s fine. About
how long did you all talk about this?
[JUROR # 7]: Not very. Just brought it
up for a few minutes, and then one of the
ladies said, okay, I wonder if that would be
directed at us, you know, after everything’s done, and maybe we should just
raise it so everybody can be aware that
there was someone that seemed threatening to another person.
(Emphasis added). These testimonies indicate that the safety concern arose because of
the substance of the verdict reached by the
jurors, and that the concern did not influence
the jurors’ deliberation of the verdict. Additionally, all jurors testified during voir dire
that the incident did not affect their ability to
be impartial jurors.
Finally, even if we were to conclude that
the jurors’ concern for their safety did influence the verdict, the logical implication of
that conclusion is that the jurors would have
been influenced to decide against Gouveia for
fear of retribution by the man they observed
glaring and whistling at Gouveia. However,
the above testimonies of jurors three, four,
and seven indicate that the jurors were concerned for their safety post-verdict, which
suggests that they decided in favor of Gouveia and were fearful of retaliation by the
shaved-head man.2 As such, the jurors’ testimonies lend support to the conclusion that
the outside influence did not taint the verdict
but simply raised concerns amongst the jurors of possible retaliation after the verdict
was read.
Therefore, although this incident raised
the possibility of substantial prejudice to a
fair trial, the totality of the circumstances
reveals that the outside influence did not
taint the verdict and was thus harmless beyond a reasonable doubt.
2.
In fact, the verdict, unsealed at the ICA level,
revealed that the jury did decide in favor of
Gouveia. And while this court had the benefit of
2.
Jurors’ safety concerns are not per
se grounds for declaring a mistrial.
Second, safety concerns like those expressed by the jurors in this case are not, on
their own, sufficient grounds for declaring a
mistrial under Hawai‘i law.
For example, in State v. Napulou, 85 Hawai’i 49, 936 P.2d 1297 (App. 1997), the ICA
considered a similar set of facts and issue.
During deliberations in a second degree murder and burglary trial, the empaneled jurors
discussed amongst themselves their concerns
that members of the defendant’s family were
following jurors from the courtroom to the
parking area. Id. at 51, 936 P.2d at 1299.
The jurors eventually sent a communication to the court, which stated: ‘‘Some jurors
have noticed members of [Napulou’s] family
following them downstairs and toward the
car garage. If a guilty verdict is given[,]
could there be a danger to some of us or has
some arrangement been made for protection.’’ Id. at 51–52, 936 P.2d at 1299–300. The
circuit court conducted a voir dire of each
juror and each juror testified that he or she
could continue to deliberate on the evidence
fairly and impartially. Id. at 54, 936 P.2d at
1302. After the voir dire, Napulou moved for
a mistrial, which was denied by the circuit
court. Id. Napulou was convicted of attempted murder in the second degree, burglary in
the first degree, and assault in the second
degree. Id. at 51, 936 P.2d at 1299. Napulou
appealed, arguing that the circuit court erred
when it denied his motion for a mistrial
because the evidence indicated that the jury’s
verdict had been tainted by their concern for
their safety. Id.
On appeal, the ICA affirmed the decision
of the circuit court, concluding that the
‘‘statements of the jurors on voir dire, if
believed, were sufficient to establish beyond
a reasonable doubt that Napulou was not
denied an impartial jury.’’ Id. at 56, 936 P.2d
at 1304. In coming to this conclusion, the
ICA considered the following:
In Napulou’s case, the trial court implicitly
recognized that the jurors’ comments reseeing the verdict where the circuit court did not,
the record suggests that the circuit court also
believed the verdict was not guilty.
BIO App. 121
Haw.
STATE v. GOUVEIA
Cite as 384 P.3d 846 (Hawai‘i 2016)
garding their safety concerns and possible
retaliation by Napulou’s family possibly affected Napulou’s substantial right to receive a fair trial by an impartial jury. The
court therefore conducted a voir dire of
each juror outside the presence of the
other jurors, in accordance with Williamson, to determine if any jurors had actually
been tainted by the jury’s discussion about
Napulou’s family.
The trial court questioned each juror individually. The proceedings were unhurried
and thorough. Napulou’s defense counsel
was permitted to question the jurors and
did so at some length. The questioning
revealed that the jurors paid little attention to members of Napulou’s family.
Clearly, any concerns of the jurors about
Napulou’s family were peripheral to the
matter of Napulou’s guilt or innocence and
did not have a direct bearing on the evidence in the case. Neither the court nor
counsel elicited any evidence during the
voir dire to indicate that the jurors’ comments regarding Napulou’s family were
‘‘used as a circumstance against’’ Napulou
or that jurors considered the comments in
question during their deliberations. Furthermore, the three jurors who appeared
most concerned for their safety, jurors
Nos. 2, 9, and 12, were positive in their
assertions that they could continue as impartial jurors, unaffected by the safety
concerns that had disturbed them.
Id. Thus, the ICA determined that the jurors’ safety concerns were not per se
grounds for declaring a mistrial.
Similarly, in the current case, the jurors
sent a communication to the court expressing
concern for their safety. The circuit court
recognized that the jurors’ concern raised the
possibility of substantial prejudice to a fair
trial and conducted a voir dire to determine
if the verdict had been tainted by the jurors’
concern. As in Napulou, the circuit court,
and counsel for both sides, questioned each
juror individually. And, as in Napulou, each
juror indicated that the safety concern did
not affect his or her deliberation of the case.
As such, Napulou and the current case are
factually similar in important ways, namely
that: 1) jurors in both cases expressed safety
861
concerns to the court, and 2) all the jurors,
when questioned during voir dire, indicated
that these concerns did not affect their ability to be impartial jurors. And yet, these
factually similar cases had different outcomes.
In Napulou, the ICA upheld the trial
court’s denial of a motion for mistrial that
was based on jurors’ safety concerns. In contrast, the record in this case indicates that
the circuit court relied heavily, if not solely,
on the jurors’ safety concern as a basis for
declaring a mistrial. For instance, when
questioning the prosecutor about her reasoning behind the motion for a mistrial, the
circuit court asked:
Isn’t it—don’t you think it’s per se an
inappropriate extraneous circumstance
that if the jurors have concerns for personal safety based on something they observed in the courtroom being done by
somebody in the gallery, that if it entered
their discussions and had an impact on any
of them, that it would taint the verdict?
(Emphasis added). Thus, it appears that, in
reaching its conclusion, the circuit court believed that the jurors’ safety concern, on its
own, was sufficient grounds for a mistrial.
This was error.
Napulou established that jurors’ safety
concerns are not per se grounds for declaring
a mistrial. Based on this precedent, and the
evidence in this case that the safety concern
did not affect the jurors’ impartiality, the
circuit court should have concluded that any
concern that the jurors had for their safety
was peripheral to a determination that Gouveia was guilty or not guilty. See also U.S. v.
Maye, 241 Fed.Appx. 638, 641–42 (11th Cir.
2007) (‘‘We have explained that discussions
among the jurors as to their fear of the
defendants are not inappropriate, so long as
such discussions do not lead them to form an
opinion of the defendants’ guilt or innocence
of the offenses charged.’’) (formatting altered).
III.
CONCLUSION
In sum, the totality of the circumstances
evidences that the outside influence did not
affect juror impartiality in this case. The
BIO App. 122
862
Haw.
384 PACIFIC REPORTER, 3d SERIES
timing and substance of the juror communications, in addition to juror testimony during
voir dire, strongly suggest that the jurors’
safety concern merely stemmed from the
verdict they reached, and did not factor into
the verdict deliberations. Additionally, Napulou established that jurors’ safety concerns,
on their own, are not grounds for declaring a
mistrial.
Holdings: The Supreme Court, Pollack,
J., held that:
For these reasons, I conclude that the
outside influence on the jury was harmless
beyond a reasonable doubt and that manifest
necessity did not exist to declare a mistrial.
As such, I would hold that the State is
barred under double jeopardy from trying
Gouveia again.
(2) news gathering agency was member of
the ‘‘media,’’ and thus was required to
utilize procedure set forth in rule allowing media to obtain review of extended coverage orders by filing motion addressed to administrative judge
no later than five days after order was
filed; and
,
(1) news gathering agency was not ‘‘party’’
to criminal proceeding, and thus was
not authorized to utilize procedure set
forth in rule allowing parties to seek
interlocutory appeal of extended coverage orders;
(3) even if news gathering agency’s request for extended coverage of criminal proceeding was a civil matter,
district court’s order was not final,
appealable judgment under statute
governing appeals in civil actions.
139 Hawai‘i 86
STATE of Hawai‘i, Respondent/Plaintiff–
Appellee,
v.
Siriporn NILSAWIT,
Respondent/Defendant–Appellee,
and
HAWAI‘I NEWS NOW,
Petitioner/Applicant–
Appellant.
SCWC–15–0000372
Supreme Court of Hawai‘i.
NOVEMBER 10, 2016
Background: News gathering agency
submitted renewed application for extended coverage of criminal proceeding. The
District Court, First Circuit, Faye M. Koyanagi, J., denied parts of application and
later denied agency’s motion for leave to
appeal. Agency appealed. The Intermediate Court of Appeals, Foley, J., 367 P.3d
708, 137 Hawai‘i 214, dismissed. Agency’s
application for writ of certiorari was accepted.
Affirmed.
1. Criminal Law O633.32
Where a request for extended coverage
of a criminal proceeding originates from a
member of the media, review of a district
court’s decision regarding that request is limited to the procedure set forth in rule allowing the media to obtain review of extended
coverage decisions by filing a motion with
administrative judge no later than five days
after the decision was filed. Haw. R. Sup.
Ct. 5.1(f)(8).
2. Criminal Law O1139
The existence of jurisdiction is a question of law that the Supreme Court reviews
de novo under the right/wrong standard.
3. Criminal Law O1139
Construction of rules promulgated by
the Supreme Court is reviewed de novo.
4. Criminal Law O1023.5
News gathering agency, which submitted request for extended coverage of criminal
proceeding, was not ‘‘party’’ to criminal proceeding, and thus was not authorized to uti-
BIO App. 123
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.