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Electronically Filed
Supreme Court
SCWC-14-0000358
25-OCT-2016
07:50 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
ROYCE C. GOUVEIA,
Petitioner/Defendant-Appellant.
SCWC-14-0000358
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000358; CR. NO. 12-1-1474)
OCTOBER 25, 2016
RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., WITH
NAKAYAMA, J., DISSENTING
OPINION OF THE COURT BY RECKTENWALD, C.J.
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
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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.
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 (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.
I. Background
On September 25, 2012, an altercation occurred in which
1
The Honorable Glenn J. Kim presided.
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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 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 . . . 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
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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, 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
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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
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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 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 . . . apply my reason and common sense to
this that at least some of these jurors have . . .
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] . . . 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 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 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 . . . 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:
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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 here . . . . 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.
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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.
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.
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[.]
. . . .
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.
. . . .
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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.
Gouveia filed a motion to dismiss based on double
jeopardy, arguing that the circuit 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
C. Appeal to the ICA
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.
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
2
Although it is apparent from the record that the parties believed
the sealed verdict was “not guilty,” this was not confirmed until the ICA
unsealed the verdict on appeal.
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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 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
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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
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
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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
“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
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.
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HRE Rule 606(b) provides:
Inquiry into validity of verdict or indictment. Upon
an inquiry into the validity of 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.
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, 217 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 . . . 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
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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 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
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 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.
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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.
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
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,
[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
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impartial jury.
State v. Quitog, 85 Hawai#i 128, 124, 938 P.2d 559, 573 (1997)
(emphasis added) (quoting Arizona v. Washington, 434 U.S. 497,
505 (1978)).
“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).
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
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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.
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).
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,
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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 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
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 . . . 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 necessarily 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.
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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 . . . 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 doubt. Cf.
Bailey, 126 Hawai#i at (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
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contrary, the court must presume the jury follows the court’s
instructions in not considering outside evidence or being
influenced by emotion.
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. 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 incident
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
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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, 217 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
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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
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 . . . 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
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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.
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.
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
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against double jeopardy where . . . 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.
Keith S. Shigetomi for /s/ Mark E. Recktenwald
petitioner
/s/ Sabrina S. McKenna
Donn Fudo
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
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