This decision is published in table format in the Pacific and Hawai'i reporter.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. CR. NO. 12-1-1474.
Keith S. Shigetomi, for Defendant-Appellant.
Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appeellee.
Fujise and Ginoza, JJ., with Nakamura, C.J., dissenting.
The jury submitted two notes: one announced that it had reached a verdict in the manslaughter case; the other expressed concern for the jurors' safety after observing a man, on the prosecutor's side of the courtroom, " glaring and whistling at defendant[.]" Without taking or reading the verdict, the trial court questioned the jurors about the note expressing concern for their safety. The jurors all indicated in their responses that the incident itself and their discussions concerning the incident did not affect their deliberations, but the trial court found that the jurors' responses on this point were not credible. Some jurors had testified that other jurors were worried about their safety, and one juror testified that other jurors' concern for their safety appeared to have an impact on those jurors' decisions. Over the defendant's objection, the trial court granted the prosecution's motion for mistrial based on " manifest necessity." Defendant subsequently moved to dismiss the indictment on double jeopardy grounds, which the trial court denied.
The question presented in this appeal is whether there was " manifest necessity" for the trial court's declaration of a mistrial, which would permit a retrial without violating the defendant's protection against double jeopardy. We hold that the trial court did not abuse its broad discretion in determining that manifest necessity existed for a mistrial, and therefore, retrial is not barred by double jeopardy. Accordingly, we affirm the trial court's " Order Denying Motion to Dismiss for Violation of Double Jeopardy."
Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Royce C. Gouveia (Gouveia) with recklessly causing the death of Albert Meyer (Meyer), thereby committing the offense of Manslaughter, in violation of Hawai'i Revised Statutes (HRS) § 707-702 (1) (a) (Supp. 2014) . The charge stemmed from an incident in which Gouveia struck Meyer, causing Meyer to fall and hit his head on the pavement, resulting in Meyer's death. The trial was held in the Circuit Court of the First Circuit Court (Circuit Court).
The following evidence was presented at trial.
The State called Dash Kelly (Kelly) and Kevin Espino (Espino), who were friends of Meyer and were present during the incident that led to Meyer's death. On the evening of September 27, 2012, Meyer and Espino went to visit Kelly at Kelly's home. According to Kelly, while the three men were " talking story" outside, Gouveia drove up in a car. Kelly heard Meyer tell Gouveia to pull over so that he could " talk story." Gouveia got out of his car, met Meyer in the middle of the road, and they exchanged a few words. Then Meyer " got hit." Kelly did not actually see Gouveia hit Meyer, but Kelly heard a " hit kind of sound" and saw Gouveia's arm appear to be finishing a punching-type motion. Meyer fell " straight back[,]" " was out cold . . . from the top of the fall[,]" and hit his head on the pavement. Kelly acknowledged that he " didn't see any threatening behavior on the part of [Gouveia] ." Kelly also acknowledged that he was " tweaking," i.e., " under the influence of ice" when he observed the incident.
Kelly testified that after Meyer hit the pavement, Gouveia looked around, picked Meyer up from the back, and pulled him to the side of the road. Kelly then called the police, because " it was obvious that [Meyer] needed help."
Espino testified to a similar version of events leading up to Meyer's death. Espino also did not witness Gouveia actually hit Meyer, but only remembered hearing a " thud" and then seeing " somebody standing over another person . . . laid out on the ground."
Meyer was taken to the hospital by ambulance and pronounced brain dead two days later. According to Dr. Masahiko Kobayashi (Dr. Kobayashi), the deputy medical examiner who performed the autopsy, Meyer's injuries were consistent with Meyer " falling down and slamming the back of his head against the pavement[.]" The " [clause of death was cranial cerebral injuries, and . . . the injuries to the skuli and brain were due to blunt force head trauma due to a fall."
Gouveia testified that Meyer was his friend and that they grew up together. However, an " incident" occurred between him and Meyer at Gouveia's father's house. According to Gouveia, Meyer offered an ice pipe to Gouveia's father and asked if he wanted to smoke. Gouveia did not appreciate this and told Meyer to leave. Meyer " seemed mad at me[,]" so Gouveia decided to stay away from him for a while.
On September 27, 2012, Gouveia was driving with two of his friends when he saw Meyer, Kelly, and Espino. Meyer told Gouveia to pull over, which Gouveia did " [t]o [t]alk story, see what's up." At first, Meyer " seemed normal," but as Meyer approached, Gouveia could tell that Meyer " was mad at me" and that he was glaring. Gouveia testified that Meyer said, " in a mad tone[,]" " hey, you fucka, why you tell me for leave that time?" Gouveia thought that Meyer was referring to the incident that had occurred at Gouviea's father's house and told Meyer that it was " because you went offer my dad ice." Meyer then pushed Gouveia, which made Gouveia " mad."
Gouveia testified that Meyer looked like he was high on drugs. Gouveia had regularly seen Meyer high on ice before, and when Meyer is " high on ice" " he gets aggressive" and " talks stupid." Gouveia became concerned that Meyer was about to attack and hit Gouveia. Gouveia explained, " that's why I went slap'em" in the face. Gouveia denied punching Meyer and said he did not want to hurt Meyer. Gouveia further explained that he slapped Meyer in the face " [t]o stop him [f]rom hitting me[,] to " stun him" so that Meyer could " wake up and realize that this is me, this is your friend." Gouveia testified that he did not intend to hurt Meyer or cause him to fall.
Gouveia said that Meyer fell backwards and hit his head. Gouveia observed that Meyer was knocked out and was " shocked" and " panicked[,]" thinking Meyer was hurt. Gouveia then went to help Meyer by picking him up, pulling him out of the middle of the road, telling Espino to call 911, and trying to wake Meyer up by giving him water. Gouveia left the scene when he heard the sirens because he " got scared" and " wasn't thinking clearly."
After the jury had deliberated for less than a day, the Circuit Court reconvened and notified the parties that it had received two communications from the jury. The first communication, signed at 2:20 p.m., stated: " We reached a verdict." The second communication, signed four minutes later, 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 initially indicated that it planned to take the verdict. However, after further discussion, the Circuit Court, with the agreement of counsel for both the State and Gouveia, decided to individually question the jurors about their safety concerns and its effect on their deliberations. The Circuit Court and the parties did not know what verdict the jury had reached.
The Circuit Court and counsel proceeded to individually question the jurors, with the Circuit Court making it clear that the jurors should not disclose the verdict that had been reached. The jurors who had witnessed the incident described it as follows:
--Juror 7 stated:
I was sitting there and I looked over as everyone was sitting down getting situated, and I saw a him [sic] in the second row sitting on the edge, larger build, he had white shirt and he was just making these really angry faces, and he wouldn't move from that spot, he wanted to make sure that -- he was trying to get defendant's attention, whistling " whoo-whoo-whoo" demonstrating.
--Juror 4 noticed a man who appeared " hostile" and was " glaring" in a certain direction of the courtroom, but was not certain whether " he was glaring at the defendant or not[.]"
--Juror 6 saw a man " glaring at the defendant" and thought " he was trying to get his attention by whistling." Juror 6 thought that the man was part of the prosecutor's side.
--Juror 3 heard whistling that morning.
The jurors gave conflicting answers regarding when the incident was discussed. Most of the jurors stated that the incident was discussed before the verdict was reached, but a few stated that it was not discussed until after. The jurors who stated the incident was discussed before the verdict was reached differed on whether the incident was discussed at the beginning, middle, or end of the deliberations and on the amount of time they spent discussing the incident. The jurors indicated that some of the jurors, particularly the women, were worried about their safety, expressed concern about possible retaliation, and " felt slightly intimidated." Each of the jurors responded that the incident and any safety concern did not affect their own decision in the case. However, one juror stated that three or four other jurors participated in a conversation about the incident or said they saw the incident; that the jurors describing the incident sounded concerned, and she believed the conversation about the incident appeared to have an impact on other jurors' decisions; and that concern for their safety impacted other jurors' decisions. The jurors generally agreed that the decision to send the communication to the Circuit Court regarding their safety concerns came after they had reached a verdict.
The questioning of the jurors took place over a two day period. After it was completed, the Circuit Court asked defense counsel whether Gouveia wanted to move for a mistrial prior to taking the verdict. Defense counsel responded that Gouveia wanted to take the verdict and did not want to move for a mistrial. The State then moved for a mistrial based on manifest necessity.
In support of the State's motion, the deputy prosecutor argued that there were three jurors who indicated that the incident raising the jurors' safety concerns came up early in the deliberations, that one juror stated the discussion lasted for about ten minutes, and that another juror believed it had an impact on other jurors' decision or deliberation process. In addition, the deputy prosecutor pointed out that,
this [case] did have an issue of first aggressor, and, you know, it's unclear whether what they saw in the gallery that they did associate with the prosecution and the decedent side, whether that had any impact on them as to whether they thought maybe it lended [sic] more credibility to Mr. Gouveia's testimony as he testified, again, considering things that are not -- that were not presented as part of the evidence.
The deputy prosecutor argued that the verdict had been tainted by extraneous inappropriate circumstances and requested that the Circuit Court declare a mistrial based on manifest necessity.
In response, defense counsel argued that the jurors were instructed by the court to make a decision solely based on the evidence, that jurors are presumed to follow instructions, and that every single juror stated that the discussion of the incident had no impact on his or her decision. Defense counsel asserted there was no " manifest necessity" to justify the declaration of a mistrial.
After considering counsel's arguments, the Circuit Court orally granted the State's motion for a mistrial and explained its reasoning as follows:
Well, it's pretty clear to the court what everybody thinks the verdict is based on your arguments and your motions and lack of such. I don't know what the verdict is. I honestly literally don't know what the verdict is. There's no way I could know. We haven't taken the verdict yet. And, anyway, I think it's immaterial. I think it's literally immaterial to this discussion, this issue in my ruling here. And it's a really, really close ruling as far as I'm concerned. I think that's probably clear from ...