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Gouveia v. Espinda

United States District Court, D. Hawaii

August 25, 2017

ROYCE C. GOUVEIA, Petitioner,
NOLAN ESPINDA, Director of the Department of Public Safety for the State of Hawaii; and DOUG CHIN, Attorney General of the State of Hawaii, Respondents.


          Susan Oki Mollway, United States District Judge


         Petitioner Royce C. Gouveia is scheduled to be retried in state court for manslaughter. The Hawaii state courts have determined that his double jeopardy rights will not be violated by a retrial. Gouveia now seeks relief from this court, arguing that the Double Jeopardy Clause of the federal Constitution forbids the upcoming trial.

         Gouveia was tried in state circuit court for manslaughter in violation of section 707-702(1)(a) of Hawaii Revised Statutes. After the jury had reached a verdict, but without reading the verdict, the state trial judge declared a mistrial. The judge ruled that the jury deliberations and verdict were tainted by the jurors' concern about their personal safety, given their comments about a glaring man in the audience during trial. The trial judge sealed the verdict without opening it and concluded that a mistrial was supported by manifest necessity. In the trial judge's opinion, nothing short of a mistrial could cure the effect of the menacing man, and Gouveia's double jeopardy rights would not be violated by a retrial on the manslaughter charge.

         On appeal, the Intermediate Court of Appeals of the State of Hawaii (“ICA”) opened the sealed verdict and learned that the jury had voted to acquit Gouveia of the charges. The ICA then affirmed the trial court. The Hawaii Supreme Court granted certiorari and also affirmed. This habeas petition followed.

         Gouveia asserts that, given the acquittal, any retrial would violate his Fifth Amendment right not to be placed in double jeopardy. Gouveia also argues that the mistrial declaration was not supported by manifest necessity. This court determines that the verdict of acquittal was not final at the time a mistrial was declared, but concludes that a mistrial was not manifestly necessary. This court therefore grants Gouveia's habeas petition, ruling that a retrial would violate his federal double jeopardy rights.


         Gouveia was indicted in October 2012 for allegedly having committed manslaughter in violation of section 707-702(1)(a) of Hawaii Revised Statutes. Trial commenced in state court on Tuesday, September 3, 2013, with jury selection, preliminary instructions, and opening statements. By Friday, September 6, 2013, the jury was instructed, closing arguments were presented, and the jury began deliberations. See Docket Sheet, available through eCourt KôKua on the Hawaii State Judiciary website, (input CaseID 1PC121001474 under “Case Search” after entering eCourt KôKua) (last visited August 15, 2017).

         In the afternoon of September 6, 2013, the jury sent simultaneous notes to the court. In Communication No. 3 From the Jury, which indicates that it was signed at 2:20 p.m., the jury indicated, “We reached a verdict.” ECF No. 3, PageID # 56. Communication No. 2 From the Jury indicates that, notwithstanding being numbered “2, ” it was actually signed at 2:24 p.m., after the later-numbered Communication No. 3 had been signed. Communication No. 2 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.” ECF No. 3, PageID # 58.

         The parties convened in open court to discuss the notes. The trial judge stated:

My intention, unless counsel, you know, can persuade me otherwise, is just to take no action on this, take the verdict, and then I'm going to do what I normally do, which is ask them if I can come in and talk to them right afterwards and then address this with them basically one-on-one, meeting with them in private after we take the verdict and formally stand adjourned.

ECF No. 13-3, PageID # 349.

         At that point, the parties asked that the jurors be individually voir dired about Communication No. 2. See Id. The following table is a summary of the individual juror voir dire.


Saw Man Glaring and Whistling at Gouveia?

Was Incident Talked About During Deliberations?

Any Concern For Safety?

Any Bearing on Decision?

Mr. Valencia

No. (PageID # 353)

Yes. For a few minutes at the end. (PageID # 354)

Not concerned for own safety. (PageID # 355); discussion related to jurors' concern for their safety. (PageID # 356)

No. (PageID # 355)

Ms. Wilcox

No. (PageID # 358)

Yes. In the beginning for about 5 minutes. (PageID # 358- 59);

Also, brought up after verdict was reached. (PageID # 361)

A few jurors said they were a little bit scared. (PageID # 360)

No. (PageID # 360)

Ms. Boehm

Yes. Heard whistling from prosecutor's side. (PageID # 369)

No. Only after the verdict was reached. (PageID # 365)

A few of the jurors expressed concern for their safety. (PageID #s 366 and 370)

No. (PageID # 367)

Ms. Foster

Yes. (PageID #s 373 and 376)

No. After the verdict was reached. (PageID #s 373 and 375)

Yes. Had concern for own safety. (PageID #s 374 and 377)

No. (PageID # 373-74)

Ms. Hanashiro

No. (PageID # 381)

Yes. As soon as deliberations started for about 10 minutes. (PageID #s 382- 84);

Also brought up towards the end. (PageID # 387)

Yes. Jurors were slightly intimidated and concerned. (PageID # 386)

No. (PageID # 383)

Ms. Li

Yes. (PageID # 388)

Yes, in the “middle-early” of deliberations and again at the end. (PageID # 389)

Was not concerned when she saw it. But there was concern after the verdict. (PageID # 392)

No. (PageID #s 390-91)

Juror #7 (unidentified but referred to as Ms. Li when excused, although apparently not the same person as the preceding juror)

Yes. (PageID # 393)

Yes. Toward end of deliberations for a few minutes. (PageID # 394)

Was not concerned for herself. (PageID # 393)

No. (PageID #s 394-95)

Mr. Chandler

No. (PageID # 406)

Yes. For a minute or so when jurors went to deliberate, and then again after verdict had been reached. (PageID # 407)

Jurors did not seem scared. (PageID # 408)

No. (PageID # 407)

Mr. Masuno

No. (PageID # 410)

No, only after verdict reached. (PageID #s 411- 12)

There was concern for the safety of some of the female jurors. (PageID #s 414-15)

No. (PageID # 413)

Ms. Mau

No. (PageID # 417)

No. (PageID # 417)

No. (PageID # 417)

No. (PageID # 417)

Ms. Kama

No. (PageID # 422)

Yes. At the end and after verdict reached. (PageID #s 422, 425)

Yes. Jurors were concerned. (PageID # 426)

Yes. Jurors were concerned about their safety such that it impacted their decision. (PageID # 426)

Ms. Chun

No. (PageID # 428)

Yes, as soon as jurors went into the deliberation room or the “early middle.” (PageID #s 430- 31)

No. (PageID #s 429-30)

         At the conclusion of the individual juror voir dire, the trial judge noted that the verdict was unknown and asked defense counsel if Gouveia was moving for a mistrial. ECF No. 13-3, PageID # 435. Gouveia did not make such a motion, but the prosecution did. Id.

         After hearing argument, the trial judge repeated that there was no way of knowing what the verdict was, but indicated that it was “pretty clear . . . what everybody thinks the verdict is.” Id., PageID # 451. He stated that, whatever the verdict was, it was “immaterial” to his ruling on the mistrial motion. Id.

         Based on the individual juror voir dire, the trial judge determined that at least some of the jurors had a “really serious concern for their personal safety.” He reasoned that four or five of the jurors had stated that the subject came up as one of the first things in the deliberation room. Other testimony supported that impression, including Ms. Kama's statement that the situation affected deliberations. Id., PageID # 452. The judge stated, “It frankly beggars my reason and common sense that it would have no bearing on the deliberations in this case and therefore the verdict.” Id. He then declared a mistrial based on “manifest necessity, ” sealing the verdict for future purposes without ever determining what the verdict actually was. Id. He did not find credible the eleven jurors (other than Ms. Kama) who said that the glaring man had not affected the verdict, given the statements by at least three or four of them that they had concerns for their safety. Id., PageID #s 452-53.

         On October 22, 2013, the trial judge followed up his oral ruling with written Findings of Fact, Conclusions of Law and Order Granting State's Oral Motion for Mistrial Based on Manifest Necessity. ECF No. 13-3, PageID #s 172-77. He made the following findings of fact:

7. The Court questioned the jurors individually and both counsel for the State and for Defendant were given adequate opportunity to question each juror regarding Communication No. 2.
8. Four jurors witnessed an individual seated on the prosecutor's side of the courtroom whistling and/or glaring at Defendant (“incident”) prior to commencing deliberation.
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 decisionmaking 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.

ECF No. 13-3, PageID #s 173-75.

         The trial judge concluded that, although no juror said that the glaring man had affected his or her own decisionmaking process, “reason and common sense dictates that the incident did have an effect on the deliberations hence the impartiality of the jurors, which [wa]s not harmless beyond a reasonable doubt.” Id., PageID # 176. Accordingly, the trial judge ruled that the jury had not impartially deliberated on a verdict. Id. The trial judge stated that there was no remedy short of declaring a mistrial “as neither a continuance nor a further jury instruction would appropriately address the issue of an impartial jury and its subsequent tainted verdict.” Id. He said that the bar on double jeopardy did not preclude Gouveia's retrial because, based on the totality of the circumstances, there was a “manifest necessity” for the mistrial, which he defined as a sudden and overwhelming emergency beyond the control of the court that was unforeseeable and made it no longer possible to conduct the trial or to reach a fair result. Id., PageID # 177.

         On December 19, 2013, following the mistrial declaration, the trial court denied Gouviea's motion to dismiss the charges based on double jeopardy. See Appeal From the Order Denying Motion to Dismiss for Violation of Double Jeopardy on December 19, 2013. ECF No. 13-3, PageID # 148. Gouveia appealed, arguing in his Opening Brief to the ICA that (1) the trial court had erred in declaring a mistrial (PageID #s 160-66); and (2) the trial court had erred in denying the motion to dismiss based on the violation of Gouveia's double jeopardy rights under the United States and Hawaii constitutions (PageID #s 166-67).

         On April 30, 2015, the ICA, in a 2-1 decision, affirmed the trial court's rulings, holding that, because the trial judge had not abused his discretion in finding a manifest necessity to declare a mistrial, Gouveia's constitutional right to be free of double jeopardy would not be implicated in any retrial. See Hawaii v. Gouveia, 135 Haw. 219, 348 P.3d 496, 2015 WL 2066780 (Ct. App. Apr. 30, 2015). The ICA unsealed the verdict, in which the jury had found Gouveia not guilty. 2015 WL 2066780, *7; ECF No. 8, PageID # 104 (copy of verdict).

         On July 2, 2015, Gouveia sought a writ of certiorari from the Hawaii Supreme Court. See ECF No. 13-3, PageID # 228. Gouveia again argued that the trial court had erroneously granted the motion for mistrial. PageID #s 232-235. He contended, “As previously argued, the trial court's finding of manifest necessity was erroneous. Therefore the denial of Gouveia's Motion to Dismiss for Violation of Double Jeopardy and the ICA's ruling affirming the denial were erroneous.” PageID # 235.

         The Hawaii Supreme Court granted certiorari. See 2015 WL 4756475 (Haw. Aug. 10, 2015). On October 26, 2016, the Hawaii Supreme Court affirmed in a 4-1 ...

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