FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-16-0000830;
CR. NO. 09-1-0097)
R. Schoettle for appellant.
P. McCullen for appellee.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
defendant in this case was convicted of attempted murder in
the second degree in connection with the stabbing of his
longtime friend. After trial, the defendant made several
motions, including a motion for new trial contending that the
jury during its deliberations conducted an improper
examination of his clothing to search for evidence of blood,
and as a result several jurors discovered "stains"
that had not been introduced as evidence during trial. The
circuit court denied the motions, and the defendant was
subsequently sentenced to life imprisonment with the
possibility of parole. The defendant appealed to the
Intermediate Court of Appeals and the case was transferred to
this court upon request.
review, we conclude that the jury's discovery of the
stains constituted an outside influence that may have tainted
the jury's impartiality. Because we find that the
jury's discovery was not harmless beyond a reasonable
doubt, the judgment of conviction is vacated and the case is
remanded to the circuit court for further proceedings.
Arrest & Pretrial Motions
December 22, 2008, longtime friends Jason Brown and Joseph
Pitts were driving to the airport to pick up a mutual friend.
On the way to the airport, Brown and Pitts made a stop,
during which time Brown was stabbed in the neck and arm.
Pitts was taken into custody by officers of the Honolulu
Police Department later that night and released pending
investigation. Pitts was subsequently charged in the Circuit
Court of the First Circuit (circuit court) with attempted
murder in the second degree, in violation of Hawai'i
Revised Statutes §§ 705-500 (1993), 707-701.5
(1993), and 706-656 (Supp. 2008).
to trial, Pitts filed a motion to dismiss the indictment,
contending that the State failed to present to the grand jury
a prior statement made by Brown describing the assailant as
"an older black man" whom he did not know "but
could identify him if he saw a picture." Pitts argued
that because he had known Brown for almost twenty years the
statement was clearly exculpatory. The circuit court denied
the motion, concluding that because another witness, James
Igawa, identified Pitts during the grand jury proceeding,
Brown's statement was not clearly
exculpatory. At the same hearing, the court granted
Pitts' separate motion to preclude Igawa from testifying
at trial to an identification of Pitts, ruling that
Igawa's pretrial identification was the result of an
impermissibly suggestive drive-by identification made while
Pitts was handcuffed next to a police car. Igawa, however,
was allowed to describe what he saw during the incident and
testify to the statements he gave to police.
jury selection, a prospective juror, responding to a question
from defense counsel, shared her thoughts about the
composition of the jury pool:
[PROSECTIVE JUROR:] [F]or a long time I've been very
concerned about if a black man in America can have a fair
trial because, you know, it's supposed to be a jury of
your peers .... I guess it's just been interesting ... it
doesn't look to me like there's any black people in
the entire pool, so that just kinda concerns me.
But, on the other hand, you guys obviously are not going to
be able to get an entire pool of black people, of black men
who are in his age range who have the same experience. . . .
counsel asked the prospective juror whether she had any
biases, leading to the following:
[PROSECTIVE JUROR:] I might say that I have a bias against
the status quo, and that is just that, you know, people who
are minorities have to fight harder to be in an equal
position, so that would be a bias, yes.
[DEFENSE COUNSEL:] Do you feel that you could be a strong
juror in this case?
[PROSECTIVE JUROR:] Yes, I think so. But also as a scientist,
I'm open to debate and providing sides, multiple sides of
the story and, you know, coming to a conclusion based on
that, so I would be open to hearing what other people have to
say. But I also have very strong convictions myself and I can
hold onto those.
this exchange, the State used a peremptory challenge to
excuse the prospective juror. The defense did not make an
the evidentiary portion of the trial commenced, Pitts made an
oral motion to preclude admission of evidence that, during
his release from custody, he allegedly accused Brown of
raping or sleeping with his then girlfriend and demanded an
apology. The State admitted in the hearing on the motion that
there was no evidence that prior to the stabbing Pitts
thought Brown had been sleeping with his girlfriend. Without
such evidence, the circuit court concluded, introduction of
Pitts' alleged accusation and demand for an apology were
not relevant to the crime and the "probative value was
so thin" that it was "outweighed by the danger of
unfair prejudice." The court accordingly granted
State called security officer Bernard Prescott who testified
that during his shift at "Kaiser Moanalua Hospital"
(Kaiser Hospital) on December 22, 2008, at approximately
11:00 p.m., he was approached by an African-American male
wearing a black shirt and carrying a black jacket. This
individual, whom Prescott identified as Pitts, was later
arrested by police. Prescott described Pitts' movements
in and around the hospital lobby area and stated that he did
not see any blood on his face and visible hand or that he had
a weapon of any kind.
Guadiz testified that he encountered Pitts outside of Kaiser
Hospital on that evening at around 11:00 p.m. Guadiz stated
that Pitts asked him for a ride, and he described Pitts'
demeanor as nervous. He testified that he saw no other
"black men" in the area that night and that he did
not see any blood on Pitts' face or hands.
Igawa testified that on the night of the incident he was
sitting in his car when a red car parked in front of him
about two and a half car-lengths away. About five minutes
later, stated Igawa, he heard screaming and commotion coming
from the car and saw the passenger get out of the car on the
passenger side and get back in. The passenger then appeared
to be "throwing punches" at the driver, he
recounted. Igawa testified that he observed two heads going
back and forth, with the passenger lunging at the driver.
According to Igawa, the passenger got out of the car, the
driver started making noise, and the driver jumped out of the
car backwards and ran down the street when the passenger
reentered the car. Igawa testified that the passenger then
got out of the car, looked back in the car and grabbed some
items, and began walking slowly up the sidewalk in the
opposite direction from the driver. Igawa stated that he then
described the passenger as a black male who was "tall .
. . wearing black--dark black clothes; long, long black
pants; looked like a long black sweater of some sort; kinky
hair," and had a "kind of [a] swaggering"
walk. Igawa testified that he did not see another "black
man dressed in all black clothing" in the area. The
State played an audio of Igawa's 911 call in which he
described the possible suspect as wearing dark clothes
"[l]ike long-sleeve black pants, long-sleeve black
Antwan Stuart testified that on that date he arrived at
Kaiser Hospital about 11:30 p.m. The officer testified that
he found and detained an African-American male that fit the
description of the subject "to a T," whom he
identified as Pitts. Officer Stuart stated that the only
blood he saw was on the sleeve of the jacket Pitts was
carrying. Officer Stuart further testified that he did not
see any blood on Pitts' face or hands and that Pitts did
not appear injured. The officer identified the jacket Pitts
was carrying and the clothes that he was wearing when he was
arrested, and these items were admitted into evidence.
Specialist Autumn Sunaoka testified to taking pictures of the
crime scene and the clothing recovered from Pitts, swabbing
Pitts' hands for evidence, and photographing his hands.
The State also introduced several photographs of the interior
of Brown's car, including photographs of the passenger
side of the vehicle, which Sunaoka testified showed,
"small blood-like spots on the seat." Sunaoka
testified that she did not see any "visible stains or
blood-like spots" on Pitts' pants, black shirts,
shoes, socks, or shoelaces when she photographed
Brown testified that his relationship with Pitts was very
close, calling Pitts his "family" and
"brother." According to Brown, he and Pitts met
when Brown was 16 or 17 years old, sometime around 1991.
Brown testified that on December 22, 2008, he picked up Pitts
in his car to drive to the airport to pick up their mutual
friend. On the way, Brown testified, Pitts asked him to make
a stop to speak to a person called "Niki," and he
pulled over near where Niki lived and parked under a tree.
to Brown, Pitts got out of the car when they pulled over, and
Brown lit a cigarette. Brown testified that he was looking
forward and exhaling when he was first hit, which Brown said
was within about two minutes of parking. Brown said that he
turned and saw Pitts, at which time he put his arms up and
began kicking, trying to get away, and he pulled himself out
of the driver side window. Brown testified that he was
initially stabbed in the neck and then stabbed in the arm
when he put his hands up to protect himself. After pulling
himself out of the car window, Brown testified, he ran down
the hill toward a guard shack holding his bleeding neck and
screaming for help. Brown stated that he told the security
guards at the guard shack that" [t]here's a black
guy up there that just stabbed me." Brown said that he
was positive that Pitts was the person who attacked him and
that he did not see anyone else on the street.
was transported to Queen's Hospital. When he awoke in the
hospital, Brown recalled, Detective Kon was asking him for a
statement, and he asked the detective to return later. At the
time Detective Kon returned, Brown continued, he was
requesting either a statement or Brown's signature on a
paper. Brown stated that he signed the paper although he
could not even see or read it because he needed to rest.
Brown also testified that he did not remember speaking with
an officer named Jonathan Locey at the hospital, did not
remember making statements identifying his assailant as
"an older black guy," or remember responding to
Officer Locey's questions about whether he knew his
assailant and could identify him.
was asked by the prosecutor about a conversation that he
purportedly had with Pitts following his release from the
[PREOSECUTOR:] Okay. Let me just-let me just, urn, direct
your questioning here.
So you talked to him. Did you ever ask him why he stabbed
[PROSECUTOR:] You asked him, "Why did you stab me?"
[PROSECUTOR:] And did he respond?
[BROWN:] His response was, "All I wanted was an
[PROSECUTOR:] I'm sorry? Can you-
[BROWN:] "All I want is an apology. Why don't you
[PROSECUTOR:] So that's what he told you when he-when you
asked him, "Why did you stab me?"
[PROSECUTOR:] Okay. And at that point, when you were talking
to him, did you already know what he wanted an apology for?
explained that he found out after the stabbing "[w]hat
[Pitts] wanted an apology for," from "Jamie."
The prosecutor then again elicited Brown's account of
Pitts' statements regarding the alleged apology:
[PROSECUTOR:] So when you asked him, "Why did you stab
me," he said, "All I want is an apology."
[PROSECUTOR:] Just apologize.
[BROWN:] He said, "You know what you did. Just
[PROSECUTOR:] So before you picked the defendant up on
December 22, 2008, did you know why he was mad at you?
[BROWN:] I didn't know he was mad at me.
following morning Pitts orally moved to strike all references
of an "apology" that the State elicited from Brown.
The circuit court agreed with Pitts that leaving the
reference to an apology for speculation in the jury's
mind was prejudicial to him and asked the prosecutor for any
argument or explanation:
THE COURT: .... I will tell you right now, if there had been
an objection, I would have cut you off at the pass because I
agree with Mr. Pitts that you're leaving that for