Tuesday, December 20, 2016

Declaring a Mistrial after Verdict Reached, but Before it's Read

State v. Gouveia (HSC October 25, 2016)
Background. Royce Gouveia was tried for manslaughter. At the end of the trial, the jury sent a communication informing the court that it had reached a verdict. Four minutes later it sent this note: “Concern. This morning on the prosecution’s side of the courtroom there was a man, shaved head, glaring and whistling at defendant. We have concern for our safety as jurors.” The circuit court conducted voir dire of the jurors—before opening the verdict—to determine what effect, if any, the incident had on them.

All twelve were questioned. Four of them said that they saw a man sitting on the “prosecution’s side” of the courtroom whistling and glaring at Gouveia during the trial. The incident came up in the jury room before the jurors reached a verdict. One juror had a safety concern. Another juror said that it might have had an impact on “other people’s decision[.]”

The prosecution moved for a mistrial over Gouveia’s objection. The circuit court declared a mistrial based on “manifest necessity.” Gouveia later filed a motion to dismiss challenging the mistrial and the subsequent prosecution. The circuit court denied the motion. He appealed the denial of the dismissal to the ICA. The ICA upheld the dismissal (and revealed the verdict was not guilty) and Gouveia petitioned the HSC for certiorari.

Testifying Jurors is Tricky. As a threshold issue, Gouveia objected to the questioning of the jurors based on HRE Rule 606(b):

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.

The rule does not apply to juror statements made before reaching a verdict, but once a verdict is reached “the court cannot consider the jurors’ testimony as to the effect of the improper statement upon them.” State v. Kim, 103 Hawaii 285, 291, 81 P.3d 1200, 1206 (2003). The HSC held that the circuit court’s inquiry did not violate HRE Rule 606(b) because it was limited to discussions prior to reaching a verdict. Any testimony about the effect it had on the verdict was deemed not credible by the circuit court. And so there was ample evidence for the circuit court to declare a mistrial based on juror testimony.


Declaring 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 Hawaii 238, 242-243, 35 P.3d 755, 759-760 (2001). Manifest necessity arises when “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. Such a circumstance includes prejudicial conduct making “it impossible to proceed with the trial without injustice to either the defendant or the State.” HRS § 701-110(4)(b)(iii).

Finding a Prejudicial Jury in Three Easy Steps . . . When it involves the impartiality of the jury, a rebuttable presumption of prejudice is raised. Wilmer, 97 Hawaii at 244, 35 P.3d at 761. To overcome the presumption, the trial court must investigate the totality of the circumstances and find that the outside influence on the jury was harmless beyond a reasonable doubt. Id. If it cannot be proven harmless, the court must look to alternatives to cure the harm before declaring a mistrial. State v. Minn, 79 Hawaii 461, 465, 903 P.2d 1282, 1286 (1995).

Here, the HSC held that the first step was met. The communication about the man glaring and whistling was enough to create the rebuttable presumption of prejudice. The only real question for the HSC was whether the outside influence of the man was harmless beyond a reasonable doubt and that there was no alternative but to declare a mistrial.

The HSC agreed with the circuit court that the presumption of prejudice was not rebutted. All that is needed to raise it in the first place is a prima facie showing of the possibility of an outside influence. State v. Chin, 135 Hawaii 437, 488, 353 P.3d 979, 990 (2014). In other words, the burden shifted to Gouveia to show that it was not prejudicial. The HSC also found no abuse of discretion in finding no meaningful alternative to a mistrial. Accordingly, the HSC upheld the ICA’s vacation of the dismissal order.


Justice Nakayama’s Dissent. Justice Nakayama did not necessarily disagree with the standards used by the majority. She disagreed with the majority’s application. Under her analysis, she wrote that the outside influence did not taint the verdict and it was harmless beyond a reasonable doubt. She would have held that the subsequent prosecution should have been dismissed.

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