Questionable Peremptory Challenges, Rogue Jurors, and Other Misconducts


Background. Joseph Pitts was indicted for attempted murder in the 2d degree. Pitts and his friend Jason Brown were driving to the airport to pick up a mutual friend. On the way to the airport, Brown asked Pitts to stop to see a person named “Niki” who lived under a tree. They stopped at the location and both got out of the car. Brown lit a cigarette and was hit. Brown testified he saw Pitts but was frantic. He was stabbed in the neck and arms. He ran down the hill to a guard in a shack and announced “a black guy up there . . . just stabbed me.” He was positive Pitts was his assailant.

Prior to trial, Pitts moved to exclude evidence that Pitts accused Brown of raping or sleeping with his girlfriend and that he demanded Brown apologize to him. The prosecution noted that there was no evidence of Pitts’ suspicions before Brown was stabbed. The circuit court, presided by the Hon. Judge Rom Trader, granted the motion.

During jury selection, a potential juror expressed herself about the fairness of the American criminal justice system.

For 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]t 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 are obviously 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.

          She later added that she might “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, that would be a bias.” She added, however, that she could be “open to hearing what other people have to say.” The prosecution exercised a peremptory challenge without objection.

At trial the prosecution questioned Brown about the apology. Brown testified that after the incident he asked Pitts why he stabbed him. Brown testified that Pitts said “All I wanted was an apology” about “Jamie.” There was no objection. The next day, Pitts moved to strike the testimony and references to the “apology.” The court granted the motion and issued the following instruction:

All this testimony yesterday from Mr. Brown having to do with his testimony that the defendant, Mr. Pitts, was in contact with him after the stabbing in this case demanding an apology for something is stricken from the record.
          I’m striking it from the record. Anything to do with this alleged apology you are to disregard. All right?

Pitts testified at trial. He testified that they stopped at the tree because he was going to sell drugs. He got out of the car and heard a scream. He saw two people running from the car wearing dark clothing.

During the closing arguments, the prosecutor suggested to the jury that Pitts came up with his defense:

Now, the defendant does not have to put on a case at all. It’s the State’s burden. After looking at all the facts, after looking at the police reports and the evidence that’s in this case, the defendant comes up with an idea. It wasn’t me. It was somebody else. I didn’t do this.

There was no objection. Pitts focused his closing argument on the lack of blood stains on his clothes.

During deliberation and before the verdict, the jury sent a communication. It wanted to examine gloves and “pants” admitted into evidence. There was no objection. The evidence was sent to the jury. Pitts was found guilty.

Pitts filed a motion for new trial. He contended that the jury improperly investigated the clothing. At the hearing, Pitts called a juror who testified that they requested scissors to cut open the package containing Pitts’s clothes. Three jurors examined the shirt and pants for blood. They found spots on the pants and some concluded that those spots were blood stains. The motion was denied.

Juror Selection. “No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws[.]” Haw. Const. Art. I, Sec. 5. “It is impermissible to exercise peremptory challenges in a manner which discriminates on the basis of such categories as race, religion, ancestry, or gender.” State v. Daniels, 109 Hawaii 1, 5, 122 P.3d 796, 800 (2005) (Caucasian males); State v. Levinson, 71 Haw. 492, 795 P.2d 845 (1990) (women); State v. Batson, 71 Haw. 300, 302, 788 P.2d 842, 842 (1990) (same ethnic minority as defendant). Before a challenge can be heard on these grounds, the defendant must first make a prima facie showing that the “challenged juror is a member of a protected group, that the opposing party exercised a peremptory challenge to remove the juror, and that the facts and circumstances surrounding the exercise of the peremptory challenge raise an inference of discrimination.” Daniels, 109 Hawaii at 5, 122 P.3d at 800.

In this case, the potential juror was excused for her concern about a lack of African-Americans in the venire. That, according to the HSC, does not arise to a constitutional violation. The HSC did note, however, that the trial court has the inherent judicial authority to at the very least inquire with the counsel to provide a reason for exercising the challenge.

Opening the bag, Examining the Pants, and finding Highly-Speculative Blood Stains Arose to Juror Misconduct. The right to a trial by an impartial jury includes the right to have a jury free from outside influences. State v. Keliiholokai, 58 Haw. 356, 357-358, 569 P.2d 891, 893-894 (1977). “The function of the jury in rendering an accurate verdict based on the facts presented at trial is paramount in upholding the truth seeking function of the judicial system.” State v. Flores, 131 Hawaii 43, 56, 314 P.3d 120, 133 (2013). The verdict must be based on evidence received in open court, not from outside sources. Id. See also State v. Chin, 135 Hawaii 437, 447, 353 P.3d 979, 989 (2015) (“Contact between witnesses and jurors is ‘generally improper’ because it raises fundamental concern of whether the jury reached ‘their verdict based solely on the evidence presented at trial’ . . . .”).

The HSC noted that “the sanctity of jury deliberations [are] infringed when a juror’s conduct has introduced an outside influence into the jury room.” State v. Williamson, 72 Haw. 97, 99, 807 P.2d 593, 595 (1991) (relying on dictionary to look up “entrapment” and “preponderance” improper); State v. Pauline, 100 Hawaii 356, 362-363, 60 P.3d 306, 312-313 (2002) (jury experiment with trunk of vehicle not improper because it did not produce “new” evidence).

Here, the HSC held that opening the bag and examining the pants resulted int eh production of new evidence—three stains that were believed to be blood. There was no such evidence that blood was found on Pitts.

Once misconduct is found, “the court must then examine whether the defendant was . . . denied his or her right to a fair trial by an impartial jury.” Pauline, 100 Hawaii at 380, 60 P.3d at 330. There is a rebuttable presumption of prejudice when an outside influence “could” substantially prejudice the right to a fair trial. Williamson, 72 Haw. At 102, 807 P.3d at 596. “To overcome the presumption of prejudice, the State must prove that the outside influence on the jury was harmless beyond a reasonable doubt.” State v. Chin, 135 Hawaii 437, 448, 353 P.3d 979, 990 (2015). Here, the HSC held that the State did not overcome the presumption.

Arguing that the Defendant Heard the Testimony and “Came Up With” the Defense is Prosecutorial Misconduct. The prosecutor has the “duty to seek justice, to exercise the highest good faith in the interest of the public and to avoid event eh appearance of unfair advantage over the accused.” State v. Rogan, 91 Hawaii 405, 412, 984 P.2d 1231, 1238 (1999). Pitts argued that the prosecution committed misconduct by arguing that Pitts “came up with his” defense after listening to the testimony of the other witnesses. Although a prosecutor has wide latitude in commenting on the evidence at closing, commenting on matters outside the evidence is improper. State v. Walsh, 125 Hawaii 271, 290, 260 P.3d 369 (2011). Comments also cannot infringe upon the defendant’s constitutional rights. Id. at 284, 260 P.3d at 363.

The accused has the due process right to present a complete defense. State v. Tetu, 139 Hawaii 207, 219, 386 P.3d 844, 856 (2016). That includes the right to review discovery. Id. The prosecutor in this case, according to the HSC, attacked Pitts by penalizing him for reviewing the police reports and evidence. This, according to the HSC, was error, but because of the new trial from juror misconduct, did not examine if it was plain error.

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