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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0000358
                                                              25-OCT-2016
                                                              07:50 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                          STATE OF HAWAI#I,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                          ROYCE C. GOUVEIA,
                   Petitioner/Defendant-Appellant.


                            SCWC-14-0000358

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-14-0000358; CR. NO. 12-1-1474)

                            OCTOBER 25, 2016

   RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., WITH
                    NAKAYAMA, J., DISSENTING

             OPINION OF THE COURT BY RECKTENWALD, C.J.

          This case requires us to determine whether the trial

court erred in declaring a mistrial based on jurors’ concerns

about their safety.     Defendant Royce Gouveia was charged with

manslaughter and tried before the Circuit Court of the First
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Circuit.1    After deliberating, the jurors sent several notes to

the court.    The first note stated:       “We reached a verdict.”

Another note expressed concern for their safety because a man on

the prosecutor’s side of the courtroom had been “glaring and

whistling at [Gouveia].”       The circuit court conducted voir dire

of the jurors to determine what, if any, effect the incident had

on them.    The circuit court then declared a mistrial based on

manifest necessity.      Gouveia subsequently filed a motion to
dismiss, asserting that the circuit court’s finding of manifest

necessity and declaration of a mistrial was erroneous, and that

further prosecution was prohibited on double jeopardy grounds.

The circuit court denied the motion.

            Gouveia appealed the denial of his motion to dismiss to

the Intermediate Court of Appeals (ICA).           The ICA affirmed the

circuit court, State v. Gouveia, CAAP-14-358 (App. Apr. 30, 2015)

(mem.), and Gouveia then petitioned this court to review the

ICA’s judgment.

            We conclude that the circuit court did not abuse its

discretion in concluding that there was manifest necessity for a

mistrial because the presumption of prejudice was not overcome

beyond a reasonable doubt.       Accordingly, the ICA’s June 4, 2015

judgment on appeal is affirmed.

                               I. Background

            On September 25, 2012, an altercation occurred in which


     1
            The Honorable Glenn J. Kim presided.

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Gouveia struck Albert Meyer, causing Meyer to fall and hit his

head on the pavement.     Meyer was taken to the hospital by

ambulance and pronounced brain dead two days later.           Gouveia was

arrested and charged with manslaughter for recklessly causing the

death of Meyer in violation of Hawai#i Revised Statutes (HRS)

§ 707-702(1)(a).

          On the afternoon of June 6, 2013, the same day the

State and Gouveia made their closing arguments in Gouveia’s
trial, the jury sent two simultaneous communications to the

circuit court.    Communication No. 3, signed at 2:20 p.m., stated:

“We reached a verdict.”     Communication No. 2, signed four minutes

later, 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.”

          The circuit court told the State and Gouveia, “My

intention, unless counsel . . . can persuade me otherwise, is

just to take no action on this[.]”        However, both counsel agreed

that the court should question the jurors “[a]s to its effect, if

any, on their deliberations and their verdict[.]”           The circuit

court then determined that, before opening the verdict, it would

allow counsel to voir dire the jurors individually and would also

ask questions directly.

          Before questioning the jurors, the circuit court asked

counsel whether they knew anything about the occurrence to which

Communication No. 2 referred.       Defense counsel stated that he was


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not aware of anything that had happened.           The Deputy Prosecuting

Attorney (DPA) stated that she did not see anything, but was

aware that Meyer’s brother had been in the courtroom that

morning, was “pretty upset,” and had a shaved head.

A.    Questioning of the Jurors Regarding Communication No. 2

            The circuit court questioned all twelve jurors

individually.     Four jurors stated that they witnessed an

individual seated on the prosecutor’s side of the courtroom
whistling and/or glaring at Gouveia.          The incident was brought up

in the jury room, where some of the jurors who observed the

incident stated that they “were a little bit scared.”              When Juror

No. 4 was asked by the court, “So I take it you have concern for

your safety,” she replied, “Yes.”

            Seven jurors indicated that the 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 jurors indicated that the discussion

occurred at the beginning of deliberations and that it was one of

the first topics discussed.        All twelve jurors stated that

neither the incident itself nor the discussions of it affected

their own decision, but when Juror No. 11 was asked if the

incident “appear[ed] to have an impact on other people’s

decision[,]” she replied that “[i]t did.”

B.   The State Moves for a Mistrial

            After all of the jurors had been questioned, the


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circuit court asked both the State and Gouveia if they wanted the

court to take any further action.        Gouveia said no, but the State

moved for a mistrial.

          The State argued there was a manifest necessity to

declare a mistrial because the topic of the man glaring and

whistling at Gouveia had come up during deliberations, no one had

remarked that it was an improper topic for the jury to consider,

and, based on the statement made by Juror No. 11, the topic had
seemed to influence the other jurors.        The State noted that

approximately five of the jurors had said that the topic of the

incident came up during deliberations, i.e., before the jury had

reached its verdict.     Thus, according to the State, the verdict

was “tainted.”

          The State also argued that it was important that at

least three jurors said the topic of the incident came up at the

beginning of the deliberations because, along with the fact that

the jurors decided to write a communication to the court after

reaching a verdict, it implied that it was important to some of

the jurors.

          Gouveia argued that because the court had instructed

the jurors that they had to decide the case based solely on the

evidence presented, and each of the jurors said that the

discussion did not impact their decision, there was no manifest

necessity.

          The circuit court determined that it was required to


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look at the totality of the circumstances and find beyond a

reasonable doubt that the jurors’ concern for their personal

safety had no impact on any of the twelve jurors’ decisions.                If

it could not find that beyond a reasonable doubt, then there

would be manifest necessity requiring a mistrial.

          The circuit court then orally granted the State’s

motion for mistrial:

          [W]hen I . . . apply my reason and common sense to
          this that at least some of these jurors have . . .
          what strikes me as a really serious concern for their
          personal safety and it came up according to, at least
          as I count, four or five of them, it [was] . . . one
          of the first topics of discussion when they got back
          in the room and started deliberating the case.
          Somebody brought it up and they started talking about
          it. It frankly beggars my reason and common sense
          that it would have no bearing on the deliberations in
          this case and therefore the verdict.

          I’m going to grant the State’s motion for mistrial.
          I’m going to find there’s manifest necessity for such
          based on what I said . . . and everything else that’s
          been put on the record, including my questions to
          counsel.

          The verdict’s going to be sealed for future purposes,
          if any, but obviously we’re not going to take the
          verdict. I’m declaring a mistrial and I’m finding
          manifest necessity for that, because I don’t think
          there’s anything short of a mistrial . . . that can
          cure it. The verdict’s tainted, in my view, based on
          my findings.

          And to be explicit about it, as the finder of fact, I
          don’t find it credible that all 12 of these people
          despite the answer they gave me about no impact on
          their decision, I think at least one, and probably
          more than one of them . . . had these serious concerns
          about their safety. It really beggars my reason and
          common sense that it could not have had any impact on
          their deliberations and decision in this case.

          The circuit court later added:

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          So the record’s clear and [Defense Counsel] has this
          appellate issue if it becomes one in the future, I am
          importing that standard from the juror misconduct
          cases in my ruling here . . . . And I’m finding that
          I cannot find beyond a reasonable doubt that there was
          no impact on the deliberations or verdict in this case
          such that the verdict was not tainted.

          On October 22, 2013, the circuit court entered its

findings of fact (FOFs), conclusions of law (COLs), and order

granting the State’s motion for mistrial.         The circuit court made

the following relevant FOFs:
          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.



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       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 decision-making
       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.

       The court made the following relevant COLs:

       5. Communication No. 2 raised the concern of the
       Court and both counsel that the incident may have
       substantially prejudiced the right to a fair trial.
       After further investigating the totality of
       circumstances surrounding Communication No. 2, the
       Court concluded at least some of the jurors were not
       credible, although explicitly indicated they were not
       lying. The Court’s concern is that although all
       twelve jurors unanimously agreed to release
       Communication No. 2, no juror admitted that the
       incident affected their own decision-making process.
       Furthermore, reason and common sense dictates that the
       incident did have an effect on the deliberations hence
       the impartiality of the jurors, which is not harmless
       beyond a reasonable doubt[.]

       . . . .

       8. Under the totality of the circumstances in light
       of the plain language of Communication No. 2 and the
       voir dire of the individual jurors, the Court finds
       that the jury was not impartial in their [sic]
       deliberation and decision-making process. Based on
       the foregoing, there is no other remedy short of a
       mistrial to cure the issue at hand as neither a
       continuance nor a further jury instruction would
       appropriately address the issue of an impartial jury
       and its subsequent tainted verdict.

       . . . .



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            10. The incident underlying Communication No. 2 was
            both beyond the court’s control and unforeseeable.
            Accordingly, based on Communication No. 2, and the
            totality of the circumstances, there is manifest
            necessity for a mistrial.

            Gouveia filed a motion to dismiss based on double

jeopardy, arguing that the circuit court erroneously found

manifest necessity and, as such, “the continued prosecution of

Defendant violates his federal and state constitutional rights

against double jeopardy[.]”        The circuit court denied Gouveia’s
motion.2

C.    Appeal to the ICA

            Gouviea alleged two points of error to the ICA:             1) the

circuit court abused its discretion in declaring a mistrial

because manifest necessity was not present; and 2) the circuit

court erroneously denied his motion to dismiss for violation of

double jeopardy.

            In a memorandum opinion, the ICA affirmed the circuit

court’s order denying Gouveia’s motion to dismiss for violation

of double jeopardy.       First, the ICA noted that Gouveia’s primary

argument was “his challenge to the Circuit Court’s finding that

the jurors’ statements that the incident did not affect their

decision making process and/or their deliberations were not

credible.”     However, the ICA disagreed with Gouveia, and deferred

to the circuit court’s findings that the jurors were not


      2
            Although it is apparent from the record that the parties believed
the sealed verdict was “not guilty,” this was not confirmed until the ICA
unsealed the verdict on appeal.

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influenced by the incident or the discussion:          “[T]he Circuit

Court was in a better position than this court to assess the

credibility of the jurors, understand the dynamics of the trial

process in this case, and evaluate the effect that the external

incident had on the jurors’ deliberations.”          Accordingly, the ICA

held that the circuit court did not abuse its “broad discretion”

in determining that manifest necessity existed for a mistrial.

          The ICA also found that the circuit court had
sufficiently considered alternative options to a mistrial when it

concluded that “neither a continuance nor a further jury

instruction would appropriately address the issue of an impartial

jury and its subsequent tainted verdict.”         The ICA further noted

that, in any event, Gouveia had failed to argue on appeal that

the circuit court erred in failing to consider options less

severe than a mistrial.

          The ICA also noted that there was a possible violation

of Hawai#i Rules of Evidence (HRE) Rule 606(b), but that even if

the circuit court violated this rule in allowing the jurors to be

questioned regarding the effect of the incident and the

discussion on their verdict, Gouveia had waived any such argument

by failing to object to the questioning in the circuit court,

failing to raise it as an issue on appeal, and in relying on the

jurors’ testimony in his appellate briefs.

          The ICA rejected Gouveia’s argument that the circuit

court erroneously denied his motion to dismiss on double jeopardy


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grounds because “[w]hen a trial court declares a mistrial that is

supported by a proper finding of manifest necessity, ‘retrial is

not barred by the defendant’s right against double jeopardy.’”

            Chief Judge Nakamura dissented on the ground that “the

Circuit Court’s finding of manifest necessity was based on its

erroneous view that such finding was per se required as a result

of the jurors’ expression of concern for their safety.”              The

dissent agreed with the majority that any claim of error based on
HRE Rule 606(b) was waived.

            Gouveia sought review in this court, presenting three

questions:

            1.    Did a divided [ICA] erroneously affirm the trial
                  court’s declaration of a mistrial, at the
                  request of [the State], over [Gouveia’s]
                  objection, before receiving a jury’s not guilty
                  verdict, based on “manifest necessity” when each
                  juror indicated that his or her verdict was not
                  influenced by an extra-judicial incident?

            2.    Did a divided [ICA] erroneously affirm the trial
                  court’s denial of a Motion to Dismiss for
                  Violation of Double Jeopardy based on the trial
                  court’s prior declaration of the mistrial?

            3.    Did a divided [ICA] erroneously rely on
                  testimony which should not have been permitted
                  pursuant to Rule 606(b) of the [HRE]?

                          II. Standards of Review

A.    Declaration of Mistrial and Finding of Manifest Necessity

            A trial court’s declaration of a mistrial is reviewed
            under the abuse of discretion standard. A
            determination of manifest necessity is likewise left
            to the sound discretion of the trial court. An abuse
            of discretion occurs when the decisionmaker exceeds
            the bounds of reason or disregards rules or principles
            of law or practice to the substantial detriment of a


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            party.

State v. Wilmer, 97 Hawai#i 238, 243, 35 P.3d 755, 760 (2001)

(citation and quotation marks omitted).

B.    Denial of Motion to Dismiss for Violation of Double Jeopardy

            “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.”         Id. at 242-43, 35 P.3d at 759-60.
            The issue whether a reprosecution is barred by double
            jeopardy is a question of constitutional law. We
            review questions of constitutional law by exercising
            our own independent constitutional judgment based on
            the facts of the case. Accordingly, we review
            questions of constitutional law de novo under the
            right/wrong standard.

State v. Rogan, 91 Hawai#i 405, 411-12, 984 P.2d 1231, 1237-38

(1999) (citation and internal quotation marks omitted).

                              III.   Discussion

A.    The Circuit Court did not Rely on Improper Juror Testimony
      When it Concluded that Manifest Necessity Existed for a
      Mistrial

            Gouveia argues in his application that pursuant to HRE

Rule 606(b), the circuit court should not have permitted the

jurors to be questioned about whether the incident or subsequent

discussion of the incident affected their decisions and that the

ICA’s ruling that he had waived any claim of error based on HRE

Rule 606(b) was “unfair.”        Gouveia argues that the incompetent

evidence violated his right to a fair trial and, without it,

there was no basis for the trial court’s or the ICA’s decisions.


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           HRE Rule 606(b) provides:

           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.

           HRE Rule 606(b) is inapplicable to statements made
prior to jurors reaching a verdict.          See State v. Bailey, 126

Hawai#i 383, 402 n.23, 217 P.3d 1142, 1161 n.23 (2012).             Once a

verdict has been reached, however, “the court cannot consider the

jurors’ testimony as to the effect of the improper statement upon

them.”   State v. Kim, 103 Hawai#i 285, 291, 81 P.3d 1200, 1206

(2003) (citation and quotation marks omitted).          The court “can

only consider whether such statement was made . . . and whether,

given the statement, we can say that [the defendant] had a trial

before an impartial jury.”      Id.

           Here, the court’s questions to the jurors were

appropriate, except for the questions regarding the effect of the

incident on the verdict.      See id.      However, the court

specifically found that it did not find the jurors’ responses on

that point to be credible, and in any event, the record indicates

that the bases for the court’s decision comported with the

limitations imposed by HRE Rule 606(b).

           For instance, in the written FOFs, the circuit court

found that seven jurors indicated that discussion of the incident

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occurred before the verdict.        At least four of these jurors

indicated that the discussion occurred at the beginning of

deliberations, and that it was one of the first topics discussed.

It also found that the incident caused some jurors to feel

concern, intimidation, and fear retaliation.            Based on these

facts, the court found 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.”

            In short, the court properly asked the jurors what

occurred, their reaction to what occurred, whether the incident

was discussed by some or all of the jurors, when it was discussed

during deliberations, the length of the discussion, and what

other jurors said about the incident.          Based on these answers, it

concluded that there was manifest necessity for a mistrial.

Accordingly, we do not agree with Gouveia that the circuit court

relied on improper HRE Rule 606(b) testimony.3

B.    The Circuit Court did not Abuse its Discretion in Finding
      that Manifest Necessity Existed for a Mistrial Because the
      Presumption of a Possibility of Unfairness was not Rebutted
      Beyond a Reasonable Doubt

            Gouveia argues that the circuit court abused its



      3
            The ICA concluded that Gouveia waived his HRE Rule 606(b)
challenge by failing to object to the court’s questioning of the jurors as to
the effect of the incident on their decision-making. Because we conclude that
the bases for the court’s decision comported with the limitations imposed by
HRE Rule 606(b), we do not reach the waiver issue, or endorse the ICA’s
discussion of that issue.

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discretion when it found there was manifest necessity for a

mistrial.    Specifically, Gouveia contends that each juror stated

that their verdict was not influenced by the incident or

subsequent discussions regarding it, that the jurors’ concerns

regarding their safety were “peripheral to Gouveia’s guilt or

innocence[,]” and that there was “no evidence that the incident

was used as a circumstance against either party.”            Lastly,

Gouveia adopts the argument in the ICA’s dissent that “the
circuit court’s finding of manifest necessity was based on its

erroneous view that such finding was per se required as the

result of the jurors’ expression of concern for their safety[.]”

            We conclude that the circuit court did not abuse its

discretion in deciding that manifest necessity existed for a

mistrial because the presumption of prejudice could not be

overcome beyond a reasonable doubt and no reasonable alternatives

to a mistrial were available.

     1.     The circuit court did not abuse its discretion in
            finding that, under the totality of the circumstances,
            manifest necessity existed to warrant a mistrial

            The right to a fair trial is guaranteed to both

defendants and to the State.        Although the defendant has a valued

right to have his case concluded by a single tribunal,

            [b]ecause of the variety of circumstances that may
            make it necessary to discharge a jury before a trial
            is concluded, and because those circumstances do not
            invariably create unfairness to the accused, his
            valued right to have the trial concluded by a
            particular tribunal is sometimes subordinate to the
            public interest in affording the prosecutor one full
            and fair opportunity to present his evidence to an


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          impartial jury.

State v. Quitog, 85 Hawai#i 128, 124, 938 P.2d 559, 573 (1997)

(emphasis added) (quoting Arizona v. Washington, 434 U.S. 497,

505 (1978)).

          “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.”      Wilmer, 97 Hawai#i at 242-43, 35
P.3d at 759-60.    Manifest necessity is defined as “circumstances

in which 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 (quoting Quitog, 85 Hawai#i at 143, 938 P.2d at 574).

Hawai#i law states that termination of prosecution is not

improper, and thus a defendant can be retried, when

“[p]rejudicial conduct, in or outside the courtroom, makes it

impossible to proceed with the trial without injustice to either

the defendant or the State[.]”       HRS § 701-110(4)(b)(iii).

          Therefore, manifest necessity protects the right to a

fair trial for both the defendant and the State.           See State v.

Deguair, 136 Hawai#i 71, 91, 358 P.3d 43, 63 (2015).

          In Wilmer, we noted that “[b]ecause manifest necessity

is a high standard not to be declared lightly, a trial judge

should record his or her reasons for declaring a mistrial and

include the reasons for finding manifest necessity.”            97 Hawai#i

at 245, 35 P.3d at 762.     Moreover, we stated that “it is


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impossible to define all the circumstances that would render it

proper to interfere by declaring a mistrial” and that “no

standard can be applied mechanically or without attention to the

particular problem confronting the trial judge.”           Id. at 244-45,

35 P.3d at 761-62 (citations, quotation marks, and brackets

omitted).   A determination of manifest necessity is left to the

sound discretion of the trial court.        Id. at 243, 35 P.3d at 760.

            When circumstances arise that could influence the
impartiality of the jury and thus affect the ability to reach a

fair result based on the evidence, a rebuttable presumption of

prejudice is raised.     See id. at 244, 35 P.3d at 761; see also

State v. Napulou, 85 Hawai#i 49, 55-56, 936 P.2d 1297, 1303-04

(1997).   To overcome such a presumption, the trial court, after

investigating the totality of the circumstances, must find that

the outside influence on the jury was harmless beyond a

reasonable doubt.    Wilmer, 97 Hawai#i at 244, 35 P.3d at 762.             If

this influence cannot be proven harmless beyond a reasonable

doubt, then the court must look at all reasonable alternatives to

cure the harm before declaring a mistrial.         State v. Minn, 79

Hawai#i 461, 465, 903 P.2d 1282, 1286 (1995).

            In the present case, upon receiving Communication No.

2, both counsel recognized that the possibility of an improper

influence existed and requested that the court question the

jurors.   This possibility of an improper influence created a

rebuttable presumption of prejudice.        Wilmer, 97 Hawai#i at 244,


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35 P.3d at 762.     The circuit court agreed to the request,

conducted voir dire of each juror individually, and allowed both

the DPA and defense counsel to question the jurors.            Therefore,

the issue here is whether the circuit court abused its discretion

in finding that the presumption was not proven harmless beyond a

reasonable doubt and no reasonable alternative to declaring a

mistrial existed.4

           After questioning the jurors regarding the incident in
the courtroom, the circuit court found that the majority of the

jurors indicated that discussion of the incident occurred prior

to the verdict and that some jurors communicated fear for their

own safety.    The circuit court also found 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.”

           Based on these FOFs, the circuit court concluded that


      4
            Gouveia argues that the circuit court found that manifest
necessity was “per se” required due to the outside influence of the
individual’s behavior. This argument is without merit. The circuit court
asked the DPA, “don’t you think its per se an inappropriate extraneous
circumstance that if the jurors have concerns for personal safety based on
something they observed in the courtroom . . . that if it entered their
discussions and had an impact on any of them, that it would taint the
verdict?” (emphasis added). It is clear that the court did not view the
conduct as necessarily requiring a mistrial. In FOF 16, for example, the
court found that based on the “totality of the circumstances,” the effect on
the verdict “was not harmless beyond a reasonable doubt.” And in COL 10, the
court concluded that “based on Communication No. 2, and the totality of the
circumstances, there is manifest necessity for a mistrial.” Based on this
record, we disagree with Gouveia and the dissent that the circuit court
believed that its finding of manifest necessity was per se required as a
result of the jurors’ safety concerns.


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even though no juror admitted that the incident affected their

own decision-making process, “reason and common sense dictates

that the incident did have an effect on the deliberations hence

the impartiality of the jurors, which is not harmless beyond a

reasonable doubt[.]”     The circuit court concluded that:

          [u]nder the totality of the circumstances in light of
          the plain language of Communication No.2 and the voir
          dire of the individual jurors . . . the jury was not
          impartial in their deliberation and decision-making
          process, [and] there is no other remedy short of a
          mistrial to cure the issue at hand as neither a
          continuance nor a further jury instruction would
          appropriately address the issue of an impartial jury
          and its subsequent tainted verdict.

          In looking at the totality of the circumstances,

including the discussion of the incident in the jury room and the

likelihood that it was one of the first things discussed, the

circuit court was well within its discretion to conclude that

manifest necessity existed for a mistrial because the presumption

of prejudice was not overcome beyond a reasonable doubt.            Cf.

Bailey, 126 Hawai#i at (trial court should have granted a new

trial based on a juror’s remarks during deliberations, despite

other jurors saying the remarks did not affect their verdict).

          Gouveia contends the circuit court committed clear

error because there was no evidence in the record that the

incident affected the jurors’ decision-making process and/or

deliberations.    He bases this argument primarily on the fact that

each of the twelve jurors stated that the incident did not affect

his or her verdict, and asserts that without evidence to the


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contrary, the court must presume the jury follows the court’s

instructions in not considering outside evidence or being

influenced by emotion.

            Gouveia’s argument misconstrues the applicable law.

Once there is a showing that an outside incident may have

influenced the jury, there is a rebuttable presumption of

prejudice that must be overcome beyond a reasonable doubt.
Napulou, 85 Hawai#i at 55-56, 936 P.2d at 1303-04.          A prima facie

showing of improper influence is all that is required to raise

that presumption.    State v. Chin, 135 Hawai#i 437, 448, 353 P.3d

979, 990.    Therefore, it is the possibility of improper influence

that must be disproved.     Id.   It is Gouveia, then, who must show

that the court abused its discretion in concluding that under the

totality of the circumstances, the outside influence was not

harmless beyond a reasonable doubt.

            Gouveia compares the facts of this case to a similar

circumstance which occurred in Napulou.         In Napulou, the jury

sent a communication to the court after some members of the

defendant’s family were seen entering the same parking lot as the

jurors.   The communication, sent immediately after the incident

was mentioned in the jury room and prior to a verdict being

reached, asked, “[i]f a guilty verdict is given, could there be a

danger to some of us or has some arrangement been made for

protection?”    Napulou, 85 Hawai#i at 51-52, 936 P.2d at 1299-300.

The trial court, after conducting voir dire of the jurors, found


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the jurors could be impartial and denied Napulou’s motion for a

mistrial.    Id. at 54, 936 P.2d at 1302.       The ICA affirmed,

finding that the trial court was empowered to assess the

credibility of the jurors and that the record supported the

conclusion that any improper comments were harmless beyond a

reasonable doubt.    Id. at 56, 936 P.2d at 1304.

            This case is distinguishable from Napulou.          Notably,
the communication in Napulou occurred prior to the verdict, and

thus the court could rely on the jurors self-assessment as to

whether they could remain impartial.        See Bailey, 126 Hawai#i at

402 n.23, 217 P.3d at 1161 n.23.         The voir dire of the jurors in

Napulou revealed that the concerns were “peripheral to the matter

of Napulou’s guilt or innocence” and that “the jurors paid little

attention to members of Napulou’s family.”         Napulou, 85 Hawai#i

at 56, 936 P.2d at 1304.      Further, the trial court found the

jurors’ assertions that “they could continue as impartial jurors,

unaffected by the safety concerns that had disturbed them” to be

credible.    Id.

            In contrast, the jury communication in the instant case

was a statement that the jurors were actually concerned for their

safety, not merely inquiring into the possibility of danger.

Additionally, at least four jurors stated that the discussions of

the incident and potential danger happened at the beginning of

deliberations, which indicates those discussions could have had

an effect on the subsequent jury deliberations.          Under these


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circumstances, the circuit court was well within its discretion

to conclude that under the totality of the circumstances, the

outside influence was not harmless beyond a reasonable doubt.

     2.      No reasonable alternative to a mistrial would have
             eliminated the potential of prejudice

             After determining that there was an outside influence

on the jury, the circuit court was required to consider all

reasonable alternatives that would be less severe than a
mistrial.     “When examining the record for evidence of manifest

necessity, we must determine whether the trial court sufficiently

considered . . . less severe options available and balance[d] the

accused’s rights against the public interest.”          Minn, 79 Hawai#i

at 465, 903 P.2d at 1286.

             In Napulou, the trial judge was able to question the

jurors prior to a verdict being delivered.         During this process,

the court was able to alleviate any lingering concerns the jurors

had regarding their safety.      Cf. 85 Hawai#i at 56, 936 P.2d at

1297.     This, along with the trial court’s finding that the

jurors’ statements about being able to proceed without the

outside influence affecting their deliberations were credible,

allowed the court to proceed without concern for the impartiality

of the jury.

             In Wilmer, this court found that several instances of

prosecutorial misconduct resulted in little actual prejudice to

the defendant.     97 Hawai#i at 245, 35 P.3d at 762.       The

inappropriate conduct arose prior to jury deliberations, and the

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trial court denied the defendant’s request to proceed with the

trial after finding that manifest necessity existed for a

mistrial.     Id.   In reversing the trial court, we found “[w]hat

little prejudice did result could have been cured through means

other than a mistrial” and thus “the trial court abused its

discretion in concluding there was manifest necessity for the

mistrial because the circumstances creating an apparent need for
a mistrial did not make it impossible for the trial to proceed.”

Id. at 245-46, 35 P.3d at 762-63.

            Here, unlike in Napulou and Wilmer, the jury reached a

verdict, informed the court that they had reached the verdict,

then notified the court that there was a concern for their safety

because of the incident.        Under these circumstances, the circuit

court determined that the verdict was already tainted and that

neither a continuance nor additional jury instructions to ignore

the outside influence would have been effective.             This

determination was reasonable.

            Based on the facts of this case, the circuit court’s

determination that nothing short of a mistrial would have cured

the potentially impartial jury was not an abuse of discretion.

C.    Because There was Manifest Necessity for a Mistrial, Retrial
      is not Barred by Double Jeopardy

            The final issue raised is whether the ICA erroneously

affirmed the trial court’s denial of Gouveia’s motion to dismiss

for violation of double jeopardy.          “A mistrial is properly

declared and retrial is not barred by the defendant’s right

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against double jeopardy where . . . there was manifest necessity

for the mistrial.”       Wilmer, 97 Hawai#i at 242-43, 35 P.3d at 759-

60.    In light of our ruling that the circuit court was within its

discretion in concluding that manifest necessity existed, retrial

of Gouveia is not barred by double jeopardy.

                               IV.   Conclusion

             The circuit court did not abuse its broad discretion in
determining that manifest necessity existed for a mistrial.

Accordingly, it appropriately denied Gouveia’s motion to dismiss

on double jeopardy grounds.

             Therefore, the ICA’s June 4, 2015 judgment on appeal is

affirmed, but for the reasons stated herein.

Keith S. Shigetomi for                   /s/ Mark E. Recktenwald
petitioner
                                         /s/ Sabrina S. McKenna
Donn Fudo
for respondent                           /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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