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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCAP-XX-XXXXXXX
                                                              17-DEC-2019
                                                              09:27 AM


           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


                           STATE OF HAWAII,
                          Plaintiff-Appellee,

                                    vs.

                             JOSEPH PITTS,
                         Defendant-Appellant.


                            SCAP-XX-XXXXXXX

       APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
              (CAAP-XX-XXXXXXX; CR. NO. 09-1-0097)

                           DECEMBER 17, 2019

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

                OPINION OF THE COURT BY POLLACK, J.

          The 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
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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.

          On 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.

                            I. BACKGROUND

                     A. Arrest & Pretrial Motions

          On 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).



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            Prior 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.1       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.

                                  B. Trial

            During jury selection, a prospective juror, responding

to a question from defense counsel, shared her thoughts about

the composition of the jury pool:


      1
            The Honorable Glenn J. Kim presided over all the circuit court
proceedings referenced in this opinion.




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          [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. . . .

Defense 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.

After this exchange, the State used a peremptory challenge to

excuse the prospective juror.       The defense did not make an

objection.

          Before 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.


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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 Pitts’ motion.

          The 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.

          Keola 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.

          James 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

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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 called 911.

          Igawa 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

shirt.”

          Officer 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

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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.

            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 them.2

            Jason 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

     2
            Midway through Sunaoka’s testimony, Pitts waived his right to
counsel and continued pro se throughout the remainder of the trial.



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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.

           According 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.

           Brown 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.

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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.

          Brown was asked by the prosecutor about a conversation

that he purportedly had with Pitts following his release from

the hospital:

          [PREOSECUTOR:] Okay. Let me just--let me just, um, direct
          your questioning here.
                So you talked to him. Did you ever ask him why he
          stabbed you?

          . . . .

          [BROWN:] Yes.

          [PROSECUTOR:] You asked him, “Why did you stab me?”

          [BROWN:] Right.

          [PROSECUTOR:] And did he respond?

          [BROWN:] His response was, “All I wanted was an apology.”

          [PROSECUTOR:] I’m sorry?   Can you--

          [BROWN:] “All I want is an apology.    Why don’t you just
          apologize.”

          [PROSECUTOR:] So that’s what he told you when he--when you
          asked him, “Why did you stab me?”

          [BROWN:] Right.



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          [PROSECUTOR:] Okay. And at that point, when you were
          talking to him, did you already know what he wanted an
          apology for?

Brown 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.”

          [BROWN:] Right.

          [PROSECUTOR:] Just apologize.

          [BROWN:] He said, “You know what you did.   Just apologize.”

          [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.

          The 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
          speculation in the jury’s mind is prejudicial to him.
                So do you have--do you have anything you want to add
          or you want to argue this point?

          [PROSECUTOR:] Well, Your Honor, I--I--all I wanted to do is
          get out from the victim any conversation he had with the
          defendant regarding the stabbing. And I knew that I wasn’t
          going to get into the actual allegations of the rape, and I
          stopped there. And I--

          THE COURT: All right.

          [PROSECUTOR:]--just didn’t think that would be a problem,
          Your Honor.

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The judge further agreed with Pitts that the evidence had been

precluded.   The circuit court granted Pitts’ motion to strike

the testimony of “an apology for something” and instructed the

jury as follows:

          [COURT]: All right. . . . I have an instruction for you at
          this point.
                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?

          Dr. Frederick Yost testified that on the night of the

incident he treated Brown for three wounds, the main wound being

to Brown’s external jugular vein, which was located on the left

side of his neck and bleeding intermittently.          He testified that

the pressure in a vein is lower than in an artery and would tend

to flow continuously, and that a vein would theoretically bleed

more while a person was lying down or breathing heavier.

          Officer Jonathan Locey testified that at about 11:50

p.m. that evening he arrived at Queen’s Hospital to obtain a

statement from Brown.     The officer testified that he located

Brown in the emergency room lying down on his back wearing an

oxygen mask with his eyes mostly closed and being tended to by

staff.   According to Officer Locey, he asked Brown who had

stabbed him and Brown replied, “An older black guy.”            Officer

Locey said that Brown appeared to nod his head “no” when he

asked Brown whether he knew his assailant and appeared to nod

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“yes” when asked whether he could identify the person.            Officer

Locey clarified that Brown never verbally stated that he did not

know who stabbed him or that he could recognize his assailant if

he saw him again.

          Paulette Utu testified that Brown ran to her security

guard shack with a bleeding neck.        She stated that all Brown

said when she got to him was, “Black man, red car.           Black man.”

The State also played a recording of Utu’s 911 call in which a

voice is heard asking, “So all he’s saying is it was a black

guy?” to which another voice replies, “Yeah.”

          David Esaki testified--as an expert in DNA analysis--

that he tested stains on a black jacket recovered from Pitts and

found blood stains on the sleeve and shoulder.          One stain tested

positive for blood that matched Brown’s DNA, Esaki indicated,

and the other stain only revealed a partial DNA profile.            Esaki

stated that he did not have a reference sample from Pitts to

test, and that he did not test Pitts’ pants or black shirt for

the presence of blood.     Esaki further testified that he

processed swabs from Pitts’ hands and did not find blood, but

found DNA from two unknown individuals, one of which was a

female.

          During his presentation of the evidence, Pitts called

Detective Darryl Kon, who testified that he spoke to Brown in

the hospital at approximately 7:00 a.m. on the morning following

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the stabbing.    Detective Kon testified that Brown “[b]asically

[] said, What complaint?       I didn’t make a complaint,” and that

when he returned at a later time Brown did not want to make a

statement, and instead “he signed a 172, a withdrawal of

complaint.”3    When asked whether the case was reopened as a

result of threats to the department by Brown’s father, Detective

Kon replied, “It’s hearsay.       I wasn’t in on that meeting, but

that is what I understood.”

           Pitts in his testimony described his relationship with

Brown: “That is my brother.       Literally like a brother from a

different mother.     That’s my brother.”       According to Pitts, on

the evening of December 22, 2008, Brown picked him up, and Pitts

told him he needed to make a stop to sell drugs.            Pitts stated

that when they parked, he got out of the car to look for the

person to whom he was supposed to sell the drugs.            However,

Pitts testified, he heard a scream and when he got back to the

car, Brown looked at him and then headed in one direction, while

some other people were headed in a different direction.             Pitts

stated that two people were running from the car after the

stabbing that night and that one person was a black male wearing

a black hoodie.     Pitts stated that he grabbed the jacket from


      3
            Detective Kon stated that the second time he visited Brown to get
a statement, he told Brown, “I have to get a statement now, get a 172, or
I’ll be written up for insubordination.”



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the car and headed down to Kaiser Hospital where he was

ultimately encountered by Officer Stuart.

                          C. Closing Arguments

          In closing argument, the prosecutor suggested that

Pitts came up with his defense after reviewing the police

reports and the evidence in the case:

          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.

No objection was made.     In his closing argument, Pitts attacked

the State’s evidence, focusing on the lack of blood found on his

person or clothing.     Pitts argued that the blood that should be

on the passenger’s seat of the car “must be on the person that

stabbed [Brown]” and that there was no blood on him, no blood on

his hands, and no blood on his shirt because he did not commit

the stabbing.   Pitts further questioned how it would be “humanly

possible” for him to “multiply stab somebody and come out with

no blood.”

          Following jury deliberations and before the verdict

was returned, the circuit court informed the parties that the

jury had requested--via a communication--two pairs of gloves to

examine “the pants” that had been admitted into evidence.             Pitts

and the State did not make an objection.         The verdict was then




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received, and the jury found Pitts guilty as charged; Pitts was

sentenced to life imprisonment with the possibility of parole.

                 D. First Appeal and Motions on Remand

            Prior to sentencing, Pitts, who had proceeded pro se

since midway through the State’s case, requested the appointment

of substitute counsel to assist him with his post-verdict

motions and for sentencing.       State v. Pitts(Pitts I), 131 Hawaii

537, 540, 319 P.3d 456, 459 (2014).         The circuit court denied

Pitts’ request.     Id.   On appeal, the ICA concluded Pitts’ appeal

was without merit and affirmed his conviction.           Id.

            On certiorari review, we held that a defendant who has

exercised the right to self-representation at trial but

expressly requests counsel for post-verdict motions or for

sentencing has a right to counsel.         Id. at 543, 319 P.3d at 462.

Accordingly, we vacated the ICA’s judgment on appeal and

remanded the case to the circuit court to allow for the

appointment of substitute counsel for the purpose of allowing

the filing of a motion for new trial and for resentencing.              Id.

at 544, 319 P.3d at 463.

            On remand, Pitts filed two new trial motions, each of

which were later amended.4       The first motion contended that the


      4
            At Pitts’ request, only the amended version of the motion for new
trial based on prosecutorial misconduct was considered; both motions for new
trial based on juror misconduct were considered.



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prosecutor committed misconduct by (1) arguing that Pitts

benefitted from being at trial, (2) commenting on Pitts’

testimony, guilt, and credibility as a witness and the

credibility of other witnesses, (3) eliciting testimony of a

motive that was prohibited in motions in limine, and (4) stating

Igawa’s description matched Pitts “to a T.”5          Pitts argued that

the prosecutorial misconduct denied him a fair trial and was so

egregious as to bar reprosecution.

           The second motion for new trial was primarily based on

juror misconduct.     Pitts contended that the jury improperly

investigated the clothing he was wearing at the time of his

arrest, thereby “supplementing the evidence in the case with an

unsubstantiated finding that the clothes had Jason Brown’s blood

on them,” which was contrary to the evidence at trial.             Pitts

maintained that his constitutional right to a fair trial by an

impartial jury was violated by the jury conducting an

investigation that was outside of the scope of the evidence

presented at trial.

           At the hearing, the circuit court initially denied a

motion to continue to allow Pitts time to file a motion to

recuse the presiding judge.       The court also denied the new trial



      5
           The motion also included arguments that have not been raised on
appeal.



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motion based on prosecutorial misconduct, finding that there

were insufficient grounds to support the motion.

          With regard to the motion for a new trial based on

juror misconduct, Pitts called one of the trial jurors (Juror

no. 9) to testify.    Juror no. 9 testified that during

deliberations the jurors requested scissors to cut open the

packaging containing Pitts’ clothing, and three of the jurors

examined Pitts’ shirt and pants for blood.         Juror no. 9 stated

that the jurors examined the pants “[f]irst, outside, and then

turned inside out.”     Juror no. 9 testified that the jurors found

small spots on the inside of the pants and that the jurors

“determined” that the spots “must be blood.”          However, as to her

own belief, Juror no. 9 testified that she did not know what the

spots were.   According to Juror no. 9, four jurors looked at the

stains, including herself.

          The circuit court orally denied the motion and in its

written order found the following: the jury had properly

received for its consideration a pair of pants and a shirt in a

sealed plastic bag; the pants and shirt were properly admitted

into evidence; the jurors requested and received scissors and

gloves to remove and examine the pants and shirt; the jurors

examined the pants and shirt on the outside and then inside out;

Juror no. 9 observed four jurors examining the pair of pants;

the jurors observed three small stains on the pants, but Juror

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no. 9 did not know what the stains were.          Based on these

findings, the court concluded that “[t]he jury was not precluded

from examining exhibits during deliberations”; that it was

reasonable and diligent for the jury to visually examine the

clothing; that the jury did not consider extraneous prejudicial

information; and that the defendant failed to show that the jury

obtained or used evidence that had not been introduced at trial,

and the court denied the motion.6

           Pitts was sentenced to life imprisonment with the

possibility of parole.      Pitts appealed, and the request to

transfer the case from the Intermediate Court of Appeals (ICA)

to this court was granted on August 10, 2018.           On appeal, Pitts

challenges the circuit court’s denial of the two new trial

motions, the motion to continue, and his pretrial motion to

dismiss the indictment.7      Pitts also argues that his right to a

jury of his peers was violated.


     6
            The court’s oral denial of the juror misconduct motion also
appeared to include Pitts’ argument at the hearing that Juror no. 9 was
“pressured” into changing her vote by other jurors.
     7
            The State contends that this court’s decision in Pitts I should
be considered “law of the case” because Pitts argued in his first appeal that
the jury committed misconduct during deliberations and that the circuit court
erred in denying his motion to dismiss the indictment, and that this court
did not find error on these issues. The “law of the case” doctrine provides
that “a determination of a question of law made by an appellate court in the
course of an action becomes the law of the case and may not be disputed by a
reopening of the question at a later stage of the litigation.” Hussey v.
Say, 139 Hawaii 181, 185, 384 P.3d 1282, 1286 (2016).
            In Pitts I, we concluded that Pitts’ right to post-verdict
counsel had been violated, and we vacated the ICA’s judgment on appeal and

                                                             (continued . . .)

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                       II. STANDARDS OF REVIEW

A. Denial of Motions for New Trial Based on Juror Misconduct and
                    Motion to Dismiss Indictment

            A trial court’s granting or denial of a motion for new

trial, including one premised on juror misconduct, will not be

disturbed absent abuse of discretion.         State v. Kim, 103 Hawaii

285, 290, 81 P.3d 1200, 1205 (2003).         A motion to dismiss an

indictment is similarly reviewed for an abuse of discretion.

State v. Akau, 118 Hawaii 44, 51, 185 P.3d 229, 236 (2008).                The

trial court abuses its discretion when it clearly exceeds the

bounds of reason or disregards rules or principles of law or

practice to the substantial detriment of a party litigant.              Kim,

103 Hawaii at 290, 81 P.3d at 1205.

                      B. Constitutional Violations

            Questions of constitutional law are reviewed under the

right/wrong standard.      State v. Pratt, 127 Hawaii 206, 212, 277

P.3d 300, 306 (2012).




(. . . continued)

remanded the case to allow for the appointment of substitute counsel for the
purposes of filing a motion for new trial and for resentencing. 131 Hawaii
at 544, 319 P.3d at 463. By doing so, we noted, we sought “to place Pitts in
the position he would have been in had the constitutional violation never
occurred.” Id. at 544 n.6, 319 P.3d at 463 n.6. Thus, there was no
determination of “law” with respect to the issues presented in this appeal to
which the law of the case doctrine may be applied. We accordingly address
the merits of Pitts’ appeal.




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                           III. DISCUSSION

                           A. Juror Misconduct

           The United States Constitution and the Hawaii

Constitution guarantee the accused in serious criminal cases a

fair trial by an impartial jury.8         State v. Kim, 103 Hawaii 285,

290-91, 81 P.3d 1200, 1205-06 (2003).         “Because the right to an

impartial jury in a criminal trial is so fundamental to our

entire judicial system, it therefore follows that a criminal

defendant is entitled to twelve impartial jurors.”            State v.

Gabalis, 83 Hawaii 40, 45, 924 P.2d 534, 539 (1996) (quoting

State v. Furutani, 76 Hawaii 172, 179, 873 P.2d 51, 58 (1994)).

“Thus, the trial court must grant a new trial if any member . .

. of the jury was not impartial; failure to do so necessarily

constitutes an abuse of discretion.”         Id.

           On appeal, Pitts contends that it was juror misconduct

for three jurors to examine his pants, find bloodlike stains,

and change their votes to “guilty” as a result.           This conduct




     8
            The Sixth Amendment to the United States Constitution provides in
relevant part that “[i]n all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed[.]” Article I, section
14 of the Hawai‘i Constitution provides in relevant part that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial by an impartial jury of the district wherein the crime shall
have been committed[.]”




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violated his right to due process, Pitts argues, and the circuit

court erred in not granting his motion for a new trial.

1. The Jury’s Examination of Pitts’ Pants Led to the Discovery of
                      New Evidence of “Stains”

          Inherent in a defendant’s right to a trial by an

impartial jury is the requirement that the jury be free from

outside influences.     State v. Keliiholokai, 58 Haw. 356, 357-58,

569 P.2d 891, 893-94 (1977).      Accordingly, the jury’s verdict

must be based upon evidence received in open court and not from

outside sources.    Id.; see State v. Chin, 135 Hawaii 437, 447,

353 P.3d 979, 989 (2015) (“Contact between witnesses and jurors

is ‘generally improper’ because it raises a fundamental concern

of whether the jury reached ‘their verdict based solely on the

evidence presented at trial’ . . . .” (quoting Dillard v. State,

3 A.3d 403, 408-09 (Md. 2010))).         For, as this court has stated,

“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 Hawaii 43, 56, 314 P.3d 120, 133 (2013) (internal

quotations omitted).

          Our cases demonstrate that outside influences may

improperly taint jury deliberations in a variety of

circumstances, including the inadvertent exposure of the jury to

items not properly introduced into evidence.          In State v.


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Estrada, the jury discovered the defendant’s fingerprint

exemplar, which had been accidentally included in one of the

State’s exhibits, during deliberations along with the exemplars

of two other individuals.      69 Haw. 204, 220-21, 738 P.2d 812,

824 (1987).    On appeal, we determined that the defendant’s

fingerprint exemplar that the jury received was inadmissible

evidence of an unrelated crime.       Id. at 221, 738 P.2d at 824.

The jury was therefore in possession of an item that had not

properly been admitted into evidence for the jury’s

consideration.    See id.    Because there was no “overwhelming,

uncontradicted evidence of guilt,” we concluded that the jury’s

exposure to the inadmissible evidence was not harmless beyond a

reasonable doubt.    Id.

          In State v. Joseph, the jury received for its

examination a properly admitted wallet that contained a straw,

which had not been independently introduced into evidence, and a

list of numbers, which an officer testified was in the wallet

but had not otherwise been admitted into evidence.           77 Hawaii

235, 238-39, 883 P.2d 657, 660-61 (App. 1994).          The circuit

court had allowed the jury to examine the list but instructed

the jury that it could not consider the straw as evidence in

reaching its verdict.       Id. at 238 n.6, 239-40, 883 P.2d at 660

n.6, 661-62.   The ICA held that the trial court properly

instructed the jury to not consider the straw in its

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deliberations because the State had not laid a proper foundation

for the straw’s introduction, the straw was not in evidence, and

exposure to the straw constituted an outside influence.            Id. at

238-39, 883 P.2d at 660-61.      For these same reasons, the ICA

held that the jury was erroneously allowed to examine the list

of numbers as it was not properly introduced into evidence.                Id.

at 238 n.6, 883 P.2d at 660 n.6.

          Our cases have also found the sanctity of jury

deliberations infringed when a juror’s conduct has introduced an

outside influence into the jury room.        In State v. Williamson,

jurors had asked for a dictionary to look up the definitions of

the words “entrapment” and “preponderance.”          72 Haw. 97, 99, 807

P.2d 593, 595 (1991).     After the court denied the request, a

bailiff discovered a dictionary in the jury room, and the

foreperson was questioned by the trial court as to whether the

dictionary was used.     Id. at 99-101, 807 P.2d at 595-96.         The

foreperson responded that the dictionary was not used at all

during deliberations because the jury’s questions had been

clarified the day before the dictionary was brought into the

jury room.     Id. at 101, 807 P.2d at 595-96.       The trial court

denied the defense’s motion for mistrial and did not question

any of the other potentially tainted jurors.          Id. at 101, 807

P.2d at 596.



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          In vacating the trial court’s judgment, we noted that

the dictionary’s definition of “preponderance” differed from the

court’s instructions.     Id. at 104, 807 P.2d at 597.        Because the

dictionary definition placed a higher burden on the defendant in

proving an entrapment defense, this court stated, the defendant

would have been substantially prejudiced if any of the jurors

could have been influenced by the dictionary’s definition.             Id.

We highlighted the problematic aspect of the juror’s conduct,

which was the potential to “infect[]” the jury’s consideration

of information provided by the court with “extraneous”

information.   See id.; see also Lopez v. Sears Roebuck and Co.,

70 Haw. 562, 562-64, 777 P.2d 715, 715-17 (1989) (holding that

it was improper for the jury foreperson to conduct an

unauthorized, independent observation of the defendant’s

assembly process and report his observations to the jury).

          Just as the law requires that items exposed to the

jury must have been properly received in evidence in open court,

our caselaw has defined the limits of acceptable jury conduct

when examining exhibits in evidence.        In State v. Pauline,

during trial, but outside the presence of the court and counsel,

the jury was allowed to view a vehicle’s trunk that the

defendant had allegedly used to transport the victim.            100

Hawaii 356, 362-63, 60 P.3d 306, 312-13 (2002).          At the viewing,

the trunk hood was opened and closed by detectives at the

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jurors’ request.      Id. at 363, 60 P.3d at 313.        On appeal, the

defendant argued that the jury had conducted an improper

experiment in violation of his due process rights.             Id. at 379,

60 P.3d at 329.

            In demarcating the line between acceptable and

improper jury conduct with regard to exhibits in evidence, this

court stated that the jury may “carry out experiments within the

lines of offered evidence or which amount to no more than a

careful examination of the evidence which was presented in

court.”     Id. at 380, 60 P.3d at 330 (internal quotations

omitted) (quoting People v. Cooper, 95 Cal.App.3d 844, 853-54

(1979)).    We explained that experiments are generally prohibited

“where the result is the production of ‘new’ evidence” for which

it “is not possible for the party injured to meet, answer, or

explain.”     Id. at 379, 60 P.3d at 329 (quoting Cooper, 95

Cal.App.3d at 853).       Analyzing the facts in Pauline against this

standard, we found that “the only potential bearing [that] the

‘experiment’ had on [the defendant’s] guilt was whether [the

victim’s] body could fit in the trunk,” and the jury had already

viewed the trunk without the trunk cover, photographs of the

trunk with the hood closed, and the dimensions of the trunk as

evidence.     Id. at 380, 60 P.3d at 330.        Thus, we concluded, the

opening and closing of the hood did not produce new evidence.

Id.

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            As our holding in Pauline illustrates, the critical

inquiry with regard to a jury’s examination of evidence is

whether the jury’s conduct resulted in the production of new

evidence.    See id. at 379, 60 P.3d at 329.         This court’s

decisions have thus vigilantly protected the integrity of jury

deliberations against the risk of outside influences.

            In the present case, Juror no. 9 testified that four

jurors, including herself, asked for a pair of scissors, cut

open the evidence bag containing Pitts’ pants, examined the

pants on the outside and then inside out, and found three small

stains on the inside.      Juror no. 9 testified that they did this

because they “were looking for blood” on the pants and that

their examination resulted in the discovery of “small drops, and

they determined it must be blood.”         In its findings of facts,

the circuit court found that the jurors asked for and received a

pair of gloves for a closer examination of the pants and shirt;

examined the pants on the exterior side and then inside out;

four jurors were observed by Juror no. 9 examining the pants;

and that these jurors observed three small stains on the pants.9




      9
            The circuit court in its conclusions of law cited State v.
Kassebeer, 118 Hawaii 493, 506, 193 P.3d 409, 422 (2008), for the proposition
that “[t]he jury is not precluded from examining exhibits during
deliberations.” The issue in Kassebeer dealt with whether the court erred in
the first instance by allowing a weapon in the jury room. See id.



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           Unlike the examination of the trunk in Pauline, here

the jury’s examination resulted in the discovery of new evidence

in the form of three small stains on the pants which introduced

an outside influence that could have tainted the jurors’

impartiality.   During trial in this case, there was no evidence

that blood was found on Pitts or on the clothes that he was

wearing.   Because the jurors were actively trying to supplement

the evidence presented at trial with information not provided at

trial or by the court, the jurors’ actions were similar to the

actions taken by jurors in Lopez and Williamson.           See Lopez, 70

Haw. at 564, 777 P.2d at 717 (jury foreperson conducted an

unauthorized view of the defendant’s store and related his

observations to the jury); Williamson, 72 Haw. at 103, 807 P.2d

at 596 (juror improperly obtained definitions differing from

those supplied by the court).       Thus, the jurors’ examination was

neither within the lines of offered evidence nor merely

cumulative to the evidence already presented at trial.            See

Pauline, 100 Hawaii at 380, 60 P.3d at 330.

           Further, because the evidence was discovered for the

first time during jury deliberations, it was evidence that had

not been presented in court, for which no foundation had been

laid, and which had not been properly admitted into evidence.

See Estrada, 69 Haw. at 221, 738 P.2d at 824; Joseph, 77 Hawaii

at 239, 883 P.2d at 661.      Therefore the stains were an outside
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influence and constituted evidence that Pitts did not have the

opportunity to meet, answer, or explain.10          See Pauline, 100

Hawaii at 379-80, 60 P.3d at 329-30.

            In a Florida case with analogous facts to this case,

Williams v. State, a witness saw a man break the window of a

business with his “naked hand” and reported the crime.              448

So.2d 49, 50 (Fla. Dist. Ct. App. 1984).          The defendant was

arrested shortly thereafter and identified as the suspect by the

witness.    Id.   At the time of his arrest, the defendant was

wearing gloves, which were received into evidence.            Id.

            During trial, the defendant’s defense was that he was

misidentified because the person who broke the window would have

injured and bloodied his hand, and there was no evidence that

the defendant’s hand was injured or bleeding at the time of the

arrest.    Id.    However, during jury deliberations, the jury

discovered a piece of paper with a stain on it in one of the

fingers of the glove and asked the trial court whether they

could consider the “bloody piece of paper” in their


      10    As our cases provide, the jury’s receipt of an outside influence
is not to be condoned merely because the vehicle for its discovery is
properly admitted evidence. By way of analogy, if the jurors in this case
had presented their discovery to the court and asked if they could consider
the stains in their deliberations, the circuit court, as in Joseph, would
have been required to specifically instruct the jurors that they could not.
See Joseph, 77 Hawaii at 238, 883 P.2d at 660 (“The law requires that items
exposed to the jury must have been properly received in evidence in open
court. In our view, the straw was not properly received in evidence.”
(citation omitted)).



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deliberations.       Id.     The trial court denied defense counsel’s

motion for mistrial and allowed the jury to consider the paper

it had found.      Id.

              On appeal, the appellate court found that the jury’s

discovery of the stained paper was “a total surprise with no

opportunity for discovery, defense or cross-examination as to

it.”    Id.    The appellate court noted that the paper was never

tested to determine whether the stain was blood, and if it was

blood, whether the blood belonged to the defendant.              Id.

Further, the appellate court concluded that “[t]he ‘bloody’

paper effectively destroyed [the defendant’s] closing argument,

and his counsel had no opportunity to even try to rebut or

explain it, even had [counsel] been in a position to do so.”

Id.

              As in Williams, the stains on Pitts’ pants were first

discovered by the jury, the stains were not tested “to determine

if the stain[s] [were] blood and, if blood, that it was

[Brown’s] blood.”          Id.   Under our caselaw, the jurors were

exposed to an outside influence not presented at trial, which

Pitts did not have the opportunity to meet, answer, or explain.

See Pauline, 100 Hawaii at 379, 60 P.3d at 329.             The circuit

court thus erred in finding the jurors’ conduct permissible

merely because the pants had been received in evidence, failing

to recognize the misconduct in discovering the stains, and

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concluding that the jury was not exposed to an outside

influence.

   2. The Jury’s Discovery of “Stains” on Pitts’ Pants Was Not
                 Harmless Beyond a Reasonable Doubt

          “If the jury conducts an experiment that produces

‘new’ evidence, the court must then examine whether the

defendant was thereby denied his or her right to a fair trial by

an impartial jury.”     Pauline, 100 Hawaii at 380, 60 P.3d at 330

(citing Keliiholokai, 58 Haw. at 358, 569 P.2d at 893-94).

          We have previously stated that a rebuttable

presumption of prejudice is raised when the nature of an outside

influence is such that it “could” substantially prejudice the

defendant’s right to a fair trial.        See Williamson, 72 Haw. at

102, 807 P.2d at 596; Lopez, 70 Haw. at 564, 777 P.2d at 717.

“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 Hawaii 437, 448, 353 P.3d

979, 990 (2015).    This requires the trial court to investigate

the totality of the circumstances to determine the impact of the

outside influence on the jury’s impartiality.          Id. at 443, 353

P.3d at 985.

          In Williamson, this court determined that the

defendant would have been substantially prejudiced if “any” of

the jurors could have been influenced by the dictionary


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definition of “preponderance.”          72 Haw. at 104, 807 P.2d at 597.

Because the trial court only questioned the foreperson, we

concluded, the court could not be sure that the juror who

brought in the dictionary was not affected by independently

looking up the word.        Id.    Further, we were not convinced that

no other jurors were potentially influenced by the extraneous

definition considering that a juror felt it necessary to bring

the dictionary into the jury room.           Id.   Similarly, in Lopez,

although it was not clear that the foreperson’s investigation

and comments to other jurors affected the verdict, we concluded

that the foreperson’s actions could have influenced the outcome

of the case, requiring a new trial.           70 Haw. at 564, 777 P.2d at

717.

             This court has reached the same conclusion in cases in

which only one juror’s impartially has been potentially tainted

by an outside influence.          In State v. Chin, the jury foreperson

approached one of the defendant’s witnesses, inquired about the

possibility of employment, and handed the witness his business

card.     135 Hawaii at 440-41, 353 P.3d at 982-83.          The witness

had no further communication with the foreperson and related the

encounter to defense counsel.          Id.   We concluded that the

contact between the foreperson and the defendant’s witness was

an outside influence that could have substantially prejudiced

the defendant.       Id. at 447-48, 353 P.3d at 989-90.         Because the

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trial court failed to conduct an inquiry into the totality of

the circumstances, we held that there was no showing by the

State that such misconduct was harmless beyond a reasonable

doubt.   Id. at 449, 353 P.3d at 991.

           In this case, Pitts’ defense focused on the lack of

evidence indicating that blood was found on his person or the

clothing that he wore the night of the stabbing.           Pitts

repeatedly cross-examined the State’s witness about whether they

had noticed blood on his person or clothing on the night of the

stabbing, and he argued during closing arguments that the blood

that should be on the passenger seat “must be on the person that

stabbed [Brown] because it ain’t on that seat.”          Pitts contended

that the lack of blood found on him and his clothing showed that

he was not the person who attacked Brown.         Thus, the

nonexistence of the evidence of blood on Pitts’ clothing was

essential to his defense and credibility.

           The jury had heard testimony and seen photographs

that, though the majority of the blood was on the driver’s side,

there were small blood-like spots on the passenger seat.            From

this evidence, the jurors could have inferred that if Pitts were

the attacker, as the State contended, then there might be blood

on his clothing.    Juror no. 9’s testimony that the jurors were

actively searching Pitts’ clothes for blood confirms the

likelihood of this inference.

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            Having found three small stains on the inside of

Pitts’ pants, the jurors could have concluded--as Juror no. 9’s

testimony suggests that they did--that the stains on Pitts’

pants were blood.    This in turn would have had the effect of

completely undermining Pitts’ defense and credibility.            The harm

from this discovery cannot be overstated given that the stains

were not tested “to determine if the stain[s] [were] blood and,

if blood, that it was [Brown’s] blood.”         Williams v. State, 448

So.2d 49, 50 (Fla. Dist. Ct. App. 1984).

            Further, the evidence of Pitts’ guilt was not

overwhelming.    No weapon was recovered and no evidence was

presented of blood found on Pitts’ person or the clothing he was

wearing.    Because Brown was the only person that positively

identified Pitts as the attacker, this case depended heavily on

the credibility of Brown and Pitts, negating against a finding

of harmlessness.    Cf. State v. Underwood, 142 Hawaii 317, 329,

418 P.3d 658, 670 (2018) (“When a conviction is largely

dependent on a jury’s determination as to the credibility of a

complainant’s testimony, we have held that the evidence of the

offense is not so ‘overwhelming’ that it renders the

prosecutor’s improper statements harmless beyond a reasonable

doubt.”).

            The State argues that the discovery of the stains was

duplicative of the evidence presented at trial inasmuch as blood

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was found on Pitts’ jacket.       However, Pitts testified that he

grabbed the jacket from the car after the stabbing and there is

no persuasive evidence of the assailant wearing a jacket at the

time of the stabbing.11      Accordingly, the stains on Pitts’ pants

viewed by the jurors were not cumulative evidence but instead

resulted in the likely inference that the stains were of Brown’s

blood.

           Accordingly, the evidence and arguments presented at

trial and Juror no. 9’s testimony that the jurors were looking

for blood on Pitts’ clothing, all indicate that the discovery of

the three stains on the inside of Pitts’ pants could have

potentially tainted the impartiality of any or all of the four

jurors exposed to the stains, thereby significantly prejudicing

Pitts’ defense.12     Based on the totality of the circumstances in


      11    The State’s argument is premised on the assumption that Pitts was
wearing the jacket at the time of the offense. Igawa testified that the
person he described getting out of the car was wearing what “looked like a
long black sweater of some sort,” and his 911 phone call, which was played
for the jury, indicates that he identified the possible suspect as wearing a
“long-sleeve black shirt.” The clothing that Pitts was arrested wearing
included two black shirts, one long and one short, and Igawa did not testify
about the jacket admitted into evidence. Igawa’s testimony thus does not
resolve whether Pitts or anyone else was wearing the jacket during the
offense.
            The State also argues that the lack of blood on Pitts’ clothing
was not persuasive in light of Dr. Yost’s testimony regarding Brown’s wounds.
However, the jury’s discovery of the stains, if inferred to be blood, did
more than affect the persuasiveness of Pitts defense: it directly
contradicted and “effectively destroyed” it. Williams, 448 So.2d at 50.
      12
            The circuit court having found no misconduct, did not seek to
question whether any of the other three jurors who had examined the stains
could have been influenced by what they viewed or whether any of the other
jurors could have been potentially influenced.



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this case, it cannot be said that the jury’s exposure to the

stains on Pitts’ pants was harmless beyond a reasonable doubt.13

                       B. Prosecutorial Misconduct

            It is the prosecutor’s “duty to seek justice, to

exercise the highest good faith in the interest of the public

and to avoid even the appearance of unfair advantage over the

accused.”    State v. Rogan, 91 Hawaii 405, 412, 984 P.2d 1231,

1238 (1999) (quoting State v. Quitog, 85 Hawaii 128, 136 n.19

938 P.2d 559, 567 n.19 (1997)).

            Pitts asserts that multiple instances of prosecutorial

misconduct occurred, and the circuit court thus erred in denying

his new trial motion on this ground.14

1. Eliciting Inadmissible Evidence of an Apology in Violation of
            the Circuit Court’s Motion in Limine Ruling

            Pitts asserts that the prosecutor elicited

inadmissible evidence of a motive in violation of the circuit

court’s motion in limine ruling.          In State v. Pacheco, during

     13
            Pitts also argues that his motion for new trial should have been
granted because Juror no. 9 voted guilty based on coercion by other jurors.
In light of our disposition regarding the motion for new trial based on juror
misconduct, we do not address the contention as to juror coercion. For the
same reason, we also do not address whether the circuit court erred when it
denied the motion to continue.
     14
            Pitts argues that the prosecutor committed the following
instances of misconduct: (1) improperly eliciting inadmissible evidence, (2)
improperly commenting on Pitts’ right to be present at trial, (3) improperly
commenting on the credibility of witnesses, and (4) distorting, manipulating,
and misrepresenting evidence at trial and during closing arguments. In light
of our disposition in Part III.A, supra, we address Pitts’ first two
contentions to provide guidance to the parties and the court on remand.



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motions in limine, the defense sought to exclude any evidence of

prior criminal convictions.      96 Hawaii 83, 88-89, 26 P.3d 572,

577-78 (2001).    The circuit court ruled that the prosecutor

could refer to a specific theft arrest and conviction but could

not refer to it as “a crime of dishonesty.”          Id. at 89, 26 P.3d

at 578.   Nevertheless, the prosecutor asked the defendant during

cross-examination, “Why should this jury . . . believe a thief

like you.”   Id. at 91, 26 P.3d at 580.        And, during closing

arguments, the prosecutor twice referred to the defendant’s

prior theft crime as “a crime of dishonesty” and argued that

there was no reason for the jury to believe “a convicted thief.”

Id. at 92, 26 P.3d at 581.      On appeal, we stated that the

prosecutor had committed misconduct by violating the circuit

court’s express in limine ruling.        Id. at 98-99, 26 P.3d 587-88;

see also State v. Pemberton, 71 Haw. 466, 473-77, 769 P.2d 80,

83-85 (1990) (holding that it was misconduct for prosecutor to

attempt to introduce inadmissible evidence despite the trial

court repeatedly sustaining defense counsel’s objections).

          In this case during motions in limine the circuit

court precluded the State from introducing evidence that after

Pitts’ initial release from custody, Pitts accused Brown of

sleeping with his girlfriend and asked for an apology.            The

circuit court concluded that the probative value of an alleged

motive related to Pitts asking for an apology was outweighed by

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the danger of unfair prejudice to the defendant.           However, the

prosecutor specifically directed the questioning to elicit from

Brown testimony regarding the reason for the stabbing, and the

term “apology” or “apologize” was used in succession eight times

by the prosecutor and Brown in reference to that reason.

          The circuit court confirmed the impropriety of the

prosecutor’s line of questioning when Pitts objected the

following day, stating that it would have sustained an objection

if one had been made because the prosecutor’s questioning was

“leaving that for speculation in the jury’s mind [and it was]

prejudicial to him.”     In other words, the questions regarding an

apology allowed the jury to infer that Pitts had a reason for

stabbing Brown.    When the court asked the prosecutor to explain

the basis of the questioning, the prosecutor stated that “all I

wanted to do is get out from [Brown] any conversation he had

with [Pitts] regarding the stabbing” and not to get into the

“actual” allegations of rape.       Yet obtaining any conversation

regarding the stabbing circumvented the court’s in limine ruling

to preclude any testimony regarding an apology.          The court

thereafter sought to cure the prejudice by instructing the jury

that testimony of the previous day as to Pitts “demanding an

apology” and “[a]nything to do with this alleged apology” was to

be disregarded; however, the cautionary instruction may have



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only had the effect of highlighting that the “apology” had been

demanded “for something.”

           The nature of the prosecutor’s line of questioning was

particularly problematic because the inferences taken from the

testimony concerned the main issue in the case: the identity of

Brown’s attacker.15     Brown was the only person who positively

identified Pitts as the assailant, but Pitts testified that a

third, unidentified black male committed the stabbing.             Given

this conflicting testimony, the State’s most difficult hurdle in

its case against Pitts was convincing the jury that Pitts

suddenly and without reason attacked his friend of almost twenty

years.16   The testimony of an alleged apology invited the jury to

infer that Pitts had a motive to stab Brown, making Brown’s

testimony regarding the attacker’s identity more believable.                In

turn, speculation about an alleged apology would weigh heavily

on Pitts’ credibility and impair his defense.



      15    The State argues that this was not misconduct because the
prosecutor did not elicit testimony that Pitts accused Brown of sleeping with
Pitts’ girlfriend. However, the circuit court ruling clearly precluded the
State from eliciting testimony that Pitts demanded an apology after his
release from custody without regard to its substance. As the court’s
comments and cautionary instruction make evident, the alleged apology had to
be for “something” and that something in the jury mind’s was likely Pitts’
motive.
     16
            Similarly damaging to Pitts was the inference that he had a
reason to be “mad” at Brown before the stabbing, which could be inferred from
the Prosecutor’s question to Brown, “So before you picked the defendant up on
December 22, 2008, did you know why he was mad at you?” (Emphasis added.)




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            Because of our determination regarding the motion for

a new trial based on the juror misconduct, we need not determine

whether this introduction of inadmissible evidence would require

granting Pitts a new trial.       We emphasize, however, the

obligation of counsel to comport with rulings of the court and

“to avoid even the appearance of unfair advantage over the

accused.”    Rogan, 91 Hawaii at 412, 984 P.2d at 1238.

   2. Improper Statement on Pitts’ Right to Review Evidence and
                          Prepare a Defense

            Pitts also contends that the prosecutor improperly

argued that “[Pitts] listened to the testimony and then came up

with his” defense because this argument “d[id] not tie Pitts’

testimony in with any other evidence in the case.”17

            Generally, a prosecutor has wide latitude on

commenting on the evidence during closing argument, including

drawing reasonable inference from the evidence.           State v.

Basham, 132 Hawaii 97, 112, 319 P.3d 1105, 1120 (2014).

“Because the prosecutor’s argument is likely to have significant

persuasive force with the jury, the scope of argument must be

consistent with the evidence and marked by the fairness that

should characterize all of the prosecutor’s conduct.”             Id. at



      17    While Pitts frames this argument as a comment on Pitts’ right to
be present at trial, we address only the general propriety of the
prosecutor’s statement.



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115, 319 P.3d at 1123 (internal quotations omitted) (quoting

State v. Klinge, 92 Hawaii 577, 592, 994 P.2d 509, 524 (2000)).

Therefore, a prosecutor’s comment on matters “outside the

evidence” is improper.     State v. Walsh, 125 Hawaii 271, 290, 260

P.3d 350, 369 (2011) (quoting State v. Tuua, 125 Hawaii 10, 14,

250 P.3d 273, 277 (2011)).      And a prosecutor’s comments may not

infringe on a defendant’s constitutional rights.           Id. at 284,

260 P.3d at 363.

          Here, the prosecutor contended that Pitts’

identification defense was the result of Pitts having reviewed

the police reports and the evidence in the case:

          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.

Thus, according to the prosecutor, Pitts had “come[] up” with

the “idea” of his identification defense based on his review of

the police reports in the case and after “looking at all the

evidence that’s in the case.”       Not only was there no evidence

presented at trial from which the prosecutor could have

reasonably inferred that Pitts’ identification defense

originated after or as a result of reviewing the police reports

and the evidence in the case, but more fundamentally such




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comments are a clear infringement on a defendant’s

constitutional right to prepare and present a defense.18

            This court has stated on numerous occasions that

“[c]entral to the protections of due process is the right to be

accorded a meaningful opportunity to present a complete

defense.”    State v. Tetu, 139 Hawaii 207, 219, 386 P.3d 844, 856

(2016) (alterations in original) (quoting State v. Kaulia, 128

Hawaii 479, 487, 291 P.3d 377, 385 (2013)).          It is well

established that “all defendants must be provided with the basic

tool[s] of an adequate defense.”          Id. (internal quotations

omitted) (alteration in original) (quoting State v. Scott, 131

Hawaii 333, 352, 319 P.3d 252, 271 (2013)).          An essential

component of the basic tools is the process of discovery, which

promotes “fairness in [our] adversary system.”           Id. (quoting

State v. Valeros, 126 Hawaii 370, 379, 271 P.3d 665, 674

(2012)); see also Hawaii Rules of Penal Procedure Rule 16 (2012)

(requiring the disclosure of prescribed materials by the

prosecution and defense); Ake v. Oklahoma, 470 U.S. 68, 77

(1985) (“[A] criminal trial is fundamentally unfair if the State

proceeds against an indigent defendant without making certain



      18    The State concedes that, “[n]aturally, a defendant would look at
all the facts, including police reports and evidence the prosecution obtained
in forming a defense.”



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that [the defendant] has access to the raw materials integral to

the building of an effective defense.”).

            The State acknowledges that the prosecutor in this

case “referred to all facts, police reports and evidence in this

case” but maintains that “[i]nsofar as there was no reference to

Pitts’ right to be present at trial, there was no misconduct.”

However, the prosecutor’s comments were an attack on Pitts for

being a defendant as it penalized him for reviewing the police

reports and evidence in the case and for the defense raised.19

See Basham, 132 Hawaii at 118, 319 P.3d at 1126 (“Generic

arguments by the prosecutor that defendants, by virtue of being

defendants, have no reason to tell the truth or have the

greatest incentive to lie also transform a defendant’s decision

to testify at trial into an ‘automatic burden on . . .

credibility.’” (alteration in original)).


      19    As we explained in Walsh:

            [T]he prosecution is free to refer to the specific
            inconsistencies and contradictions in a defendant’s
            testimony or with other evidence, without referring to [the
            defendant’s right to review the evidence presented against
            the defendant]. Even in cases where there are no
            inconsistencies, the “close or perfect symmetry between a
            defendant’s testimony and other witnesses’ testimony, or
            other evidence of tailoring, may prompt the jury’s
            scrutiny.” [State v. Daniels, 861 A.2d 808, (N.J. 2004)].
            Prosecutors may already cite to specific facts indicating a
            defendant’s lack of trustworthiness; there is no reasonable
            justification for placing a tailoring burden on testimony.

Walsh, 125 Hawaii at 295, 260 P.3d at 374.




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           The prosecutor’s argument in this case thus wrongly

infringed on Pitts’ constitutional right to conduct discovery,

present a defense, and be afforded a fair trial.             See State v.

Davis, 63 Haw. 191, 196, 624 P.2d 376, 479 (1981) (the

enlargement of pretrial discovery under the penal rules is

“designed to enhance the search for truth in the criminal

trial”).   Because of our disposition in this case, we need not

determine whether the improper closing argument constituted

plain error.

                  C. Denial of Right to Jury of Peers

           Pitts asks this court to review as plain error his

assertion that he was denied his right to a jury of his peers

when a prospective juror who expressed concern about the lack of

African-Americans in the jury pool was peremptorily dismissed.20

           Article I, section 5 of the Hawaii Constitution

guarantees a criminal defendant the equal protection of law.21


      20
            We do not address Pitts’ argument that African-Americans were
systematically excluded from the jury list as the record in this case is
clearly insufficient to support this assertion.
      21
           Article I, section 5 of the Hawaii Constitution provides as
follows:

           No person shall be deprived   of life, liberty or property
           without due process of law,   nor be denied the equal
           protection of the laws, nor   be denied the enjoyment of the
           person’s civil rights or be   discriminated against in the
           exercise thereof because of   race, religion, sex or
           ancestry.




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State v. Batson, 71 Haw. 300, 302, 788 P.2d 841, 842 (1990).               As

such, “[i]t 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

Hawaii 1, 5, 122 P.3d 796, 800 (2005) (Caucasian males); see

State v. Levinson, 71 Haw. 492, 795 P.2d 845 (1990)) (women);

Batson, 71 Haw. at 302, 788 P.2d at 842 (same ethnic minority as

defendant).   Our precedent requires that the defendant 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

Hawaii at 5, 122 P.3d at 800.

          In this case, the juror was allegedly excused based

not on her ethnicity, gender, or membership in another protected

group, but rather on her expression of concern about the lack of

African-Americans in the jury venire.        Our caselaw does not

prohibit peremptory challenges against jurors unless the

challenge is based on the prospective juror’s membership in a

protected group.    Nonetheless, a court’s inherent authority to

administer justice would likely allow intervention when the

specific circumstances of a peremptory challenge threatened the

integrity of the judicial system.        Cf. Alakai Na Keiki, Inc. v.
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Matayoshi, 127 Hawaii 263, 283, 277 P.3d 988, 1008 (2012)

(“[A]lthough the exact nature of the ‘judicial power’ is not

defined in the constitution [of Hawaii], the ‘inherent power of

the court is the power to protect itself[ and] the power to

administer justice whether any previous form of remedy has been

granted or not . . . .” (quoting State v. Moriwake, 65 Haw. 47,

56, 647 P.2d 705, 712 (1982))).

          Thus, a court concerned that a peremptory challenge

exercised upon a prospective juror appears to discriminate on a

prohibited basis has the authority to request that counsel

provide a reason for the exercise of the challenge.           See

Levinson, 71 Haw. at 499, 795 P.2d at 849 (holding that the

right to serve on a jury “cannot be taken away for any of the

prohibited bases of race, religion, sex or ancestry”);

Matayoshi, 127 Hawaii at 283, 277 P.3d at 1008.

               D. Denial of Motion to Dismiss Indictment

            “[W]here evidence of a clearly exculpatory nature is

known to the prosecution, such evidence must be presented to the

grand jury.”    State v. Bell, 60 Haw. 241, 245, 589 P.2d 517, 520

(1978).

            Pitts argues that evidence that Brown did not

initially identify Pitts as his attacker was clearly exculpatory

and should have been presented to the grand jury.           Although


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Brown may have initially indicated that he did not know his

attacker, he subsequently identified Pitts as the assailant.

The State also presented the testimony of Igawa--whose testimony

before the grand jury identified Pitts as the attacker22--as well

as the testimony of Officer Campbell, who assisted in arresting

Pitts after the incident.       While Brown’s failure to initially

identify Pitts as his attacker may bring into question Brown’s

credibility, this evidence is not clearly exculpatory in light

of the other evidence presented to the grand jury that

inculpated Pitts, particularly Brown’s subsequent identification

of Pitts.    See Bell, 60 Haw. at 253, 589 P.2d at 524-25

(concluding that the victim’s failure to identify the defendant

at the lineup reflected on the victim’s believability but was

not clearly exculpatory because the victim previously identified

the defendant outside the police station).          Therefore, the

circuit court did not err in denying Pitts’ motion to dismiss

the indictment.

                            IV. CONCLUSION

            Because it cannot be said that the several jurors’

discovery of the stains on Pitts’ pants during deliberations was

harmless beyond a reasonable doubt, we vacate the circuit


      22    As previously noted, Igawa’s identification of the assailant was
precluded at trial, but his description of the person was permitted. See
supra Part I.A.



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court’s Judgment of Conviction and Sentence, filed November 9,

2016, and remand the case to the circuit court for further

proceedings consistent with this opinion.



Walter R. Schoettle                      /s/ Mark E. Recktenwald
for appellant
                                         /s/ Paula A. Nakayama
Sonja P. McCullen
for appellee                             /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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