   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***




                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000573
                                                              17-SEP-2015
                                                              07:45 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                        STATE OF HAWAI#I,
    Petitioner-Respondent/Plaintiff-Appellant/Cross-Appellee,

                                    vs.

                     PATRICK W. DEGUAIR, JR.,
    Respondent-Petitioner/Defendant-Appellee/Cross-Appellant,

                                    and

            ARYSS DAYNE K. KAMAI, Respondent-Defendant.


                             SCWC-11-0000573

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-0000573; CR. NO. 08-1-0533)

                           SEPTEMBER 17, 2015

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

             OPINION OF THE COURT BY RECKTENWALD, C.J.

           This case arises from the murder of Jermaine Duckworth.

On March 27, 2008, Duckworth’s body was discovered at the foot of

a cliff on Yokohama Bay, a beach near Ka#ena Point on the island
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


of O#ahu, Hawai#i.

            On April 9, 2008, Patrick W. Deguair, Jr., was indicted

for Duckworth’s murder and kidnapping, as well as firearms

charges and other offenses, as follows:          (1) Murder in the Second

Degree, in violation of Hawai#i Revised Statutes (HRS) §§ 707-

701.5 (2014) and 706-656 (2014) (Count I); (2) Kidnapping, in

violation of HRS §§ 707-720(1)(d) (2014) and/or 707-720(1)(e)

(2014)1 (Count II); (3) two counts of Carrying or Use of Firearm

in the Commission of a Separate Felony, in violation of HRS

§ 134-21 (2011) (Counts III and IV); (4) Place to Keep Pistol or

Revolver, in violation of HRS § 134-25 (2011) (Count V); (5)

Promoting a Dangerous Drug in the Third Degree, in violation of

HRS § 712-1243 (2014) (Count VI); and (6) Unlawful Use of Drug

Paraphernalia, in violation of HRS § 329-43.5(a) (2010) (Count

VII).2    Only Counts I through IV are at issue in this appeal.

            In two separate trials, the State attempted to prove

that Deguair was the individual who shot and killed Duckworth.

The alleged motive was that Deguair suspected Duckworth had made

statements to police implicating Deguair in a 2007 home robbery.

The defense’s theory was that Deguair was innocent of all charges



      1
            Deguair’s alleged offenses were committed on March 27, 2008.
Although HRS § 707-720 was subsequently amended during the legislative session
of 2008, the changes do not affect the sections of HRS § 707-720 with which
Deguair was charged. 2008 Haw. Sess. Laws Act 147, § 2 at 391.
      2
            The indictment separately charged co-defendant Aryss Dayne K.
Kamai (Kamai) under Counts VIII through X, and Kamai pled guilty to these
counts before Deguair’s first trial.

                                      2
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


and “the real murderer was David Teo and his friends.”

            Both trials ended in mistrial on the counts now before

this court.   In the second trial, Deguair was tried on Counts I

through IV only.    The jury indicated that it could not reach a

verdict on Counts I, III, and IV, and the circuit court declared

a mistrial on those counts.       Although the jury appeared to reach

a unanimous verdict of guilty on Count II, the circuit court

concluded that the jury’s failure to reach a unanimous result on

a related interrogatory meant that the jury was in fact hung on

Count II, and so the circuit court declared a mistrial on that

count as well.    The circuit court discharged the jury.

            Later that night, the circuit court concluded that it

had erred by not accepting the verdict on Count II.            The circuit

court reconvened the jurors eight days later, questioned them

regarding their votes, and accepted the guilty verdict as to

Count II.   Shortly thereafter, a juror contacted the circuit

court regarding possible misconduct by the jurors during the

trial.   After questioning all twelve jurors, the circuit court

determined that the jury deliberations had been tainted by juror

misconduct.

            The circuit court granted Deguair’s motion to dismiss

Counts I, III, and IV under State v. Moriwake, 65 Haw. 47, 647

P.2d 705 (1982).    The circuit court also granted Deguair’s motion

to vacate Count II based on the juror misconduct but denied his

motions to dismiss Count II under Moriwake.          Instead, the circuit

                                     3
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


court ordered a retrial on Count II.          In addition, the circuit

court rejected Deguair’s objections to recalling the jury.

             On appeal, the Intermediate Court of Appeals (ICA)

affirmed the circuit court’s orders on Counts I through IV.               The

ICA explicitly stated it did not need to address whether the

circuit court erred in recalling the jury because the circuit

court had vacated the conviction on Count II.

             Both the State and Deguair applied for certiorari.               The

State argues that the ICA erred in concluding that the circuit

court did not abuse its discretion by granting Deguair’s motion

to dismiss Counts I, III, and IV.

             Deguair argues that the ICA erred in ruling that a

retrial on Count II was not barred by double jeopardy, and in

failing to address whether the trial court erred in recalling the

jury.

             For the reasons set forth below, we affirm the judgment

of the ICA.

                               I.   Background

A.     First trial proceedings

             This case first proceeded to jury trial before the

circuit court in October 2009.3         The first trial lasted eight and

one-half days, and after jury deliberations of seven days, the

circuit court entered a finding of “manifest necessity” and



       3
             The Honorable Michael A. Town presided.

                                       4
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


declared a mistrial as to Counts I through V because the jury

could not reach a unanimous verdict.          There were no objections

from either counsel.       It is undisputed that the jurors in the

first trial were evenly split on Counts I through IV, with six

jurors voting “not guilty” and six jurors voting “guilty” on each

count.

             The jury also returned verdicts acquitting Deguair on

Counts VI and VII, and the circuit court later granted the

State’s motion for nolle prosequi without prejudice as to Count

V.   The circuit court also denied Deguair’s first motion to

dismiss the indictment as to Counts I through IV.             Therefore,

Counts I through IV remained.

B.     Second trial proceedings

             The second trial, which is presently at issue,

commenced on March 7, 2011.4        The presentation of evidence began

on March 10, 2011, and continued for eight days.             The evidence

from the second trial was substantially similar to the evidence

from the first trial, except that Ju Wong Woo and Duckworth’s

brother, James Duckworth,5 testified at the second trial only.

Teo and Woo were the State’s key witnesses.            Deguair also

testified.

             Teo testified that around midnight on March 27, 2008,

       4
             The Honorable Glenn J. Kim presided.
      5
            James testified that Deguair accused Duckworth of implicating
Deguair in a 2007 home robbery. James also testified that Deguair had twice
threatened him and Duckworth.

                                       5
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


he saw Deguair bring Duckworth to a sport utility vehicle (SUV)

and that Duckworth’s mouth was covered with duct tape, and his

arms were taped behind his back.         When they arrived at Yokohama

Bay, Teo heard Woo tell Deguair to shoot Duckworth.            Teo

testified that he saw Deguair shoot Duckworth and kick him off

the cliff, all without untaping Duckworth.

            Woo testified that he did not tell Deguair to shoot

Duckworth, but that he saw Deguair point a gun at Duckworth’s

head and heard a gunshot, though he looked away before the gun

fired.    Woo also testified that Deguair did all of this without

untaping Duckworth.

            Deguair testified that he taped Duckworth at the

direction of Teo, and that he untaped Duckworth before putting

him in the back of the SUV.       Deguair testified that he drove

until Teo told him to pull over in Nânâkuli, and that Teo walked

off with Duckworth, leaving Deguair and Woo at the SUV.              Deguair

testified that more than an hour later, Teo returned alone.             The

apparent implication of this testimony was that Teo murdered

Duckworth.

            Duckworth’s body was discovered that day by a

lifeguard, who testified there was no duct tape on Duckworth’s

body.    The photographs taken of Duckworth’s body at Yokohama Bay,

which were received into evidence, did not show any tape on

Duckworth’s body.    In addition, the doctor who conducted an

autopsy of Duckworth’s body found adhesive residue on Duckworth’s

                                     6
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


arms and hand.     Three additional witnesses testified that Deguair

taped Duckworth.

           Jury deliberations began on March 31, 2011, and

continued for two and one-half days.          On April 5, 2011, the jury

notified the circuit court via “Communication No. 4 from the

Jury” that it was “unable to come to a unanimous decision on

Counts 1, 3, and 4, and is unlikely to do so.”            The circuit

court, with concurrence of both counsel, responded by asking

whether more time would assist the jury in reaching a unanimous

verdict on Counts I, III, and IV.         The jury responded in

“Communication No. 5 from the Jury” that “[n]o, the jury has

unanimously decided that more time will not help.”

           In “Communication No. 6 from the Jury,” the jury asked,

“[c]an the jury submit its verdict for Count #2 even though it is

not unanimous on the interrogatory questions?”            The circuit

court, with concurrence of both counsel, answered:
                 If the interrogatory questions you are referring
           to are the questions on page 32[6] of the jury


     6
           Page 32 of the jury instructions states:

                 If you find that the prosecution has proven
           beyond a reasonable doubt that the Defendant committed
           the offense of Kidnapping, then you must also answer
           the following three questions on a special
           interrogatory which will be provided to you:

             1.   Has the prosecution proven beyond a reasonable
                  doubt that prior to trial the Defendant did not
                  release Jermaine Duckworth voluntarily?

             2.   Has the prosecution proven beyond a reasonable
                  doubt that prior to trial the Defendant did not
                  release Jermaine Duckworth alive and not
                                                                 (continued...)

                                      7
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


            instructions, then you may not return a verdict on
            Count 2.

                  If, however, the interrogatory questions you are
            referring to are not those on page 32, then please
            advise the court exactly what interrogatory questions
            you are referring to.

            The circuit court reconvened with the parties outside

of the presence of the jury.          The circuit court reviewed the jury

communications it had received thus far, including Communication

Nos. 4, 5, and 6, and the circuit court’s responses.               At the

close of this discussion, the circuit court explicitly asked both


      6
       (...continued)
                  suffering from serious or substantial bodily
                  injury?

              3.    Has the prosecution proven beyond a reasonable
                    doubt that prior to trial the Defendant did not
                    release Jermaine Duckworth in a safe place?

                  Your [sic] must answer each of these questions
            separately. Your answer to each of these questions
            must be unanimous.

            Though not included in the jury instructions, HRS § 707-720(1)
provides, in pertinent part:

            (1) A person commits the offense of kidnapping if the
            person intentionally or knowingly restrains another
            person with intent to:

            . . .

            (d) Inflict bodily injury upon that person or subject
            that person to a sexual offense;

            (e) Terrorize that person or a third person

            . . . .

            (2) Except as provided in subsection (3), kidnapping
            is a class A felony.

            (3) In a prosecution for kidnapping, it is a defense
            which reduces the offense to a class B felony that the
            defendant voluntarily released the victim, alive and
            not suffering from serious or substantial bodily
            injury, in a safe place prior to trial.

(Emphases added).

                                        8
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


counsel if they had “anything for the record on anything the

court just put on the record?”        Both counsel stated that they had

nothing further for the record.

           In “Communication No. 7 from the Jury,” the jury

stated, “Re. Communication #6, the jury is not unanimous on

Question #2 on p. 32 . . . .”        The circuit court again reconvened

with counsel outside the presence of the jury.           The circuit court

stated:
           [s]o they are not unanimous on all three of the
           questions on page 32, as they have to be to return a
           verdict. So basically, no matter what they did with
           that verdict form, the court will not be accepting a
           verdict on Count number II. The upshot of that is it
           looks like they’re hung on all four counts
           essentially. It’s going to be a mistrial declared on
           all counts again.

(Emphases added).

           The Deputy Prosecuting Attorney (DPA) indicated the

State was ready for the circuit court to bring in the jurors.

           Defense counsel, however, questioned whether and how

the jurors’ votes would be determined.
           MR. HUNT: Your Honor, are we going to be able to
           determine from the record where they stand?

           THE COURT: I’m going to go in and talk to them right
           after we finish.

           MR. HUNT:   Because I think it would be--

           THE COURT: I’m going to go and talk to them right
           after we finish because I need to get that at least
           from them. And I--

           MR. HUNT:   Thank you.

           THE COURT: I normally talk to them anyway. And then
           you know the rules, counsel. I mean you can talk to
           them if you want to afterwards. I’m not going to make
           them wait around though.


                                      9
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           MR. HUNT:    Are you going to ask them where they--

           THE COURT:   Well, I’ll just--

           MR. HUNT:    --numerically stand?

           THE COURT: I’ll just tell them sometimes the
           attorneys like to talk to the jurors. You can talk to
           them if you want to, and I’m going to leave it up to
           you.

           MR. HUNT:    As far as where they stood numerically?

           THE COURT: Oh, no.     No, that, I’m going to ask
           specifically.

           MR. HUNT: You’re going to ask.      Okay, that would be
           fine. I’d appreciate that.

           THE COURT: That, I’m going to ask them specifically.
           Obviously, I think it’s germane. And I’ll report it
           to both of you, too. As soon as I find out, I’ll let
           you know.

(Emphases added).

           The DPA raised concerns about his availability to speak

with the jurors.
           MR. BELL: I’d like to just inform the court that
           after the verdict--well, after the decision is
           received and the court makes the appropriate findings
           and makes its declaration and we take care of other
           procedural matters, I do have another matter before
           another court at 3 o’clock, and I don’t want to keep
           that other court waiting. I just say that because if
           it was the defense [sic] intention to speak with the
           jurors after the court has concluded its conversation
           with them, I cannot say that I would be immediately
           available and ready to do so. I say that because I’m
           going to be in another courtroom. But if it is the
           defense intention to speak with the jurors, if they
           choose to do so before they disperse, then I’ll stay
           and--

           THE COURT: Well, you guys work that out, because as
           you know, you can talk to them--both counsel don’t
           have to be there. You can call them up days later if
           they’re willing to speak to you, I mean, you know,
           because the rules had changed a long time ago on all
           of that, and I think you’re both aware of the ethical
           rules as far as that goes. So that, you need to work
           out among yourselves. I will tell you this. I am not
           going to have them stay in the jury room and bring one
           or both of you in. I’m going to talk to them, and
           then I’m going to release them. And then it’s up to
           you, I mean if you want to wait in the hall there,


                                      10
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


            catch them as they come out or something. Whatever
            you guys want to do is up to you, but I’m just going
            to leave that to you all, okay?

                  Okay, bring them in.

(Emphases added).

            After the jurors were called into the courtroom, the

foreperson confirmed that the jury was “unable to reach a

unanimous verdict as to Counts I, III, and IV” and that “more

time would not help the jury to reach a unanimous decision on

those counts.”

            With respect to Count II, the foreperson handed to the

bailiff what the jurors “believe[d] to be” their verdict, noting,

“[w]hether or not it would be accepted or not is the question.”

            The circuit court called both counsel to the bench,

where the following discussion occurred outside the presence of

the jury:
            THE COURT: Everything else except those three is
            blank, as it should be, because they were unable to
            reach unanimous verdicts. I’m showing counsel--for
            the record, I’m showing counsel the three verdict
            forms that the jury did fill out. They are Count II,
            kidnapping, the interrogatories for Count II, and also
            the interrogatory on the enhanced sentencing for use
            of a firearm for Count II.

                  For the record, they returned a verdict of
            guilty on Count II. However--and I will clarify this
            with them in a second--they checked off 1 and 3 “Yes”
            on the interrogatories but just made dashes in number
            2 along with their last jury communication. And I
            will confirm that, for the record, that means they
            were not unanimous on that question. And the interrog
            as to firearms kind of is moot, but they were not
            unanimous as to that one either.

                  So what I intend to do for the record is to
            clarify that, in fact, they were not able to reach
            unanimous answer as to question number 2 of the three
            interrogatories pertaining to kidnapping and that, in
            fact, they were not able to reach a unanimous verdict

                                     11
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


        as to the use--well, possession of a firearm or
        semiautomatic firearm. And given that, I am not going
        to receive the verdict as to Count II. That’s the
        court’s intention.

              Mr. Bell.

        MR. BELL: I understand that, Your Honor. I’d ask the
        court to consider the following. What the court has
        presented is what the parties, I believe, inferred
        what was going to transpire. For the purpose of
        establishing kidnapping as a class A, the prosecution
        only has to establish one of those three has been
        proven beyond a reasonable doubt. Before they reach
        the interrogatories, they have to establish as a
        matter of fact that the defendant knowingly or
        intentionally restrained Jermaine, and then there’s
        those two alternatives. Only after they’ve made a
        unanimous finding as to the two counts of kidnapping--
        two elements of kidnapping do they consider the
        interrogatories.

              So the prosecution is asking the court to
        consider this. Inasmuch as they’ve already reached a
        verdict as to the kidnapping as charged, questions of
        fact, and they do not reach the interrogatories until
        they made those findings and because they found at
        least as to one question a unanimous verdict as to
        yes, then there is a factual basis for the court to
        receive that verdict as to kidnapping as a class A
        felony.

        THE COURT:   Mr. Hunt.

        MR. HUNT:    Your Honor, can I see the verdict form
        again.

              No, I disagree.     I agree with the court’s
        position.

        THE COURT:   Okay, you made your record on that--

        MR. BELL:    Thank you.

        THE COURT: --Mr. Bell. I believe all three questions
        have to be answered unanimously in the affirmative,
        and they’re simply not. I think that’s required under
        the applicable statutes as contained in the Penal
        Code. So as I say, you’ve made your record. I’m
        respectfully not going to accept the verdict on Count
        number II, and I’m going to declare a mistrial due to
        manifest necessity on all four counts.

        MR. BELL:    I understand, Your Honor.

              Just on the last point, is the court’s reading
        of 707-720 that each of the three questions have to be
        answered in the affirmative? Is that what the court
        just said? I thought--I mean the law is one of the


                                    12
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           three, not all three. That’s just the prosecution’s
           perspective. I just want to understand–-

           THE COURT:   No--

           MR. BELL:    --what the court said.

           THE COURT: --I’m not going to commit myself to an
           answer on that. I am saying that on the verdict form
           which the jury was provided with, the clear
           instructions to them is that the answer to each of
           these questions must be unanimous, and one of them was
           not. So, you know, I suppose you can file a writ
           seriously if you feel strongly enough about it. And
           if the appellate--the Supreme Court agreed with you,
           then maybe you could reinstate--maybe they would
           reinstate the verdict in Count II. After all, the
           verdict is in unambiguously, and it’ll be preserved
           for the record. But at this point, I’m going to
           declare a mistrial. I’m not going to accept the
           verdict. I’m going to declare a mistrial on Count II
           as well as the other three counts, and we’ll take it
           from there.

           MR. BELL: Thank you.

(Emphases added).

           In the presence of the jury, the circuit court further

discussed with the foreperson the verdict form on Count II.
           THE COURT: Okay . . . just so the record is very
           clear, on the verdict form containing the three
           interrogatories pertaining to Count II, the “Yes” box
           is checked off very clearly and unequivocally on
           questions 1 and 3. However, question number 2, there
           are just a couple of dash marks after both “Yes” and
           “No.” And my understanding based on your
           communication to the court on this issue is that the
           jury was unable to reach a unanimous verdict as to
           question 2, is that correct?

           THE FOREPERSON:     Correct.

           . . . .

           THE COURT: All right. Well, in that case, then, I’m
           not going to receive the verdict as to Count II. And
           because the jury has informed the court and all of us
           on the record just now that, despite their efforts,
           they’re unable to reach a unanimous verdict as to
           Counts I, III, and IV, I’m going to find manifest
           necessity, and I’m declaring a mistrial as to all four
           counts in this case, Counts I, II, III, and IV.

(Emphases added).


                                          13
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


              Thus, the circuit court did not accept the jury’s

guilty verdict as to Count II, and declared a mistrial based upon

“manifest necessity” on all four counts.            There were no

objections made by either counsel, and both counsel indicated

they had nothing further for the record.            Because the circuit

court did not accept the verdict as to Count II, the circuit

court did not poll7 the jury with respect to Count II at that

time.

              The circuit court indicated it would meet with the

jurors in the jury room, and twice stated that the jury was

“discharged.”       The circuit court did not instruct jurors to

refrain from discussing the case with others or that they could

potentially be recalled.

              The circuit court then scheduled a retrial, and there

were no objections made by either counsel.

C.       Jury recall and misconduct proceedings

              Later that night, the circuit court concluded that it

had erred in not accepting the guilty verdict on Count II.                The

circuit court contacted counsel and “start[ed] gathering jurors


         7
              Under Hawai#i Rules of Penal Procedure Rule 31© (2015), “Poll of
Jury,”

              [w]hen a verdict is returned and before it is
              recorded, the jury shall be polled at the request of
              any party or upon the court’s own motion. If upon the
              poll there is not unanimous concurrence, or there is
              not concurrence by the number of jurors stipulated to
              as being necessary for returning a verdict, the jury
              may be directed to retire for further deliberations or
              may be discharged.

                                        14
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


up” for recall.    There is no evidence in the record that the

circuit court informed the jurors that they were not to discuss

the case with others.     Due to “unavailability of counsel because

of prior commitments,” the circuit court was unable to meet with

counsel regarding this issue until April 7, 2011, which was two

days after discharging the jury.

           At the April 7, 2011 chambers conference, the circuit

court informed counsel that it believed it had made a mistake by

not accepting the jury’s verdict on Count II because the jurors

were required to vote unanimously in the affirmative on only one

of the three interrogatory questions on the verdict form to

submit a guilty verdict on Count II as a class A felony.             The

circuit court also indicated its intention to “gather the jury

members, go back on record and poll them, and then depending on

the results of the poll, proceed from there.”          The circuit court

scheduled the proceeding for April 13, 2011, and invited counsel

to “file anything respective counsel wanted to on this issue.”

The circuit court contacted all of the jurors, who “were all

amenable to coming back at this day and time.”

           Deguair’s objections to the circuit court’s recall of

the jury for the purposes of polling (Objections to Recall and

Polling) were filed on April 11, 2011.         The State responded to

Deguair’s objections.

           Without ruling on Deguair’s Objections to the Recall

and Polling, the circuit court reconvened the jury on April 13,

                                     15
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


2011.   Before the jurors were called into the courtroom, the

circuit court stated that on April 5, 2011, the jurors were

“deadlocked six to six” on Counts I, III, and IV.

           The DPA asked:
           [W]ill [t]he Court be open to confirming that on
           April 5, 2011, after the jury was discharged, that
           this Court, in fact, did speak with the jurors in the
           jury room, as it indicated that it was going to do so,
           and during that conversation, the Court was able to
           determine where the jurors stood on all counts,
           including Count 2? Will the Court confirm that?

           The circuit court answered, “[n]o, because I think

that’s tantamount to making myself a witness in this case, and

I’m not going to do that.”

           Defense counsel raised concerns about the jurors’

potential exposure to “publicity” regarding the case.
           MR. HUNT: And my concern is since the jury was
           discharged almost ten days ago, you know, eight or
           nine days ago, there has been publicity. I did attach
           as an Exhibit A to my memo the fact that there was
           publicity, and there was a notation that there was an
           earlier murder. I think, it was in 2002 that Mr.
           DeGuair [sic] was a suspect in but was not prosecuted
           because there were no witnesses to testify and so
           forth. So, I’m concerned that the jury has had
           extraneous influence now that–-

           THE COURT:   Potentially.

           MR. HUNT:    Yes, yes.   After--

           THE COURT: I mean, you know, just--we don’t know in
           fact that any of them--

           MR. HUNT:    True.

           THE COURT: --that’s all I’m saying.

                 Go on.

           MR. HUNT: And I agree with the Court. We don’t know
           unless we ask. And, I suppose, to be careful, I
           think, we should probably do some inquiry--at least,
           I’m making that request--what the jury has since
           exposed themselves to since being discharged, whether


                                       16
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           they’ve gone on the internet and read newspapers and
           looked up the case and things. But, the bottom line
           is, with all due respect, I think the Court, once it
           discharged the jury, lost the power to call it back
           and ask it to poll--to poll it and to render a true
           verdict.

           THE COURT: No. Certainly, I understand your point.
           And as I say, in the fullness of time, you may be
           vindicated. I, frankly, am not sure. I would note
           just, sort of, parenthetically that, again, I don't
           know whether--how much water this will carry or, for
           example, how much it would make a difference to an
           appellate court looking at this. But, I would, like I
           said, note parenthetically that, you know, your client
           and defendants in his position have a right to a jury
           poll under the Hawai#i rules of penal procedure. It’s
           not a constitutional right.

           MR. HUNT: Correct.

(Emphases added).

           The circuit court, again over defense counsel’s

objection, questioned the jury as to whether they agreed with the

guilty verdict on Count II and Interrogatory Nos. 1 and 3

relating to Count II.     Each juror answered in the affirmative.

The circuit court also asked the jurors whether their responses

would have been the same if the circuit court had asked for their

numerical split on April 5, 2011.         The jurors answered in the

affirmative.   The circuit court did not ask the jurors whether

they had been exposed to publicity or discussed the case with

others.   The circuit court accepted the jury’s verdict on Count

II and adjudged Deguair guilty of kidnapping as a Class A felony.

           Later that day, on April 13, 2011, the circuit court

received a telephone voice mail message from Juror No. 4.             The

message stated the following:
           [JUROR 4]: I was in the jury of Patrick Deguair
           trial, No. 4. Um, I had some concerns, and I was–I

                                     17
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           didn’t know who to talk to.    And it probably happens
           all the time.

                 But I really--during deliberation, I really
           suspected that people looked at the Internet ‘cause
           things came out that weren’t in trial, and it really
           bothers me. And I think some--and I think there was a
           fear factor for some of these jurors.

                 And if you’re going to retry this, somehow--you
           know, you’re not--it’s going to come out the same way
           because people are going to be too scared. It’s too
           small of an island. I know you--you didn’t have that
           --you tried to put that fear out of our heads, but I--
           I have a concern.

                  I don’t know, um--I don’t know what you can do
           about it except sequester, but I think that people
           did--did just go right on and looked and found out
           stuff.

           The circuit court reconvened to question Juror No. 4 on

April 15, 2011.    Juror No. 4 testified that Juror No. 18 said

“she was not going to get up in open court and say guilty.”

Juror No. 4 also reported three instances of possible juror

misconduct:   (1) statements made by Juror No. 1 during

deliberation of the jury that there was “documented evidence”

that Deguair had threatened four people, suggesting that Juror

No. 1 had consulted outside sources of information9; (2) mention

of the name of a “Samoan gang” that may have been involved, which

Juror No. 4 claimed had not come to light during the trial; and

(3) Juror No. 1 had conducted her own experiment by putting duct

tape on her forearm to see if it left residue marks, the result

of which experiment Juror No. 1 reported to other jurors.

           The other jurors were subsequently questioned


     8
           Juror No. 1 served as the foreperson.
     9
           Juror No. 1 later testified that she did not make this statement.

                                     18
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


individually.    Five other jurors corroborated Juror No. 4’s

testimony that Juror No. 1 had said that she would not say

Deguair was guilty in open court.

           Juror No. 1 confirmed that she had been concerned about

gang membership and being the target of retaliation.             When the

circuit court asked about the jurors’ “fear of being on a hit

list” and “the mention of Samoan gangs,” Juror No. 1 explained:
           A     ... [W]ell, it’s probably because people--people
           have told us or we’ve seen on TV where you’re--if
           you’re the identifiable person, the foreperson, that
           maybe there’s repercussions after. And so people were
           afraid.

           Q     Were they afraid that they might be killed or
           murdered by someone associated with a Samoan gang?

           A     Well, those words didn’t really come up, but it
           was just you’d get attacked or, you know, targeted.
           So when we started picking our foreperson, one person
           specifically said, I absolutely do not, cannot, don’t
           want to be it for these reasons. And then I even
           said, Okay, me too. For that reason, I don’t want to
           do it. And so it kind of--how the discussion went.
           And then we ended up doing it randomly. So we picked
           numbers out of a bag.

           Five other jurors recalled hearing statements regarding

fear of reprisal should the jury find Deguair guilty and the

consequences of being the foreperson.

           Regarding the duct tape experiment, Juror No. 1

testified that, after the first day of deliberations, “I wanted

to validate the residue part of the evidence that was in the

picture, how that would happen.       So I took tape and I stuck it on

my forearm and waited ten minutes and then pulled it off, and

that was it.”

           Further, Juror Nos. 4 and 8 confirmed that after the

                                     19
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


jury was discharged but before the jury was recalled, they did

research Deguair on the internet.            Juror No. 4 testified that she

found Deguair had allegedly threatened other people in the past.

Juror No. 8 testified that she found Deguair had supposedly

murdered someone else.

D.     Post-trial motions

             Two separate motions by Deguair were filed in the

circuit court on April 28, 2011.            Both motions are at issue on

certiorari.     First, Deguair moved to dismiss Counts I through IV

with prejudice (Second Motion to Dismiss) based on the factors

set forth in State v. Moriwake, 65 Haw. 47, 56-57, 647 P.2d 705,

712-13 (1982).      Deguair argued that five of the six Moriwake

factors weighed against retrial, while the “severity of the

offense charged” did not weigh against retrial.             Deguair further

submitted that if the circuit court were to grant his motion to

vacate the conviction on Count II, it should also dismiss Count

II with prejudice, rather than grant a new trial on Count II

because the evidence that the State would lawfully be permitted

to present in a third trial on Count II would be “substantially

restricted” by the dismissals of Counts I, III, and IV.

             Deguair’s counsel also argued:
             On April 7, 2011, the Court held a chambers conference
             with counsel for the parties and informed the parties
             that the Court believed it made a mistake by not
             accepting the jury’s verdict on count II because the
             jury only needed to be unanimous on one of the three
             questions on the verdict form in order for the Court
             to accept the jury’s verdict on count II as a class A
             felony, and over defendant’s objection decided to


                                       20
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           reconvene the jury on April 13, 2011, to accept the
           jury’s verdict on count II and poll the jury. The
           Court also informed counsel in chambers that it met
           with the jury for approximately and [sic] hour to an
           hour and a half after discharging the jury to answer
           questions from jurors and determine where the jurors
           stood on the deadlocked counts. The Court informed
           counsel the jurors were evenly split, six for guilty
           and six for not guilty on counts I, III and IV.

           In opposition, the State argued that five of the six

Moriwake factors weighed in favor of retrial.          The State did not

dispute defense counsel’s statement that the jury was evenly

split, six-to-six.     Indeed, the State represented that on

April 6, 2011, “the State received a phone call from the court’s

law clerk/bailiff, who informed the State of the jury’s vote as

to each count, including the kidnapping special interrogatories.”

In a footnote, the State represented, “[i]t is the State’s

understanding that, as to counts 1, 3 and 4, the jury was split

evenly at 6/6.”

           Second, Deguair moved to vacate the conviction on Count

II and dismiss Count II with prejudice (Motion to Vacate and

Dismiss Count II) based on the juror misconduct.           Deguair

requested that the circuit court dismiss Count II under Moriwake,

rather than grant a new trial.       Deguair argued:
           [E]ven standing alone each of the improper instances
           of jury behavior described above warrant vacating the
           kidnapping conviction and granting a new trial on the
           kidnapping count. Defendant further submits, however,
           that the collective effect of the jury’s improper
           conduct makes it impossible for the State to prove
           that the jurors’ misconduct was harmless beyond a
           reasonable doubt. Defendant was clearly denied a
           trial by a fair and impartial jury on the kidnapping
           charge and the only fair and just result should be
           that kidnapping conviction be vacated, and rather than
           granting a new trial, Count 2 must be dismissed with
           prejudice, based on State v. Moriwake . . . .

                                     21
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


(Citation omitted).

           In other words, Deguair appeared to argue that juror

misconduct prejudiced the jury’s deliberations as to Count II,

but that because the circuit court should not have recalled the

jury to receive a guilty verdict on Count II, the circuit court

should dismiss Count II under Moriwake as if the jury were

deadlocked on Count II.

           In opposition, the State argued (1) there was no

“concrete evidence” that Juror No. 1 obtained information from

outside the trial; (2) the comments regarding the threats and

Samoan gangs did not prejudice Deguair; (3) Juror No. 1’s duct

tape experiment did not prejudice Deguair because whether there

was adhesive residue on Duckworth’s body was irrelevant to the

kidnapping; and (4) Moriwake did not apply to Count II because

the jury was not deadlocked on Count II.

           The circuit court held a hearing on both motions on

May 18, 2011.    The circuit court first addressed and heard

arguments regarding the Motion to Vacate and Dismiss Count II.

The circuit court orally granted the motion to vacate the

conviction on Count II, but denied the motion as to dismissal of

Count II, stating “[t]he proper remedy is a new trial, and that’s

what I’m ordering.”

           As to the Second Motion to Dismiss, the circuit court

stated, “it’s the Court’s considered judgment that the chances of

the State persuading 12 jurors unanimously to find the defendant

                                     22
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


guilty as charged of Counts 1 and 3 and 4 are virtually nil.”

The circuit court orally granted Deguair’s Second Motion to

Dismiss.     At the hearing, the State did not dispute or put on

contradictory evidence that the second jury was deadlocked six-

to-six.

             On July 1, 2011, the circuit court entered two separate

orders on the motions that confirmed its oral rulings.              The

circuit court granted in part the Second Motion to Dismiss with

respect to Counts I, III, and IV, and denied in part the Second

Motion to Dismiss with respect to Count II (Second Dismissal

Order).    The circuit court also granted Deguair’s request to

vacate his conviction on Count II but denied his request to

dismiss Count II with prejudice pursuant to Moriwake (Order re

Motion to Vacate and Dismiss Count II).           The Second Dismissal

Order and Order re Motion to Vacate and Dismiss Count II

contained findings of fact and conclusions of law, which are

discussed as relevant below.

             The circuit court denied and overruled Deguair’s

Objections to Recall and Polling (Order re Recall and Polling) in

an order entered on August 26, 2011.

E.     ICA proceedings

             In the ICA, the State appealed the Second Dismissal

Order, and on cross-appeal, Deguair appealed the Order re Motion

to Vacate and Dismiss Count II and the Order re Recall and

Polling.

                                       23
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           In its July 31, 2014 Summary Disposition Order (SDO),

the ICA affirmed the Second Dismissal Order and Order re Motion

to Vacate and Dismiss Count II.       Because the circuit court

vacated the conviction on Count II, the ICA did not address the

circuit court’s recall of the jury.

           With respect to the State’s appeal, the ICA held:
           [t]he Circuit Court carefully considered and weighed
           each of the Moriwake factors in light of all of the
           particular circumstances of this case, including the
           juror misconduct in the second trial, and the
           seriousness and potential impact of that misconduct on
           the deliberations of the second hung jury.
           Notwithstanding the State’s challenges to certain
           aspects of the FOFs and COLs, on the whole of this
           record, we cannot conclude that the Circuit Court
           abused its discretion in concluding that the public’s
           interest and the defendant’s interest in fundamental
           fairness would not be served by conducting a third
           trial on Counts I, III, and IV.

           With respect to Deguair’s cross-appeal, the ICA held:
                 Assuming, arguendo, that the Circuit Court erred
           in recalling the discharged jury and belatedly
           accepting the guilty verdict on Count II (including
           any errors related to jury polling), presumably the
           Circuit Court should have allowed the erroneous
           declaration of a mistrial to stand, notwithstanding
           the court’s error in initially rejecting the verdict.
           As implicitly acknowledged in Deguair’s alternative
           prayer for relief in this appeal, the appropriate
           proceeding would then have been a hearing on a motion
           to dismiss based on Moriwake. However, that is
           precisely what happened in this case, albeit with the
           added complications and considerations stemming from
           the juror misconduct, which were addressed in
           Deguair’s separate motion for relief. Deguair’s
           second motion to dismiss the indictment, which was
           filed on April 28, 2011, specifically argued that,
           applying the Moriwake factors to this case, Deguair
           should not be subjected to a third trial on any of the
           four remaining counts, with particularized arguments
           concerning Count II. Deguair does not argue on appeal
           that the Circuit Court erred in any aspect of its
           Moriwake analysis.

                 Instead, Deguair argues that the dismissal of
           Count II based on the juror misconduct was not based
           on “manifest necessity,” and therefore retrial would
           be barred by double jeopardy. This argument is


                                     24
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


             without merit. As Deguair himself argued in his
             motion to vacate the conviction on Count II and
             dismiss it with prejudice, which was also filed on
             April 28, 2011, “the improper instances of jury
             behavior described above warrant vacating the
             kidnapping conviction and granting a new trial on the
             kidnapping count.” In essence, Deguair argued that it
             was a manifest necessity to vacate the conviction on
             Count II, which the Circuit Court then did. In the
             Circuit Court proceedings, Deguair further argued in
             the motion to vacate that, “rather than granting a new
             trial, Count 2 must be dismissed with prejudice, based
             on State v. Moriwake, 65 Haw. 47 (1982),” and he
             incorporated by reference the Moriwake arguments made
             in his second motion to dismiss indictment, which was
             filed concurrently therewith. As stated above,
             Deguair does not argue on appeal that the Circuit
             Court erred in its Moriwake analysis.

(Emphasis in original).

             In other words, the ICA appeared to conclude that there

was manifest necessity to declare a mistrial because of the juror

misconduct and that Deguair waived his ability to challenge the

circuit court’s purported analysis of Count II under Moriwake.

             The ICA entered a judgment on appeal pursuant to its

July 31, 2014 SDO on October 24, 2014.

             Both parties timely sought certiorari review.

                         II.   Standards of Review

A.     Motion to dismiss indictment

             This court has held:
             A trial court’s ruling on a motion to dismiss an
             indictment is reviewed for an abuse of discretion.
             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. The burden of
             establishing abuse of discretion is on appellant, and
             a strong showing is required to establish it.

State v. Hinton, 120 Hawai#i 265, 273, 204 P.3d 484, 492 (2009)

                                       25
      *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


(citations, internal quotation marks, and brackets omitted).

B.      Double jeopardy

              Whether dismissal of a criminal charge is required

under double jeopardy is “a question of constitutional law that

we review under the right/wrong standard of review.”               State v.

Toyomura, 80 Hawai#i 8, 15, 904 P.2d 893, 900 (1995).

                               III.   Discussion

A.      The State’s Application

              On certiorari, the State presents the following

question:
              Whether the ICA committed grave errors of law and fact
              in concluding that Petitioner failed to demonstrate
              the court abused its discretion in its application of
              the Moriwake factors and by granting Respondent’s
              motion to dismiss with prejudice the murder and two
              gun related charges (counts I, III, and IV).

(Internal quotation marks and citation omitted).

              We hold that the ICA correctly concluded that the

circuit court did not abuse its discretion in its application of

the Moriwake factors and by granting Deguair’s motion to dismiss

Counts I, III, and IV.

        1.    The State’s argument that the jury was not genuinely
              deadlocked fails

              The State argues that the record lacks “undisputed”

evidence that the second jury was hung with six jurors voting

“guilty” and six jurors voting “not guilty” on Counts I, III, and

IV.     The State challenges the circuit court’s findings of fact to

                                        26
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


the extent that they “recite and rely” on the jury’s purported

six-to-six split.

           The State notes that at the April 13, 2011 hearing, the

circuit court would not confirm where the jurors stood on all

counts when it met with the jurors after the close of trial on

April 5, 2011, and therefore, it is “unconfirmed” where the jury

stood on Counts I, III, and IV.       The State also contends that the

court “perhaps improperly, made itself a critical witness” by

“meeting privately with the jurors . . . and purportedly

receiving the only information regarding the jury’s split.”               The

State further notes, “there does not appear to be any evidence in

the record that all 12 jurors met with the trial court” and that

those who attended the meeting could have been “reluctant” to

reveal their verdicts or “confused” because the circuit court

instructed the jury, before it began deliberating, as follows:
           You must not discuss this case with any person other
           than your fellow jurors. You must not reveal to the
           Court or to any other person how the jury stands
           numerically or otherwise until you have reached a
           unanimous verdict and it has been received by the
           Court.

           Although the State now argues that the six-to-six split

was not “undisputed,” the State conceded in its response to

Deguair’s Second Motion to Dismiss in the circuit court that “as

to counts 1, 3 and 4, the jury was split evenly at 6/6.”             In

addition, after the jury was discharged, the State could have but

did not ask the jurors where they stood on Counts I, III, and

                                     27
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


IV.10        Moreover, the State did not object to the circuit court’s

plan to speak to the jurors without counsel present.

                The State next contends that “the fear and intimidation

that weighed constantly on the jurors’ minds” further supports a

conclusion that the jury was not “genuinely deadlocked.”                The

State also notes the following:            a statement made by a

prospective juror regarding his concerns about being identifiable

as a juror; a statement that Deguair “unexpectedly” made at trial

that “could have intimidated the jurors”; Juror No. 4’s voice

mail message to the circuit court regarding a “fear factor for

some of the jurors”; Juror No. 4’s corroborated statement that

Juror No. 1 said “she was not going to get up in open court and

say guilty”; and statements made by jurors regarding “the fear of

being on a hit list,” the “mention of Samoan gangs,” and the

perceived consequences of being the foreperson.               The State also

argued that the multiple instances of juror misconduct undermine



        10
            Under the Hawai#i Rules of Professional Conduct (HRPC) Rule
3.5(e)(4)(i) (2015), a lawyer may communicate with the jurors after the jury
has been dismissed,

                upon leave of the court, which leave shall be freely
                granted, a lawyer may ask questions of, or respond to
                questions from, jurors about the trial, provided that
                the lawyer does so in a manner that is not calculated
                to harass or embarrass any juror and does not seek to
                influence the juror’s actions in future jury service
                in any particular case . . . .

      Before discharging the jury, the circuit informed both counsel that
after the jury was discharged, they could talk to the jurors to ask them where
they stood.

                                         28
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


the circuit court’s conclusion that the jury deliberations and

circumstances of the deliberations weigh “only slightly” for

allowance of a retrial.

           The State’s arguments regarding the “fear and

intimidation that weighed constantly on the jurors’ minds” and

the juror misconduct fail because in its opposition in the

circuit court to Deguair’s Motion to Vacate and Dismiss Count II,

the State argued that the statements regarding the Samoan gang

affiliation and the juror misconduct were not prejudicial.             In

other words, the State argued that the jury’s fear of retaliation

from Samoan gangs and juror misconduct did not prejudice jury

deliberations with respect to the kidnapping charge, while now

arguing that the fear and misconduct did prejudice jury

deliberations with respect to the murder and firearm charges that

it now asks this court for the opportunity to retry.            See Roxas

v. Marcos, 89 Hawai#i 91, 124, 969 P.2d 1209, 1242 (1998)

(“Pursuant to the doctrine of judicial estoppel, [a] party will

not be permitted to maintain inconsistent positions or to take a

position in regard to a matter which is directly contrary to, or

inconsistent with, one previously assumed by him, at least where

he had, or was chargeable with, full knowledge of the facts, and

another will be prejudiced by his action.”) (quoting Rosa v. CWJ

Contractors, Ltd., 4 Haw. App. 210, 218, 664 P.2d 745, 751

(1983)).   In addition, the State’s argument that the jurors were

                                     29
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


afraid to return a “guilty” verdict is undercut by the jurors’

written guilty verdict as to Count II, kidnapping as a Class A

felony, which the foreperson read in open court.           Cf. United

States v. Watchmaker, 761 F.2d 1459, 1466 (11th Cir. 1985)

(“Discussions among the jurors as to their fear of the defendants

are not inappropriate, so long as such discussions do not lead

them to form an opinion of the defendants’ guilt or innocence of

the offenses charged.”).

           In sum, the State’s argument that the jury was not

“genuinely deadlocked” fails.

     2.    The State’s argument regarding possible violations of
           HRE Rule 606(b) is irrelevant

           The State argues that the circuit court’s Moriwake

analysis “cannot be accepted as correct” because, during the

post-trial hearings, the circuit court “ignored the law and both

counsels’ objections when soliciting repeatedly the jurors’

opinions as to whether [Juror No. 1’s] experiment had an effect

on their deliberations,” in violation of HRE Rule 606(b).

           However, the State’s challenge of these hearings with

respect to Counts I, III, and IV is irrelevant.           First, there is

no indication in the record that the circuit court considered the

impact of the duct tape experiment when evaluating Counts I, III,

and IV under Moriwake.      The circuit court instead conducted its

own evaluation of the evidence and concluded that the conflicting


                                     30
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


evidence as to whether there was duct tape on Duckworth’s body

when he was murdered was a major weakness in the State’s case

with respect to Counts I, III, and IV.

           Second, the circuit court’s inquiries appear to have

been conducted to inform the circuit court’s analysis of

Deguair’s Motion to Vacate and Dismiss Count II (concerning juror

misconduct with respect to Count II), but not Deguair’s Second

Motion to Dismiss (concerning the Moriwake factors only regarding

Counts I, III, and IV).      The State did not challenge the Order re

Motion to Vacate and Dismiss Count II on appeal before the ICA or

this Court.    In other words, the State’s argument regarding the

juror misconduct revealed during the post-trial hearings appears

to be irrelevant to the circuit court’s Moriwake analysis with

respect to Counts I, III, and IV, and accordingly this argument

is irrelevant to the issues in the State’s Application.

     3.    The circuit court did not abuse its discretion in
           dismissing Counts I, III, and IV under the Moriwake
           factors

           In Moriwake, this court addressed whether trial courts

have discretionary power sua sponte to dismiss an indictment over

the objection of the prosecuting attorney.          65 Haw. at 55, 647

P.2d at 712.   The court held, “the judicial power which seeks to

administer justice is properly invoked when a trial court sua

sponte dismisses an indictment with prejudice following the



                                     31
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


declaration of one or more mistrials because of genuinely

deadlocked juries, even though the defendant’s constitutional

rights are not yet implicated.”        Id. (internal quotation marks

omitted).

            Although the Moriwake Court acknowledged the

discretionary nature of trial courts’ judicial power to dismiss

an indictment and stated it would “accord deference” to the trial

court’s conclusion, the court determined that “the magnitude of

the respective interests of society and of criminal defendants

which are implicated in this area of law requires that we more

fully delineate the parameters within which this discretion is

properly exercised.”      Id. at 56, 647 P.2d at 712.        The court set

forth the following test for balancing the interests of the State

against fundamental fairness to the defendant:
            The factors which the trial court should consider in
            undertaking this balance include the following: (1)
            the severity of the offense charged; (2) the number of
            prior mistrials and the circumstances of the jury
            deliberation therein, so far as is known; (3) the
            character of prior trials in terms of length,
            complexity and similarity of evidence presented; (4)
            the likelihood of any substantial difference in a
            subsequent trial, if allowed; (5) the trial court’s
            own evaluation of relative case strength; and (6) the
            professional conduct and diligence of respective
            counsel, particularly that of the prosecuting
            attorney.

Id. at 56, 647 P.2d at 712-13.

            In State v. Hinton, this court explained, “[n]othing in

Moriwake indicates that all factors must be given equal weight or

that certain factors must be given more weight than others.”                120

                                     32
      *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Hawai#i at 280, 204 P.3d at 499.          In Hinton, this court held that

the ICA erred in (1) injecting a “separation of powers” analysis

(i.e., assessing when a court might be inappropriately

encroaching upon prosecutorial discretion) into the Moriwake

framework, and (2) holding that the trial court abused its

discretion in dismissing an indictment with prejudice after one

mistrial.      Id. at 278, 280, 204 P.3d at 497, 499.

              In this case, the circuit court, in the Second

Dismissal Order, applied the Moriwake balancing test and

ultimately granted Deguair’s motion to dismiss Counts I, III, and

IV.     The circuit court concluded:
              Given the State’s evidence against the defendant, it
              is the Court’s considered judgment that the chances of
              the State persuading 12 jurors unanimously to find the
              defendant guilty beyond a reasonable doubt as charged
              of Counts I, III and IV are virtually nil. If the
              Court allowed a third, fourth or fifth retrial, all of
              the juries would still be hung, and it would be
              fundamentally unfair to the defendant, and a denial of
              due process, to continue to put him in jeopardy by
              subjecting him to another trial on Counts I, III and
              IV.

              Having resolved the State’s arguments challenging the

circuit court’s findings of fact regarding the jury’s six-to-six

split, supra, we hold that the circuit court did not abuse its

discretion in dismissing Counts I, III, and IV under the factors

set forth in Moriwake.

              a.    The Severity of the Offense Charged

              Under the first Moriwake factor, the circuit court



                                        33
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


found, “[i]t is undisputed that the charges against defendant are

extremely serious” (FOF No. 23).          The court concluded, “the

severity of the charges against [Deguair] argue[s] for allowance

of a retrial” (COL No. 3).       Because neither party challenged the

circuit court’s analysis of the first Moriwake factor, we need

not address or disturb it here.11

            b.    The Number of Prior Mistrials and the
                  Circumstances of the Jury Deliberations Therein,
                  So Far as Known

            With respect to the second Moriwake factor, the circuit

court concluded, “[e]ven though the jury that deliberated in the

second trial deliberated only two and a half days, and their

deliberations were compromised by some juror misconduct, [the

second Moriwake factor] . . . so far as is know[n], argue[s] only

slightly for the allowance of a retrial” (COL No. 4).

            In Moriwake, this court stated, “[w]ithout suggesting

that trial courts are not free, within the bounds of properly

exercised discretion, to differ, we proffer that in most cases,

serious consideration be given to dismissing an indictment with

prejudice after a second hung jury mistrial.”           64 Haw. at 57, 647

P.2d at 713.     This court has also indicated that the circuit

court may consider the numerical breakdown of the hung jury under



      11
            This court has suggested that “murder . . . [and] kidnapping” are
relatively serious offenses for purposes of the first Moriwake factor.
Hinton, 120 Hawai#i at 278, 204 P.3d at 497.

                                     34
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


the second Moriwake factor.       See Hinton, 120 Haw. at 278-79, 204

P.3d at 497-98 (“The trial court found that this factor weighed

in favor of retrial because there had been only one trial and,

although the jury indicated that it was eight to four for

acquittal at one point, it seemed confused.”).

           The following factual findings of the circuit court are

relevant to the second Moriwake factor:         both trials ended in a

mistrial (FOF Nos. 3, 17, 24); jury deliberations lasted seven

days in the first trial (FOF No. 3) and two and one-half days in

the second trial (FOF Nos. 14, 25); in the first trial, the

jurors were evenly split on Counts I through IV, (FOF Nos. 4, 24,

26); in the second trial, the jurors were evenly split on Counts

I, III, and IV, (FOF Nos. 18, 24, 26); during the jury

deliberations for the second trial, the jury informed the circuit

court that it was “deadlocked” on Counts I, III, and IV (FOF No.

14); and the jury deliberations in the second trial were

“compromised by some juror misconduct” (FOF No. 25).            In

addition, although the circuit court did not make a specific

finding in this regard, when asked by the circuit court whether

more time would assist the jury in reaching a unanimous verdict

on Counts I, III, and IV, the jury responded, “[n]o, the jury has

unanimously decided that more time will not help.”

           Because the two trials for this case ended in a


                                     35
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


mistrial when the jurors were evenly split and unable to reach a

unanimous decision on Counts I, III, and IV, the circuit court

did not “exceed the bounds of reason” in concluding that the

second Moriwake factor weighed “only slightly for the allowance

of a retrial” (COL No. 4).

           c.    The Character of Prior Trials in Terms of Length,
                 Complexity, and Similarity of Evidence Presented

           The circuit court concluded that the third Moriwake

factor “argue[s] very strongly against a retrial” (COL No. 5).

           A comparison between the evidence presented, witnesses

testifying, and legal theories argued in each trial are relevant

to the third Moriwake factor.       See Moriwake, 65 Haw. at 49, 57,

647 P.2d at 708, 713.     Relevant considerations can include, for

example, the complexity of a trial and whether a case turns on

credibility.    Hinton, 120 Hawai#i at 279, 204 P.3d at 498.

           Accordingly, the circuit court’s factual findings

relevant to this conclusion are as follows:          both trials lasted

approximately eight days, which was “somewhat long for criminal

trials” (FOF Nos. 2, 12, 26); although both trials involved “a

lot of witnesses [and] a lot of evidence, . . . at their core,

the cases were credibility contests and not complex” (FOF No.

26); and the second trial involved an additional “alleged




                                     36
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


eyewitness”12 to Duckworth’s murder, which “did not appear to

make a difference because the jury still voted six jurors for not

guilty and six jurors for guilty” (FOF No. 26).           In addition, at

the May 18, 2011 hearing on Deguair’s motions, the circuit court

stated that “the single most important factor in the court’s view

is that these were–-it’s not a complex case . . . .            It’s

credibility at its core.”

            With respect to the murder and related firearm charges,

the issues boil down to whether the jury believed Teo’s story,

that Deguair shot and killed Duckworth even though no duct tape

was found on his body, or Deguair’s story, that Teo murdered

Duckworth.    Given the circuit court’s consideration of the

similarities between both trials with respect to the legal

theories, evidence presented, and witnesses who testified, and

its finding that the case was not complex and turned on

credibility, the circuit court did not “exceed the bounds of

reason” in concluding that the third Moriwake factor “argue[s]

very strongly against a retrial” (COL No. 5).




      12
            In opposition to Deguair’s Second Motion to Dismiss, the State
contended that the second trial differed from the first because two additional
witnesses–-James and Woo–-testified for the State in the second trial.
Although the circuit court did not make a finding regarding James in the
second trial, the State does not challenge the absence of such finding in its
Application. Regardless, James’s testimony was not highly significant and,
similar to Woo’s, apparently did not appear to make a difference.

                                     37
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           d.    The Likelihood of Any Substantial Difference in a
                 Subsequent Trial, if Allowed

           The circuit court concluded that the fourth Moriwake

factor “argues very strongly against a retrial” (COL No. 6).

           This court has indicated that whether the evidence

submitted in a subsequent trial would be substantially different

from prior trials is relevant to this factor.          Hinton, 120

Hawai#i at 279, 204 P.3d at 498.

           In opposition to Deguair’s Second Motion to Dismiss,

the State explained its intention to submit fingerprint evidence

that was permitted during the first but not the second trial and

to again attempt to consolidate Deguair’s case with another that

supposedly linked Deguair to a 2007 home robbery.           In its

Application, the State does not raise any arguments regarding new

evidence it might propose to introduce at a subsequent trial.

           The circuit court concluded, “[a]dditional evidence

that the State proposes to offer in the third trial in the

Court’s view would not make a difference, and the Court finds no

cogent reasons for changing earlier pretrial rulings relating to

evidence and [denial of] consolidation of cases, thus the

evidence in the third trial would be substantially the same as

the second trial” (FOF No. 27), and “[t]here was no substantial

likelihood of a substantial difference in the result of a

retrial” (FOF No. 28).


                                     38
      *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


              In sum, the circuit court fully considered the evidence

that the State proposed to introduce in a subsequent trial and

concluded that the fourth Moriwake factor weighs “very strongly

against a retrial.”        This conclusion is consistent with the

record.

              e.    The Relative Case Strength

              The circuit court concluded that the fifth Moriwake

factor “argues very strongly against a retrial” (COL No. 7).

              Under this factor, the trial court may evaluate the

evidence.      See Hinton, 120 Hawai#i at 279-280, 204 P.3d at 498-

99.

              The circuit court found as follows:
              29. The State had significant problems with the
              quality of its evidence even though it was able to
              present the testimony of the two alleged eyewitnesses
              to the murder who in one sense essentially testified
              consistent with each other about the circumstances of
              murder, but directly contradicted each other as to
              their alleged involvement with the defendant in the
              murder. There was also strong evidence of defendant’s
              alleged motive to murder Jermaine Duckworth, and
              corroborating evidence that the defendant rented the
              car in another person’s name and washed it twice after
              the murder.

              30. However, the crux of the State’s problem with the
              quality of its evidence was that based on both Teo’s
              and Woo’s testimony, Jermaine Duckworth was presumably
              still taped with duct tape when the defendant
              allegedly shot Duckworth and pushed him off the cliff
              at Yokohama Bay, yet there was no tape on Jermaine
              Duckworth’s body, or any other evidence consistent
              with Teo’s and Woo’s testimony, explaining why no tape
              was found on Jermaine Duckworth, or what happened to
              the duct tape.

              At trial, Deguair admitted that he placed duct tape on

Duckworth.      Two other witnesses testified that they saw Deguair

                                        39
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


place duct tape on Duckworth.        In addition, Teo and Woo both

testified that they saw Deguair and Duckworth walking down the

stairs together, and that Duckworth was bound with duct tape.

Yet, both Teo and Woo testified that they did not see anyone

remove the duct tape from Duckworth, and Teo testified that

Duckworth was still bound when he was allegedly shot and

murdered.    No party disputes that there was no duct tape on

Duckworth’s body when he was found dead at Yokohama Bay.

            Because the circuit court evaluated the State’s case

and concluded that it was not strong enough to merit another

trial when weighed against fundamental fairness to the defendant,

the circuit court did not “exceed the bounds of reason” in

concluding that this factor weighs heavily against retrial.

            f.    The Professional Conduct and Diligence of
                  Respective Counsel, Particularly that of the
                  Prosecuting Attorney

            With respect to the sixth Moriwake factor, the circuit

court found:
            The State’s prosecutor is an excellent prosecutor, one
            of the best prosecutors in the prosecutor’s office,
            and diligently and professionally presented the
            State’s case to the jury. No other prosecutor from
            the prosecutor’s office would have done better in
            presenting the State’s case to the jury.

(COL No. 31).

            The circuit court concluded that the sixth Moriwake

factor “argue[s] very strongly against a retrial” (COL No. 8).

Because neither party challenged the circuit court’s analysis of

                                     40
     *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


the sixth Moriwake factor, we need not address or disturb it

here.

             In conclusion, the ICA correctly concluded that the

circuit court did not abuse its discretion in dismissing with

prejudice Counts I, III, and IV under Moriwake.

B.     Deguair’s Application

             Deguair presents the following questions:
             1) Did the Intermediate Court of Appeals Gravely Err
             in Ruling That a Retrial of the Count Two Kidnapping
             Charge Was Not Barred by Double Jeopardy?

             2) Did the Intermediate Court of Appeals Gravely Err
             in Failing to Address Whether the Trial Court Erred in
             Recalling the Jury?

             We hold that (1) the ICA did not err in concluding that

retrial of Count II was not barred by double jeopardy, and (2)

the ICA did not err in declining to address whether the circuit

court erred in recalling the jury.

       1.    The retrial of Count II was not barred by double
             jeopardy

             Deguair argues that once the jury was discharged in

open court on April 5, 2011, double jeopardy barred the State

from subjecting Deguair to a third trial because the trial court

erroneously found that there was manifest necessity for a

mistrial in Count Two.

             The State responds that double jeopardy does not bar

retrial.     The State adopts the ICA’s reasoning that Deguair’s

double jeopardy argument was without merit because Deguair

                                       41
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


conceded there was manifest necessity to declare a mistrial on

Count II by arguing that the circuit court should vacate Count II

because of juror misconduct.       The State further argues that

Deguair “consented to the trial court’s declaration of mistrial

on count II” by explicitly agreeing with the circuit court’s

position on Count II, not objecting when the circuit court

reiterated its intention to declare a mistrial, and not objecting

after the circuit court declared a mistrial.

           Generally, under the double jeopardy clauses of the

United States and Hawai#i constitutions, “a defendant may not be

put in jeopardy twice for the same offense.”          State v. Wilmer, 97

Hawai#i 238, 243, 35 P.3d 755, 760 (2001) (citing U.S. Const.

amends. V & XIV; Hawai#i Const. art. I, § 10).

           This court has “described the purpose underlying the

prohibition against double jeopardy” as follows:
           The underlying idea, one that is deeply ingrained in
           at least the Anglo-American system of jurisprudence,
           is that the State with all its resources and power
           should not be allowed to make repeated attempts to
           convict an individual for an alleged offense, thereby
           subjecting him to embarrassment, expense and ordeal
           and compelling him to live in a continuing state of
           anxiety and insecurity, as well as enhancing the
           possibility that even though innocent he may be found
           guilty.

State v. Quitog, 85 Hawai#i 128, 140, 938 P.2d 559, 571 (1997)

(quotation marks omitted) (quoting United States v. Scott, 437

U.S. 82, 87-88 (1978)).

           This court has also “recognized that there are three


                                     42
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


separate and distinct aspects to the protections offered by the

double jeopardy clause.”      Quitog, 85 Hawai#i at 141, 938 P.2d at

572 (quoting State v. Ontiveros, 82 Hawai#i 446, 450, 923 P.2d

388, 392 (1996)).    Thus, “[d]ouble jeopardy protects individuals

against:   (1) a second prosecution for the same offense after

acquittal; (2) a second prosecution for the same offense after

conviction; and (3) multiple punishments for the same offense.”

Quitog, 85 Hawai#i at 141, 938 P.2d at 572 (internal quotations

marks omitted) (quoting Ontiveros, 82 Hawai#i at 450, 923 P.2d at

392).

           “However, even when a trial ends without a judgment, a

defendant’s constitutional right to ‘have his trial completed by

a particular tribunal’ still exists.”         Quitog, 85 Hawai#i at 141,

938 P.2d at 572 (quoting Arizona v. Washington, 434 U.S. 497, 503

(1977)).
           The reasons why this “valued right” merits
           constitutional protection are worthy of repetition.
           Even if the first trial is not completed, a second
           prosecution may be grossly unfair. It increases the
           financial and emotional burden on the accused,
           prolongs the period in which he is stigmatized by an
           unresolved accusation of wrongdoing, and may even
           enhance the risk that an innocent bystander may be
           convicted. The danger of such unfairness to the
           defendant exists whenever a trial is aborted before it
           is completed. Consequently, as a general rule, the
           prosecutor is entitled to one, and only one,
           opportunity to require an accused to stand trial.

Quitog, 85 Hawai#i at 141, 938 P.2d at 572 (emphases in original)

(quoting Washington, 434 U.S. at 503-05).

           Nonetheless, “retrial is not automatically barred [by

                                     43
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


the double jeopardy clause] when a criminal proceeding is

terminated without finally resolving the merits of the charges

against the accused.”     State v. Lam, 75 Haw. 195, 199-200, 857

P.2d 585, 588-89 (1993) (brackets original to Lam, quotation

marks omitted) (quoting Washington, 434 U.S. at 505).

           Because 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 be 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
           impartial jury.

Moriwake, 65 Haw. at 52, 647 P.2d at 710 (citing Washington, 434

U.S. at 505).

           “Case law requires a balance between the rights of the

accused and the public interest.          Both are vitally important to

our judicial system, and each must be considered in the context

of a trial court’s rulings.”       Quitog, 85 Hawai#i at 142, 938 P.2d

at 573 (quoting Lam, 85 Hawai#i 128, 75 Haw. at 199-200, 857 P.2d

at 588-89).

           Accordingly, “[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.

           In essence, the ICA concluded that even though the


                                     44
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


circuit court was unaware of the juror misconduct at the time it

declared the mistrial on Count II, the subsequent discovery of

such misconduct could justify the mistrial on the grounds of

manifest necessity.     However, we do not need to rely on that

ground because the record establishes that Deguair consented to

the mistrial.

           For purposes of double jeopardy, consent may be express

or implied.   Lam, 75 Haw. at 201-02, 857 P.2d at 589.              This court

has held, “[e]xplicit consent arises when a defendant voluntarily

moves or argues for a mistrial.        In such a situation, the

defendant may be retried.”      Id.    In the case at bar, Deguair did

not voluntarily move or argue for a mistrial before the circuit

court declared a mistrial on Count II on April 5, 2011.

Therefore, there was no express consent.

           To determine whether a defendant impliedly consented to

a mistrial, “[t]he actions of a defendant and the facts of a case

must be examined.”     Id. at 202, 857 P.2d at 589.        This court has

noted:
           [e]xamples of cases where waiver has been found
           include those where the defendant failed to raise a
           double jeopardy claim at trial, or in a timely manner;
           where a defendant pleaded no contest to a criminal
           charge; where a defendant sought a continuance at
           trial; where a defendant chose to oppose prosecution’s
           motion to consolidate; and when a defendant sought a
           new trial after being convicted.

State v. Miyazaki, 64 Haw. 611, 618-19, 645 P.2d 1340, 1346

(1982) (footnotes omitted) (emphasis added).

                                      45
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


            Further, “[t]hese waiver cases underscore the necessity

of examining the particular facts of a case in determining

whether waiver of a defendant’s double jeopardy right has

occurred.”    Id. at 619, 645 P.2d at 1346.       Accordingly, “this

court will not find waiver of constitutional rights readily but

will carefully scrutinize facts of a case to determine if waiver

has occurred.”    Id. at 620, 645 P.2d at 1347.

            During jury deliberations in the case at bar, the

circuit court, without objection from either party, erroneously

informed the jury in response to jury Communication No. 6 that a

unanimous response was required for all three interrogatories

before it could submit a verdict on Count II.          After the jury

informed the circuit court that it was unable to reach a

unanimous response for the second interrogatory, the circuit

court informed the parties that a mistrial would be declared on

Count II.    Again, neither party objected at that time.

            After the jury was called back into the courtroom, and

the foreperson delivered what it “believe[d] to be [its]

verdict,” the circuit court called both counsel to the bench.

The circuit court stated that because the jury was unable to

reach a unanimous verdict as to Count II, it would not “receive

the verdict as to Count II.”       Although the State contended that a

positive response as to only one of the three interrogatories was

sufficient, when the circuit court asked for Deguair’s position,

                                     46
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Deguair explicitly “agree[d] with the court’s position” that to

accept a verdict on Count II, a unanimous response was required

for all three interrogatories.       In the presence of the jury, the

circuit court declared a mistrial on Count II based on “manifest

necessity.”   Deguair did not object.       The circuit court then

scheduled the retrial, and Deguair did not object.

            Thus, the circuit court informed Deguair of its plan

to declare a mistrial because the jurors could not reach a

unanimous response for all of the interrogatories, and when asked

for his position, Deguair expressly agreed with that plan.             Under

these circumstances, Deguair consented to the circuit court’s

declaration of a mistrial.

           Deguair cites to two cases to support his argument that

retrial on Count II is barred by double jeopardy, State v. Lam,

75 Haw. 195, 857 P.2d 585 (1993), and People v. McGee, 636 N.W.2d

531 (Mich. App. 2001).      However, they are distinguishable from

the case at bar.

           In Lam, the prosecutor, after failing to elicit certain

testimony from a witness at trial, spoke to the witness during a

recess.   75 Haw. at 197-98, 857 P.2d at 587-88.          The trial court

stated in a bench conference that it was “forced” to declare a

mistrial, and indicated it would announce its ruling after a

recess.   Id. at 203, 857 P.2d at 590.        After the recess, the

trial court declared a mistrial, and defense counsel subsequently

                                     47
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


stated that such a ruling “would be over the objections of the

defense[.]”    Id.   Lam was subsequently re-charged, and Lam moved

to dismiss the charge based on double jeopardy grounds.            Id. at

119, 857 P.2d at 588.     At a hearing on the motion to dismiss, the

motions judge granted the motion and denied the prosecution’s

motion for reconsideration.       Id.

            This court rejected the prosecution’s argument that Lam

impliedly consented to the mistrial by remaining silent when the

trial court “first considered a mistrial[.]”          Id. at 202, 857

P.2d at 590.    This court concluded that “Lam had no duty to

object to the mistrial prior to the recess[,]” and explained that

“Lam provided the court with an alternative to declaring a

mistrial by requesting that [the witness’s] testimony be

stricken.    In addition, Lam voiced his objection to the court’s

declaration of a mistrial.      He had no further duty.”        Id. at 203,

857 P.2d at 590.

            This court also rejected the prosecution’s argument

that Lam impliedly consented to the mistrial by “call[ing] the

prosecution’s discussion with [the witness] to the court’s

attention.”    Id. at 204, 857 P.2d at 590.       This court reasoned

that Lam “coupled his revelation to the [trial] court with a

request to limit [the witness’s] testimony[,]” which could

“hardly raise the implication of consent.”          Id.

            Lam is distinguishable from the case at bar because

                                     48
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


here, Deguair did not offer an alternative course to declaration

of a mistrial.    Instead, when asked for his position, Deguair

expressly agreed with the circuit court’s plan.

           In McGee, the Michigan Court of Appeals held that the

trial court erroneously declared a mistrial on the grounds that

an alternate juror was present during jury deliberations.             636

N.W.2d at 540.    The court further held that retrial was barred by

double jeopardy because the defendant did not “explicitly

indicate[] consent to the mistrial, and we will not presume

consent in the absence of an affirmative showing.”           Id. at 537.

The defendant “neither objected to nor agreed with the court’s

conclusion that a mistrial was warranted.”          Id.   However, on

appeal, the Michigan Supreme Court held that because “[t]he

record in this case reveals circumstances from which consent to

the circuit court’s declaration of a mistrial can be inferred

. . . . [,] retrial is not barred by the constitutional

protection against double jeopardy.”        McGee, 670 N.W.2d at 665.

Therefore, the final disposition in McGee provides no support for

Deguair’s argument that retrial is barred by double jeopardy.

           In sum, because Deguair impliedly consented to a

mistrial, retrial is not barred by double jeopardy.




                                     49
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


     2.    The ICA did not err in declining to address whether the
           circuit court erred in recalling the jury

           Deguair argues that the ICA should have addressed

whether the circuit court erred in recalling the jury.            Deguair

contends that because the circuit court did not have authority to

recall the jury, the circuit court should have disregarded its

error in not accepting a guilty verdict as to Count II and should

have instead analyzed Count II under Moriwake as if the jury was

deadlocked on Count II.

           Deguair’s argument that the circuit court should have

dismissed Count II under Moriwake as if the jury was deadlocked

on Count II fails.     Before the circuit court recalled the jury

for purposes of polling the jury, the circuit court realized it

had erred in not accepting the guilty verdict on Count II.             The

verdict form, which on its face showed that the jury had returned

a unanimous verdict of guilty as to Count II and unanimous

responses for two of the three interrogatories, confirmed that

the circuit court had erred.       Thus, regardless of whether the

circuit court had authority to recall the jury for purposes of

polling the jury, the circuit court was not required to disregard

its error and analyze Deguair’s Motion to Vacate and Dismiss

Count II as if the jury was actually deadlocked as to Count II.

Thus, whether the circuit court had authority to recall the jury

for purposes of polling the jury is irrelevant to whether the

                                     50
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


circuit court correctly ordered a retrial on Count II based on

the juror misconduct.

           Further, the circuit court did not err in ordering a

retrial on Count II.     This court has held that “[a] fair trial by

an impartial jury is guaranteed to the criminally accused by both

the sixth amendment of the United States Constitution and article

I, § 14 of the Hawai#i Constitution.        Inherent in this

requirement is that the jury be free from outside influences.”

State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991).

“The defendant bears the initial burden of making a prima facie

showing of a deprivation that ‘could substantially prejudice [his

or her] right to a fair trial’ by an impartial jury.”            State v.

Chin, 135 Hawai#i 437, 443, 353 P.3d 979, 985 (2015) (emphasis

and brackets in original) (quoting Williamson, 72 Haw. at 102,

807 P.2d at 596).    “Once the defendant makes a prima facie

showing of a deprivation, ‘a rebuttable presumption of prejudice

is raised.’”   Id. (quoting Williamson, 72 Haw. at 102, 807 P.2d

at 596).   “To overcome the presumption of prejudice, the State

must prove that the outside influence on the jury was harmless

beyond a reasonable doubt.”       Id. at 448, 353 P.3d at 990 (citing

Williamson, 72 Haw. at 102, 807 P.2d at 596).          In cases involving

prejudicial juror misconduct, a retrial is an appropriate remedy.

See, e.g., id. at 449, 353 P.3d at 991 (vacating the judgment of

conviction and sentence and remanding to the circuit court for a

                                     51
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


new trial because the defendant’s fundamental right to a fair

trial by an impartial jury was compromised); Williamson, 72 Haw.

at 104, 807 P.2d at 597 (remanding for a new trial because the

juror misconduct at issue was not harmless beyond a reasonable

doubt).

           In its Order re Motion to Vacate and Dismiss Count II,

the circuit court concluded:
           [T]he Court does not conclude as a matter of law that
           the jury misconduct and the resulting statements that
           were injected into the deliberations were harmless
           beyond a reasonable doubt given the totality of the
           circumstances of the trial and the jury’s
           deliberation.

(COL No. 16)

           The circuit court further concluded that Deguair’s

conviction on Count II should be vacated.         Neither party

challenged these conclusions in the ICA or this court.

           Because it is undisputed that the jury misconduct in

the case at bar was not harmless beyond a reasonable doubt, the

circuit court correctly ordered a retrial on Count II.

Consistent with Hawai#i case law, Deguair conceded that a new

trial is the appropriate remedy for prejudicial juror misconduct

by stating in his Motion to Vacate and Dismiss Count II,

“Defendant respectfully submits that even standing alone each of

the improper instances of jury behavior described above warrant

vacating the kidnapping conviction and granting a new trial on

the kidnapping count.”

                                     52
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           In sum, because the circuit court correctly ordered a

retrial based on juror misconduct, whether the circuit court had

the authority to recall the jury is moot.         Therefore, the ICA did

not err in declining to address whether the circuit court erred

in recalling the jury.

                             IV.   Conclusion

           For the foregoing reasons, we affirm the October 24,

2014 judgment of the ICA.

Donn Fudo for                      /s/ Mark E. Recktenwald
petitioner-respondent
                                   /s/ Paula A. Nakayama
Dwight C.H. Lum for
respondent-petitioner              /s/ Sabrina S. McKenna

                                   /s/ Richard W. Pollack

                                   /s/ Michael D. Wilson




                                     53
