State v. Deguair. ( 2015 )

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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
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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.
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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
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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.
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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.
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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
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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...)
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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).
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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.
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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,
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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
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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
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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).
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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.
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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,
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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
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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
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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.
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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
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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
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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 . . . .
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(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
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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.
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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
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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)
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(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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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).
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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
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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
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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
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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
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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
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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
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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).
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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,
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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
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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
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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.
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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
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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
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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.”
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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
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