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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-AUG-2024
02:53 PM
Dkt. 238 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee/Cross-Appellant, v.
PETER GREWER, Defendant-Appellant/Cross-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, and Guidry, J.,
and McCullen, J., dissenting in part)
Defendant-Appellant/Cross-Appellee Peter Grewer
(Grewer) appeals, and Plaintiff-Appellee/Cross-Appellant State of
Hawai#i (State) cross-appeals, from the Judgment of Conviction
and Sentence (Judgment) entered on October 19, 2021, in the
Circuit Court of the Fifth Circuit (Circuit Court).1/ After a
jury trial, Grewer was convicted of Murder in the Second Degree,
in violation of Hawaii Revised Statutes (HRS) § 707-701.5,2/ and
sentenced to life imprisonment without the possibility of parole,
1/
The Honorable Randal G.B. Valenciano presided.
2/
HRS § 707-701.5 (2014 & Supp. 2018) states:
Murder in the second degree. (1) Except as provided
in section 707-701, a person commits the offense of murder
in the second degree if the person intentionally or
knowingly causes the death of another person; provided that
this section shall not apply to actions taken under chapter
327L.
(2) Murder in the second degree is a felony for which the
defendant shall be sentenced to imprisonment as provided in
section 706-656.
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pursuant to HRS §§ 706-661(1), 706-662(5), and 706-657.3/
On appeal, Grewer contends that: (1) "[a] prospective
juror's misconduct violated[] Grewer's constitutional right to a
fair and impartial trial"; (2) "[t]here was insufficient evidence
presented at trial and in the enhanced sentencing phase to prove
the decedent was sixty years of age or older"; (3) [t]he jury
instructions given in the enhanced sentencing portion of the
trial were prejudicially insufficient, erroneous, inconsistent or
misleading"; and (4) "[t]he trial court imposed an illegal
sentence."
On cross-appeal, the State contends that "[t]he Circuit
Court abused its discretion when it prohibited [a] board-
3/
HRS § 706-657 (2014) states, in relevant part:
Enhanced sentence for second degree murder . The court
may sentence a person who was eighteen years of age or over
at the time of the offense and who has been convicted of
murder in the second degree to life imprisonment without the
possibility of parole under section 706-656 if the court
finds that the murder was especially heinous, atrocious, or
cruel, manifesting exceptional depravity . . . .
HRS § 706-661(1) (2014) states, in relevant part:
Extended terms of imprisonment. The court may
sentence a person who satisfies the criteria for any of the
categories set forth in section 706-662 to an extended term
of imprisonment, which shall have a maximum length as
follows:
(1) For murder in the second degree—life without the
possibility of parole[.]
HRS § 706-662(5) (Supp. 2018) states, in relevant part:
Criteria for extended terms of imprisonment . A
defendant who has been convicted of a felony may be subject
to an extended term of imprisonment under section 706-661 if
it is proven beyond a reasonable doubt that an extended term
of imprisonment is necessary for the protection of the
public and that the convicted defendant satisfies one or
more of the following criteria:
. . . .
(5) The defendant is an offender against the
elderly, handicapped, or a minor eight years of
age or younger in that:
(a) The defendant attempts or commits any of
the following crimes: murder,
manslaughter, a sexual offense that
constitutes a felony under chapter 707,
robbery, felonious assault, burglary, or
kidnapping[.]
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certified forensic pathologist[] from opining as to whether a
wound on the decedent's right hand was a defensive wound."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve the
parties' contentions as follows, vacate the Judgment, and remand
the case for a new trial.
I. Grewer's Appeal
A. Grewer's Right to a Fair Trial
Grewer's first contention (supra) is dispositive of his
appeal. He argues that the Circuit Court erred in failing to
establish that misconduct by Prospective Juror 20 during jury
selection was harmless beyond a reasonable doubt and did not
compromise Grewer's right to a fair and impartial trial.
Addressing Grewer's contention requires a brief review
of the relevant procedural background. Jury trial in this case
began on April 19, 2021. On April 21, 2021, during jury
selection, the Circuit Court informed the parties that
Prospective Juror 20 had made statements to the bailiff "to
indicate she doesn't want to be here, period," and "about the
guilt or innocence of [Grewer] even before we've started the
presentation of evidence . . . ." The bailiff added: "She was
saying it to myself, Judge, loudly. There were other jurors that
were -- there were no jurors actually directly around us, so it
was primarily just to myself. There were no other jurors that
were within earshot at that time."
The Circuit Court then examined Prospective Juror 20,
who confirmed that she had spoken loudly about not wanting to be
there and that she "already had [an] opinion about it." She said
that two other prospective jurors (later identified as
Prospective Jurors 22 and 48) had heard her. When defense
counsel asked Prospective Juror 20 whether other jurors were
present, she responded in part, "The whole hallway, everybody's
inside the hallway, yeah."
The court then separately examined Prospective Jurors
22 and 48. Prospective Juror 22 told the court that Prospective
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Juror 20 had repeatedly said "[she] wanted to be excused" and
"d[id]n't want to be here[,]" and that Prospective Juror 48 (whom
Prospective Juror 22 initially misidentified as Juror 50) was
with Prospective Juror 22 at that time. Prospective Juror 48
told the court that he had heard Prospective Juror 20 say, among
other things, "[s]he felt that [Grewer] looked guilty."
Prospective Juror 48 also said that another prospective juror
(later identified as Prospective Juror 3) "came up and said he
could hear everything that [Prospective Juror 20] was saying."
The Circuit Court then examined Prospective Juror 3,
who told the court that Prospective Juror 20 had said "[s]he
didn't want to be here" and that "[i]t was loud and self-serving
. . . ." When asked by the deputy prosecuting attorney (DPA)
whether Prospective Juror 20 had made any statements "regarding
how she felt about the person being accused of this crime[,]"
Prospective Juror 3 responded, "Yeah. It's like she already made
up her mind." Prospective Juror 3 added: "It seemed . . . that
she presumed that -– that the fellow was a -– was a murderer."
Prospective Juror 3 then had the following exchange with defense
counsel:
[DEFENSE COUNSEL]: So this is when everyone was
waiting outside?
PROSPECTIVE JUROR [3]: Yes.
[DEFENSE COUNSEL]: And were there other jurors
between you and her or around you or around her?
PROSPECTIVE JUROR [3]: There were -- there were two
that came up. I moved away because -- because it was just --
saying it again and again, so I moved away. But I could
hear her, and she said something about someone yelling. I
went back and I asked her not to talk so loud because I just
didn't want to hear this again and again.
[DEFENSE COUNSEL]: But needless to say, there were
other jurors in the hallway when she was talking about it?
PROSPECTIVE JUROR [3]: Well, two of them came up and
spoke right -- stood in front of her and spoke to her.
Defense counsel then moved for a mistrial, stating: "I
think given the fact that there were multiple jurors -- unnamed
jurors in the hallway who heard her say things, I think that the
jury panel at this point has been tainted and it's a bell that we
cannot unr[i]ng." The State opposed the motion, stating:
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According to the jurors that we heard from, this incident
was contained mostly between the bailiff and the three
jurors that -- four jurors that you have questioned.
The State feels that . . . this incident can be
remedied by excusing the three other jurors that were
involved in this case and maybe having the Court do a
curative instruction or questioning the panel as a whole to
see if they heard anything or if this would affect them.
The Circuit Court did not further question the panel or
any of the individual prospective jurors. Instead, the court
denied the motion for a mistrial, dismissed Potential Juror 20,
and instructed all of the prospective jurors as follows:
Please remember that the verdict must be based only on
the evidence received in the courtroom and instructions on
the law . . . .
The other thing that I want to tell you is if you
heard a juror talking -- a prospective juror talking about
this case, I would instruct you to disregard whatever
another prospective juror said about this case at this time.
You will -- if you are selected on the jury, you will
have an opportunity to discuss the evidence and make a
decision during deliberations . . . .
So if you heard any juror make any statements about
this case, about the Court, about the attorneys, about any
of the parties, including the defendant, please disregard
that. Those are not to be taken into consideration because
they are not evidence.
The Circuit Court did not dismiss Prospective Jurors 3,
22 and 48 at that time. The State contends, however, that they
did not deliberate as to Grewer's guilt.
Based on these events, Grewer argues that the Circuit
Court failed to properly investigate whether other potential
jurors were exposed to Prospective Juror 20's improper statements
and whether such statements compromised their ability to remain
fair and impartial.
The Hawai#i Supreme Court set out the framework for
analyzing improper influences on jurors in State v. Keliiholokai,
58 Haw. 356,
569 P.2d 891 (1977), and, more recently, in State v.
Chin, 135 Hawai#i 437,
353 P.3d 979 (2015). "Where the existence
of an outside influence such as juror misconduct is brought to
the attention of the trial court, the court must ascertain the
extent of the influence and then, in its sound discretion, take
appropriate measures to assure a fair trial." Chin, 135 Hawai#i
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at 439, 353 P.3d at 981 (citing Keliiholokai,
58 Haw. at 358,
569
P.2d at 894). "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."
Id. at 443,
353 P.3d at 985 (brackets and footnote
omitted) (citing State v. Williamson,
72 Haw. 97, 102,
807 P.2d
593, 596 (1991), and State v. Furutani, 76 Hawai#i 172, 181,
873
P.2d 51, 60 (1994)). "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). This analysis "initially focuses on the general nature
of the outside influence and whether it 'could' substantially
prejudice a defendant; if the court so finds, then a rebuttable
presumption of prejudice is raised that triggers the court's
obligation to investigate the totality of the circumstances."
Id. (citing Williamson,
72 Haw. at 102,
807 P.2d at 596).
In Chin, the supreme court summarized the procedure to
be employed in the trial court when an improper influence on a
jury has been raised, as follows:
[W]hen a defendant in a criminal case claims a
deprivation of the right to a fair trial by an
impartial jury, the initial step for the trial
court to take is to determine whether the nature
of the alleged deprivation rises to the level of
being substantially prejudicial. If it does not
rise to such a level, the trial court is under
no duty to interrogate the jury. And whether it
does rise to the level of substantial prejudice
is ordinarily a question committed to the trial
court's discretion.
Where the trial court does determine that such alleged
deprivation is of a nature which could substantially
prejudice the defendant's right to a fair trial, a
rebuttable presumption of prejudice is raised. The
trial judge is then duty bound to further investigate
the totality of circumstances surrounding the alleged
deprivation to determine its impact on jury
impartiality. The standard to be applied in
overcoming such a presumption is that the alleged
deprivation must be proved harmless beyond a
reasonable doubt.
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. But once a rebuttable
presumption of prejudice is raised, the burden of
proving harmlessness falls squarely on the
prosecution.
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Id. at 445, 353 P.3d at 987 (some indentation altered) (quoting
State v. Bailey, 126 Hawai#i 383, 399-400,
271 P.3d 1142, 1158-59
(2012)); see State v. Lautalo, No. CAAP-XX-XXXXXXX,
2020 WL
3497666, at *2-3 (Haw. App. June 29, 2020) (mem. op.) (applying
Chin's analytical framework where a prospective juror's improper
statement could have been overheard by other prospective jurors).
Here, the Circuit Court took the initial step of
determining whether the nature of the alleged deprivation, i.e.,
Prospective Juror 20's statements to other prospective jurors
that Grewer "looked guilty," rose to the level of being
substantially prejudicial. Indeed, by questioning Prospective
Jurors 3, 22, and 48 about the statements, and by then dismissing
Prospective Juror 20, the Circuit Court necessarily determined
that the statements were of a nature that could substantially
prejudice Grewer's right to a fair trial. See Chin, 135 Hawai#i
at 445, 353 P.3d at 987. Given this record, we also conclude
that the statements, which undermined fundamental principles such
as the presumption of innocence and the burden of proof, were of
a nature that they could substantially prejudice Grewer's right
to an impartial jury. See id. at 443,
353 P.3d at 985. Thus, a
rebuttable presumption of prejudice was raised, and it was
incumbent on the Circuit Court to "further investigate the
totality of circumstances surrounding the alleged deprivation to
determine its impact on jury impartiality." Id. at 445,
353 P.3d
at 987 (quoting Bailey, 126 Hawai#i at 400,
271 P.3d at 1159).
We recognize that the Circuit Court was presented with
a difficult situation and endeavored to further investigate the
surrounding circumstances to the extent it examined Prospective
Jurors 3, 22 and 48 about Prospective Juror 20's prejudicial
statements. On this record, however, where it appears that
Prospective Juror 20 was speaking loudly in the same hallway
occupied by other prospective jurors, we cannot say that
additional prospective jurors did not also hear the prejudicial
statements, and that the Circuit Court adequately investigated
the totality of circumstances surrounding the statements to
determine their impact on jury impartiality. Moreover, in
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addressing whether a jury has been tainted by an outside
influence, the supreme court has not indicated that a jury
instruction alone — particularly the type of general,
hypothetically phrased instruction given here — can remedy the
potential for substantial prejudice. See Lautalo, 2020 WL
3497666, at *3 (citing Chin, 135 Hawai#i at 443-49,
353 P.3d at
985-91); see also State v. Souza, 142 Hawai#i 390, 403,
420 P.3d
321, 334 (2018) ("A jury instruction must be specific to the harm
resulting from the error to function as a curative . . . ."). We
must therefore conclude that the Circuit Court abused its
discretion in failing to adequately investigate the statements
made by Prospective Juror 20 and by not determining whether
Grewer's right to an impartial jury was impacted by the
statements. The State's burden of proving harmlessness was not
satisfied in these circumstances.
The dissent concludes that Grewer waived his contention
that Prospective Juror 20's misconduct and the Circuit Court's
related investigation violated his right to a fair trial, because
he "waived a challenge to the empaneled jury." Relatedly, the
dissent faults Grewer for not having questioned prospective
jurors during voir dire about Prospective Juror 20's comments, so
as "to attempt to make a record of bias[.]" We first note that
this waiver argument is not one the State raised in its answering
brief. We thus deem it waived. See Blaisdell v. Dep't of Public
Safety, 119 Hawai#i 275, 282, 196 P.3d 277, 284 (2008). In any
event, there is good reason why the State did not raise this
waiver argument. Grewer moved for a mistrial at the conclusion
of the Circuit Court's investigation, after Prospective Juror 3
confirmed there were other jurors in the hallway when Prospective
Juror 20 repeatedly made loud prejudicial statements about
Grewer. Grewer argued that "the jury panel at this point has
been tainted and it's a bell we cannot unr[i]ng." In responding,
the State went so far as to suggest that the court "question[]
the panel as a whole to see if they heard anything or if this
would affect them." But the Circuit Court declined to conduct
any further investigation and promptly denied Grewer's motion.
Grewer thus preserved his fair-trial claim for appeal. In these
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circumstances, where Grewer expressly objected to the presumed
prejudicial effect of Prospective Juror 20's statements, there is
no basis in Hawai#i law for requiring that he also have
questioned other potential jurors about Prospective Juror 20's
statements, and have exercised his for cause and/or peremptory
challenges – all merely to preserve his fair-trial claim.4/
Furthermore, the record makes clear (see supra) that
the Circuit Court's initial investigation raised a rebuttable
presumption of prejudice. That presumption placed a duty on the
court to further investigate the totality of circumstances
surrounding Prospective Juror 20's statements to determine their
impact on jury impartiality. It did not place a duty on the
defense to conduct a parallel investigation before the entire
jury panel, via voir dire and the exercise of juror challenges,
merely to preserve its fair-trial claim. See Chin, 135 Hawai#i
at 448, 353 P.3d at 990 ("[The court's] investigation into the
totality of the circumstances includes an 'individual examination
of potentially tainted jurors, outside the presence of the other
jurors, to determine the influence, if any, of the extraneous
matters'" (quoting Williamson, 72 Haw. 102,
807 P.2d at 596)).
The dissent further concludes that the Circuit Court
did not abuse its discretion because it questioned the jurors
"directly involved with Prospective Juror 20's comments" and gave
a curative instruction to the remaining prospective jurors in the
jury pool. The phrase "directly involved with Prospective Juror
20's comments," which is repeated elsewhere in the dissent,
carries the weight of the dissent's analysis. (Emphasis added.)
The dissent attempts to cabin the prejudicial effect of Juror
20's prejudicial statements as "directly involv[ing]" only three
other prospective jurors. But the fact is, because of the
limited investigation that the Circuit Court conducted, we do not
know based on the record how many other prospective jurors, and
how many empaneled jurors, actually heard Prospective Juror 20's
4/
There is also no basis in Hawai#i law, as the dissent appears to
suggest in a footnote, that in order to preserve his argument on appeal,
Grewer also had to request that the jury pool be questioned by the court,
and/or to inform the court that failing to question the jury pool violated his
fair-trial rights.
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repeated, loud prejudicial statements in the hallway and simply
chose not to engage with her. This is why the State was careful
to argue that the statements were "contained mostly" to the
baliff and the four questioned prospective jurors. Once a
rebuttable presumption of prejudice was raised, it was incumbent
on the Circuit Court to investigate further to determine the full
extent of the effect of Prospective Juror 20's prejudicial
statements and their impact on jury impartiality. The failure to
do so in these circumstances was an abuse of discretion.
B. Grewer's Additional Contentions
We further conclude that substantial evidence supported
the jury's finding in the sentencing phase that the decedent was
sixty years of age or older. Evidence that the decedent was born
in 1950 (and was thus at least 67 at the time of her death in
2018) included Exhibit 1, the driver's license record for
"Joellen Hartman." This record specifies the licensee's year of
birth as 1950 and includes a photo that the jury could reasonably
have concluded depicted the same woman shown in court security
video footage, admitted at the guilt phase as Exhibit U, shown
entering the courthouse with Rose Doi (Doi) on June 18, 2018. At
trial, Doi identified herself in the video and explained that the
decedent was the woman she was pushing in the weelchair. The
evidence also included Exhibit 122, a portion of a medical record
for "Joellen C. 'Jodi' Hartman," specifying her year of birth as
1950.
Given our conclusions, we do not reach Grewer's
remaining contentions on appeal.
II. The State's Cross-Appeal
On cross-appeal, the State contends that the Circuit
Court abused its discretion by excluding the opinion testimony of
Martin Ishikawa, M.D. (Dr. Ishikawa) that an injury on the
decedent's right hand was a defensive wound. The State requests
that "if this . . . Court orders a new trial in this case, that
on retrial, Dr. Ishikawa be permitted to testify as to whether
certain wounds suffered by [the decedent] were defensive.
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At trial, the Circuit Court qualified Dr. Ishikawa as
an expert in anatomic and clinical pathology, with a specialty in
forensic pathology. Dr. Ishikawa performed the decedent's
autopsy. During his testimony, Dr. Ishikawa described the "wound
characteristics" of an injury on the back of the decedent's right
hand. The Circuit Court struck part of the testimony, as
follows:
Q. [By DPA] Now, is there anything about the
distribution of this injury [on the back of the decedent's
right hand] that would tell you how it may have been
sustained?
A. [By DR. ISHIKAWA] The injury in this location with
this appearance is somewhat classic for what has been termed
a defensive wound.
[DEFENSE COUNSEL]: Objection.
THE COURT: Approach.
(The following was held at the bench outside the
hearing of the jury.)
[DEFENSE COUNSEL]: Your Honor, the opinion
being rendered at this point is speculation whether or not
it's defensive or offensive wound. This is part of the
objection that we had raised in the motion in limine
regarding going beyond the qualifications of the pathologist
in this case. That's speculation whether or not this was
defensive or not or even accidental. So, I'll object.
THE COURT: [DPA].
[DPA]: Your Honor, defensive wound is a term of
art. Dr. Ishikawa is qualified as a forensic pathologist.
And as a forensic pathologist, he gives opinions as to
manner of death.
In this case, the manner of death is multiple
sharp force injuries. And the State anticipates that he
will testify this is a defensive wound and not, I guess, the
cause of [the decedent's] death.
THE COURT: I'm going to at this time overrule
the objection. But I'm going to give him an opportunity to
explain what he means by defensive wounds so he can identify
that. And then at the point in time he identifies that,
then I would be open to taking another objection, [Defense
Counsel]. It depends on the definition that he gives from
his perspective.
Okay. Because he's an expert. So I wanted to
clarify what he means that defensive wound.
[DPA]: All right.
THE COURT: Okay. Thank you.
(The following was held in open court.)
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BY [DPA]:
Q. Now, Dr. Ishikawa, what do you mean by defensive
wound?
A. I mean it has the distribution and appearance
from a forensic pathologist standpoint that would be an
injury sustained when someone is defending themselves.
[DEFENSE COUNSEL]: Objection.
THE COURT: Approach.
(The following was held at the bench outside the
hearing of the jury.)
THE COURT: I think I'm inclined to agree with
[Defense Counsel] that he can testify about the wounds. But
how the wounds happened, I going to let the jury determine
that. And so I'm going to strike that portion of the
testimony, [Defense Counsel].
[DEFENSE COUNSEL]: Okay.
THE COURT: Grant the objection to strike.
[DEFENSE COUNSEL]: Thank you.
(The following was held in open court.)
THE COURT: Ladies and gentlemen of the jury, I
granted the objection. I'm going to allow Dr. Ishikawa to
testify about the wounds. How the wounds happened, that's
for you to decide. And so I'm going to strike his testimony
regarding defensive wounds.
The State argues that under Hawai#i law, particularly
State v. Allen, No. 30332, 2013 WL 5926964 (Haw. App. Oct. 31,
2013), "a board certified pathologist may opine as to whether a
decedent's injuries were defensive." Id. at *11 ("In knife
deaths, one important type of evidence of the death's homicidal
character is the presence of defensive wounds, which occur when
the decedent is trying to 'ward off the knife.' Thus, because
defensive wounds relate to discovering the cause and manner of
death, which is within the realm of forensic pathology, the
matter falls within the scope of Dr. Goodhue's expertise."). The
State further argues that, here, Dr. Ishikawa was clearly
qualified to opine as to whether the wounds on the decedent's
right hand were defensive, and such testimony would "help
establish that [the decedent] was conscious when she was stabbed,
did not accidentally suffer a fatal stab wound, and did not die
by suicide."
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In response, Grewer argues that Dr. Ishikawa failed to
explain why "the distribution and appearance" of the wound on the
decedent's right hand made it a defensive wound, and because of
this, his opinion was "more akin to 'speculation or
possibility.'" Grewer also points out that in Allen, this court
ruled that an expert witness was qualified to render an opinion
on defensive wounds, and the trial court did not abuse its
discretion in allowing such testimony, not that such testimony
must be accepted in every instance.
Hawai#i Rules of Evidence (HRE) Rule 702 "does not
require a specific degree of certainty for the admission of
scientific or other expert testimony." State v. DeLeon, 131
Hawai#i 463, 481, 319 P.3d 382, 400 (2014). "[T]he touchstones
of admissibility for expert testimony under HRE Rule 702 are
relevance and reliability."
Id. (quoting State v. Vliet, 95
Hawai#i 94, 106,
19 P.3d 42, 54 (2001)). Here, the basis for the
Circuit Court's decision to strike the testimony at issue is
unclear. After Dr. Ishikawa explained what he meant by
"defensive wound," the circuit court stated only, "how the wounds
happened, I['m] going to let the jury determine that[,]" and then
struck the testimony at issue. To the extent the Circuit Court
concluded as a matter of law that a board-certified pathologist
such as Dr. Ishikawa could not opine as to whether a decedent's
injuries were consistent with defensive wounds, the court erred.
See Allen,
2013 WL 5926964, at *11. On retrial, if similar
testimony is offered by the State through a qualified witness,
and Grewer objects, the Circuit Court should consider the
relevance and reliability of the testimony and, as appropriate,
whether the probative value of the testimony "is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence." HRE Rule 403; see Vliet, 95 Hawai#i at 108, 111,
19
P.3d at 56, 59.
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DISSENTING OPINION BY MCCULLEN, J.
Here, the circuit court did what it was supposed to do
by questioning the prospective jurors directly involved with
Prospective Juror 20's comments. Based on this questioning, the
circuit court apparently determined the nature of the alleged
deprivation did not rise to the level of being substantially
prejudicial and could be addressed by a curative instruction.
In my view, this was not an abuse of discretion.
And even if the circuit court abused its discretion,
Defendant-Appellant Peter Grewer did not preserve for appeal his
challenge to the empaneled jury.
Thus, I respectfully dissent.
I. DISCUSSION
Following a month-long trial, a jury convicted Grewer
of murdering his landlord, a 67-year-old woman confined to a
wheelchair. Grewer timely appealed.
A. The Circuit Court Did Not Abuse Its Discretion
On appeal, Grewer contends he "was deprived of his
constitutional right to a fair trial by an impartial jury." In
particular, Grewer argues that "it is incomprehensible why the
trial court choose [sic] not to question the other jurors to
determine whether they had been exposed to similar comments by
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prospective Juror No. 20, and whether the comments had
compromised their abilities to remain fair and impartial." 1
"[W]hen a defendant in a criminal case claims a
deprivation of the right to a fair trial by an impartial jury,"
the circuit court must first "determine whether the nature of
the [alleged deprivation] rises to the level of being
substantially prejudicial." State v. Furutani, 76 Hawaiʻi 172,
180, 873 P.2d 51, 59 (1994) (quoting State v. Keliiholokai,
58
Haw. 356, 359,
569 P.2d 891, 895 (1977)). "And whether it does
rise to the level of substantial prejudice is ordinarily a
question committed to the trial court's discretion." State v.
Chin, 135 Hawai‘i 437, 445,
353 P.3d 979, 987 (2015) (quoting
Furutani, 76 Hawaiʻi at 180,
873 P.2d at 59).
Following an 18-minute recess, the circuit court
informed the parties that Prospective Juror 20 made comments to
the bailiff. The circuit court then examined the bailiff,
1 In his points of error, Grewer does not cite where in the record he
requested the jury pool be questioned or where he informed the circuit court
he believed failing to question the jury pool violated his right to a fair
trial by an impartial jury. Hawaiʻi Rules of Appellate Procedure (HRAP)
Rule 28(b)(4) (placing the burden on the appellant to state where in the
record the alleged error was brought to the court's attention).
Notably, Grewer also does not cite to the denial of his motion for
mistrial as preserving his challenge to the empaneled jury's impartiality.
HRAP Rule 28(b)(4). This makes sense as no jury was yet empaneled and
Grewer's motion was not based on the circuit court's failure to question the
jury pool.
And Grewer does not request plain error review in his points of error.
This is further evident as his standards of review and argument also make no
mention of plain error. This point should be deemed waived.
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Prospective Juror 20, and the other three prospective jurors
directly involved with Prospective Juror 20's comments.
Crucially, this means unlike State v. Lautalo the
circuit court here made inquiries to determine if Prospective
Juror 20's comments rose to the level of being substantially
prejudicial. 147 Hawaiʻi 627, 465 P.3d 1074, No. CAAP-18-
0000660,
2020 WL 3497666 at *3 (App. June 29, 2020) (mem. op.).
The court's inquiry was targeted and tailored to
immediately determine the scope of any potential prejudice. The
potential prejudice was that unidentified prospective jurors in
the hallway may have overheard Prospective Juror 20 say she felt
the defendant "looked guilty" and she "presumed" he was a
murderer.
Based on its inquiry, the circuit court concluded that
Prospective Juror 20's comments were self-serving because she
did not want to be there. With no other identified jurors
directly involved with Prospective Juror 20's comments for the
circuit court to individually question, it removed Prospective
Juror 20. And by not immediately removing the other three
prospective jurors involved, it may be reasonably inferred that
the circuit court determined they were not tainted. 2
2 For example, when one of the prospective jurors involved with
Prospective Juror 20's comment was asked, "Would that affect your
perception," the prospective juror replied "Oh, god, no."
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But recognizing that the substance of Prospective
Juror 20's comments were unclear, the circuit court took further
steps to ensure a fair trial by giving a curative instruction
addressing the possibility unidentified prospective jurors may
have overheard her comments in the hallway. 3 See State v.
Webster, 94 Hawaiʻi 241, 248, 11 P.3d 466, 473 (2000) (it is well
established a "jury is presumed to follow the court's
instructions").
This instruction occurred less than an hour after the
circuit court learned of the comments, eschewed accentuation of
Prospective Juror 20's remarks, and emphasized "the verdict must
be based only on the evidence received in the courtroom and
instructions on the law." See People v. Mersman, 148 P.3d 199,
203-04 (Colo. App. 2006) (determining an instruction to reject a
prospective juror's comment that he knew the defendant's only
witness "through the drug scene" and render a verdict based on
the evidence presented in the courtroom sufficiently cured any
harm).
3 Grewer did not object to the curative instruction given. Hawaiʻi
Revised Statutes § 641-16(c) (2016) (prohibiting reversal based on an
instruction to the jury where the alleged error in giving the instruction was
not brought to the court's attention).
Grewer also does not rebut the presumption that the curative
instruction was followed. State v. Webster, 94 Hawai‘i 241, 248, 11 P.3d 466,
473 (2000).
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I pause to emphasize two factors that are critical in
reviewing the circuit court's course of action in this case.
First, and to reiterate, the inquiry into whether
Prospective Juror 20's comments "rise to the level of
substantial prejudice is ordinarily a question committed to the
trial court's discretion." Chin, 135 Hawaiʻi at 445, 353 P.3d at
987 (citation omitted).
Second, the Keliiholokai line of supreme court cases
discussing inquiry into juror misconduct had already empaneled
juries when the misconduct came to light. Keliiholokai, 58 Haw.
at 357,
569 P.2d at 893; see Chin, 135 Hawaiʻi at 441,
353 P.3d
at 983 ("His [d]eclaration stated that, during trial" misconduct
occurred); Furutani, 76 Hawaiʻi at 177, 873 P.2d at 56 (where
during deliberations it became apparent jurors had concealed
their bias during voir dire); State v. Williamson,
72 Haw. 97,
99,
807 P.2d 593, 595 (1991) ("After the jury ended
deliberations . . . but before the verdict was returned, the
bailiff" discovered the misconduct).
These factors should be kept in mind as this court
makes "an independent examination of the totality of the
circumstances[.]" Keliiholokai, 58 Haw. at 360,
569 P.2d at
895.
In reviewing the totality of the circumstances here,
the circuit court apparently determined that the nature of the
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alleged deprivation (unidentified prospective jurors possibly
overhearing Prospective Juror 20's comments) did not rise to the
level of being substantially prejudicial, which was within the
scope of its discretion to determine. Chin, 135 Hawai‘i at 445,
353 P.3d at 987.
And this determination was sound because, unlike
exposure to prior bad acts or newspaper articles, Prospective
Juror 20's comments were her personal opinions based on her
feelings and her perception of Grewer's appearance, something
other jurors could easily reject. Skilling v. United States,
561 U.S. 358, 383 (2010) ("A jury may have difficulty in
disbelieving or forgetting a defendant's opinion of his own
guilt but have no difficulty in rejecting the opinions of others
because they may not be well-founded.") (citation omitted).
Simply put, the circuit court did not abuse its
discretion when it (1) conducted an inquiry by questioning the
bailiff, Prospective Juror 20, and the other three prospective
jurors directly involved, and (2) instructed the jury pool to
reject comments about the case or defendant if overheard and
that "the verdict must be based only on the evidence received in
the courtroom and the instructions on the law."
The circuit court, here, acted well within its
discretion.
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B. Grewer Waived A Challenge To The Empaneled Jury
The totality of circumstances also shows Grewer
abandoned challenging the empaneled jurors for bias or prejudice
based on unidentified prospective jurors possibly overhearing
Prospective Juror 20's comments when he passed for cause. Thus,
he waived this issue for appeal.
"A defendant in a criminal case cannot sit in silence
and accept a juror as unprejudiced and fair and then
subsequently allege error in the retention of the same juror."
State v. Graham, 70 Haw. 627, 634,
780 P.2d 1103, 1107-08 (1989)
(citation omitted). A challenge for cause is defined as "[a]
party's challenge supported by a specified reason, such as bias
or prejudice, that would disqualify that potential juror."
Challenge, Black's Law Dictionary 287 (12th ed. 2024).
As to the first five jurors seated before Prospective
Juror 20's comments, Grewer conducted a 30-minute voir dire
after the court excused Prospective Juror 20 and gave a curative
instruction. Grewer could have asked questions about
Prospective Juror 20's comments to attempt to make a record of
bias, but did not. See Sayedzada v. State, 419 P.3d 184, 194
(Nev. 2018) (explaining that "a party waives the right to
challenge a juror's presence on the jury on appeal where the
party's appellate argument is based on facts known to the party
during voir dire; the party consciously elected not to pursue,
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or abandoned, a challenge for cause on that basis; and the party
accepted the juror's presence on the jury"). At the end of voir
dire, Grewer passed for cause, meaning he had no good cause to
request any of those five jurors be excused.
Each of the remaining seven jurors seated after
Prospective Juror 20's comments and the circuit court's curative
instruction expressly stated they could be fair and impartial.
Grewer questioned these jurors, and passed for cause. See State
v. Johnson, 188 P.3d 912, 921 (Idaho 2008) (explaining that "the
failure to challenge a juror for cause 'indicates a satisfaction
with the jury as finally constituted'") (citation omitted).
Grewer also waived two of his twelve peremptory
challenges, either of which could have been used to remove any
of these jurors. See State v. Iuli, 101 Hawaiʻi 196, 205-06, 65
P.3d 143, 152-53 (2003) (holding a defendant failed to
demonstrate their rights were affected because they did not
request additional peremptory challenges or identify a specific
juror they would have dismissed). This strongly suggests Grewer
believed the empaneled jurors were fair and impartial.
Grewer examined all jurors on the empaneled jury –
which did not include anyone directly involved with Prospective
Juror 20's comments – and raised no challenges to their
impartiality. Thus, Grewer waived any challenge to the
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empaneled jury's impartiality based on unidentified prospective
jurors possibly overhearing Prospective Juror 20's comments.
II. CONCLUSION
In conclusion, I would not vacate Grewer's murder
conviction and remand for a new trial based on Grewer's
contention that the circuit court should have questioned all
prospective jurors in the jury pool.
The circuit court did not abuse its discretion by
questioning the prospective jurors directly involved and giving
a curative instruction to the jury pool. And even if it abused
its discretion, Grewer passed for cause the empaneled jurors
and, thus, waived this issue.
In my view, today's decision erodes the discretion of
our trial courts and ignores the totality of the circumstances.
Thus, I respectfully dissent.
/s/ Sonja M.P. McCullen
Associate Judge
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