Gouveia v. Espinda et al

Filing 22

ORDER GRANTING HABEAS PETITION re 1 - Signed by JUDGE SUSAN OKI MOLLWAY on 8/25/2017. "The court grants Gouveia's habeas petition under § 2241, ruling that his federal right to be free of double jeopardy will be violated by a retrial under the circumstances presented here. The Clerk of Court is directed to enter judgment in favor of Gouveia and to close this case." (emt, )CERTIFICATE OF SERVICEParticipants registered to r eceive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROYCE C. GOUVEIA,

)
)
Petitioner,
)
)
vs.
)
)
NOLAN ESPINDA, Director of
)
the Department of Public
)
Safety for the State of
)
Hawaii; and DOUG CHIN,
)
Attorney General of the State )
of Hawaii,
)
)
Respondents.
)
_____________________________ )

Civ. No. 17-00021 SOM/KJM
ORDER GRANTING HABEAS
PETITION

ORDER GRANTING HABEAS PETITION
I.

INTRODUCTION.
Petitioner Royce C. Gouveia is scheduled to be retried

in state court for manslaughter.

The Hawaii state courts have

determined that his double jeopardy rights will not be violated
by a retrial.

Gouveia now seeks relief from this court, arguing

that the Double Jeopardy Clause of the federal Constitution
forbids the upcoming trial.
Gouveia was tried in state circuit court for
manslaughter in violation of section 707-702(1)(a) of Hawaii
Revised Statutes.

After the jury had reached a verdict, but

without reading the verdict, the state trial judge declared a
mistrial.

The judge ruled that the jury deliberations and

verdict were tainted by the jurors’ concern about their personal
safety, given their comments about a glaring man in the audience

during trial.

The trial judge sealed the verdict without opening

it and concluded that a mistrial was supported by manifest
necessity.

In the trial judge’s opinion, nothing short of a

mistrial could cure the effect of the menacing man, and Gouveia’s
double jeopardy rights would not be violated by a retrial on the
manslaughter charge.
On appeal, the Intermediate Court of Appeals of the
State of Hawaii (“ICA”) opened the sealed verdict and learned
that the jury had voted to acquit Gouveia of the charges.
ICA then affirmed the trial court.

The

The Hawaii Supreme Court

granted certiorari and also affirmed.

This habeas petition

followed.
Gouveia asserts that, given the acquittal, any retrial
would violate his Fifth Amendment right not to be placed in
double jeopardy.

Gouveia also argues that the mistrial

declaration was not supported by manifest necessity.

This court

determines that the verdict of acquittal was not final at the
time a mistrial was declared, but concludes that a mistrial was
not manifestly necessary.

This court therefore grants Gouveia’s

habeas petition, ruling that a retrial would violate his federal
double jeopardy rights.

2

II.

BACKGROUND FACTS.
Gouveia was indicted in October 2012 for allegedly

having committed manslaughter in violation of section 707702(1)(a) of Hawaii Revised Statutes.

Trial commenced in state

court on Tuesday, September 3, 2013, with jury selection,
preliminary instructions, and opening statements.

By Friday,

September 6, 2013, the jury was instructed, closing arguments
were presented, and the jury began deliberations.

See Docket

Sheet, available through eCourt KôKua on the Hawaii State
Judiciary website, www.courts.state.hi.us (input CaseID
1PC121001474 under “Case Search” after entering eCourt KôKua)
(last visited August 15, 2017).
In the afternoon of September 6, 2013, the jury sent
simultaneous notes to the court.

In Communication No. 3 From the

Jury, which indicates that it was signed at 2:20 p.m., the jury
indicated, “We reached a verdict.”

ECF No. 3, PageID # 56.

Communication No. 2 From the Jury indicates that, notwithstanding
being numbered “2,” it was actually signed at 2:24 p.m., after
the later-numbered Communication No. 3 had been signed.
Communication No. 2 stated, “Concern.

This morning on

prosecutor’s side of courtroom there was a man, shaved head,
glaring and whistling at defendant.
safety as jurors.”

We have concern for our

ECF No. 3, PageID # 58.

3

The parties convened in open court to discuss the
notes.

The trial judge stated:
My intention, unless counsel, you know, can
persuade me otherwise, is just to take no
action on this, take the verdict, and then
I’m going to do what I normally do, which is
ask them if I can come in and talk to them
right afterwards and then address this with
them basically one-on-one, meeting with them
in private after we take the verdict and
formally stand adjourned.

ECF No. 13-3, PageID # 349.
At that point, the parties asked that the jurors be
individually voir dired about Communication No. 2.

See id.

The

following table is a summary of the individual juror voir dire.
Juror

Saw Man
Glaring and
Whistling at
Gouveia?

Was Incident
Talked About
During
Deliberations?

Any Concern For
Safety?

Any Bearing
on Decision?

Mr. Valencia

No. (PageID
# 353)

Yes. For a few
minutes at the
end. (PageID
# 354)

Not concerned
for own safety.
(PageID # 355);
discussion
related to
jurors’ concern
for their
safety. (PageID
# 356)

No. (PageID
# 355)

Ms. Wilcox

No. (PageID
# 358)

Yes. In the
beginning for
about 5 minutes.
(PageID # 35859);

A few jurors
said they were a
little bit
scared. (PageID
# 360)

No. (PageID
# 360)

Also, brought up
after verdict
was reached.
(PageID # 361)

4

Ms. Boehm

Yes. Heard
whistling
from
prosecutor’s
side.
(PageID
# 369)

No. Only after
the verdict was
reached.
(PageID # 365)

A few of the
jurors expressed
concern for
their safety.
(PageID #s 366
and 370)

No. (PageID
# 367)

Ms. Foster

Yes. (PageID
#s 373 and
376)

No. After the
verdict was
reached.
(PageID #s 373
and 375)

Yes. Had
concern for own
safety. (PageID
#s 374 and 377)

No. (PageID
# 373-74)

Ms. Hanashiro

No. (PageID
# 381)

Yes. As soon as
deliberations
started for
about 10
minutes.
(PageID #s 38284);

Yes. Jurors
were slightly
intimidated and
concerned.
(PageID # 386)

No. (PageID
# 383)

Also brought up
towards the end.
(PageID # 387)
Ms. Li

Yes.
(PageID
# 388)

Yes, in the
“middle-early”
of deliberations
and again at the
end. (PageID
# 389)

Was not
concerned when
she saw it. But
there was
concern after
the verdict.
(PageID # 392)

No. (PageID
#s 390-91)

Juror #7
(unidentified
but referred
to as Ms. Li
when excused,
although
apparently
not the same
person as the
preceding
juror)

Yes.
(PageID
# 393)

Yes. Toward end
of deliberations
for a few
minutes. (PageID
# 394)

Was not
concerned for
herself.
(PageID # 393)

No. (PageID
#s 394-95)

5

Mr. Chandler

No. (PageID
# 406)

Yes. For a
minute or so
when jurors went
to deliberate,
and then again
after verdict
had been
reached. (PageID
# 407)

Jurors did not
seem scared.
(PageID # 408)

No. (PageID
# 407)

Mr. Masuno

No. (PageID
# 410)

No, only after
verdict reached.
(PageID #s 41112)

There was
concern for the
safety of some
of the female
jurors. (PageID
#s 414-15)

No. (PageID
# 413)

Ms. Mau

No. (PageID
# 417)

No. (PageID
# 417)

No. (PageID
# 417)

No. (PageID
# 417)

Ms. Kama

No. (PageID
# 422)

Yes. At the end
and after
verdict reached.
(PageID #s 422,
425)

Yes. Jurors
were concerned.
(PageID # 426)

Yes. Jurors
were
concerned
about their
safety such
that it
impacted
their
decision.
(PageID
# 426)

Ms. Chun

No. (PageID
# 428)

Yes, as soon as
jurors went into
the deliberation
room or the
“early middle.”
(PageID #s 43031)

No. (PageID
#s 429-30)

At the conclusion of the individual juror voir dire,
the trial judge noted that the verdict was unknown and asked
defense counsel if Gouveia was moving for a mistrial.

6

ECF No.

13-3, PageID # 435.
prosecution did.

Gouveia did not make such a motion, but the

Id.

After hearing argument, the trial judge repeated that
there was no way of knowing what the verdict was, but indicated
that it was “pretty clear . . . what everybody thinks the verdict
is.”

Id., PageID # 451.

He stated that, whatever the verdict

was, it was “immaterial” to his ruling on the mistrial motion.
Id.
Based on the individual juror voir dire, the trial
judge determined that at least some of the jurors had a “really
serious concern for their personal safety.”

He reasoned that

four or five of the jurors had stated that the subject came up as
one of the first things in the deliberation room.

Other

testimony supported that impression, including Ms. Kama’s
statement that the situation affected deliberations.
# 452.

Id., PageID

The judge stated, “It frankly beggars my reason and

common sense that it would have no bearing on the deliberations
in this case and therefore the verdict.”

Id.

He then declared a

mistrial based on “manifest necessity,” sealing the verdict for
future purposes without ever determining what the verdict
actually was.

Id.

He did not find credible the eleven jurors

(other than Ms. Kama) who said that the glaring man had not
affected the verdict, given the statements by at least three or

7

four of them that they had concerns for their safety.

Id.,

PageID #s 452-53.
On October 22, 2013, the trial judge followed up his
oral ruling with written Findings of Fact, Conclusions of Law and
Order Granting State’s Oral Motion for Mistrial Based on Manifest
Necessity.

ECF No. 13-3, PageID #s 172-77.

He made the

following findings of fact:
7. The Court questioned the jurors
individually and both counsel for the State
and for Defendant were given adequate
opportunity to question each juror regarding
Communication No. 2.
8. Four jurors witnessed an individual seated
on the prosecutor’s side of the courtroom
whistling and/or glaring at Defendant
(“incident”) prior to commencing
deliberation.
9. Seven of the jurors indicated discussion
of the incident occurred before the verdict,
ranging from within ten minutes of commencing
deliberation to the end of deliberation. At
least four of these seven jurors indicated
discussion of the incident occurred at the
beginning of deliberations, specifically that
it was one of the first topics discussed.
10. During the discussion of the incident
prior to verdict, the jurors who actually
observed the incident communicated to the
other jurors fear for their own safety.
11. Some of the juror answers regarding
Communication No. 2 and the incident included
the following:
a. Some jurors were worried about
retaliation;

8

b. The unidentified male’s look appeared
hostile during the incident;
c. Some jurors were concerned;
d. Some jurors felt intimidated; and
e. The incident impacted other jurors’
decisions.
12. Although all twelve jurors indicated that
neither the incident itself nor the
discussion regarding the incident during the
deliberations affected their own decision, at
least one juror indicated that the incident
appeared to have impacted the deliberation
process and decision.
13. The incident was not part of the evidence
in the case at hand.
14. The verdict was never taken for this
case. At no point during the proceedings did
the Court take, read or otherwise get any
indication of the jury’s verdict.
15. The Court finds that the jurors’
statements that the incident did not affect
their decisionmaking process and/or
deliberations are not credible as evidenced
by the plain language of Communication No. 2
and answers of the voir dire of each
individual juror.
16. The Court further finds that the concern
for personal safety as expressed by the
jurors had an impact on the jurors’ decisions
based on the totality of the circumstances
present and thus its effect on the subsequent verdict was not
harmless beyond a reasonable doubt.
ECF No. 13-3, PageID #s 173-75.
The trial judge concluded that, although no juror said
that the glaring man had affected his or her own decisionmaking
process, “reason and common sense dictates that the incident did
9

have an effect on the deliberations hence the impartiality of the
jurors, which [wa]s not harmless beyond a reasonable doubt.”
Id., PageID # 176.

Accordingly, the trial judge ruled that the

jury had not impartially deliberated on a verdict.

Id.

The

trial judge stated that there was no remedy short of declaring a
mistrial “as neither a continuance nor a further jury instruction
would appropriately address the issue of an impartial jury and
its subsequent tainted verdict.”

Id.

He said that the bar on

double jeopardy did not preclude Gouveia’s retrial because, based
on the totality of the circumstances, there was a “manifest
necessity” for the mistrial, which he defined as a sudden and
overwhelming emergency beyond the control of the court that was
unforeseeable and made it no longer possible to conduct the trial
or to reach a fair result.

Id., PageID # 177.

On December 19, 2013, following the mistrial
declaration, the trial court denied Gouviea’s motion to dismiss
the charges based on double jeopardy.

See Appeal From the Order

Denying Motion to Dismiss for Violation of Double Jeopardy on
December 19, 2013.

ECF No. 13-3, PageID # 148.

Gouveia

appealed, arguing in his Opening Brief to the ICA that (1) the
trial court had erred in declaring a mistrial (PageID #s 160-66);
and (2) the trial court had erred in denying the motion to
dismiss based on the violation of Gouveia’s double jeopardy

10

rights under the United States and Hawaii constitutions (PageID
#s 166-67).
On April 30, 2015, the ICA, in a 2-1 decision, affirmed
the trial court’s rulings, holding that, because the trial judge
had not abused his discretion in finding a manifest necessity to
declare a mistrial, Gouveia’s constitutional right to be free of
double jeopardy would not be implicated in any retrial.

See

Hawaii v. Gouveia, 135 Haw. 219, 348 P.3d 496, 2015 WL 2066780
(Ct. App. Apr. 30, 2015).

The ICA unsealed the verdict, in which

the jury had found Gouveia not guilty.

2015 WL 2066780, *7; ECF

No. 8, PageID # 104 (copy of verdict).
On July 2, 2015, Gouveia sought a writ of certiorari
from the Hawaii Supreme Court.

See ECF No. 13-3, PageID # 228.

Gouveia again argued that the trial court had erroneously granted
the motion for mistrial.

PageID #s 232-235.

He contended, “As

previously argued, the trial court’s finding of manifest
necessity was erroneous.

Therefore the denial of Gouveia’s

Motion to Dismiss for Violation of Double Jeopardy and the ICA’s
ruling affirming the denial were erroneous.”

PageID # 235.

The Hawaii Supreme Court granted certiorari.
WL 4756475 (Haw. Aug. 10, 2015).

On October 26, 2016, the Hawaii

Supreme Court affirmed in a 4-1 decision.
P.3d 846 (2016).

11

See 2015

See 139 Haw. 70, 384

On January 18, 2017, Gouveia filed the present
petition.
III.

See ECF No. 1.
STANDARD OF REVIEW.
Gouveia originally requested relief under the

Antiterrorism and Effective Death Penalty Act, 28 U.S.C.
§ 2254(d), which provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim-(1) resulted in a decision that
to, or involved an unreasonable
of, clearly established Federal
determined by the Supreme Court
States; or

was contrary
application
law, as
of the United

(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
Respondents correctly argue (and Gouveia concedes) that
§ 2254(d) is inapplicable because Gouveia is not currently “in
custody pursuant to the judgment of a State court.”
judgment against him at all.

There is no

Instead, his case is set to be

retried.
But while the absence of a state judgment renders
§ 2254 inapplicable, it does not leave Gouveia without a federal
avenue for challenging his retrial.
12

This court reviews Gouveia’s

petition under 28 U.S.C. § 2241, which provides federal courts
with a general grant of habeas authority.

See Frantz v. Hazey,

533 F.3d 724, 735 (9th Cir. 2008) (en banc).
An example of precisely this approach is found in Stow
v. Murashige, 389 F.3d 880, 885 (9th Cir. 2004), a case that
involved the present judge and the same attorney for a
petitioner.

In Stow, a double jeopardy claim had similarly been

asserted under § 2254.

Noting that the petitioner was not “in

custody pursuant to the judgment of a State court” at the time he
filed his petition, the Ninth Circuit stated that the threshold
requirement for § 2254 had not been satisfied.

Id.

Instead of

denying the § 2254 petition on that basis, the Ninth Circuit
recognized that the petitioner had raised a double jeopardy
challenge to his retrial that could be “properly treated under
§ 2241,” which allows for pretrial habeas challenges.

Id. at 885

and 888; accord Harrison v. Gillespie, 640 F.3d 888, 896 (9th
Cir. 2011) (“Our precedent makes clear that 28 U.S.C. § 2241 is
the proper vehicle for asserting a double jeopardy claim prior to
(or during the pendency of) a successive trial.”).

This court

construes Gouveia’s § 2254 petition as a § 2241 petition.

This

court has allowed supplemental briefing to alleviate any possible
prejudice to Respondents relating to consideration of Gouveia’s
habeas petition as one under § 2241.

13

Section 2241 does not require a petitioner to be in
custody pursuant to a state judgment, but it does require a
petitioner to be in custody.

Citing Wilson v. Belleque, 554 F.3d

816, 821 (9th Cir. 2009), which noted that “‘custody’ is a
jurisdictional prerequisite to habeas review under § 2241(c)(3),”
Respondents argue that Gouveia is not “in custody” such that
§ 2241 applies.

See ECF No. 18, PageID # 573-74.

This court is

not persuaded.
Gouveia is on “supervised release” in the state system,
which, unlike “supervised release” in the federal system, occurs
pretrial.

Gouveia is, in essence, equivalent to a federal

defendant who is subject to pretrial release conditions monitored
by a United States Pretrial Services Officer.
As Belleque recognizes, “custody” is defined broadly
and “has not been restricted to situations in which the applicant
is in actual, physical custody.”
citation omitted).

Id. at 822 (quotation marks and

Instead, the “custody” requirement is

satisfied when there is a “significant restraint” on a person’s
liberty that is not shared by the public generally.

Id.

The

Ninth Circuit has noted that the custodial requirement has been
met in cases involving prisoners released on parole, on their own
recognizance, and free on bail.

Id.

It is undisputed that Gouveia must comply with
restrictive conditions.

See ECF No. 16-1, PageID #s 495-96.

14

These conditions govern where he may reside, with whom he may
have contact, his consumption of alcohol, his attendance at
substance abuse treatment at his expense, employment, an
extradition waiver, and his possession of dangerous weapons,
firearms, or ammunition.

Id., PageID #s 497, 500-01.

These are

substantial conditions that are not imposed on the public
generally.

The totality of the conditions renders Gouveia in

“custody” for purposes of § 2241.
A petition under § 2241, unlike one under § 2254, is
not subject to the heightened standards set forth in 28 U.S.C.
§ 2254(d).

Stow, 389 F.3d at 886.

Habeas relief is proper under

§ 2241 when the petitioner shows that a retrial would violate his
or her Fifth Amendment right against double jeopardy.

The § 2241

petitioner need not show that the state court decision was
contrary to or an unreasonable application of clearly established
federal law, as required by § 2254(d).

Id. at 888.

In examining

Gouveia’s petition under § 2241, this court therefore focuses on
whether his double jeopardy right would be violated by the
scheduled retrial.

15

IV.

THERE IS NO JURISDICTIONAL, PROCEDURAL, OR OTHER HURDLE
TO THIS COURT’S CONSIDERATION OF THE DOUBLE JEOPARDY
ISSUE.
A.

The Rooker-Feldman Doctrine is Inapplicable.

In its Supplemental Memorandum of July 31, 2017,
Respondents argue that this court lacks jurisdiction pursuant to
the Rooker-Feldman doctrine.

See ECF No. 18.

That argument

lacks merit.
As a general principle, this court may not exercise
appellate jurisdiction over state court decisions.

District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16
(1923).

This rule, commonly known as the Rooker-Feldman

doctrine, bars a losing party in state court from seeking what
amounts to appellate review of the state-court judgment in
federal court based on the losing party’s claim that the state
judgment itself violates the loser’s federal rights.

See

Bennett v. Yoshina, 140 F.3d 1218, 1223 (9th Cir. 1998).
However, it is well settled that the Rooker-Feldman
doctrine is inapplicable to cases seeking habeas corpus relief.
See In re Gruntz, 202 F.3d 1074, 1079 (9th Cir. 2000) (“It is
well-settled that the Rooker–Feldman doctrine does not touch the
writ of habeas corpus.”); Martin v. Virga, 2012 WL 1622663, *2
(N.D. Cal. May 9, 2012) (“regardless of the Rooker–Feldman
doctrine, a federal court has jurisdiction to consider a habeas
16

corpus petition which, in effect, is a challenge to the final
judgment of a state court in a criminal action”).
B.

Younger Abstention is Inapplicable.

Respondents’ Supplemental Memorandum also argues that
this court should abstain from this matter pursuant to Younger v.
Harris, 401 U.S. 37 (1971), which “forbids federal courts from
unduly interfering with pending state court proceedings that
implicate important state interests.”

Potrero Hills Landfill,

Inc. v. City of Solano, 657 F.3d 876, 881 (9th Cir. 2011)
(quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n,
457 U.S. 423, 432 (1982) (quotation marks omitted)).

This

argument is also unpersuasive.
In Younger, the Supreme Court held that a federal court
may not interfere with a pending criminal prosecution absent
extraordinary circumstances.

Logan v. United States Natl. Ass’n,

722 F.3d 1163, 1167 (9th Cir. 2013).

This principle has been

extended to interference with some civil cases.

Id.

Younger

abstention applies when there is a state proceeding that is
(1) ongoing; (2) implicates important state interests; and
(3) provides an adequate opportunity to raise federal questions;
and (4) when the federal action would enjoin the state proceeding
or have the practical effect of doing so.

Id.

But a double

jeopardy claim is an exception to the Younger abstention
doctrine.

Wilson v. Czerniak, 355 F.3d 1151, 1157 (9th Cir.
17

2004) (“double jeopardy claims present an exception to the
general rule requiring federal courts to abstain from interfering
with pending state proceedings”); Mannes v. Gillespie, 967 F.2d
1310, 1312 (9th Cir. 1992) (same); Schillaci v. Peyton, 328 F.
Supp. 2d 1103, 1105 (D. Haw. 2004) (same).

Accordingly, Younger

abstention is inapplicable.
C.

Gouveia Exhausted His Double Jeopardy Claim.

“As a prudential matter, courts require that habeas
petitioners exhaust all available judicial and administrative
remedies before seeking relief under § 2241.”
678 F.3d 1042, 1045 (9th Cir. 2012).

Ward v. Chavez,

Citing Cooper v. Neven, 641

F.3d 322, 326-27 (9th Cir. 2011), Respondents argue that Gouveia
failed to exhaust his double jeopardy claim by presenting it to
the highest court of Hawaii.

See ECF No. 18, PageID # 574.

This

court disagrees.
Gouveia filed a motion to dismiss on Hawaii and federal
double jeopardy grounds with the trial court.

When the trial

court denied that motion, he appealed that denial to the ICA,
contending that his Hawaii and federal rights to be free of
double jeopardy had been violated and that the trial court had
abused its discretion in determining the mistrial was supported
by manifest necessity.

See Gouveia, 2015 WL 2066780, at *11.

After the ICA affirmed, Gouveia sought a writ of certiorari from
the Hawaii Supreme court, arguing that the ICA ruling was
18

erroneous.

ECF No. 13-3, PageID # 235 (“As previously argued,

the trial court’s finding of manifest necessity was erroneous.
Therefore, the denial of Gouveia’s Motion to Dismiss for
Violation of Double Jeopardy and the ICA’s affirming the denial
were erroneous.”).

Gouveia properly exhausted his Fifth

Amendment double jeopardy claim.
This court does not agree with Respondents that Gouveia
failed to properly exhaust his remedies because he did not
present the “operative facts” to the Hawaii Supreme Court.
See ECF No. 18, PageID # 575-77.

Respondents make no suggestion

that Gouveia failed to present the “operative facts” to the ICA.
Id.

In fact, Gouveia expressly argued to the ICA with references

to relevant facts that the mistrial declaration was not supported
by manifest necessity and that the trial court had erroneously
denied Gouveia’s motion to dismiss on state and federal double
jeopardy grounds.

See ECF No. 13-3, PageID # 165-67 (arguing

that the verdict was untainted, that the trial court let the jury
reach a verdict but refused to take it, and that retrial was
barred because the mistrial declaration was not supported by
manifest necessity).
In his application for a writ of certiorari from the
Hawaii Supreme Court, Gouveia argued that each juror had been
impartial in his or her decisionmaking process and that the
jurors’ individual verdict determinations had not been improperly

19

influenced.

See ECF No. 13-3, PageID #s 228, 234.

Gouveia then

relied on Chief Judge Craig Nakamura’s dissent in the ICA
decision.

See id., PageID # 235.

That dissent stated, “In my

view, the Circuit Court of the First Circuit (Circuit Court)
abused its discretion in concluding that manifest necessity
existed for a mistrial.”

Hawaii v. Gouveia, 2015 WL 2066780, *11

(Ct. App. Haw. Apr. 30, 2015).

Chief Judge Nakamura noted that

the “jurors’ expression of concern for their personal safety due
to the incident did not automatically or necessarily mean that
the jurors would be incapable of rendering a fair and impartial
decision.”

2015 WL 2066780 at *13.

Chief Judge Nakamura

disagreed with the trial judge’s determination of manifest
necessity, which was based on the jurors’ expressed concerns for
their personal safety.

Id. at *12 to *13.

The certiorari

application also argued that, because manifest necessity was
lacking, reprosecution was barred by double jeopardy and that the
trial court had erroneously denied Gouveia’s motion to dismiss
based on double jeopardy grounds.

ECF No. 13-3, PageID # 235.

Under these circumstances, it cannot be said that Gouveia failed
to adequately raise to the Hawaii Supreme Court the very double
jeopardy claim he raises here.

20

V.

DOUBLE JEOPARDY ISSUE.
A.

Legal Background.
1.

The Double Jeopardy Clause Prohibits a
Retrial After an Acquittal.

In relevant part, the Fifth Amendment to our nation’s
Constitution, known as the Double Jeopardy Clause, declares
“[N]or shall any person be subject for the same offence to be
twice put in jeopardy of life or limb.”

This Double Jeopardy

Clause provides three related protections: (1) it prohibits a
second prosecution for the same offense after acquittal; (2) it
prohibits a second prosecution for the same offense after
conviction; and (3) it prohibits multiple punishments for the
same offense.
(1975).

See United States v. Wilson, 420 U.S. 332, 343

At issue here is the first of these protections, which

the Supreme Court in United States v. Martin Linen Supply Co.,
430 U.S. 564, 571 (1977), characterized as “[p]erhaps the most
fundamental rule in the history of double jeopardy
jurisprudence.”
The policy behind the Double Jeopardy Clause “is the
concern that permitting the sovereign freely to subject the
citizen to a second trial for the same offense would arm
Government with a potent instrument of oppression.”
The Clause, therefore, guarantees that the
State shall not be permitted to make repeated
attempts to convict the accused, “thereby
subjecting him to embarrassment, expense and
21

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.”
Martin Linen, 430 U.S. at 569 (quoting Green v. United States,
355 U.S. 184, 187-188 (1957)); see United States v. Bates, 917
F.2d 388, 392 (9th Cir. 1990) (“Criminal defendants have a right
to have the jury first impaneled to try them reach a verdict.”).
The Supreme Court has noted that “the protection of the Double
Jeopardy Clause by its terms applies only if there has been some
event, such as an acquittal, which terminates the original
jeopardy.”

Richardson v. United States, 468 U.S. 317, 325

(1984).
The Double Jeopardy Clause’s protection against retrial
for the same offense was at issue in Ball v. United States, 163
U.S. 662, 671 (1896), which involved a murder charge brought
against three men.

A jury found two of the defendants guilty but

acquitted the third, Millard F. Ball.

The trial court discharged

Ball and judged the other two defendants guilty, sentencing them
to death.

Id. at 664.

The convictions of the two defendants

were reversed on appeal because the indictment was insufficient.
Id. at 664-65.

Despite Ball’s acquittal in the first trial, all

three defendants were reindicted.

Over objections by all of the

defendants based on double jeopardy, all three were then retried
and convicted of murder.

Id. at 665-66.

The Supreme Court held

that, because Ball had already been acquitted, his retrial
22

violated the Double Jeopardy Clause.

Id. at 669-71.

The retrial

of the other two defendants, by contrast, did not violate the
Double Jeopardy Clause.

Id. at 672.

Martin Linen also involved the first double jeopardy
protection.

After the jury was deadlocked and discharged, the

trial court entertained motions for judgment of acquittal, then
entered judgments of acquittal.

430 U.S. at 565-67.

The issue

before the Supreme Court was whether the government could appeal
the judgments of acquittal.

The Court began its examination of

the issue by noting that the Double Jeopardy Clause was
implicated “only when the accused has actually been placed in
jeopardy.”

Id. at 569.

Jeopardy attaches when the jury is

empaneled and sworn, or, in the case of a bench trial, when the
judge begins to receive evidence.

Id.

The Supreme Court noted

that the Double Jeopardy Clause was not implicated when a
government appeal would not lead to successive prosecutions.

The

government could, for example, appeal a post-conviction dismissal
of an indictment, as a reversal would merely reinstate the
conviction.

Id. at 570.

However, when a judgment of acquittal

has issued, a reversal on appeal would require a new trial, or at
least some other proceeding devoted to the resolution of factual
issues going to the elements of the offense charged.
retrial would violate the Double Jeopardy Clause.

23

Such a

Id.

The Supreme Court further explained in Fong Foo v.
United States, 369 U.S. 141 (1962), that even an erroneous
acquittal prevents a retrial.

In Fong Foo, the trial court

directed the jury to return a verdict of acquittal because of
prosecutorial misconduct and/or a lack of credible testimony.
After a formal judgment of acquittal was entered, the government
appealed, arguing that the judgment of acquittal should be
vacated and the case retried.

The First Circuit, concluding that

the trial judge had not had the authority to direct a judgment of
acquittal, set aside the acquittal and ordered a retrial.
Supreme Court reversed.

The

Because the defendants had been tried

under a valid indictment in a court with subject matter
jurisdiction, and because the trial did not terminate before the
entry of the judgment of acquittal, the Supreme Court held that,
regardless of any trial court error in directing a judgment of
acquittal for the defendants, they could not be retried without
violating the Double Jeopardy Clause.
2.

Id. at 143.

The Double Jeopardy Clause Prohibits a
Retrial When A Mistrial Has Been Declared
After Jeopardy Attaches Unless the Defendant
Consents or the Mistrial Determination is
Supported by Manifest Necessity.

“Because jeopardy attaches before the judgment becomes
final, the constitutional protection also embraces the
defendant’s valued right to have his trial completed by a
particular tribunal.”

Arizona v. Washington, 434 U.S. 497, 503
24

(1978) (quotation marks and citation omitted).

The Supreme Court

has recognized that there are multiple “circumstances that may
make it necessary to discharge a jury before a trial is
concluded, and because those circumstances do not invariably
create unfairness to the accused, his valued right to have the
trial concluded by a particular tribunal is sometimes subordinate
to the public interest in affording the prosecutor one full and
fair opportunity to present his evidence to an impartial jury.”
Id. at 505.

“If a case is dismissed after jeopardy attaches but

before the jury reaches a verdict, a defendant may be tried again
for the same crime only in two circumstances: (1) if he consents
to the dismissal; or (2) if the district court determines that
the dismissal was required by “‘manifest necessity.’”

United

States v. Bonas, 344 F.3d 945, 948 (9th Cir. 2003).
Given the importance of a person’s right to be free of
double jeopardy, a prosecutor must shoulder the “heavy burden” of
demonstrating a “manifest necessity” justifying a mistrial over
the objection of a defendant in order to retry that defendant
without violating the Double Jeopardy Clause. Id.; United States
v. Dinitz, 424 U.S. 600, 606-07 (1976).

The words “manifest

necessity” “do not describe a standard that can be applied
mechanically or without attention to the particular problem
confronting the trial judge.”

Arizona, 434 U.S. at 506.

25

The Supreme Court has long recognized the trial court’s
discretion in making the manifest necessity determination:
We think, that in all cases of this nature,
the law has invested Courts of justice with
the authority to discharge a jury from giving
any verdict, whenever, in their opinion,
taking all the circumstances into
consideration, there is a manifest necessity
for the act, or the ends of public justice
would otherwise be defeated. They are to
exercise a sound discretion on the subject;
and it is impossible to define all the
circumstances, which would render it proper
to interfere. To be sure, the power ought to
be used with the greatest caution, under
urgent circumstances, and for very plain and
obvious causes; and, in capital cases
especially, Courts should be extremely
careful how they interfere with any of the
chances of life, in favour of the prisoner.
But, after all, they have the right to order
the discharge; and the security which the
public have for the faithful, sound, and
conscientious exercise of this discretion,
rests, in this, as in other cases, upon the
responsibility of the Judges, under their
oaths of office.
United States v. Perez, 22 U.S. 579, 580, 1824 WL 2694, at *1
(1824).
The degree of deference a trial judge has to declare a
mistrial varies:
The judge’s decision should be strictly
scrutinized when there is reason to believe
that the prosecutor is using the superior
resources of the State to harass or to
achieve a tactical advantage over the
accused. At the other extreme, great
deference should be accorded a trial judge’s
decision to discharge a jury which appears to
be deadlocked.

26

United States v. Sanders, 591 F.2d 1293, 1296 (9th Cir. 1979)
(quotation marks and citations omitted).

“A trial judge’s

decision to declare a mistrial because of possible juror bias is
also deserving of great deference.”

Id. at 1297.

“Nevertheless,

because the mistrial decision affects a constitutionally
protected right, reviewing courts have an obligation to satisfy
themselves that the trial judge exercised sound discretion in
declaring a mistrial.”

Id. (quotation marks, alterations, and

citations omitted); accord Arizona, 434 U.S. at 514 (“reviewing
courts have an obligation to satisfy themselves that . . . the
trial judge exercised ‘sound discretion’ in declaring a
mistrial”).
It is with the legal backdrop of all the authorities
cited earlier in this order that this court turns to Gouveia’s
specific arguments.
B.

Gouveia Does Not Establish That This Court Should
Treat His Sealed Verdict As a Final Acquittal.

The main focus of Gouveia’s habeas petition is his
argument that, because the jury reached a unanimous determination
that he was not guilty of the offense charged, he was acquitted
for double jeopardy purposes.

Respondents point to the failure

of the trial court to receive the verdict as critical to this
analysis.

This court rules that when a verdict is not received

by a trial court, that verdict, even when it is an acquittal,

27

does not necessarily trigger the protection of the Double
Jeopardy Clause.
The court recognizes that “what constitutes an
‘acquittal’ is not to be controlled by the form of the judge’s
action.”

Martin Linen, 430 U.S. at 571.

Instead, whether a

ruling is an acquittal turns on “whether the ruling of the judge,
whatever its label, actually represents a resolution, correct or
not, of some or all of the factual elements of the offense
charged.”

Id. at 571; accord Sanabria v. United States, 437 U.S.

54, 71 (1978) (defining “acquittal” as “a resolution, correct or
not, of some or all of the factual elements of the offense
charged”).

In other words, an acquittal encompasses “any ruling

that the prosecution’s proof is insufficient to establish
criminal liability for an offense.”
313, 318 (2013).

Evans v. Michigan, 568 U.S.

Under the circumstances presented here, Gouveia

does not show that the verdict in his case was a final
determination that he was innocent or that the prosecution failed
to satisfy all of the elements of the manslaughter charge.
Blueford v. Arkansas, 566 U.S. 599, 132 S.Ct. 2044
(2012), is instructive.

In Blueford, a one-year-old boy suffered

fatal head trauma while at home with his mother’s boyfriend,
Blueford.

132 S. Ct. at 2048.

Blueford was charged with capital

murder and the lesser-included offenses of first-degree murder,
manslaughter, and negligent homicide.

28

Id.

A few hours into the

deliberations, the jury sent a note that asked what would happen
if it could not agree on a charge.

The court called the jury

back into the courtroom, instructed the jury to deliberate
further pursuant to Allen v. United States, 164 U.S. 492 (1896),
and sent the jury back to deliberate.

About 30 minutes later,

the jury sent out another note, this one stating that it could
not agree “on any one charge in this case.”

132 S. Ct. at 2049.

The court then summoned the jury back into court and asked the
foreperson to disclose the votes on each offense.

The foreperson

indicated that the jury had unanimously agreed that Blueford was
not guilty with respect to the capital murder and first-degree
murder charges, but was divided nine to three on the manslaughter
charge.

The foreperson told the court that the jury had not

voted on the negligent homicide charge.

132 S. Ct. at 2049.

The

court then gave another Allen charge and sent the jury back to
deliberate.

When the jury could not reach a verdict, the court

declared a mistrial.

Id.

Citing the foreperson’s statement in open court that
the jury had unanimously agreed to acquit Blueford of the capital
murder and first-degree murder charges, Blueford sought dismissal
of those charges on double jeopardy grounds.

Id.

The Supreme

Court determined that the “foreperson’s report was not a final
resolution of anything.”

132 S. Ct. at 2050.

29

The continuation

of deliberations demonstrated that the report could not have been
final.

Id.

The Supreme Court gave an example:

A jury enters the jury room, having just been
given these instructions. The foreperson
decides that it would make sense to determine
the extent of the jurors’ agreement before
discussions begin. Accordingly, she conducts
a vote on capital murder, and everyone votes
against guilt. She does the same for
first-degree murder, and again, everyone
votes against guilt. She then calls for a
vote on manslaughter, and there is
disagreement. Only then do the jurors engage
in a discussion about the circumstances of
the crime. While considering the arguments
of the other jurors on how the death was
caused, one of the jurors starts rethinking
his own stance on a greater offense. After
reflecting on the evidence, he comes to
believe that the defendant did knowingly
cause the death--satisfying the definition of
first-degree murder. At that point, nothing
in the instructions prohibits the jury from
doing what juries often do: revisit a prior
vote.
132 S. Ct. at 2051.
Had this case been in federal court, the verdict
clearly would not have been final for double jeopardy purposes
before its contents were known to the trial judge and parties.
The Ninth Circuit has held:
Rule 31(d) [of the Federal Rules of Criminal
Procedure] grants the judge or any party the
absolute right to have the jury polled after
it has returned its verdicts. Although their
jury room votes form the basis of the
announced verdict, the jurors remain free to
dissent from the announced verdict when
polled. In short, a jury has not reached a
valid verdict until deliberations are over,

30

the result is announced in open court, and no
dissent by a juror is registered.
United States v. Nelson, 692 F.2d 83, 84–85 (9th Cir. 1982)
(internal citations and quotation marks omitted); accord Harrison
v. Gillespie, 640 F.3d 888, 899 (9th Cir. 2011) (en banc) (“the
verdict must be rendered by the jury in open court and accepted
by the court in order to become final”); United States v. Boone,
951 F.2d 1526, 1532 (9th Cir. 1991) (“A verdict is returned when
it is given by the jury to the judge in open court.”); 3 C.
Wright and S Welling, Fed. Practice and Procedure, § 517 at 52
(2011) (“A verdict is valid and final when the deliberations are
over, the result is announced in open court, and no juror
registers dissent.”).
In federal court proceedings, when a poll “reveals a
lack of unanimity, the court may direct the jury to deliberate
further or may declare a mistrial and discharge the jury.”

Fed.

R. Crim. P. 31(d).
Even if a jury is not polled, a juror could presumably
announce in open court his or her disagreement with other jurors,
thereby preventing a verdict from being final.

The jury could

then be sent back to continue deliberations.
Hawaii law is similar.

Rule 31(c) of the Hawaii Rules

of Penal Procedure provides:
When 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
31

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.
The purpose of Hawaii’s Rule 31(c) is to assure the court and the
parties that a unanimous verdict has been reached and to give
each juror the opportunity to indicate assent to the verdict in
open court.

See Hawaii v. Uyesugi, 100 Haw. 442, 457, 60 P.3d

843, 858 (2002); see also Hawaii v. Yamada, 99 Haw. 542, 562, 57
P.3d 467, 487 (2002) (“Criminal defendants are entitled to a
unanimous verdict under the Hawai‘i Constitution and pursuant to
court rule.”).

As illustrated by Hawaii v. Keaulana, 71 Haw. 81,

83, 784 P.2d 328, 329 (1989), jurors in Hawaii courts have
actually indicated during polling that verdicts reached were not
unanimous, resulting in continued deliberations.

This

demonstrates that even though the jury in the present case had
unanimously agreed to acquit Gouveia and had informed the court
that it had reached a verdict, that decision was not yet a final
acquittal for double jeopardy purposes under Hawaii law, as
jurors could still

have changed their minds.

Although not a case involving Hawaii law, Durall v.
Quinn, 2007 WL 1574121 (W.D. Wa. May 29, 2007), is helpful to the
present discussion.

Durall is a federal case flowing from a case

in Washington’s state court in which a jury deliberated and

32

informed the court that it had reached a decision.

Before the

verdict was disclosed to the court, the defense alleged juror
misconduct.

The court then held a hearing and decided to replace

one of the jurors with an alternate because the juror had been
told by a courthouse security officer the officer’s views of
Durall’s credibility.
destroyed.

The verdict form was then sealed and later

The jury, with an alternate, deliberated anew and

reached a guilty verdict.

Id. at *10.

Durall sought habeas

relief under 28 U.S.C. § 2254, arguing that the second verdict
violated the Double Jeopardy Clause.

The federal district court

noted that the last reasoned decision by Washington’s state
courts had determined that the jury’s initial, sealed verdict was
not a “final verdict” that terminated Durall’s jeopardy.
*6.

Id. at

The federal district court determined that that decision was

reasonable and that § 2254 relief was unavailable because Durall
had not shown an unreasonable application of Supreme Court
precedent.

Id.
Similarly, the jury in Gouveia’s case could have

changed its mind at the time it announced that it had reached a
verdict (and at the time the mistrial was declared).

Its verdict

form indicating an acquittal therefore does not trigger double
jeopardy protections.1

1

This court need not address here the hypothetical
situation in which a judge refuses to receive a verdict for an
improper motive. There is no suggestion that the judge presiding
33

C.

The Mistrial Was Not Supported By Manifest
Necessity.

This court’s analysis does not end with its
determination that the verdict was not final.

Gouveia

additionally argues that the mistrial was not supported by
“manifest necessity.”

This court agrees.

Hawaii state law provides that, “[w]hen circumstances
arise that could influence the impartiality of the jury and thus
affect the ability to reach a fair result based on the evidence,
a rebuttable presumption of prejudice is raised” that supports a
determination of “manifest necessity.”
384 P.3d at 854.

Gouveia, 139 Haw. at 78

“To overcome such a presumption, the trial

court, after investigating the totality of the circumstances,
must find that the outside influence on the jury was harmless
beyond a reasonable doubt.”

Id.

The Hawaii Supreme Court viewed the issue in Gouveia’s
case as being “whether the circuit court abused its discretion in
finding that the presumption was not proven harmless beyond a
reasonable doubt and no reasonable alternative to declaring a
mistrial existed.”

Id. at 78-79, 384 P.3d at 854-55.

That is,

the Hawaii Supreme Court, determining that the jurors’ concerns
about the glaring man raised a rebuttable presumption of
prejudice, applied a two-pronged test.

First, it examined

over Gouveia’s trial had any improper motive.
34

whether the trial court had found that the outside influence on
the jury was harmless beyond a reasonable doubt.

Second, if the

influence was not proven harmless beyond a reasonable doubt, it
required the trial court to look at all reasonable alternatives
to cure the harm before declaring a mistrial.

Id. at 78, 384

P.3d at 854.
Although this court discusses the first prong of the
above issue (going to the presumption), its focus in the
discussion below is primarily on the second prong (reasonable
alternatives to a mistrial).
As the Hawaii Supreme Court noted, upon receipt of the
jury note concerning the menacing man, both counsel and the trial
judge recognized the possibility of an improper influence and
agreed that the jurors should be individually questioned.
Hawaii Supreme Court said:
the jury communication in the instant case
was a statement that the jurors were actually
concerned for their safety, not merely
inquiring into the possibility of danger.
Additionally, at least four jurors stated
that the discussions of the incident and
potential danger happened at the beginning of
deliberations, which indicates those
discussions could have had an effect on the
subsequent jury deliberations. Under these
circumstances, the circuit court was well
within its discretion to conclude that under
the totality of the circumstances, the
outside influence was not harmless beyond a
reasonable doubt.
Id., 139 Haw. at 80, 384 P.3d at 856.

35

The

This court does not agree with Gouveia that the state
courts’ presumption analysis is constitutionally flawed.

The

jurors agreed that the menacing man was discussed after the
verdict was reached.

But the jurors also generally agreed that

the matter was discussed before the verdict was reached.

At

least three of the jurors indicated that the jury discussed the
menacing man (the outside influence) as soon as they started
deliberations.

Ms. Wilcox, for example, stated that the man was

discussed in the beginning for about five minutes.
PageID #s 358-59.

ECF No. 13-3,

Ms. Hanashiro stated that the man was

discussed as soon as deliberations started for about ten minutes.
Id., PageID #s382-84.

Mr. Chandler told the court that the man

was discussed early on for a minute or so.
84.

Id., PageID #s 382-

Ms. Chun similarly indicated that the man was discussed as

soon as the jury went into the deliberation room, or possibly in
the “early middle” of deliberations.

Id., PageID #s 430-31.

Ms.

Li also said the man was discussed in the “middle-early” of
deliberations.”

Id., PageID # 389.

Mr. Valencia, unidentified

Juror #7, and Ms. Kama each indicated that the man was discussed
toward the end of deliberations.
and 425.

Id., PageID #s 354, 394, 422,

This means that eight of the twelve jurors remembered

discussing the menacing man before the verdict was reached, with
five of them indicating that it was so important that he was
discussed in the beginning or in the early-middle of

36

deliberations.

Only four jurors (Ms. Boehm, Ms. Foster, Mr.

Masuno, and Ms. Mau) indicated that the menacing man was not
discussed until after the verdict was reached.

Id., PageID #s

365, 373, 375, 411-12, and 417.
When combined with the jury’s sending of a note
indicating that the jurors were actually concerned about their
safety, the jurors’ indications that they discussed the menacing
man during deliberation supports the finding that they may have
been afraid for their safety while deliberating.
example, said a few jurors were scared.
360.

Ms. Wilcox, for

ECF No. 13-3, PageID

Ms. Hanashiro said a few jurors were intimidated and

concerned.

Id., PageID # 386.

Mr. Valencia, Ms. Boehm, Ms.

Foster, Ms. Li, Mr. Masuno, and Ms. Kama each said the jurors
were concerned for their safety.

Id., PageID #s 356, 366, 370,

374, 377, 392, 414-15, and 426.

Additionally, Ms. Kama testified

that she thought the safety concern affected the jury’s decision.
Id., PageID # 426.

The trial judge “was well within [his]

discretion to conclude that under the totality of the
circumstances, the outside influence was not harmless beyond a
reasonable doubt.”

Gouveia, 139 Haw. at 80, 384 P.3d at 856; see

also Parker v. Gladden, 385 U.S. 363, 366 (1966) (stating that
defendant has right to be tried by twelve impartial jurors).
This court recognizes that there are problems inherent
in accepting the trial judge’s determination that the verdict was

37

tainted by the jurors’ fear.

After all, a safety concern does

not automatically taint a verdict.

And here, there are specific

circumstances raising questions about whether the verdict was
tainted.
First (and most notable), the jurors voted to acquit!
To the extent they thought the glaring man was associated with
the prosecution, any fear they had would only have arisen with an
acquittal.

As it turns out, the glaring man was the decedent’s

brother who would have only been upset with an acquittal.

See

Memorandum in Support of Section 2254 Petition at 3, ECF No. 2,
PageID # 12; Transcript of Proceedings (Sept. 6, 2013) at 59-60,
ECF No. 13-3, PageID #s 352-53 (indicating that decedent’s
brother had shaved head and was upset while in courtroom).

That

the jurors voted to acquit is extraordinary evidence that they
were not affected by fear, as very clearly laid out by the
dissenting jurists in the ICA and Hawaii Supreme Court in
Gouveia’s state court proceedings.
Second, while not all the jurors said that they
associated the glaring man with a particular party, those jurors
that did draw such an association thought he was favorable to the
prosecution and hostile to Gouveia.

Ms. Foster associated the

man with the prosecution and said she had a concern for her
safety.

See Id., PageID #s 374-75.

Ms. Foster added that the

concern “was once the verdict was read, that maybe there would be

38

some retaliation against, you know, of us for whatever reason
just being a juror.”

See Id., PageID # 377.

Ms. Li associated

the man with the prosecution and indicated that there was “maybe
a little” concern after the jury had reached a decision.
Id., PageID # 392.

See

Juror # 7 indicated that the man had directed

his anger toward the defendant, not the jury, and was not
concerned about safety.

See Id., PageID # 393.

Juror # 7

indicated that one of the jurors wondered whether the man’s anger
might be directed to the jury “after everything’s done.”

See

Id., PageID # 394.
Third, notwithstanding their expressions of fear,
eleven of twelve jurors indicated that any such fear had no
effect on their decision.

Although the trial judge couched his

determination as to the impact of the glaring man on what he
called “credibility” findings, nothing in the record identifies
facts supporting his finding that the jurors were not believable
when they said that the man did not affect their decision.
trial judge makes no reference to any juror’s demeanor.

The

He just

says, “It frankly beggars my reason and common sense that it
would have no bearing on the deliberations in this case and
therefore the verdict.”

ECF No. 13-3, PageID # 452.

Whether

this is a true “credibility” finding is unclear; it may instead
be an assumption.

39

But this court sees no need to rely on these
acknowledged problems with the conclusion that the jurors were
affected.2

To this court, the more conspicuous problem is that

there was a readily available alternative to a mistrial.

See

Arizona, 434 U.S. at 514; Sanders, 591 F.2d at 1296; ECF No. 133, PageID # 176.
State law on reasonable alternatives in the double
jeopardy context does not diverge from federal law in requiring
an examination of reasonable alternatives to a mistrial.

Indeed,

the Hawaii Supreme Court expressly recognized the need for the
trial judge to have considered alternatives in Gouveia’s case.
The Hawaii Supreme Court, noting that the jury had reached a
verdict and notified the court that there was a concern about
juror safety, held, “Under these circumstances, the circuit court
determined that the verdict was already tainted and that neither
a continuance nor additional jury instructions to ignore the

2

The majority in the ICA’s Gouveia opinion notes in a
footnote that, because Gouveia did not argue in either the trial
court or the ICA that the trial judge had “erred in failing to
consider options less severe that mistrial,” the ICA had “no
basis for concluding” that the trial judge had erred in that
regard. 2015 WL 2066780, at *10 n.5. This court nevertheless
examines whether the trial judge had options short of a mistrial.
While cognizant that the ICA statement might raise a possible
procedural default issue, this court is relying on the Hawaii
Supreme Court opinion that makes clear its understanding that the
issue of alternatives to a mistrial was indeed before it. The
Hawaii Supreme Court’s majority opinion in Gouveia includes a
section headed “No reasonable alternative to a mistrial would
have eliminated the potential of prejudice.” 139 Haw. at 80-81,
384 P.3d at 856-57.
40

outside influence would have been effective.
was reasonable.”

This determination

139 Haw. at 80, 384 P.3d at 856.

The problem this court identifies with the Hawaii
Supreme Court’s conclusion in this regard is that it is based
entirely on the trial judge’s statement that “there is no other
remedy short of a mistrial to cure the issue at hand as neither a
continuance not a further jury instruction would appropriately
address the issue of an impartial jury and its subsequent tainted
verdict.”

See id. at 79, 384 P.3d at 855.

Nothing in the record

suggests that either the trial judge or the state appellate
courts considered any possible instruction at all.

The trial

judge made an assertion unaccompanied by explication of any sort,
and the state appellate courts accepted the assertion without
really examining it.
The admonition that all reasonable alternatives be
considered requires more than an assertion.

Finding a manifest

necessity is a hugely consequential matter that requires a more
searching process.

Otherwise, the “reasonable alternatives”

prong becomes meaningless.

It becomes a foregone conclusion that

there is no reasonable alternative once the prejudice is not
rebutted.

In fact, at one point the Hawaii Supreme Court

suggested as much, saying that “the circuit court was well within
its discretion to conclude that manifest necessity existed for a
mistrial because the presumption of prejudice was not overcome

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beyond a reasonable doubt.”

Id.

Although the Hawaii Supreme

Court then went on to note the need to examine reasonable
alternatives separately, that discussion was cursory and nearly
pro forma, consisting primarily of accepting the trial judge’s
statement that no reasonable alternative existed.

While there

are undeniably situations in which there is no reasonable
alternative to a mistrial (and this court confesses to having
determined that itself in a trial), something more than the
existence of prejudice is required for a mistrial.
Citing Hogan v. Dunkerley, 579 F.2d 141 (2d Cir. 1978),
the Ninth Circuit in Sanders said that a mistrial cannot be said
to have been manifestly necessary when a trial judge has failed
to adequately consider alternatives to the mistrial.
1299.

Id. at

In the Second Circuit’s Dunkerley case that the Ninth

Circuit relied on, the trial court had sua sponte declared a
mistrial over a defendant’s objections after learning that the
defendant had to be hospitalized for seven to ten days because of
a collapsed lung.

579 F.2d at 143-44.

The Second Circuit,

noting that such continuances were “commonplace in many
jurisdictions,” held that, because the trial court had not
explained why a continuance was not feasible, there was no
manifest necessity to declare a mistrial.

Id. at 147-48 (stating

that “the apparent availability of at least one alternative to a
mistrial,” specifically, “adjourning the trial for 7 to 10
42

days[,] leads us to conclude that a mistrial was not a ‘manifest
necessity’”).

Under both federal and Hawaii law, if a reasonable

alternative to a mistrial existed that adequately addressed the
potential of prejudice, double jeopardy protections now prevent
Gouveia’s retrial.
This trial judge is hugely sympathetic to the dilemma
facing Gouveia’s trial judge at the time the mistrial was
declared.

The trial judge acted deliberately, taking care to

consult with counsel and to hear from each juror.

He then

concluded that nothing short of a mistrial could cure the effect
of the menacing man, and the Hawaii Supreme Court agreed.

But

there was at least one “commonplace” thing the trial court could
have tried before reaching that conclusion.

This “commonplace”

measure, if successful, would have preserved Gouveia’s right to
have the charges decided by the first jury empaneled.
Critical to the availability of this remedy is the
status of the “sealed verdict” as not “received” or final.

That

status meant that the trial judge could have done a brief
investigation into the glaring man and could then have called the
jury back into court and assured the jury that his inquiries
caused him to conclude that the jurors’ security was being
properly addressed or that there was no safety threat.

For

example, the trial judge could have told the jury that the court
had identified the man with the shaved head who was whistling and

43

glaring.

Even if this required a short continuance, the trial

judge could have told the jury that he or security officers had
admonished the man and concluded that he posed no safety risk to
the jurors now or in the future.

The trial judge could then have

sent the jurors back into the deliberation room to continue their
deliberations armed with these assurances.

He could have told

the jurors that they could reach the same result and even use the
same verdict form if, upon further deliberation, they came to the
same conclusion, while also providing a blank verdict form for
them to use in case they changed their decision.

This would have

been similar to the trial judge’s initial plan to talk to the
jurors about the incident after receiving the verdict.

See ECF

No. 13-3, PageID # 349.
Trial judges often, upon receipt of jury questions,
address jury concerns and questions in open court before sending
the jury back to deliberate.

In United States v. Ivester, 316

F.3d 955 (9th Cir. 2003), jurors had communicated while evidence
was being presented that they were concerned about the lack of
security in the courtroom, given the large number of scarylooking people in the audience.

The jury was told in open court

that many of those people were actually United States Marshals in
plainclothes and that the jurors should not be concerned for
their safety.

The jurors ultimately found the defendant guilty,

and the judgment was affirmed.

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As noted earlier in the present order, the verdict in
Gouveia’s trial was not final.

This means that the trial judge

still had an opportunity to remedy the situation.

In declaring a

mistrial without even considering the lesser, “commonplace”
action of alleviating the jurors’ safety concern through
information and/or instructions, the trial judge committed a
constitutional error.

The record does not show why the preceding

“commonplace” cure could not have entirely addressed any harm.
There were, of course, other possible alternatives.
Had the trial judge been concerned that the outside influence
might have caused the jurors to return a guilty verdict, as it
appeared that the man was threatening Gouveia, the trial judge
could have adopted a bifurcated procedure.

Before looking at the

verdict, he could have said that, if the verdict was guilty, he
would declare a mistrial because he could not say beyond a
reasonable doubt that the influence of the man was not harmless,
but, if the verdict was not guilty, then he would receive the
verdict because the influence would have been harmless beyond a
reasonable doubt.
This court is at pains to avoid simply disagreeing with
the trial judge’s determination that there was nothing short of a
mistrial that could have remedied the menacing man’s influence on
the jury.

Well aware that actions contemplated after the fact

may not fall within what is reasonably considered at the time,

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this court has focused its attention on what is “commonplace.”
Given the importance of Gouveia’s federal double jeopardy rights,
the court is simply unable to ignore an obvious, “commonplace”
cure that was clearly available to the trial judge in light of
the nonfinal nature of the verdict.

At the very least,

reasonable alternatives had to be considered, not declared
unavailable out of hand.

Under these circumstances, this court

rules that the trial judge violated Gouviea’s double jeopardy
right in declaring that a mistrial was supported by manifest
necessity.

Gouveia may not be retried for manslaughter in

violation of section 707-702(1)(a) of Hawaii Revised Statutes.
See United States v. Jorn, 400 U.S. 470, 487 (1971) (stating that
double jeopardy prevents retrial when trial court abuses
discretion in declaring mistrial).
VI.

CONCLUSION.
The court grants Gouveia’s habeas petition under

§ 2241, ruling that his federal right to be free of double
jeopardy will be violated by a retrial under the circumstances
presented here.

The Clerk of Court is directed to enter judgment

in favor of Gouveia and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 25, 2017

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Gouveia v.Espinda, et al., Civ. No. 17-00021 SOM/KJM; ORDER GRANTING HABEAS
PETITION

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