State v. Grewer

1

STATE OF HAWAI'I, Plaintiff-Appellee/Cross-Appellant, v. PETER GREWER, Defendant-Appellant/Cross-Appellee

No. CAAP-21-0000656

Intermediate Court of Appeals of Hawaii

August 29, 2024

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO 5CPC-18-0000161)

On the briefs:

Melinda K. Mendes for Defendant-Appellant on the opening and reply briefs.

Henry P. Ting, Public Defender, for Cross-Appellee on the answering brief.

Tracy Murakami, Deputy Prosecuting Attorney, County of Kaua'i for Plaintiff-Appellee/ Cross-Appellant.

Wadsworth, Presiding Judge, and Guidry, J., and McCullen, J dissenting in part

SUMMARY DISPOSITION ORDER

SONJA M.P. MCCULLEN ASSOCIATE JUDGE

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 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- 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 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:

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 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

...