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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
17-SEP-2025
07:58 AM
Dkt. 11 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---STATE OF HAWAIʻI,
Petitioner/Plaintiff-Appellee/Cross-Appellant,
vs.
PETER GREWER,
Respondent/Defendant-Appellant/Cross-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 5CPC-XX-XXXXXXX)
SEPTEMBER 17, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.,
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
This case concerns a prospective juror’s comments in
the courthouse hallway during a recess from jury selection, and
the court’s discretion to determine its prejudicial impact.
During a recess from jury selection in Respondent
Peter Grewer’s murder trial in the Circuit Court of the Fifth
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Circuit (circuit court), a prospective juror made certain
comments to the bailiff and three other prospective jurors
concerning her desire to be excused from service. The circuit
court subsequently questioned the prospective juror and three
other prospective jurors who overheard her comments, after which
the court dismissed the prospective juror and gave curative
instructions to the remaining jurors. Although the three other
prospective jurors were not immediately excused, they were not
empaneled or selected as alternate jurors.
At trial, the State introduced substantial physical
and circumstantial evidence establishing Grewer stabbed Joellen
Hartman, his 67-year-old wheelchair-bound landlord, on or about
June 19, 2018. The jury found Grewer guilty of murder in the
second degree and the circuit court sentenced him to life in
prison without the possibility of parole. Grewer appealed,
arguing in relevant part that the prospective juror’s comments
violated his right to a fair trial by an impartial jury.
As set forth below, we hold that: (1) the circuit
court’s investigation was adequate; (2) its curative
instructions to the jury were sufficient to cure any prejudice
that may have resulted from the comments; and (3) any prejudice
caused by the comments was harmless beyond a reasonable doubt in
light of the overwhelming, uncontradicted physical evidence of
Grewer’s guilt. As such, we hold the circuit court did not
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abuse its discretion in denying Grewer’s oral motion for a
mistrial.
Accordingly, we reverse the Intermediate Court of
Appeal’s (ICA) October 8, 2024 Judgment on Appeal and affirm the
circuit court’s October 19, 2021 Judgment of Conviction and
Sentence.
II. BACKGROUND
A. Circuit Court Proceedings1
On June 25, 2018, Grewer was charged via complaint
with a single count of murder in the second degree in violation
of Hawaiʻi Revised Statutes (HRS) § 707-701.52 (2014) for the
killing of his 67-year-old, wheelchair-bound landlord, Joellen
Hartman (victim), who was found dead in her home, having
suffered 17 stab wounds. The State sought extended and enhanced
sentencing due to the heinous and cruel nature of the crime and
the victim’s elderly age, pursuant to HRS §§ 706-662(5) (2014)
and -657 (2014).3 Grewer pleaded not guilty. After a lengthy
1 The Honorable Randal G.B. Valenciano presided.
2 “[A] person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.” HRS § 707-701.5.
3 Under HRS § 706-662(5), convicted felons who commit murder “may be subject to an extended term of imprisonment . . . if it is proven beyond a reasonable doubt that an extended term of imprisonment is necessary for the protection of the public” when the defendant “inflicts serious or substantial bodily injury upon a person . . . [s]ixty years of age or older[.]”
Defendants convicted of murder in the second degree may be sentenced “to life imprisonment without the possibility of parole . . . if the court finds that the murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity.” HRS § 706-657.
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pre-trial period due to discovery, multiple motions to suppress,
and COVID-19 pandemic delays, Grewer’s jury trial commenced on
April 19, 2021.
1. Jury Selection
Jury selection was conducted over four days, between
April 19 and April 22, 2021. On the morning of April 21, the
third day of jury selection, during a recess from 11:31am until
11:47am, in the hallway outside the courtroom, Prospective Juror
20 expressed to the courtroom bailiff a desire to be excused
from service, stating that she “already had [her] opinion.”
The circuit court immediately initiated an inquiry
into Prospective Juror 20’s comments. Before questioning
Prospective Juror 20, the court conferred with the bailiff, who
informed the court, “[Prospective Juror 20] 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.”
Out of an “abundance of caution,” the circuit court
immediately questioned Prospective Juror 20 outside the presence
of other jurors. Prospective Juror 20 confirmed that she loudly
told the bailiff, “I wish I didn’t have to be here” because she
“already had [her] opinion about [the case.]” The circuit court
also learned that in addition to the bailiff, Projective Juror
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20 spoke to three other individuals during the recess:
Prospective Juror 22, Prospective Juror 48, and Prospective
Juror 3. Prospective Juror 20 stated that she told Prospective
Juror 22, who was standing next to Prospective Juror 48, “I wish
I didn’t have to be here. I - literally I caretake for my
uncle. I have – he just got out of the hospital.” Prospective
Juror 3 was also identified as someone who overheard Prospective
Juror 20’s conversation with Prospective Juror 22.
The circuit court individually examined Prospective
Jurors 22, 48, and 3, with counsel for both parties present and
participating in the inquiry. Prospective Juror 20 was also
present for the examination. Otherwise, the circuit court
conducted the individual examinations outside the presence of
all other prospective jurors.
All three prospective jurors characterized Prospective
Juror 20’s comments as voicing her desire to be excused from
jury duty. Prospective Juror 22 told the court that they heard
“[Prospective Juror 20] just [keep] saying, I don’t want to be
here, I don’t want to be here,” but Prospective Juror 22 did not
hear any comments about Grewer’s innocence or guilt.
Prospective Juror 48 added that Prospective Juror 20
made comments about Grewer’s appearance, stating that he “looked
guilty” and that she “didn’t want to be near someone like that.”
Prospective Juror 3 similarly recalled that Prospective Juror 20
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remarked that it felt “weird being in this room with [Grewer]”
and it was “uncomfortable for her being in this room because it
was a murder [case].” Following this inquiry, and without
objection from counsel, the circuit court excused Prospective
Juror 20.
Once Prospective Juror 20 was excused and only counsel
remained in the courtroom, defense counsel orally moved for a
mistrial, which the circuit court denied. Defense counsel
argued that Prospective Juror 20’s comments “tainted the jury,”
given that there were multiple jurors in the hallway who heard
Prospective Juror 20’s comments. Yet, defense counsel did not
request further inquiry into any other prospective jurors
outside of the four initially identified.
The State opposed the motion for mistrial, contending
that the “incident was contained mostly between the bailiff and
the . . . four jurors that you have questioned.” The State
further proposed alternative remedies, including excusing
Prospective Jurors 22, Prospective Juror 48, and Prospective
Juror 3, questioning the panel as a whole, or issuing a curative
instruction.
The circuit court denied the defense’s motion for
mistrial. It reasoned:
Yeah. So I understand the statement made by
[Prospective Juror 20] was unfortunate. It’s unclear the
substance of the statement she made. One – she had two
motives. Well, she had one motive basically. She didn’t
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want to be here, and so she made statements to gain that –
try and leverage that situation.
One of the things the Court will do is the Court will
– first of all, I’ll deny the motion for mistrial. The
Court will give a curative instruction. The expectation is
that the jurors will follow the Court’s instructions.
(Emphasis added.)
The circuit court did not excuse Prospective Jurors
22, 48, or 3, or conduct further voir dire. Instead, it
provided the following curative instruction to the remaining
prospective jurors once they re-entered the courtroom:
We are going to proceed with the jury selection, but
before I proceed, I want to give you some instructions.
And basically I already gave you the instructions, so this
is a reminder.
Please remember that the verdict must be based only
on the evidence received in the courtroom and instructions
on the law. The other thing is that I want to tell you
please do not talk to anyone, including your fellow jurors,
about this case. You can talk to other people about other
things, but do not talk about this case.
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 deliberation. I told you earlier keep an
open mind, do not make decisions, and that the evidence you
receive will be received in this courtroom.
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.
(Emphases added.)
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Later that same day, the court again instructed the
remaining prospective jurors4:
I want to remind you that your verdict or decision must be
based only on the evidence received in the courtroom.
Anything you receive outside of the courtroom, whether you
hear it or whether somebody tells you, you hear it through
a conversation between other people, including statements
from other prospective jurors, you must disregard that.
Your decision must be based only on the evidence presented
in the courtroom.
If you hear anyone talking about this case to you or
if you hear anyone talking about this case around you,
please alert the court staff.
(Emphases added.)
The next day, April 22, 2021, the empaneled jury was
sworn in. Although Prospective Juror 3, Prospective Juror 22,
and Prospective Juror 48 were not immediately excused, none of
them served on the empaneled jury, nor as alternate jurors. The
State exercised two of its twelve peremptory challenges to
excuse Prospective Juror 22 and Prospective Juror 3.
Prospective Juror 48 was never selected for individual voir dire
from the jury pool. Defense counsel did not excuse for cause or
use a peremptory challenge to excuse any of the three
prospective jurors.
4 The State received an email containing a video by a prospective juror that was posted to Facebook the day prior. Although the prospective juror in the video did not “say anything in particular about the case, . . . she mention[ed] how to get out of jury service.” Upon learning about the social media post, the circuit court declined to question her, noting “she’s not the first one” to post on social media. Grewer does not raise the prejudicial impact of a prospective juror posting about jury selection in his trial on social media, and we do not further address it here.
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2. Evidence presented at trial
Throughout the month-long trial, the State presented
extensive evidence to demonstrate Grewer knowingly and
intentionally killed the victim in an “especially heinous,
atrocious, or cruel” manner. See HRS § 706-657. The State
introduced testimony from 23 witnesses, including law
enforcement officers and detectives, the medical examiner who
conducted the victim’s autopsy, DNA analysts and crime lab
technicians, the victim’s friends and caretakers, neighbors, and
others.
From the fall of 2017 until June 2018, Grewer rented
an ohana unit on the victim’s property, although he stopped
paying rent beginning in January 2018. On June 18, 2018, the
day before the victim’s murder, the District Court granted the
victim summary possession and ordered Grewer to vacate the
premises by June 25, 2018.
The next day, on June 19, 2018, Kauai police officers
conducted a welfare check after the victim failed to answer
phone calls from concerned friends. The police entered the
victim’s home through a glass sliding door after finding that
the deadbolt and doorknob to her front door were locked. Once
inside, the police discovered the victim deceased in her
wheelchair, covered in blood. During the welfare check, Grewer
voluntarily exited the ohana unit he rented to speak with law
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enforcement officers. Police observed fresh scratches on his
chest that had not yet scabbed. Grewer stated he was unable to
assist the police in entering the victim’s locked house because
he did not have the keys to the house. Yet, the following day,
on June 20, 2018, upon executing a search warrant of Grewer’s
ohana unit rental, law enforcement found a set of keys that
opened the doorknob lock and deadbolt on the victim’s front
door.
The State also introduced multiple items of DNA
evidence linking Grewer to the victim’s murder. Law enforcement
recovered a pair of bloodstained shorts in Grewer’s kitchen,
which contained a mixture of Grewer and the victim’s DNA.
Forensic analysis also revealed Grewer’s DNA underneath the
victim’s fingernails and on her right-hand fingertip.
Testimony from Dr. Martin Ishikawa, M.D., the medical
examiner who conducted an autopsy of the victim, illustrated the
severity of the victim’s wounds. Dr. Ishikawa testified that
she died from multiple sharp force injuries inflicted with a
“single-edged sharp force implement like a knife.” Dr. Ishikawa
found stab wounds on the back of the victim’s right hand, the
palm of her right hand, her right eyelid, under her left eye, on
her right leg below the knee, and on her neck. One of the neck
stab wounds was inflicted with enough force to penetrate and
fracture the victim’s C5 cervical spine.
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The victim was stabbed 17 times. The autopsy also
indicated she was alive at the time of the stabbing because
blood was found in her right lung. Given these observations,
Dr. Ishikawa classified victim’s death as a homicide.
Grewer testified as a witness for his defense. He
testified that on the day of the incident, he walked his dog at
Poipu beach from approximately 5:00am to 8:00am, returned to the
ohana unit to watch television and take a nap until he woke up
to the police at his door around 4:00pm. Grewer also testified
that earlier that week he was wearing the bloodied shorts later
found in his kitchen when he crashed his car and “ripped up
[his] forearms pretty drastically.” Grewer further explained
that the fresh scratches on his chest were from an incident a
few days prior where he crawled underneath a fence to access an
AT&T store shortly before closing.
The jury returned a verdict of guilty of second degree
murder. The jury further found beyond a reasonable doubt that
the State proved the necessary conditions for extended and
enhanced sentencing based on the severity of the crime and the
victim’s age. Accordingly, the circuit court sentenced Grewer
to life imprisonment without the possibility of parole.
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B. Appellate Proceedings
Grewer and the State cross-appealed.5 Relevant to the
issue presented before this court, Grewer sought to vacate his
conviction and sentence, arguing that Prospective Juror 20’s
comments violated his right to a fair trial by an impartial
jury.6 Grewer argued that the circuit court’s inquiry into the
impartiality of the jury following Prospective Juror 20’s
comments was insufficient, and that absent a sufficient inquiry,
the record could not support a determination that the comments
were harmless beyond a reasonable doubt.
In a 2-1 Summary Disposition Order, the ICA majority
agreed. It vacated Grewer’s conviction and sentence and
remanded the case to the circuit court for a new trial. The
majority concluded Prospective Juror 20’s courthouse hallway
statements undermined fundamental principles of the right to a
fair trial and an impartial jury, specifically the presumption
of innocence and burden of proof. Citing State v. Chin, the ICA
majority further concluded that the nature of Prospective Juror
20’s comments triggered a rebuttable presumption of prejudice,
which required the circuit court to “further investigate the
5 The issues raised in the State’s cross-appeal to the ICA are not before this court.
6 Other issues raised by Grewer, which are not before this court, challenged the sufficiency of evidence supporting his extended and enhanced sentencing under HRS §§ 706-662(5) and -657.
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totality of circumstances surrounding the alleged deprivation to
determine its impact on jury impartiality.” 135 Hawaiʻi 437,
445, 353 P.3d 979, 987 (2015) (citation omitted).
Therefore, the ICA majority held that the circuit
court’s inquiry was inadequate in assessing how many prospective
or empaneled jurors actually heard the comments, and thus, was
an abuse of the circuit court’s discretion. The majority also
characterized the circuit court’s curative instruction as
“general” and “hypothetically phrased.”
The dissent disagreed, characterizing the majority’s
decision as “erod[ing] the discretion of our trial courts and
ignor[ing] the totality of circumstances.” The dissent opined
that the circuit court did not abuse its discretion when it
conducted an inquiry into the prejudicial impact of Prospective
Juror 20’s comments and subsequently instructed the jury pool.
The State sought certiorari review, which we granted.
III. STANDARD OF REVIEW
We review the circuit court’s inquiry into the impact
of Prospective Juror 20’s comments and subsequent denial of
Grewer’s motion for mistrial for abuse of discretion. See State
v. Furutani, 76 Hawaiʻi 172, 180, 873 P.2d 51, 59 (1994). “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
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discretion, take appropriate measures.” Chin, 135 Hawaiʻi at
439, 353 P.3d at 981. “The trial court abuses its discretion
when it clearly exceeds the bounds of reason or disregards rules
or principles of law or practice to the substantial detriment of
a party litigant.” State v. Bailey, 126 Hawaiʻi 383, 398, 271
P.3d 1142, 1157 (2012) (citations omitted).
IV. DISCUSSION
On certiorari to this court, the State argues that the
circuit court did not abuse its discretion because it properly
removed Prospective Juror 20 following an adequate inquiry into
the circumstances surrounding her comments, and gave a
sufficient curative instruction to the rest of the prospective
jurors. The State further contends that any prejudice that may
have resulted from Prospective Juror 20’s comments was harmless
beyond a reasonable doubt. We agree, and hold the circuit court
did not abuse its discretion here.
A. The Circuit Court Did Not Abuse its Discretion in Denying
Grewer’s Motion for Mistrial
Article I, section 14 of the Hawaiʻi Constitution
guarantees a criminal defendant’s right to a “public trial by an
impartial jury.” We have described this right as “a basic
protection of the individual in a criminal case.” State v.
Pokini, 55 Haw. 640, 641, 526 P.2d 94, 99 (1974). While a new
trial must be granted if any juror was not impartial, “not all
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juror misconduct necessarily dictates the granting of a new
trial.” State v. Kim, 103 Hawaiʻi 285, 291, 81 P.3d 1200, 1206
(2003). When determining if jury misconduct deprives a criminal
defendant of an impartial jury, the following “conceptual
framework” guides our analysis:
[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.
Bailey, 126 Hawaiʻi at 399-400, 271 P.3d at 1158-59 (citation
omitted) (emphasis added).
Under this framework, trial courts have wide latitude
to assess the nature of alleged juror misconduct and its
prejudicial impact on a defendant’s right to a fair trial. When
a claim of juror misconduct arises, trial courts first determine
whether the alleged deprivation is of a substantially
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prejudicial nature. Id. In making this determination, trial
courts look to the “general nature” of the alleged misconduct
and whether it “could” substantially prejudice the defendant.
Chin, 135 Hawaiʻi at 446, 353 P.3d at 988. Whether a juror’s
alleged misconduct “could” substantially prejudice the defendant
is a question left to the trial court’s discretion. Id. at 445,
353 P.3d at 987; see also State v. Taylor, 324 S.W.2d 643, 648
(Mo. 1959) (“The trial court is in a much better position than
this court to evaluate the effect upon others of such an
unexpected outburst and the handling of the matter must be
[e]ntrusted largely to its discretion.”).
1. Even if the circuit court did not expressly determine
whether Prospective Juror 20’s comments were
substantially prejudicial, its inquiry was sufficient
Although the record is silent as to whether the
circuit court determined if Prospective Juror 20’s comments
could substantially prejudice Grewer’s right to trial by an
impartial jury, the circuit court’s inquiry adequately revealed
the prejudicial impact of Prospective Juror 20’s comments was
minimal, if any.
The circuit court’s inquiry uncovered the following
circumstances during the mid-morning recess from jury selection
for Grewer’s trial. Prospective Juror 20 admitted she loudly
told the bailiff, “I wish I didn’t have to be here” and that she
was “freaking out” and “ha[d] so much going on” as a single
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parent and caretaker to her uncle, who had recently been
released from the hospital. Prospective Juror 22 further
relayed that Prospective Juror 20 “kept saying, I don’t want to
be here, I don’t want to be here,” while Prospective Juror 3
heard Prospective Juror 20 say that “[s]he didn’t want to be
here.” On their face, none of these statements can be
reasonably construed as potentially prejudicial to Grewer’s
right to a fair trial.
However, Prospective Juror 20 made additional
statements that could be construed as implicating Grewer’s
guilt. For example, Prospective Juror 20 noted, “I get chicken
skin, and I don’t want to be – any involvement in any of
this[,]” and confirmed she told Prospective Juror 22 and
Prospective Juror 48 that she “already had my opinion about it.”
Prospective Juror 48 heard Prospective Juror 20 state “that she
didn’t want to be near someone like [Grewer].” Prospective
Juror 3 heard Prospective Juror 20 say, “I think it was weird
being in this room with him[.]”
Once aware of Prospective Juror 20’s hallway
statements, the circuit court immediately questioned Prospective
Juror 20, who disclosed, in addition to the bailiff, she
interacted with Prospective Juror 22 and Prospective Juror 48.
The circuit court then examined Prospective Juror 22 and
Prospective Juror 48, who identified Prospective Juror 3 as
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another individual who interacted with Prospective Juror 20
during the recess. All three characterized Prospective Juror
20’s comments as expressing her desire to leave the courthouse.
The circuit court’s investigation also revealed that
all three prospective jurors paid little attention to
Prospective Juror 20’s comments or otherwise did not take her
statements that “it was weird being in this room with [Grewer],”
that Grewer “looked guilty,” and that “she didn’t want to be
near someone like that” seriously. When asked if Prospective
Juror 20 said anything other than “she didn’t want to be near
someone like that,” Prospective Juror 48 replied, “[t]hat’s
about all I really paid attention to.” Similarly, Prospective
Juror 3 perceived Prospective Juror 20’s comments as “goofball
type talk that you don’t listen to but you catch parts of it,
and the parts were – didn’t sound real bright about being in
this room[.]” Finally, when asked if Prospective Juror 20’s
comments would affect his perception on Grewer’s case,
Prospective Juror 3 replied, “Oh, god, no.”
Although the circuit court did not expressly determine
the prejudicial nature of Prospective Juror 20’s comments, under
these circumstances where the three prospective jurors perceived
her comments as voicing a desire to be excused from service,
they were likely not of a nature that could substantially
prejudice Grewer. Further, neither Prospective Juror 22,
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Prospective Juror 48, nor Prospective Juror 3 were immediately
excused following the voir dire, suggesting the circuit court
implicitly determined that the comments were not of a
substantially prejudicial nature.
This court has not previously considered potential
jury impartiality arising from prospective jurors’ comments
about the defendant during jury selection.7 See, e.g., Chin, 135
Hawaiʻi at 441, 353 P.3d at 983 (seeking employment, jury
foreperson gave business card to testifying witness in men’s
bathroom during trial); Bailey, 126 Hawaiʻi at 393, 271 P.3d at
1152 (during deliberations juror disclosed inadmissible
information of defendant’s prior criminal conviction). However,
other appellate courts, faced with similar careless comments
from prospective jurors, have upheld defendants’ convictions
when the trial court conducts a sufficient inquiry into the
nature of the comments and provides instructions to alleviate
any prejudice.
7 Furutani is the sole juror misconduct case this court previously considered that arose from alleged juror misconduct during jury selection. There, the alleged misconduct centered around prospective jurors’ nondisclosure of “bias against defendants who failed to testify or present evidence of their innocence.” Id. at 185, 873 P.2d at 64. This court adopted the Colorado Supreme Court’s approach and held that “[u]nder some circumstances a juror’s nondisclosure of information during jury selection may be grounds for a new trial.” Id. at 182, 873 P.2d at 61 (quoting People v. Dunoyair, 660 P.2d 890, 895 (Colo. 1983). Jurors’ nondisclosure of information is not relevant to the circumstances here surrounding Prospective Juror 20’s alleged misconduct during jury selection.
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For example, the nature of Prospective Juror 20’s
comments are analogous to comments prospective jurors made in a
Missouri kidnapping and rape trial. State v. Williams, 630
S.W.2d 117, 119 (Mo. Ct. App. 1981). There, two prospective
jurors disclosed their preconceived opinion of the defendant’s
guilt and their repugnance to the underlying offense during voir
dire. Id. The trial court instructed the remaining prospective
jurors to disregard anything they had heard or read elsewhere,
and to solely base their decision on the evidence and law
presented. Id. Considering the trial court’s curative
instruction and the nature of the expressed opinions during voir
dire, a Missouri appellate court concluded that the two
prospective jurors’ comments were not “so inflammatory and
prejudicial that the trial court abused its discretion in
refusing to quash the entire panel.” Id. Here, like in
Williams, once the circuit court learned that Prospective Juror
20 disclosed her preconceived opinion of Grewer’s guilt to three
other prospective jurors, the circuit court promptly inquired
into the nature of those comments and thereafter gave a curative
instruction to the remaining prospective jurors.
Careless comments during jury selection – before the
jury is empaneled, before any evidence is presented, and before
jurors begin their deliberations – generally pose a lesser
threat to criminal defendants’ right to a fair trial compared to
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alleged juror misconduct during trial or deliberations. Cf.
Bailey, 126 Hawaiʻi at 393, 271 P.3d at 1152 (during
deliberations, an empaneled juror shared that the defendant was
previously accused of another crime, leading to a brief
discussion concerning the defendant’s prior criminal record,
which was excluded from evidence).
While prospective jurors’ statements about the
defendant’s guilt could be prejudicial in some contexts – for
example, if a juror expresses personal familiarity with the case
or parties – those are not the circumstances here. We
underscore it is within the discretion of the trial court to
tailor its inquiry to the specific context in which the comments
arose. Here, we conclude that the circuit court’s inquiry was
appropriately tailored to assess the prejudicial nature of
Prospective Juror 20’s comments that Grewer “looked guilty.”
Therefore, it did not abuse its discretion when it determined
that Prospective Juror 20’s hallway comments were self-serving
and made in an attempt to be excused from the jury after
questioning the bailiff and three other prospective jurors who
interacted with Prospective Juror 20 during recess. Nor did the
circuit court abuse its discretion when it opted to provide a
curative instruction rather than individually question the
remaining prospective jurors.
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2. Given the nature of Prospective Juror 20’s comments,
the curative instruction was sufficient to cure any
prejudice
Given the totality of circumstances surrounding
Prospective Juror 20’s comments and the circuit court’s specific
curative instruction to “disregard whatever another prospective
juror said about this case at this time,” we also conclude that
the circuit court’s curative instructions were sufficient to
cure any potential prejudice against Grewer.
In other contexts, we have weighed the sufficiency of
the curative instruction against the prejudicial nature of the
misconduct or improper evidence. For example, in State v. Loa,
this court concluded the trial court did not abuse its
discretion when it denied the defendant’s motion for a mistrial
following improper witness testimony that the defendant and his
friends had just been released from prison. 83 Hawaiʻi 335, 354,
926 P.2d 1258, 1277 (1996). As we explained, “in light of the
overwhelming evidence of [the defendant]’s guilt, whatever
minimal prejudice may have resulted from the complainant’s
revelation of what one of her unidentified attackers had stated
about his past criminality was adequately cured by the trial
court’s immediate cautionary instruction to the jury.” Id. at
353, 926 P.2d at 1276.
Conversely, in State v. Hamala, the improper evidence
at issue was a witness who testified that the defendant
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previously told him that he had shot two people. 73 Haw. 289,
291, 834 P.2d 275, 276 (1992), overruled on other grounds by
State v. Rogan, 91 Hawaiʻi 405, 423 n.10, 984 P.2d 1231, 1249
n.10 (1999). The trial court ruled the testimony inadmissible
and instructed the jury to disregard it, but denied the
defendant’s motion for a mistrial. Id. at 291, 834 P.3d at 276.
On appeal, the ICA ruled the curative instruction was
sufficient, despite the testimony’s highly prejudicial nature,
in light of the overwhelming evidence of the defendant’s guilt.
Id. at 291-92, 834 P.3d at 276. We disagreed, explaining that
“the testimony regarding prior bad acts elicited by the
prosecutor was highly prejudicial and that no curative
instruction could suffice.” Id.
Here, only minimal prejudice could have resulted from
Prospective Juror 20’s careless comments. First, Prospective
Juror 20 was excused following the circuit court’s investigation
into the comments. Second, the comments were only heard by
three prospective jurors, none of whom were empaneled. Third,
the comments were understood by those that heard them as an
attempt to avoid jury duty and did not impact their
impartiality.
Further, the circuit court instructed the jury: “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
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instruct you to disregard whatever another prospective juror
said about this case at this time.” This prompt curative
instruction was given immediately after Prospective Juror 20 was
excused and the remaining jury pool reconvened such that it
“minimized or eliminated the prejudicial effect,” if any, of
Prospective Juror 20’s comments. Cf. State v. Pasene, 144
Hawaiʻi 339, 365, 439 P.3d 864, 890 (2019) (noting several
occasions where the trial court failed to issue necessary
curative instructions). The circuit court also gave a second
curative instruction later that same day, reminding jurors that
their decision must be based only on the evidence received in
the courtroom and to disregard statements from other prospective
jurors.
Considering the minimal potential for prejudice, the
nature of the curative instruction, the promptness with which it
was given, and the fact that it was later reiterated to the jury
that same day, we conclude the circuit court’s prompt curative
instruction was sufficient under the totality of the
circumstances.
Our conclusion here is consistent with the approach
adopted by courts in other jurisdictions that have considered
the issue. See, e.g., State v. Governor, 331 So.2d 443, 447-48
(La. 1976); State v. Montano, 667 P.2d 1320, 1322 (Ariz. 1983)
(en banc); Frances v. State, 316 N.E.2d 364, 366 (Ind. 1974);
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see also John H. Derrick, Cure of Prejudice Resulting From
Statement by Prospective Juror During Voir Dire, In Presence of
Other Prospective Jurors, as to Defendant’s Guilt, 50 A.L.R. 4th
969 § 5[a] (1986) (summarizing cases where prospective juror
statements were later cured). In Governor, a case where a
prospective juror stated he did not believe the complaining
witness would lie, the Louisiana Supreme Court held that the
trial court’s admonition to the jurors “to disregard anything
said by [the prospective juror] concerning his opinion of the
guilt or innocence of the accused,” was sufficient to “cure[]
whatever harmful effect [the prospective juror]’s declaration
may have had on the other jurors.” 331 So.2d at 447-48.
Similarly, in Montano, the Arizona Supreme Court held that
precautions such as instructing the jury that their factual
determinations were to be based solely upon the evidence
presented and that statements by other prospective jurors must
be disregarded “minimized any effect that the juror’s statement
could have had on the remainder of the panel.” 667 P.2d at
1322. Likewise, in Frances, the Indiana Supreme Court also
declined to overrule a trial court’s denial of the defendant’s
motion for a mistrial particularly in light of the curative
action taken by the circuit court to instruct jurors to
“disregard any statements made by the prospective juror” after a
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prospective juror opined that the defendant was guilty during
voir dire. 316 N.E.2d at 366.
Based on the foregoing, we conclude that the circuit
court did not abuse its discretion when it denied Grewer’s
motion for a mistrial because, under the totality of the
circumstances, the circuit court’s prompt jury instruction was
sufficient to cure any minimal prejudice that may have resulted
from Prospective Juror 20’s comments.
B. Overwhelming Evidence of Grewer’s Guilt Outweighed Any
Prejudice Resulting from Prospective Juror 20’s Comments
Even if a rebuttable presumption was raised by
Prospective Juror 20’s comments, the State introduced
overwhelming evidence of Grewer’s guilt that rendered any
prejudice harmless beyond a reasonable doubt.8 See State v.
Estrada, 69 Haw. 204, 221, 738 P.2d 812, 824 (1987) (noting that
where there is “overwhelming, uncontradicted evidence of guilt,”
error can be harmless beyond a reasonable doubt).
Notably, Grewer’s conviction did not solely depend
upon the credibility of witness testimony. Cf. State v.
Underwood, 142 Hawaiʻi 317, 329, 418 P.3d 658, 670 (2018) (“When
8 “The trial court’s investigation of the totality of the circumstances is a necessary prerequisite to finding that the misconduct was harmless beyond a reasonable doubt.” Chin, 135 Hawaiʻi at 448, 353 P.3d at 990 (citation omitted). Here, the circuit court investigated the totality of circumstances, fulfilling the necessary prerequisite to determine whether Prospective Juror 20’s comments were harmless beyond a reasonable doubt.
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a conviction is largely dependent on a jury’s determination as
to the credibility of a complainant’s testimony, we have held
that the evidence of the offense is not so ‘overwhelming’ that
it renders the prosecutor’s improper statements harmless beyond
a reasonable doubt.”). In addition to witness testimony and
circumstantial evidence, forensic DNA evidence found on Grewer’s
bloodied shorts and underneath the victim’s fingernails linking
Grewer to the victim’s murder was adduced at trial.
Further, the evidence presented here is
distinguishable from prior juror misconduct cases where we
concluded that the misconduct was not harmless beyond a
reasonable doubt. E.g., State v Pitts, 146 Hawaiʻi 120, 133, 456
P.3d 484, 497 (2019); Bailey, 126 Hawaiʻi at 401-02, 271 P.3d at
1160-61.
For example, in Pitts, an attempted murder case where
the defense focused on the lack of evidence indicating that
blood was found on his person or clothing, we concluded that
juror misconduct was not harmless beyond a reasonable doubt.
146 Hawaiʻi at 133-34, 456 P.3d at 497-98. There, the jury
during its deliberations conducted an improper examination of
the defendant’s clothing to search for evidence of blood, and as
a result discovered “small drops,” which some jurors determined
“must be blood.” Id. at 131, 456 P.3d at 495. Because “the
nonexistence of the evidence of blood on the [defendant’s]
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clothing was essential to his defense,” we concluded that the
discovery could have tainted the jury’s impartiality. Id. at
133-34, 138, 456 P.3d at 497-98, 502. In contrast, here, the
credibility of Grewer’s defense that his bloody shorts were from
crashing his car where he “ripped up [his] forearms pretty
drastically” was in no way implicated by Prospective Juror 20
stating her desire to be excused from service or her comments
that Grewer “looked guilty.”
In Bailey, a case involving the sexual assault of a
minor where there were “arguable inconsistencies between the
testimony of [the complaining witness] and the physical
evidence,” we concluded that juror misconduct required vacatur.
126 Hawaiʻi at 401, 406, 271 P.3d at 1160, 1165. There, during
deliberations, a juror made “statements concern[ing] a highly
inflammatory and prejudicial prior crime that had been ruled
inadmissible” in front of the other jurors. Id at 402, 271 P.3d
at 1161. We concluded that such misconduct was not harmless
beyond a reasonable doubt and the trial court erred when it
denied the defendant’s motion for a new trial. Id. at 403, 271
P.3d at 1162. In contrast, here, other than Grewer’s own
testimony, there were no significant inconsistencies between
witness testimony and the physical evidence linking Grewer to
the victim’s murder.
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Rather, in addition to witness testimony underscoring
Grewer’s motive to kill upon learning the victim obtained an
eviction order against him and the medical examiner’s testimony
illustrating the severity of the victim’s stab wounds, the State
presented evidence demonstrating that (1) a mixture of Grewer
and the victim’s DNA was present on bloodied shorts found in
Grewer’s kitchen, (2) Grewer’s DNA was found on fingernails
clipped from the victim’s hands, and (3) the victim’s front door
and deadbolt keys were found on Grewer’s couch. Considering
this “overwhelming, uncontradicted evidence of [Grewer’s] guilt”
and the minimal prejudice Prospective Juror 20’s comments that
Grewer “looked guilty” could have had on the empaneled jury, we
conclude there is no reasonable possibility Prospective Juror
20’s comments contributed to Grewer’s conviction. See Estrada,
69 Haw. at 221, 738 P.2d at 824.
V. CONCLUSION
For the foregoing reasons, we reverse the ICA’s
October 8, 2024 Judgment on Appeal and affirm the Circuit
Court’s October 19, 2021 Judgment of Conviction and Sentence.
Tracy Murakami /s/ Mark E. Recktenwald for petitioner
State of Hawaiʻi /s/ Sabrina S. McKenna
Melinda K. Mendes /s/ Todd W. Eddins for respondent
Peter Grewer /s/ Lisa M. Ginoza
/s/ Vladimir P. Devens
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