State v. Riveira

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
11-DEC-2020
07:57 AM
Dkt. 76 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
RALPH CURTIS RIVEIRA, JR., also known as
RALPH C. RIVEIRA, JR. Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC121001439)
MEMORANDUM OPINION
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Ralph Curtis Riveira, Jr., also
known as Ralph C. Riveira, Jr. (Riveira), appeals from the
Judgment of Conviction and Sentence (Judgment), entered on
September 26, 2017, in the Circuit Court of the First Circuit
(circuit court).1/ After a jury trial, Riveira was convicted of
Burglary in the First Degree, in violation of Hawaii Revised
Statutes (HRS) § 708-810(1)(c) (1993).2/
1/
The Honorable Rom A. Trader presided.
2/
HRS 708-810(1)(c) provides:
(1) A person commits the offense of burglary in the
first degree if the person intentionally enters or remains
unlawfully in a building, with intent to commit therein a
crime against a person or against property rights, and:
. . .
(c) The person recklessly disregards a risk that the
building is the dwelling of another, and the
building is such a dwelling.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, Riveira contends that the circuit court
erred in: (1) denying his motion to suppress, and admitting into
evidence, the field "show-up" identifications of Riveira made by
two witnesses; (2) admitting into evidence certain photographs of
Riveira; (3) permitting the State to adduce "victim impact
testimony" during trial; (4) instructing the jury on accomplice
liability; and (5) permitting the State to engage in
prosecutorial misconduct during closing and rebuttal arguments.
For the reasons set forth below, we affirm the
Judgment.
I. Background
At 12:47 p.m. on February 17, 2012, Jayme Watanabe
(Jayme) was pulling into her driveway with her children, when she
noticed a maroon Toyota Tundra pickup truck parked in front of
her home and several family belongings in the driveway. At that
time, Jayme also observed a male running up the slope of her
backyard and jumping over a fence. After the male jumped over
the fence, Jayme called 911 and provided a description of the
male and related that he was carrying a black electronic device.
Jayme then approached the truck and gave the dispatcher a
description of the truck, its license plate, and the female
inside, who she described as having feet with painted toenails on
the dashboard. The truck drove away soon after.
Police arrived at Jayme's home about five to ten
minutes after she called 911. While looking through her home
with police, Jayme noticed that a black Toshiba laptop and three
Nintendo gaming devices were missing.
At around 12:55 p.m. on the same day, police stopped a
truck matching the description Jayme gave to the 911 dispatcher.
The truck contained a female driver and male passenger. Police
identified the female driver as Denise K. Bunao (Bunao) and the
male passenger as Riveira. Police informed Jayme that they had
stopped possible suspects and asked Jayme if she would be willing
to identify them. Officer Kapuanani Zuttermeister (Officer
Zuttermeister) of the Honolulu Police Department drove Jayme
about a mile from Jayme's home to where police had stopped the
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
possible suspects. As they drove by the scene, Jayme identified
the truck and the male and female as being the same ones she
observed at or near her home. After participating in the field
show-up, Jayme filled out a written description form. Jayme
described the person she saw running from her backyard as a
Polynesian male in his thirties with a brown complexion; 5'6" to
6'0" in height; heavy build, 200 to 220 pounds; black,
afro/shaved, crew cut hair; green shirt; plaid cotton shorts; and
boots.
At around 1:30 p.m., Jayme's neighbor, Orlando
Pagaduan, Jr. (Pagaduan), noticed the police at Jayme's house and
went over to see what had happened. While talking to the police,
Pagaduan related that he had seen the truck earlier and got a
good visual of the driver. While Pagaduan was driving home at
around 12:35 p.m., he passed a male sitting alone in the driver's
seat of a red Toyota Tundra pickup truck parked on a street near
their homes. Pagaduan saw the truck again at 12:40 p.m. driving
down his and Jayme's street. The police asked Pagaduan to
accompany them to the scene where they had stopped the possible
suspects to see if he could identify the man he saw. An officer
drove Pagaduan past the scene, separately from Jayme, where he
identified Riveira. After participating in the field show-up,
Pagaduan filled out a written description form. Pagaduan
described the person he saw in the truck as a Caucasian male in
his thirties with a fair complexion; 5'4" to 5'6" in height;
heavy build, 200 to 220 pounds; short, brown, wavy hair; brown
facial hair with a goatee; tattoos; sunglasses and a black cap;
bright yellow short-sleeved t-shirt; and plaid knit medium-length
pants.
On February 24, 2012, police executed a warrant to
search the Toyota Tundra in which Riveira and Bunao had been
apprehended. While conducting the search, police recovered a
black Toshiba laptop and three Nintendo gaming devices. That
same day, Jayme was able to identify the items as belonging to
her family.
On September 28, 2012, Riveira was charged with one
count of Burglary in the First Degree.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On March 11, 2013, Riveira filed a Motion to Suppress
Identification (Motion to Suppress), by which he sought to
suppress the eyewitness identifications of him made by Jayme and
Pagaduan. Riveira argued that: (1) the field show-up procedure
used by police in obtaining the identifications of Riveira was
impermissibly and unnecessarily suggestive, and (2) Jayme's and
Pagaduan's identifications of Riveira were unreliable.
Plaintiff-Appellee State of Hawai#i (State) responded that
although the field show-up procedure used by police may have been
impermissibly suggestive, based on the totality of the
circumstances, Jayme's and Pagaduan's identifications of Riveira
were nonetheless reliable. Jayme, Pagaduan, and Officer
Zuttermeister testified at the September 3, 2013 hearing on the
Motion to Suppress.
On September 25, 2013, the circuit court entered its
written "Findings of Fact, Conclusions of Law, and Order Denying
Defendant's Motion to Suppress Identification" (Order Denying
Motion to Suppress). The circuit court agreed that the field
show-up procedure was impermissibly suggestive, but held that
both Jayme's and Pagaduan's identifications of Riveira were
nonetheless reliable.
On October 15, 2013, Riveira filed Defendant's First
Motion in Limine, which sought to exclude, inter alia: (1) a
photograph of Riveira that police recovered from a "brown
zippered nylon pouch" (also described as a "beach bag") that
belonged to Bunao and was discovered in the Toyota Tundra truck,
because the photograph was irrelevant or unfairly prejudicial;
(2) photographs taken of Riveira after he was arrested on
February 17, 2012, because they were irrelevant or unfairly
prejudicial; and (3) Jayme's identification of Riveira as the
suspect to Officer Zuttermeister, because it was hearsay. The
circuit court orally held that it would preliminarily exclude the
photograph found in the bag, noting that it would reopen the
matter if the connection between Riveira and Bunao was raised as
an issue at trial by the defense. The circuit court also denied
Riveira's request to exclude the photographs taken of Riveira
after his arrest and Jayme's identification of Riveira to Officer
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Zuttermeister.
The jury trial took place on October 21, 23, and 24,
2013. Various witnesses testified for the State, including Jayme
and Ryan (Ryan) Watanabe, Officer Norman Padilla (Officer
Padilla), and Detective Michael Choy (Detective Choy). During
the trial, the circuit court determined that Riveira opened the
door to revisiting the admissibility of the photograph found in
the bag. After a conference with the parties outside the
presence of the jury, the circuit court determined that the
photograph was admissible. After the presentation of the
evidence concluded, the circuit court gave the jury instructions,
which included, inter alia, the elements of Burglary in the First
Degree and accomplice liability. The jury found Riveira guilty
as charged, and the circuit court convicted him of one count of
Burglary in the First Degree.
II. Points of Error
On appeal, Riveira contends that the circuit court
erred by: (1) denying his Motion to Suppress and admitting the
field show-up identifications made by Jayme and Pagaduan; (2)
admitting a full-body arrest photograph of Riveira; (3) admitting
the photograph of Riveira that was found in the truck associated
with the alleged crime; (4) permitting the State to adduce
testimony from the complaining witnesses, Jayme and Ryan,
regarding the impact the alleged burglary had on them; (5)
instructing the jury on accomplice liability; and (6) permitting
the State to engage in prosecutorial misconduct during closing
and rebuttal arguments. Riveira further contends that the
cumulative effect of some or all of these errors warrants
reversal of the Judgment.3/
III. Standards of Review
A. Motion to Suppress Eyewitness Identification
With respect to whether an eyewitness identification
should be suppressed, we have held that "questions of
suggestiveness and reliability are questions of law that are
freely reviewable on appeal." State v. Okumura, 78 Hawai #i
3/
Riveira's points of error have been restated and condensed for
clarity.
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
383, 391, 894 P.2d 80, 88 (1995), abrogated on other grounds
by [State v. ]Cabagbag, 127 Hawai#i [302,] 315, 277 P.3d
[1027,] 1040 [(2012)]. However, "answering these questions
involves determinations of fact by the trial court." 78
Hawai#i at 392, 894 P.2d at 89. "Factual determinations
made by the trial court deciding pretrial motions in a
criminal case are governed by the clearly erroneous
standard," and "conclusions of law are reviewed under the
right/wrong standard." State v. Edwards, 96 Hawai #i 224,
231, 30 P.3d 238, 245 (2001) (quoting State v. Eleneki, 92
Hawai#i 562, 564, 993 P.2d 1191, 1193 (2000)).
State v. Kaneaiakala, 145 Hawai#i 231, 240, 450 P.3d 761, 770
(2019) (original brackets omitted).
B. Admissibility of Evidence
As a general rule, [the appellate] court reviews
evidentiary rulings for abuse of discretion. Kealoha v.
County of Hawai#i, 74 Haw. 308, 319, 844 P.2d 670, 676
(1993). However, when there can only be one correct answer
to the admissibility question, or when reviewing questions
of relevance under Hawai#i Rules of Evidence (HRE) Rules 401
and 402, [the appellate] court applies the right/wrong
standard of review. Id. at 319, 844 P.2d at 676; State v.
White, 92 Hawai#i 192, 204-05, 990 P.2d 90, 102-03 (1999).
Moyle v. Y & Y Hyup Shin, Corp., 118 Hawai#i 385, 391, 191 P.3d
1062, 1068 (2008) (original brackets omitted) (quoting Kamaka v.
Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92, 104, 176 P.3d
91, 103 (2008)).
C. Prosecutorial Misconduct
"Allegations of prosecutorial misconduct are reviewed
under the harmless beyond a reasonable doubt standard, which
requires an examination of the record and a determination of
whether there is a reasonable possibility that the error
complained of might have contributed to the conviction." State
v. Rogan, 91 Hawai#i 405, 412, 984 P.2d 1231, 1238 (1999)
(quoting State v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d
1215, 1220 (1996)) (internal quotation marks omitted).
D. Jury Instructions
"When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when
read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading."
"Erroneous instructions are presumptively harmful and
are a ground for reversal unless it affirmatively appears
from the record as a whole that the error was not
prejudicial."
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Error is not to be viewed in isolation and considered
purely in the abstract. It must be examined in the light of
the entire proceedings and given the effect which the whole
record shows it to be entitled. In that context, the real
question becomes whether there is a reasonable possibility
that error might have contributed to conviction.
State v. Cullen, 86 Hawai#i 1, 8, 946 P.2d 955, 962 (1997)
(citations and brackets omitted; block quote format altered)
(quoting State v. Arceo, 84 Hawai#i 1, 11-12, 928 P.2d 843, 853-
53 (1996)) .
IV. Discussion
A. Field Show-up Identifications
In his first point of error, Riveira argues that the
circuit court erred in denying his Motion to Suppress because the
field show-up identifications by Jayme and Pagaduan were both
impermissibly suggestive and unreliable.
The circuit court concluded that the field show-up
procedure was impermissibly suggestive, and the State concedes
this point. See State v. Cabinatan, 132 Hawai#i 63, 76, 319 P.3d
1071, 1084 (2014) ("While show-ups are permissible, they are
inherently suggestive." (brackets omitted) (citing State v.
DeCenso, 5 Haw. App. 127, 131, 681 P.2d 573, 578 (1984))).
Accordingly, we must decide whether the field show-up
identifications made by Jayme and Pagaduan, though obtained
through an impermissibly suggestive procedure, were nonetheless
reliable under the circumstances. In reviewing the denial of a
motion to suppress, we look at both the record of the hearing on
the motion to suppress and the record of the trial. State v.
Vinuya, 96 Hawai#i 472, 481, 32 P.3d 116, 125 (App. 2001).
In State v. Padilla, 57 Haw. 150, 154, 552 P.2d 357,
360 (1976), abrogated on other grounds by State v. Cabagbag, 127
Hawai#i 302, 277 P.3d 1027 (2012), and prospectively overruled by
Kaneaiakala, 145 Hawai#i 231, 450 P.3d 761, the supreme court
adopted a totality-of-the-circumstances approach to determine
whether an eyewitness identification procured through an
impermissibly suggestive procedure is nonetheless sufficiently
reliable to be admissible in evidence. In making its
determination, the trial court must consider the following
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
factors: (1) the opportunity of the witness to view the
defendant at the time of the crime; (2) the witness's degree of
attention; (3) the accuracy of the witness's prior description of
the defendant; (4) the level of certainty demonstrated by the
witness at the identification; and (5) the length of time between
the crime and the identification. Padilla, 57 Haw. at 154, 552
P.2d at 360 (citing Neil v. Biggers, 409 U.S. 188, 199-200
(1972)). "As long as there is not a substantial likelihood of
misidentification, it is the function of the jury to determine
the ultimate weight to be given the identification." DeCenso, 5
Haw. App. at 132, 681 P.2d at 578 (citing Manson v. Brathwaite,
432 U.S. 98 (1977)).
We recognize that the Hawai#i Supreme Court recently
overruled Padilla's five-factor test and established new rules
for determining the admissibility of eyewitness identification in
Kaneaiakala, 145 Hawai#i at 234-36, 450 P.3d at 764-66. However,
the supreme court expressly stated in Kaneaiakala that its
holdings apply only prospectively, and, here, the circuit court
made its admissibility determinations before the Kaneaiakala
opinion was issued. Accordingly, we consider the circuit court's
rulings under Padilla, which was the governing case law at the
time of the rulings. See Kaneaiakala, 145 Hawai#i at 235-36, 450
P.3d at 765-66 (stating that the court's newly-established rules
have prospective-only effect and that the trial court did not err
in applying the Padilla factors in its admissibility
determination at the time it was made). Based on the
prospective-only effect of the supreme court's decision in
Kaneaiakala, we reject Riveira's proposal to disregard the
witnesses' degrees of certainty in identifying a suspect, and to
instead consider the degree to which the police's use of a
suggestive procedure tainted the witnesses' identification.
1. Pagaduan
Riveira asserts that, under the totality of the
circumstances, Pagaduan's identification was unreliable because:
(1) Pagaduan had only a fleeting opportunity to view Riveira as
Pagaduan drove past Riveira sitting in a parked truck; (2)
Pagaduan's attention was slight; (3) Pagaduan's descriptions of
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the suspect before and after the field show-up were inconsistent
with his identification of Riveira, because Riveira was not
wearing a construction shirt, a hat, or sunglasses during the
field show-up; and (4) at the hearing on the Motion to Suppress,
Pagaduan indicated that he relied on Riveira's tattoos to
identify him, but at trial, Pagaduan "prevaricated" on whether
the tattoos "had anything to do with" Pagaduan's ability to
identify Riveira. Riveira challenges the circuit court's
findings of fact (FOFs) 2 and 16,4/ and conclusions of law (COLs)
14 and 155/ in the Order Denying Motion to Suppress.
At both the hearing on the Motion to Suppress and at
trial, Pagaduan testified that on February 17, 2012, he passed a
man in a red Toyota Tundra extra cab, whom he later identified as
Riveira, on a brightly lit afternoon with an unobstructed view
from about twenty feet away. Pagaduan further stated that during
the ten seconds he was passing the man and the truck, his
attention was drawn to the truck because it was parked opposite
of traffic over a storm drain, and to the man, whom he did not
recognize, because the man gave Pagaduan a "shaka" as Pagaduan
passed. Pagaduan also testified that during the time he passed
the suspect, he observed the man's tattoos, short hair, and
yellow construction shirt. Pagaduan stated he saw the truck pass
him about five minutes later. Such testimony establishes that
Pagaduan's opportunity to view the suspect was not fleeting; nor
was his attention slight. FOF 2 is not clearly erroneous.
4/
FOF 2 states: "At the time Mr. Pagaduan observed this male the
following conditions existed: (a) the lighting conditions were daytime; (b)
his view was unobstructed and (c) his attention was focused on this unfamiliar
male in his neighborhood."
FOF 16 states: "As a HPD Officer drove Mr. Pagaduan past
Defendant, Mr. Pagaduan positively identified Defendant as the man he saw at
approximately 12:35 p.m. parked in his neighborhood. Mr. Pagaduan made his
identification based on the Defendant's short brown hair and tattoos."
5/
COL 14 states: "Under the totality of the circumstances, the
pretrial identification of Defendant by Mr. Pagaduan on February 17, 2012, was
nevertheless reliable and worthy of consideration by a jury."
COL 15 states: "There is not a substantial likelihood of
misidentification in the pretrial identification of Defendant by Mr. Pagaduan
on February 17, 2012."
9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Pagaduan testified at both the hearing on the Motion to
Suppress and at trial that about two hours elapsed between the
time he first observed the suspect and when he participated in
the field show-up. The two-hour time period is not particularly
significant and does not render Pagaduan's identification
suspect. See, e.g., State v. Araki, 82 Hawai#i 474, 485-86, 923
P.2d 891, 902-03 (1996) (concluding that a seven-week period of
time between the commission of the crime and the time of
identification was "neither so short as to favor reliability nor
too long to raise any serious doubts" (quoting Okumura, 78
Hawai#i at 393, 894 P.2d at 90 (same conclusion as Araki for an
eight-week period), abrogated on other grounds by Cabagbag, 127
Hawai#i 302, 277 P.3d 1027)); In re Doe, 107 Hawai#i 439, 451, 114
P.3d 945, 957 (App. 2005) (concluding that a period as brief as
two hours does not appear to be particularly significant),
overruled on other grounds by State v. Chang, 144 Hawai#i 535,
445 P.3d 116 (2019).
As to Pagaduan's certainty when identifying Riveira
during the field show-up identification, Pagaduan stated during
the hearing on the Motion to Suppress that Riveira was a
"positive match to the person" he saw, including the tattoos. At
trial, Pagaduan stated that he was one hundred percent sure of
his identification. FOF 16 is not clearly erroneous.
Riveira's contention that Pagaduan "prevaricated" on
whether Riveira's tattoos had anything to do with Pagaduan's
ability to identify Riveira misconstrues Pagaduan's testimony.
The record indicates that at trial, Pagaduan could not recall
whether he had identified Riveira in part by his tattoos. After
his recollection was refreshed by reviewing his witness
statement, Pagaduan testified that he did identify Riveira in
part based on his tattoos. Contrary to Riveira's assertion,
Pagaduan did not "prevaricate."
Based on Pagaduan's testimony at trial, it appears that
his written suspect description and statement were, at least in
regards to the suspect's shorts and sunglasses, a combination of
his pre-show-up identification impressions of the suspect and
what he observed at the field show-up. Pagaduan also testified
10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
that when he identified Riveira at the field show-up, Riveira was
not wearing the yellow shirt he saw the man in the truck wearing;
Pagaduan could not remember if Riveira was wearing a black cap.
Despite the discrepancies between Pagaduan's description of the
suspect and his identification of Riveira, based on the Padilla
factors and the totality of the circumstances as reflected in the
record, the circuit court did not err in denying Riveira's Motion
to Suppress as to Pagaduan's pretrial identification. COLs 14
and 15 are supported by the FOFs and the record, and are right.
2. Jayme
Riveira asserts that under the totality of the
circumstances, Jayme's identification was unreliable because: (1)
when she purportedly saw Riveira running from her property, Jayme
may have been distracted by the truck, the objects out of place
in her driveway, the objects the man was carrying away, concern
for her sons, and calling 911; (2) she saw the suspect for only a
few seconds and did not see his face; (3) she filled out the
written statement and suspect description forms only after the
field show-up identification; and (4) at the field show-up,
Riveira was not wearing the same shirt Jayme stated the suspect
was wearing when Jayme first saw him. Riveira challenges the
circuit court's FOFs 7 and 14,6/ and COLs 11 and 127/ in the
circuit court's Order Denying Motion to Suppress.
At the hearing on the Motion to Suppress and at trial,
Jayme testified that on February 17, 2012, she was returning home
to her residence, when she noticed a maroon Toyota Tundra parked
6/
FOF 7 states: "At the time Ms. Watanabe observed this male the
following conditions existed: (a) the lighting conditions were daytime; (b) her
view was unobstructed and (c) her attention was focused on this unfamiliar male
running through her back yard [sic]."
FOF 14 states: "Although Defendant was standing next to the maroon
Toyota Tundra with license plate 'RDF486,' at the time of Ms. Watanabe's
identification of him, she did not identify him as the male she had seen earlier
based on this reason."
7/
COL 11 states: "Under the totality of the circumstances, the
pretrial identification of Defendant by Ms. Watanabe on February 17, 2012, was
nevertheless reliable and worthy of consideration by a jury."
COL 12 states: "There is not a substantial likelihood of
misidentification in the pretrial identification of Defendant by Ms. Watanabe
on February 17, 2012."
11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
next to her mailbox and saw a female in the passenger seat with
her feet on the dashboard with painted toenails. Jayme further
testified she noticed certain family belongings in her carport,
and then when she exited her vehicle, she noticed someone running
through the back of her yard. Jayme testified she had an
unobstructed view of a heavy-set man, between five feet, six
inches and six feet tall with short black hair, running from her
property and jumping over her fence. Jayme described the man as
dressed in a bright "construction green colored" shirt, plaid
shorts, and dark construction boots. Jayme further stated that
she was about thirty feet from him, it was a clear day, and she
observed the suspect for between five and ten seconds. However,
Jayme admitted that she did not see the front of his body or
face. Although Jayme was unable to see the suspect's face, the
record indicates that she otherwise had a good opportunity to
view the suspect. Cf. Kaneaiakala, 145 Hawai#i at 236-37, 241,
450 P.3d at 766-67, 771 (determining that the circuit court did
not clearly err in finding that the witness "got a good look" at
the suspect on the day of the incident when she testified that
from four meters away she was able to observe the suspect's
shirt, complexion, build, and hair, but could only see half of
the suspect's face, which was partially covered by a hat).
With respect to Jayme's degree of attention, although
she stated that she was concerned by the objects in her driveway
that were not in their usual location and for the safety of her
children, Jayme testified that she was focused on both the man
and the objects he was carrying, and was not distracted by
anything else. Further, Jayme testified that she did not call
911 until after the suspect had already jumped over her fence and
that it was during the 911 call that she walked over to the truck
to convey the license plate number to the 911 operator. FOF 7 is
not clearly erroneous.
As to the accuracy of Jayme's prior description of the
suspect, Jayme testified at trial that at the field show-up,
Riveira "was wearing the same plaid shorts, he had the same
build, he had the same shoes. The only thing [that] was
different was his shirt; he was not wearing the construction neon
12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
shirt." Instead, Riveira was wearing a white shirt at the field
show-up.
Regarding Jayme's certainty of her identification of
Riveira at the time of the field show-up identification, she
testified at trial that she believed it was the same man based on
what he was wearing, his heavy set build, his dark skin, and the
female that was with him. Jayme noted that the suspect was not
wearing the same shirt during the identification procedure, but
she was nonetheless a "hundred percent" certain of her
identification at the time. Jayme also testified at the hearing
on the Motion to Suppress that she identified Riveira based on
the above, and not because he was standing next to the truck she
observed in front of her house. Therefore, FOF 14 is not clearly
erroneous.
The length of time between the alleged crime and the
identification was less than one hour, which is not particularly
significant. See, e.g., Araki, 82 Hawai#i at 485-86, 923 P.2d at
902-03; Okumura, 78 Hawai#i at 393, 894 P.2d at 90; In re Doe,
107 Hawai#i at 451, 114 P.3d at 957.
To the extent that we have determined that the field
show-up procedure was impermissibly suggestive and that the
holding in Kaneaiakala has only prospective effect, we need not
address Riveira's contention that Jayme's identification was
unreliable on the basis that she filled out the written statement
and suspect description forms after the field show-up
identification. Nonetheless, Jayme testified that she filled out
the forms based on her memory of the suspect in her backyard, not
at the field show-up.
Based on the Padilla factors and the totality of the
circumstances as reflected in the record, the circuit court did
not err in denying Riveira's Motion to Suppress as to Jayme's
pretrial identification. COLs 11 and 12 are supported by the
FOFs and the record, and are right.
Riveira also argues that Jayme's pretrial
identification was hearsay and that the circuit court erred in
admitting it as a hearsay exception under HRE Rule 802.1(3)
13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(2009)8/ or for the purpose of explaining the investigation. We
disagree.
Riveira posits that Jayme's pretrial identification was
inadmissible under HRE Rule 802.1(3) because she did not identify
"a person," insofar as she did not see the suspect's face, and
because the identification procedure was suggestive.
The plain language of HRE Rule 802.1(3) states that
there are only two requirements to admit a prior statement
as an exception to the hearsay exclusionary rule for the
purposes of identification: (1) the declarant must be
subject to cross-examination, and (2) the statement must be
one of identification of a person made after perceiving that
person.
State v. Tafokitau, 104 Hawai#i 285, 291, 88 P.3d 657, 663 (App.
2004). HRE Rule 802.1(3) does not address the suggestiveness of
an identification procedure.
The record evinces that Jayme identified the suspect's
build, height, complexion, clothing, and hair after observing the
suspect, and Riveira does not point to any authority recognizing
these characteristics as insufficient to establish the
"identification of a person." In our view, these characteristics
were sufficient. Cf. Kaneaiakala, 145 Hawai#i at 236-37, 241,
450 P.3d at 766-67, 771. The record also shows that Jayme was
available for cross-examination and that her statements of
identification were made after she observed the suspect in her
backyard. Therefore, the admission of her pretrial
identification complied with the two requirements of HRE Rule
802.1(3).
Further, contrary to Riveira's assertion, the State was
permitted to present Jayme's pretrial identification of Riveira
as substantive proof of identity. See State v. Motta, 66 Haw.
8/
HRE Rule 802.1(3) provides, in relevant part:
Rule 802.1 Hearsay exception; prior statements by
witnesses. The following statements previously made by
witnesses who testify at the trial or hearing are not excluded
by the hearsay rule:
. . .
(3) Prior identification. The declarant is subject to
cross-examination concerning the subject matter of the
declarant's statement, and the statement is one of
identification of a person made after perceiving that person[.]
14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
254, 262, 659 P.2d 745, 751 (1983) ("[T]he prior identification
exception under Fed. R. Evid. 801(d)(1)(c) (and under Haw. R.
Evid. 802.1(3)) allows the admission of pretrial identifications,
not merely as corroborative evidence, but also as substantive
proof of identity.").
On this record, the circuit court did not err in
admitting Jayme's pretrial identification. See State v. Abrigo,
144 Hawai#i 491, 497, 445 P.3d 72, 78 (2019) ("Where the
admissibility of evidence is determined by application of the
hearsay rule, there can be only one correct result, and the
appropriate standard for appellate review is the right/wrong
standard." (quoting State v. Moore, 82 Hawai#i 202, 217, 921 P.2d
122, 137 (1996) (brackets and internal quotation marks
omitted))).
B. Victim Impact Testimony
At trial, the State adduced testimony from Ryan and
Jayme on direct examination regarding how the alleged burglary
left them feeling violated. Since Riveira did not object during
trial, we review for plain error. See Hawai#i Rules of Penal
Procedure (HRPP) Rule 52(b).
Riveira contends that pursuant to HRE Rules 401 and
403, the testimony was irrelevant, and its probative value was
substantially outweighed by the danger of unfair prejudice. The
State does not directly rebut Riveira's arguments based on HRE
Rules 401 and 403. Rather, the State posits that a finding of
plain error is unwarranted because defense counsel expounded on
the testimony complained of during cross-examination and the
failure to object was a matter of trial strategy.
On direct examination, the State adduced the following
testimony from Ryan:
Q. Mr. Watanabe, how did it make you feel after you
had learned that you had been burglarized?
A. Violated. It makes you feel violated.
Q. Anything beyond that?
A. No.
The State also adduced the following testimony
from Jayme:
15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Q. Mrs. Watanabe, how did it make you feel having
your home burglarized on February 17th, 2012?
A. Very violated. I'm a mother of children, and to
have someone in my home, where my children sleep, this
person has been in my property, and it's a very personal
feeling, and I had a hard time sleeping afterwards. I was
very concerned for my safety, for the safety of my family.
And to this day I make sure that I put all electronics --
before I leave the home, I make sure I hide them because of
-- of this occurrence. So it's affected me deeply.
On cross-examination, defense counsel questioned Jayme
as follows:
Q. Like you just testified, it's not a good feeling
to go home where you're supposed to be safe and secure,
correct?
. . . .
Q. I bet you that even when -- for example, when you
hear a noise, you start looking out, right, you start
getting a feeling, right, that maybe somebody's here, right?
. . . .
Q. So is it safe to say that sometime [sic] time --
you know, when they say time heals a broken heart, that
passage of time actually makes things a little bit better?
. . . .
Q. And passage of time makes you look back and
reflect as to what actually happened and makes you have a
better sense of what actually occurred; isn't that right?
The testimony from Ryan and Jayme regarding the alleged
burglary's impact on them was not relevant, because it did not
have a tendency to make it more or less probable that Riveira
committed the burglary; nor did it have a bearing on any other
fact of consequence. See HRE Rule 401; see also State v. Lora,
147 Hawai#i 298, 309 n.14, 465 P.3d 745, 756 n.14 (2020)
("[I]mpact evidence is 'generally considered irrelevant if
offered during the guilt phase of a trial unless relevant to a
proper purpose, such as to impeach a victim's credibility or
establish an element of the crime at issue[.]'" (quoting Kimberly
J. Winbush, Admissibility of Victim Impact Evidence in Noncapital
State Proceedings, 8 A.L.R. 7th Art. 6 (2016))).
Although the testimony was not relevant, we conclude
that its admission did not affect Riveira's substantial rights
and therefore did not rise to the level of plain error. In
determining whether irrelevant testimony of trial witnesses
16
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
prejudiced a defendant's substantial rights, we consider the
entire record, paying particular attention to: "the purpose of
the testimony, whether the [witnesses] expressed their opinions
or characterizations of the crime and the effect of the crime on
[them], the strength and weakness of the evidence against the
defendant, whether the failure to object to such testimony was
the result of trial strategy or ineffective assistance of
counsel, and whether and how the testimony was woven into the
case." State v. Uyesugi, 100 Hawai#i 442, 460, 60 P.3d 843, 861
(2002); see Lora, 147 Hawai#i at 310, 465 P.3d at 757 (applying
Uyesugi to determine the prejudicial effect of a complaining
witness's erroneously admitted testimony about what it was like
to undergo the sexual assault physical examination and what she
wished she had done differently around the time of the assault).
As discussed above, Ryan and Jayme testified about the
effects of the alleged crime on them. Such testimony was not
relevant to the issues in this case. However, it appears that
defense counsel's failure to object to the testimony was a result
of trial strategy, as defense counsel expounded upon Jayme's
testimony on cross-examination in an apparent effort to challenge
the reliability of her pretrial identification of Riveira.
Although the State briefly mentioned in both its opening
statement and rebuttal closing argument that the evidence would
show and had shown that Ryan and Jayme lost their sense of
security, this point was not substantially woven into the case or
substantially highlighted in the arguments or on direct
examination. As for evidence linking Riveira to the crime, both
Jayme and Pagaduan identified Riveira as the person they had
seen, and the police recovered the stolen items from the truck in
which Riveira was apprehended. On balance, these factors support
the conclusion that the error in admitting Ryan's and Jayme's
testimonies did not affect Riveira's substantial rights. See
Uyesugi, 100 Hawai#i at 460-62, 60 P.3d at 861-63.
C. Admissibility of Photographs
Riveira next contends that the circuit court erred in
admitting a full-body arrest photograph of Riveira and a
17
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
photograph of Riveira that was found in the truck associated with
the alleged crime.
1. Full-body Photograph
Riveira argues that the circuit court erred in
admitting State's Exhibit 17, a full-body photograph of Riveira
at the field show-up. Riveira contends that the State did not
have a demonstrable need for the photograph because State's
Exhibit 18, a photograph depicting Riveira's head and shoulders
on the same day, was sufficient to verify the accuracy of Jayme's
prior description. Riveira also asserts that the full-body
photograph highlights its source as a police photograph and
implies criminality because he is depicted with his hands behind
his back, a police officer is standing in the background, and he
is standing next to the truck implicated in the alleged offense.
Riveira relies on State v. Reiger, 64 Haw. 510, 644 P.2d 959(1982), and State v. Kutzen, 1 Haw. App. 406, 620 P.2d 258(1980), in supporting his assertion.
In Kutzen, this court adopted a three-part test (the
Kutzen test) to determine whether the admission of police
photographs at trial was proper:
1. The Government must have a demonstrable need to
introduce the photographs; and
2. The photographs themselves, if shown to the jury, must
not imply that the defendant has a prior criminal
record; and
3. The manner of introduction at trial must be such that
it does not draw particular attention to the source or
implications of the photographs.
Kutzen, 1 Haw. App. at 412-13, 620 P.2d at 262-63 (quoting U.S.
v. Fosher, 568 F.2d 207, 214 (1st Cir. 1978)); see also State v.
Yamada, 116 Hawai#i 422, 439-41, 173 P.3d 569, 586-88 (App.
2007). But see State v. Fung, No. 30206, 2010 WL 4791966, at *1-
2 (Haw. App. Nov. 23, 2010) (SDO) (applying Kutzen to determine
whether the trial court erred in admitting a photograph that was
undisputedly the defendant's mug shot, but did not have the
common characteristics of a mug shot, while noting that "[i]t is
not clear . . . whether the Kutzen test applies to every
photograph of a criminal defendant obtained while in police
18
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
custody or whether it applies only to photographs with some
associated indicia of criminal conduct").
Applying the Kutzen test here, first, the State had a
demonstrable need for the photographic evidence to establish the
reliability of Jayme's pretrial identification of Riveira because
Riveira asserted that this was a case of mistaken identity, and
Jayme admitted that she would be unable to make a definite
in-court identification based on the passage of time. See
Yamada, 116 Hawai#i at 440, 173 P.3d at 587 ("Yamada raised the
defense of alibi. Accordingly, evidence that [the witnesses] had
fairly picked Yamada from the photographic array was relevant and
necessary to the government's case." (quoting Reiger, 64 Haw. at
512, 644 P.2d at 962) (internal quotation marks omitted)). We
disagree with Riveira's contention that State's Exhibit 18 was
sufficient to establish that point. Jayme's pretrial
identification included a description of the suspect's plaid
shorts and dark construction boots, which were not portrayed in
State's Exhibit 18.
Second, the photograph depicts Riveira during the
field show-up in the current case and therefore does not in and
of itself imply that Riveira had a prior criminal record.
Although the photograph may imply that Riveira was in custody at
the time it was taken,9/ the jury could separately infer that
fact through Pagaduan's and Jayme's testimonies regarding their
field show-up identifications. Thus, the circuit court did not
abuse its discretion in determining that the probative value of
the photograph was not substantially outweighed by the danger of
unfair prejudice. See HRE Rule 403.
Third, the photograph was not introduced in a manner
that drew particular attention to its source or implications.
Rather, the photograph was introduced during re-direct
examination of Jayme and the source of the photograph was not
mentioned to the jury. See Fung, 2010 WL 4791966, at *2 (noting
that because the challenged photograph was introduced during
9/
The photograph depicts Riveira with his hands behind his back and
leaning upon the truck implicated in the alleged offense. However, no handcuffs
appear visible and the police officer in the photograph is clearly several feet
away from Riveira with his back turned toward Riveira.
19
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
eyewitness testimony and the source of the photograph was not
mentioned, it was not introduced in a manner that drew particular
attention to its source or implications).
Weighing these factors, we cannot conclude that the
circuit court abused its discretion in admitting State's Exhibit
17, the full-body photograph of Riveira,into evidence.
2. Testimony Regarding Photograph of Riveira
Found in the Truck
Riveira asserts that the circuit court erred during
trial when it admitted testimony that police found a photograph
of Riveira in a beach bag located within the Toyota Tundra truck.
Riveira argues that he did not open the door to the circuit court
reconsidering the admissibility of testimony regarding the
photograph, which the court had preliminarily excluded prior to
trial in its ruling on Defendant's First Motion in Limine.
Rivera further argues that the testimony was irrelevant to the
State's theory of accomplice liability because it had not adduced
evidence of who owned the bag.
During cross-examination, defense counsel questioned
Detective Choy as to whether, when taking photographs of the
truck, he had noticed any personal items belonging to Riveira in
the truck, as follows:
Q. Okay. There was nothing else that would indicate,
like, a personal item of Mr. Riveira?
A. Not that I know of.
Q. Okay. The items that you took photos of, for
example, the bag --
A. Yes.
Q. -- through your investigation you determined that
-- correct me if I'm wrong -- that those items belonged to
Ms. Bunao?
This line of questioning appears to have been intended to show
that there was no connection between Bunao and Riveira, beyond
Riveira merely being a passenger in the truck when they were
apprehended. By raising the issue of the connection between
Bunao and Riveira, defense counsel thus opened the door to
admissible testimony pertaining to the photograph. See State v.
Lavoie, 145 Hawai#i 409, 422-23, 453 P.3d 229, 242-43 (2019).
20
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
In determining the admissibility of the testimony
pertaining to the photograph during the State's questioning, the
circuit court held a conference outside the presence of the jury.
The State proffered that the purpose of the testimony would be to
counter Riveira's distancing of himself from Bunao and the truck.
In light of defense counsel's line of questioning, the
testimony regarding the photograph had the tendency to make the
existence of a connection between Bunao and Riveira, beyond the
mere fact that Riveira was apprehended with Bunao, more probable
than it would have been without the evidence. See HRE Rules 401,
402. Although the State did not show directly that the bag at
issue belonged to Bunao, the State did adduce evidence that Bunao
was the registered owner of the truck and was apprehended in the
truck, which could permit a reasonable inference that the bag
belonged to her. See State v. Silva, 67 Haw. 581, 586, 698 P.2d
293, 297 (1985) (stating that in order to be relevant under HRE
Rule 401 and 402, "evidence need only be a building block of a
prima facie case. It does not have to prove the case on its
own." (citing State v. Irebaria, 55 Haw. 353, 356, 519 P.2d 1246,
1248-49 (1974))). Therefore, the testimony was relevant to
Riveira's accomplice or principal liability in the burglary.
During the bench conference, defense counsel asserted
that admission of the testimony would be prejudicial "because
it'll allow the jury to think, hey, they know each other, they
planned it together, one was a look-out and so forth." See HRE
Rule 403.
"The balance between the evidence's probative value
and prejudicial effect is 'predicated upon an assessment of the
need for the evidence, the efficacy of alternative proof, and the
degree to which the evidence will probably rouse the jury to
overmastering hostility.'" State v. Martin, 146 Hawai#i 365,
383–84, 463 P.3d 1022, 1040–41 (2020) (quoting Uyesugi, 100
Hawai#i at 463, 60 P.3d at 864)) (some internal quotation marks
omitted). Prior to the bench conference, the testimonies of
State witnesses established that: Riveira was the man sitting in
the truck that was pulled on the side of Uluoa Street, over a
drainage grate, at around 12:35 p.m.; Riveira was the man seen
21
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
running from Jayme's property around 12:47 p.m.; Bunao was the
woman sitting in the truck around that time; and Riveira and
Bunao were the people stopped in the truck at around 12:55 p.m.
by Officer Padilla. Thus, the additional testimony regarding the
photograph was arguably cumulative because the prior witnesses'
testimonies provided alternative proof of a connection between
Riveira and Bunao, beyond the fact that Riveira was apprehended
with Bunao. See id. Nonetheless, the danger of any prejudicial
effect was allayed by the following instructions, which the jury
is presumed to have followed:
Mere presence at the scene of an offense or knowledge
that an offense is being committed, without more, does not
make a person an accomplice to the offense. However, if a
person plans or participates in the commission of an offense
with the intent to promote or facilitate the offense, he/she
is an accomplice to the commission of the offense.
The burden of proof is on the prosecution with
reference to every element of a crime charged, and this
burden includes the burden of proving beyond a reasonable
doubt the identity of the defendant as the person
responsible for the crime charged.
(Emphases added.) See State v. Acacio, 140 Hawai#i 92, 102, 398
P.3d 681, 691 (2017) (determining that a trial court's concern
about unfair prejudice could be allayed by a limiting
instruction); State v. Acker, 133 Hawai#i 253, 278, 327 P.3d 931,
956 (2014) ("[A] jury is presumed to follow the instructions it
is given by the court.").
The circuit court correctly determined that the
testimony was relevant and did not abuse its discretion in
admitting the testimony. See Moyle, 118 Hawai#i at 391, 191 P.3d
at 1068.
D. Prosecutorial Misconduct
Riveira contends that the State engaged in
prosecutorial misconduct during closing and rebuttal argument
when: (1) "it asked the jury to place themselves in the
Watanabes' position and invited the jury to hold Riveira
'accountable' for the sense of safety he took away from the
Watanabes"; (2) "[t]he prosecutor . . . interjected his personal
opinion about how 'frustrating' it was not to have direct
evidence of Riveira's entry into the home, and then invited the
22
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
jury to join him in solidarity as to what 'we know' occurred even
without that piece of evidence"; (3) "[t]he prosecutor disparaged
defense counsel, accusing him of trying to 'trick' the jury"; and
(4) it "tether[ed] the jurors' oaths to return a 'just verdict'
solely to convicting Riveira as charged." Riveira further
contends that the alleged misconduct warrants a new trial based
on the lack of curative instructions and the weakness of the
case, which depended solely on Jayme's testimony. It appears
that at trial, Riveira objected to only the first assertion of
prosecutorial misconduct. Therefore, we review the remaining
assertions for plain error. See HRPP Rule 52(b).
"This court evaluates claims of improper statements by
prosecutors by first determining whether the statements are
improper, and then determining whether the misconduct is
harmless." State v. Tuua, 125 Hawai#i 10, 14, 250 P.3d 273, 277
(2011) (citing State v. Kiakona, 110 Hawai#i 450, 458, 134 P.3d
616, 624 (App. 2006)).
Riveira's first assertion of prosecutorial misconduct
comprises two arguments. First, he contends that the State
improperly asked the jury to put themselves in the Watanabes'
position. This argument concerns a part of the State's rebuttal
argument in which it described how on that morning, the Watanabes
did not expect to be burglarized, the burglary's impact on Jayme,
and that Riveira took away the Watanabes' ability to feel safe in
their own home. The State then recapped the evidence of Jayme's
seeing Riveira fleeing her property and asked the jury to "hold
the defendant accountable for what he did to that family and find
him guilty as charged of Burglary in the First Degree."
Although a prosecutor is permitted to draw reasonable
inferences from the evidence and is given wide latitude in
discussing the evidence during closing arguments, State v.
Klinge, 92 Hawai#i 577, 592, 994 P.2d 509, 524 (2000) (citing
Rogan, 91 Hawai#i at 412, 984 P.2d at 1238), the part of the
rebuttal argument describing the burglary's impact on the
Watanabes would typically be considered improper because it
encouraged the jury to sympathize with the Watanabes and how the
burglary deeply affected Jayme, which had no bearing on the
23
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
central issues at trial. See State v. Barrios, 139 Hawai#i 321,
329, 389 P.3d 916, 924 (2016) (determining that a prosecutor's
closing argument comparing juries to hospitals and churches, and
stating that "[w]hen a child needs justice, they come before a
jury[,]" was an improper appeal to the jury's emotions); Klinge,
92 Hawai#i at 592, 994 P.2d at 524 (finding impropriety where
"the prosecutor's remark could have 'diverted the jury from its
duty to decide the case on the evidence, by injecting issues
broader than the guilt or innocence of the accused under the
controlling law.'" (brackets omitted) (quoting State v. Apliando,
79 Hawai#i 128, 142, 900 P.2d 135, 149 (1995))). However, in
addressing a previous point of error, we determined that the
admission of the victim impact testimony, where there was no
objection during the presentation of evidence and defense counsel
further sought to utilize Jayme's testimony in this regard, did
not affect Riveira's substantial rights and rise to the level of
plain error. Accordingly, because the victim impact testimony
was previously admitted and did not amount to plain error, the
prosecutor's brief subsequent comment on it during rebuttal
argument did not amount to reversible error. See HRPP Rule 52(a)
("Any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded."); State v.
Machado, 109 Hawai#i 445, 452–53, 127 P.3d 941, 948–49 (2006)
("[E]rror is not to be viewed in isolation and considered purely
in the abstract. It must be examined in the light of the entire
proceedings and given the effect which the whole record shows it
to be entitled. In that context, the real question becomes
whether there is a reasonable possibility that error might have
contributed to conviction." (emphasis omitted) (quoting State v.
Haili, 103 Hawai#i 89, 100, 79 P.3d 1263, 1274 (2003))).
The second part of Riveira's first assertion of
misconduct concerns the end of the State's rebuttal argument,
where the State requested that the jury "hold the defendant
accountable for what he did to that family and find him guilty as
charged of Burglary in the First Degree." Contrary to Riveira's
assertion, the State did not ask the jury to "hold Riveira
'accountable' for the sense of safety he took away from the
24
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Watanabes." Rather, when read in the context of the State's
closing and rebuttal arguments, the State was commenting on the
evidence adduced at trial, and the reasonable inferences that
could be drawn from the evidence, in an attempt to convince the
jury of its theory of the case and to hold Riveira responsible
based on the evidence. See State v. Pasene, 144 Hawai#i 339,
367, 439 P.3d 864, 892 (2019) ("Prosecutors may state, discuss,
and comment on the evidence as well as draw all reasonable
inferences from the evidence. In other words, closing argument
affords the prosecution the opportunity to persuade the jury that
its theory of the case is valid, based upon the evidence adduced
and all reasonable inferences that can be drawn therefrom."
(ellipsis, internal quotation marks, and citations omitted)).
As to the second assertion of prosecutorial misconduct,
Riveira argues that the prosecutor inserted his personal opinion
by commenting that it was "frustrating" not to have direct
evidence of Riveira's entry into the home, and that the
prosecutor invited the jury to join him in solidarity by laying
out the evidence "we know." The first part of the comment was
made in the context of describing the case as a 100-piece jigsaw
puzzle. The State argued that although the case might be missing
direct evidence of Riveira's entry into the dwelling, that was
only one piece of the puzzle and the case contained the other
pieces of the puzzle in the form of circumstantial evidence. The
State then related, "Is it frustrating? Absolutely. Is it
necessary? No. Because we have all the other pieces, we know
what the puzzle is a picture of. We know what the puzzle is a
picture of, and that picture is the defendant as the person who
burglarized their home." The State's analogy to a jigsaw puzzle
and statement of the frustration that comes with not having a
piece, was a comment on the evidence adduced at trial and did not
use the pronoun "I" or otherwise reflect the prosecutor's
personal opinion. See Pasene, 144 Hawai#i at 367, 439 P.3d at
892; State v. Sanchez, 82 Hawai#i 517, 534, 923 P.2d 934, 951
(App. 1996) (determining that the prosecutor improperly asserted
"personal evaluation of the credibility of certain witnesses in
final argument" by using the personal pronoun "I" (emphasis
25
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
omitted)). Moreover, the prosecutor's use of the phrase "we
know" in a few instances was done as part of commenting on the
evidence. We conclude that reading the statements in proper
context, they were not improper.
Addressing Riveira's third assertion of misconduct, we
agree that the prosecutor's statement to the jury, "Well, the
folks [defense counsel's] trying to trick are you with his
interpretation of the evidence[,]" was improper. Although the
prosecutor's assessment of defense counsel may have had a basis
in the evidence, "[a] prosecutor's comment is clearly misconduct
where it 'constitutes an impermissible attack on defense
counsel's integrity' and 'operates to denigrate the legal
profession in general.'" Pasene, 144 Hawai#i at 370, 439 P.3d at
895 (original brackets omitted) (quoting Klinge, 92 Hawai#i at
595, 994 P.2d at 527); see State v. Underwood, 142 Hawai#i 317,
327, 418 P.3d 658, 668 (2018) ("Insinuations that a criminal
attorney's zealous defense of a client amounts to unethical
behavior strike at the foundation of our adversarial system and
'should not be tolerated by either the trial judge or the bar.'"
(quoting U.S. v. Linn, 31 F.3d 987, 993 (10th Cir. 1994)));
Klinge, 92 Hawai#i at 595, 994 P.2d at 527 (determining that a
prosecutor's comment during closing argument, stating that
defense counsel would not give the jury "the whole picture"
because it was his duty to "get his client off," was clearly
prosecutorial misconduct because it was an impermissible attack
on defense counsel's integrity).
In his fourth assertion of misconduct, Riveira
challenges the prosecutor's statement to the jury at the end of
his closing argument, "you took an oath to render a just verdict
according to the facts and the law, and I ask that you follow
your common sense, your sound judgment, and you find the
defendant guilty as charged of Burglary in the First Degree."
This statement was not improper as it did not invite the jury to
base its verdict on anything other than the evidence in this case
and the law as instructed by the circuit court. See Klinge, 92
Hawai#i at 592, 994 P.2d at 524; cf. State v. Schnabel, 127
Hawai#i 432, 451-52, 279 P.3d 1237, 1256-57 (2012) (determining
26
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
it was improper for the prosecutor to advise the jury during
closing arguments that the jury instructions were "mumbo jumbo,"
"could be disregarded, and that the jurors could decide the
question of guilt based on their 'gut feeling'" (footnote
omitted)).
We now turn to whether the alleged instances of
misconduct were harmless. "In evaluating whether alleged
prosecutorial misconduct amounts to harmful error, this court
considers '(1) the nature of the conduct; (2) the promptness of a
curative instruction; and (3) the strength or weakness of the
evidence against the defendant.'" Underwood, 142 Hawai#i at 325,
418 P.3d at 666 (quoting Rogan, 91 Hawai#i at 412, 984 P.2d at
1238). "Misconduct requires vacating a conviction when, in light
of these factors, 'there is a reasonable possibility that the
error complained of might have contributed to the conviction.'"
Id. (quoting Rogan, 91 Hawai#i at 412, 984 P.2d at 1238).
The nature of the State's improper statement, as
discussed above, was an insinuation that defense counsel was
trying to "trick" the jury. This instance of misconduct,
however, was not of a repeated nature, see Pasene, 144 Hawai#i at
371, 439 P.3d at 896 (considering the repetitive nature of the
misconduct in the first prong of its prosecutorial misconduct
analysis), and was not as severe as those instances the supreme
court has found harmful. See Tuua, 125 Hawai#i at 16, 250 P.3d
at 279 ("This court evaluates the severity of the conduct in
determining whether the first factor favors holding that an
improper statement was harmless."); see, e.g., Underwood, 142
Hawai#i at 326-27, 418 P.3d at 667-68 (determining that
prosecutor's insinuation that the defendant and defense counsel
sought to induce the complaining witness to commit perjury, with
no basis in the record, weighed in favor of vacating the
conviction); Rogan, 91 Hawai#i at 414, 984 P.2d at 1240(determining that "the statement that the incident was 'every
mother's nightmare[]' . . . was a blatantly improper plea to
evoke sympathy for the Complainant's mother and represented an
implied invitation to the jury to put themselves in her
position").
27
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
As to the second factor, the circuit court gave a
general instruction that closing arguments were not evidence, but
did not give any specific curative instructions, because there
were no objections. See Underwood, 142 Hawai#i at 328, 418 P.3d
at 669 (concluding that the second prong weighed in favor of
vacating the defendant's conviction because, inter alia, the
circuit court's prior general instruction was unlikely to cure
the prejudice created by the prosecutor's specific improper
remarks and no other curative measure was taken).
The third factor weighs in favor of finding the
misconduct harmless. Although Jayme's credibility was a critical
factor in the case, her identification of Riveira was
corroborated by both the identification by Pagaduan, who was a
disinterested witness, and the recovery of the stolen items in
the truck in which Riveira was apprehended. See Tuua, 125
Hawai#i at 17, 250 P.3d at 280 ("In close cases involving the
credibility of witnesses, particularly where there are no
disinterested witnesses or other corroborating evidence, this
court has been reluctant to hold improper statements harmless.").
Balancing these three factors, and based on the entire
record, we conclude that the prosecutorial misconduct was
harmless beyond a reasonable doubt.
E. Accomplice Liability Instruction
Riveira contends that the circuit court erred in
instructing the jury, over defense counsel's objection, on
accomplice liability. In particular, Riveira argues there was no
evidence at trial that would support a conclusion that Bunao was
the principal and Riveira was her accomplice.
The circuit court instructed the jury as follows:
A defendant charged with committing an offense may be
guilty because he/she is an accomplice of another person in
the commission of the offense. The prosecution must prove
accomplice liability beyond a reasonable doubt.
A person is an accomplice of another in the commission
of an offense if:
1. With the intent to promote or facilitate the
commission of the offense, he/she
28
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
a. solicits the other person to commit
it; or
b. aids or agrees or attempts to aid the
other person in the planning or commission
of the offense;
Mere presence at the scene of an offense or knowledge
that an offense is being committed, without more, does not
make a person an accomplice to the offense. However, if a
person plans or participates in the commission of an offense
with the intent to promote or facilitate the offense, he/she
is an accomplice to the commission of the offense.
Riveira argues that the evidence showed that a man was
seen running from Jayme and Ryan's home, and that Riveira's mere
association with Bunao, presence in the truck, or knowledge of
her involvement in the burglary were insufficient for an
accomplice liability instruction.
"[T]his court [has] held that 'it is not error to
submit an instruction covering a theory advanced by a party if
there is any evidence on which to base it, although it may be
slight and inconclusive, or opposed to the preponderance of the
evidence.'" State v. Keaweehu, 110 Hawai#i 129, 134, 129 P.3d
1157, 1162 (App. 2006) (emphasis in original) (original brackets
omitted) (quoting State v. Tucker, 10 Haw. App. 73, 80, 861 P.2d
37, 42 (1993)). Here, the evidence was such that a jury could
infer that Riveira's involvement extended beyond his mere
association with Bunao, presence in the truck, or knowledge of
Bunao's involvement in the burglary, and that Riveira acted as an
accomplice to Bunao in the charged burglary. For example,
Riveira himself was observed fleeing the Watanabes' yard with a
black electronic device, he was seen near and Bunao was seen in
front of the Watanabes' house prior to or during the alleged
burglary, and both were later apprehended in Bunao's truck with
the Watanabes' stolen property, including several electronic
devices beyond what Riveira was seen carrying away. See id.; see
also Acker, 133 Hawai#i at 286, 327 P.3d at 964 ("It is well
settled that one who is charged as a principal can be convicted
as an accomplice without accomplice allegations being made in the
indictment." (emphasis and internal quotation marks omitted)
(quoting State v. Fukusaku, 85 Hawai#i 462, 486, 946 P.2d 32, 56
(1997))). Therefore, the accomplice liability instruction was
29
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
not prejudicially insufficient, erroneous, inconsistent, or
misleading. See Cullen, 86 Hawai#i at 8, 946 P.2d at 962.
F. Cumulative Effect of Errors
After carefully reviewing the record, we conclude that
the individual errors raised by Riveira are by themselves
insubstantial. Accordingly, it is unnecessary to address
Riveira's contention that the cumulative effect of the "alleged
errors" requires reversal. See State v. Samuel, 74 Haw. 141,
159, 838 P.2d 1374, 1383 (1992).
V. Conclusion
For these reasons, the circuit court's September 26,
2017 Judgment of Conviction and Sentence is affirmed.
DATED: Honolulu, Hawai#i, December 11, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Salina Kanai Althof Chief Judge
for Defendant-Appellant.
Stephen K. Tsushima, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
30