State v. Rosa. ( 2020 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-AUG-2020
07:50 AM
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Plaintiff-Appellee, v.
KEONI I. ROSA, JR., Defendant-Appellant
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1PC141000180)
AUGUST 31, 2020
GINOZA, CHIEF JUDGE, LEONARD AND HIRAOKA, JJ.
OPINION OF THE COURT BY LEONARD, J.
The principal issue in this case concerns whether the
warrantless seizure of the defendant's cellular phone, incident
to his warrantless arrest, was a violation of his constitutional
protection against unreasonable searches and seizures because his
warrantless arrest was illegal under Hawai#i law. Based on the
applicable statutes and case law, we hold that: (1) the
defendant's warrantless arrest was unlawful where probable cause
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for his arrest was established nineteen days earlier, the police
knew his identity and the location of his residence and even
served him with a subpoena to appear in court, and the police had
no obstacles preventing them from making an arrest or obtaining
an arrest warrant, but delayed in making the arrest because the
lead officer was busy with other cases and for strategic reasons;
(2) the fact that probable cause was established by way of
evidence other than a police officer's personal observations did
not negate the immediacy element of a lawful warrantless arrest;
(3) because the defendant's arrest was illegal, the seizure of
his cellular phone was not incident to a lawful arrest; and (4)
as the trial court did not reach the issue of whether the
evidence obtained from the defendant's cellular phone would have
been inevitably discovered, it is necessary to remand this case
for further proceedings to determine whether that evidence should
have been suppressed. We also conclude, for the reasons stated
herein, that the trial court did not abuse its discretion in
denying the defendant's request for a new trial.
Defendant-Appellant Keoni I. Rosa, Jr. (Rosa) appeals
from the Judgment of Conviction and Sentence (Judgment) entered
against him and in favor of Plaintiff-Appellee the State of
Hawai#i (State) on January 2, 2018, in the Circuit Court of the
First Circuit (Circuit Court).1 Following a jury trial, Rosa was
1
The Honorable Rom A. Trader presided.
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found guilty of one count of Continuous Sexual Assault of a Minor
under the Age of Fourteen Years, in violation of Hawaii Revised
Statutes (HRS) § 707-733.6 (2014),2 and one count of Sexual
Assault in the First Degree, in violation of HRS § 707-730
(2014).3 Rosa was sentenced to two twenty-year terms of
2
HRS § 707-733.6 provides:
§ 707-733.6 Continuous sexual assault of a minor
under the age of fourteen years. (1) A person commits the
offense of continuous sexual assault of a minor under the
age of fourteen years if the person:
(a) Either resides in the same home with a minor
under the age of fourteen years or has recurring
access to the minor; and
(b) Engages in three or more acts of sexual
penetration or sexual contact with the minor
over a period of time, while the minor is under
the age of fourteen years.
(2) To convict under this section, the trier of fact,
if a jury, need unanimously agree only that the requisite
number of acts have occurred; the jury need not agree on
which acts constitute the requisite number.
(3) No other felony sex offense involving the same
victim may be charged in the same proceeding with a charge
under this section, unless the other charged offense
occurred outside the period of the offense charged under
this section, or the other offense is charged in the
alternative. A defendant may be charged with only one count
under this section, unless more than one victim is involved,
in which case a separate count may be charged for each
victim.
(4) Continuous sexual assault of a minor under the
age of fourteen years is a class A felony.
3
HRS § 707-730 provides:
§ 707-730 Sexual assault in the first degree. (1) A
person commits the offense of sexual assault in the first
degree if:
(a) The person knowingly subjects another person to
an act of sexual penetration by strong
compulsion;
(b) The person knowingly engages in sexual
penetration with another person who is less than
fourteen years old;
(c) The person knowingly engages in sexual
penetration with a person who is at least
(continued...)
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imprisonment, to run concurrently, with credit for time served.
I. BACKGROUND
On January 6, 2014, the mother (Mother) of a minor
complaining witness (CW) called the Honolulu Police Department
(HPD) to report an alleged sexual assault. HPD dispatched
Officer Darren Ozaki (Officer Ozaki) to investigate the report,
meeting Mother first, and then CW, at their residence. CW was
fourteen years old when he met with Officer Ozaki on January 6,
2014; CW was about thirteen years old at the time of the alleged
incidents.
Mother and CW reported a history of multiple sexual
assault incidents that occurred over the prior year at various
locations, identified Rosa as the alleged assaulter, and provided
information regarding communications between CW and Rosa via CW's
3
(...continued)
fourteen years old but less than sixteen years
old; provided that:
(i) The person is not less than five years
older than the minor; and
(ii) The person is not legally married to the
minor;
(d) The person knowingly subjects to sexual
penetration another person who is mentally
defective; or
(e) The person knowingly subjects to sexual
penetration another person who is mentally
incapacitated or physically helpless as a result
of the influence of a substance that the actor
knowingly caused to be administered to the other
person without the other person's consent.
Paragraphs (b) and (c) shall not be construed to prohibit
practitioners licensed under chapter 453 or 455 from
performing any act within their respective practices.
(2) Sexual assault in the first degree is a class A
felony.
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cellular phone and Rosa's cellular phone (Rosa's Phone). CW also
told Officer Ozaki that he and Rosa exchanged naked photos and
explicit text messages using their cellular phones. Officer
Ozaki learned from Mother that CW had erased all of the naked
photos and text messages from CW's phone. At the time of the
incidents, CW reportedly used an iPhone from Verizon, but the
phone number was no longer in service when he made the police
report.
Officer Ozaki documented the information that he
received from Mother and CW, and Officer Ozaki prepared an HPD
report in the case.
On January 7, 2014, Detective Sergeant Beth Rockett
(Detective Rockett), a detective with HPD's sex crimes detail,
was assigned to investigate CW's allegations against Rosa.
Officer Ozaki communicated his information to Detective Rockett.
At the time she was assigned to investigate the case, Detective
Rockett worked Saturdays through Wednesdays, with Thursdays and
Fridays off.
An HPD "lockup arrest" (Lockup Case) is a case in which
a suspect has already been arrested. On the weekends, Detective
Rockett was one of four or five detectives assigned to cover
Lockup Cases for the island of O#ahu, and her Lockup Cases were
not limited to sexual assault cases. Because suspects in Lockup
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Cases are already in custody, such cases are given priority by
HPD detectives, including Detective Rockett.
Detective Rockett was scheduled off from work on
January 9 and January 10, 2014. On January 9, 2014, Mother
provided HPD Officer Aaron Takeuchi with additional information
regarding photographs and videos of her son and other boys on
Rosa's Phone. Mother also provided Rosa's phone number and
cellular service provider.
When back at work on January 11, 2014, Detective
Rockett contacted CW to arrange an interview the next day. On
January 12, 2014, Detective Rockett conducted a video- and audio-
recorded interview with CW. CW alleged that Rosa's assaults
began around the time CW was a sixth-grader in elementary school.
CW alleged multiple assaults at multiple public locations. CW
also alleged that Rosa showed CW pornographic images on Rosa's
Phone, and that Rosa requested CW take explicit photos on his
phone and send them to Rosa's Phone. Detective Rockett presented
CW with a photographic lineup; the photographic lineup consisted
of six photographs, including a photograph of Rosa. CW
positively identified Rosa as the individual who sexually
assaulted him. Detective Rockett later testified that, following
the interview with CW, she "knew that [she] had to eventually get
a search warrant, do admin subpoenas, locate the scenes, take
pictures of those scenes, that kind of stuff." Detective Rockett
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testified that she did not feel ready to locate and arrest Rosa
after the interview with CW on January 12, 2014. However,
Detective Rockett also testified that she had probable cause to
arrest Rosa following her interview with CW on January 12, 2014.
After the January 12, 2014 interview, Detective Rockett printed
out a record of a vehicle registered to Rosa, which included
Rosa's Wai#anae residential address.
On January 14 and 15, 2014, Detective Rockett received
and prioritized working on a Lockup Case in which the suspect was
in custody and needed to be charged within forty-eight hours.
Detective Rockett was scheduled off from work on January 16 and
17, 2014. On January 18 and 19, 2014, Detective Rockett received
two additional Lockup Cases that took priority over her other
cases and required her attention until January 20, 2014.
On January 21, 2014, Detective Rockett made
arrangements to visit and photograph locations of alleged
assaults on the following day. On January 22, 2014, Detective
Rockett visited scenes of the alleged offenses and photographed
various bathrooms and business establishments. Detective Rockett
was scheduled off from work on January 23 and January 24, 2014.
On Saturday, January 25, 2014, along with HPD Detective
Michelle Phillips (Detective Phillips), Detective Rockett
attempted to locate Rosa at his residence to arrest him. When
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they arrived, a vehicle was parked on the premises, but the gate
was locked. Detective Rockett called out, but there was no
answer and Rosa did not appear to be present. On January 26,
2014, Detective Rockett served two administrative subpoenas, one
on Verizon (the cellular phone service provider for CW), and the
other on AT&T (the cellular phone service provider for Rosa).
The subpoenas requested phone call and text message logs for each
phone number. On January 27, 2014, Detective Rockett located and
photographed Rosa's car, which was parked in the driveway of
Rosa's house. Detective Rockett emailed the photograph of the
vehicle to CW, and CW identified Rosa's car as the vehicle CW
rode in with Rosa.
Detective Rockett learned at some point that on Friday,
January 31, 2014, Rosa was scheduled to appear at a Temporary
Restraining Order (TRO) hearing in Honolulu District Court.4
Since Rosa was likely to appear for the TRO hearing, Detective
4
When specifically questioned on this timing at a March 3, 2015
hearing, discussed infra, Sergeant Rockett testified:
[By Rosa's counsel] Q. . . . You testified that
[Mother] told you there was a TRO hearing on the 31st.
When did you learn of that? When did [Mother] tell you
there was a TRO hearing on the 31st?
A. I'm not sure when she told me.
Q. All right. Was it a week before -- more than a
week before?
A. I can't even guess. I'm sorry. I don't want to
be wrong.
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Rockett decided to make the arrest on that date. On January 31,
2014, at about 8:50 a.m., Detective Rockett located and arrested
a male at the Honolulu District Court building, who identified
himself as Rosa. After arresting Rosa, Detective Rockett
conducted a search incident to arrest and recovered a white Apple
iPhone from Rosa's waist area. Detective Rockett submitted the
phone into evidence, pending the approval and issuance of a
search warrant. Rosa was then transported to the Central
Receiving Division of the Main Police Station for booking and
processing.
Detective Rockett also prepared a post-arrest Affidavit
in Support of Warrantless Arrest, which was signed and notarized
on January 31, 2014, and later submitted into evidence at a March
3, 2015 pre-trial hearing on a motion to suppress. The affidavit
stated that Detective Rockett believed that she had probable
cause for Rosa's arrest and probable cause to support the
extended restraint of Rosa's liberty. The facts and
circumstances described in Detective Rockett's probable cause
affidavit were all known to Detective Rockett on or before
January 12, 2014.
Later in the afternoon of January 31, 2014, the
Honorable Paul B. Wong reviewed and approved a search warrant for
Rosa's residence.
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On February 5, 2014, the State presented the case to an
O#ahu Grand Jury. Rosa was indicted on one count of Continuous
Sexual Assault of a Minor Under the Age of Fourteen Years and one
count of Sexual Assault in the First Degree, for the incidents
involving CW. On February 10, 2014, Rosa was arraigned on the
instant charges and entered a plea of not guilty.
Also on February 5, 2014, the Honorable Shirley M.
Kawamura (Judge Kawamura) approved a search warrant (Search
Warrant) for Rosa's Phone. The Search Warrant included an
expiration date of February 15, 2014, and approved a search of
the phone that was seized by the police when Rosa was arrested at
the courthouse.
On August 29, 2014, Rosa filed a Motion to Suppress
Evidence (August Motion to Suppress). The August Motion to
Suppress argued that because Rosa's Phone was searched after the
Search Warrant expired, it was searched without a valid search
warrant in violation of Rosa's rights under article I, sections 6
and 7, of the Hawai#i State Constitution and the Fourth and
Fourteenth Amendments of the United States Constitution.5 On
September 9, 2014, the State filed an opposition to the motion,
5
Rosa's argument at that time did not include that Rosa's Phone was
unconstitutionally seized as a result of an illegal arrest.
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arguing that a warrant had been obtained to search the phone on
February 5, 2014.6
The August Motion to Suppress was initially set for
hearing on September 23, 2014, but was continued until October
28, 2014, because Rosa was not transported to the court. On
October 28, 2014, the Circuit Court orally ruled that the State
did not have to obtain an additional search warrant for Rosa's
Phone beyond the ten-day period set forth in the Search Warrant.
Rosa's counsel informed the court that he intended to file
another motion to suppress on the grounds that Rosa's Phone was
seized without a warrant incident to an illegal arrest, citing
State v. Keawe, 107 Hawai#i 1, 108 P.3d 304 (2005). Rosa also
requested an extension of the pretrial hearing date and
continuance of the trial, which was granted.
On December 1, 2014, Rosa filed a Second Motion to
Suppress Evidence (December Motion to Suppress). In the December
Motion to Suppress, Rosa argued that the seizure of Rosa's Phone,
incident to his arrest, was in violation of his constitutional
rights because his January 31, 2014 arrest was illegal, in
violation of HRS § 803-1 (2014). Rosa argued, citing Keawe, that
6
HPD attempted to search Rosa's Phone shortly after the Search
Warrant was issued, but the phone was passcode-locked, and HPD was unable to
get past the passcode until May. The State argued in opposition to the August
Motion to Suppress that the search had started within the time authorized by
the Search Warrant, and that they were allowed to continue their efforts in
searching to retrieve data after the warrant had expired.
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Rosa's Phone must therefore be suppressed. On December 18, 2014,
the State filed a memorandum in opposition.
As noted above, at the March 3, 2015 hearing on the
December Motion to Suppress, Detective Rockett testified that, on
January 12, 2014, she did not feel "ready to locate and arrest"
Rosa, as well as that on January 12, 2014, she did have probable
cause to arrest Rosa. Detective Rockett testified about her work
schedule, other case assignments, and her steps, after January
12, 2014, in investigating CW's allegations, as described above.
Rosa testified that, about a week before the January
31, 2014 TRO hearing, he was served to appear at the hearing by
an HPD officer other than Detective Rockett. Rosa testified that
he was living at the Wai#anae address shown on his vehicle
registration during the entire month of January of 2014. Counsel
for Rosa argued that the State had probable cause, had identified
Rosa, and had Rosa's location. Counsel argued that there was
nothing preventing Detective Rockett from arresting, or sending
somebody to arrest Rosa, starting on January 12th, or even before
then, but certainly by the 12th. Counsel further argued that:
the State was able to have a police officer serve Rosa with the
TRO; Detective Rockett had been to Rosa's address multiple times;
and, once Detective Rockett suspected that Rosa would be at the
TRO hearing, she could have obtained an arrest warrant prior to
arresting Rosa at the January 31, 2014 TRO hearing.
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The Circuit Court questioned Rosa's counsel on how the
facts of this instant matter compared and contrasted to the facts
in Keawe, as well as on the State's explanation of the delay
caused by Detective Rockett's continuing investigation efforts.
The court also questioned the Deputy Prosecuting Attorney on why
HPD had not obtained an arrest warrant by January 31, 2014, when
they intended to attempt an arrest of Rosa at the TRO hearing.
In a final argument, Rosa's counsel cited State v. Line, 121
Hawai#i 74, 214 P.3d 613 (2009), for the proposition that "63
hours between the inception of probable cause and the July 15th,
2005, attempted arrest afforded the police ample time to obtain
an arrest warrant[.]" The court then took a short recess to
review Line and otherwise consider its ruling.
At the conclusion of the March 3, 2015 hearing, the
Circuit Court orally denied the December Motion to Suppress. The
court explained that it did not find Line to be controlling in
this case. The court distinguished the facts in Keawe from the
facts in this case, particularly that the police in Keawe had
themselves witnessed the acts giving rise to probable cause but
then "did absolutely nothing" during the time period that
followed, while here the police had only received a report of the
acts, and Sergeant Rockett then used the time period thereafter
to further her investigation.
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On March 25, 2015, the Circuit Court filed written
Findings of Fact, Conclusions of Law and Order Denying [Rosa's
December Motion to Suppress] (FOFs/COLs/Order on Motion to
Suppress).
Before Rosa's jury trial began, on October 20, 2016,
both the State and Rosa received a jury packet, which consisted
of a list of potential jurors and redacted juror cards. On Juror
Card 45, under item 13 asking for present or last employer and
occupation, Juror Number 45 (Juror 45) wrote "OTS Handi-Van"
(Handi-Van). On October 24, 2016, Rosa's jury trial commenced in
the Circuit Court. Rosa was represented at trial by Deputy
Public Defender Henry Ting (DPD Ting). During jury selection,
Juror 45 was first seated as Alternate Juror No. 1. Both the
State and Rosa had an opportunity to voir dire Juror 45. Neither
the State nor the defense challenged Juror 45 for cause, or
elected to exercise a peremptory challenge on the juror. After
the jury was impaneled and sworn in, a juror was dismissed and
Juror 45 was called to sit on the jury.
On November 2, 2016, Rosa took the stand and testified.
Rosa provided his background information, including his
employment history. One of Rosa's prior places of employment was
with Handi-Van. Rosa did not provide specific information on
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dates of employment, the nature of his work, or position(s) with
Handi-Van.
During the recess following Rosa's testimony, Juror 45
asked to address the Circuit Court. After the other jurors
cleared the room, Juror 45 notified the court that he was
currently employed with Handi-Van. The court engaged in a
colloquy with Juror 45 to find out more information. Juror 45
explained that while he and Rosa may have been employed by
Handi-Van at the same time, Juror 45 did not know and had not
worked with Rosa. Juror 45 assured the Circuit Court that,
despite this common employment, he could remain fair and
impartial. After Juror 45 addressed the court, the court asked
both the State and Rosa if either party had any questions for
this juror. Both the State and defense declined to ask Juror 45
any further questions. After Juror 45 left the courtroom,
neither the State nor Rosa objected to Juror 45 remaining on the
panel.
On the afternoon of November 2, 2016, the jury began
deliberations. In the morning of November 3, 2016, the jury sent
the following communication to the court:
How do we read the phone call record?
1 Definition of tab's
-call direction
-seizure duration
2 How do you tell if it's a phone call vs text message.
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Later on November 3, 2016, the jury returned verdicts of guilty
on each count. Juror 45 was the jury foreperson.
On November 14, 2016, DPD Ting filed a Motion for New
Trial (Motion for New Trial) on the grounds that Juror 45 falsely
represented to the Court that he did not know Rosa and did not
remember ever working with Rosa. On November 28, 2016, the State
filed a memorandum in opposition. At a December 6, 2016 hearing
on the motion, DPD Ting moved to withdraw, which motion was
granted. On December 15, 2016, Rosa's present counsel (Mr. Goo)
was appointed. On March 25, 2017, Mr. Goo filed a Supplemental
Memorandum in Support of Motion for New Trial. The State filed a
further memorandum in opposition.
On July 11, 2017, a hearing was held on Rosa's Motion
for New Trial. Rosa testified, and DPD Ting was called to
testify by the State. Because an employment record document from
Handi-Van required a subpoena, the Circuit Court granted Rosa's
request to continue the hearing, and it was continued.
On October 24, 2017, after further argument, the
Circuit Court announced that Rosa's Motion for New Trial would be
denied. On November 13, 2017, the Circuit Court filed its
Findings of Fact, Conclusions of Law and Order Denying
Defendant's Motion for New Trial (FOFs/COLs/Order on New Trial).
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II. POINTS OF ERROR
Rosa raises two points of error on appeal, contending
that the Circuit Court erred in: (1) denying Rosa's motions to
suppress Rosa's phone as evidence; and (2) denying Rosa's
November 14, 2016 Motion for New Trial in its FOFs/COLs/Order on
New Trial.
III. APPLICABLE STANDARDS OF REVIEW
We review questions of constitutional law de novo, under the
right/wrong standard. State v. Hauge, 103 Hawai #i 38, 47, 79
P.3d 131, 140 (2003). "Accordingly, '[w]e review the circuit
court's ruling on a motion to suppress de novo . . .'" Id.
(quoting State v. Locquiao, 100 Hawai#i 195, 203, 58 P.3d
1242, 1250 (2002)).
State v. Phillips, 138 Hawai#i 321, 357, 382 P.3d 133, 169
(2016). "[T]he right/wrong standard . . . allows the appellate
court to examine the facts and answer the question without being
required to give any weight to the trial court's answer to it."
State v. Russo, 141 Hawai#i 181, 189, 407 P.3d 137, 145 (2017)
(citation and internal quotation marks omitted). "A conclusion
of law that is supported by the trial court's findings of fact
and that reflects an application of the correct rule of law will
not be overturned." Dan v. State, 76 Hawai#i 423, 428, 879 P.2d
528, 533 (1994) (citation and internal quotation marks omitted).
Appellate courts review a circuit court's pretrial
findings of fact under the clearly erroneous standard. A
finding of fact is clearly erroneous when (1) the record
lacks substantial evidence to support the finding, or (2)
despite substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made. Substantial
evidence is credible evidence which is of sufficient quality
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and probative value to enable a person of reasonable caution
to support a conclusion.
Pretrial conclusions of law are reviewed under the de
novo standard.
State v. Ramos-Saunders, 135 Hawai#i 299, 302, 349 P.3d 406, 409
(App. 2015) (citations and internal quotation marks omitted).
As a general matter, the granting or denial of a
motion for new trial is within the sound discretion of the
trial court and will not be disturbed absent a clear abuse
of discretion. The same principle is applied in the context
of a motion for new trial premised on juror misconduct. 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. Yamada, 108 Hawai#i 474, 478, 122 P.3d 254, 258 (2005)
(citation omitted).
IV. DISCUSSION
A. Rosa's Motion to Suppress
Rosa contends that the Circuit Court erred in denying
the December Motion to Suppress because the warrantless seizure
of Rosa's Phone, incident to Rosa's arrest, was a violation of
Rosa's constitutional protection against unreasonable searches
and seizures because Rosa's warrantless arrest was illegal.7
Rosa argues that his arrest was illegal because there was neither
a warrant for his arrest nor an applicable exception to the
warrant requirement.
The Fourth Amendment to the United States Constitution
and article I, section 7 of the Hawai#i State Constitution
7
On appeal, Rosa makes no argument that the August Motion to
Suppress was wrongly decided.
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protect the rights of citizens to be free from unreasonable
searches and seizures. These constitutional provisions "mandate
that government agents generally 'obtain search warrants based on
probable cause before effecting a search and seizure of persons
or places connected to criminal activity.'" State v. Eleneki,
106 Hawai#i 177, 189, 102 P.3d 1075, 1087 (2004) (citing State v.
Barrett, 67 Haw. 650, 653, 701 P.2d 1277, 1280 (1985)). "The
well-established rule in this jurisdiction is that warrantless
searches are presumptively unreasonable unless they fall within
one of the carefully defined exceptions." State v. Wiley, 69
Haw. 589, 591, 752 P.2d 102, 103 (1988) (citing State v. Jenkins,
62 Haw. 660, 619 P.2d 108 (1980)); State v. Ortiz, 67 Haw. 181,
184, 683 P.2d 822, 825 (1984).
Hawai#i law recognizes exceptions to the search warrant
requirement, including for a search incident to a lawful arrest.
"A contemporaneous search incidental to a lawful arrest may be
made for the fruits of the crime, implements used to commit the
crime and for weapons." State v. Park, 50 Haw. 275, 276, 439
P.2d 212, 213 (1968) (emphasis added) (citations omitted). It is
undisputed that Rosa's Phone was seized without a warrant and
that the Circuit Court relied on the search-incident-to-lawful-
arrest exception to conclude that the seizure of Rosa's Phone was
lawful.
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It is also undisputed that no warrant was issued for
Rosa's arrest. However, the Circuit Court concluded that,
pursuant to HRS § 803-5 (2014), Detective Rockett was authorized
to make a warrantless arrest under the circumstances of this
case. In Keawe, 107 Hawai#i 1, 108 P.3d 304, the Hawai#i
Supreme Court examined the scope of the exception in HRS § 803-5
to the general rule stated in HRS § 803-1, which requires a
police officer to obtain an arrest warrant prior to making an
arrest, except where otherwise provided by law. These statutes
provide as follows:
§ 803-1 Arrest; by warrant. No arrest of any person
shall be made without first obtaining a warrant or other
process therefor from some magistrate, except in the cases
provided in this chapter or otherwise provided by law.
§ 803-5 By police officer without warrant. (a) A
police officer or other officer of justice, may, without
warrant, arrest and detain for examination any person when
the officer has probable cause to believe that such person
has committed any offense, whether in the officer's presence
or otherwise.
(b) For purposes of this section, a police officer has
probable cause to make an arrest when the facts and
circumstances within the officer's knowledge and of which
the officer has reasonably trustworthy information are
sufficient in themselves to warrant a person of reasonable
caution in the belief that a crime has been or is being
committed.
In Keawe, for the reasons explained therein, the
supreme court concluded that these statutes must be interpreted
to place a temporal restriction – an element of immediacy - on
the power of the police to make a warrantless arrest pursuant to
HRS § 803-5. Keawe, 107 Hawai#i at 5-6, 108 P.3d at 308-09. The
supreme court stated, inter alia:
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We believe that this element of immediacy is present in HRS
§ 803–5 as well [as the other exceptions to HRS § 803-1],
allowing a warrantless arrest where the police observe a
crime in progress or develop probable cause to believe a
crime has just occurred. This interpretation avoids the
implied repeal of either HRS §§ 803–1 or 803–5 and, we
believe, effectuates the legislature's actual intention in
enacting HRS § 803–5.
Keawe, 107 Hawai#i at 6, 108 P.3d at 309.
The supreme court further clarified:
We limit our holding to those cases, like the instant
case, in which the police have probable cause to arrest,
have no obstacle preventing them from making the arrest, and
wait a significant amount of time before making the arrest.
We reiterate the long-standing rule that a police officer
may make a warrantless arrest based on probable cause;
however, if the police wish to delay the arrest for tactical
reasons, the police may not rely upon HRS § 803–5 to proceed
without a warrant.
Pursuant to HRS § 803–5, Officer Lewis [(the officer
who arrested Keawe)] could have arrested Keawe on July 25,
2002 either during or immediately after Keawe's dances. If
Officer Lewis believed that he needed assistance in making
the arrest, HRS § 803–5 certainly allowed Officer Lewis a
reasonable amount of time to call other officers to assist
him. Other types of delays may be proper: for example, if
the delay between the development of probable cause and the
arrest occurs because the police are attempting to identify,
locate, or apprehend a defendant, the arrest will satisfy
HRS § 803–5. However, if the police believe that waiting
days or weeks to arrest a defendant is the most appropriate
action under the circumstances, as occurred in instant case,
then the police cannot rely upon HRS § 803–5 and must obtain
a warrant pursuant to HRS § 803–1.
Keawe, 107 Hawai#i at 7, 108 P.3d at 310 (citations omitted).
In Line, 121 Hawai#i 74, 214 P.3d 613, the supreme
court revisited the issue of immediacy as it relates to whether a
warrantless arrest is lawful. In Line, the supreme court
explained:
[The] police discovered Dean with a pipe that
contained crystal methamphetamine on July 12, 2005, 63 hours
before officers located and pursued Dean into his home on
July 15, 2005. Under those facts, it does not appear that
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exigent circumstances existed such that the officers were
prevented from obtaining a warrant prior to arresting Dean.
Thus, manifestly, a warrant should have been obtained. See
State v. Keawe, 107 Hawai#i 1, 5–7, 108 P.3d 304, 308–10
(2005) (holding that there is a "temporal restriction on the
police's [ ] power to make a warrantless arrest" and " if the
police believe that waiting days or weeks to arrest a
defendant is the most appropriate action under the
circumstances, . . . then the police . . . must obtain a
warrant").
Id. at 83 n.19, 214 P.3d at 622 n.19 (emphasis added).
The supreme court in Line commented disapprovingly on
the trial court's reliance on Keawe for the trial court's holding
that "unlike Keawe, Dean's actions caused the initial delay in
his arrest, and the police did not wait a 'significant amount of
time' from the inception of probable cause to arrest Dean." Id.
at 84, 214 P.3d at 623. The supreme court explained:
The [trial] court in effect attempted to establish a new
exception to the warrant requirement, by concluding that
police do not need a warrant to enter a home as long as they
do not delay "significantly" in effectuating the arrest. To
the contrary, the 63 hours between the inception of probable
cause and the July 15, 2005 attempted arrest afforded police
ample time to obtain an arrest warrant and they were plainly
required to do so[.] See Keawe, 107 Hawai #i at 7, 108 P.3d
at 310.
Id. at 84-85, 214 P.3d at 623-24 (original brackets omitted).
While there were other issues at play in Line, the
supreme court clearly rejected the trial court's attempt to water
down the immediacy requirement for a warrantless arrest pursuant
to HRS § 803-5 by casting a 63-hour delay between the inception
of probable cause and the attempt to carry out a warrantless
arrest as an insignificant delay in effectuating the arrest. The
supreme court essentially characterized the trial court's ruling
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as an attempt to establish a new exception – a the-police-did-
not-wait-a-significant-amount-of-time exception – to the warrant
requirement and concluded that the trial court erred in this
regard.
In the case now before us, like the trial court in
Line, the Circuit Court attempted to replace the immediacy
requirement for the HRS § 803-5 exception with a much broader
exception. Here, the Circuit Court's ruling might be described
as including a reasonable-efforts-to-do-a-thorough-investigation
exception, rather than any sort of temporal element tied to the
establishment of probable cause. The Circuit Court's FOFs
include, inter alia:
8. On January 7, 2014, [Detective Rockett] was
assigned to further investigate the instant case.
. . . .
14. On January 12, 2014, at the Kapolei Police
Station, Detective Rockett conducted a video and audio
recorded interview with [CW]. . . .
15. [CW] said the oral sex happened several times a
week, and he distinctly recalled the following incidents:
[multiple alleged incidents at specific locations]
. . . .
19. [CW] reported multiple Sexual Assault in the First
Degree incidents involving a minor.
20. On January 12, 2014, Detective Rockett presented
[CW] with a photographic lineup. The photographic lineup
consisted of six photographs, including a photograph of
[Rosa]. [CW] positively identified [Rosa] as the individual
who sexually assaulted him.
. . . .
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24. On January 21, 2014, Detective Rockett made
arrangements to visit and photograph the scenes the
following day.
25. On January 22, 2014, Detective Rockett visited the
scenes of the alleged offenses and photographed the
bathrooms and business establishments.
. . . .
27. On Saturday, January 25, 2014, along with HPD
Detective Michelle Phillips, Detective Rockett attempted to
locate [Rosa] at his residence to effectuate the arrest.
When they arrived, a vehicle was parked on the premises, but
the gate was locked. Detective Rockett called out, but there
was no answer and [Rosa] did not appear to be present.
28. On January 26, 2014, Detective Rockett served two
administrative subpoenas, one on Verizon (the cellular phone
service provider for [CW]), and the other on AT&T (the
cellular phone service provider for [Rosa]). The subpoenas
requested phone call and text message logs for each phone
number.
29. In addition to obtaining the administrative
subpoenas, because [CW] reported that some of the offenses
occurred in [Rosa]'s vehicle, Detective Rockett looked into
vehicles registered to [Rosa]. [8]
30. Detective Rockett conducted computer checks and
learned about a 1999 white Toyota four-door sedan, bearing
Hawaii State license plate number GXG875, registered to
[Rosa].
31. On January 27, 2014, Detective Rockett located and
photographed the white Toyota sedan parked in the driveway
of Defendant's house.
32. Detective Rockett emailed the photograph of the
vehicle to [CW]. [CW] identified the white Toyota sedan as
the vehicle he rode in with [Rosa).
33. Detective Rockett learned that on January 31,
2014, [Rosa] had a scheduled TRO hearing in Honolulu
District Court. Since [Rosa] was likely to appear for the
hearing, Detective Rockett decided to make the arrest on
that date.
8
At the March 3, 2015 hearing on the December Motion to Suppress,
in describing her investigative actions on January 12, 2014, Detective Rockett
stated that she printed out Rosa's vehicle registration, which included his
home address. Detective Rockett's print-out, which was entered into evidence
at the hearing, had a date/time footer with 1/12/2014 and 1:23:56 PM.
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34. On January 31, 2014, at about 8:50 A.M.,
Detective Rockett located and arrested a male at 1111 Alakea
Street. The male identified himself as [Rosa].
. . . .
41. The Court found [Rosa]'s warrantless arrest on
January 31, 2014 valid.
42. The Court found HPD did everything they were
required to do considering the nature of the allegations
dated as far back as 2009.
43. The Court factually distinguished the instant case
from [Keawe].
44. The Court noted that Keawe is fairly clear in
establishing that police cannot skirt obligations to obtain
an arrest warrant.
45. In Keawe, the police had probable cause when they
directly observed a violation of the law but chose, for
tactical reasons, not to arrest.
46. In Keawe, the police did not do anything for
twenty (20) days to further their investigation after
observing the offense.
47. The Court held that in the instant case, HPD
obtained a search warrant, thereby suggesting that they
could have obtained an arrest warrant but elected not to.
48. The Court held that while Detective Rockett had
probable cause on January 12, 2014, her investigative
efforts until the time of the arrest were not unreasonable.
49. The Court further found that public policy
supports police doing a thorough job when conducting an
investigation.
50. In the instant case, the Court found that
Detective Rockett furthered her investigation by visiting
the scenes, taking photographs, and attempting to locate
Defendant and his vehicle to effectuate an arrest.
51. Unlike in Keawe, where the officer observed the
[offense], in the instant case, responding officers did not
witness the [offense]. Because of the numerous incidents
reported, Detective Rockett wanted to ensure she had
"reasonably trustworthy information" and that she verified
that information before making an arrest. HRS § 803-5. She
wanted to visit and photograph the scenes, review the
reports, prepare appropriate search warrants, and obtain and
preserve evidence.
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52. The Court held [Rosa]'s arrest did not require a
formal warrant by HPD because Detective Rockett engaged in
good faith diligent efforts to further her investigation.
53. Detective Rockett's efforts were reasonable, and
she did not delay the arrest for tactical or strategic
reasons, especially considering she was juggling a number of
other assignments at the same time. [9]
Thus, the Circuit Court found and concluded that
Detective Rockett had probable cause to arrest Rosa on January
12, 2014, after Detective Rockett personally interviewed CW and
CW again recounted numerous, very specific, incidents of sexual
assault by Rosa, and CW positively identified Rosa as the
individual who sexually assaulted him. While there are many
findings and/or conclusions concerning the reasonableness of
Detective Rockett's further investigative efforts after that
date, the Circuit Court erred in ruling that a warrantless arrest
nineteen days after probable cause was established was lawful
pursuant to HRS § 803-5 based on the reasonableness of Detective
Rockett's further investigative action. This ruling disregards
the supreme court's fundamental rulings in Keawe, to wit:
Keawe, on the other hand, argues that a warrantless
arrest is unlawful unless, after finding probable cause, the
police make the arrest "immediately or soon thereafter."
. . . Keawe argues that . . . the power to arrest an
individual without a warrant (provided by HRS § 803–5) is
limited and should be construed narrowly. We agree.
. . . .
Keawe advocates an interpretation of HRS §§ 803–1 and
803–5 that would place a temporal restriction on the
9
The Circuit Court's COLs stemmed from and were consistent with
these FOFs.
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police's HRS § 803–5 power to make a warrantless arrest. We
agree.
Keawe, 107 Hawai#i at 5-6, 108 P.3d at 308-09 (footnote omitted).
The supreme court's limitation of its holding to cases
in which "the police have probable cause to arrest, have no
obstacle preventing them from making the arrest, and wait a
significant amount of time before making the arrest" does not
change the result in this case. See id. at 6-7, 108 P.3d at 309-
10. Nothing in Detective Rockett's testimony or the Circuit
Court's findings constituted an "obstacle" preventing Detective
Rockett from making the arrest.10 The police knew Rosa's
identity and the location of his residence for nineteen days
after probable cause was established and before his arrest. It
10
Detective Rockett's one attempt to arrest Rosa, when she went to
his house on January 25, 2014, was not a sufficient obstacle to make Rosa's
warrantless arrest - nineteen days after probable cause was established -
lawful under HRS § 803-5. See Line, 121 Hawai #i at 84-85, 214 P.3d at 623-24;
see also State v. Parras, CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX (consol.) 2016 WL
7324120 (Haw. App. Dec. 16, 2016) (SDO). In Parras, this court rejected the
State's argument concerning the need for a detective's testimony that he made
multiple attempts to serve the defendant during the twenty-five days period
between the establishment of probable cause and the defendant's arrest. 2016
WL 7324120 at *4. This court concluded:
On this record [(which included offers of proof as to the
detective's testimony)], the circuit court did not abuse its
discretion when it decided it did not need to have Detective
Phromsiri testify. Probable cause was established on
October 3, 2013, and Parras was arrested without a warrant
twenty-five days later, on October 28, 2013. Even if
Detective Phromsiri testified to his attempts to locate
Parras during those twenty-five days, and even though the
delay in locating Parras was an obstacle to arresting him,
we cannot say that a warrantless arrest twenty-five days
later is appropriate under HRS § 803-5. Rather, under Keawe
and Line, the police were required to obtain a warrant by
the time Parras was arrested in this case.
Id.
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is undisputed that HPD officers were able to serve Rosa to appear
at the TRO hearing at Honolulu District Court. His car was
observed by the police at his residence. Detective Rockett's
efforts to build a strong case were certainly permissible, even
commendable as the Circuit Court suggests, but they were in fact
strategic and carefully planned to aid in Rosa's eventual
prosecution, rather than constituting barriers to making an
arrest or obtaining an arrest warrant. As the Circuit Court
found, on the day Rosa was arrested (a Friday), HPD obtained a
search warrant for his home and could have obtained an arrest
warrant, but elected not to. Indeed, Dectective Rockett's post-
arrest warrantless arrest affidavit relied entirely on facts
gathered on or before January 12, 2014, to support probable cause
for Rosa's arrest and extended restraint.
Here, the police simply decided that waiting days, if
not weeks, until January 31, 2014, to arrest Rosa was appropriate
because they believed he would be at a court hearing and,
presumably, they thought that would be a convenient way to pick
him up. At the March 3, 2015 hearing, Detective Rockett was
asked about her understanding of the circumstances where she
would need to get a warrant before arresting an individual. She
responded:
It's my understanding that I would need an arrest warrant if
a suspect has been identified and he hasn't been located in
many months, maybe like six months. The other times I've
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seen an arrest warrant is when a suspect is injured, is
confined in the hospital, and is going to be there for a
prolonged period of time. Those are the only two occasions
I'm familiar with, I personally am familiar with.
Detective Rockett's understanding is inconsistent with
the immediacy requirement for a warrantless arrest under Hawai#i
law.
Finally, we note that the Circuit Court appeared to
give significant weight to the fact that HPD officers did not
personally witness the events that established probable cause to
arrest Rosa. This reliance was misplaced. We recognize that in
many instances where a warrantless arrest is authorized under HRS
§ 803-5, the probable cause for the arrest will stem from a
police officer's observations. However, that does not support a
conclusion that if probable cause is otherwise established, the
immediacy element for a warrantless arrest pursuant to HRS § 803-
5 need no longer be satisfied.
We conclude that Rosa's warrantless arrest was unlawful
and the Circuit Court erred in concluding that, pursuant to HRS
§§ 803-1 and 803-5, HPD did not violate Rosa's constitutional
rights by not obtaining a warrant of arrest.
As the supreme court explained in Keawe:
Ordinarily, when a defendant is arrested unlawfully, the
proper remedy is to suppress the evidence collected as a
result of the arrest. As we have stated:
"Closing the courtroom door to evidence . . . [flowing
from] official lawlessness" is the customary remedy
for violations of fourth amendment rights, and the
public interest would be better served by suppressing
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the evidence obtained as a consequence of the unlawful
arrests. For the exclusionary "rule is calculated to
prevent, not to repair. Its purpose is to deter -- to
compel respect for the constitutional guaranty in the
only effectively available way -- by removing the
incentive to disregard it."
Keawe, 107 Hawai#i at 7, 108 P.3d at 310 (quoting State v.
Furuyama, 64 Haw. 109, 122-23, 637 P.2d 1095, 1104 (1981))
(further citations and some brackets omitted).
Rosa argues that since his arrest on January 31, 2014
was illegal, the seizure of Rosa's Phone in connection with that
arrest was a violation of his constitutional rights to be secure
from unreasonable searches and seizures; and therefore Rosa's
Phone and evidence obtained therefrom should have been
suppressed. The State argues that Rosa's Phone would have
ultimately been seized because Rosa would inevitably have been
arrested and his cell phone would have been seized at that time
subject to a lawful arrest. Alternatively, the State argues that
if Rosa had not had Rosa's Phone in his possession at the time of
his arrest, a search warrant would inevitably have been obtained
to seize the phone because a lawful search warrant was obtained
to search the contents of Rosa's Phone. Thusly, the State
submits that it has demonstrated by clear and convincing evidence
that any evidence from Rosa's Phone that was used at trial would
have been discovered by lawful means, even if Rosa's arrest was
illegal.
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Hawai#i courts have recognized the inevitable discovery
doctrine. Under the inevitable discovery doctrine, the State has
the burden "to present clear and convincing evidence that any
evidence obtained in violation of article I, section 7, would
inevitably have been discovered by lawful means before such
evidence may be admitted under the inevitable discovery exception
to the exclusionary rule." State v. Lopez, 78 Hawai#i 433, 451,
896 P.2d 889, 907 (1995). In this case, however, the Circuit
Court ruled that Rosa's arrest was lawful, and therefore the
seizure of Rosa's Phone incident to his arrest was lawful.
Accordingly, the Circuit Court never reached the issue of
inevitable discovery and made no ruling on, for example, whether
the data content of Rosa's Phone "would have still been there"
if Rosa's Phone was recovered at some other time after Rosa's
illegal arrest. See id. at 452, 896 P.2d at 908.
In Lopez, although the trial court had not ruled on
whether the evidence in question would have been inevitably
discovered, the supreme court nevertheless reviewed the entire
record and concluded that the record was devoid of evidence
necessary to show that the fruits of the illegal search would
have been inevitably discovered. Id. The supreme court has
since clarified that it is error for this court to make rulings
that require determination of questions of fact and that the
proper course of action is for this court to remand a case to a
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finder-of-fact for such determinations. See, e.g., State v.
Pitolo, 144 Hawai#i 100, 108-09, 436 P.3d 1183, 1191-92 (2019)
(holding that the Intermediate Court of Appeals erred in ruling
based on its own review of the record on appeal, rather than
remanding the case). Here, we conclude that factual findings are
necessary to determine whether the prosecution met its burden to
establish that there was clear and convincing evidence that the
data retrieved from Rosa's Phone would have been inevitably
discovered. Thus, this case must be remanded for further
proceedings to determine whether the evidence obtained from
Rosa's Phone should have be suppressed.
B. Rosa's Motion for A New Trial
Rosa contends that the Circuit Court erred in denying
the Motion for New Trial on two grounds, which are addressed
below.
HRS § 635-56 (2016) provides:
§ 635-56 Grounds for new trial. In any civil case or
in any criminal case wherein a verdict of guilty has been
rendered, the court may set aside the verdict when it
appears to be so manifestly against the weight of the
evidence as to indicate bias, prejudice, passion, or
misunderstanding of the charge of the court on the part of
the jury; or the court may in any civil or criminal case
grant a new trial for any legal cause.
Hawai#i Rules of Penal Procedure (HRPP) provide:
Rule 33. NEW TRIAL.
The court on motion of a defendant may grant a new
trial to the defendant if required in the interest of
justice. If trial was by the court without a jury, the court
on motion of a defendant for a new trial may vacate the
judgment if entered, take additional testimony and direct
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the entry of a new judgment. A motion for a new trial shall
be made within 10 days after verdict or finding of guilty or
within such further time as the court may fix during the
10-day period. The finding of guilty may be entered in
writing or orally on the record.
HRPP Rule 33.
1. Impartial Jury
Rosa argues that the Circuit Court erred in denying his
motion for a new trial because it appeared that Juror 45, who
became the jury foreperson, may not have been fair and impartial
towards Rosa because Juror 45 may have been untruthful about
whether he worked at Handi-Van during the same time as Rosa.
A motion for a new trial based on juror misconduct can
be based upon (1) failure of one or more jurors to respond
truthfully to questions posed during voir dire, or (2)
misconduct by one or more jurors during the course of the
trial. In either event, the ultimate inquiry is whether the
misconduct deprived the defendant of the fundamental right
to a trial by twelve impartial jurors. If any member or
members of the jury was shown not to be impartial, the trial
court's failure to grant a new trial is an abuse of
discretion.
State v. Adams, 10 Haw. App. 593, 599, 880 P.2d 226, 231 (1994)
(citations omitted). The supreme court has further provided
that:
[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
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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.
State v Furutani, 76 Hawai#i 172, 180-81, 873 P.2d 51, 59-60
(1994) (citations omitted).
Here, Rosa does not point to where in the record the
Circuit Court failed to act on any concern over Juror 45 that
Rosa raised; rather, Rosa now argues that:
[Rosa] was never consulted by prior counsel [DPD Ting]
as to [Juror 45]'s employment with Handi-Vans. Prior
counsel should have known the relevance and possible
prejudice since he knew of [Rosa]'s prior employment history
with the same company. [Rosa] was not consulted in any
meaningful context about the questioning of juror 45 out of
the presence of the jury. When juror 45 said that he never
knew [Rosa] or worked with him, prior counsel should have
consulted [Rosa].
Further, Rosa points to no instance of misconduct by
Juror 45 but argues that "it appears the foreperson may not have
been fair and impartial[.]" (Emphasis added).
The Circuit Court issued the following FOFs:
1. On October 20, 2016, both the State and defense
received the jury packet for the instant case. The packet
consisted of the jury list and redacted juror cards.
2. On Juror Card 45, under item 13 asking for present
or last employer and occupation, Juror No. 45 wrote "OTS
Handi-Van."
3. On October 24, 2016, a jury trial commenced
before this Honorable Court. Defendant was represented
by [Mr. Ting].
4. During jury selection, Juror No. 45 was first
seated as Alternate Juror No. 1.
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5. Both the State and defense had an opportunity to
voir dire Juror No. 45.
6. Neither the State nor the defense challenged Juror
No. 45 for cause, or elected to exercise a peremptory
challenge on this juror.
7. After the jury was impaneled and sworn in, a juror
was dismissed and Juror No. 45 was called to fill Chair 6.
8. On November 2, 2016, Defendant testified.
Defendant provided his background information, including
employment history. One of Defendant's prior places of
employment was with Handi-Van.
9. Defendant did not provide specific information on
dates of employment, the nature of his work, or position(s)
with the Handi-Van.
10. During the recess following Defendant's testimony,
Juror No. 45 asked to address the Court.
11. After the other jurors cleared the room, Juror No.
45 notified the Court that he is currently employed with the
Handi-Van.
12. The Court engaged in a colloquy with Juror No. 45
to find out more information. Juror No. 45 explained that
while he and Defendant may have been employed by the
handi-Van at the same time, Juror No. 45 did not know and
had not worked with Defendant.
13. Juror No. 45 assured the Court that despite this
common employment, he could remain fair and impartial.
14. After Juror No. 45 addressed the Court, the Court
asked both the State and defense if either party had any
questions for this juror.
15. Both the State and defense declined to ask Juror
No. 45 any further questions.
16. Juror No. 45 was released from the courtroom.
17. After Juror No. 45 left the courtroom, neither the
State nor the defense objected to Juror No. 45 remaining on
the panel in Chair 6.
The record shows that it was Juror 45 that first raised
the issue that he might have worked at Handi-Van at the same time
as Rosa - after Rosa's testimony, which included Rosa's having
worked with Handi-Van. The Circuit Court engaged in a colloquy
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with Juror 45 and was satisfied that Juror 45 did not know Rosa.
Rosa's defense was given an opportunity to ask questions or to
object to Juror 45, but did not do so.
The Circuit Court's November 13, 2017 FOFs/COLs/Order
on New Trial provided that there was no evidence of a history
between Juror 45 and Rosa, and that Rosa's arguments on Juror 45
not being impartial were "speculation" where there was no
evidence that Juror 45 held any bias and/or manipulated the other
jurors. Rather, the court found that the record showed that
Juror 45 "assured the Court that he could remain fair and
impartial" and that when the jury was polled all twelve responded
that the verdict "accurately represented and reflected their
respective votes."
The Circuit Court's decision to deny Rosa's Motion for
New Trial based on his concerns about Juror 45 did not clearly
exceed the bounds of reason or disregard rules or principles of
law or practice to Rosa's substantial detriment. See Furutani,
76 Hawai#i at 179, 873 P.2d at 58. Accordingly, we conclude that
the Circuit Court did not abuse its discretion in denying Rosa's
Motion for New Trial on this ground.
2. Compulsory Process
Rosa contends that the Circuit Court erred in denying
his Motion for New Trial on grounds of denial of compulsory
process. Rosa argues that this failure occurred when DPD Ting
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did not subpoena witnesses that Rosa requested and that were
listed in his witness list, resulting in Rosa being deprived of
his constitutional right to present witnesses in his own defense,
and that the Circuit Court's failure was when it did not engage
in any colloquy with Rosa on the witnesses that he did or did not
want called.
"The due process guarantee of the Federal and Hawai#i
constitutions serves to protect the right of an accused in a
criminal case to a fundamentally fair trial." State v. Acker,
133 Hawai#i 253, 281, 327 P.3d 931, 959 (2014) (citation and
internal quotation marks omitted). "[A] fundamental element of
due process of law is the right of compulsory process. The right
to compulsory process affords a defendant in all criminal
prosecutions, not only the power to compel attendance of
witnesses, but also the right to have those witnesses heard."
Id. (citations and internal quotation marks omitted). "However,
this right is subject to limitations, the most important of
which, is that the defendant may only obtain witnesses who can
give 'relevant and beneficial testimony for the defense.'" State
v. Diaz, 100 Hawai#i 210, 226, 58 P.3d 1257, 1273 (2002) (citing
State v. Savitz, 67 Haw. 59, 60-61, 677 P.2d 465, 466-67 (1984)).
In Savitz, the defense made two offers of proof to establish
that the witness would provide relevant and beneficial
testimony. First, the witness would testify that the
defendant was not at the scene of the burglary for which he
was being tried. Second, the witness had a conversation with
the prosecution's witness (prior to trial), which would help
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impeach the prosecution witness. [The Hawai #i Supreme Court]
ruled that the defense's offer of proof was "purely
conjectural and without any foundation nor supported by any
basis in fact."
Id. (citation and footnote omitted).
Rosa now argues that his witnesses were not called
because DPD Ting "simply exercised his own discretion in deciding
that the defense would not present any witnesses to corroborate
[Rosa] at trial." Rosa further argues that, given the witness
list and the trial continuances (to locate defense witnesses),
the court should have known to colloquy Rosa.
In denying Rosa's Motion for New Trial on grounds of
denial of compulsory process, the Circuit Court stated that:
[Rosa] failed to support his assertion with any proof
that the named witnesses would have benefitted his defense,
and he points to no evidence that [DPD] Ting neglected to
contact these witnesses. The record reflects that [DPD] Ting
moved for multiple continuances, at [Rosa]'s request, to
secure defense witnesses. [Rosa] presented nothing to
suggest these witnesses . . . would have even testified in a
manner helpful to his case. Without a showing that these
witnesses were relevant and beneficial, [Rosa]'s right to
Compulsory Process was not denied.
The Circuit Court considered and addressed Rosa's
arguments. The Circuit Court cited the requirement for a movant
to show ineffective assistance of counsel "based on the failure
to obtain witnesses" which "must be supported by affidavits or
sworn statements describing the testimony of the proffered
witnesses." See State v. Richie, 88 Hawai#i 19, 39, 960 P.2d
1227, 1247 (1998) (citations omitted). The Circuit Court also
noted that "the calling of witnesses is generally a strategic
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decision for defense counsel" and that "matters presumably within
the judgment of counsel, like trial strategy, 'will rarely be
second-guessed by judicial hindsight.'" See id. The Circuit
Court based its ruling on the fact that Rosa failed to support
his claim with affidavits or sworn statements of the testimonies
of the named witnesses. Thus, as the Circuit Court observed, it
is entirely speculative that there would be a different outcome
had DPD Ting called those witnesses.
Lastly, Rosa provides no authority, and we find none,
requiring a trial court to colloquy a defendant regarding whether
the defense has presented all of the witnesses that the defendant
wants.
We conclude that the Circuit Court did not clearly
exceed the bounds of reason or disregard rules or principles of
law or practice to Rosa's substantial detriment in denying the
Motion for a New Trial on these grounds. See State v. Austin,
143 Hawai#i 18, 29, 422 P.3d 18, 29 (2018). Accordingly, the
Circuit Court did not abuse its discretion in denying Rosa's
Motion for New Trial.
V. CONCLUSION
For these reasons, the Circuit Court's March 25, 2015
FOFs/COLs/Order on Motion to Suppress is vacated, and this case
is remanded for further proceedings consistent with this Opinion.
If, on remand, the State fails to meet its burden on the issue of
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inevitable discovery, then Rosa is entitled to relief from the
January 2, 2018 Judgment and a new trial.
On the briefs:
/s/ Lisa M. Ginoza
Nelson W.S. Goo, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge
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