  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                  Electronically Filed
                                                  Intermediate Court of Appeals
                                                  CAAP-XX-XXXXXXX
                                                  29-JUN-2020
                                                  08:06 AM




                            NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS
                         OF THE STATE OF HAWAI#I


                 STATE OF HAWAI#I, Plaintiff-Appellee,
                                   v.
                  REGGIE LAUTALO, Defendant-Appellant


         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
                      (CR NO. 1CPC-XX-XXXXXXX)


                           MEMORANDUM OPINION
         (By:   Ginoza, Chief Judge, Chan and Wadsworth, JJ.)

            Defendant-Appellant Reggie Lautalo (Lautalo) appeals
from the "Judgment of Conviction and Sentence" (Judgment),
entered on July 3, 2018, and the "Amended Judgment of Conviction
and Sentence" (Amended Judgment), entered on August 21, 2018,
both entered by the Circuit Court of the First Circuit (Circuit
Court).1   Following a jury trial, Lautalo was found guilty of
Assault in the Second Degree in violation of Hawaii Revised
Statutes (HRS) § 707-711 (2014)2 and Robbery in the Second Degree


     1
         The Honorable Todd W. Eddins presided.
     2
         At the time of the offense, HRS § 707-711 provided in relevant part:

           §707-711 Assault in the second degree. (1) A person commits
     the offense of assault in the second degree if:
           (a)   The person intentionally or knowingly causes
                 substantial bodily injury to another;
           (b)   The person recklessly causes serious or substantial
                 bodily injury to another[.]
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in violation of HRS § 708-841(1)(a) (2014).3 The Circuit Court
subsequently dismissed the assault conviction with prejudice and
sentenced Lautalo to a ten-year term of incarceration for the
robbery conviction, to run concurrently with any other sentence
that Lautalo was then serving.4
           On appeal, Lautalo raises the following points of
error: (1) the Circuit Court abused its discretion in failing to
investigate whether any prospective jurors heard an excused
prospective juror say "good luck, Uso" to Lautalo as the excused
juror walked out of the courtroom; (2) Plaintiff-Appellee State
of Hawai#i (State) committed prosecutorial misconduct during its
rebuttal closing argument; and (3) the Circuit Court erred in
giving Instruction No. 1.2 to the jury regarding the presumption
of innocence and reasonable doubt because it fails to include
critical language contained in Hawai#i Standard Jury Instruction
Criminal (HAWJIC) 3.02.
          We conclude that the statement by the excused juror
could have substantially prejudiced Lautalo's right to a fair
trial by an impartial jury, and thus, further investigation by
the Circuit Court was required. We therefore vacate Lautalo's
conviction and remand for further proceedings.
I.   Prospective Juror 46's statement was of a nature that it
     could have substantially prejudiced Lautalo's right to a
     fair trial

          Jury trial in this case commenced on April 19, 2018.
During jury selection, prospective juror number 46 (Prospective
Juror 46) was excused by the Circuit Court.          Upon being excused,


     3
         HRS § 708-841(1)(a) provides:

           §708-841 Robbery in the second degree. (1) A person commits
     the offense of robbery in the second degree if, in the course of
     committing theft or non-consensual taking of a motor vehicle:
           (a)   The person uses force against the person of anyone
                 present with the intent to overcome that person's
                 physical resistance or physical power of resistance[.]
     4
         The Circuit Court originally sentenced Lautalo to the open term of
incarceration in both counts, each to run concurrently with each other. On
August 21, 2018, the Circuit Court entered an order dismissing the assault
count with prejudice, apparently based on merger of the offenses. On the same
day, the Circuit Court entered its Amended Judgment reflecting the dismissal.

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Prospective Juror 46 stated "Good luck, Uso," which was
apparently directed at Lautalo. After a recess, Lautalo's
counsel brought the statement to the Circuit Court's attention,
where the following exchange occurred:

          [Lautalo's counsel]: Your Honor, I have a grave
          concern. Apparently -- I didn't realize this when it
          happened, but it was brought to my attention, and I
          confirmed it with a couple members of Mr. Lautalo's
          family who were in the area where it was said; but
          apparently when [Prospective Juror 46] was excused and
          walking in this area, directing his comment to -- to
          Mr. Lautalo, said, "Good luck, Uso." And I have
          concerns -- now, many people might not know what that
          means, the significance of it. But for the people that
          do know what it means, I have a concern that they may
          -- it may affect them. And because we're at this point
          where it's still -- we have a big panel. And I don't
          know who heard.

          THE COURT: All right.

          [Lautalo's counsel]: I would like to address it
          somehow.

          THE COURT: [Deputy Prosecuting Attorney], what's your
          position?

          [Deputy Prosecuting Attorney]: I can confirm. I did
          hear those exact words.
          THE COURT: Well, I'm not asking about that, because I
          heard those words.

          [Deputy Prosecuting Attorney]: I mean, if anything --
          if anything, my understanding is "uso" means brother.
          So, if anything, I thought it was detrimental to me.
          So -- I mean, I'll defer to the Court on this. But
          beyond that, I don't really have an opinion.

          I'd prefer -- I mean, I -- it would be nice not to
          bring it up again.

          THE COURT: I strike that as a comment that can be
          taken many different ways, based on the definition of
          "uso." Perhaps [Lautalo's counsel] is thinking that
          "uso" means some sort of a prison gang situation. But
          it could also mean an individual of Samoan ethnicity.
          It could mean brother, as [Deputy Prosecuting
          Attorney] says it. But irrespective of what the
          meaning happens to be, the jury has been instructed
          and will be instructed to consider the case solely on
          the evidence presented in this court and the law that
          I give to you.

          So I see no prejudice to this jury panel if there's a
          request by the Defense to excuse this jury panel and
          somehow [sic] another panel. I don't see the need for
          any kind of instruction on this case. I wish the
          individual hadn't made that statement. But I don't see
          any substantial prejudice to the Defense on this.


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          But, [Lautalo's counsel], do you want to add anything
          further?
          [Lautalo's counsel]: No, Your Honor.

          Lautalo contends that the Circuit Court abused its
discretion in concluding that Prospective Juror 46's statement
was not substantially prejudicial and for failing to investigate
whether other prospective jurors heard the statement. Lautalo
thus asserts that he was denied his constitutional right to a
fair trial by an impartial jury because the statement was an
outside influence that may have infected other jurors.
          It is well settled that "[t]he sixth amendment to the
United States Constitution and article I, section 14 of the
Hawai#i Constitution guarantee the criminally accused a fair
trial by an impartial jury." State v. Bailey, 126 Hawai#i 383,
399, 271 P.3d 1142, 1158 (2012) (citation omitted). "Inherent in
this requirement is that a defendant receive a trial by an
impartial jury free from outside influences." State v.
Keliiholokai, 58 Haw. 356, 357, 569 P.2d 891, 893 (1977)
(citation and internal quotation marks omitted). Where the
existence of an outside influence on a jury is brought to the
attention of the trial court, the court must ascertain the extent
of the influence and then, in its sound discretion, take
appropriate measures to assure a fair trial. Id. at 358, 569
P.2d at 894.
           The Hawai#i Supreme Court has recognized that "[t]he
defendant bears the initial burden of making a prima facie
showing of a deprivation that 'could substantially prejudice his
or her right to a fair trial' by an impartial jury." State v.
Chin, 135 Hawai#i 437, 443, 353 P.3d 979, 985 (2015) (emphasis in
original) (brackets, footnote, and citations omitted). "Once the
defendant makes a prima facie showing of a deprivation, 'a
rebuttable presumption of prejudice is raised.'" Id. (citation
omitted). This analysis "initially focuses on the general nature
of the outside influence and whether it 'could' substantially
prejudice a defendant; if the court so finds, then a rebuttable
presumption of prejudice is raised that triggers the court's

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obligation to investigate the totality of the circumstances."
Id. (citation omitted). The determination of whether the outside
influence does rise to the level of substantial prejudice is
ordinarily a question committed to the trial court's discretion.
Keliiholokai, 58 Haw. at 359, 569 P.2d at 895.
          In Chin, the supreme court reiterated the following
procedure should be followed in the trial court when an improper
influence on a jury has been raised:
          [W]hen a defendant in a criminal case claims a deprivation
          of the right to a fair trial by an impartial jury, the
          initial step for the trial court to take is to determine
          whether the nature of the alleged deprivation rises to the
          level of being substantially prejudicial. If it does not
          rise to such a level, the trial court is under no duty to
          interrogate the jury. And whether it does rise to the level
          of substantial prejudice is ordinarily a question committed
          to the trial court's discretion.

          Where the trial court does determine that such alleged
          deprivation is of a nature which could substantially
          prejudice the defendant's right to a fair trial, a
          rebuttable presumption of prejudice is raised. The trial
          judge is then duty bound to further investigate the totality
          of circumstances surrounding the alleged deprivation to
          determine its impact on jury impartiality. The standard to
          be applied in overcoming such a presumption is that the
          alleged deprivation must be proved harmless beyond a
          reasonable doubt.

          The defendant bears the initial burden of making a prima
          facie showing of a deprivation that could substantially
          prejudice his or her right to a fair trial by an impartial
          jury. But once a rebuttable presumption of prejudice is
          raised, the burden of proving harmlessness falls squarely on
          the prosecution.

Chin, 135 Hawai#i at 445, 353 P.3d at 987 (emphases and brackets
in original) (citations omitted).
          In this case, the Circuit Court recognized that the
statement by Prospective Juror 46 could be taken many different
ways, noting:
          Perhaps [Lautalo's counsel] is thinking that "uso" means
          some sort of a prison gang situation. But it could also mean
          an individual of Samoan ethnicity. It could mean brother, as
          [Deputy Prosecuting Attorney] says it. But irrespective of
          what the meaning happens to be, the jury has been instructed
          and will be instructed to consider the case solely on the
          evidence presented in this court and the law that I give to
          you.

(Emphases added). Moreover, the record reflects that the deputy
prosecutor and the Circuit Court heard the statement by

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Prospective Juror 46, such that it was likely at least some of
the prospective jurors heard the statement as well. Given this
record, and particularly the recognition that Prospective Juror
46's statement could refer to "some sort of a prison gang
situation[,]" we must conclude that the statement was of a nature
that it could substantially prejudice Lautalo's right to an
impartial jury, and a rebuttable presumption of prejudice was
raised. Chin, 135 Hawai#i at 443, 353 P.3d at 985. Thus, under
the procedure recognized by the Hawai#i Supreme Court, it was
incumbent on the Circuit Court to "further investigate the
totality of circumstances surrounding the alleged deprivation to
determine its impact on jury impartiality." Id. at 445, 353 P.3d
at 987 (citation omitted).
          The Circuit Court relied on the fact that it had
instructed the jury, and would instruct the jury, to consider the
case solely on the evidence presented and the law that would be
given. However, Hawai#i Supreme Court cases addressing whether a
jury has been tainted by an outside influence, and whether a
defendant's right to an impartial jury has been impacted, have
not indicated that a jury instruction alone can remedy the
potential for substantial prejudice. See id. at 443-49, 353 P.3d
at 985-91; Keliiholokai, 58 Haw. at 357-60, 569 P.2d at 893-96.
          In Bailey, a juror made statements during jury
deliberation about the defendant previously being in trouble for
a murder charge. Bailey, 126 Hawai#i at 393, 271 P.3d at 1152.
After investigating the matter by proceeding to voir dire each
juror, the trial court denied the defendant's motion for a
mistrial, dismissed the juror who had made the comments, and
seated an alternate juror. Id. at 395, 271 P.3d at 1154. The
trial court then instructed the original eleven jurors to "not
consider [Juror Nine's] statements during your deliberations for
any reason or purpose[,]" and instructed the entire reconstituted
jury "to disregard [its] prior deliberations and to start [its]
deliberations anew." Id. (some brackets in original) (internal
quotation marks omitted). On appeal, the Hawai#i Supreme Court


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recognized that "erroneous admission of prior criminal conduct
may be harmless if the trial court gives a cautionary instruction
and the evidence against the defendant is overwhelming," but that
"such an instruction may be insufficient to cure the effect of
improper evidence that is highly prejudicial[.]" Id. at 401, 271
P.3d at 1160 (citations omitted). The Hawai#i Supreme Court
ultimately concluded that the evidence produced at trial was not
strong enough to overcome the substantial prejudice created by
the dismissed juror's statements, even with the trial court's
specific instruction to the jurors to disregard the dismissed
juror's statements in resuming deliberations. Id. at 401-02, 271
P.3d at 1160-61.
          Here, the Circuit Court did not engage in a further
investigation regarding Prospective Juror 46's statement.
Moreover, the Circuit Court's instructions to the jury did not
specifically address Prospective Juror 46's statement, but rather
generally instructed the jurors to only consider the evidence
presented and the law that would be given. Given the lack of
further investigation about Prospective Juror 46's statement, and
without knowing its impact on the jurors who ultimately were
selected, the Circuit Court's general instructions were not
sufficient to negate the potentially prejudicial statement made
by Prospective Juror 46.
          We therefore conclude that the Circuit Court erred in
failing to investigate the statement by Prospective Juror 46 and
by not determining whether Lautalo's right to an impartial jury
was impacted.
II. Other points of error
          Given that we vacate based on Lautalo's first point of
error, we need not reach his remaining asserted points of error.
III. Conclusion
          Based on the foregoing, the "Judgment of Conviction and
Sentence" filed on July 3, 2018, and the "Amended Judgment of
Conviction and Sentence" filed on August 21, 2018, both entered



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by the Circuit Court of the First Circuit, are vacated. This
case is remanded to the Circuit Court for further proceedings.
          DATED: Honolulu, Hawai#i, June 29, 2020.


On the briefs:                        /s/ Lisa M. Ginoza
                                      Chief Judge
William H. Jameson, Jr.
Deputy Public Defender,               /s/ Derrick H.M. Chan
for Defendant-Appellant.              Associate Judge

Donn Fudo,                            /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney,          Associate Judge
for Plaintiff-Appellee.




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