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                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    25-AUG-2020
                                                    07:50 AM



                             NO. CAAP-XX-XXXXXXX

                   IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


                   STATE OF HAWAI#I, Plaintiff-Appellee,
                                     v.
                  RALPH RIVEIRA, JR., aka Ralph Riveira,
                            Defendant-Appellant


          APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
              (CASE NO. 1PC131000403 (CR. NO. 13-1-0403))


                       SUMMARY DISPOSITION ORDER
           (By: Ginoza, Chief Judge, Leonard and Chan, JJ.)

            Defendant-Appellant Ralph Riveira, Jr., also known as
Ralph Riveira (Riveira), appeals from the September 26, 2017
Judgment of Conviction and Sentence (Judgment) entered by the
Circuit Court of the First Circuit (circuit court).1               After a
jury trial, Riveira was convicted of one count of Attempted
Assault Against a Law Enforcement Officer in the First Degree in
violation of Hawaii Revised Statutes (HRS) § 705-500 (2014)2 and

      1
            The Honorable Rom A. Trader presided.
      2
            §705-500 Criminal attempt.   (1) A person is guilty of an attempt to
commit a crime if the person:

            (a)    Intentionally engages in conduct which would constitute
                   the crime if the attendant circumstances were as the
                   person believes them to be; or

            (b)    Intentionally engages in conduct which, under the
                   circumstances as the person believes them to be,
                   constitutes a substantial step in a course of conduct
                   intended to culminate in the person's commission of the
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707-712.5(1)(a) (2014)3.          Riveira was sentenced to a ten-year
extended term as a multiple and persistent offender.
            On appeal, Riveira asserts that his trial counsel
provided ineffective assistance of counsel and that the circuit
court deprived him of a fair trial when it failed to fully
investigate alleged juror misconduct.             Riveira also asserts that
the circuit court erred by: admitting prior bad act evidence;
refusing to remove exhibit labels displaying the initial
"attempted murder" classification of the case; and sentencing him
to an extended sentence.
            Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve Riveira's
points of error as follows.
      A.    Ineffective Assistance of Counsel
            On February 21, 2017, Plaintiff-Appellee State of
Hawai#i (State) filed its Motion in Limine No. 4, which sought,
inter alia, to preclude Riveira from introducing medical records,
lay or expert testimony, and photographs or demonstrations of the
injuries sustained by Riveira as a result of a March 8, 2013


                  crime.

            (2)    When causing a particular result is an element of the
crime, a person is guilty of an attempt to commit the crime if, acting with the
state of mind required to establish liability with respect to the attendant
circumstances specified in the definition of the crime, the person intentionally
engages in conduct which is a substantial step in a course of conduct intended or
known to cause such a result.

            (3)    Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative of the defendant's
criminal intent.
      3
            HRS § 707-712.5 provides in pertinent part:

            (1)   A person commits the offense of assault against a law
            enforcement officer in the first degree if the person:

                  (a)      Intentionally or knowingly causes bodily injury to
                           a law enforcement officer who is engaged in the
                           performance of duty[.]


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incident at 1618 Machado Street.       During that incident, Riveira
was alleged to have attempted to stab Officer Joselito Obena
(Officer Obena) of the Honolulu Police Department with a metal
tent stake, which resulted in Officer Obena shooting Riveira.
          At the hearing on the State's Motion in Limine No. 4,
Riveira's trial counsel confirmed that he would not be
introducing any medical evidence or records nor would he be
introducing the testimony of experts or other witnesses that
treated Riveira for his gunshot wounds.      Rather, Riveira's
counsel stated that he would instead seek to introduce lay
testimony from Riveira himself as to the injuries he sustained.
Riveira's counsel elaborated that "the reason for that is all the
doctors who treated [Riveira] during his stay at Queen's have now
relocated to the mainland."    The circuit court entered its Order
Granting in Part and Denying in Part State's Motion in Limine No.
4, precluding Riveira from introducing medical records or expert
testimony pertaining to the nature or scope of the injuries
sustained by Riveira as a result of the March 8, 2013 incident.
However, the circuit court held that Riveira would be permitted
to provide lay testimony regarding the location of the injuries
sustained as a result of the March 8, 2013 incident and to show
such to the jury.
          On appeal, Riveira argues that his trial counsel's
failure to investigate and introduce testimony of medical and/or
ballistics experts amounted to ineffective assistance of counsel.
Riveira posits that the testimonial evidence could have refuted
the testimony and evidence adduced from the State's witnesses,
and shown that Riveira had not attempted to assault Officer
Obena.
          Ineffective assistance of counsel claims based on the
failure to investigate and obtain witness testimony "must be
supported by affidavits or sworn statements describing the
testimony of the proffered witnesses."      State v. Richie, 88
Hawai#i 19, 39, 960 P.2d 1227, 1247 (1998).      Despite Riveira's


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speculations as to what the medical and/or ballistics experts'
testimonies could have established, Riveira fails to point to
affidavits or sworn statements in the record indicating what the
expert witnesses would have actually testified to and we find
none.     See id.   Absent any reliable evidence of what these
witnesses would have testified to, we are unable to determine
whether the absence of their testimonies deprived Riveira of a
potentially meritorious defense.             Accordingly, Riveira's claim
for ineffective assistance of counsel fails.
     B.      Juror Misconduct
             On the first day of the jury trial on March 2, 2017,
during the State's presentation of its case, Juror No. 7 reported
to the circuit court via a voicemail message that she was
concerned about unspecified comments another juror had made to
her and one other juror, both of whom she did not identify in her
message.     Upon receiving the message from Juror No. 7, the
circuit court met with counsel for both parties,4 outside of the
presence of the jury, and stated that
             because the Court has an affirmative duty to investigate,
             and I'm not sure what the nature of the statement that
             [Juror No. 7 is] referring to, or the extent of the concern
             . . . . what I propose is bringing [Juror No. 7] in, allow
             the Court to speak with her, to gather some information,
             maybe necessary to speak to more than just that juror, and
             follow it through to its conclusion, and then we can address
             the impact of that, if any.

The circuit court then called Juror No. 7 in for questioning.
Juror No. 7 stated that the comments she reported were made by
Juror No. 1 and regarded Juror No. 1's statements about her
inability to remember things, and when Juror No. 7 told Juror No.
1 that it was important to remember the facts, Juror No. 1 said
"[w]ho cares."      Further, when Juror No. 7 suggested to Juror No.
1 that maybe she should excuse herself if she did not think she
could remember the facts, Juror No. 1 expressed an opinion about
the case by making a statement to the effect of, "it's really


     4
             Riveira was also present.

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easy 'cause it looks really bad for [Riveira]."         Juror No. 7 also
identified Juror No. 3 as being present when Juror No. 1 made
those comments, and the circuit court therefore also questioned
Juror No. 3.   After questioning Jurors No. 3 and No. 7 about the
alleged comments by Juror No. 1 and whether the comments were
heard by other jurors, the circuit court discussed the issue with
trial counsel for both parties and upon their agreement, decided
to excuse Juror No. 1.    The circuit court called in Juror No. 1
and dismissed her without further inquiry.        An alternate juror
replaced Juror No. 1.
          On appeal, Riveira asserts that he was deprived of a
fair trial due to the circuit court's decision not to question
the other jurors, including Juror No. 1, as to whether other
jurors were exposed to the comments and could remain fair and
impartial.   Inasmuch as Riveira failed to object to the circuit
court's handling of the juror's misconduct or move for a new
trial, we must determine whether the alleged error amounted to
plain error which affected the substantial rights of the
defendant.   See State v. Fagaragan, 115 Hawai#i 364, 367-68, 167
P.3d 739, 742-43 (2007) ("Normally, an issue not preserved at
trial is deemed to be waived.      But where plain errors were
committed and substantial rights were affected thereby, the
errors may be noticed although they were not brought to the
attention of the trial court." (internal quotation marks,
citations, and brackets omitted)).
          The Hawai#i Supreme Court has stated that the following
procedure should be followed in the trial court when a defendant
claims that the jury was exposed to an improper influence:
          When 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.



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                         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.

State v. Chin, 135 Hawai#i 437, 445, 353 P.3d 979, 987 (2015)
(emphases in original) (brackets omitted) (quoting State v.
Bailey, 126 Hawai#i 383, 399-400, 271 P.3d 1142, 1158-59 (2012)).
            Although it is apparent that the circuit court found
Juror No. 1's misconduct5 to have impacted her own ability to
serve as a juror, the circuit court did not determine on the
record whether the comments purportedly made by Juror No. 1, when
conveyed to other jurors, were of a nature that could
substantially prejudice Riveira's right to a fair trial.                 In
other words, whether the misconduct could have infected the rest
of the jury.
            "It is a generally accepted principle of trial
administration that jurors must not engage in discussions of a
case before they have heard both the evidence and the court's
legal instructions and have begun formally deliberating as a
collective body."      United States v. Resko, 3 F.3d 684, 688–89 (3d




      5
             "'Juror misconduct' does not necessarily mean a juror's bad faith or
malicious motive, but means a violation of, or departure from, an established
rule or procedure for production of a valid verdict." Oahu Publ'ns Inc. v. Ahn,
133 Hawai#i 482, 490 n.8, 331 P.3d 460, 468 n.8 (2014).

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Cir. 1993).     Although other courts have observed that extra-jury6
communication poses a far more serious threat to a defendant's
right to be tried by an impartial jury than intra-jury7
communications, they have not foreclosed the possibility that
intra-jury communication could be substantially prejudicial.                 See
Resko, 3 F.3d at 690-691 (stating that "[i]t is well-established
that [extra-jury communications] pose a far more serious threat
to the defendant's right to be tried by an impartial jury," but
also holding that "when jury misconduct (including improper
intra-jury influences) has been alleged, the district court
should: ascertain whether the misconduct actually occurred; if it
did, determine whether it was prejudicial[.]").             Intra-jury
communication through premature deliberation
            present[s] a number of dangers, all in some manner affecting
            or touching upon the criminal defendant's Sixth Amendment
            right to a fair and impartial jury trial. In Resko, [the
            court] identified a number of these:

                        (1) Since premature deliberations are more
                        likely to occur before the defendant has
                        had an opportunity to present his or her
                        case, the prosecution has an unfair
                        influence on the juror's initial
                        impressions;

                        (2) Once a juror has expressed views on a
                        particular issue, that juror has a "stake"
                        in the expressed view and may give undue
                        weight to additional evidence that
                        supports, rather than undercuts, his or
                        her view;

                        (3) Individual conversations between
                        selected jurors thwart the goal of a
                        collective, deliberative process between
                        the jurors as a group;

                        (4) Often, the premature deliberations
                        occur before the jurors are instructed on
                        the reasonable doubt standard, and hence
                        the jurors may reach a result using an
                        incorrect, and unconstitutional, standard


      6
            "[Extra-jury or] extraneous influence includes, among other things,
. . . third-party communications with sitting jurors." Meyer v. State, 119 Nev.
554, 562, 80 P.3d 447, 454 (2003).
      7
            "[I]ntra-jury or intrinsic influences involve improper discussions
among jurors[.]" Id.

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                      of proof.

United States v. Bertoli, 40 F.3d 1384, 1393 (3d Cir. 1994)
(citing Resko, 3 F.3d at 689–70).
          Leading up to the dismissal of Juror No. 1, the circuit
court instructed the jurors on several occasions throughout the
trial to keep an open mind and not to discuss any matter relating
to the case.    Further, after jury selection, the circuit court
relayed to the jurors that
          once the closing arguments are completed, then for the first
          time you will -- the twelve jurors that will be deciding the
          case will retire to the jury deliberation room . . . . And
          once you're in there . . . , then for the first time you can
          begin to consider the evidence and arrive at decisions that
          you have to make in reaching your verdicts.

The purported pre-deliberation comment made by Juror No. 1
relating to her impression of the case was violative of the
circuit court's instructions and of a nature that could influence
the other jurors' opinions and therefore could substantially
prejudice Riveira's right to a fair trial.        See Chin, 135 Hawai#i
at 447-48, 353 P.3d at 989-90 ("While we do not consider whether
a violation of any court instruction may warrant investigation,
here, the court's instruction to the jury specifically directed
'Do not talk to the defendant, lawyers, witnesses or anybody else
connected with this case.'        As the instruction here is consistent
with our historical policy of preventing outside influence on a
jury, the violation of that instruction provides additional
evidence that the influence is of a nature that could
substantially prejudice a defendant's right to a fair trial.");
see also Bertoli, 40 F.3d at 1393.        Therefore, the circuit court
was duty bound to further investigate the totality of
circumstances surrounding the alleged misconduct.
          While questioning Jurors No. 3 and No. 7, it appears
that the circuit court also began investigating the issue to
determine the totality of the circumstances surrounding the
alleged misconduct and to determine its impact on jury
impartiality.    During the voir dire of Jurors No. 3 and No. 7,


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the two jurors confirmed that they did not believe Juror No. 1
conveyed the comments to anyone else or that anyone else
overheard Juror No. 1 conveying the comments to them, and that
the comments had not affected their own impartiality.      However,
the circuit court never questioned Juror No. 1, whose purported
comments were central to Riveira's assertion of juror misconduct,
about what her comments actually were and if they were expressed
to anyone else.   The circuit court also did not question any
other juror.   Thus, we conclude that the circuit court did not
have the totality of circumstances surrounding the alleged
misconduct before it and could not determine whether the
purported comments were harmless or not.     See Chin 135 Hawai#i at
448, 353 P.3d at 990 ("[W]here a prima facie case of improper
influence has been shown, raising a presumption of prejudice, the
totality of the circumstances includes, at a minimum, the court's
examination of the juror or jurors involved in the misconduct.");
State v. Williamson, 72 Haw. 97, 104, 807 P.2d 593, 597 (1991)
("[B]y not inquiring into the identity of the juror who brought
the dictionary and obtaining a personal explanation from him or
her as to its use, the trial court did not have before it the
totality of circumstances surrounding the misconduct to decide
whether it was harmless."); cf. State v. Amorin, 58 Haw. 623,
631, 574 P.2d 895, 900 (1978) (holding that the trial court had
effectively investigated the totality of the circumstances by
examining the relevant juror, as well as the foreperson of the
jury who had knowledge of the relevant juror's misconduct).       The
circuit court's failure to voir dire Juror No. 1 and fully
investigate the alleged misconduct was an error that affected
Riveira's substantial rights and therefore constituted plain
error.   Based on our disposition of this issue, we need not
address Riveira's remaining points of error.




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          IT IS HEREBY ORDERED that the September 26, 2017
Judgment of Conviction and Sentence entered by the Circuit Court
of the First Circuit is vacated and the matter is remanded for a
new trial.
          DATED:   Honolulu, Hawai#i, August 25, 2020.


On the briefs:
                                      /s/ Lisa M. Ginoza,
Brian R. Vincent,                     Chief Judge
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.               /s/ Katherine G. Leonard,
                                      Associate Judge
Salina Kanai Althof,
for Defendant-Appellant.
                                      /s/ Derrick H. M. Chan,
                                      Associate Judge




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