State v. Rosa.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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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