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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
01-JUN-2021
07:56 AM
Dkt. 67 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
CLIFFORD L. ROSA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
After a jury trial Defendant-Appellant Clifford L. Rosa
was convicted of Robbery in the First Degree (Count 1) and
Robbery in the Second Degree (Count 2). He was sentenced to 20
years in prison on Count 1 and 10 years in prison on Count 2, to
be served concurrently. He appeals from the "Judgment of
Conviction and Sentence" entered by the Circuit Court of the
First Circuit on May 26, 2020.1 For the reasons explained below,
we affirm.
Rosa contends: (1) the circuit court erred in denying
his motion to sever Count 1 from Count 2; (2) he was convicted
because of prosecutorial misconduct; (3) he received ineffective
assistance from his defense counsel; and (4) the evidence was
insufficient to convict him.
1
The Honorable Todd W. Eddins presided.
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1. The circuit court did not abuse its
discretion by denying Rosa's motion to sever
Counts 1 and 2.
Rosa was indicted by the O#ahu grand jury. Count 1
alleged that on September 26, 2019, in the course of committing
theft from the Pearl City Starbucks coffee shop while armed with
a dangerous instrument or simulated firearm, Rosa threatened Noah
Silva with intent to compel Silva's acquiescence to the taking of
or escaping with the property, in violation of Hawaii Revised
Statutes (HRS) § 708-840(1)(b)(ii). At trial Silva testified
that he was working at the cash register when Rosa approached.
Rosa said he had a gun in his bag and threatened to kill Silva
and everyone else in the store if Silva did not give Rosa the
money in the register. Rosa showed Silva what looked like a gun
in Rosa's bag. Silva opened the register, filled a bag with
money, and handed the bag to Rosa. Rosa also took money from the
tip jar in front of the register.
Count 2 of the indictment alleged that on September 26,
2019, in the course of committing theft in the parking lot of the
Pearl City Foodland, Rosa used force against Geraldine Chang with
the intent to overcome Chang's physical resistance or physical
power of resistance, in violation of HRS § 708-841(1)(a). At
trial Chang testified she put her groceries in the backseat of
her car. Rosa was leaning on his car, which was parked behind
Chang's car. Rosa accused Chang of hitting his car. Chang told
Rosa she could not have hit his car because it was not there when
she arrived, and his car was damaged on the passenger side but
she was parked in front of him. As Chang got into her car, Rosa
held the driver's door open, grabbed Chang's handbag, and punched
Chang. Chang screamed. Two women in the parking lot, Stefanie
Weaver and Georgina Fernandez, approached Rosa and Chang. Rosa
gestured towards his waist and said, "I get one gun."
HRS § 806-22 (2014) allows multiple offenses to be
joined in one indictment:
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When there are several charges against any person for the
same act or transaction, or for two or more acts or
transactions connected together, or for two or more acts or
transactions of the same class of crimes or offenses, which
may be properly joined, instead of having several indict-
ments, informations, or complaints, the whole may be joined
in separate counts in one indictment, information, or
complaint. . . .
Similarly, Rule 8 of the Hawai#i Rules of Penal
Procedure (HRPP) provides, in relevant part:
(a) Joinder of offenses. Two or more offenses may be
joined in one charge, with each offense stated in a separate
count, when the offenses:
(1) are of the same or similar character, even if
not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of
acts connected together or constituting parts of a single
scheme or plan.
Rosa's alleged offenses were similar in character and
were both alleged to have happened in Pearl City on the same day.
It was not improper to join them in one indictment. Nonetheless,
even if multiple charges are properly joined pursuant to HRPP
Rule 8(a), they may be severed under HRPP Rule 14. That rule
provides, in relevant part:
If it appears that a defendant . . . is prejudiced by
a joinder of offenses . . . for trial together, the court
may order an election or separate trials of counts[.]
Joinder of offenses can prejudice a defendant in three ways:
(1) preventing [them] from presenting conflicting defenses
or evidence with respect to each charge,
(2) permitting the prosecution to introduce evidence that
would be inadmissible with respect to certain charges if
tried separately, or
(3) bolstering weak cases through the cumulative effect of
the evidence.
State v. Cordeiro, 99 Hawai#i 390, 411, 56 P.3d 692, 713 (2002)
(reformatted) (citations omitted).
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In deciding whether to sever consolidated charges
pursuant to HRPP Rule 14, the trial court must weigh
the possible prejudice to the defendant against the
public interest in judicial economy. The decision to
sever is in the sound discretion of the trial court; a
defendant is not entitled to a severance as a matter
of right.
Id. (cleaned up).
In this case, Rosa does not expressly argue that he was
denied a fair trial for any of the reasons set forth in Cordeiro.
Instead, he argues that one jury should not have been allowed to
hear evidence that he committed two robberies on the same day.
During the hearing on Rosa's motion to sever the circuit court
ruled:
So there's a proper joinder under Rule 8, but that
doesn't end the inquiry because, obviously, the court then
looks at Rule 14. As [defense counsel] points out, that the
court may grant the relief of ordering separate trials on
each of the counts if there is prejudice. Again, it's
discretionary with the court. What I look at, the
overriding concern, is whether or not the defendant will
receive a fair trial. And, of course, you know, there --
there's some minimal prejudice always associated with
multiple counts that perhaps occur in a -- in a little bit
different way. But it's not prejudice, in my view, enough
to compromise Mr. Rosa's right to a -- to a fair trial in
this case.
I have to balance, I have to weigh the possible
prejudice to Mr. Rosa receiving a fair trial with the public
interest and judicial economy. And I believe that when I
balance that, pursuant to the Timas case of 1996 or the
Balanza case from 2000 that the -- the weight and the
calculus weighs in favor of consolidation of the counts in
this case. As I mentioned, the police investigation of the
two incidents are relatively connected. The decisions and
issues regarding, as [the State] points out, with respect to
the car does suggest some -- some nexus as far as the search
for the firearm. And if we had separate trials, I think
[defense counsel] would be arguing, well, why didn't they --
you know, the lack of evidence which can support reasonable
doubt.
I don't see the defense being compromised in -- in --
in presenting and pursuing any defenses that it deems
appropriate in this case. Clearly defense has a Sixth
Amendment constitutional right to present whatever defense
it wants to present, and it can, and it's not thwarted by
the consolidation of these cases.
Moreover, any minimal prejudice or any prejudice is --
it's really ameliorated by the safeguards of limiting
instructions as well as the jury instructions, specifically,
the multiple count instruction in 4.06 of the Hawaii Pattern
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Criminal Jury Instructions. Plus, I'll be giving a limiting
instruction -- I'll listen to [defense counsel] when we get
to that stage of what might be a suitable limiting
instruction to avoid the propensity issue that she -- she
raises. Presumably the jury will follow all the
instructions I give to them, and that's under the June
(phonetic) case of 1996.
So when I look at everything in its totality and I
look at the Balanza case, the minimal prejudice to the
defense is dispelled by the jury instructions that I could
give. It's a palliative. And I look at the balancing, and
it does waiver -- weigh in favor of consolidation. So for
all those reasons, the motion is denied.
Under the circumstances, we cannot say that the circuit court
abused its discretion by denying Rosa's motion to sever.
2. There was prosecutorial misconduct, but it
was harmless beyond a reasonable doubt.
When a defendant alleges prosecutorial misconduct on
appeal, we must decide: "(1) whether the conduct was improper;
(2) if the conduct was improper, whether the misconduct was
harmless beyond a reasonable doubt; and (3) if the misconduct was
not harmless, whether the misconduct was so egregious as to bar
reprosecution." State v. Maluia, 107 Hawai#i 20, 26, 108 P.3d
974, 980 (2005).
After the incident, Chang was unable to identify Rosa
in a photographic lineup. At trial, after Chang testified about
what happened in the Foodland parking lot, the State asked her:
Q Mrs. Chang, I'm -- I'm standing here to your left in
front of the jury, because there is a gentleman that's
seated over to my left --
A Uh-huh.
Q -- that could possibly be the individual that you
interacted with on that day. Do you feel comfortable
pointing him out, if he is that person, or do you not feel
comfortable?
A I'm not comfortable.
Q Okay. And why do you not feel comfortable pointing
him out?
A Because I was afraid of him.
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Q Okay. So you're afraid of any type of possible
retaliation by this --
The defense immediately objected. The circuit court
sustained the objection and instructed the jury to "absolutely
disregard that last question and any inference that could be
possibly derived from that question. The objection is sustained.
The jury is to disregard." Rosa argues the State knew that Chang
was not able to identify Rosa in a photographic lineup, and
improperly attempted to ascribe Chang's inability to identify
Rosa to a fear of retaliation.
The Hawai#i Supreme Court has "repeatedly held that we
will not overturn a defendant's conviction if the prosecution's
misconduct was harmless beyond a reasonable doubt." Maluia, 107
Hawai#i at 27, 108 P.3d at 981. To determine whether alleged
prosecutorial misconduct constitutes reversible error, we
consider: (1) the nature of the alleged misconduct; (2) the
promptness or lack of a curative instruction; and (3) the
strength or weakness of the evidence against defendant. Id.
We conclude that the State's question, which implied
that Chang's inability to identify Rosa was the result of witness
intimidation, was improper. However, the circuit court
immediately gave a curative instruction. On cross-examination,
Rosa was able to establish that Chang had never been able to
identify Rosa:
Now, do you remember being asked by police to identify the
person that did this to you at Foodland?
A What -- yes.
Q And do you remember a detective also speaking to you
about what the person looked like who did this to you at
Foodland?
A Well, he showed me photos of it.
Q Okay. So you recall a police officer showing you
photographs about the -- photographs regarding what happened
to you at Foodland, right?
A No. What he just show -- yeah -- I mean what he
showed was several photos of se -- um, individuals.
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Q Okay. And he showed you those several photos of
individuals on the same day that this happened at Foodland,
right?
A I'm not sure if it was the same day or the day
after.
Q Okay.
A I'm not sure.
Q Did he come to your house or did you --
A Yes.
Q -- go somewhere else?
A No. He came to the house.
Q And he showed you about six different photographs?
A Yes.
Q And then he asked you to try and pick out from the
photographs --
A Yes.
Q -- the person who did this to you at Foodland,
right?
A Yes.
Q Yes?
And you could not pick out the person who did this to
you at Foodland, right?
A Yes. I could not.
Q You couldn't identify anybody?
A Yep, because all the pictures were -- the person was
all clean cut and the mouth was closed, I could not.
Because the person that approached me at Foodland had long
hair and was toothless.
Q Okay. So at Foodland the person -- and you moved
your arms to your shoulders. So that person had long hair
at Foodland and didn't have any teeth?
A Yes.
Q And the photographs that you were shown, the people
did not have long hair?
No?
A No. No, huh-uh.
Q So you told that police officer that you can't
recognize anyone.
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A Yes.
Q And that you couldn't pick out anyone from any of
those photos as the man --
A Yes.
Q -- who did this to you?
A Yes.
(Emphasis added.) Before taking a recess the circuit court
reminded the jury that it was to disregard questions and answers
to which an objection was sustained.
Finally, there was strong evidence of identification.
One of the women who intervened in the incident — Fernandez —
identified Rosa as the person involved in the altercation with
Chang. The other woman who intervened — Weaver — recorded the
license plate number of the vehicle that Rosa drove away from the
scene, and identified a photograph of the vehicle. A police
officer located the vehicle. On the dashboard was a prescription
bearing Rosa's name. Because strong evidence linked Rosa to the
robbery of Chang, we conclude that the State's improper question
to Chang was harmless beyond a reasonable doubt.
3. We decline to review Rosa's claim of
ineffective assistance of counsel.
Rosa contends that his trial attorney — a deputy public
defender — ineffectively represented him by failing to suppress
evidence of identification, failing to advise him about his
constitutional right to testify2 and trial strategy, and failing
to move for a new trial. The Hawai#i Rules of Appellate
Procedure (HRAP) provide, in relevant part:
Rule 28. BRIEFS.
(a) Format, service, and page limitation. . . . If a
brief raises ineffective assistance of counsel as a point of
2
Rosa does not contend that the circuit court failed to conduct a
Tachibana colloquy. See Tachibana v. State, 79 Hawai#i 226, 236, 900 P.2d
1293, 1303 (1995).
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error, the appellant shall serve a copy of the brief on the
attorney alleged to have been ineffective.
There is nothing in the record showing that Rosa's brief was
served on his trial attorney or upon the Office of the Public
Defender. We decline to review Rosa's claim because of his
failure to comply with HRAP Rule 28(a), without prejudice to Rosa
filing a petition for relief under HRPP Rule 40 that complies
with all applicable rules.3
4. Substantial evidence supported Rosa's
conviction.
Rosa makes a conclusory argument that "[i]nsufficient
evidence was adduced identifying Rosa as the culprit, and
insufficient evidence was adduced establishing that Rosa used a
firearm in the commission of a robbery."
When reviewing the sufficiency of evidence on appeal,
we apply the following deferential standard of review:
[E]vidence adduced in the trial court must be
considered in the strongest light for the prosecution
when the appellate court passes on the legal
sufficiency of such evidence to support a conviction;
the same standard applies whether the case was before
a judge or jury. The test on appeal is not whether
guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(citations omitted). "'Substantial evidence' as to every
material element of the offense charged is credible evidence
which is of sufficient quality and probative value to enable a
person of reasonable caution to support a conclusion." Id.
(citation omitted). "It matters not if a conviction under the
3
HRPP Rule 40(f) provides, in relevant part:
Where the petition alleges the ineffective assistance
of counsel as a ground upon which the requested relief
should be granted, the petitioner shall serve written notice
of the hearing upon the counsel whose assistance is alleged
to have been ineffective and said counsel shall have an
opportunity to be heard.
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evidence as so considered might be deemed to be against the
weight of the evidence so long as there is substantial evidence
tending to support the requisite findings for conviction." State
v. Tamura, 63 Haw. 636, 637, 633 P.2d 1115, 1117 (1981)
(citations omitted).
As to Count 1 (Robbery in the First Degree), Silva (the
Starbucks barista) identified Rosa and testified that Rosa showed
him what looked like a real gun and threatened to kill him "and
everybody in the store if [Silva] didn't give him the money in
the register." Silva testified he put all of the cash and coins
in the register into a brown paper bag and handed it to Rosa, and
Rosa also took money from the tip jar before leaving the store.
A Starbucks surveillance video that corroborated Silva's
testimony was also received in evidence. This was substantial
evidence to support Rosa's conviction on Count 1.
As to Count 2 (Robbery in the Second Degree), the
testimony of Chang, Fernandez, and Weaver described in sections
1. and 2. above, and the evidence from the Honolulu Police
Department officers who located Rosa's car in Waianae, found
Rosa's prescription medication on the dashboard, and arrested
Rosa at Depot Beach Park, was substantial evidence to support
Rosa's conviction.
For the foregoing reasons, the Judgment of Conviction
and Sentence entered by the circuit court on May 26, 2020, is
affirmed.
DATED: Honolulu, Hawai#i, June 1, 2021.
On the briefs:
/s/ Katherine G. Leonard
Sonja P. McCullen, Presiding Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge
Walter J. Rodby, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge
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