NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-18-0000660

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

REGGIE LAUTALO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CR NO. 1CPC-17-0000815)

MEMORANDUM OPINION

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

Defendant-Appellant Reggie Lautalo (Lautalo) appeals

from the "Judgment of Conviction and Sentence" (Judgment),

entered on July 3, 2018, and the "Amended Judgment of Conviction

and Sentence" (Amended Judgment), entered on August 21, 2018,

both entered by the Circuit Court of the First Circuit (Circuit

Court).1 Following a jury trial, Lautalo was found guilty of

Assault in the Second Degree in violation of Hawaii Revised

Statutes (HRS) § 707-711 (2014)2 and Robbery in the Second Degree

1 The Honorable Todd W. Eddins presided.

2 At the time of the offense, HRS § 707-711 provided in relevant part:

§707-711 Assault in the second degree. (1) A person commits

the offense of assault in the second degree if:

(a) The person intentionally or knowingly causes

substantial bodily injury to another;

(b) The person recklessly causes serious or substantial

bodily injury to another[.]

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000660

29-JUN-2020

08:06 AM
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in violation of HRS § 708-841(1)(a) (2014).3 The Circuit Court

subsequently dismissed the assault conviction with prejudice and

sentenced Lautalo to a ten-year term of incarceration for the

robbery conviction, to run concurrently with any other sentence

that Lautalo was then serving.4 

On appeal, Lautalo raises the following points of

error: (1) the Circuit Court abused its discretion in failing to

investigate whether any prospective jurors heard an excused

prospective juror say "good luck, Uso" to Lautalo as the excused

juror walked out of the courtroom; (2) Plaintiff-Appellee State

of Hawai#i (State) committed prosecutorial misconduct during its

rebuttal closing argument; and (3) the Circuit Court erred in

giving Instruction No. 1.2 to the jury regarding the presumption

of innocence and reasonable doubt because it fails to include

critical language contained in Hawai#i Standard Jury Instruction

Criminal (HAWJIC) 3.02.

We conclude that the statement by the excused juror

could have substantially prejudiced Lautalo's right to a fair

trial by an impartial jury, and thus, further investigation by

the Circuit Court was required. We therefore vacate Lautalo's

conviction and remand for further proceedings.

I. Prospective Juror 46's statement was of a nature that it

could have substantially prejudiced Lautalo's right to a

fair trial

Jury trial in this case commenced on April 19, 2018. 

During jury selection, prospective juror number 46 (Prospective

Juror 46) was excused by the Circuit Court. Upon being excused,

3 HRS § 708-841(1)(a) provides:

§708-841 Robbery in the second degree. (1) A person commits

the offense of robbery in the second degree if, in the course of

committing theft or non-consensual taking of a motor vehicle:

(a) The person uses force against the person of anyone

present with the intent to overcome that person's

physical resistance or physical power of resistance[.]

4 The Circuit Court originally sentenced Lautalo to the open term of

incarceration in both counts, each to run concurrently with each other. On

August 21, 2018, the Circuit Court entered an order dismissing the assault

count with prejudice, apparently based on merger of the offenses. On the same

day, the Circuit Court entered its Amended Judgment reflecting the dismissal. 

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Prospective Juror 46 stated "Good luck, Uso," which was

apparently directed at Lautalo. After a recess, Lautalo's

counsel brought the statement to the Circuit Court's attention,

where the following exchange occurred:

[Lautalo's counsel]: Your Honor, I have a grave

concern. Apparently -- I didn't realize this when it

happened, but it was brought to my attention, and I

confirmed it with a couple members of Mr. Lautalo's

family who were in the area where it was said; but

apparently when [Prospective Juror 46] was excused and

walking in this area, directing his comment to -- to

Mr. Lautalo, said, "Good luck, Uso." And I have

concerns -- now, many people might not know what that

means, the significance of it. But for the people that

do know what it means, I have a concern that they may

-- it may affect them. And because we're at this point

where it's still -- we have a big panel. And I don't

know who heard.

THE COURT: All right.

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

somehow.

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

position?

[Deputy Prosecuting Attorney]: I can confirm. I did

hear those exact words.

THE COURT: Well, I'm not asking about that, because I

heard those words.

[Deputy Prosecuting Attorney]: I mean, if anything --

if anything, my understanding is "uso" means brother.

So, if anything, I thought it was detrimental to me.

So -- I mean, I'll defer to the Court on this. But

beyond that, I don't really have an opinion.

I'd prefer -- I mean, I -- it would be nice not to

bring it up again.

THE COURT: I strike that as a comment that can be

taken many different ways, based on the definition of

"uso." Perhaps [Lautalo's counsel] is thinking that

"uso" means some sort of a prison gang situation. But

it could also mean an individual of Samoan ethnicity.

It could mean brother, as [Deputy Prosecuting

Attorney] says it. But irrespective of what the

meaning happens to be, the jury has been instructed

and will be instructed to consider the case solely on

the evidence presented in this court and the law that

I give to you.

So I see no prejudice to this jury panel if there's a

request by the Defense to excuse this jury panel and

somehow [sic] another panel. I don't see the need for

any kind of instruction on this case. I wish the

individual hadn't made that statement. But I don't see

any substantial prejudice to the Defense on this.

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But, [Lautalo's counsel], do you want to add anything

further?

[Lautalo's counsel]: No, Your Honor.

Lautalo contends that the Circuit Court abused its

discretion in concluding that Prospective Juror 46's statement

was not substantially prejudicial and for failing to investigate

whether other prospective jurors heard the statement. Lautalo

thus asserts that he was denied his constitutional right to a

fair trial by an impartial jury because the statement was an

outside influence that may have infected other jurors.

It is well settled that "[t]he sixth amendment to the

United States Constitution and article I, section 14 of the

Hawai#i Constitution guarantee the criminally accused a fair

trial by an impartial jury." State v. Bailey, 126 Hawai#i 383,

399, 271 P.3d 1142, 1158 (2012) (citation omitted). "Inherent in

this requirement is that a defendant receive a trial by an

impartial jury free from outside influences." State v.

Keliiholokai, 58 Haw. 356, 357, 569 P.2d 891, 893 (1977)

(citation and internal quotation marks omitted). Where the

existence of an outside influence on a jury is brought to the

attention of the trial court, the court must ascertain the extent

of the influence and then, in its sound discretion, take

appropriate measures to assure a fair trial. Id. at 358, 569

P.2d at 894.

The Hawai#i Supreme Court has recognized that "[t]he

defendant bears the initial burden of making a prima facie

showing of a deprivation that 'could substantially prejudice his

or her right to a fair trial' by an impartial jury." State v.

Chin, 135 Hawai#i 437, 443, 353 P.3d 979, 985 (2015) (emphasis in

original) (brackets, footnote, and citations omitted). "Once the

defendant makes a prima facie showing of a deprivation, 'a

rebuttable presumption of prejudice is raised.'" Id. (citation

omitted). This analysis "initially focuses on the general nature

of the outside influence and whether it 'could' substantially

prejudice a defendant; if the court so finds, then a rebuttable

presumption of prejudice is raised that triggers the court's

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obligation to investigate the totality of the circumstances." 

Id. (citation omitted). The determination of whether the outside

influence does rise to the level of substantial prejudice is

ordinarily a question committed to the trial court's discretion. 

Keliiholokai, 58 Haw. at 359, 569 P.2d at 895. 

In Chin, the supreme court reiterated the following

procedure should be followed in the trial court when an improper

influence on a jury has been raised:

[W]hen a defendant in a criminal case claims a deprivation

of the right to a fair trial by an impartial jury, the

initial step for the trial court to take is to determine

whether the nature of the alleged deprivation rises to the

level of being substantially prejudicial. If it does not

rise to such a level, the trial court is under no duty to

interrogate the jury. And whether it does rise to the level

of substantial prejudice is ordinarily a question committed

to the trial court's discretion.

Where the trial court does determine that such alleged

deprivation is of a nature which could substantially

prejudice the defendant's right to a fair trial, a

rebuttable presumption of prejudice is raised. The trial

judge is then duty bound to further investigate the totality

of circumstances surrounding the alleged deprivation to

determine its impact on jury impartiality. The standard to

be applied in overcoming such a presumption is that the

alleged deprivation must be proved harmless beyond a

reasonable doubt.

The defendant bears the initial burden of making a prima

facie showing of a deprivation that could substantially

prejudice his or her right to a fair trial by an impartial

jury. But once a rebuttable presumption of prejudice is

raised, the burden of proving harmlessness falls squarely on

the prosecution.

Chin, 135 Hawai#i at 445, 353 P.3d at 987 (emphases and brackets

in original) (citations omitted).

In this case, the Circuit Court recognized that the

statement by Prospective Juror 46 could be taken many different

ways, noting:

Perhaps [Lautalo's counsel] is thinking that "uso" means

some sort of a prison gang situation. But it could also mean

an individual of Samoan ethnicity. It could mean brother, as

[Deputy Prosecuting Attorney] says it. But irrespective of

what the meaning happens to be, the jury has been instructed

and will be instructed to consider the case solely on the

evidence presented in this court and the law that I give to

you.

(Emphases added). Moreover, the record reflects that the deputy

prosecutor and the Circuit Court heard the statement by

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Prospective Juror 46, such that it was likely at least some of

the prospective jurors heard the statement as well. Given this

record, and particularly the recognition that Prospective Juror

46's statement could refer to "some sort of a prison gang

situation[,]" we must conclude that the statement was of a nature

that it could substantially prejudice Lautalo's right to an

impartial jury, and a rebuttable presumption of prejudice was

raised. Chin, 135 Hawai#i at 443, 353 P.3d at 985. Thus, under

the procedure recognized by the Hawai#i Supreme Court, it was

incumbent on the Circuit Court to "further investigate the

totality of circumstances surrounding the alleged deprivation to

determine its impact on jury impartiality." Id. at 445, 353 P.3d

at 987 (citation omitted). 

The Circuit Court relied on the fact that it had

instructed the jury, and would instruct the jury, to consider the

case solely on the evidence presented and the law that would be

given. However, Hawai#i Supreme Court cases addressing whether a

jury has been tainted by an outside influence, and whether a

defendant's right to an impartial jury has been impacted, have

not indicated that a jury instruction alone can remedy the

potential for substantial prejudice. See id. at 443-49, 353 P.3d

at 985-91; Keliiholokai, 58 Haw. at 357-60, 569 P.2d at 893-96.

In Bailey, a juror made statements during jury

deliberation about the defendant previously being in trouble for

a murder charge. Bailey, 126 Hawai#i at 393, 271 P.3d at 1152. 

After investigating the matter by proceeding to voir dire each

juror, the trial court denied the defendant's motion for a

mistrial, dismissed the juror who had made the comments, and

seated an alternate juror. Id. at 395, 271 P.3d at 1154. The

trial court then instructed the original eleven jurors to "not

consider [Juror Nine's] statements during your deliberations for

any reason or purpose[,]" and instructed the entire reconstituted

jury "to disregard [its] prior deliberations and to start [its]

deliberations anew." Id. (some brackets in original) (internal

quotation marks omitted). On appeal, the Hawai#i Supreme Court 

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recognized that "erroneous admission of prior criminal conduct

may be harmless if the trial court gives a cautionary instruction

and the evidence against the defendant is overwhelming," but that

"such an instruction may be insufficient to cure the effect of

improper evidence that is highly prejudicial[.]" Id. at 401, 271

P.3d at 1160 (citations omitted). The Hawai#i Supreme Court

ultimately concluded that the evidence produced at trial was not

strong enough to overcome the substantial prejudice created by

the dismissed juror's statements, even with the trial court's

specific instruction to the jurors to disregard the dismissed

juror's statements in resuming deliberations. Id. at 401-02, 271

P.3d at 1160-61.

Here, the Circuit Court did not engage in a further

investigation regarding Prospective Juror 46's statement. 

Moreover, the Circuit Court's instructions to the jury did not

specifically address Prospective Juror 46's statement, but rather

generally instructed the jurors to only consider the evidence

presented and the law that would be given. Given the lack of

further investigation about Prospective Juror 46's statement, and

without knowing its impact on the jurors who ultimately were

selected, the Circuit Court's general instructions were not

sufficient to negate the potentially prejudicial statement made

by Prospective Juror 46.

We therefore conclude that the Circuit Court erred in

failing to investigate the statement by Prospective Juror 46 and

by not determining whether Lautalo's right to an impartial jury

was impacted.

II. Other points of error

Given that we vacate based on Lautalo's first point of

error, we need not reach his remaining asserted points of error.

III. Conclusion

Based on the foregoing, the "Judgment of Conviction and

Sentence" filed on July 3, 2018, and the "Amended Judgment of

Conviction and Sentence" filed on August 21, 2018, both entered 

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by the Circuit Court of the First Circuit, are vacated. This

case is remanded to the Circuit Court for further proceedings.

DATED: Honolulu, Hawai#i, June 29, 2020.

On the briefs:

William H. Jameson, Jr.

Deputy Public Defender, 

for Defendant-Appellant. 

Donn Fudo,

Deputy Prosecuting Attorney,

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Derrick H.M. Chan

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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