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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,

Respondent/Plaintiff-Appellee,

vs.

RALPH CURTIS RIVEIRA, JR.,

also known as Ralph C. Riveira, Jr.,

Petitioner/Defendant-Appellant.

SCWC-17-0000727

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-17-0000727; CASE NO. 1PC121001439)

AUGUST 31, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY EDDINS, J.

The prosecution injected victim impact evidence into Ralph 

Riveira’s burglary trial. And during opening statement and 

closing argument, the State spotlighted the crime’s effect on 

the burglarized family. It also told the jurors that defense 

counsel tried to “trick” them.

Electronically Filed

Supreme Court

SCWC-17-0000727

31-AUG-2021

08:34 AM

Dkt. 9 OPA
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The prosecution’s narrative arc focused on the victims’

emotional state and actions after the crime. This constituted 

prosecutorial misconduct. So did the comment besmirching

defense counsel. But the evidence overwhelmingly established 

Riveira’s guilt. We conclude that the misconduct was harmless

and affirm Riveira’s conviction.1

I.

A burglary happened at a Kailua house. The homeowner 

returned home. She saw a man running in her backyard. He was 

carrying a black object with black cords hanging from it. The 

homeowner ran after him to get “a good visual.” She did not see 

his face. But she had an unobstructed view of the man from 

about twenty-five feet. The fleeing man was heavy-set and had 

short hair. He wore a neon green construction shirt, dark 

boots, and plaid shorts. The man hopped the backyard fence.

The homeowner later realized that her laptop and her 

children’s gaming devices were taken. A towel she had laid on 

the floor for her dog had a boot print.

 1 Riveira also challenges the ICA’s holding that (1) the circuit court 

did not err by denying his motion to suppress field show-up identifications; 

(2) the circuit court did not abuse its discretion in admitting a full-body 

arrest photograph of Riveira and another photograph of him found in a truck 

connected to the burglary; and (3) the circuit court did not err by

instructing the jury on accomplice liability. We do not find error in the 

ICA’s analysis covering these issues. Riveira’s allegations of improper 

statements by the prosecution that are not addressed here also lack merit. 

We consider Riveira’s claim that the trial court plainly erred in allowing 

the burglarized family’s impact testimony as part of the prosecutorial 

misconduct analysis. 
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After the burglar jumped the fence, the homeowner called 

911. She described “what [the man] looked like, what he was 

wearing, and what he was carrying.”

The homeowner also told the 911 operator about a red Toyota 

Tundra parked by her mailbox. She recited the truck’s license 

plate number. And she relayed that a woman was sitting inside. 

The woman’s feet rested on the dashboard; her toenails were 

painted. Shortly after, the truck left.

Within ten minutes, the police stopped a red Toyota Tundra 

about a mile and a half from the burglarized home. The truck

matched the license plate number given by the homeowner. 

Riveira sat in the front passenger seat. The truck’s owner, a 

woman with painted toenails, was the driver.2 Both were 

arrested. The police impounded the truck and got a search 

warrant. 

About ten minutes before the burglary’s end, the 

homeowner’s neighbor spotted a similar Toyota Tundra parked on a 

nearby street. He told the police he saw a man sitting in the 

truck. The neighbor had “a clear visual.” The man had short 

hair and wore a yellow construction shirt. They made eye 

contact; the man gave him a shaka. About five minutes later, 

 2 The female driver died before trial. The court read a stipulation to 

the jury: “. . . [The driver] has passed away. Her passing is in no way 

related to this case in any way whatsoever.” 
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the neighbor saw the truck again. This time it drove down his 

and the homeowner’s street.

After Riveira’s detention, the police drove the homeowner 

and neighbor separately to Riveira’s location for a field showup. Both identified Riveira as the man they had seen. At 

trial, the homeowner testified: “[h]e was wearing the same plaid 

shorts, he had the same build, he had the same [dark boots].” 

She said, “[t]he only thing [that] was different [at the field 

show-up] was [Riveira’s] shirt; he was not wearing the 

construction neon shirt.” The neighbor identified Riveira

partly based on his tattoos. The homeowner identified the 

female driver as the woman in the truck by her mailbox; the 

toenails matched. 

The police recovered the stolen property – a black laptop 

with a black cord and gaming devices - from the impounded truck.

Officers also retrieved Riveira’s photograph from a bag in the 

truck. 

At trial, the homeowner and neighbor testified.3 They 

detailed their encounters with the suspect and the truck. They 

also discussed how they identified Riveira. Police officers 

testified about the arrest, field show-ups, and truck search. 

The jury viewed scene photographs depicting Riveira, the home, 

 3 The Honorable Rom A. Trader presided. 
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the truck, and the stolen property found in it.

The prosecution’s trial narrative featured evidence and 

remarks about the crime’s impact on the homeowner’s family. The 

prosecution bookended its case with commentary regarding this

impact. During opening statement, the deputy prosecuting 

attorney previewed the case: “[T]his is a case about a Kailua 

family who was burglarized. And more so than just losing 

electronics, the evidence will show that they lost their sense 

of security and ability to feel safe in their home. . . .” 

(Emphasis added.) 

During the State’s rebuttal closing argument, the 

prosecuting attorney showcased the victim impact evidence he had 

presented. The State’s argument ended with a plea to convict 

Riveira for what he had done to the family: 

Do you remember what [the homeowner] said about this whole 

experience? It’s affected me deeply. It’s affected me 

deeply. You know, the evidence does show they got the 

electronics back. She still uses the laptop. The kids 

still play with the Nintendo devices. But more than 

electronics, the defendant took something else from them 

that they didn’t get back, that’s the ability to feel safe 

and secure in their own home. 

For most people, burglary is just something that happens to 

other people until it happens to them, and in this case it 

happened to the [family]. [The homeowner] had the 

unfortunate experience of interrupting the defendant in the 

middle of burglarizing her home, but she had the fortunate 

circumstance of having the sound mind to immediately 

realize it and do her best to get a description of the 

defendant, to get a description of the vehicle he would use 

to get away, to even get a description of the black object 

with the cord in his arms as he ran away. And, again, look 

at all the photos of the interior of that truck taken on 

February 24th, 2012, when they execute the search warrant, 

and you will see the only item in that truck that is black 

with a cord hanging off is her laptop. You saw [the 
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homeowner] testify. The [family was] not trespassed, they 

were burglarized.

Ladies and gentlemen, I ask that you hold the defendant 

accountable for what he did to that family and find him 

guilty as charged of Burglary in the First Degree.

(Emphases added.)

The State called the eyewitness homeowner’s husband to 

testify. He wasn’t home during the crime. The deputy 

prosecuting attorney asked a few questions relating to consent; 

the burglar did not have permission to enter or take any 

property from the family home. The prosecuting attorney then 

asked: “how did it make you feel after you had learned that you 

had been burglarized?” “Violated,” he told the jury. Defense 

counsel failed to object.

The prosecution similarly questioned the homeowner about 

how the burglary affected her: 

[Prosecuting Attorney:] . . .[H]ow did it make you feel 

having your home burglarized on February 17th, 2012?

[Homeowner:] Very violated. I’m a mother of children, and 

to have someone in my home, where my children sleep, this 

person has been in my property, and it's a very personal 

feeling, and I had a hard time sleeping afterwards. I was 

very concerned for my safety, for the safety of my family. 

And to this day I make sure that I put all electronics --

before I leave the home, I make sure I hide them because of 

-- of this occurrence. So it's affected me deeply.

Defense counsel again failed to object. He later cross-examined 

the homeowner about the crime’s impact.4 

 4 Defense counsel’s questions included: 
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Defense counsel objected to the prosecution’s remarks

relating to victim impact evidence only once, after the State’s 

rebuttal closing argument. At the bench, counsel objected “to 

the last couple of sentences” in the State’s rebuttal argument. 

These sentences seemingly relate to the prosecutor’s plea to 

hold Riveira accountable for what he did to the family. The 

court overruled the objection. 

Defense counsel asked the court to reconsider its ruling, 

advancing a broader argument that the prosecuting attorney “went 

to the passion of the jury by saying imagine how [the homeowner 

felt] based upon what had happened, not about the items that 

were taken, [but] about . . . [the family’s] security.” The 

prosecuting attorney denied making any “suggestion to the jury 

to place themselves in the [homeowners’] shoes.”5 The court 

 

• “Like you just testified, it's not a good feeling to go 

home where you're supposed to be safe and secure, 

correct?”; 

• “I bet you that even when -- for example, when you hear 

a noise, you start looking out, right, you start getting 

a feeling, right, that maybe somebody's here, right?”;

• “So is it safe to say that sometime time -- you know, 

when they say time heals a broken heart, that passage of 

time actually makes things a little bit better?”; and

• “And passage of time makes you look back and reflect as 

to what actually happened and makes you have a better 

sense of what actually occurred; isn't that right?” 

5 The prosecuting attorney mentioned that during closing argument defense 

counsel had stated “imagine how they felt.” Indeed defense counsel told the 

jury, “Imagine yourself in [the homeowner’s] position driving home with 

children in your van.” 
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affirmed its ruling. It believed that the jury instructions, 

including a command to avoid being influenced by passion or 

prejudice, would ensure fairness.6

“Wasn’t me” was Riveira’s defense. It was a case of 

misidentification, he argued. Riveira did not testify. Through 

cross-examination, Riveira hoped to undermine the homeowner and 

neighbor’s identifications. He also questioned the State’s 

police officer witnesses regarding the burglary investigation, 

field show-up procedures, and truck search. Highlighting the 

lack of fingerprint evidence, the defense stressed in closing 

argument the absence of direct evidence showing that Riveira

entered the home.

The deputy prosecuting attorney questioned defense 

counsel’s truthfulness during rebuttal argument. He told the 

jury: “the folks [defense counsel is] trying to trick are you 

 

6 Before the parties’ closing arguments, the court read a series of jury 

instructions, including: 

• “Statements or arguments made by lawyers are not evidence. You 

should consider their arguments to you, but you are not bound 

by their memory or interpretation of the evidence.”;

• “Keep in mind, however, that closing arguments are not 

evidence, okay. What the attorneys say in closing arguments 

do not constitute evidence, all right.”; and 

• “You must not be influenced by pity for the defendant or by 

passion or prejudice against the defendant.”
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with his interpretation of the evidence.”7 (Emphasis added.) 

Defense counsel failed to object. 

The jury found Riveira guilty of burglary in the first 

degree.8 

II.

Riveira challenges several remarks the deputy prosecuting 

attorney made during closing argument. Prosecutorial 

misconduct, he contends, necessitates vacating his conviction. 

We find two instances worthy of review: (1) the prosecuting 

attorney’s references to the burglary’s impact on the 

homeowner’s household, followed by a plea to hold Riveira 

accountable “for what he did to that family”; and (2) the 

prosecuting attorney’s comment accusing defense counsel of 

trickery. 

The State concedes that these remarks were improper.9 But 

it argues that they were not reversible prosecutorial 

 7 The prosecuting attorney prefaced his remark by referring to defense 

counsel’s comment to two prosecution witnesses during cross-examination that 

he wasn’t trying to trick them.

8 The court instructed the jury that it could convict Riveira as a 

principal or accomplice. The court did not give a special interrogatory. So

whether the jury convicted him as a principal or accomplice is unknown. On 

appeal, Riveira argued that the evidence failed to support an accomplice 

instruction. We agree with the ICA. It did. 

9 During oral argument, the State acknowledged: “When we come to the 

victim impact testimony, I think it’s pretty clear that we shouldn’t be 

bringing this out in the case in chief or . . . before the jury. I do find 

that [it] . . . would be irrelevant; it is prejudicial.” The State also 

recognized that the prosecutor’s insinuation that defense counsel attempted

to trick the jury was “something that [prosecutors] shouldn’t be doing.” 
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misconduct. We agree. 

Allegations of prosecutorial misconduct are reviewed under 

the harmless beyond a reasonable doubt standard. State v. 

Klinge, 92 Hawaiʻi 577, 584, 994 P.2d 509, 516 (2000). After 

considering the nature of the prosecuting attorney’s conduct, 

promptness or lack of a curative instruction, and strength or 

weakness of the evidence against the defendant, a reviewing 

court will vacate a conviction if there is a reasonable 

possibility that the conduct might have affected the trial’s

outcome. State v. Senteno, 69 Haw. 363, 366, 742 P.2d 369, 372 

(1987) (citing State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 

1303 (1986)); State v. Rogan, 91 Hawaiʻi 405, 412, 984 P.2d 1231, 

1238 (1999).10

The nature of the challenged conduct – what it was and how 

it entwined with the whole case – starts the inspection. 

Beginning with the first allegation of prosecutorial misconduct,

injecting victim impact evidence into the trial and touting that 

evidence to hold the defendant accountable for what he did to 

the victim’s family amounted to severe misconduct. 

 10 If a defendant fails to object to a prosecutor’s improper conduct, 

“appellate review is limited to a determination of whether the prosecutor's 

alleged misconduct amounted to plain error” that affected the defendant’s 

substantial rights. State v. Iuli, 101 Hawaiʻi 196, 204, 65 P.3d 143, 151 

(2003). In determining plain error relating to prosecutorial misconduct, 

courts have considered the same three factors. Id. at 208, 65 P.3d at 155. 
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Victim impact evidence concerns a crime’s effect on the 

person harmed by the crime or others, especially the person’s 

family members. It includes evidence regarding the physical, 

psychological, or economic effect of a crime. See Hawai‘i

Revised Statutes (HRS) § 706-602(1)(c) (2014) (instructing that 

victim impact statements in the sentencing context include “any 

physical or psychological harm or financial loss suffered”). 

During a trial, a crime’s after-effects are rarely allowed. 

Hawai‘i Rules of Evidence (HRE) Rules 401, 403.11 In State v.

Lora, 147 Hawaiʻi 298, 307-09, 465 P.3d 745, 754-56 (2020), this 

court disallowed victim impact evidence to counteract a crossexamination undermining a witness’s credibility. “We reject[ed]

an approach that would permit the admissibility of the impacts 

of an alleged offense on a complaining witness in order to 

bolster the witness's credibility after it has been impeached or 

attacked.” Id. at 309, 465 P.3d at 756. While observing that

impact evidence is generally irrelevant to a defendant’s guilt,

we recognized that establishing an element of a crime could 

 11 Sentencing hearings, by contrast, routinely feature victim impact 

testimony. HRS §§ 706-602(1)(c), 706–604(3) (Supp. 2016). “The victim 

impact statement is often made a part of the [presentence report] and the 

victim or the victim’s family is given the opportunity to be heard in open 

court at the hearing itself.” State v. Hussein, 122 Hawaiʻi 495, 523, 229 

P.3d 313, 341 (2010). 
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justify the prosecution’s introduction of the evidence. Id. at

309, n.14, 465 P.3d at 756, n.14.12 

Here, the prosecution’s narrative arc promoted evidence 

spotlighting the crime’s impact on the homeowner’s family. The 

prosecution flanked its case with commentary regarding the 

burglary’s aftermath. During opening statement, the deputy 

prosecuting attorney introduced the theme: “the evidence will 

show that [the family] lost their sense of security and ability 

to feel safe in their home.” 

To back its promise, the prosecution asked the eyewitness 

homeowner how the burglary made her feel. She felt “very 

violated,” experienced a “very personal feeling” because the 

burglary happened in her home where her children slept, was 

“very concerned” for her family’s safety, had difficulties 

sleeping, and hid the family’s electronics when she left home. 

She ended her answer by saying that the crime “affected [her] 

deeply.” 

The prosecution also called the homeowner’s husband to 

testify. The State asked him a few questions about consent,

 12 See Hartwell v. State, 476 S.W.3d 523, 535 (Tex. Ct. App. 2015) 

(holding that questions regarding the extent of the victim’s injuries were 

relevant because the state had to prove that she suffered serious bodily 

injury and the questions did not address the effect of the crime on the 

victim or her family). Impeaching a victim’s credibility is another purpose 

justifying victim impact evidence. See Lora, 147 Hawaiʻi at 309, n.14, 465 

P.3d at 756, n.14 (observing that impact evidence can be introduced at trial 

“to impeach a victim’s credibility”). Like all evidence, this purpose must 

satisfy HRE Rules 401 and 403. 
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though the homeowner later established the same point. The 

deputy prosecuting attorney then asked, “how did it make you 

feel after you had learned that you had been burglarized?” 

“Violated,” he told the jury.

At the trial’s end, the prosecuting attorney circled to the 

opening statement’s preview regarding what the case was about –

a family’s inability to feel safe and secure in their home. 

Then, after briefly recapping the evidence, the State had the 

last word; it urged the jury to “hold the defendant accountable 

for what he did to that family and find him guilty as charged of 

Burglary in the First Degree.”

The victim impact testimony presented and highlighted by 

the prosecution lacked probative value. Riveira claimed he was 

misidentified. The prosecution said he was not. The 

homeowners’ post-event feelings and actions did not help prove 

an element. The crime’s aftermaths did not have a tendency to 

make a fact of consequence more or less probable. HRE Rule 40113

should have blocked the testimony. 

The victim impact testimony’s highly prejudicial nature 

 13 HRE Rule 401 reads: “‘Relevant evidence’ means evidence having any 

tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be 

without the evidence.”
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also made it inadmissible under HRE Rule 403.14 The evidence 

generated sympathy for the family and impelled hostility toward 

Riveira. See HRE Rule 403 cmt. (recognizing “potential for 

engendering juror prejudice, hostility, or sympathy” as a factor 

in Rule 403 determinations). The need for the victim impact 

evidence was nil. By contrast, the testimony had great 

potential to unfairly prejudice Riveira.

Complicating the case slightly, the defense failed to make 

evidentiary objections.15 This mattered to the ICA. Because 

admitting the victim impact testimony from the eyewitness 

homeowner and her husband was not plainly erroneous, the ICA 

determined, the deputy prosecuting attorney’s “brief” comment 

about the testimony during closing argument was not reversible

prosecutorial misconduct. Although we agree with the ultimate 

 14 HRE Rule 403 reads: “Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury, or by 

considerations of undue delay, waste of time, or needless presentation of 

cumulative evidence.”

15 The ICA observed that the State did not directly rebut the defense’s 

appellate argument maintaining that the victim impact testimony was

irrelevant and highly prejudicial. Instead, the State argued — and the ICA 

agreed — that admitting the impact testimony did not amount to plain error 

because it was “a result of trial strategy.” Although we agree that 

admitting the irrelevant testimony was not plainly erroneous, we disagree

with the ICA’s rationale. The ICA concentrated on defense counsel’s decision 

to ask the homeowner questions about the burglary’s impact during crossexamination. It believed the failure to object was a conscious decision, 

designed to challenge the reliability of the homeowner’s identification. 

This reasoning is unpersuasive. Defense counsel’s meandering crossexamination questions about the burglary’s impact, see supra n.4, didn’t 

touch the homeowner’s identification. And it makes little sense that defense 

counsel strategically greenlighted highly prejudicial testimony so that he 

could query the victim about that highly prejudicial testimony. 
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conclusion, this determination understated the centrality that 

the inadmissible victim impact testimony played in the State’s 

case. 

When reviewing the nature of prosecutorial misconduct, 

courts should inspect how the prosecution entwined its improper 

conduct within the case’s contextual fabric. See State v. 

Uyesugi, 100 Hawaiʻi 442, 460, 60 P.3d 843, 861 (2002) (focusing 

in part on “whether and how [surviving family members’] 

testimony was woven into the case” when analyzing whether the 

testimony “inflame[d] the jury to the extent that the jury [was] 

diverted from its objective considerations”). 

Here, the prosecution previewed, injected, and highlighted 

how the burglary affected the homeowner’s family. Asking the 

jury to hold Riveira accountable for what he did “to that 

family” did not merely conjure up the evidence about the 

burglary. The prosecution’s entreaty likely evoked an emotional

reaction from the jury; it emphasized the crime’s effect on the 

family. The way the State infused the irrelevant impact 

evidence into its case and rebuttal argument amplified the 

evidence’s prejudicial effect. See Lora, 147 Hawaiʻi at 310-11, 

465 P.3d at 757-58 (“The admission of [the erroneously admitted]

testimony, the manner in which it was presented by the 

[prosecution], and the reliance upon it during closing argument 

all demonstrate that this error was highly prejudicial.”). 
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The second instance of prosecutorial misconduct happened 

when the deputy prosecuting attorney denounced defense counsel 

for trying to deceive the jury: “the folks [defense counsel is] 

trying to trick are you with his interpretation of the 

evidence.” (Emphasis added.) The ICA downplayed the

prosecution’s conduct; it deemed the error “not of a repeated 

nature.” 

Impugning defense counsel’s principles is serious 

misconduct. It undermines a trial’s fairness “because it is a 

strik[e] at the [defendant] over the shoulders of his counsel in 

an attempt to prejudice the jury against the [defendant].” 

State v. Underwood, 142 Hawaiʻi 317, 327, 418 P.3d 658, 668 

(2018) (internal quotation marks and citation omitted); see also

State v. Pasene, 144 Hawaiʻi 339, 370, 439 P.3d 864, 895 (2019) 

(“A prosecutor’s comment is clearly misconduct where it 

constitutes an impermissible attack on defense counsel’s 

integrity and operates to denigrate the legal profession in 

general.” (cleaned up)). Accusing defense counsel of trying to 

“trick” the jury fits this mold.16

We conclude that both sets of improper remarks amounted to 

serious misconduct. 

 16 Defense counsel’s offhand references during cross-examination of two 

prosecution witnesses that he was not trying to trick them, see supra n.7, do

not validate a declaration to the jury that counsel was trying to manipulate 

them. 
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Next, under the second factor examining claims of 

reversible prosecutorial misconduct, we consider whether the 

court gave prompt curative instructions. Here, the trial court 

did not give curative instructions. The defense did not object 

to the inadmissible victim impact evidence; it also did not 

object to the “trick” comment. A curative instruction’s 

probability drops without an objection. An instruction would 

only be given if the trial court stepped in. But like here, 

trial courts often do not intercede. Because the putative 

misconduct lingers unimpeded by objection and curing, the second 

factor rewards sloppy defense work; it seemingly makes a 

successful appeal easier in a plain error prosecutorial 

misconduct case. 

Even if the defense had objected and the court had given a 

mitigating instruction, the instruction would not have remedied 

the misconduct’s prejudicial effects. Court instructions often 

serve as an unsatisfactory, ineffectual fix when prejudicial 

matters surface at trial. See Krulewitch v. United States, 336 

U.S. 440, 453 (1949) (Jackson, J., concurring) (citation 

omitted) (“The naive assumption that prejudicial effects can be 

overcome by instructions to the jury . . . [is] unmitigated 

fiction.”).

The State argued that the trial court’s general 

instructions, like directing the jury not to be influenced by 
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passion or prejudice, cured any prejudice caused by the 

prosecuting attorney’s improper remarks. We disagree. The 

general instructions given to Riveira’s jury before closing 

arguments did not neutralize the prosecutor’s harmful conduct. 

See Underwood, 142 Hawaiʻi at 327-28, 418 P.3d at 668-69 (holding 

that an instruction stating, “[s]tatements or remarks made by 

counsel are not evidence,” was “an ineffective remedy to the 

improper remarks” partly because it was general in nature and 

was delivered to the jury along with many other standard 

instructions before closing arguments began). 

The case’s resolution then pivots on the strength of the 

evidence showing Riveira’s guilt. “When evidence is so 

overwhelming as to outweigh the inflammatory effect of the 

improper comments, reviewing courts will regard the impropriety 

as ultimately harmless.” State v. Williams, ___ Hawaiʻi ___, 491 

P.3d 592, 607 (2021) (citation omitted). We conclude that the 

evidence against Riveira was sufficiently overwhelming. There 

was no reasonable possibility that the misconduct contributed to 

the trial’s outcome. 

Two eyewitnesses placed Riveira at or near the burglarized 

home minutes before and after the burglary. The homeowner saw 

the burglar running away in her backyard. She also saw a red 

Toyota Tundra truck parked next to her mailbox. She described 

the suspect and the truck to the 911 operator. At trial, the 
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homeowner detailed the burglar’s physical features (his heavyset body and short hair). She also remembered his distinctive 

attire (a neon construction shirt, plaid shorts, and dark 

boots). She later identified Riveira at the field show-up as 

the person she saw running in her backyard based on his heavyset build, plaid shorts, and dark boots. The homeowner told the 

jury that she saw a boot print in her house after the burglary.

The neighbor largely corroborated the homeowner’s 

testimony. He said that he spotted a red Toyota Tundra truck 

and a man sitting in it about ten minutes before the homeowner 

saw the burglar. He described the suspect as having short hair 

and wearing a yellow construction shirt, similar to what the 

homeowner observed. The neighbor later identified Riveira 

partly based on his tattoos. The jury saw Riveira’s arrest 

photograph. It fairly matched both eyewitnesses’ descriptions.17

The State presented other evidence connecting Riveira to 

the crime. The homeowner saw the burglar carrying a black 

object with cords hanging from it. The stolen items - the 

homeowner’s black laptop with its cord and her children’s gaming 

 17 We recognize the perils of eyewitness identifications. See State v. 

Kaneaiakala, 145 Hawaiʻi 231, 233, 450 P.3d 761, 763 (2019) (quoting United 

States v. Wade, 388 U.S. 218, 228 (1967)) (observing that “[t]he vagaries of 

eyewitness identification are well-known; [and] the annals of criminal law 

are rife with instances of mistaken identification”). Here, the trial court 

directed the jury to determine “whether an eyewitness gave accurate testimony 

regarding identification”; it instructed the jury based on Hawaiʻi Pattern 

Jury Instruction - Criminal 3.19, listing thirteen factors to consider in 

evaluating identification testimony. 
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devices - were found in the truck that the police stopped. The 

police did so because its license plate matched the alphanumeric 

information recited by the homeowner. Riveira was in that 

truck, along with the female suspect. And officers recovered 

his photograph from the truck. After reviewing the record, we 

conclude that the State presented overwhelming evidence 

establishing Riveira’s guilt. 

Serious prosecutorial misconduct invaded Riveira’s trial. 

But considering the strength of the evidence against Riveira, we 

hold that the misconduct had no reasonable possibility of 

contributing to his conviction. The misconduct was harmless 

beyond a reasonable doubt.18 

III.

We affirm the ICA’s judgment on appeal and the circuit 

court’s judgment of conviction and sentence. 

Harrison L. Kiehm,

for petitioner

Stephen K. Tsushima,

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins

 18 The defense failed to object to the comment disparaging defense 

counsel. So it is reviewed for plain error. Because we hold that this 

remark was harmless, it cannot be plain error. See State v. Ui, 142 Hawaiʻi 

287, 297, 418 P.3d 628, 638 (2018) (internal quotation omitted) (observing 

that “a reviewing court has discretion to correct plain error when the error 

is not harmless beyond a reasonable doubt”).