State v. Underwood. ( 2018 )

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Electronically Filed
Supreme Court
SCWC-15-0000446
21-MAY-2018
11:27 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
BRIAN UNDERWOOD,
Petitioner/Defendant-Appellant.
SCWC-15-0000446
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000446; CRIMINAL NO. 14-1-00622)
MAY 21, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
This case concerns the propriety of remarks made by a
prosecutor in closing argument suggesting that opposing counsel
attempted to induce the complaining witness to give false
testimony during cross-examination. There was no evidence in
the record to support such an allegation, and the prosecutor’s
statements amounted to an unwarranted attack on the personal
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character of defense counsel and, by extension, the defendant.
The trial court did not rectify the issue through an adequate
curative instruction, and the evidence against the defendant was
not so overwhelming that we can conclude beyond a reasonable
doubt that the allegation did not influence the jury’s
deliberations. We therefore vacate the defendant’s convictions
and remand this case for a new trial.
I. BACKGROUND
On April 15, 2014, Brian Underwood was charged with
the following offenses: count I, kidnapping in violation of
Hawaii Revised Statutes (HRS) § 707-720(1)(e);1 count II,
carrying or use of a firearm in the commission of a separate
felony in violation of HRS § 134-21;2 and count III, abuse of
family or household members in violation of HRS § 709-906(1).3
1
HRS § 707-720(1)(e) provides in relevant part: “(1) A person
commits the offense of kidnapping if the person intentionally or knowingly
restrains another person with intent to: . . . (e) Terrorize that person or a
third person[.]” HRS § 707-720(1)(e) (1993).
2
HRS § 134-21 provides in relevant part as follows:
(a) It shall be unlawful for a person to knowingly carry on
the person or have within the person’s immediate control or
intentionally use or threaten to use a firearm while
engaged in the commission of a separate felony, whether the
firearm was loaded or not, and whether operable or not
HRS § 134-21 (2011).
3
HRS § 709-906(1) provided in relevant part: “(1) It shall be
unlawful for any person, singly or in concert, to physically abuse a family
household member . . . .” HRS § 709-906(1) (1993).
2
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The allegations involved an incident that occurred on April 5,
2014.
A jury trial commenced on March 16, 2015, and the
following evidence was adduced.4
At the time of the incident, the complaining witness
(CW) lived with Underwood in his two-story apartment on Oahu.
They had been dating for about ten months and living together
for about three months. On the evening of April 4, 2014, CW
received a message through online social media from a woman
living on the mainland who claimed that she was in a
relationship with Underwood. A week and a half earlier, CW had
received a similar communication from a different woman living
in Australia.
CW confronted Underwood about the purported
relationships, and they ultimately decided that CW would move
out the next morning.5 After Underwood went to sleep, CW printed
out the approximately 30 messages she had received from the
women, including pictures of text conversations between the
women and Underwood, and placed them in various places
throughout their bedroom.
4
The Honorable Glenn J. Kim presided.
5
Underwood offered to pay for a hotel room so that CW could leave
immediately, but they decided to wait until the morning because it was
already very late in the evening.
3
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When Underwood woke up, he and CW began to argue, and
they moved downstairs to the living room so as to not wake up
CW’s sister (Sister), who was visiting at the time. CW had a
box of her belongings on the couch that Underwood threw out the
door onto the front lawn. Underwood then told CW to take off
the sweatpants that she was wearing because they belonged to
him, which CW did and was left wearing only a t-shirt.
CW testified that at some point she found herself on
the ground, but she stated she could not recall how she got
there. Underwood grabbed her ankles and began pulling her
toward the door, CW stated, and CW called Sister for help.
Underwood let go of CW before Sister came downstairs. Sister
testified that, when she came upon the scene, CW was standing
and appeared to be frightened and crying.6
After putting on a pair of Sister’s sweatpants, CW
went to pick up her belongings from the lawn. As she was
packing her belongings, CW felt several objects hit her head.
Underwood was throwing a number of full Gatorade bottles and a
pair of her high heels at her from the front door.7
6
In a statement that Sister gave to the police the day of the
incident, she said that Underwood was trying to push CW out the front door.
During trial, Sister stated that she saw them moving “back and forth” and
that it appeared that CW was trying to leave, and that Underwood was trying
to make her stay. Sister did not testify at trial that she witnessed
aggressive physical contact between Underwood and CW.
7
CW stated that, over the course of the morning, she suffered
abrasions and bruising to her right leg, scrapings on her left leg, bruising
4
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Sister assisted picking up CW’s items from the lawn,
and they left to go to the house of CW’s friend. While at the
friend’s home, CW and Underwood had a text message conversation.
CW asked if she and Sister could come back to the house and get
CW’s uniform and credentials that she needed for work the next
day, and Underwood agreed.
CW and Sister returned to the house and started
collecting their things. When they had finished gathering some
of CW’s belongings into a box, Sister took the box and walked
out the front door while CW went into the laundry room to look
for more of her things. When Sister stepped outside the
apartment, she heard the front door slam shut behind her. She
found that the door was locked, and when CW did not come out
within a few minutes, Sister began pounding on the front door
and ringing the doorbell.8 Sister yelled to open the door and
threatened to call the police. Eventually CW came running out
of the house looking scared.
CW stated that, while Sister was locked outside the
apartment, Underwood came to the door of the laundry room
around her knee and elbow, and soreness on the back of her head. The
injuries to her legs and elbow were documented in police photographs taken
that day. CW testified that she sustained no injuries to her back or
buttocks.
8
CW explained at trial that if the button on the front door knob
is engaged, the door automatically locks when it is closed and will not open
from the outside of the home.
5
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carrying a pillow that he then dropped to reveal he was holding
a gun. CW testified that she could not remember what then
happened prior to her running out the door of the apartment
except that she had walked down the hallway, sat on the couch,
and begun to cry. She agreed, however, that she had written in
her statement to police on the day of the incident that
Underwood had threatened her with the gun and refused to let her
leave. According to Sister, when CW ran out of the apartment,
CW told her that Underwood had a gun and was going to kill her
and insisted they had to leave immediately. Sister testified
that during the car ride, CW was crying and panicking and again
said that Underwood had threatened her with a gun.
After the incident, CW moved to Maui. She and
Underwood had periodic contact in June 2014 in an attempt to
work things out in their relationship. In October 2014, they
began to have contact again, and on multiple occasions between
October and February or March, CW flew to Oʻahu to see Underwood.
During this time, CW and Underwood spoke about Underwood’s case
and her testifying in court, although CW stated that she did not
remember what was said. CW testified she was no longer in a
relationship with Underwood but she still loved him and wanted
what was best for him.
During cross-examination, Underwood’s counsel asked CW
about whether she had kicked Underwood during the incident.
6
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Q. [Defense Counsel] Why do you care if he’s having
relationships with other women?
A. [CW] Because I’m in a relationship with him. I’m living
with him, and we’ve talked about it before. He said he
wasn’t having any relationships.
Q. And that angered you?
A. I was upset about it. I was hurt.
Q. You went downstairs, right?
A. Yes.
Q. And you began talking to Mr. Underwood, right?
A. I don’t remember what was said.
Q. But you – my question was you began talking to Mr.
Underwood, correct?
A. Yes.
Q. And there was a conversation going on, right?
A. Yes.
Q. And you became angry at him, right?
A. I wasn’t angry with him.
Q. Then at some point, you came up to him and got in his
face, correct?
A. No.
Q. And then at some point you kicked him?
A. No.
Q. Correct? You attempted to kick him, correct?
A. No.
Q. At some point you fell on the ground, correct?
A. I was on the ground. I’m not sure how I got there.
Q. Well, he didn’t push you down, right?
A. I don’t remember how I got to the ground.
Q. Well, if he had pushed you down, you would certainly
remember it, right?
A. I’m not sure.
Q. In any event, you go to the ground somehow?
A. That’s correct.
In closing argument, the State contended that the case
was essentially about Underwood’s need to “control” CW. The
State noted that CW had said she and Underwood had spoken about
the case, and the State argued that CW was “intimidated” into
hiding the truth as a consequence of those conversations. The
State then asserted that Underwood’s counsel tried to get CW to
fabricate her testimony:
[Prosecutor]: Now, [CW], on Monday, was honest about the
fact that the defendant had dragged her through the house
and caused those bruises because she knows that there’s
these pictures. She can’t hide that. She can’t deny the
injuries. The defense attorney tried to get [CW] to make
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up some story about how she tried to kick the defendant and
she fell back.
[Defense counsel]: Objection. Mischaracterizes the
evidence.
THE COURT: Overruled.
(Emphasis added.) The prosecutor made further statements
about defense counsel:
[Prosecutor]: She doesn’t want to admit [what the defendant
did to her] because she told you she got back together with
the defendant. They talked about this case, so she took
the middle ground. She tried to say, “I don’t remember.”
She never denied it, not once. And the defense attorney
tried to push [CW] on cross-examination; tried to get her
to say or admit that she tried to kick the defendant. And
you saw her demeanor on the stand when that happened. She
got a little insulted. She was a little upset. He pushed
her too far, and she slipped out of that protective mode.
(Emphasis added.) The State concluded by urging the jury to
“[e]nd [Underwood’s] manipulation” by finding him guilty as
charged.
The jury found Underwood guilty of the lesser included
offense of unlawful imprisonment in the second degree in count
I, not guilty in count II of carrying or use of firearm in the
commission of a separate felony, and guilty of abuse of family
or household members in count III.
Underwood filed a motion for new trial, arguing at the
hearing that the prosecutor had improperly sought to bolster the
State’s witnesses by asserting to the jury that the “defense
attorney tried to get [CW] to make up some story about -- she
8
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tried to kick the defendant, and she fell back.”9 The court
denied the motion for new trial.
The circuit court sentenced Underwood to one year of
probation in count I and two years of probation in count III,
the terms to run concurrently, including seven days of
incarceration as a special condition of probation. The court
entered its Judgment of Conviction and Probation Sentence
(Judgment) on May 27, 2015. Underwood timely appealed from the
Judgment to the Intermediate Court of Appeals (ICA).
II. ICA PROCEEDINGS
Before the ICA, Underwood contended that the
prosecuting attorney committed misconduct during closing
argument when the prosecutor accused defense counsel of
soliciting CW to fabricate testimony and thereby violated
Underwood’s constitutional right to a fair trial.10 Underwood
stated that in determining prosecutorial misconduct, the court
9
The defense counsel stated the following to the court
regarding the prosecutor’s accusation that he had “tried to get [CW] to
make up some story.”
Your Honor, I never tried to get [CW] to make up any story.
I never had any conversations with [CW] that would allow me
to do that. And there was no evidence presented to the
jury that should be in any way tainting my credibility and
therefore the defendant’s credibility as well. That ties
in directly with the prosecution’s argument that Mr.
Underwood was attempting to manipulate and control [CW].
10
Underwood also challenged the sufficiency of evidence to support
the convictions, but the issue is not raised to this court and thus is not
addressed.
9
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considers the following factors (1) the nature of the conduct;
(2) the promptness of the curative instruction; and (3) the
strength or weakness of the evidence against the defendant.
As to the nature of the conduct, Underwood asserted
that the prosecutor’s remark impermissibly attacked defense
counsel’s integrity and operated to denigrate the legal
profession as a whole. Underwood contended that the prosecutor
committed misconduct by accusing his counsel of “being
dishonest, unethical and trying to induce [CW] to mislead the
jury and commit perjury.”
With regard to the promptness or lack of a curative
instruction, Underwood submitted that his counsel promptly
objected to the improper statement. However, the circuit court
overruled the objection, Underwood explained, and thereby gave
the impression that the attack by the prosecutor was proper.
Finally, Underwood argued that the factor considering
the strength or weakness of the evidence weighed in favor of
prosecutorial misconduct. The evidence presented by the State
was based predominantly on CW’s testimony and credibility, which
Underwood contended was inconsistent. Because the case against
Underwood hinged on the credibility of CW, Underwood argued, the
State’s case was not strong enough to outweigh the inflammatory
effect of the deputy prosecutor’s comments.
10
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Underwood therefore concluded that, under the three
factors, the prosecutor’s comments clearly constituted
prosecutorial misconduct in violation of Underwood’s right to a
fair and impartial jury. Further, Underwood asserted, the
nature of the prosecutorial misconduct was sufficiently
egregious to bar retrial under the double jeopardy clause of the
Hawaiʻi Constitution. (Citing State v. Rogan, 91 Hawaii 405,
423, 984 P.2d 1231, 1249 (1999).)
In its answering brief, the State argued that the
prosecutor’s remarks were not improper. The State contended
that Underwood’s counsel had realized that CW was minimizing,
citing CW’s admission that she wanted the “best thing” for
Underwood and CW’s repeated lack of detailed recollection of the
incident while testifying.. Defense counsel proceeded to ask a
series of leading questions to take advantage of the CW’s
minimization, the State argued, pressuring her to agree that she
had attempted to kick Underwood. The prosecutor’s statements
were therefore an accurate description of defense counsel’s
cross-examination, the State contended, and their “primary
thrust” was simply to stress to the jury that CW stuck to her
story.11 Because the State reasoned that the prosecutor’s
11
Although the State quoted both statements and argued generally
that neither were misconduct, the State only specifically discussed the
statement “the defense attorney tried to push [CW] on cross-examination;
tried to get her to say or admit that she tried to kick the defendant.”
11
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comments were not improper, it did not address whether the
statements were prejudicial before concluding that the circuit
court did not abuse its discretion in refusing to grant
Underwood a new trial.
On October 10, 2017, the ICA issued a summary
disposition order (SDO). The ICA found that it was not improper
for the prosecutor to assert in closing argument that defense
counsel had tried to push CW on cross-examination to say or
admit that she tried to kick the defendant. The ICA considered
the statements in light of CW’s testimony that she had numerous
contacts with Underwood since the incident, had spoken with
Underwood about testifying, and had expressed that she still
loved Underwood and wanted what was best for him. Given this
context and the substance of defense counsel’s cross-
examination, the ICA concluded that the prosecutor’s statement
was a fair characterization of what had occurred.
The ICA expressed some concern over the prosecutor’s
comment that defense counsel “tried to get CW to make up some
story about how she tried to kick the defendant and she fell
back.” That remark, the ICA reasoned, could be interpreted as
an attack on the integrity of defense counsel and in that regard
could not be condoned. But the comment was “brief and somewhat
indirect,” the ICA stated. Therefore, the ICA held, it was
distinguishable “at least in degree” from similar disparaging
12
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comments this court found improper in State v. Klinge. (Citing
92 Hawaiʻi 577, 593, 994 P.2d 509, 525 (2000).)
Further, the ICA stated, although the court overruled
Underwood’s counsel’s objection, the court had instructed the
jury that “[s]tatements or remarks made by counsel are not
evidence. You should consider their arguments to you, but you
are not bound by their recollections or interpretations of the
evidence.” The ICA concluded that, given that “the arguably
offending comment was a one-time brief remark” and the circuit
court delivered the above instruction to the jury, and
considering the strength of the evidence against Underwood,
there was no reasonable possibility that the prosecutor’s
comment contributed to Underwood’s convictions. Accordingly,
the ICA affirmed the Judgment.
IV. STANDARD OF REVIEW
“Allegations of prosecutorial misconduct are reviewed
under the harmless beyond a reasonable doubt standard, which
requires an examination of the record and a determination of
whether there is a reasonable possibility that the error
complained of might have contributed to the conviction.” State
v. Rogan, 91 Hawaiʻi 405, 412, 984 P.2d 1231, 1238 (1999)
(quoting State v. Balisbisana, 83 Hawaiʻi 109, 114, 924 P.2d
1215, 1220 (1996)) (internal quotation marks and citations
omitted)).
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V. DISCUSSION
Underwood contends that the prosecutor’s comments
during closing argument suggesting that defense counsel
attempted to induce CW to fabricate her testimony constituted
prosecutorial misconduct. The misconduct warrants vacating his
convictions and barring retrial under principles of double
jeopardy, Underwood asserts.
In evaluating whether alleged prosecutorial misconduct
amounts to harmful error, this court considers “(1) the nature
of the conduct; (2) the promptness of a curative instruction;
and (3) the strength or weakness of the evidence against the
defendant.” State v. Rogan, 91 Hawaii 405, 412, 984 P.2d 1231,
1238 (1999). Although this framework was formulated in the
context of a defendant’s motion for mistrial, we have since
extended it to review all allegations of prosecutorial
misconduct.12 See, e.g., State v. Schnabel, 127 Hawaii 432, 452,
279 P.3d 1237, 1257 (2012). Misconduct requires vacating a
conviction when, in light of these factors, “there is a
reasonable possibility that the error complained of might have
contributed to the conviction.” Rogan, 91 Hawaii at 412, 984
12
“The term ‘prosecutorial misconduct’ is a legal term of art that
refers to any improper action committed by a prosecutor, however harmless or
unintentional.” State v. Maluia, 107 Hawaii 20, 25, 108 P.3d 974, 979
(2005).
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P.2d at 1238 (quoting State v. Balisbisana, 83 Hawaii 109, 114,
924 P.2d 1215, 1220 (1996)).
A. The Nature of the Conduct
Under the first factor, this court considers the
nature of the challenged conduct in relation to our criminal
justice system generally and the special role of the prosecutor
specifically.13 See Rogan, 91 Hawaii at 412-15, 984 P.2d at
1238-41. Underwood specifically challenges two statements made
by the prosecution during closing argument. He argues that, in
telling the jury that, “The defense attorney tried to get [CW]
to make up some story about how she tried to kick the defendant
and she fell back,” the prosecutor attacked defense counsel’s
integrity by intimating the lawyer had solicited CW to perjure
herself. The prosecutor then reinforced this perception,
Underwood contends, by reiterating that “the defense attorney
tried to push [CW] on cross-examination; tried to get her to say
or admit that she tried to kick the defendant.” As we vacate
Underwood’s convictions based on the prosecutor’s first
statement, we do not discuss the second comment.
13
There is some discrepancy in our precedents as to whether this
first factor amounts to a determination of whether prosecutorial misconduct
took place, see, e.g., Rogan, 91 Hawaii at 412, 984 P.2d at 1238; State v.
Pacheco, 96 Hawaii 83, 95, 26 P.3d 572, 584 (2001), or is a separate
assessment of the severity of the wrongdoing following the initial
identification of misconduct, see, e.g., State v. Tuua, 125 Hawaii 10, 16,
250 P.3d 273, 279 (2011). Because the two evaluations consistently overlap,
we address these issues together.
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The ICA minimized the effect of the first statement by
characterizing it as a “one-time brief remark.” However, the
prosecutor’s statement cannot be viewed in isolation. The
prosecutor’s closing argument repeatedly emphasized that
Underwood had exerted “control” over CW. The prosecutor noted
that Underwood and CW had “talked about this case” and claimed
that “[w]hat [CW] did on the stand was a product of those
conversations.” The prosecutor went as far as to claim that
CW’s “testimony here in court, all of that was a product of the
defendant’s control” and stated that the jury could “[e]nd his
manipulation” by “[f]ind[ing] him guilty.”14
In light of the prosecutor’s suggestion that Underwood
had acted to wrongfully influence CW’s testimony, the remark
that defense counsel “tried to get [CW] to make up some story”
necessarily implicated Underwood in his counsel’s asserted
misconduct. The clear insinuation of the prosecutor’s assertion
was that Underwood and his defense counsel had together sought
to induce CW to commit perjury--a fact for which there was no
evidence in the record. This likely had the effect of
14
During the post-conviction hearing on Underwood’s motion for a
new trial, defense counsel argued that this last statement amounted to an
exhortation to the jury to decide the case on irrelevant and unsubstantiated
grounds. In closing argument, “[t]he prosecutor should make only those
arguments that are consistent with the trier’s duty to decide the case on the
evidence, and should not seek to divert the trier from that duty.” ABA
Standards for Criminal Justice: Prosecution Function, Standard 3-6.8(c) (4th
ed. 2015).
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encouraging the jury not only to discredit CW’s testimony, but
also to doubt defense counsel and Underwood’s personal
character.
The ICA acknowledged that the prosecutor’s remark
could be interpreted as such an “attack on the integrity of
defense counsel and in that regard cannot be condoned.” The ICA
ultimately dismissed the statement, however, as only an
“arguably offending comment.”
This understates the gravity of the insinuation. Like
all advocates, a prosecutor is permitted during closing argument
“to draw reasonable inferences from the evidence[,] and wide
latitude is allowed in discussing the evidence.” Rogan, 91
Hawaii at 412, 984 P.2d at 1238 (quoting State v. Quitog, 85
Hawaii 128, 145, 938 P.2d 559, 576 (1997)). Inferences are not
reasonable, however, when the evidence does not “bear[] a
logical and proximate connection to the point the prosecutor
wishes to prove.” State v. Basham, 132 Hawaii 97, 112, 319 P.3d
1105, 1120 (2014) (quoting U.S. v. Waldemer, 50 F.3d 1379, 1384
(7th Cir. 1995)). A prosecutor exceeds the acceptable scope of
closing argument when a statement “cannot be justified as a fair
comment on the evidence but instead is more akin to the
presentation of wholly new evidence to the jury, which should
only be admitted subject to cross-examination, to proper
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instructions and to the rules of evidence.” Id. (quoting United
States v. Klebig, 600 F.3d 700, 718 (7th Cir. 2009)) (emphasis
omitted). And prosecutors, like all attorneys appearing before
a tribunal, are “bound to refrain from expressing their personal
views as to a defendant’s guilt or credibility of witnesses.”
State v. Marsh, 68 Haw. 659, 660, 728 P.2d 1301, 1302 (1986)
(citing United States v. Young, 470 U.S. 1 (1985); American Bar
Association (ABA) Prosecution Function Standard, Standard 3-5.8
(1980)).
As stated, there was no evidence in the record to
support an inference that defense counsel had threatened,
manipulated, or otherwise pressured CW to perjure herself. The
prosecutor’s suggestion that CW had changed aspects of her story
as a result of defense counsel’s wrongful influence was
impermissible speculation--or at least an impermissible personal
opinion as to CW’s credibility. Such an inference was therefore
unreasonable under our precedents and beyond the proper scope of
closing argument for an advocate.
“A prosecutor,” moreover, “has the responsibility of a
minister of justice and not simply that of an advocate.”
Quitog, 85 Hawaii at 136 n.19, 938 P.2d at 567 n.19 (quoting
Cmt. 1, Hawaii Rules of Professional Conduct (HRPC) Rule 3.8).
A jury is likely to “give special weight to the prosecutor’s
arguments, not only because of the prestige associated with the
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prosecutor’s office, but also because of the fact-finding
facilities presumably available to the office.” State v.
Klinge, 92 Hawaii 577, 592, 994 P.2d 509, 524 (2000) (quoting
ABA Prosecution Function Standard 3–5.8 (1993)). Thus, special
concerns arise when a prosecutor wrongly impugns the personal
integrity of opposing counsel.
First, “[a] prosecuting attorney’s improper
suggestions, insinuations, and especially, assertions of
personal knowledge are apt to carry much weight against the
accused when they should properly carry none.” Marsh, 68 Haw.
at 661, 728 P.2d at 1302 (quoting Berger v. United States, 295
U.S. 78, 88 (1935)). This is to say that a jury is apt to
attach undue weight to a prosecutor’s disparagement of defense
counsel, undermining the defendant’s right to a fair trial. A
prosecutor’s duties include “specific obligations to see that
the defendant is accorded procedural justice and that guilt is
decided upon the basis of sufficient evidence”--and not upon the
basis of the prosecutor’s negative personal assessment of
defense counsel. Quitog, 85 Hawaii at 136 n.19, 938 P.2d 559,
567 n.19 (1997) (quoting Cmt. 1, HRPC Rule 3.8). A prosecutor’s
attack on defense counsel’s integrity implicates the defendant’s
right to a fair trial because it is a “strik[e] at the appellant
over the shoulders of his counsel in an attempt to prejudice the
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jury against the appellant.” Bell v. State, 614 S.W.2d 122, 123
(Tex. Crim. App. 1981).
Second, a prosecutor’s attack on the personal
character of defense counsel “operate[s] to denigrate the legal
profession in general.” State v. Klinge, 92 Hawaii 577, 595,
994 P.2d 509, 527 (2000). Such comments not only “lack[] the
professionalism and decorum required of attorneys who practice
before the bar of the courts of Hawaii,” State v. Ganal, 81
Hawaii 358, 377, 917 P.2d 370, 389 (1996), but they also
“undermine the objective detachment that should separate a
lawyer from the cause being argued.” Basham, 132 Hawaii at 115,
319 P.3d at 1123 (quoting Marsh, 68 Haw. at 660, 728 P.2d at
1302). “Vigorous and zealous advocacy is a necessary component
of our judicial system,” Young v. Allstate Ins. Co., 119 Hawaii
403, 419, 198 P.3d 666, 682 (2008) (brackets omitted), and a
defendant in a criminal case is entitled under the Hawaii and
U.S. Constitutions to a lawyer who will fervently defend his or
her interests in court. State v. Tetu, 139 Hawaii 207, 215, 386
P.3d 844, 852 (2016). Insinuations that a criminal attorney’s
zealous defense of a client amounts to unethical behavior strike
at the foundation of our adversarial system and “should not be
tolerated by either the trial judge or the bar.” U.S. v. Linn,
31 F.3d 987, 993 (10th Cir. 1994). Such comments thus weigh
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heavily in favor of a finding of misconduct that warrants
vacating Underwood’s convictions.
B. The Promptness or Lack of a Curative Instruction
Under the second factor, a reviewing court considers
the extent to which a trial court’s instruction to the jury
minimized or eliminated the prejudicial effect of misconduct.
Rogan, 91 Hawaii at 415, 984 P.2d at 1241. When a court
promptly addresses the impropriety, “a prosecutor’s improper
remarks are [generally] considered cured by the court’s
instructions to the jury, because it is presumed that the jury
abided by the court’s admonition to disregard the statement.”
Id. (quoting State v. McGriff, 76 Hawaii 148, 160, 871 P.2d 782,
794 (1994)) (alteration in original).
Here, the ICA placed great weight on the fact that the
circuit court had previously instructed the jury that
“[s]tatements or remarks made by counsel are not evidence. You
should consider their arguments to you, but you are not bound by
their recollections or interpretations of the evidence.” The
instruction was an ineffective remedy to the improper remarks
for three reasons.
First, the instruction did not address the problematic
nature of the prosecutor’s statements. While this court has
reasoned that “expressions of personal opinion by the prosecutor
are a form of unsworn, unchecked testimony,” Basham, 132 Hawaii
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at 115, 319 P.3d at 1123 (quoting Marsh, 68 Haw. at 660, 728
P.2d at 1302), the danger in this case is not solely that the
jury could wrongly consider the prosecutor’s statements as
evidence in its own right. Cf. Klinge, 92 Hawaii at 592, 994 at
524 (noting that a jury is likely to presume a prosecutor has
access to special “fact-finding facilities”). The jury may also
have believed that the prosecution’s remarks were acceptable
inferences from the evidence instead of unsupported speculation.
Indeed, the court’s instruction specifically directed the jury
to “consider [counsel’s] arguments to you,” and characterized
what would follow as counsel’s “recollections or interpretations
of the evidence.” The prosecutor’s improper statements should
not have been considered by the jury whatsoever because they
were not a valid or reasonable interpretation of the evidence
admitted at trial. Additionally, the assertion by the
prosecutor of improper collusion outside of the trial proceeding
was not a subject matter of the general instruction.
Second, the instruction was general in nature and was
delivered to the jury along with a large number of other
standard instructions before closing arguments began. “[I]t is
unlikely that the circuit court’s general instructions that were
delivered well [before] the inflammatory comments along with the
other general jury instructions could have negated the
prejudicial effect” of the specific statements by the
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prosecutor. Rogan, 91 Hawaii at 415, 984 P.2d at 1241; see also
Basham, 132 Hawaii at 111, 319 P.3d at 1119 (“Additionally,
while the court properly instructed the jury on accomplice
liability, that instruction did not cure the prosecutor’s
misstatements of the law, where no specific curative instruction
relating to the misstatements was given.”); State v. Espiritu,
117 Hawaii 127, 143, 176 P.3d 885, 901 (2008) (“While the court
here did properly instruct the jury . . . that instruction could
not cure Respondent’s misstatements of the law, where no
specific curative instruction relating to the misstatements was
given.”).
Third, “not only was there no curative instruction
given to address the inflammatory comments, but the circuit
court overruled defense counsel’s timely objection.” Rogan, 91
Hawaii at 415, 984 P.2d at 1241. “By overruling defense
counsel’s objection, the court, at least tacitly, placed its
imprimatur upon the [prosecutor]’s improper remarks.” Schnabel,
127 Hawaii at 453, 279 P.3d at 1258 (quoting Pacheco, 96 Hawaii
at 96, 26 P.3d at 585) (brackets and footnotes omitted). This
is to say that the circuit court’s overruling of defense
counsel’s objection likely appeared to the jury as though the
court had endorsed the prosecution’s statements as proper
argument. Basham, 132 Hawaiʻi at 110, 319 P.3d at 1118 (holding
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that, because the trial court overruled defense counsel’s
objection to a misstatement of law, it accredited the
definitions given by the prosecutor).
Thus, the circuit court’s prior instruction was
unlikely to cure the prejudice created by the prosecutor’s
improper remarks, and no other curative measure was taken. This
factor therefore weighs strongly in favor of vacating
Underwood’s convictions.
C. The Weight of Evidence Against Underwood
In considering the final factor, reviewing courts
weigh the evidence supporting the defendant’s conviction. See
Rogan, 91 Hawaii at 415–16, 984 P.2d at 1241–42. When evidence
is “so overwhelming as to outweigh the inflammatory effect of
the” improper comments, reviewing courts will regard the
impropriety as ultimately harmless. Id. at 415, 984 P2.d at
1241. When it cannot be said beyond a reasonable doubt that the
same result would have been reached absent the improper conduct,
however, the defendant’s conviction must be vacated. See id.;
Pacheco, 96 Hawaii at 97, 26 P.3d at 586.
The ICA concluded that there was no reasonable
possibility that the prosecutor’s comments might have
contributed to Underwood’s convictions. In concluding the
misconduct was harmless, the ICA stated that the strength of the
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evidence in this case sufficiently outweighed the effect of the
prosecutor’s remark, but it did not provide further explanation.
Here, Underwood was convicted of unlawful imprisonment
in the second degree and abuse of family or household members.
Although testimony from other witnesses and physical evidence
indicated the surrounding circumstances were generally
consistent with CW’s account of events, only the statements of
CW herself directly described the actual acts constituting the
two offenses. Thus, Underwood’s convictions were ultimately
dependent on the jury’s assessment of CW’s credibility.15
When a conviction is largely dependent on a jury’s
determination as to the credibility of a complainant’s
testimony, we have held that the evidence of the offense is not
so “overwhelming” that it renders the prosecutor’s improper
statements harmless beyond a reasonable doubt. Rogan, 91 Hawaii
at 415, 984 P.2d at 1241. The potential for prejudice is
particularly evident where, as here, the improper comments
specifically concerned the credibility of the testimony on which
15
In his application, Underwood argues that there is a significant
basis to conclude the jury discredited CW’s statements. CW was potentially
biased and had a motive to be untruthful, Underwood argues, because on the
night of the incident, CW was hurt and angry because she believed that
Underwood had been carrying on relationships with two other women. CW’s
inconsistent statements and memory regarding the incident clearly led the
jury to doubt some aspects of her testimony, Underwood reasons, as evidenced
by Underwood’s acquittal on the firearm charge and conviction for only a
lesser included offense of the kidnapping charge. Under all of these
circumstances, Underwood maintains, it can hardly be said that the State had
an overwhelmingly strong case against him.
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the case turned. See Pacheco, 96 Hawaii at 97, 26 P.3d at 586.
Thus, the third factor also weighs in favor of vacating
Underwood’s convictions.
The nature of the prosecution’s remarks during closing
argument, the lack of any effective curative instruction by the
court, and the relative weight of the evidence, considered
collectively, make clear that “there is a reasonable possibility
that the error complained of might have contributed to”
Underwood’s convictions. Rogan, 91 Hawaii at 412, 984 P.2d at
1238 (1999).
D. Double Jeopardy
This court has held that, in limited “exceptional
circumstances,” prosecutorial misconduct may be “so egregious”
that the double jeopardy protections of article I, section 10 of
the Hawaii Constitution may bar retrial. Rogan, 91 Hawaii at
423 & n.11, 984 P.2d at 1249 & n.11. Reviewing courts do not
consider the subjective intent of the prosecutor in determining
whether retrial is prohibited. Id. at 423, 984 P.2d at 124.
Rather, the relevant inquiry is whether, “from an objective
standpoint,” the misconduct was so egregious that it “clearly
denied a defendant his or her right to a fair trial.” Id.
Our decisions do not provide bright line rules for
determining when misconduct is sufficiently egregious to bar
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retrial, but we have emphasized that it is “a much higher
standard than that used to determine whether a defendant is
entitled to a new trial.” Id. at 423 n.11, 984 P.2d at 124
n.11. By way of example, we have held that retrial was barred
by double jeopardy principles when a prosecutor made an overt
appeal to racial prejudice in closing argument. Id. In
contrast, a prosecutor’s “flagrant defiance of [a] circuit
court’s in limine ruling and personal and vulgar denigration” of
a defendant was held not to be so egregious as to implicate
double jeopardy principles. Pacheco, 96 Hawaii 83, 98, 26 P.3d
572, 587 (2001). Other examples of impropriety that have fallen
short of the double jeopardy standard include a prosecutor’s
commentary on the consequences of a jury’s verdict in other
legal proceedings, Tuua, 125 Hawaii at 14, 250 P.3d at 277, a
prosecutor’s argument that the jury should disregard the court’s
instructions and decide the case based on “gut feeling,”
Schnabel, 127 Hawaii at 452, 279 P.3d at 1257, and a
prosecutor’s misstatement of the law governing a potential
defense, Espiritu, 117 Hawaii at 144, 176 P.3d at 902.
In light of these precedents, the improper remarks in
this case were not so egregious as to clearly deny Underwood a
fair trial, and the protections of double jeopardy are therefore
not implicated.
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VI. CONCLUSION
Accordingly, we vacate the ICA’s November 1, 2017
Judgment on Appeal and the circuit court Judgment, and we remand
the case to the circuit court for further proceedings.
Jon N. Ikenaga /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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