When Prosecutors get Personal, look for a New Trial
State v. Underwood (HSC May 21, 2018)
Background. Brian Underwood was charged with kidnapping,
carrying or using a firearm in the commission of a separate felony, and abuse
of a family or household member. The complainant testified at trial. She was in
a relationship with Underwood living in a two-story apartment on Oahu. She said
she started finding messages on social media from women on the mainland and
Australia claiming that they were in a relationship with Underwood. She
confronted Underwood about it and they decided she would move out the next
morning. The complainant printed 30 of the messages from the women, including
pictures, and left them in various parts of the bedroom while Underwood slept.
When he woke up, they began to argue. They moved downstairs so that they would
not wake up the complainant’s sister. The complainant got out of the house and
was in the lawn.
Underwood took a box of
her things and threw it outside. At some point, the complainant was on the
ground. Underwood was grabbing at her ankles and pulling her back toward the
apartment. The complainant called her sister for help and when she came
downstairs he was no longer grabbing her. When the complainant went outside to
grab her things she felt several objects hit her head. Underwood was throwing
plastic bottles and high-heeled shoes at her from the front door. The complainant
and the sister left the apartment. Later on, Underwood agreed to let them back
to get the rest of her things.
When they did, the
complainant went into the laundry room with Underwood inside. She claimed that
he showed her a gun and would not let her leave the room. Eventually she did
get out and was panicked. She and the sister left the apartment again. The complainant
moved to Maui and resumed contact with Underwood. They were no longer in a
relationship, and they did discuss the case, but she could not remember the
nature of the conversation. On cross-examination, Underwood questioned the
complainant about whether she kicked him during the incident. She denied it.
In
its closing argument, the prosecutor said that Underwood needed to control the complainant.
The prosecutor argued that after talking to Underwood about the case the
complainant was intimidated into hiding the truth about the conversations. The
prosecutor then argued that Underwood’s lawyer tried to get the complainant to
lie:
The defense attorney tried to get [the complainant] to make up
some story about how she tried to kick the defendant and she fell back.
Underwood’s
objection was overruled. The prosecutor continued:
And the defense attorney tried to push [the complainant] 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.
The
prosecutor urged the jury to end Underwood’s manipulation and find him guilty.
The jury found him guilty of the included offense of unlawful imprisonment in
the second degree and abuse. He was acquitted of the firearm charge. Underwood moved
for a new trial based on the prosecutor’s argument. The motion was denied.
Underwood appealed and the ICA affirmed. He sought certiorari.
The Prosecutorial
Misconduct Standard.
When assessing allegations of prosecutorial misconduct, the court examines “(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 Hawaii 405, 412, 984
P.2d 1231, 1238 (1999). Ultimately, if the misconduct requires vacating a
judgment when “there is a reasonable possibility that the error complained of
might have contributed to the conviction.” Id.
A Prosecutor’s Personal
Attack on Defense Counsel Point Toward Misconduct. The HSC examined the
prosecutor’s suggestion that defense counsel made up a story about the complainant
kicking Underwood. The HSC characterized this comment as an claim that the defense
counsel tried to get the complainant to commit perjury. Although the prosecutor—like
all advocates—are permitted to “draw reasonable inferences from the evidence
and wide latitude is allowed in discussing the evidence,” id., the inferences are unreasonable when the evidence does not “bear[]
a logical and proximate connection to the point the prosecutor wishes to prove.”
State v. Basham, 132 Hawaii 97, 112,
319 P.3d 1105, 1120 (2014). Closing arguments 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 instructions and to the rules of evidence.” Id.
Moreover, all attorneys
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). There is nothing in
the record here to suggest an inference that the defense counsel threatened,
manipulated, or pressured the complainant to perjure herself. The prosecutor’s
suggestion that the complainant’s story changed or was minimized because of the
defense counsel is an impermissible, personal opinion as to the complainant’s
credibility. It is unreasonable and beyond the scope of permissible inferences that
can be drawn.
Prosecutors are Special. The HSC also noted that prosecutors aren’t
just any kind of attorney. “A prosecutor has the responsibility of a minister
of justice and not simply that of an advocate.” State v. Quitog, 85 Hawaii 128, 136 n. 19, 938 P.2d 559, 567 n. 19
(1997). The jury is likely to give “special weight to the prosecutor’s
arguments, not only because of the prestige associated with the prosecutor’s
office, but also because of the fact-finding facilities presumably available to
the office.” State v. Klinge, 92
Hawaii 577, 592, 994 P.2d 509, 524 (2000). This disturbed the HSC. “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. The prosecutor’s duty is
to ensure guilt is based on the evidence, not the personal assessment of the
accused’s lawyer. Quitog, 85 Hawaii
at 136 n. 19, 938 P.2d at 567 n. 19.
The
HSC was not happy with the prosecutor’s comments:
Such
comments not only “lack[] the professionalism and decorum required of attorneys
who practice before the bar of the courts of Hawaii,” State v. Ganal, 81 Hawaii 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.” State v.
Basham, 132 Hawaii at 115, 319 P.3d at 1123. “Vigorous and zealous advocacy
is a necessary component of our judicial system,” Young v. Allstate Ins. Co., 119 Hawaii 403, 419, 198 P.3d 666, 682
(2008), and a defendant in a criminal case is entitled under the Hawaii and
U.S. Constitutions to a lawyer who will fervently defend his or her interests
in court. State v. Tetu, 139 Hawaii
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.” United States v.
Linn, 31 F.3d 987, 993 (10th Cir. 1994).
Lack of Curative Instruction Points Toward new trial. The second factor weighed
toward misconduct. Despite the general instructions about closing arguments not
being evidence, there was no immediate curative instruction that followed after
the comment was objected. “By overruling defense counsel’s objection, the
court, at least tacitly, placed its imprimatur upon the [prosecutor’s] improper
remarks.” State v. Schnabel, 127
Hawaii 432, 453, 279 P.3d 1237, 1258 (2012).
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