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).

Weighing the Evidence also Points to new Trial. When the evidence is “so overwhelming as to outweigh the inflammatory effect of” the improper comment, reviewing courts will find the comment harmless. State v. Rogan, 91 Hawaii at 415, 984 P.2d at 1241. The HSC evaluated the evidence and concluded that it was not so overwhelming that the inflammatory effect rendered it harmless.


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