Linking your case to Notorious Murders is Prosecutorial Misconduct

State v. Udo (HSC December 16, 2019)
Background. During the early morning hours in July 2014, Sandra Wollaston was asleep with other folks on the sidewalk in front of 1150 Bishop Street in downtown Honolulu. Udo was walking her dog along Bishop Street and started to slam the dog against a wall. Wollaston woke up and confronted Udo. They got into a fight. Wollaston tripped and fell to the ground. Udo stood over her and kicked and stomped on her head multiple times. Udo walked away. The police and medics arrived. Wollaston was pronounced dead. Udo was tried for murder in the second degree.

At trial, the prosecution called Dr. Christopher Happy, the chief medical examiner for Honolulu. Dr. Happy performed an autopsy on Wollaston and testified about the extensive injuries he observed on her body. The defense’s sole witness was Dr. James Navin. He testified as an expert in clinical pathology and had testified for the defense in more than 100 cases. He reviewed relevant medical records and opined before the jury that Wollaston’s death was caused by a heart attack resulting from the fight and a combination of marijuana and alcohol. He revealed that Wollaston’s BAC level was 0.278. He also disagreed with Dr. Happy’s conclusions about internal injuries.

On cross-examination, the prosecutor questioned Dr. Navin about two other cases in which he had testified for the defense. One case was the trial of Kirk Langford, a notorious murder trial in 2008 in which Langford was accused of killing a Japanese student who had gone missing. He was also questioned about the 2010 trial of Matthew Higa, who dropped a toddler from an overpass onto the H-1.

During the closing arguments, the prosecutor attacked Dr. Navin’s credibility and again invoked the Lankord and Higa trials:

          Consider his testimony in other murder cases. In the case of State of Hawaii versus Kirk Matthew Lankford, the case of the missing Japanese student, he testified just across the hall. He gave an expert opinion as to the missing student’s cause of death based on a scenario given to him by the defendant. And in fact he admitted on cross-examination that there was no independent corroboration for that version of events.
. . . .
          But it doesn’t stop there. Consider his testimony the case of state of Hawaii versus Matthew Higa where an infant was launched off the H-1 overpass and was essentially smashed on the freeway. He testified for the defense to a reasonable degree of medical certainty that he couldn’t tell whether the baby was dead or alive before it smashed onto the freeway. The purpose of his testimony in that case was to provide the defense for the accused murderer that a murder couldn’t have happened based on throwing a baby off of an overpass because the baby could have been dead already.

Udo did not object. The jury convicted Udo of manslaughter and she was sentenced to twenty years imprisonment. Udo appealed. The ICA—Chief Judge Lisa Ginoza, Judge Katherine Leonard, and Judge Derrick Chan—affirmed. Udo petitioned to the HSC.

Reshuffling the Prosecutorial Misconduct Standard. The HSC took pains to observe that the phrase “prosecutorial misconduct” is a legal term of art fering to “any improper action committed by a prosecutor, however harmless or unintentional.” See State v. Maluia, 107 Hawaii 20, 25, 108 P.3d 974, 979 (2005). It then reassembled a well-known standard for assessing a prosecutorial misconduct claim:

Whenever a defendant alleges prosecutorial misconduct, this court must first decide: (1) whether the conduct was improper; (2) if the conduct was improper, whether the misconduct was harmless beyond a reasonable doubt; and (3) if the misconduct was not harmless, whether the misconduct was so egregious as to bar reprosecution. Maluia, 107 Hawaii at 25-26, 108 P.3d at 979-980. To address the second factor, whether alleged misconduct is harmless beyond a reasonable doubt, this court considers three prongs, “the nature of the alleged misconduct, the promptness or lack of a curative instruction, and the strength or weakness of the evidence against the defendant.” State v. Iuli, 101 Hawaii 196, 208, 65 P.3d 143, 155 (2003).

This Conduct—Invoking Notorious Murder Cases—was Indeed Improper. The HSC began with the first factor. In assessing whether the conduct was improper or not, the court “considers the nature of the challenged conduct in relation to our criminal justice system generally and the special role of the prosecutor specifically.” State v. Underwood, 142 Hawaii 317, 325, 418 P.3d 658, 666 (2018). Here, the HSC appeared to agree with the prosecution that in cross-examining Dr. Navin, it could elicit testimony of bias as an expert witness. HRE Rule 702.1 and HRE Rule 609.1. But the extent of cross, however, is limited by HRE Rule 403—the probative value of the evidence cannot be substantially outweigh the dangers of unfair prejudice.

On top of that and “[m]ore importantly, the prosecutor has a duty to seek justice, not merely convict, and to not use arguments calculated to inflame the passions of a jury.” The HSC held that the evidence relating to Lankford and Higa were of limited probative value and certainly substantially outweighed by the dangers of unfair prejudice. It could have easily served to inflame the jury against any expert who had testified for the defense.

“[P]rosecutors should not use arguments calculated to inflame the passions or prejudices of the jury” and “introduce into the trial elements of irrelevance and irrationality that cannot be tolerated.” State v. Pasene, 144 Hawaii 339, 370, 439 P.3d 864, 895 (2019). It didn’t matter to the HSC if they were intentionally calculated to inflame, it was the result that was significant. Id. Here, invoking the Lankford and Higa cases on cross and at closing did just that.

It wasn’t Improper (not Harmless Beyond a Reasonable Doubt). Having found the conduct improper, the HSC examined the second factor and the three well-known subfactors in that factor. First, the nature of the misconduct weighed against harmlessness. The HSC reasoned that Dr. Navin was the sole defense witness and that the prosecutor’s invocation of notorious Honolulu murders was significant and indeed improper. The second factor—lack of a curative instruction—also was not an issue for the HSC. The HSC reasoned that there was multiple references to Lankford and Higa throughout trial and the defense relied entirely on Dr. Navin. And so even if there had been an objection and even if there had been a curative instruction, it might not have been enough to negate the prejudicial impact of the misconduct. Third and finally, the strength and weakness of the case against Udo, pointed against harmlessness. The critical issue at trial was what actually caused Wollaston’s death. That came down to a dispute between Dr. Happy and Dr. Navin as to the cause of death. And so “it cannot be said beyond a reasonable doubt that the DPA’s inflammatory questions and closing argument did not draw unfair scorn and prejudice to Udo’s sole witness[.]”

The Misconduct was not so Egregious to bar Retrial. The HSC’s analysis of the third factor was brief and unilluminating: “Although we hold that the DPA’s misconduct deprived Udo of her right to a fair trial, we do not find that the conduct was so egregious as to bar retrial under the double jeopardy protections of article I, section 10 of the Hawaii Constitution.” That’s it. Udo gets a new trial—not a reversal.

Could the Defense do what the Prosecutor Can’t? The prosecutor here cross-examined an expert witness about other cases and trials. It seemed to do so based on seemingly logical principles permitted by the rules of evidence. But prosecutors are different from other trial lawyers. Prosecutors are held to a higher standard. They must seek justice, not just a conviction. That appears to have made the difference for the HSC. And so, could defense counsel cross the State’s expert about other trials and cases? Even notorious ones? It would seem so.

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