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.
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