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Hawaii Supreme Court Vacates Conviction Due to Prosecutor’s Bogus Argument Attacking Defense Counsel

by Matt Clarke

On May 21, 2018, the Supreme Court of Hawaii held that a prosecutor’s improper closing argument stating that defense counsel tried to get the complaining witness to commit perjury required that a conviction be vacated.

A jury convicted Brian Underwood of second-degree unlawful imprisonment and abuse of family or household members. He was sentenced to two years of probation following seven days of incarceration.

The convictions resulted from an incident when he and the complaining witness (“CW”) were ending a live-in relationship. CW testified that, when she and her sister came to Underwood’s residence to collect her property, the sister was locked out of the home after taking out a box of CW’s property.

While her sister was locked out, CW testified that Underwood came to the laundry room, where she was looking for some of her clothes. He was allegedly carrying a pillow case that he dropped, revealing a gun. She told police that Underwood had threatened her with the gun and refused to let her leave, but she was unclear about this during her trial testimony.

The sister testified that, after she was locked out of the home, she pounded on the door, rang the doorbell, and yelled that she was going to call the police. She said CW ran out of the home, told her Underwood had a gun, and insisted they leave immediately because he was going to kill her.

During her trial testimony, CW could not remember many of the details she told police on the day of the incident. She said she still loved Underwood and wanted what was best for him. She also detailed how she and Underwood had gotten back together multiple times after the incident.

During cross-examination, defense counsel asked CW about her direct testimony that she had fallen to the ground. He asked whether she had fallen because she had attempted to kick Underwood. CW said “no.”

During closing arguments, the prosecutor used that cross-examination to accuse defense counsel of trying “to get [CW] to make up some story about how she tried to kick the defendant and she fell back.” Defense counsel objected but was overruled. The prosecutor made a second remark later, saying the defense counsel had pushed CW on whether she had tried to kick Underwood.

On appeal, the court held that, although the first comment in the prosecutor’s argument could be interpreted as an impermissible attack on the integrity of defense counsel, it was “brief and somewhat indirect” and cured by the trial court’s general instructions that the attorneys’ arguments were not evidence. It affirmed the conviction. Attorney Jon N. Ikenaga helped

Underwood petition the Supreme Court for a writ of certiorari.

The Hawaii Supreme Court noted that CW was the only witness to the charged offenses, the case hinged on her credibility, and the prosecutor tried to explain her tepid testimony by claiming Underwood was controlling her, and they had “talked about the case,” alleging what she “did on the stand was a product of those conversations.” The Court held that the weak evidence in the case combined with the prosecutor’s argument “likely had the effect of encouraging the jury not only to discredit CW’s testimony, but also to doubt defense counsel and Underwood’s personal character.”

Further, the trial court overruled defense counsel’s objection, legitimizing the prosecutor’s improper remarks. The Court found it could not say beyond a reasonable doubt that Underwood would have been convicted absent the prosecutor’s misconduct.

Accordingly, the Court vacated his conviction and remanded the case for a new trial. See: State v. Underwood, 418 P.3d 658 (Haw. 2018). 

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