State v. Underwood., 418 P.3d 658

Background

Brian Underwood was tried for kidnapping, firearm use in a separate felony, and abuse of a family/household member arising from an April 2014 incident; jury convicted him of second-degree unlawful imprisonment (lesser-included) and abuse of a family/household member, acquitted on the firearm charge.
The case turned largely on the complaining witness’s (CW) credibility; CW testified about being restrained, shoved/dragged, hit with objects, and threatened with a gun, but admitted memory gaps and later contact with Underwood about the case.
During closing, the prosecutor argued Underwood controlled CW and suggested defense counsel had “tried to get [CW] to make up some story” (i.e., induced fabrication/perjury) based on cross-examination; defense counsel objected and the court overruled.
The trial court had given a general instruction earlier that counsel’s statements are not evidence; no specific curative instruction was given after the prosecutor’s remark and the court overruled the objection.
The ICA affirmed, calling the prosecutor’s comment a brief, indirect remark and relying on the prior general instruction and the strength of the evidence; the Hawai‘i Supreme Court granted certiorari.

Issues

Issue	State's Argument	Underwood's Argument	Held
Whether prosecutor’s closing remark accusing defense counsel of inducing CW to fabricate constituted misconduct	Remark was a fair characterization/inference from defense cross-examination and CW’s minimization	Remark improperly attacked counsel’s integrity and implied collusion/perjury without record support	Yes — statement was improper; it asserted an unreasonable inference and attacked counsel’s personal integrity
Whether any curative instruction cured the prejudice	A general pre-trial instruction that counsel’s statements are not evidence was sufficient	The instruction was general, given before argument, and ineffective; court’s overruling of objection compounded prejudice	No — the general instruction did not cure; lack of prompt, specific curative instruction weighs for reversal
Whether the evidence was so overwhelming that error was harmless	Evidence (photographs, testimony) supported CW’s account; prosecutor’s comment was brief and did not affect result	Case depended on CW’s credibility; evidence was not overwhelming and conviction may have been affected	The evidence was not overwhelming; because verdict hinged on CW credibility, error was not harmless
Whether misconduct was so egregious to bar retrial under double jeopardy	Misconduct, though improper, was not of exceptional magnitude to preclude retrial	Prosecutorial suggestion of collusion denied a fair trial and should bar retrial	No — misconduct did not meet the high standard to bar retrial; retrial permitted after vacatur

Key Cases Cited

State v. Rogan, 91 Hawai‘i 405, 984 P.2d 1231 (establishes factors for assessing prosecutorial misconduct and harmless-error review)
State v. Klinge, 92 Hawai‘i 577, 994 P.2d 509 (improper attacks on opposing counsel undermine professionalism and may be prejudicial)
State v. Basham, 132 Hawai‘i 97, 319 P.3d 1105 (closing-argument inferences must bear logical connection to evidence; improper statements can equate to unsworn testimony)
State v. Quitog, 85 Hawai‘i 128, 938 P.2d 559 (prosecutor’s role as minister of justice and limits on expressing personal views)
State v. Marsh, 68 Haw. 659, 728 P.2d 1301 (prosecutor’s unsworn assertions carry undue weight and must be avoided)
State v. Pacheco, 96 Hawai‘i 83, 26 P.3d 572 (overruling timely objections can signal judicial endorsement of improper prosecutorial remarks)
State v. Schnabel, 127 Hawai‘i 432, 279 P.3d 1237 (trial court responses to prosecutorial misconduct and curative instruction analysis)
Berger v. United States, 295 U.S. 78 (prosecutorial misconduct can prejudice jury given prosecutor’s institutional prestige)