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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-15-0000446
                                                              21-MAY-2018
                                                              11:27 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAII,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                           BRIAN UNDERWOOD,
                   Petitioner/Defendant-Appellant.


                            SCWC-15-0000446

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-15-0000446; CRIMINAL NO. 14-1-00622)

                              MAY 21, 2018

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          This case concerns the propriety of remarks made by a

prosecutor in closing argument suggesting that opposing counsel

attempted to induce the complaining witness to give false

testimony during cross-examination.         There was no evidence in

the record to support such an allegation, and the prosecutor’s

statements amounted to an unwarranted attack on the personal
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character of defense counsel and, by extension, the defendant.

The trial court did not rectify the issue through an adequate

curative instruction, and the evidence against the defendant was

not so overwhelming that we can conclude beyond a reasonable

doubt that the allegation did not influence the jury’s

deliberations.     We therefore vacate the defendant’s convictions

and remand this case for a new trial.

                               I. BACKGROUND

            On April 15, 2014, Brian Underwood was charged with

the following offenses: count I, kidnapping in violation of

Hawaii Revised Statutes (HRS) § 707-720(1)(e);1 count II,

carrying or use of a firearm in the commission of a separate

felony in violation of HRS § 134-21;2 and count III, abuse of

family or household members in violation of HRS § 709-906(1).3




      1
            HRS § 707-720(1)(e) provides in relevant part: “(1) A person
commits the offense of kidnapping if the person intentionally or knowingly
restrains another person with intent to: . . . (e) Terrorize that person or a
third person[.]” HRS § 707-720(1)(e) (1993).
      2
            HRS § 134-21 provides in relevant part as follows:

            (a) It shall be unlawful for a person to knowingly carry on
            the person or have within the person’s immediate control or
            intentionally use or threaten to use a firearm while
            engaged in the commission of a separate felony, whether the
            firearm was loaded or not, and whether operable or not

HRS § 134-21 (2011).
      3
            HRS § 709-906(1) provided in relevant part: “(1) It shall be
unlawful for any person, singly or in concert, to physically abuse a family
household member . . . .” HRS § 709-906(1) (1993).




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The allegations involved an incident that occurred on April 5,

2014.

           A jury trial commenced on March 16, 2015, and the

following evidence was adduced.4

           At the time of the incident, the complaining witness

(CW) lived with Underwood in his two-story apartment on Oahu.

They had been dating for about ten months and living together

for about three months.       On the evening of April 4, 2014, CW

received a message through online social media from a woman

living on the mainland who claimed that she was in a

relationship with Underwood.        A week and a half earlier, CW had

received a similar communication from a different woman living

in Australia.

           CW confronted Underwood about the purported

relationships, and they ultimately decided that CW would move

out the next morning.5      After Underwood went to sleep, CW printed

out the approximately 30 messages she had received from the

women, including pictures of text conversations between the

women and Underwood, and placed them in various places

throughout their bedroom.


     4
           The Honorable Glenn J. Kim presided.
     5
            Underwood offered to pay for a hotel room so that CW could leave
immediately, but they decided to wait until the morning because it was
already very late in the evening.




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           When Underwood woke up, he and CW began to argue, and

they moved downstairs to the living room so as to not wake up

CW’s sister (Sister), who was visiting at the time.            CW had a

box of her belongings on the couch that Underwood threw out the

door onto the front lawn.       Underwood then told CW to take off

the sweatpants that she was wearing because they belonged to

him, which CW did and was left wearing only a t-shirt.

           CW testified that at some point she found herself on

the ground, but she stated she could not recall how she got

there.   Underwood grabbed her ankles and began pulling her

toward the door, CW stated, and CW called Sister for help.

Underwood let go of CW before Sister came downstairs.             Sister

testified that, when she came upon the scene, CW was standing

and appeared to be frightened and crying.6

           After putting on a pair of Sister’s sweatpants, CW

went to pick up her belongings from the lawn.           As she was

packing her belongings, CW felt several objects hit her head.

Underwood was throwing a number of full Gatorade bottles and a

pair of her high heels at her from the front door.7


     6
            In a statement that Sister gave to the police the day of the
incident, she said that Underwood was trying to push CW out the front door.
During trial, Sister stated that she saw them moving “back and forth” and
that it appeared that CW was trying to leave, and that Underwood was trying
to make her stay. Sister did not testify at trial that she witnessed
aggressive physical contact between Underwood and CW.
      7
            CW stated that, over the course of the morning, she suffered
abrasions and bruising to her right leg, scrapings on her left leg, bruising



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           Sister assisted picking up CW’s items from the lawn,

and they left to go to the house of CW’s friend.            While at the

friend’s home, CW and Underwood had a text message conversation.

CW asked if she and Sister could come back to the house and get

CW’s uniform and credentials that she needed for work the next

day, and Underwood agreed.

           CW and Sister returned to the house and started

collecting their things.       When they had finished gathering some

of CW’s belongings into a box, Sister took the box and walked

out the front door while CW went into the laundry room to look

for more of her things.       When Sister stepped outside the

apartment, she heard the front door slam shut behind her.              She

found that the door was locked, and when CW did not come out

within a few minutes, Sister began pounding on the front door

and ringing the doorbell.8       Sister yelled to open the door and

threatened to call the police.        Eventually CW came running out

of the house looking scared.

           CW stated that, while Sister was locked outside the

apartment, Underwood came to the door of the laundry room


around her knee and elbow, and soreness on the back of her head. The
injuries to her legs and elbow were documented in police photographs taken
that day. CW testified that she sustained no injuries to her back or
buttocks.
     8
            CW explained at trial that if the button on the front door knob
is engaged, the door automatically locks when it is closed and will not open
from the outside of the home.




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carrying a pillow that he then dropped to reveal he was holding

a gun.   CW testified that she could not remember what then

happened prior to her running out the door of the apartment

except that she had walked down the hallway, sat on the couch,

and begun to cry.    She agreed, however, that she had written in

her statement to police on the day of the incident that

Underwood had threatened her with the gun and refused to let her

leave.   According to Sister, when CW ran out of the apartment,

CW told her that Underwood had a gun and was going to kill her

and insisted they had to leave immediately.          Sister testified

that during the car ride, CW was crying and panicking and again

said that Underwood had threatened her with a gun.

          After the incident, CW moved to Maui.          She and

Underwood had periodic contact in June 2014 in an attempt to

work things out in their relationship.         In October 2014, they

began to have contact again, and on multiple occasions between

October and February or March, CW flew to Oʻahu to see Underwood.

During this time, CW and Underwood spoke about Underwood’s case

and her testifying in court, although CW stated that she did not

remember what was said.     CW testified she was no longer in a

relationship with Underwood but she still loved him and wanted

what was best for him.

          During cross-examination, Underwood’s counsel asked CW

about whether she had kicked Underwood during the incident.


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          Q. [Defense Counsel] Why do you care if he’s having
          relationships with other women?
          A. [CW] Because I’m in a relationship with him. I’m living
          with him, and we’ve talked about it before. He said he
          wasn’t having any relationships.
          Q. And that angered you?
          A. I was upset about it. I was hurt.
          Q. You went downstairs, right?
          A. Yes.
          Q. And you began talking to Mr. Underwood, right?
          A. I don’t remember what was said.
          Q. But you – my question was you began talking to Mr.
          Underwood, correct?
          A. Yes.
          Q. And there was a conversation going on, right?
          A. Yes.
          Q. And you became angry at him, right?
          A. I wasn’t angry with him.
          Q. Then at some point, you came up to him and got in his
          face, correct?
          A. No.
          Q. And then at some point you kicked him?
          A. No.
          Q. Correct? You attempted to kick him, correct?
          A. No.
          Q. At some point you fell on the ground, correct?
          A. I was on the ground. I’m not sure how I got there.
          Q. Well, he didn’t push you down, right?
          A. I don’t remember how I got to the ground.
          Q. Well, if he had pushed you down, you would certainly
          remember it, right?
          A. I’m not sure.
          Q. In any event, you go to the ground somehow?
          A. That’s correct.

          In closing argument, the State contended that the case

was essentially about Underwood’s need to “control” CW.            The

State noted that CW had said she and Underwood had spoken about

the case, and the State argued that CW was “intimidated” into

hiding the truth as a consequence of those conversations.             The

State then asserted that Underwood’s counsel tried to get CW to

fabricate her testimony:

          [Prosecutor]: Now, [CW], on Monday, was honest about the
          fact that the defendant had dragged her through the house
          and caused those bruises because she knows that there’s
          these pictures. She can’t hide that. She can’t deny the
          injuries. The defense attorney tried to get [CW] to make


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           up some story about how she tried to kick the defendant and
           she fell back.

           [Defense counsel]: Objection.   Mischaracterizes the
           evidence.

           THE COURT: Overruled.

(Emphasis added.)    The prosecutor made further statements

about defense counsel:

           [Prosecutor]: She doesn’t want to admit [what the defendant
           did to her] because she told you she got back together with
           the defendant. They talked about this case, so she took
           the middle ground. She tried to say, “I don’t remember.”
           She never denied it, not once. And the defense attorney
           tried to push [CW] 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.

(Emphasis added.)    The State concluded by urging the jury to

“[e]nd [Underwood’s] manipulation” by finding him guilty as

charged.

           The jury found Underwood guilty of the lesser included

offense of unlawful imprisonment in the second degree in count

I, not guilty in count II of carrying or use of firearm in the

commission of a separate felony, and guilty of abuse of family

or household members in count III.

           Underwood filed a motion for new trial, arguing at the

hearing that the prosecutor had improperly sought to bolster the

State’s witnesses by asserting to the jury that the “defense

attorney tried to get [CW] to make up some story about -- she




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tried to kick the defendant, and she fell back.”9           The court

denied the motion for new trial.

           The circuit court sentenced Underwood to one year of

probation in count I and two years of probation in count III,

the terms to run concurrently, including seven days of

incarceration as a special condition of probation.            The court

entered its Judgment of Conviction and Probation Sentence

(Judgment) on May 27, 2015.       Underwood timely appealed from the

Judgment to the Intermediate Court of Appeals (ICA).

                           II. ICA PROCEEDINGS

           Before the ICA, Underwood contended that the

prosecuting attorney committed misconduct during closing

argument when the prosecutor accused defense counsel of

soliciting CW to fabricate testimony and thereby violated

Underwood’s constitutional right to a fair trial.10           Underwood

stated that in determining prosecutorial misconduct, the court


     9
            The defense counsel stated the following to the court
regarding the prosecutor’s accusation that he had “tried to get [CW] to
make up some story.”

           Your Honor, I never tried to get [CW] to make up any story.
           I never had any conversations with [CW] that would allow me
           to do that. And there was no evidence presented to the
           jury that should be in any way tainting my credibility and
           therefore the defendant’s credibility as well. That ties
           in directly with the prosecution’s argument that Mr.
           Underwood was attempting to manipulate and control [CW].
     10
            Underwood also challenged the sufficiency of evidence to support
the convictions, but the issue is not raised to this court and thus is not
addressed.




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considers the following factors (1) the nature of the conduct;

(2) the promptness of the curative instruction; and (3) the

strength or weakness of the evidence against the defendant.

          As to the nature of the conduct, Underwood asserted

that the prosecutor’s remark impermissibly attacked defense

counsel’s integrity and operated to denigrate the legal

profession as a whole.     Underwood contended that the prosecutor

committed misconduct by accusing his counsel of “being

dishonest, unethical and trying to induce [CW] to mislead the

jury and commit perjury.”

          With regard to the promptness or lack of a curative

instruction, Underwood submitted that his counsel promptly

objected to the improper statement.        However, the circuit court

overruled the objection, Underwood explained, and thereby gave

the impression that the attack by the prosecutor was proper.

          Finally, Underwood argued that the factor considering

the strength or weakness of the evidence weighed in favor of

prosecutorial misconduct.      The evidence presented by the State

was based predominantly on CW’s testimony and credibility, which

Underwood contended was inconsistent.          Because the case against

Underwood hinged on the credibility of CW, Underwood argued, the

State’s case was not strong enough to outweigh the inflammatory

effect of the deputy prosecutor’s comments.




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           Underwood therefore concluded that, under the three

factors, the prosecutor’s comments clearly constituted

prosecutorial misconduct in violation of Underwood’s right to a

fair and impartial jury.       Further, Underwood asserted, the

nature of the prosecutorial misconduct was sufficiently

egregious to bar retrial under the double jeopardy clause of the

Hawaiʻi Constitution.      (Citing State v. Rogan, 91 Hawaii 405,

423, 984 P.2d 1231, 1249 (1999).)

           In its answering brief, the State argued that the

prosecutor’s remarks were not improper.          The State contended

that Underwood’s counsel had realized that CW was minimizing,

citing CW’s admission that she wanted the “best thing” for

Underwood and CW’s repeated lack of detailed recollection of the

incident while testifying..       Defense counsel proceeded to ask a

series of leading questions to take advantage of the CW’s

minimization, the State argued, pressuring her to agree that she

had attempted to kick Underwood.          The prosecutor’s statements

were therefore an accurate description of defense counsel’s

cross-examination, the State contended, and their “primary

thrust” was simply to stress to the jury that CW stuck to her

story.11   Because the State reasoned that the prosecutor’s

     11
            Although the State quoted both statements and argued generally
that neither were misconduct, the State only specifically discussed the
statement “the defense attorney tried to push [CW] on cross-examination;
tried to get her to say or admit that she tried to kick the defendant.”




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comments were not improper, it did not address whether the

statements were prejudicial before concluding that the circuit

court did not abuse its discretion in refusing to grant

Underwood a new trial.

          On October 10, 2017, the ICA issued a summary

disposition order (SDO).      The ICA found that it was not improper

for the prosecutor to assert in closing argument that defense

counsel had tried to push CW on cross-examination to say or

admit that she tried to kick the defendant.          The ICA considered

the statements in light of CW’s testimony that she had numerous

contacts with Underwood since the incident, had spoken with

Underwood about testifying, and had expressed that she still

loved Underwood and wanted what was best for him.           Given this

context and the substance of defense counsel’s cross-

examination, the ICA concluded that the prosecutor’s statement

was a fair characterization of what had occurred.

          The ICA expressed some concern over the prosecutor’s

comment that defense counsel “tried to get CW to make up some

story about how she tried to kick the defendant and she fell

back.”   That remark, the ICA reasoned, could be interpreted as

an attack on the integrity of defense counsel and in that regard

could not be condoned.     But the comment was “brief and somewhat

indirect,” the ICA stated.      Therefore, the ICA held, it was

distinguishable “at least in degree” from similar disparaging


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comments this court found improper in State v. Klinge. (Citing

92 Hawaiʻi 577, 593, 994 P.2d 509, 525 (2000).)

            Further, the ICA stated, although the court overruled

Underwood’s counsel’s objection, the court had instructed the

jury that “[s]tatements or remarks made by counsel are not

evidence.    You should consider their arguments to you, but you

are not bound by their recollections or interpretations of the

evidence.”    The ICA concluded that, given that “the arguably

offending comment was a one-time brief remark” and the circuit

court delivered the above instruction to the jury, and

considering the strength of the evidence against Underwood,

there was no reasonable possibility that the prosecutor’s

comment contributed to Underwood’s convictions.          Accordingly,

the ICA affirmed the Judgment.

                        IV. STANDARD OF REVIEW

            “Allegations of prosecutorial misconduct are reviewed

under the harmless beyond a reasonable doubt standard, which

requires an examination of the record and a determination of

whether there is a reasonable possibility that the error

complained of might have contributed to the conviction.”            State

v. Rogan, 91 Hawaiʻi 405, 412, 984 P.2d 1231, 1238 (1999)

(quoting State v. Balisbisana, 83 Hawaiʻi 109, 114, 924 P.2d

1215, 1220 (1996)) (internal quotation marks and citations

omitted)).


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                               V. DISCUSSION

           Underwood contends that the prosecutor’s comments

during closing argument suggesting that defense counsel

attempted to induce CW to fabricate her testimony constituted

prosecutorial misconduct.       The misconduct warrants vacating his

convictions and barring retrial under principles of double

jeopardy, Underwood asserts.

           In evaluating whether alleged prosecutorial misconduct

amounts to harmful error, this court considers “(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 Hawaii 405, 412, 984 P.2d 1231,

1238 (1999).     Although this framework was formulated in the

context of a defendant’s motion for mistrial, we have since

extended it to review all allegations of prosecutorial

misconduct.12    See, e.g., State v. Schnabel, 127 Hawaii 432, 452,

279 P.3d 1237, 1257 (2012).       Misconduct requires vacating a

conviction when, in light of these factors, “there is a

reasonable possibility that the error complained of might have

contributed to the conviction.”        Rogan, 91 Hawaii at 412, 984


      12
            “The term ‘prosecutorial misconduct’ is a legal term of art that
refers to any improper action committed by a prosecutor, however harmless or
unintentional.” State v. Maluia, 107 Hawaii 20, 25, 108 P.3d 974, 979
(2005).




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P.2d at 1238 (quoting State v. Balisbisana, 83 Hawaii 109, 114,

924 P.2d 1215, 1220 (1996)).

                    A.    The Nature of the Conduct

           Under the first factor, this court considers the

nature of the challenged conduct in relation to our criminal

justice system generally and the special role of the prosecutor

specifically.13    See Rogan, 91 Hawaii at 412-15, 984 P.2d at

1238-41.   Underwood specifically challenges two statements made

by the prosecution during closing argument.           He argues that, in

telling the jury that, “The defense attorney tried to get [CW]

to make up some story about how she tried to kick the defendant

and she fell back,” the prosecutor attacked defense counsel’s

integrity by intimating the lawyer had solicited CW to perjure

herself.   The prosecutor then reinforced this perception,

Underwood contends, by reiterating that “the defense attorney

tried to push [CW] on cross-examination; tried to get her to say

or admit that she tried to kick the defendant.”           As we vacate

Underwood’s convictions based on the prosecutor’s first

statement, we do not discuss the second comment.

     13
            There is some discrepancy in our precedents as to whether this
first factor amounts to a determination of whether prosecutorial misconduct
took place, see, e.g., Rogan, 91 Hawaii at 412, 984 P.2d at 1238; State v.
Pacheco, 96 Hawaii 83, 95, 26 P.3d 572, 584 (2001), or is a separate
assessment of the severity of the wrongdoing following the initial
identification of misconduct, see, e.g., State v. Tuua, 125 Hawaii 10, 16,
250 P.3d 273, 279 (2011). Because the two evaluations consistently overlap,
we address these issues together.




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           The ICA minimized the effect of the first statement by

characterizing it as a “one-time brief remark.”           However, the

prosecutor’s statement cannot be viewed in isolation.             The

prosecutor’s closing argument repeatedly emphasized that

Underwood had exerted “control” over CW.          The prosecutor noted

that Underwood and CW had “talked about this case” and claimed

that “[w]hat [CW] did on the stand was a product of those

conversations.”     The prosecutor went as far as to claim that

CW’s “testimony here in court, all of that was a product of the

defendant’s control” and stated that the jury could “[e]nd his

manipulation” by “[f]ind[ing] him guilty.”14

           In light of the prosecutor’s suggestion that Underwood

had acted to wrongfully influence CW’s testimony, the remark

that defense counsel “tried to get [CW] to make up some story”

necessarily implicated Underwood in his counsel’s asserted

misconduct.    The clear insinuation of the prosecutor’s assertion

was that Underwood and his defense counsel had together sought

to induce CW to commit perjury--a fact for which there was no

evidence in the record.      This likely had the effect of


     14
            During the post-conviction hearing on Underwood’s motion for a
new trial, defense counsel argued that this last statement amounted to an
exhortation to the jury to decide the case on irrelevant and unsubstantiated
grounds. In closing argument, “[t]he prosecutor should make only those
arguments that are consistent with the trier’s duty to decide the case on the
evidence, and should not seek to divert the trier from that duty.” ABA
Standards for Criminal Justice: Prosecution Function, Standard 3-6.8(c) (4th
ed. 2015).




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encouraging the jury not only to discredit CW’s testimony, but

also to doubt defense counsel and Underwood’s personal

character.

          The ICA acknowledged that the prosecutor’s remark

could be interpreted as such an “attack on the integrity of

defense counsel and in that regard cannot be condoned.”            The ICA

ultimately dismissed the statement, however, as only an

“arguably offending comment.”

          This understates the gravity of the insinuation.             Like

all advocates, a prosecutor is permitted during closing argument

“to draw reasonable inferences from the evidence[,] and wide

latitude is allowed in discussing the evidence.”           Rogan, 91

Hawaii at 412, 984 P.2d at 1238 (quoting State v. Quitog, 85

Hawaii 128, 145, 938 P.2d 559, 576 (1997)).         Inferences are not

reasonable, however, when the evidence does not “bear[] a

logical and proximate connection to the point the prosecutor

wishes to prove.”    State v. Basham, 132 Hawaii 97, 112, 319 P.3d

1105, 1120 (2014) (quoting U.S. v. Waldemer, 50 F.3d 1379, 1384

(7th Cir. 1995)).    A prosecutor exceeds the acceptable scope of

closing argument when a statement “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




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instructions and to the rules of evidence.”          Id. (quoting United

States v. Klebig, 600 F.3d 700, 718 (7th Cir. 2009)) (emphasis

omitted).    And prosecutors, like all attorneys appearing before

a tribunal, 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)

(citing United States v. Young, 470 U.S. 1 (1985); American Bar

Association (ABA) Prosecution Function Standard, Standard 3-5.8

(1980)).

            As stated, there was no evidence in the record to

support an inference that defense counsel had threatened,

manipulated, or otherwise pressured CW to perjure herself.             The

prosecutor’s suggestion that CW had changed aspects of her story

as a result of defense counsel’s wrongful influence was

impermissible speculation--or at least an impermissible personal

opinion as to CW’s credibility.       Such an inference was therefore

unreasonable under our precedents and beyond the proper scope of

closing argument for an advocate.

            “A prosecutor,” moreover, “has the responsibility of a

minister of justice and not simply that of an advocate.”

Quitog, 85 Hawaii at 136 n.19, 938 P.2d at 567 n.19 (quoting

Cmt. 1, Hawaii Rules of Professional Conduct (HRPC) Rule 3.8).

A jury is likely to “give special weight to the prosecutor’s

arguments, not only because of the prestige associated with the


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prosecutor’s office, but also because of the fact-finding

facilities presumably available to the office.”          State v.

Klinge, 92 Hawaii 577, 592, 994 P.2d 509, 524 (2000) (quoting

ABA Prosecution Function Standard 3–5.8 (1993)).           Thus, special

concerns arise when a prosecutor wrongly impugns the personal

integrity of opposing counsel.

          First, “[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 (quoting Berger v. United States, 295

U.S. 78, 88 (1935)).     This is to say that a jury is apt to

attach undue weight to a prosecutor’s disparagement of defense

counsel, undermining the defendant’s right to a fair trial.                A

prosecutor’s duties include “specific obligations to see that

the defendant is accorded procedural justice and that guilt is

decided upon the basis of sufficient evidence”--and not upon the

basis of the prosecutor’s negative personal assessment of

defense counsel.    Quitog, 85 Hawaii at 136 n.19, 938 P.2d 559,

567 n.19 (1997) (quoting Cmt. 1, HRPC Rule 3.8).           A prosecutor’s

attack on defense counsel’s integrity implicates the defendant’s

right to a fair trial because it is a “strik[e] at the appellant

over the shoulders of his counsel in an attempt to prejudice the




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jury against the appellant.”      Bell v. State, 614 S.W.2d 122, 123

(Tex. Crim. App. 1981).

           Second, a prosecutor’s attack on the personal

character of defense counsel “operate[s] to denigrate the legal

profession in general.”     State v. Klinge, 92 Hawaii 577, 595,

994 P.2d 509, 527 (2000).      Such comments not only “lack[] the

professionalism and decorum required of attorneys who practice

before the bar of the courts of Hawaii,” State v. Ganal, 81

Hawaii 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.”        Basham, 132 Hawaii at 115,

319 P.3d at 1123 (quoting Marsh, 68 Haw. at 660, 728 P.2d at

1302).   “Vigorous and zealous advocacy is a necessary component

of our judicial system,” Young v. Allstate Ins. Co., 119 Hawaii

403, 419, 198 P.3d 666, 682 (2008) (brackets omitted), and a

defendant in a criminal case is entitled under the Hawaii and

U.S. Constitutions to a lawyer who will fervently defend his or

her interests in court.     State v. Tetu, 139 Hawaii 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.”           U.S. v. Linn,

31 F.3d 987, 993 (10th Cir. 1994).        Such comments thus weigh


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heavily in favor of a finding of misconduct that warrants

vacating Underwood’s convictions.

      B.    The Promptness or Lack of a Curative Instruction

           Under the second factor, a reviewing court considers

the extent to which a trial court’s instruction to the jury

minimized or eliminated the prejudicial effect of misconduct.

Rogan, 91 Hawaii at 415, 984 P.2d at 1241.         When a court

promptly addresses the impropriety, “a prosecutor’s improper

remarks are [generally] considered cured by the court’s

instructions to the jury, because it is presumed that the jury

abided by the court’s admonition to disregard the statement.”

Id. (quoting State v. McGriff, 76 Hawaii 148, 160, 871 P.2d 782,

794 (1994)) (alteration in original).

           Here, the ICA placed great weight on the fact that the

circuit court had previously instructed the jury that

“[s]tatements or remarks made by counsel are not evidence.             You

should consider their arguments to you, but you are not bound by

their recollections or interpretations of the evidence.”            The

instruction was an ineffective remedy to the improper remarks

for three reasons.

           First, the instruction did not address the problematic

nature of the prosecutor’s statements.         While this court has

reasoned that “expressions of personal opinion by the prosecutor

are a form of unsworn, unchecked testimony,” Basham, 132 Hawaii


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at 115, 319 P.3d at 1123 (quoting Marsh, 68 Haw. at 660, 728

P.2d at 1302), the danger in this case is not solely that the

jury could wrongly consider the prosecutor’s statements as

evidence in its own right.      Cf. Klinge, 92 Hawaii at 592, 994 at

524 (noting that a jury is likely to presume a prosecutor has

access to special “fact-finding facilities”).          The jury may also

have believed that the prosecution’s remarks were acceptable

inferences from the evidence instead of unsupported speculation.

Indeed, the court’s instruction specifically directed the jury

to “consider [counsel’s] arguments to you,” and characterized

what would follow as counsel’s “recollections or interpretations

of the evidence.”    The prosecutor’s improper statements should

not have been considered by the jury whatsoever because they

were not a valid or reasonable interpretation of the evidence

admitted at trial.    Additionally, the assertion by the

prosecutor of improper collusion outside of the trial proceeding

was not a subject matter of the general instruction.

          Second, the instruction was general in nature and was

delivered to the jury along with a large number of other

standard instructions before closing arguments began.            “[I]t is

unlikely that the circuit court’s general instructions that were

delivered well [before] the inflammatory comments along with the

other general jury instructions could have negated the

prejudicial effect” of the specific statements by the


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prosecutor.    Rogan, 91 Hawaii at 415, 984 P.2d at 1241; see also

Basham, 132 Hawaii at 111, 319 P.3d at 1119 (“Additionally,

while the court properly instructed the jury on accomplice

liability, that instruction did not cure the prosecutor’s

misstatements of the law, where no specific curative instruction

relating to the misstatements was given.”); State v. Espiritu,

117 Hawaii 127, 143, 176 P.3d 885, 901 (2008) (“While the court

here did properly instruct the jury . . . that instruction could

not cure Respondent’s misstatements of the law, where no

specific curative instruction relating to the misstatements was

given.”).

            Third, “not only was there no curative instruction

given to address the inflammatory comments, but the circuit

court overruled defense counsel’s timely objection.”           Rogan, 91

Hawaii at 415, 984 P.2d at 1241.        “By overruling defense

counsel’s objection, the court, at least tacitly, placed its

imprimatur upon the [prosecutor]’s improper remarks.”            Schnabel,

127 Hawaii at 453, 279 P.3d at 1258 (quoting Pacheco, 96 Hawaii

at 96, 26 P.3d at 585) (brackets and footnotes omitted).            This

is to say that the circuit court’s overruling of defense

counsel’s objection likely appeared to the jury as though the

court had endorsed the prosecution’s statements as proper

argument.    Basham, 132 Hawaiʻi at 110, 319 P.3d at 1118 (holding



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that, because the trial court overruled defense counsel’s

objection to a misstatement of law, it accredited the

definitions given by the prosecutor).

          Thus, the circuit court’s prior instruction was

unlikely to cure the prejudice created by the prosecutor’s

improper remarks, and no other curative measure was taken.             This

factor therefore weighs strongly in favor of vacating

Underwood’s convictions.

          C.    The Weight of Evidence Against Underwood

          In considering the final factor, reviewing courts

weigh the evidence supporting the defendant’s conviction.             See

Rogan, 91 Hawaii at 415–16, 984 P.2d at 1241–42.          When evidence

is “so overwhelming as to outweigh the inflammatory effect of

the” improper comments, reviewing courts will regard the

impropriety as ultimately harmless.        Id. at 415, 984 P2.d at

1241.   When it cannot be said beyond a reasonable doubt that the

same result would have been reached absent the improper conduct,

however, the defendant’s conviction must be vacated.           See id.;

Pacheco, 96 Hawaii at 97, 26 P.3d at 586.

          The ICA concluded that there was no reasonable

possibility that the prosecutor’s comments might have

contributed to Underwood’s convictions.         In concluding the

misconduct was harmless, the ICA stated that the strength of the




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evidence in this case sufficiently outweighed the effect of the

prosecutor’s remark, but it did not provide further explanation.

           Here, Underwood was convicted of unlawful imprisonment

in the second degree and abuse of family or household members.

Although testimony from other witnesses and physical evidence

indicated the surrounding circumstances were generally

consistent with CW’s account of events, only the statements of

CW herself directly described the actual acts constituting the

two offenses.     Thus, Underwood’s convictions were ultimately

dependent on the jury’s assessment of CW’s credibility.15

           When a conviction is largely dependent on a jury’s

determination as to the credibility of a complainant’s

testimony, we have held that the evidence of the offense is not

so “overwhelming” that it renders the prosecutor’s improper

statements harmless beyond a reasonable doubt.           Rogan, 91 Hawaii

at 415, 984 P.2d at 1241.       The potential for prejudice is

particularly evident where, as here, the improper comments

specifically concerned the credibility of the testimony on which

     15
            In his application, Underwood argues that there is a significant
basis to conclude the jury discredited CW’s statements. CW was potentially
biased and had a motive to be untruthful, Underwood argues, because on the
night of the incident, CW was hurt and angry because she believed that
Underwood had been carrying on relationships with two other women. CW’s
inconsistent statements and memory regarding the incident clearly led the
jury to doubt some aspects of her testimony, Underwood reasons, as evidenced
by Underwood’s acquittal on the firearm charge and conviction for only a
lesser included offense of the kidnapping charge. Under all of these
circumstances, Underwood maintains, it can hardly be said that the State had
an overwhelmingly strong case against him.




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the case turned.    See Pacheco, 96 Hawaii at 97, 26 P.3d at 586.

Thus, the third factor also weighs in favor of vacating

Underwood’s convictions.

          The nature of the prosecution’s remarks during closing

argument, the lack of any effective curative instruction by the

court, and the relative weight of the evidence, considered

collectively, make clear that “there is a reasonable possibility

that the error complained of might have contributed to”

Underwood’s convictions.      Rogan, 91 Hawaii at 412, 984 P.2d at

1238 (1999).

                         D.    Double Jeopardy

          This court has held that, in limited “exceptional

circumstances,” prosecutorial misconduct may be “so egregious”

that the double jeopardy protections of article I, section 10 of

the Hawaii Constitution may bar retrial.         Rogan, 91 Hawaii at

423 & n.11, 984 P.2d at 1249 & n.11.        Reviewing courts do not

consider the subjective intent of the prosecutor in determining

whether retrial is prohibited.       Id. at 423, 984 P.2d at 124.

Rather, the relevant inquiry is whether, “from an objective

standpoint,” the misconduct was so egregious that it “clearly

denied a defendant his or her right to a fair trial.”            Id.

          Our decisions do not provide bright line rules for

determining when misconduct is sufficiently egregious to bar




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retrial, but we have emphasized that it is “a much higher

standard than that used to determine whether a defendant is

entitled to a new trial.”      Id. at 423 n.11, 984 P.2d at 124

n.11.   By way of example, we have held that retrial was barred

by double jeopardy principles when a prosecutor made an overt

appeal to racial prejudice in closing argument.          Id.   In

contrast, a prosecutor’s “flagrant defiance of [a] circuit

court’s in limine ruling and personal and vulgar denigration” of

a defendant was held not to be so egregious as to implicate

double jeopardy principles.      Pacheco, 96 Hawaii 83, 98, 26 P.3d

572, 587 (2001).    Other examples of impropriety that have fallen

short of the double jeopardy standard include a prosecutor’s

commentary on the consequences of a jury’s verdict in other

legal proceedings, Tuua, 125 Hawaii at 14, 250 P.3d at 277, a

prosecutor’s argument that the jury should disregard the court’s

instructions and decide the case based on “gut feeling,”

Schnabel, 127 Hawaii at 452, 279 P.3d at 1257, and a

prosecutor’s misstatement of the law governing a potential

defense, Espiritu, 117 Hawaii at 144, 176 P.3d at 902.

          In light of these precedents, the improper remarks in

this case were not so egregious as to clearly deny Underwood a

fair trial, and the protections of double jeopardy are therefore

not implicated.



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                             VI. CONCLUSION

          Accordingly, we vacate the ICA’s November 1, 2017

Judgment on Appeal and the circuit court Judgment, and we remand

the case to the circuit court for further proceedings.

Jon N. Ikenaga                           /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Brian R. Vincent
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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