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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 

Electronically Filed

Supreme Court

SCWC-15-0000446

21-MAY-2018

11:27 AM
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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 crossexamination, 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

for petitioner

Brian R. Vincent

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson