418 P.3d 658 (Hawai‘i 2018), SCWC-15-0000446, State v. Underwood

Docket Nº:SCWC-15-0000446
Citation:418 P.3d 658, 142 Hawai’i 317
Opinion Judge:POLLACK, J.
Party Name:STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Brian UNDERWOOD, Petitioner/Defendant-Appellant.
Attorney:Jon N. Ikenaga for petitioner. Brian R. Vincent for respondent.
Case Date:May 21, 2018
Court:Supreme Court of Hawai'i

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418 P.3d 658 (Hawai‘i 2018)

142 Hawai’i 317

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,


Brian UNDERWOOD, Petitioner/Defendant-Appellant.

No. SCWC-15-0000446

Supreme Court of Hawai‘i

May 21, 2018

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Jon N. Ikenaga for petitioner.

Brian R. Vincent for respondent.




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 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

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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.


On April 15, 2014, Brian Underwood was charged with the following offenses: count I, kidnapping in violation of Hawai‘i 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 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.

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]

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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 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 O’ahu 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. 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?

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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 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 doesnt 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...

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