CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000446; CRIMINAL NO. 14-1-00622)
Ikenaga for petitioner.
R. Vincent for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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 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.
April 15, 2014, Brian Underwood was charged with the
following offenses: count I, kidnapping in violation of
Hawaii Revised Statutes (HRS) § 707-720(1)
count II, carrying or use of a firearm in the commission of a
separate felony in violation of HRS §
134-21; and count III, abuse of family or
household members in violation of HRS §
709-906(1). The allegations involved an incident that
occurred on April 5, 2014.
trial commenced on March 16, 2015, and the following evidence
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
confronted Underwood about the purported relationships, and
they ultimately decided that CW would move out the next
morning. 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.
Underwood woke up, he and CW began to argue, and they moved
downstairs to the living room so as to not wake up CWs 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.
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.
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.
assisted picking up CWs items from the lawn, and they left to
go to the house of CWs 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.
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. Sister yelled to open the door and
threatened to call the police. Eventually CW came running out
of the house looking scared.
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.
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.
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?
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.
Q. And there was a conversation going on, right?
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