FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO.
S. Ishibashi, for Defendant-Appellant.
Brandon H. Ito, Deputy Prosecuting Attorney, City and County
of Honolulu, for Plaintiff-Appellee.
GINOZA, CHIEF JUDGE, FUJISE AND REIFURTH, JJ.
Michael Limjuco Abella (Abella) appeals from
the "Judgment Guilty Conviction and Sentence"
entered on December 16, 2015 by the Circuit Court of the
First Circuit (Circuit
Court). Plaintiff-Appellee State of Hawai'i
(the State) charged Abella with one count of
Murder in the Second Degree pursuant to Hawaii Revised
Statutes (HRS) § 707-701.5 (2014)
After a jury trial, Abella was convicted of Manslaughter in
violation of HRS § 707-702(1) (a) (2014). The Circuit Court
sentenced Abella to a term of imprisonment for twenty years.
appeal, Abella argues that the Circuit Court: (1) plainly
erred by not instructing the jury regarding the causal
connection or lack thereof between Abella's conduct and
the death of victim Shelton Higa (Higa); (2)
erred by not applying HRS § 327E-13 (2010) to his case; and
(3) erred by "not granting a mistrial upon the
prosecution's misconduct of attempting to elicit
testimony of why Abella did not go or report to police of
what occurred between himself and Higa."
reasons discussed below, we affirm.
The State's Case
State's witnesses testified as follows, in pertinent
Ronald Landrio (Landrio), a witness at the
crime scene, testified that on July 17, 2014, at
approximately 8:45 p.m., at the intersection of Smith and
Pauahi Streets in Honolulu, Hawai'i, he looked in the
direction of the sound of a glass bottle breaking and saw
Higa falling to the ground. Donald King
(King), another witness at the scene,
testified to the same. Landrio and King further testified
that they saw Abella next to Higa, and that Abella was
kicking and/or hitting Higa while Higa was on the ground.
King also testified that Higa was being hit on the head by
Abella, and that Higa was trying to cover his face and his
head. Landrio testified that as Higa was being attacked, a
group of people approached Higa and Abella, at which point
Abella left the scene.
Celestino Herana (Officer Herana), a police
officer for the Honolulu Police Department, testified that he
was called to the scene at approximately 8:54 p.m. Officer
Herana conversed with Higa who seemed "coherent,"
took photographs at the scene, and departed.
Tanabe, Jr. (Tanabe), a paramedic for the
City and County of Honolulu, testified that he was part of an
ambulance crew called to the scene at 9:04 p.m. Tanabe
testified that Higa was not taken to the hospital because he
refused to go.
Tuituu (Tuituu), also a witness at the
scene, testified that she arrived before the ambulance
departed, saw Higa trying to get up on his hands and knees,
and was asked by Higa to call the ambulance again because he
point, however, Landrio and Tuituu testified that Abella
returned and started to hit Higa on the head again. King also
testified that Abella repeatedly kicked Higa's head upon
returning. Tuituu testified that she ran to a nearby police
station to call for help, and upon her return, she saw Abella
walking away. King and Tuituu further testified that they
followed Abella away from the scene and eventually caught up
Herana testified that at approximately 9:42 p.m., he was
responding to another assault call and was dispatched to the
same intersection. However, as he was responding to that
call, his Sergeant contacted him regarding a possible witness
to the assault case. At approximately 10:08 p.m., Officer
Herana went to the area of Beretania and Bishop Streets,
where he arrested Abella.
Hashimoto (Hashimoto), a student intern
paramedic at the time of the offense, testified that at
approximately 9:52 p.m., she responded to an assault call and
helped transport Higa to Queen's Hospital in Honolulu
Steinemann, M.D. (Dr. Steinemann), a trauma
and general surgeon, testified that she saw Higa on July 17,
2014, after he was treated by the emergency room doctor and
had had a CT scan of his brain. Higa was comatose by the time
Dr. Steinemann examined him. Dr. Steinemann testified that
Higa had a large subdural hematoma, which she described as
"deadly" bleeding inside the skull. Dr. Steinemann
recommended emergency surgery.
Oshiro, M.D. (Dr. Oshiro), a neurosurgeon,
testified to the following: on July 17, 2014, Higa was
sedated prior to his CT scan, after which he never regained
consciousness, and required the use of a ventilator. After
reviewing Higa's CT scan, Dr. Oshiro determined that Higa
had a "life-threatening" blood clot on the surface
of his brain and a "dilated pupil" which was
indicative of brainstem compression. Also on July 17, 2014,
Dr. Oshiro performed a craniotomy on Higa, which Dr. Oshiro
described as "removing a portion of the skull bone to
gain access to the brain" in order to "remove the
pressure on the brain by removing the space-occupying blood
clot that's sitting underneath the skull." Dr.
Oshiro testified to "satisfactory results" and that
Higa continued to be on a ventilator after surgery.
cross-examination, defense counsel asked Dr. Oshiro questions
regarding Higa's health between the craniotomy and his
death twelve days later, based on Higa's medical chart.
According to the chart, on July 21, Higa opened his eyes
slightly, which Dr. Oshiro said "indicates a slight bit
of consciousness." On July 22, Higa blinked to a threat,
which Dr. Oshiro said "shows a slight improvement in
consciousness. . . . More so than previous." On July 25,
Higa was "clearly localizing with his left arm"
which Dr. Oshiro said is "somewhat of an
improvement[.]" On July 28, Higa's "eyes
open[ed] to voice" which Dr. Oshiro said was a
"slight improvement in consciousness." On the same
day, Higa's chart said "stable neurological
exam" which Dr. Oshiro said means "not
worsening." Dr. Oshiro could not recall whether he was
physically present when the decision was made to take Higa
off life support. On re-cross, Dr. Oshiro agreed that Higa
could have survived a little longer beyond the date of his
death occasioned by removal of life support.
Higa (Stephanie), a nurse and Higa's
daughter, testified that on July 27, 2014, she made the
decision to remove her father from life support pursuant to
his previously expressed wishes. Stephanie additionally
testified on cross-examination that although she was not
informed of improvements to Higa's condition regarding
his neural exams throughout the previous ten days, she had
never in her capacity as a nurse seen other people in states
similar to her father's regain their faculties.
Steinemann testified that Higa was pronounced dead on July
29, 2014. Dr. Oshiro testified that the subdural hematoma was
the cause of Higa's death.
Happy, M.D. (Dr. Happy), the chief medical
examiner for the City and County of Honolulu, testified that
on July 30, 2014, he performed an autopsy on Higa. Dr. Happy
testified that he determined the cause of Higa's death
was "[c]omplications from blunt force head injury with
subdural hemorrhage." Dr. Happy further testified that
there were no other contributing causes to Higa's death,
such as Higa's pre- existing kidney disease or other
natural causes. Dr. Happy also testified that the toxicology
report revealed morphine, administered at the hospital for
pain control, and acetone, "which is sometimes formed
after a prolonged period of a person being essentially brain
dead." Dr. Happy testified that no illegal drugs
presented in the report. On cross-examination, Dr. Happy
repeated that "there were no other causes contributing
to his condition" and that Higa's kidney disease did
not contribute to his death.
The Defense's Case
elected to testify at trial. On direct examination, Abella
testified that on July 17, 2014, at approximately 8:45 p.m.,
he was walking near the intersection of Smith and Pauahi
Streets when a man approached him. The man asked Abella if he
had a problem, and then hit Abella. Abella further testified
that he hit back in self-defense before three additional men
joined the fray. After the fight, Abella walked away. Abella
denied being the source of the bottle, and denied knowing
Higa before the incident.
cross-examination, Abella identified Higa from a photograph
as the person who asked him if he had a problem. Abella
further testified that he hit Higa in the head three times
with a closed fist in self-defense. Abella testified, "I
was just swinging wild."
Verdict and Sentence
jury convicted Abella of Manslaughter. Abella was sentenced
to twenty years imprisonment with credit for time served, to
run concurrent with any other term of imprisonment.
II. Standard of Review
When jury instructions or the omission thereof are at issue
on appeal, the standard of review is whether, when read and
considered as a whole,, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively harmful
and are a ground for reversal unless it affirmatively appears
from the record as a whole that the error was not
However, error is not to be viewed in isolation and
considered purely in the abstract. It must be examined in the
light of the entire proceedings and given the effect which
the whole record shows it to be entitled. In that context,
the real question becomes whether there is a reasonable
possibility that error might have contributed to conviction.
If there is such a reasonable possibility in a criminal case,
then the error is not harmless beyond a reasonable doubt, and
the judgment of conviction on which it may have been based
must be set aside.
State v. Nichols, 111 Hawai'i 327, 334, 141 P.3d
974, 981 (2006) (brackets and citations omitted).
interpretation of a statute is a question of law reviewable
de novo. State v. Arceo, 84 Hawai'i 1, 10, 928
P.2d 843, 852 (1996) (citations and internal quotation marks
When construing a statute, the fundamental starting point is
the language of the statute itself . . . and where the
statutory language is plain and unambiguous, [the appellate
courts'] sole duty is to give effect to its plain and
obvious meaning. However, even when a statute is unambiguous,
the legislative history may be consulted to confirm our
State v. Reis, 115 Hawai'i 79, 100 n.l, 165 P.3d
980, 1001 n.l (2007) (citations and internal quotation marks
The denial of a motion for mistrial is within the sound
discretion of the trial court and will not be upset absent a
clear abuse of discretion. State v. Loa, 83
Hawai'i 335, 349, 926 P.2d 1258, 1272 . . . (1996)
(citations omitted). "'The trial court abuses its
discretion when it clearly exceeds the bounds of reason or
disregards rules or principles of law or practice to the
substantial detriment of a party litigant."'
State v. Ganal, 81 Hawai'i 358, 373, 917 P.2d
370, 385 (1996) (quoting State v. Furutani, 76
Hawai'i 172, 178-79, 873 P.2d 51, 57-58 (1994)}.
State v. Plichta, 116 Hawai'i 200, 214, 172 P.3d
512, 526 (2007) (quoting State v. Rogan, 91
Hawai'i 405, 411, 984 P.2d 1231, 1237 (1999)).
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. Austin, 143 Hawai'i 18, 28,
422 P.3d 18, 28 (2018) (citations and internal quotation
marks omitted). "Factors considered are: (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. Sawyer, 88 Hawai'i
325, 329 n.6, 966 P.2d 637, 641 n.6 (1998) (citation