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State v. Abella

Intermediate Court of Appeals of Hawaii

March 22, 2019

STATE OF HAWAII, Plaintiff-Appellee,


          Dana S. Ishibashi, for Defendant-Appellant.

          Brandon H. Ito, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.



          GINOZA, C.J.

         Defendant-Appellant 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).[1] 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).[2] After a jury trial, Abella was convicted of Manslaughter in violation of HRS § 707-702(1) (a) (2014).[3] The Circuit Court sentenced Abella to a term of imprisonment for twenty years.

         On 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)[4] 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."

         For the reasons discussed below, we affirm.

         I. Background

         A. The State's Case

         The State's witnesses testified as follows, in pertinent part:

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.

         Officer 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.

         Kell 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.

         Antoinette 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 felt dizzy.

         At that 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 with him.

         Officer 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.[5] At approximately 10:08 p.m., Officer Herana went to the area of Beretania and Bishop Streets, where he arrested Abella.

         Ashley 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 (Queen's).

         Susan 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.

         Eric 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.

         On 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.

         Stephanie 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.

         Dr. 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.

         Christopher 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.

         B. The Defense's Case

         Abella 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.

         On 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."

         C Verdict and Sentence

         The 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

         A. Jury instructions

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 prejudicial. 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).

         B. Statutory interpretation

         The 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 omitted).

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 interpretation.

State v. Reis, 115 Hawai'i 79, 100 n.l, 165 P.3d 980, 1001 n.l (2007) (citations and internal quotation marks omitted).

         C. Mistrial

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. Roqan, 91 Hawai'i 405, 411, 984 P.2d 1231, 1237 (1999)).

         D. Prosecutorial misconduct

         "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. 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 omitted).

         III. Discussion

         A. ...

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