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State v. Udo

Supreme Court of Hawaii

December 16, 2019

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
KIMBERLY J. UDO, Petitioner/Defendant-Appellant.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000793; CRIMINAL NO. 14-1-1199)

          William H. Jameson, Jr. for petitioner

          Brandon H. Ito and Sonja P. McCullen for respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          McKENNA, J.

         I. Introduction

         This appeal arises from Kimberly J. Udo's ("Udo") manslaughter conviction in violation of Hawai'i Revised Statutes ("HRS") § 707-702(1) (a) (2014), [1] for which she was sentenced to twenty years of incarceration with credit for time served, to run concurrently with any other term served. Udo's appeal is based on the deputy prosecuting attorney's ("DPA") cross-examination of the defense's only witness, pathologist James Navin, M.D. ("Dr. Navin") and closing argument references to Dr. Navin's testimony. Udo alleges the DPA's cross-examination of Dr. Navin regarding his testimony as a defense expert in two of the most well-publicized and notorious murder trials in Hawai'i within the last decade involving defendants Kirk Lankford ("Lankford") and Matthew Higa ("Higa"), and closing arguments about that testimony, amounted to prosecutorial misconduct affecting her substantial rights for which this court should take plain error notice.

         In its June 29, 2018 Summary Disposition Order ("SDO"), the Intermediate Court of Appeals ("ICA") affirmed Udo's conviction, ruling that the DPA's cross-examination of Dr. Navin with respect to his testimony in the Lankford and Higa trials was not improper because it was (1) relevant to establishing Dr. Navin's defense bias; and (2) did not "rise to the level of misconduct in [State v. ] Rogan[, 91 Hawai'i 405, 984 P.2d 1231 (1999)]." See State v. Udo, CAAP-16-000793, at 5-6, 7 (App. June 30, 2018) (SDO). The ICA also held that the DPA's references to these cases in his closing argument were within the bounds of reasonable inference that a prosecutor may draw from the testimony. Udo, SDO at 8-9.

         In Udo's case, as argued by Udo on appeal, the DPA improperly referenced Dr. Navin's testimony in the Lankford and Higa trials, which affected Udo's substantial right to a fair trial. Accordingly, we vacate the ICA's judgment on appeal, which had affirmed Udo's conviction and sentence, and we remand this case for further proceedings consistent with this opinion.

         II. Background

         A. Factual Summary [2]

         On the night of July 20, 2014, Sandra Wollaston ("Wollaston") slept on the sidewalk fronting 1150 Bishop Street, along with Charles Kingston ("Kingston"), Mimi Clinton ("Clinton"), Richard Kazmierski ("Kazmierski"), and Robert Supee ("Supee"). Sometime early the next morning, on July 21, 2014, Wollaston, Kingston, Clinton, and Kazmierski awoke.

         Around 4:20 a.m., Udo was walking her dog along Bishop Street and began slamming the dog against a wall. Wollaston then called out to Udo, cursing, asking what she was doing to the dog. Udo responded by cursing back, indicating it was none of Wollaston's business. Udo then approached Wollaston.

         Wollaston stood up and she and Udo began fighting. At some point, they fell over Clinton. While Wollaston remained on the ground, Udo kicked Wollaston in the face and stomped on her head and neck multiple times, walking away and then returning three to four times to repeatedly strike Wollaston. Wollaston lay motionless after the final impact and Udo walked away towards Union Mall.

         Kingston called 911 and Wollaston was taken by ambulance to Queen's Medical Center ("QMC"). At 4:40 a.m., while in the ambulance, Wollaston lost her pulse, her heart stopped beating on its own, and she no longer breathed spontaneously. She was declared dead at QMC at 5:42 a.m., and her body was taken to the Honolulu medical examiner for an autopsy.

         Meanwhile, Honolulu Police Department ("HPD") officers apprehended Udo, and Kingston positively identified Udo in a field show-up as the woman he saw assault Wollaston. Udo was arrested and taken into custody.

         B. Circuit Court Proceedings

         On July 24, 2014, a grand jury issued a bench warrant and indicted Udo for Second Degree Murder in violation of HRS §§ 707-701.5 (2014)[3] and 706-656 (2014).[4] The indictment alleged that on July 21, 2014, Udo intentionally or knowingly killed Wollaston.[5]

         1. Evidentiary Portion of Jury Trial

         A jury trial was held between February 22 and March 3, 2016 before the circuit court.[6]

         a. State's Witnesses in Its Case-In-Chief

         In summary, various witnesses called by the State testified as follows regarding evidence relevant to the questions on certiorari.

         Paramedic Kelly Kihe ("Kihe") responded to a 911 call for assistance at 1150 Bishop Street on July 21, 2014. When Kihe arrived on the scene, Wollaston was lying motionless on her back; Wollaston could not speak and her vital signs were weak. At 4:40 a.m., while in the ambulance, Wollaston lost her pulse, her heart stopped beating on its own, and she no longer breathed spontaneously. The paramedics used a defibrillator on Wollaston and also administered four doses of epinephrine in attempts to resuscitate her.

         Kihe's clinical impression was that Wollaston had a closed head injury and that Wollaston was deceased upon arrival at QMC. Kihe did not have any information indicating that Wollaston was experiencing a heart attack.

         Charlotte Carter, the medical examiner's investigator who investigated Wollaston's death, spoke with Wollaston's father, who stated Wollaston had a history of prior use of marijuana and methamphetamines. (The jury was instructed, however, not to consider Wollaston's father's comments for the truth of the matter asserted.)

         HPD Officer Jarrett De Soto ("Officer De Soto"), approached Udo on Hotel Street after hearing a suspect description on the morning of July 21, 2014. When he told Udo she was a suspect in an assault case, Udo stated, "[S]he hit me first so I went pound her."

         Using photographic exhibits, Toy Stech ("Stech"), an evidence specialist with the City and County of Honolulu, pointed out possible injuries to Udo's upper right cheek, right hand, and right foot on July 21, 2014.

         HPD Detective Peter Boyle ("Boyle") went to HPD's Central Receiving Division to process Udo. While informing Udo that they would be gathering evidence from her, Udo uttered that "she gets beat up all the time in town and the first time she fights back she gets arrested."

         According to HPD Detective Daniel Tsue ("Detective Tsue"), the lead detective in Udo's case, on the morning of July 21, 2014, Kingston appeared to understand his questioning, offered responsive answers, and was understandable. Kazmierski, however, was not responsive to questions, and Detective Tsue did not interview Supee because Supee was asleep during the incident. Detective Tsue confirmed there were no external surveillance cameras near the scene of the incident.

         Kingston testified as the only eyewitness. Kingston had lived in Hawai'i for twelve years and had been on and off the streets. When on the streets, he slept by a Bible store at the corner of Adams and Bishop Streets. He had known Wollaston for a couple years.

         At around 10:00 p.m. on the night of July 20, 2014, Kingston, Wollaston, Kazmierski, Supee, and Clinton went to sleep in front of Ninja Sushi after drinking together. At around 2:45 a.m., Kingston, Wollaston, and Kazmierski awoke and had shots of vodka.

         At around 4:20 a.m., Kingston saw a woman slamming her dog against a wall. Kingston identified Udo as the woman he saw that morning. According to Kingston, Wollaston was also awake and said something to Udo. Udo then responded to Wollaston from about three feet away, cursing, then approached Wollaston, who had been sitting down. Kingston told Wollaston, "Don't do it, [Wollaston]." Wollaston responded, "No, Chaz, stay out of it. This is mine." Then Wollaston "stood up and they scrapped, pulled hair, kicked, punched, whatever. They fell over [Clinton]. And it got out of hand." Kingston called 911, and an ambulance arrived within a few minutes.

         Kingston was a couple of feet from Wollaston during the incident. When Wollaston and Udo fell over Clinton, Wollaston's head hit the ground, and Udo kicked Wollaston in the face until Kingston pulled her away. Udo left then returned three to four times, and each time, she kicked Wollaston in the head and neck area, "stomp[ed]" on Wollaston, and uttered phrases such as "I'll kill you." After the final kick, Wollaston had "a death stare," was motionless, and was lifeless.

         According to Kingston, during the incident, Clinton was present, Supee was passed out, and Kazmierski was at a store getting Wollaston a sandwich. Udo then left in the direction of Union Mall. Kingston tried to care for Wollaston, but she remained motionless and was not breathing or speaking. After HPD arrived, Kingston wrote a statement and identified Udo in a field show-up near Union Mall.

         On cross-examination, Kingston testified he had consumed a few shots or a half-pint of vodka the night prior to trial. He stated he was not intoxicated throughout the period of July 20 to July 21, 2014, but had drunk about a pint of vodka on July 20, 2014 and less than half a pint the morning of the incident.

         Kingston also testified that when Wollaston saw Udo abusing the dog, she cursed out Udo, asking what she was doing with the dog. According to Kingston, Wollaston voluntarily entered into the fight with Udo despite Kingston trying to stop her.

         As its final witness, [7] the State presented Christopher Happy, M.D. ("Dr. Happy"), the chief medical examiner for the City and County of Honolulu. The court qualified Dr. Happy as "a medical expert with a specialization in forensic pathology."

         According to Dr. Happy, Wollaston was pronounced dead at 5:42 in the morning on July 21, 2014. Dr. Happy performed Wollaston's autopsy on July 21, 2014.

         Dr. Happy described the physiology of a human spine, neck, and brain. He explained that "the brainstem regulates heart rate and respiratory rate," and injury to the brainstem can cause death.

         Before and during Wollaston's autopsy, Dr. Happy noticed several injuries consistent with a kick or a punch on Wollaston's head, face, and brain: (1) two contusions on the right side of her face; (2) an abrasion and a contusion in the external left occipital region of Wollaston's head; (3) a subscalp hemorrhage in the right occipital subscalp area; (4) a two-by-one-and-one-half-inch abraded red and purple contusion with associated swelling in the occipital parietal scalp above Wollaston's left ear; (5) a subscalp hemorrhage on the left occipital region more extensive than the exterior injury; (6) a "two-inch horizontally oriented fracture extending from the posterior part of the temporal bone to about the mid portion of the left temporal bone" of Wollaston's skull; (7) four subscalp hemorrhages on the top of the head, indicating four different impacts; (8) bleeding in multiple locations between the dura and the surface of the brain -- subdural and subarachnoid hemorrhages;[8] and (9) "a very small four millimeter laceration" on Wollaston's brainstem, along with hemorrhaging. A tissue slide was made of Wollaston's brainstem.

         At the completion of Dr. Happy's testimony the State rested. Udo moved for, but was denied, a judgment of acquittal.

         b. Defendant's Witness

         Udo then called Dr. Navin as her only witness. Dr. Navin stated that he had testified "as an expert in anatomical, clinical pathology" for the State and for the defense over 100 times each.[9]

         On direct examination, Dr. Navin testified he had reviewed all the reports in the case and the slides that were taken by Dr. Happy. When he reviewed Dr. Happy's autopsy report, he noticed indications of previous heart damage. Those indicators included the presence of boxcar nuclei, which could increase the risk of a heart attack, as well as areas of fibrosis. Dr. Navin also testified that Wollaston's blood alcohol level was 0.278 and there was evidence of marijuana in high levels, which could increase the risk of heart attack. Citing an article in National Geographic, he testified that marijuana use "can cause doubling of the heart rate and greatly increases the risk of heart attacks," and given Wollaston's heart condition, he opined that the potential impact of combining marijuana and alcohol consumption is death.

          Upon his request, the medical examiner's office resliced paraffin slides of Wollaston's heart, and Dr. Navin discovered that contraction band necrosis was present in Wollaston's heart. Dr. Navin explained that contraction band necrosis was not a specific diagnosis of a heart attack and had many possible causes.

         Dr. Navin testified that in forming his opinions, he also considered Wollaston's long history of alcoholism, drug abuse, which included methamphetamines and marijuana, and substandard living conditions. It was Dr. Navin's theory that Wollaston's death resulted from the mixture of alcohol, marijuana, Wollaston's pre-existing heart condition, and the physical activity of the fight. Dr. Navin testified that Wollaston could not speak when police arrived because a myocardial infarction can have a similar effect on the vocal chords as a brainstem injury.

         Dr. Navin opined that Dr. Happy failed to examine sections of the brain and that Wollaston's brain was not actually swollen. According to Dr. Navin, however, Wollaston's heart was abnormally enlarged by fifty percent. Dr. Navin testified that the autopsy report did not note "contraction band necrosis and other cellular changes indicative of myocardial infarction present in both the original slides and the recuts."

          Dr. Navin testified that the presence of wavy fibers, although a non-specific finding, in conjunction with the contraction band necrosis found in a whole area of Wollaston's heart just "four hours old" supported his conclusion. Dr. Navin also opined that the contraction band necrosis was more likely from a heart attack than from epinephrine or the external cardiac massage because the bands were not isolated, and Wollaston had granules throughout her heart and edema caused by cellular injury that could have appeared hours prior to the fight. Dr. Navin also explained that if Wollaston only exhibited the granules and contraction band necrosis, it would be consistent with external massage. The edema and holes indicating cellular injury could have occurred prior to the fight and were independent of any blunt trauma.

         As to Wollaston's head injuries, Dr. Navin testified the abrasion on the back of Wollaston's head was more likely caused by hitting her head when she fell, but could have been from a kick. Dr. Navin did not believe Wollaston's head injuries were fatal because they consisted of "just a bruise" in the scalp and "surface hemorrhages" on the brain. According to Dr. Navin, the injury to the brainstem could have contributed to her death, but that was unclear to him because he did not have cut sections of the brain to review. The tear in the brainstem could have been the primary cause of death instead of the heart attack, he acknowledged, or "it could add more stress to an already existing stressful situation."

         According to Dr. Navin, without a heart attack, it was entirely possible that Wollaston would have survived the left temporal bone fracture. As to Wollaston's vertebral artery injury in the neck, he stated it was not typically a fatal injury but could be depending on the circumstances, and he shared a story of a woman who died from such an injury. In his opinion, Wollaston's injuries to her medulla were survivable.

         On cross-examination, Dr. Navin agreed his experience in cytopathology, pap smears, and rabies did not relate to myocardial infarction or the kinds of injuries sustained by Wollaston during the July 21, 2014 incident. Regarding his experience as an expert witness, Dr. Navin stated he had previously testified for the public defender's office on death cases but also for the Honolulu prosecutor's office, primarily in sexual assault cases. He could not remember if he had testified for the prosecutor's office within the past five years.

         The DPA then questioned Dr. Navin regarding his testimony in two murder cases on behalf of the defense: the Lankford trial in 2008 and the Higa trial in 2010. In response to the DPA's questions, Dr. Navin testified the Lankford trial involved a missing Japanese student, Masumi Watanabe, whose disappearance resulted in a large-scale police investigation. Dr. Navin testified he could not recall his fee schedule in the Lankford case.

         The DPA then began questioning Dr. Navin about a hypothetical question asked by Lankford's defense counsel during that trial:

Q. Do you recall [defense counsel] posing a hypothetical to you: A vehicle travelling 40 miles an hour with a woman, five feet two inches tall, 100 pounds, seated in the right front passenger seat. Thereafter the woman opens the door, falls out of the right front passenger seat and strikes her head against a rock that's on the ground. Do you remember that hypothetical being put to you?
A. Yes.
Q. And then you testified, based on that hypothetical, that the woman based on your training and experience would be dead under those circumstances, right?
A. She could be, yes.
Q. She could be. But in your testimony on that day, you would agree that you speculated about what could have happened based on that hypothetical, right?
A. I don't remember.

         To refresh Dr. Navin's memory, the State turned Dr. Navin's attention to a binder including the transcript of his testimony in the Lankford trial and asked him to read a number of lines.[10] The following line of inquiry between the DPA and Dr. Navin then transpired. We refer to the underlined passage that Udo raises on appeal as the "Lankford Question":

Q. [DPA] Okay. So you recall the defense attorney giving you a hypothetical example of a woman, five feet two inches tall, a hundred pounds, falling out of the front seat-
A. [DR. NAVIN] Jumping out.
Q. Jump -- jump, that's right, jumping out of the front seat of the car and striking her head against a rock?
A. Yes.
Q. Okay. And you testified that based under those circumstances, that hypothetical, the woman would be dead?
A. She could be.
Q. She could be. But isn't it true that Mr. Wilkerson[, the defense attorney in Lankford, ] asked you to speculate about what could have caused her death?
[Udo's counsel]: Objection, your honor. Lack of foundation.
The Court: All right. Well, overruled at this time.
Q. [DPA] In fact, turn to pages 75, doctor. Lines 4 and 5, the defense attorney asked you, "Could you tell us the things that could have happened?" That was the question that was put to you, right?
A. Yes.
Q. And then your response, you said, "She could have torn blood vessels. She could have torn the brainstem." So you were speculating as to what could have happened based on a hypothetical given to you by the defense attorney, right?
A. Well, there are a whole list of possibilities, but yeah.
Q. Well, based on your training and experience, you know that an injury to the brainstem can cause death?
A. It can, yes.
Q. And that's what you testified to in the Lankford case on March 20th, 2008, that damage to the brainstem can cause death?
A. Yes, depending on the severity.
Q. Isn't it true, Dr. Navin, that with regards to the hypothetical that was given to you in the Lankford murder case, the facts of the hypothetical came directly from the defendant? He told you his version of the events?
A. Yes.
Q. So to be clear, on March 20th, 2008, in that murder trial you testified to a hypothetical based on information provided to you by the accused, right?
A. Yes, he told me what --
Q. He believed happened?
A. What he said happened.
Q. And you would agree that based on all of the information that you reviewed in the Lankford case there was no independent corroboration of defendant ...

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