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,
appeal arises from Kimberly J. Udo's ("Udo")
manslaughter conviction in violation of Hawai'i Revised
Statutes ("HRS") § 707-702(1) (a) (2014),
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
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.
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.
Factual Summary 
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.
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.
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
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
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.
Circuit Court Proceedings
24, 2014, a grand jury issued a bench warrant and indicted
Udo for Second Degree Murder in violation of HRS §§
707-701.5 (2014) and 706-656 (2014). The indictment
alleged that on July 21, 2014, Udo intentionally or knowingly
Evidentiary Portion of Jury Trial
trial was held between February 22 and March 3, 2016 before
the circuit court.
State's Witnesses in Its Case-In-Chief
summary, various witnesses called by the State testified as
follows regarding evidence relevant to the questions on
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.
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.
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.)
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."
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.
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."
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
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.
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
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.
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.
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.
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
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.
final witness,  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
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.
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.
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; and (9) "a very small four millimeter
laceration" on Wollaston's brainstem, along with
hemorrhaging. A tissue slide was made of Wollaston's
completion of Dr. Happy's testimony the State rested. Udo
moved for, but was denied, a judgment of acquittal.
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.
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.
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.
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.
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."
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
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."
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
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.
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.
then began questioning Dr. Navin about a hypothetical
question asked by Lankford's defense counsel during that
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?
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.
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. 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
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?
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
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?
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,
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
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?
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 ...