CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-16-0000004; CR. NO. 14-1-1253)
S. Ishibashi for petitioner.
M. Kumagai (Brandon H. Ito on the brief) for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
case requires us to determine whether a defendant may be
convicted of homicide if the victim's death was the
immediate result of a choice by the victim's family to
withdraw medical care. Michael Limjuco Abella was charged
with Murder in the Second Degree after severely beating
Shelton Higa on July 17, 2014. Higa was comatose for more
than a week thereafter; medical professionals estimated that
his chances of survival were slim, and if he did survive, his
quality of life would likely be poor. He was removed from
life support and declared dead on July 29, 2014, twelve days
after the altercation. In the Circuit Court for the First
Circuit, a jury found Abella guilty of the lesser-included
offense of Manslaughter. The Intermediate Court of Appeals
(ICA) affirmed the conviction.
argues that a defendant in these circumstances cannot be
charged and convicted of a homicide due to a provision in the
Uniform Health-Care Decisions Act that prohibits designating
as a homicide any "[d]eath resulting from the
withholding or withdrawal of health care" under the Act.
Hawai'i Revised Statutes (HRS) § 327E-13(b) (2010).
Abella asserts that the plain language of the statute shields
him from conviction under these circumstances. We disagree.
Viewing the Act as a whole and given the historical context
that led to its passage, it is clear that the legislature
intended to protect medical professionals and family members
making difficult choices, not actors like Abella.
we nonetheless vacate the judgment on appeal and remand this
case for a new trial. Abella argues, and we agree, that the
jury should have been given instructions on causation
pursuant to HRS §§ 702-215 (2014) and 702-216
(2014) . Those instructions would have enabled the jury to
consider whether the intervening volitional conduct of the
family and medical team interrupted the chain of causation
between Abella's actions and Higa's death such that
it would be unfair or unjust to hold him criminally culpable
for homicide. While we recognize without qualification that
the decision to remove a loved one from life support is
difficult and serious, and the law protects that choice,
nevertheless, the issues of causation raised in this case
must be decided by a jury. Consequently, we hold that it was
plain error for the circuit court to fail to instruct the
jury on causation and culpability pursuant to HRS
§§ 702-215 and 702-216.
Circuit Court Procecedings
was charged by indictment in the Circuit Court of the First
Circuit with Murder in the Second Degree in violation of HRS
§ 707-701.5 (2014). His jury trial began on
September 21, 2015.
following testimony was adduced at trial.
Events of July 17, 2014
Ronald Landrio and Donald King each testified that on July
17, 2014, at approximately 8:45 p.m., they were at the
intersection of Smith and Pauahi Streets in Honolulu when
they heard the sound of a glass bottle breaking. Each looked
in the direction of the sound and saw Shelton Higa fall to
further testified that after Higa fell to the ground, a man
stood over Higa and began punching him. King testified that
after Higa fell to the ground, a man, whom he identified as
Abella, began "very violently" kicking Higa several
times, "trying to strike his head as much as he
can." As Higa was on the ground, King noticed that Higa
was "holding his head" and "trying to protect
himself." King testified that he saw Higa getting struck
"[i]n the head, in the shoulders, and arms, because . .
. [Higa was] trying to cover his face and his head."
testified that while the man was punching Higa, a group of
people went over and stopped the man. The man then left the
ambulance and police officers arrived at the scene at 9:04
pm. Honolulu Police Department (HPD) Officer Celestino Herana
testified that he was dispatched to Smith and Pauahi Streets
on an assault call at approximately 8:54 p.m. and met Higa.
Higa was holding the right side of his head, which was red
and swelling. Officer Herana detected a slight odor of
alcohol emanating from Higa's breath, but Higa was
coherent. Officer Herana took photographs of the scene, had
Higa fill out paperwork, and left.
Tanabe, Jr., then a paramedic-in-training for the City and
County of Honolulu, testified to examining Higa and
witnessing superficial lacerations to the right side of his
face and a hematoma to his right temple. Tanabe testified that
Higa's vital signs were stable and that Higa refused a
ride to the hospital.
Tuituu testified that she saw the ambulance leave, and she
went over to talk to Higa. She said that Higa was sitting at
first, and then he got on his hands and knees, trying to
stand up and return to the ambulance. She recounted that Higa
said he felt dizzy, and he asked Tuituu to call the ambulance
continued that as Higa was on his hands and knees,
"[t]hat guy came ([pointing to Abella in the courtroom])
and starting hitting him just out of the blue[.]" Tuituu
testified that Abella "was wild" and hitting Higa
on the head with both hands. After seeing Higa get hit about
"five, six times," Tuituu ran to the police station
about a block away to get help.
testified that he saw Abella kicking Higa "more than
several . . . maybe up to 14 or 20" times. He said that
Higa was attempting to get away, but since there was a wall
in front of him, it was "like he's trying to crawl
into the wall to get away from this guy."
testified that he intervened after seeing "the same
figure[, ]" whom he identified as Abella, "beating
on [Higa] again." Landrio noted that Higa was not
fighting back during the incident because of his poor health.
"came up behind [Abella] and grabbed him to stop him
from hitting [Higa] again." Landrio and Abella then
started punching each other, causing Landrio's glasses to
go "flying" off of his face, and for Landrio to
have a bloody nose and hurt shoulder. Landrio testified:
"I managed to get a couple of shots in. He was hitting
pretty good, so I jumped off into the street on Smith Street
again, just to regroup myself." According to Landrio,
Abella then walked back toward Higa, hit him a few more
times, and "just walked off down Pauahi Street."
testified that after she returned from the police station to
call for help, she saw Abella walking away. Tuituu and King
both testified that they began following Abella until they
caught up with him. At approximately 9:42 p.m., Officer
Herana responded to the same area on an assault call and
the defense's case-in-chief, Abella took the stand,
advancing a theory of self-defense. Abella testified that on
July 17, 2014, at around 8:45 p.m., he was present in
Chinatown near Smith and Pauahi. He testified that he was
"just hanging around" with other people, and around
that time, he saw an ambulance and police lights. He said
that he did not go to check it out, but instead walked over
to the River of Life Mission to see what food would be
served. He testified that Higa came up to him and instigated
the fight; per Abella, "he just hit me." After
that, Abella claimed that another person jumped in the fray,
and he just blocked hits until he left. He further claimed
that he did not know Higa nor know why Higa would hit him.
identified Higa in a photograph and acknowledged that Higa
was older than him, but said, "he was quicker. He hit me
quick. He hit me twice in my jaw." In response to the
State's questions, Abella acknowledged that he did not
have time to react to the second punch, but thereafter,
Abella reacted by hitting Higa, and did not stop hitting Higa
until Landrio broke it up ("He jump in, too, yes.")
Abella said that he and Landrio exchanged punches a
"little bit .... But I - I fled after that." Abella
said that after he finished fighting with Landrio, he walked
over by the Fort Street Mall and was stopped by police. On
cross-examination, Abella said he thought he (Abella) has
"a pretty good punch[.]"
Higa's Medical Care
Hashimoto, then a paramedic-in-training, testified that at
approximately 9:52 p.m., she responded to an assault call at
Smith Street in Chinatown, and when she arrived, she saw Higa
lying on his back, rolling around, and screaming. Higa was
able to provide his name and date to the responding medical
team, but could not answer any other questions and was
"yelling and screaming and rolling." The responding
medical team placed Higa in "full spinal
mobilization," started an IV, took his vital signs, and
transported him to Queen's Medical Center.
was taken to Queen's, a trauma center, for a possible
brain injury and multiple contusions. Hashimoto testified
that there are a range of symptoms that could indicate a
brain injury, some of which Higa exhibited: Higa was
"altered"; "very combative and agitated";
and had "significantly high" blood pressure.
Queen's, Higa was seen by the emergency room doctor and
was sent for a CT scan of his brain. Higa was given a
sedative before undergoing the CT scan. He fell unconscious
and did not regain consciousness thereafter.
Susan Steinemann, a surgeon who was qualified as an expert in
trauma and general surgery, testified that she saw Higa after
his CT scan. By the time Dr. Steinemann saw Higa, he was
"comatose" and "would not open his eyes. He
was not able to vocalize. And he had only some minimal
movements of his arm and leg." In grading the degree of
his coma, Dr. Steinemann explained that a score of three
"would be someone that's basically dead" and a
score of fifteen "is normal." Dr. Steinemann scored
Higa as a five.
cross-examination, defense counsel asked Dr. Steinemann about
Higa's sedation prior to his CT scan, suggesting that
Higa was verbal when he was first admitted to the emergency
room and that he was sedated prior to his CT scan because he
was agitated. Dr. Steinemann testified that she did not
review the record regarding Higa's state when he was
first admitted, but agreed that, in general, an agitated
patient may be administered a sedative prior to a CT scan, as
"[t]he quality of the scan would be poor if the patient
Steinemann testified that the type of sedation given to Higa
"go[es] away in a fairly predictable period of
time." She said, "We don't generally sedate
people to the point of unconsciousness" prior to a CT
scan. She acknowledged that for surgeries, "[o]nce
they're under anesthesia, they're unconscious."
Regarding Higa's state after his CT scan and prior to
surgery, defense counsel asked "And he was not conscious
at that time; isn't that correct?" Dr. Steinemann
replied, "No, he was comatose."
direct examination, Dr. Steinemann testified that Higa was
comatose "[b]ecause of his severe brain injury" (a
"large subdural hematoma" or, in other words,
"bleeding inside the skull[.]"). A subdural
hematoma is dangerous because, as "the blood clot
enlarges, it puts pressure on the brain and squashes the
brain down[.]" So, "[a] brainstem herniation is
often the response to significant subdural hematoma."
asked to describe how a subdural hematoma and brainstem
herniation relate to being comatose, Dr. Steinemann explained
that "the subdural hematoma, where it is located, will
tend to affect more of the higher brain functions, the
thinking, the ability to control movements[, ]" while
"[t]he brainstem controls those very basic life
responses, breathing and heart rate." She explained that
"the brainstem herniation is usually the last thing to
happen before somebody's considered brain dead."
asked to describe the size of the bleeding based on
Higa's CT scan, Dr. Steinemann testified that it was
"[d]eadly. If he didn't have emergency surgery,
deadly. And even with emergency surgery, high - high
mortality would be expected." She testified that
"[t]he prognosis even with surgery for a bleed of this
type is - is not good."
neurosurgeon, Dr. Oshiro, testified about the craniotomy
procedure he performed on Higa and the blood clot he saw
inside Higa's skull. Dr. Oshiro testified that Higa was
in a coma when Dr. Oshiro met him, and he was on a ventilator
prior to the surgery and after the surgery.
Oshiro said that Higa's CT scan "confirmed that
there was a large blood clot on the surface of the brain . .
. that was compressing the brain." He testified that
from reviewing Higa's presenting exam and his CT scan,
Higa's blood clot was "a life-threatening
situation." He noted that while "not all"
blood clots on the brain are life-threatening, Higa's
was. He drew this conclusion based on "[t]he size"
of the clot as well as "the fact that on clinical exam,
he had a dilated pupil, which is indication of brainstem
Oshiro testified that external injuries, such as a skull
fracture, are not necessarily indicative of a serious brain
injury. He testified that this kind of bleeding "is a
direct result of the acceleration/deceleration injury to the
brain," which he explained "can occur without
actually cracking the skull" and "without having a
noticeable outward sign of injury." Dr. Oshiro stated
that this kind of injury can occur from trauma, such as
"[s]ome sort of impact, blow to the head." He
testified that Higa's hematoma could be created by
"somebody str[iking] him on the right side of the skull
with a 40-ounce beer bottle, which cracked the glass"
due to an occurrence called a "contracoup injury."
Because there is space inside the skull for the brain to
move, if the skull is hit on one side, the impact can cause
the brain to "bounce[ ]" and "hit[ ] the other
side" of the skull. He explained that in this regard,
the location of the hematoma in relation to the location of
the impact is "not that predictable." Dr.
Steinemann also testified that Higa's injury would be
consistent with being punched or kicked in the head.
Oshiro testified that the craniotomy procedure had
"satisfactory results as far as removing the blood clot
and reducing the pressure on the brain." He observed
Higa's brain surface turn from "very tense" to
having "a normal pulsation that curves with the
heartbeat," and he saw that Higa's dilated pupil on
the left side "came back down" after the surgery.
however, a successful procedure "does not guarantee a
full recovery" because "sometimes you can't
tell before doing the surgery how much damage is done
already, how much damage is permanent, [or] how much can be .
. . improved by reducing the pressure." According to Dr.
Oshiro, "[i]n other words, there may be some permanent
injury to the brain already done that cannot be
the craniotomy, Dr. Oshiro examined Higa every day. He
noticed that "[t]here was very slight improvement. His
pupils were reactive to light; that is, they reacted normally
when you shine a light. Normal reaction is they constrict.
But he never fully regained consciousness."
July 20 to July 28, 2014, notes in Higa's medical record
provided as follows. On July 20, a note indicated
"minimal change" in Higa's neurological exam.
On July 21, Higa had a "slight eye opening," which,
in comparison to where he was before, indicated "a
slight bit of consciousness." Higa also reacted to a
sternum rub, which is "an irritating kind of
maneuver" used "to get a reaction" from a
patient. A July 22 note stated that "his eyes open
briefly, and he blinks to threat and tracks a little,"
thus "show[ing] a slight improvement in
25, Higa likewise showed a "slight improvement in the
neurologic exam" compared to the previous day. He was
"clearly localizing with left arm," meaning that
when he was given a sternum rub, he was able "to
localize where the stimulus is coming from and actually reach
toward it[, ]" as opposed to an "abnormal
response," which would be "no movement at all"
after a sternum rub. This, again, showed "little
gradations of consciousness" and was "somewhat of
an improvement[.]" On July 2 6, Higa showed "a
slight improvement in eye opening."
27, Higa was "more alert" and "improving
levels of alertness with sustained eye opening[.]" On
July 28, Higa's "eyes open to voice," thus
indicating "a slight improvement in consciousness."
He had a "stable neurologic exam," meaning
"that it's not worsening."
asked whether Higa "was ever going to regain independent
breathing[, ]" Dr. Oshiro testified that there was a
"less than 50/50" chance. He opined that while it
was "probably possible" for Higa to regain
independent breathing, it was "not more likely than
not." Dr. Steinemann testified that based on the
significance of Higa's brain injury, if care were not
withdrawn, she "would expect that his prognosis would be
poor for return to independent living."
respect to taking a patient off life support, Dr. Steinemann
explained that the decision "is usually made in
consultation with the family based upon the patient's
previously expressed wishes about quality of life." Dr.
Oshiro testified that he does not recall whether he was
"physically present" when Higa's breathing tube
was removed. He did not state whether he was aware that
Higa's improvements were or were not communicated to
Higa's next of kin, and noted that "these decisions
are primarily made by the intensive care physician" or
"the neurointensive care physician."
27, Higa's daughter and next-of-kin (Daughter) was
notified about her father's presence at the hospital,
where she worked as a registered nurse. Daughter had an
"estranged relationship" with her father, but she
was aware of his kidney problems and that he was "going
testified that after a social worker called and found her,
she spoke with an "ICU doctor" named Dr. Chang who
told her about Higa's present condition and presented her
with the decision to take Higa off life support.
said she decided to take her father off life support because:
[DAUGHTER:] I knew what he - we had talked about that before
when my grandmother was on life support and we had to make
that decision. And I've seen what happens when you leave
people on life support who -- and the doctors' prognosis.
[STATE]: Which was what?
A. That he wasn't going to have any kind of a meaningful
recovery, and he'd probably be hooked up to the
ventilator and wouldn't be able to regain an independent
testified that she was informed about Higa's condition
over the previous ten days in which he was under the care of
Dr. Steinemann and Dr. Oshiro. She said that she was provided
"a summary of what happened in the surgery and his
current condition[, ]" but she was not notified "as
to the improvement in his condition regarding his neural
exams throughout the ten days[.]" She testified that, as
a nurse, she has seen people in a condition like her
father's. She said that she has never seen other people
in such a condition regain or even "somewhat
regain" their faculties.
was pronounced dead on July 29, 2014, after his breathing
tube was removed.
Oshiro opined that the sedation administered prior to the CT
scan did not kill Higa. Dr. Oshiro also testified that while
Higa had end-stage renal disease, which complicated his
recovery, the renal disease did not cause Higa's
death. Dr. Oshiro testified that the subdural
hematoma caused Higa's death.
following exchange took place between defense counsel and Dr.
Oshiro on recross-examination:
[DEFENSE COUNSEL:] .... in this case, there was slight
improvement happening on a day-to-day basis; right?
[DR. OSHIRO:] Yes.
Q. And there's no telling where that improvement was
going to stop at that point when -- I mean, in two weeks'
time that you had him under your care, Mr. Higa; is that
Q. And you said just before we took a recess that the cause
of death was the subdural hematoma, but you really --
that's not really accurate, because isn't it true
that Mr. Higa could well have survived a little longer than
the two weeks without them pulling the tubes and pulling the
plug? Isn't that right?
Q. I mean, he wasn't at a stage where he was going to die