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State v. Abella

Supreme Court of Hawaii

December 17, 2019

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
MICHAEL LIMJUCO ABELLA, Petitioner/Defendant-Appellant.


          Dana S. Ishibashi for petitioner.

          Chad M. Kumagai (Brandon H. Ito on the brief) for respondent.



          RECKTENWALD, C.J.

         This 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.

         Abella 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.

         However, 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.

         I. BACKGROUND

         A. Circuit Court Procecedings

         Abella 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).[1] His jury trial began on September 21, 2015.[2]

         1. Witness' Testimony

         The following testimony was adduced at trial.

         a. Events of July 17, 2014

         Witnesses 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 the ground.

         Landrio 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."

         Landrio testified that while the man was punching Higa, a group of people went over and stopped the man. The man then left the area.

         An 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.

         Kell 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[3] to his right temple. Tanabe testified that Higa's vital signs were stable and that Higa refused a ride to the hospital.

         Antoinette 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 again.

         Tuituu 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.

         King 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."

         Landrio 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.

         Landrio "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."

         Tuituu 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 arrested Abella.

         b. Abella's Testimony

         During 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.

         Abella 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[.]"[4]

         c. Higa's Medical Care

         Ashley 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.

         Higa 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.

         At 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.

         Dr. 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.

         On 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 were moving."[5]

         Dr. 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."

         On 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."

         When 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."

         When 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."

         Higa's 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.

         Dr. 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 compression."

         Dr. 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.

         Dr. 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.

         "[U]nfortunately," 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 reversed."

         After 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."

         From 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 consciousness."

         On July 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."

         On July 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."

         When 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."

         With 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."

         On July 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 blind."

         Daughter 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.

         Daughter 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 lifestyle.

         Daughter 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.

         d. Higa's Death

         Higa was pronounced dead on July 29, 2014, after his breathing tube was removed.

         Dr. 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.[6] Dr. Oshiro testified that the subdural hematoma caused Higa's death.

         The 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 right?
A. Correct.
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?
A. Yes.
Q. I mean, he wasn't at a stage where he was going to die right ...

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