State v. Abella

438 P.3d 273
CourtHawaii Intermediate Court of Appeals
DecidedMarch 22, 2019
DocketNO. CAAP-16-0000004
StatusPublished

This text of 438 P.3d 273 (State v. Abella) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Abella, 438 P.3d 273 (hawapp 2019).

Opinion

GINOZA, CHIEF JUDGE, FUJISE AND REIFURTH, JJ.

OPINION OF THE COURT BY GINZA, 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)

*276erred 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 *277compression. 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.

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Bluebook (online)
438 P.3d 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-abella-hawapp-2019.