State v. Udo.

454 P.3d 460, 145 Haw. 519

• Court: Hawaii Supreme Court
• Decided: December 16, 2019
• Docket: SCWC-16-0000793
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 16-DEC-2019 09:11 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---oOo--- ________________________________________________________________

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,

vs.

KIMBERLY J. UDO, Petitioner/Defendant-Appellant. ________________________________________________________________

SCWC-XX-XXXXXXX

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

DECEMBER 16, 2019

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

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This appeal arises from Kimberly J. Udo’s (“Udo”)

manslaughter conviction in violation of Hawaiʻi 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

1 HRS § 707-702(1)(a) provides as follows: “(1) A person commits the offense of manslaughter if: (a) The person recklessly causes the death of another person . . . .” *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

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 Hawaiʻi

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 Hawaiʻi 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

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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 Summary2

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.

2 This brief factual background is compiled from the testimony adduced at trial.

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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

3 HRS § 707-701.5 provides as follows:

(continued. . .) 4 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

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.

(. . . continued) Murder in the second degree. (1) Except as provided in section 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.

(2) Murder in the second degree is a felony for which the defendant shall be sentenced to imprisonment as provided in section 706-656. 4 HRS § 706-656 provides in pertinent part as follows:

Terms of imprisonment for first and second degree murder and attempted first and second degree murder. . . . . (2) Except as provided in section 706-657, pertaining to enhanced sentence for second degree murder, persons convicted of second degree murder and attempted second degree murder shall be sentenced to life imprisonment with possibility of parole.

5 The indictment stated:

On or about July 21, 2014, in the City and County of Honolulu, State of Hawai̒i, KIMBERLY J. UDO did intentionally or knowingly cause the death of Sandra Lee Wollaston thereby committing the offense of Murder in the Second Degree, in violation of Sections 707-701.5 and 706- 656 of the Hawai̒i Revised Statutes. 6 The Honorable Rom A. Trader presided.

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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

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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

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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

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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

7 Before presenting its final witness, the State also presented the following witnesses: (1) Veronica De Mello, a police evidence specialist for HPD, who photographed and diagrammed the crime scene; (2) HPD Sergeant Eric (continued. . .) 9 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

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

(. . . continued) Fong, who responded to the scene and noted that Clinton, Kazmierski, and Kingston were all present, but Supee remained asleep; (3) HPD Corporal Arnold Sagucio, who went to the crime scene, and testified that Kazmierski was “extremely intoxicated” when he interacted with him, Supee remained asleep, and there were no surveillance cameras in the crime scene area; (4) HPD Officer Brian Goda, who placed an all-points bulletin with Udo’s description, took Kingston to the field show-up, and could not say “how intoxicated [Kingston] was” the morning of July 21, 2014; (5) HPD Officer Dustin Hao, who was on duty at QMC’s Emergency Room and confirmed that Wollaston’s body was not tampered with between the time it was at QMC and the time it was transported in a sealed body bag to the medical examiner’s office; and (6) HPD evidence specialist, Doryn Matsuda, who photographed Wollaston’s body and swabbed her hands for evidence. None of those witnesses who were cross- examined about drug paraphernalia testified to seeing any drug paraphernalia around the crime scene or in Wollaston’s belongings.

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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,

8 Dr. Happy testified that subdural hemorrhages are caused “[w]hen the brain moves relative to the dura, usually due to an acceleration and a sudden deceleration . . . those bridging veins tear and . . . they cause subdural hemorrhage. Subarachnoid hemorrhage . . . is usually caused by a direct blow to the surface of the brain with deformation of either the skull or an impact of the brain on the insides of the skull.”

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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.

9 Although not raised by the defense, during the February 25, 2016 questioning of Dr. Navin, the DPA also inserted the Higa case into his voir dire questioning regarding Dr. Navin’s qualifications:

Q. Okay. Do you remember testifying on January 26, 2010, just down the hall, in the case of State of Hawaii versus Matthew Higa? A. Of what? Q. Matthew Higa was the defendant. Do you remember that case? A. Yes.

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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.”

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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

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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

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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

10 The State asked, “would reviewing your testimony of March 20th, 2008 refresh your recollection as to what you testified to in another case?” Udo’s counsel promptly objected and requested to approach the bench. Udo’s counsel argued the State was offering a different case to refresh Dr. Navin’s recollection, and requested the court to compel the State to provide Dr. Navin with the document related to the hypothetical to refresh his recollection. The court declined the request because no rule of evidence applied to compel the document to be provided. Udo’s counsel insisted the (continued. . .) 16 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

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 --

(. . . continued) court was biased in its decision-making, to which the court responded it was not making “any decisions based upon any sort of bias for or against anyone.”

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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 Lankford’s version of the events? A. That’s correct. Q. Okay. A. Now what he said actually was that she jumped out of the car. She didn’t speak English and he didn’t speak Japanese, and she was frightened and she jumped and hit her head and when he got -- he stopped the truck, got out, that she had no pulse, no respirations. Q. And that’s what she -- that’s what he told you? A. Yes. Q. And you took it at face value, right? A. He’s the only witness. Q. So in this case, in that case, sorry, the Lankford case, you took the word of the murder -- the accused murderer without any independent corroboration to support his version of events; that’s what you did, right? A. There wasn’t anybody left.

As to Higa trial, the following line of inquiry occurred;

the underlined portions that Udo raises on appeal are referred

to as the “Higa Questions”:

Q. Now do you remember on January 26, 2010 testifying in the case of State of Hawaii versus Matthew Higa? It’s case number 08-1-0132. It’s that other murder case. A. The kid off the bridge? Q. The kid off the bridge. Do you remember that? A. Yes. Q. There was an allegation that Matthew Higa threw an infant off of the bridge? A. Yes. Q. And this was on the H-1 overpass, right? A. Yes. Q. And you were retained by the defense in that case? A. Yes. Q. Right? And that defense attorney was Randy Oyama; do you remember him? A. Yes. Q. And what was your retention schedule in that case, how much were you paid? A. Oh, I don’t know. Q. All right. But you recall Mr. Oyama calling you and agreeing to take the case? A. Yes. Q. Isn’t it true that in the Matthew Higa case you testified as an expert witness that the infant was either

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unconscious or dead before it struck the H-1 freeway? You testified -- A. I didn’t say that. Q. You didn’t? A. No. Q. Turn to page -- turn to Exhibit 86. A. Oh, oh. Wait, wait. No. Yes, I did say that. I’m sorry. Q. Okay. A. It was the opposite part that I -- oh, no. Right, I did. Q. Okay. Let’s take our time. I don’t want to -- A. Yeah. No, no. Q. I want to make sure we understand each other. A. There were two aspects to it. One of them is that they asked if she -- if the kid was dead and I said probably. And the reason the kid was probably dead is when -- when he threw the body, number one, he carried the body underneath his coat down to the bridge and two people saw him walk by and they didn’t see the kid. Okay? Then he gets down to the bridge and he throws the kid off and from all the -- what the witnesses saw, the kid’s arms, they never moved, nothing ever moved and there was no yelling or screaming. So I said, well, there’s good chance he was already unconscious or dead -- when the body was going through the air. Q. So the purpose of your testimony, as you think back, was to say that the defendant, Matthew Higa, couldn’t be guilty of murder because the baby he threw off the overpass was already dead when it hit the pavement; that was the purpose of your testimony, wasn’t it? A. No, it wasn’t. The purpose of the testimony was establishing what I thought the condition of the child was, if he was killed before by Matthew Higa or somebody else and that -- that would explain it. If he was not, then -- Q. You recall that the injuries obviously to the infant were devastating? A. The what? Q. The injuries to the infant were devastating, remember? A. The brain’s out in the middle of the highway. Q. That’s right. And you testified as an expert that you couldn’t determine whether the intracranial injuries you saw to the infant were caused before it was thrown off the highway overpass or when it hit the ground, that’s what you testified to? A. That’s correct. Q. You also testified as an expert witness in that case that you couldn’t rule out if the infant’s skull was fractured before it was thrown off the overpass or when it impacted the freeway, you testified to that, right? A. Correct. Q. But wasn’t the purpose of your testimony to present evidence in that case that Matthew Higa wasn’t guilty of murder because the infant could have been already dead before he threw it off the overpass?

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A. No. Because he could have killed him before.

With respect to the instant case, Dr. Navin testified he

had not determined his fee schedule yet, but had received one

advance check of $5,000 and was to receive a negotiated amount

after testifying.

Regarding the materials he consulted prior to testifying,

Dr. Navin testified he had consulted Wikipedia. He also

acknowledged that none of Wollaston’s charts contained proof of

methamphetamine in Wollaston’s body, and that the source of that

information came from Wollaston’s father’s statement, as

recorded by the medical examiner’s office, which Dr. Navin had

not corroborated. When the prosecution likened Dr. Navin’s

failure to confirm the information to his testimony in Lankford,

defense counsel objected for mischaracterization of the

evidence. Before the bench, the State contended that the “offer

of proof demonstrates that [Dr. Navin’s] methodology is to

accept at face value those assertions that seem to support his

theories and conclusions without verifying the underlying.

That’s exactly the point that’s being made . . . . That’s what

he did in Lankford. That’s what he’s doing here.” The court

overruled the objection.

Dr. Navin also acknowledged on cross-examination that he

made changes to his expert report up until the morning of his

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trial testimony, and previously made changes to the report after

speaking with defense counsel about the report. He also

acknowledged that he referenced an article in National

Geographic, which is not a scientific or peer-reviewed journal.

Additionally, he acknowledged that Wollaston’s blood contained

an inactive form of tetrahydrocannabinol (“THC”) from marijuana,

which does not have pharmacological effects. Further, when the

State clarified that Dr. Navin did not consider statements made

by Kingston in forming his opinion because Kingston did not

state that Wollaston was only blocking punches after she fell,

defense counsel objected, but was overruled.

Dr. Navin also acknowledged that acute subdural hemorrhages

are life-threatening, Wollaston’s injuries could have been

caused by a direct impact such as a stomp, and the subdural

hemorrhaging was not a direct result of myocardial infarction.

Regarding Wollaston’s brainstem, Dr. Navin testified that he did

not see the slides of Wollaston’s brainstem “until after [his]

report went out.” Dr. Navin agreed that a tear to the brainstem

could impact someone’s ability to speak, but was not necessarily

the reason that Wollaston could not speak the morning of July

21, 2014. As to the vertebral artery injury, blunt force trauma

to the back of the neck or side of the neck could have caused

such an injury.

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Dr. Navin agreed that nothing in the record from Kingston’s

statements or other witnesses indicated that Wollaston

experienced any of the tell-tale signs of a heart attack, such

as dizziness, chest pains, or shortness of breath, on the

morning of July 21, 2014. He also admitted that there was no

evidence that Wollaston had hardening of the arteries, which

could cause a heart attack.

Further, Dr. Navin acknowledged that epinephrine, which

Wollaston received, can cause contraction band necrosis, and

that he did not know the dosage of epinephrine that was

administered to Wollaston. He opined, however, that the

defibrillation and epinephrine that Wollaston received was less

likely than the myocardial infarction to have caused Wollaston’s

contraction band necrosis, “because one part of the heart has

it, the other part doesn’t.”

On re-direct, Dr. Navin testified that it was possible that

Wollaston would have survived the head injury if she had not had

a heart attack. He further testified he did not receive any

instructions from defense counsel when he was retained other

than to look at the case and share his opinion.

c. State’s Rebuttal Testimony from Dr. Happy

On rebuttal direct examination, Dr. Happy testified that

the weight of Wollaston’s heart was forty-two percent above

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normal, not fifty percent above normal as testified by Dr.

Navin. Also, according to Dr. Happy, Wollaston’s heart did not

exhibit heart disease from alcoholism. Dr. Happy determined

this by making a new tissue slide from the slice of Wollaston’s

heart that was retained in a stock jar. Dr. Happy also

testified that Wollaston had hypertension, which can make the

heart get bigger and thicker. Wollaston did not have

atherosclerosis, however, which is the underlying cause of most

heart attacks.

Regarding the impacts of marijuana on the heart, according

to Dr. Happy, studies indicated the connection between marijuana

use and sudden cardiac death was rare and usually associated

with atherosclerosis. Further, the amount of an inactive form

of THC in Wollaston’s blood, as reflected by the toxicology

report, was very low, and “to think that this inactive

metabolite would have caused her to have a heart attack” was

“erroneous.”

Regarding Wollaston’s heart, Dr. Happy acknowledged that he

had not previously noticed the contraction band necrosis or wavy

fibers. He explained epinephrine can cause contraction bands,

and opined that Wollaston “had four sources of possibilities for

her contraction bands.” He explained:

She had a fight where her epinephrine was released from her adrenal gland. She had an intracranial hemorrhage which resulted in more epinephrine. And then she was given six 23 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

different shots of epinephrine, four . . . by the ambulance workers, and two by the emergency room doctors, and then she was defibrillated. And so sure enough Dr. Navin saw these contraction bands . . . .

In Dr. Happy’s medical opinion, the contraction bands Dr. Navin

observed were not attributed to myocardial infarction, and the

timeline Dr. Navin presented for a myocardial infarction was

correct for a person that is atherosclerotic, but Wollaston was

not atherosclerotic. As to the wavy fibers, according to Dr.

Happy, they could arise with increased epinephrine and had been

seen in cases of fatal cranial trauma as well as with heart

attacks.

Dr. Happy then described the symptoms of a heart attack and

what happens to the heart during a myocardial infarction.

According to him, in particular, a heart attack causes extreme

pain, and if Wollaston did have a fatal heart attack four hours

prior to the fight, as Dr. Navin stated, “a significant amount

of her heart muscle would have had to die.” According to Dr.

Happy, the tissue slides did not reflect that had happened.

Dr. Happy had prepared a report on Wollaston’s autopsy.

During the autopsy he examined both Wollaston’s heart and brain.

He testified that, contrary to Dr. Navin’s testimony, he did

examine the cerebrum internally and documented it in the report,

and a sample of Wollaston’s brainstem was placed in a tissue

block and a slide was made of it. He testified that the heart

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and brainstem tissues that Dr. Happy used to form his opinion

were available to Dr. Navin for inspection.

Dr. Happy opined that, to a reasonable degree of medical

probability, Wollaston’s death was caused by “[b]lunt force head

and neck injury.” The “mechanism of death” “was subarachnoid

hemorrhage . . . around the brainstem.”

On rebuttal cross-examination, he acknowledged he did not

take tissue slides of the cerebrum, besides the brainstem, to

examine the brain at the cellular level.

On re-direct examination, Dr. Happy testified he had seen

the note in the investigator’s report that Wollaston had a

history of methamphetamine use, which was based upon the

statement by Wollaston’s father, but did not find any evidence

in her medical record of such use.

On re-cross-examination, Dr. Happy stated that he received

information about how Wollaston sustained her injuries from a

detective attending the autopsy on the morning of July 21, 2014.

2. Closing Arguments

During the State’s closing argument, the DPA reminded the

jurors they had the discretion to weigh the credibility of the

experts, and should look to the experts’ methodologies to make

that determination. The DPA detailed Dr. Happy’s credentials

and noted that Dr. Happy’s testimony was consistent with both

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the medical literature and Kingston’s testimony of the events on

July 21, 2014.

The DPA then attacked Dr. Navin’s methodology as outdated,

highlighting that he did not have any experience “conducting

forensic brain consultations.” The DPA then raised the issue of

Dr. Navin’s self-interest as a paid defense witness, recalling

his testimony in other cases. For the purposes of this opinion,

we refer to the first underlined remark as the “Lankford Closing

Remark” and the second underlined remark as the “Higa Closing

Remark”:

And now I will explain why Dr. Navin's methodology, opinion, and analysis are not based on sound reasons, rest on faulty judgment, and are anchored on patently false information. . . . . Consider his testimony in other murder cases. In the case of State of Hawaii versus Kirk Matthew Lankford, the case of the missing Japanese student, he testified just across the hall. He gave an expert opinion as to the missing student’s cause of death based on a scenario given to him by the defendant. And in fact he admitted on cross- examination that there was no independent corroboration for that version of events. And so he testified to a reasonable degree of medical certainty in another murder case that the missing student, Masumi Watanabe, essentially killed herself when she jumped out of a moving car that was traveling 30 to 40 miles per hour, struck her head on a rock, damaged her brainstem, and died. That was his testimony in another murder trial just across the hall. That is a clear cut example of his defense bias. You see, if Dr. Navin does not give an opinion that’s favorable to his paying client, his phone stops ringing. That’s the way it works. . . . . But it doesn’t stop there. Consider his testimony in the case of State of Hawaii versus Matthew Higa where an infant was launched off the H-1 overpass and was essentially smashed on the freeway. He testified for the defense to a reasonable degree of medical certainty that he couldn’t tell whether the baby was dead or alive before it smashed onto the freeway. The purpose of his testimony in

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that case was to provide a defense for the accused murderer that a murder couldn’t have happened based on throwing a baby off of an overpass because the baby could have been dead already. That is the kind of testimony that Dr. Navin has given in other murder trials. That’s the kind of credibility that he has held himself up to, a paid defense witness whose opinion is for sale. That’s the way it is.

Udo did not object during this portion of the DPA’s closing

argument referencing the Lankford and Higa trials.

The DPA then explained why Dr. Happy’s contraction band

necrosis analysis was the most plausible.

In Udo’s closing argument, Udo described the case as

between two experts, arguing that (1) the attacks on Dr. Navin’s

reputation and credibility were not warranted; (2) Dr. Happy was

self-interested; and (3) Kingston’s testimony was not credible.

This was a mutual affray, Udo emphasized, and Udo never intended

for Wollaston to die.

On rebuttal, the State reiterated that Dr. Navin’s

testimony was “for sale” in Lankford and Higa, as well as “when

he testifies for the defense here.” The State concluded by

arguing the credible evidence demonstrated beyond a reasonable

doubt that Wollaston’s death was due to a blunt force trauma to

the head and neck, not a heart attack.

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3. Verdict and Sentence

The jury returned a verdict finding Udo “guilty of the

included offense of Manslaughter[,] Recklessly Causing Death” in

violation of HRS § 707-702(1)(a).11

A further jury hearing was held on the State’s request for

an extended term sentence. The jury could not reach a unanimous

decision and the court declared a mistrial. On September 13,

2016, the circuit court then sentenced Udo to twenty years of

incarceration with credit for time served, to run concurrently

with any other term served.12 After the court announced Udo’s

sentence, defense counsel made, and was granted, a motion to

withdraw and for appointment of appellate counsel. Udo appealed

to the ICA through substitute counsel.

C. ICA Proceedings

1. Opening Brief

On appeal, Udo asserted “multiple acts of misconduct” by

the DPA.13 Udo contended that prosecutorial misconduct may

11 Udo filed, but was denied, a motion for new trial. The circuit court’s denial of her motion for new trial was not raised on appeal to the ICA or to this court. 12 The circuit court also required Udo to pay $10,000 restitution to the Crime Victim Compensation Commission, a $105 Crime Victim Compensation Fee, and $100 Internet Crimes Against Children Fee. 13 Udo also alleged on appeal that the failure of trial counsel to object to prosecutorial misconduct constituted ineffective assistance of counsel. The ICA ruled against Udo. Based on our ruling vacating the conviction based on prosecutorial misconduct, we need not and do not further address the ineffective assistance allegation.

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provide grounds for a new trial if there is a reasonable

possibility that the misconduct complained of might have

contributed to the conviction, and was necessary in her case

based on the Lankford and Higa questions and closing remarks,

citing State v. Balisbisana, 83 Hawaiʻi 109, 114, 924 P.2d 1215,

1220 (1996).

Udo contended the Lankford Question and Higa Questions were

irrelevant and prejudicial, and should have been excluded under

the Hawai̒i Rules of Evidence (“HRE”) Rules 401 (1980), 402

(1980), and 403 (1980), because they did not elicit any

admissible evidence that was relevant to Dr. Navin’s

truthfulness, expert qualifications, or methodology. Udo argued

the Lankford Question misled the jury by suggesting Dr. Navin

should have corroborated the facts of the hypothetical in that

case but did not. The Higa Questions, Udo contended, also

misled the jury. Udo also argued that in the DPA’s closing

argument, the Lankford Closing Remark and Higa Closing Remark

also misled the jury and “unfairly exposed Dr. Navin to the

scorn of the jury.”14

14 Udo alleged two additional instances of prosecutorial misconduct that are not raised in Udo’s application to this court: (1) “In his rebuttal argument, the DPA expressed his personal opinion that Dr. Navin was not credible;” and (2) “In his closing argument, the DPA attacked Dr. Navin’s integrity by making disparaging remarks about him.” As to the second, Udo challenged the State’s following statements: Dr. Navin “is on the speed dial for the criminal defense bar here in Honolulu;” “if Dr. Navin does not give (continued. . .) 29 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

The Lankford Closing Remark, Udo asserted, improperly

indicated that Dr. Navin was supposed to corroborate the facts

underlying the hypothetical posed to him in that case, and the

Higa Closing Remark misled the jury about Dr. Navin’s purpose

for testifying in that case.

The DPA’s misconduct, Udo argued, was not harmless because

it undermined the credibility of Dr. Navin, Udo’s sole witness,

whose testimony was essential to establish that Udo’s conduct

was not the direct cause of Wollaston’s death. The alleged

misconduct, Udo argued, “aroused jury resentment and hostility

toward [Dr. Navin].” The instances of misconduct were not

cured, Udo asserted, “because defense counsel did not object to

any of them,” and the misconduct warranted appellate review and

a determination of mistrial because the DPA’s conduct deprived

Udo of her right to a fair trial.

(. . . continued) an opinion that’s favorable to his paying client, his phone stops ringing. That’s the way it works.”; Dr. Navin is “a paid defense witness whose opinion is for sale. That’s the way it is.”; and “When Dr. Navin stops presenting expert testimony favorable to the defense in criminal cases, his phone stops ringing. Clearly he wants his phone to ring.” Although the DPA was free to cross-examine Dr. Navin on his alleged defense bias and argue the same during closing, we note that these comments may have gone beyond the reasonable inferences to be drawn from the record. Udo also cited under this point of error portions of the DPA’s closing argument which stated that Dr. Navin “made up” the information that Wollaston was “unresponsive” and “just blocking punches” after she fell because that information was not included in Kingston’s testimony and Dr. Navin could not say at trial where in the record that information was provided. That issue is not raised in Udo’s application to this court.

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2. Answering Brief

The State responded that Udo waived any arguments related

to the Lankford Question and Higa Questions because Udo did not

object to those questions at trial. Without conceding that

arguments related to those cases were not waived, the State

addressed the merits of Udo’s claims of prosecutorial

misconduct.

First, the State argued that under HRE Rule 609.1 (1980),

“[b]ias, interest, or motive is always relevant” and “can be

raised at any time by the witness’s testimony or other

evidence,” quoting State v. Estrada, 69 Haw. 204, 220, 738 P.2d

812, 823 (1987). The State maintained that it was not improper

for the DPA to use the Lankford and Higa cases “to demonstrate

Dr. Navin’s bias in cases involving the death of another

person,” especially given that Dr. Navin had only ever testified

for the defense in cases involving death of another person. The

State asserted that Dr. Navin’s testimony in those cases was

clearly helpful to the defense, and was relevant and probative

to a determination of Dr. Navin’s credibility in the present

Lankford was relevant, the State argued, because in that

case, Dr. Navin testified based upon a hypothetical that the

decedent could have died from a brainstem injury. In contrast,

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the State maintained, in the instant case Dr. Navin testified

that Wollaston’s brainstem injury “could have contributed” to

Wollaston’s death, but indicated he did not have enough

information to make that determination. Both cases, the State

argued, involved a head injury, but Dr. Navin was willing to

venture an opinion in the Lankford trial without any

corroborated facts and was unwilling to do so in the instant

case, indicating a defense bias.

Similarly, the State argued, Dr. Navin testified that in

the Higa trial his purpose was to offer testimony on whether the

infant could have been killed prior to being thrown off the

overpass. The State maintained that in the instant case, Dr.

Navin testified that Wollaston died of a heart attack and her

intracranial injuries were “all secondary.” Thus, the State

argued, in both Higa and the instant case, Dr. Navin testified

to a theory of death that preceded the cause of death advanced

by the prosecution, thereby favoring the defense and making his

testimony in Higa relevant and more probative of Dr. Navin’s

credibility than prejudicial to Udo’s defense. Additionally,

the State asserted, Dr. Navin himself characterized Higa as “the

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kid off the bridge” case and it was not improper for the DPA to

describe the circumstances of the case for context.15

Moreover, the State argued, the DPA’s closing argument

statements related to the Lankford and Higa trials were not

improper and did not resort to falsehood and misrepresentation.16

The State asserted that the DPA drew reasonable inferences from

Dr. Navin’s testimony regarding his testimony in the Lankford

trial that Dr. Navin exhibited a defense bias by relying on the

defendant’s version of the events to state that the decedent’s

death could have been caused by a torn brainstem. The State

also asserted it was reasonable to infer from Dr. Navin’s

testimony that his purpose in the Higa trial was to “provide a

defense for the accused murderer that a murder couldn’t have

happened based on throwing a baby off the overpass because the

baby could have been dead already.” Neither comment, the State

15 The State also countered Udo’s assertion that the DPA improperly expressed his personal opinion during rebuttal when he said, “Dr. Navin’s testimony is for sale” and “[t]hat’s the unassailable truth.” That issue is not raised in Udo’s application to this court. 16 The State also argued the same in relation to Udo’s contention that the DPA made misleading comments related to Dr. Navin “admitting” being retained by another defense attorney for the defense but not testifying because his testimony would not have been helpful to the defense in a case. The State acknowledges that the DPA “overstated the evidence” based on Dr. Navin’s testimony, but that the comment did not rise to the level of plain error and was made within the context of an “otherwise appropriate argument.” The ICA held that the comment was improper, but harmless. Udo, SDO at 15. That issue is not raised in Udo’s application to this court, but we agree with the ICA that the comment was improper.

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argued, was improper, and did not constitute falsehood and

misrepresentation.17

The State contended that even if any of the DPA’s conduct

was improper, the conduct did not rise to the level of plain

error. The State summarized the evidence presented at trial,

and asserted that any error would be harmless beyond a

reasonable doubt because the evidence establishing Wollaston

died due to blunt force injuries was overwhelmingly stronger

than the evidence supporting Dr. Navin’s opinion regarding the

cause of death.18

3. ICA’s SDO

In an SDO, the ICA affirmed Udo’s conviction and sentence.

Udo, SDO at 1.

The ICA held that the DPA’s cross-examination of Dr. Navin

regarding his testimonies in the Lankford and Higa trials was

not improper. Udo, SDO at 5. Under HRE Rule 609.1, the ICA

opined that bias, interest, or motive is always relevant and an

expert witness’s testimony in other cases may be used to

17 The State also contended the DPA’s alleged “disparaging remarks” about Dr. Navin in his closing argument were not improper, were reasonably drawn inferences from the evidence presented, and, “when viewed in context,” “were hyperbole, colloquialisms, or figures of speech reflecting the DPA’s interpretation of the evidence to emphasize Dr. Navin’s bias . . . .” 18 Pursuant to Hawaiʻi Rules of Appellate Procedure Rule 28(d) (2016), Udo did not file a reply brief.

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demonstrate the expert’s defense bias. Udo, SDO at 4 (citations

omitted).

According to the ICA, Dr. Navin’s testimony was admissible

and he had the opportunity to explain or deny the State’s

allegations with respect to his prior testimony. Udo, SDO at 5.

Although the ICA agreed that the DPA’s characterization of

Lankford and Higa was unnecessarily provocative, it opined the

inquiry was generally pertinent to Udo’s case and “did not rise

to the level of misconduct in Rogan . . . .” Udo, SDO at 5.

The ICA thus held that the DPA’s cross-examination of Dr. Navin

about his testimony in the Lankford and Higa cases did not

constitute prosecutorial misconduct. Udo, SDO at 5.

As to the Lankford Closing Remark, the ICA stated the

reference to the lack of independent corroboration was

potentially inflammatory, but held it was not improper because

the defense had the opportunity but failed to object or remind

the jury that the Lankford testimony was based upon a

hypothetical. Udo, SDO at 8.

Regarding the Higa Closing Remark, the ICA opined the

remarks tended to unnecessarily highlight the odious nature of

the facts in the Higa case, but were not inconsistent with Dr.

Navin’s testimony and were pertinent to Dr. Navin’s credibility.

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Udo, SDO at 8. Thus, the ICA held, the remark did not

constitute prosecutorial misconduct. Udo, SDO at 8.

III. Standard of Review

As we stated in State v. Wakisaka,

If defense counsel does not object at trial to prosecutorial misconduct, this court may nevertheless recognize such misconduct if plainly erroneous. “We may recognize plain error when the error committed affects substantial rights of the defendant.” State v. Cordeiro, 99 Hawaiʻi 390, 405, 56 P.3d 692, 707 (2002) (citations and internal quotation marks omitted). See also Hawaiʻi Rules of Penal Procedure (HRPP) Rule 52(b) (2003) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). We will not overturn a defendant’s conviction on the basis of plainly erroneous prosecutorial misconduct, however, unless “there is a reasonable possibility that the misconduct complained of might have contributed to the conviction.” State v. Rogan, 91 Hawaiʻi 405, 412, 984 P.2d 1231, 1238 (1999). As we stated in State v. Sawyer:

Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of “whether there is a reasonable possibility that the error complained of might have contributed to the conviction.” Factors considered are: (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant.

88 Hawaiʻi 325, 329 n.6, 966 P.2d 637, 641 n.6 (1998) (quoting State v. Balisbisana, 83 Hawaiʻi 109, 114, 924 P.2d 1215, 1220 (1996)) (citations omitted).

102 Hawaiʻi 504, 513, 78 P.3d 317, 326 (2003).

IV. Discussion

A. Overview of Prosecutorial Misconduct Analysis

On certiorari, Udo contends the ICA erred in rejecting her

claim that the DPA engaged in four instances of prosecutorial 36 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

misconduct, which deprived her of her right to a fair trial:

the Lankford Question, the Lankford Closing Remark, the Higa

Questions, and the Higa Closing Remark (collectively the

“Lankford and Higa References”). Udo did not object to the

Lankford and Higa References at trial, but requests that this

court recognize plain error and vacate her conviction and remand

her case for a new trial.

The term “prosecutorial misconduct” is a legal term of art

that refers to any improper action committed by a prosecutor,

however harmless or unintentional. State v. Maluia, 107 Hawaiʻi

20, 25, 108 P.3d 974, 979 (2005). “If defense counsel does not

object at trial to prosecutorial misconduct, this court may

nevertheless recognize such misconduct if plainly erroneous,”

meaning that the error affected a defendant’s substantial

rights. Wakisaka, 102 Hawaiʻi at 513, 78 P.3d at 326. See also

HRPP Rule 52(b) (2003) (“Plain errors or defects affecting

substantial rights may be noticed although they were not brought

to the attention of the court.”). A defendant’s substantial

rights include the right to a fair trial. State v. Fields, 115

Hawaiʻi 503, 538, 168 P.3d 955, 990 (2007). Thus, prosecutorial

misconduct provides grounds for a new trial if a prosecutor’s

actions denied the defendant a fair trial. State v. Pasene, 144

Hawaiʻi 339, 364, 439 P.3d 864, 889 (2019).

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Whenever a defendant alleges prosecutorial misconduct, this

court must first decide: (1) whether the conduct was improper;

(2) if the conduct was improper, whether the misconduct was

harmless beyond a reasonable doubt; and (3) if the misconduct

was not harmless, whether the misconduct was so egregious as to

bar reprosecution. Maluia, 107 Hawaiʻi at 25-26, 108 P.3d at

979-80. To address the second factor, whether alleged

misconduct is harmless beyond a reasonable doubt, this court

considers three prongs, “the nature of the alleged misconduct,

the promptness or lack of a curative instruction, and the

strength or weakness of the evidence against the defendant.”

State v. Iuli, 101 Hawai‘i 196, 208, 65 P.3d 143, 155 (2003)

(citations omitted). Prosecutorial misconduct is not harmless

beyond a reasonable doubt if “there is a reasonable possibility

that the misconduct complained of might have contributed to the

conviction.” Wakisaka, 102 Hawai̒i at 513, 78 P.3d at 326.

If the conduct was improper and not harmless beyond a

reasonable doubt, then the prosecutor’s actions denied the

defendant a fair trial, providing grounds for a new trial. We

must then also address the third factor of the prosecutorial

misconduct analysis: whether the misconduct was so egregious as

to bar reprosecution.

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B. Whether the Conduct Was Improper

The first factor of the prosecutorial misconduct analysis

is determining whether the DPA’s conduct was improper. In

evaluating whether a prosecutor’s conduct was proper, “this

court considers the nature of the challenged conduct in relation

to our criminal justice system generally and the special role of

the prosecutor specifically.” State v. Underwood, 142 Hawai‘i

317, 325, 418 P.3d 658, 666 (2018) (citing Rogan, 91 Hawai‘i at

412-15, 984 P.2d at 1238-41).

Udo asserts the Lankford Question (the DPA’s cross-

examination as to whether Dr. Navin “took the word of the

accused murderer without any independent corroboration to

support his version of events” when Dr. Navin testified based on

a hypothetical that someone in the decedent’s circumstances

could have died of a brainstem injury) constituted prosecutorial

misconduct because the questioning was inflammatory, irrelevant,

and prejudicial. The State argues the Lankford Question was a

permissible attack on Dr. Navin’s credibility to establish bias

by demonstrating that Dr. Navin would “tailor” his opinion to

assist the defense, even without evidence.

As to the Higa Questions (the DPA’s questioning implying

that Dr. Navin’s purpose in testifying in the Higa trial was to

say that the defendant “couldn’t be guilty of murder”), Udo

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argues Dr. Navin did not expressly or implicitly indicate his

purpose was to provide a defense for Matthew Higa. Udo argues

the Higa Questions were irrelevant and prejudicial and were only

meant to inflame the jury and create hostility towards Dr.

Navin. The State, in response, asserts that the Higa Questions

were relevant and probative of Dr. Navin’s defense bias and as

evidence that Dr. Navin is a “hired gun” for the defense

because, similar to Udo’s case, his testimony in Higa also

provided a causation defense for the defendant.

HRE Rule 702.1(a) (1984) provides that an expert witness

“may be cross-examined to the same extent as any other witness”

and, additionally, “may be cross-examined as to (1) the witness’

qualifications, (2) the subject to which the witness’ expert

testimony relates, and (3) the matter upon which the witness’

opinion is based and the reasons for the witness’ opinion.”

Pursuant to HRE Rule 609.1, “[t]he credibility of a witness may

be attacked by evidence of bias,” and extrinsic evidence of bias

is admissible on cross-examination if “the matter is brought to

the attention of the witness and the witness is afforded an

opportunity to explain or deny the matter.” We have noted,

“[b]ias, interest, or motive is always relevant under HRE Rule

609.1. So long as a proper foundation is laid, bias can be

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evidence.” Estrada, 69 Haw. at 220, 738 P.2d at 823 (citing

State v. Murphy, 59 Haw. 1, 575 P.2d 448 (1978)).

A prosecutor’s latitude in cross-examination, however,

remains limited by HRE Rule 403’s requirement that the probative

value of evidence substantially outweigh the danger of unfair

prejudicial effect of the evidence.19 More importantly, the

prosecutor has a duty to seek justice, not merely convict, and

to not use arguments calculated to inflame the passions of a

jury. Rogan, 91 Hawaiʻi at 412-13, 984 P.2d at 1238-39

(prosecutor has “duty to seek justice, to exercise the highest

good faith in the interest of the public” and “not use arguments

calculated to inflame the passions . . . of the jury.”)

(citations omitted).

The Lankford Question and Higa Questions had limited

probative value as evidence of Dr. Navin’s alleged defense bias.

The Lankford Question evidenced that Dr. Navin based his opinion

in the Lankford trial on “facts or data . . . perceived by or

made known to [him] at or before the hearing,” which is a

permissible manner of forming the bases of an expert opinion

19 HRE Rule 403 states as follows: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

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under HRE Rule 703 (1984).20 With respect to the Higa Questions,

Dr. Navin’s testimony in the Higa trial only went to the manner

and time of death advanced by the prosecution; it was not

testimony of whether the defendant in that case had actually

killed the infant. Even if Dr. Navin’s opinion formed the basis

of a causation defense, the fact that he did so provides little

support for the State’s assertion that Dr. Navin is a “hired

gun.” In fact, Dr. Navin testified that he had testified for

the State and for the defense over a hundred times each.21

The DPA’s questions were, however, highly and unfairly

prejudicial. The Lankford Question insinuated that it was

improper for Dr. Navin to have rendered an opinion based on

hypothetical facts provided to him when such questioning is

explicitly allowed by HRE Rule 703. The Lankford Question also

implied that it was improper for an expert to believe the story

of “an accused murderer.” To suggest that because someone is

20 HRE Rule 703, “Bases of opinion testimony by experts,” states as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court may, however, disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

21 See also note 14, supra.

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accused of a crime, an expert witness should not consider that

person’s version of events undermines the presumption of

innocence and is an insinuation which may constitute misconduct.

Cf. State v. Austin, 143 Hawai‘i 18, 40-41, 422 P.3d 18, 40-41

(2018) (“[T]he prosecutor’s remark regarding whether [the

defendant’s] testimony was corroborated by other evidence may

also have qualified as misconduct to the extent that it might

infer that [the defendant] had a burden to produce evidence

tending to corroborate his testimony.”).

Most importantly, however, the Lankford and Higa cases are

perhaps two of the most highly publicized, notorious death cases

in this jurisdiction’s recent history. To lay a foundation, the

prosecutor engaged Dr. Navin in a series of questions vividly

recalling the troubling and gruesome facts of those cases,

thereby linking Dr. Navin with notorious murder defendants. All

of the questions directed to Dr. Navin regarding the Lankford

and Higa cases may well have served to inflame the jury against

an expert who had testified for the defense in those cases.

Udo also challenges the Lankford Closing Remark and the

Higa Closing Remark as misconduct, again arguing that the

remarks were only intended to inflame the passions of the jury

and to create hostility towards Dr. Navin. The State contends

the ICA correctly held that the DPA was within the wide latitude

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afforded to prosecutors in closing argument to draw inferences

from the testimony.

Granted, it is well-established that prosecutors are

afforded wide latitude in closing to discuss the evidence, and

may “state, discuss, and comment on the evidence as well as to

draw all reasonable inferences from the evidence.” State v.

Clark, 83 Hawai‘i 289, 304, 926 P.2d 194, 209 (1996) (citations

omitted). In all stages of trial, however, a prosecutor remains

bound by the duty to “seek justice, not merely to convict.”

Rogan, 91 Hawaiʻi at 412, 984 P.2d at 1238 (citations omitted).

The Minnesota Supreme Court addressed a situation similar

to this case in State v. Blasus, 445 N.W.2d 535 (Minn. 1989).

It held a district court erred when it allowed cross-examination

of two defense expert witnesses on their past testimony in cases

where “[t]he murders referred to were gruesome and reprehensible

. . . .” 445 N.W.2d at 540. Although the State of Minnesota

argued the cross-examination was necessary to demonstrate the

expert witnesses’ defense bias, the Blasus court found the

prosecution had already elicited testimony from the experts to

establish a defense bias, such as the number of times they had

testified for the defense. 445 N.W.2d at 539. The Blasus court

explained that it recognized the value of revealing witness

bias, but prosecutors are more limited than their civil

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counterparts in cross-examination because of their mandate to

seek justice, “not merely to convict”:

In assessing the propriety of the prosecutor’s cross- examination, we are keenly aware of the need to preserve counsel’s ability to question adverse witnesses. The truth-seeking function of the courts is best served when counsel is allowed to seek and reveal hidden prejudice, bias, or other factors which may color a witness’s testimony and affect its reliability. In the civil context, where the need for certainty is less, an appellate court may be less inclined to intrude on the trial court’s discretion in weighing prejudicial effect of evidence against its probative value.

By its very nature, however, the criminal context is different. Attorneys who prosecute criminal cases are charged with responsibilities to the court, to the constitution, and to the defendant not present in civil cases. “The duty of the prosecutor is to seek justice, not merely to convict.” ABA Standards Relating to the Prosecution Function, Standard 1.1(c); See also, National District Attorneys Association, National Prosecution Standards, Standard 176 and commentary p. 248-249 (1977)[.] These additional responsibilities limit the scope of proper conduct of prosecutors to a narrower field than is available to their civil law counterparts.

445 N.W.2d at 539-40.

Accordingly, the Blasus court found “the prosecution

intended the jury to mentally link appellant with the

frightening violence of these other cases” through the cross-

examination regarding the experts’ testimony as to “gruesome and

reprehensible” murders. 445 N.W.2d at 540. Thus, the Blasus

court held “the prosecutor's questioning of defense expert

witnesses as to their prior participation in specific,

notorious[,] and highly publicized murder cases was improper

. . . .” 445 N.W.2d at 541.

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As this court recently reiterated in Pasene, “prosecutors

‘should not use arguments calculated to inflame the passions or

prejudices of the jury[,]’ as ‘[a]rguments that rely on . . .

prejudices of the jurors introduce into the trial elements of

irrelevance and irrationality that cannot be tolerated.’”

Pasene, 144 Hawaiʻi at 370, 439 P.3d at 895 (quoting Rogan, 91

Hawai‘i at 413, 984 P.2d at 1239). In Pasene, a prosecutor

likened the presumption of innocence applied to the defendant in

that case as the same presumption applied to John Gotti and

Charles Manson. 144 Hawaiʻi at 357, 439 P.3d at 882. An

objection was made by defense counsel and immediately sustained;

the court instructed the jury to disregard the statements. Id.

We held that although it could not be said that the DPA’s

statement “was calculated to inflame the passions or prejudices

of the jury, that was likely the result.” 144 Hawaiʻi at 370,

439 P.3d at 895 (emphasis in original). We explained that

“referencing such notorious examples of heinous murderers during

the State’s rebuttal closing in a murder trial may lead the jury

to react based on emotion, rather than in an objective way, and

threatens to introduce ‘an atmosphere of bias and prejudice’ as

the jury enters deliberation.” Id. (quoting State v. Kahalewai,

55 Haw. 127, 129, 516 P.2d 336, 338 (1973)).

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What is important in this case is that whether or not the

references “were calculated to inflame the passions or

prejudices of the jury, that was the likely result.” 144 Hawaiʻi

at 370, 439 P.3d at 895 (emphasis in original). “As an officer

of the court, the prosecutor is expected to know and abide by

the standards of professional conduct, to operate in accordance

with the interests of justice, and to act with due regard for

fairness and the rights of the defendant.” Pasene, 144 Hawaiʻi

at 371, 439 P.3d at 896 (citing STANDARDS FOR CRIMINAL JUSTICE,

Standards No. 3-1.2, 3-1.9 (ABA 2015)). The Lankford and Higa

References may well have served to inflame the passions of the

jury against an expert who had testified for the defense in

those cases. We therefore conclude that the Lankford and Higa

References were improper.

We pause in our analysis to note that the ICA stated the

Lankford and Higa References were not improper because they did

not rise “to the level of misconduct in Rogan . . . .” Udo, SDO

at 5. In Rogan, we held a prosecutor’s rebuttal argument

statement -- “This is every mother’s nightmare. Leave your

daughter for an hour and a half, and you walk back in, and

here’s some black, military guy on top of your daughter” --

constituted misconduct because it was an impermissible appeal to

racial prejudice. Rogan, 91 Hawaiʻi at 412, 984 P.2d at 1238.

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We held that the misconduct was so egregious that it was

necessary to reverse the defendant’s judgment of conviction and

sentence and that retrial was barred by the double jeopardy

clause of article I, section 10 of the Hawai‘i Constitution. 91

Hawaiʻi at 408, 984 P.2d at 1234.

Rogan is not a floor for establishing whether challenged

prosecutorial conduct is improper, but is rather illustrative of

an extreme instance of misconduct. As we explained in Maluia,

“the term ‘prosecutorial misconduct’ is a legal term of art that

refers to any improper action committed by a prosecutor, however

harmless or unintentional.” 107 Hawaiʻi at 25, 108 P.3d at 979

(emphasis in original). For example, we have also found that a

prosecutor’s remarks or questions were improper when they

pointed to the consequences of a jury’s verdict, State v. Tuua,

125 Hawaiʻi 10, 14, 250 P.3d 273, 277 (2011); did not draw

legitimate inferences from the testimony at trial, State v.

Marsh, 68 Haw. 659, 660, 728 P.2d 1301, 1302 (1986); or

expressed a personal opinion as to what an “innocent” person who

have said or done, State v. Mainaaupo, 117 Hawaiʻi 235, 254–55,

178 P.3d 1, 20–21 (2008).

Rather, “the level of misconduct in Rogan” was relevant to

the third factor of the prosecutorial misconduct analysis, i.e.,

(1) if prosecutorial misconduct occurred (2) that was not

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harmless beyond a reasonable doubt, (3) “whether the misconduct

was so egregious as to bar reprosecution.” Maluia, 107 Hawaiʻi

at 25-26, 108 P.3d at 979-80. In Rogan, it was. Thus, the ICA

erred in considering Rogan as a threshold in addressing whether

misconduct occurred, which is the first factor of the

prosecutorial misconduct analysis.

C. Whether the Misconduct Was Harmless Beyond a Reasonable Doubt

In addressing the second factor of the prosecutorial

misconduct analysis, whether alleged misconduct was plain error

affecting Udo’s substantial rights and therefore not harmless

beyond a reasonable doubt, this court considers three prongs:

“the nature of the alleged misconduct, the promptness or lack of

a curative instruction, and the strength or weakness of the

evidence against the defendant.” Iuli, 101 Hawai‘i at 208, 65

P.3d at 155 (citations omitted).

1. Nature of the misconduct

As we noted earlier, “‘prosecutorial misconduct’ is a legal

term of art that refers to any improper action committed by a

prosecutor, however harmless or unintentional.” Maluia, 107

Hawaiʻi at 25, 108 P.3d at 979. We further stated in Maluia:

[T]here are varying degrees of prosecutorial misconduct . . . . [M]ost cases . . . do not involve prosecutors who intend to eviscerate the defendant’s constitutional and statutory rights . . . .

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Nevertheless, we decline to create a separate category of prosecutorial “mistake” or “error.” There are three reasons why we believe that our current method of analysis -- in which all improper conduct is labeled “prosecutorial misconduct” -- is more appropriate.

First, there is no need to create separate categories because this court already distinguishes innocuous prosecutorial misconduct from more serious deceitful behavior . . . . In sum, whenever a defendant alleges prosecutorial misconduct, this court must decide: (1) whether the conduct was improper; (2) if the conduct was improper, whether the misconduct was harmless beyond a reasonable doubt; and (3) if the misconduct was not harmless, whether the misconduct was so egregious as to bar reprosecution. In the course of making these three determinations, the seriousness of the misconduct becomes evident, and we need not attach a separate label for our disposition to be clear. Consequently, a separate label for “misconduct” cases and “error” cases is unnecessary.

Second, a finding of “prosecutorial misconduct” is not equivalent to a finding of “professional misconduct” pursuant to the Hawai̒i Rules of Professional Conduct (HRPC), and a prosecutor need not face disciplinary sanctions merely because we have used the term “prosecutorial misconduct.” . . . .

Third, we believe that separate nomenclature for different types of prosecutorial misconduct would lead to protracted litigation over semantics; this would place an additional burden on our courts with no corresponding benefit.

Maluia, 107 Hawaiʻi at 25-26, 108 P.3d at 979-80.

As in Blasus, the DPA’s conduct in this case “mentally

link[ed] [the defendant] with the frightening violence of these

other cases” through the cross-examination regarding the

experts’ testimony as to “gruesome and reprehensible” murders,

and was improper for the reasons explained. 445 N.W.2d at 540.

Also, Dr. Navin was Udo’s only witness and was critical to her

defense. Therefore, as in Pasene, this prong weighs in favor of

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vacating Udo’s conviction. Pasene, 144 Hawaiʻi at 371, 439 P.3d

at 896.

2. Promptness or Lack of a Curative Instruction

As to the second prong of the harmless beyond a reasonable

doubt analysis, there was no objection and the court did not

provide any curative instruction after the improper Lankford and

Higa References. In Pasene, there was an objection and curative

instruction given for the prosecutor’s brief likening of the

defendant to John Gotti and Charles Manson; we noted that the

curative instruction, however, “may not have sufficiently

negated the prejudicial impact of the DPA’s statement.” 144

Hawaiʻi at 370-71, 439 P.3d at 895-96. Unlike in Pasene, at

Udo’s trial (1) there were multiple references to Lankford and

Higa, both local cases in which Dr. Navin had testified; and (2)

Udo’s defense rested entirely on the trustworthiness of Dr.

Navin’s testimony. Thus, even if a curative instruction had

been given, “it may not have sufficiently negated the

prejudicial impact of the DPA’s statement[s].” See id. The

second prong therefore also weighs heavily in favor of a finding

of that the misconduct was not harmless beyond a reasonable

doubt. See Wakisaka, 102 Hawaiʻi at 516, 78 P.3d at 329 (lack of

curative instruction weighed in defendant’s favor).

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3. Strength or Weakness of Evidence

In considering the final prong of the harmless beyond a

reasonable doubt analysis, we review the evidence presented to

the jury to determine whether the evidence was so overwhelmingly

strong that there is not “a reasonable possibility that the

error complained of might have contributed to” Udo’s conviction.

Underwood, 142 Hawai‘i at 329, 418 P.3d at 670 (citation

The jury found Udo guilty of the included offense of

reckless manslaughter in violation of HRS § 707-702(1)(a).

Thus, the jury determined that Udo caused Wollaston’s death, but

did so with a less culpable state of mind than that necessary

for second degree murder. Compare HRS § 707-702(a)(1) with HRS

§ 707-701.5.

Dr. Navin, Udo’s only witness, opined that Wollaston’s

death could have been caused by a heart attack and not by the

injuries inflicted by Udo, as explained in more detail in

Section II.B.1.b above.

On the other hand, the State elicited the following

evidence to support Udo’s manslaughter conviction.

First, there was no real dispute as to Udo’s identity as

the woman who attacked Wollaston and that Wollaston died the

morning of July 21, 2014. Regarding the cause of death,

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Paramedic Kihe testified (1) Wollaston appeared to have died

from a “closed head injury;” and (2) Wollaston did not exhibit

signs of a heart attack. Kingston also described that Wollaston

had “no motion” after the “final blow,” and his testimony of

Wollaston’s behavior did not include any of the tell-tale signs

Kihe and Dr. Navin explained for someone experiencing a heart

attack (chest pain, shortness of breath, nausea, vomiting, and

dizziness).

Also, Dr. Happy, the medical examiner and board-certified

in anatomical and forensic pathology, not only testified

Wollaston had several head injuries consistent with a punch,

kick, or stomp, including a laceration in her brainstem and

hemorrhaging in multiple places in her brain, he also opined

that Wollaston’s death was caused by “blunt force head and neck

injury,” and the “mechanism of death” was subarachnoid

hemorrhaging around the brainstem.

The State also presented evidence to discredit Dr. Navin’s

theory that Wollaston was experiencing a heart attack prior to

entering into the altercation with Udo and his theory that the

increased stress of the fight caused her death. Dr. Navin’s

opinion was based on Wollaston’s alleged long history of

alcoholism, drug abuse, including marijuana and

methamphetamines, and substandard living experience as a

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constellation of factors leading to the heart attack. The

State, however, also elicited evidence during cross-examination

of Dr. Navin that (1) contraction band necrosis is not a

specific finding and could be attributed to epinephrine or other

causes; (2) a neck injury like Wollaston’s could be fatal; (3)

Dr. Navin did not examine the slide of Wollaston’s brainstem

prior to submitting his expert report; and (4) Wollaston’s blood

contained an inactive component of THC not likely to increase

risk of a heart attack.

Through Dr. Happy’s rebuttal examination, the State also

presented evidence that (1) Wollaston had four different sources

of epinephrine on the morning of July 21, 2014; (2) Wollaston

did not have atherosclerosis, a condition possibly necessary to

support Dr. Navin’s timeline that Wollaston began experiencing a

heart attack four hours prior to the altercation with Udo; (3)

Wollaston’s increased heart weight was due to hypertension, a

condition which does not contribute to heart attack risk; (4)

Wollaston’s heart and liver did not evince chronic alcoholism;

and (5) there was nothing in Wollaston’s medical record

indicating methamphetamine use. The circuit court had also

instructed the jury to disregard any statements Dr. Navin made

related to Wollaston only “blocking punches” after she fell,

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which Dr. Navin repeatedly testified was a basis for his opinion

that Wollaston was experiencing a heart attack.

Taken together, the State presented strong evidence that

Wollaston died from blunt force head injuries recklessly caused

by Udo. The evidence, however, is not so overwhelmingly strong

to meet the high threshold of harmless beyond a reasonable

doubt. The only eyewitness to the incident to testify for the

State, Kingston, was a friend of the decedent and had been

consuming significant amounts of vodka leading up to the early

morning incident. Kingston testified that Wollaston voluntarily

entered into a fight with Udo, then Udo and Wollaston fell over

Clinton. Although he testified that Udo kicked Wollaston in the

head while she was down several times, Kingston also testified

that “to the final blow [Wollaston] was motionless.” He did not

testify that Wollaston was conscious after falling to the ground

with Udo.

Dr. Navin, Udo’s only witness, then opined regarding

another possible cause of Wollaston’s death. He testified that

upon reviewing Wollaston’s autopsy report, he noticed

indications of previous heart damage, including the presence of

boxcar nuclei, which could increase the risk of heart attack.

He also testified that Wollaston’s blood alcohol level was

0.278, and there was evidence of marijuana in high levels, which

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could increase the risk of heart attack. He also testified that

Wollaston’s heart was abnormally large, and that the contraction

band necrosis revealed after he had requested reslicing of the

paraffin slides was more likely from a heart attack.

Therefore, it cannot be said beyond a reasonable doubt that

the DPA’s inflammatory questions and closing argument did not

draw unfair scorn and prejudice to Udo’s sole witness upon whose

testimony her defense rested. See Tuua, 125 Hawaiʻi at 17, 250

P.3d at 280 (holding that where the credibility of witnesses in

trial was pivotal, improper comments impugning credibility

weighed against harmlessness). Thus, there is a reasonable

possibility that the misconduct might have contributed to Udo’s

conviction. See Underwood, 142 Hawaiʻi at 328, 418 P.3d at 669.

As a result, the prosecutorial misconduct in this case was

not harmless beyond a reasonable doubt and affected Udo’s right

to a fair trial. We therefore notice plain error for the

violation of Udo’s substantial right to a fair trial.

D. Whether the Misconduct Was so Egregious as to Bar Reprosecution

Having determined that the first two factors of the

prosecutorial misconduct analysis have established prosecutorial

misconduct requiring vacation of Udo’s conviction, we must now

address the third factor, whether the misconduct was so

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egregious as to bar reprosecution. Maluia, 107 Hawaiʻi at 25-26,

108 P.3d at 979-80.

Although we hold that the DPA’s misconduct deprived Udo of

her right to a fair trial, we do not find that the conduct was

so egregious as to bar retrial under the double jeopardy

protections of article I, section 10 of the Hawai‘i Constitution.

See Underwood, 142 Hawai‘i at 329, 418 P.3d at 670 (“Our

decisions do not provide bright line rules for determining when

misconduct is sufficiently egregious to bar retrial, but we have

emphasized that it is a ‘much higher standard than that used to

determine whether a defendant is entitled to a new trial.’”).

V. Conclusion

For the reasons discussed, we therefore vacate the ICA’s

August 3, 2018 Judgment on Appeal and the circuit court’s

September 13, 2016 Judgment of Conviction and Sentence, and

remand the case to the circuit court for further proceedings

consistent with this opinion.

William H. Jameson, Jr. /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Brandon H. Ito and Sonja P. McCullen /s/ Sabrina S. McKenna for respondent /s/ Richard W. Pollack

/s/ Michael D. Wilson