State v. Udo.

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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 . . . .”
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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
2
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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. . .)
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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. . .)
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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. . .)
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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
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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. . .)
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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
case.
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
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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
raised at any time by the witness’s testimony or other
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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
omitted).
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
57