State v. Udo
| Decision Date | 16 December 2019 |
| Docket Number | SCWC-16-0000793 |
| Citation | 454 P.3d 460 |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Kimberly J. UDO, Petitioner/Defendant-Appellant. |
| Court | Hawaii Supreme Court |
William H. Jameson, Jr. for petitioner
Brandon H. Ito and Sonja P. McCullen for respondent
This appeal arises from Kimberly J. Udo's ("Udo") manslaughter conviction in violation of Hawai‘i 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 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 Hawai‘i 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 Hawai‘i 405, 984 P.2d 1231 (1999) ]." See State v. Udo, CAAP-16-000793, at 5-6, 7, 2018 WL 3199255 (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 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.
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.
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.
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 that on July 21, 2014, Udo intentionally or knowingly killed Wollaston.5
A jury trial was held between February 22 and March 3, 2016 before the circuit court.6
In summary, various witnesses called by the State testified as follows regarding evidence relevant to the questions on certiorari.
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 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 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, Then Wollaston 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 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 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...
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