No. SCWC-16-0000793, Thursday, March 7, 2019, 8:45 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. KIMBERLY J. UDO, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for petitioner:

William H. Jameson, Jr., Deputy Public Defender

Attorneys for appellee:

Brandon H. Ito and Sonja P. McCullen, Deputy Prosecuting Attorneys

NOTE: Order accepting Application for Writ of Certiorari, filed 12/04/18.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

On July 23, 2014, a grand jury indicted Kimberly J. Udo (“Udo”) with the offense of murder in the second degree. The indictment stemmed from an incident occurring in the early morning hours of July 21, 2014 during which the State of Hawaii (“State”) alleged Udo knowingly or intentionally killed Sandra Wollaston (“Wollaston”).

A jury trial was held in the Circuit Court of the First Circuit (“circuit court”). Udo presented only one witness, Dr. James Navin (“Dr. Navin”), who testified as a medical expert that Wollaston’s death was likely caused by a heart attack. On cross-examination, the trial Deputy Prosecuting Attorney (“DPA”) questioned Dr. Navin about his testimony for other defendants in two murder cases, State v. Lankford, 2011 WL 1836716 (Haw. App. May 13, 2011) (SDO) (“Lankford”) and State v. Higa, 126 Hawaii 247, 269 P.3d 782 (App. 2012) (“Higa”). The DPA’s cross-examination (1) insinuated that in Lankford, Dr. Navin failed to corroborate the facts posed to him by the “accused murderer,” and (2) questioned whether Dr. Navin’s purpose of testifying in Higa “was to say that the defendant, Matthew Higa, couldn’t possibly be guilty of murder because the baby he threw off the overpass was already dead when it hit the pavement[.]” In closing argument, the State again referenced Dr. Navin’s testimony in those cases. Udo’s counsel did not object to the cross-examination or the closing argument statements. The jury returned a unanimous verdict finding Udo guilty of the offense of manslaughter for recklessly causing the death of another person. On September 14, 2016, the circuit court sentenced Udo to an indeterminate term of twenty years of incarceration. Udo timely appealed her Conviction and Sentence to the Intermediate Court of Appeals (“ICA”).

On appeal, Udo contended the DPA engaged in multiple instances of prosecutorial misconduct during the jury trial, including inflaming the passions of the jury by cross-examining Dr. Navin about his testimony in Lankford and Higa, and again making statements about Dr. Navin’s testimony in those cases in closing argument. Udo also argued she received ineffective assistance of counsel depriving her of her right to a fair trial due to her counsel’s failure to object to the Lankford and Higa questioning and remarks.

The ICA affirmed the circuit court’s conviction and sentencing of Udo, holding in pertinent part the cross-examination about Dr. Navin’s testimony in Lankford and Higa 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), another prosecutorial misconduct case. The ICA also held the DPA’s closing statements about Lankford and Higa were within the bounds of reasonable inference that a prosecutor may draw. The ICA also held Udo received effective assistance of counsel.

Udo timely applied for a writ of certiorari to this court. In her application, Udo alleges the ICA gravely erred in holding the DPA did not commit prosecutorial misconduct through his cross-examination and closing remarks regarding Dr. Navin’s testimony in Lankford and Higa. Udo also argues the ICA gravely erred by holding she was not deprived of her right to a fair trial due to ineffective assistance of counsel. Udo requests this court vacate her conviction and remand her case for a new trial.

The State argues the ICA correctly held the Lankford and Higa questions and closing remarks were relevant to establishing Dr. Navin’s defense bias or within the bounds of inference that a prosecutor may draw in closing argument, and thus not misconduct. The State also maintains that Udo’s counsel was effective because it was not necessary for him to object to the Lankford and Higa questions and closing argument, which the State argues were not improper.