State v. Abella. ( 2019 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
17-DEC-2019
08:22 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI I
---o0o---
STATE OF HAWAI I,
Respondent/Plaintiff-Appellee,
vs.
MICHAEL LIMJUCO ABELLA,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 14-1-1253)
DECEMBER 17, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
This case requires us to determine whether a defendant
may be convicted of homicide if the victim’s death was the
immediate result of a choice by the victim’s family to withdraw
medical care. Michael Limjuco Abella was charged with Murder in
the Second Degree after severely beating Shelton Higa on July 17,
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2014. Higa was comatose for more than a week thereafter; medical
professionals estimated that his chances of survival were slim,
and if he did survive, his quality of life would likely be poor.
He was removed from life support and declared dead on July 29,
2014, twelve days after the altercation. In the Circuit Court
for the First Circuit, a jury found Abella guilty of the lesser-
included offense of Manslaughter. The Intermediate Court of
Appeals (ICA) affirmed the conviction.
Abella argues that a defendant in these circumstances
cannot be charged and convicted of a homicide due to a provision
in the Uniform Health-Care Decisions Act that prohibits
designating as a homicide any “[d]eath resulting from the
withholding or withdrawal of health care” under the Act. Hawai i
Revised Statutes (HRS) § 327E-13(b) (2010). Abella asserts that
the plain language of the statute shields him from conviction
under these circumstances. We disagree. Viewing the Act as a
whole and given the historical context that led to its passage,
it is clear that the legislature intended to protect medical
professionals and family members making difficult choices, not
actors like Abella.
However, we nonetheless vacate the judgment on appeal
and remand this case for a new trial. Abella argues, and we
agree, that the jury should have been given instructions on
causation pursuant to HRS §§ 702-215 (2014) and 702-216 (2014).
Those instructions would have enabled the jury to consider
whether the intervening volitional conduct of the family and
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medical team interrupted the chain of causation between Abella’s
actions and Higa’s death such that it would be unfair or unjust
to hold him criminally culpable for homicide. While we recognize
without qualification that the decision to remove a loved one
from life support is difficult and serious, and the law protects
that choice, nevertheless, the issues of causation raised in this
case must be decided by a jury. Consequently, we hold that it
was plain error for the circuit court to fail to instruct the
jury on causation and culpability pursuant to HRS §§ 702-215 and
702-216.
I. BACKGROUND
A. Circuit Court Procecedings
Abella was charged by indictment in the Circuit Court
of the First Circuit with Murder in the Second Degree in
violation of HRS § 707-701.5 (2014). 1 His jury trial began on
September 21, 2015.2
1. Witness’ Testimony
The following testimony was adduced at trial.
a. Events of July 17, 2014
Witnesses Ronald Landrio and Donald King each testified
that on July 17, 2014, at approximately 8:45 p.m., they were at
the intersection of Smith and Pauahi Streets in Honolulu when
1
The Honorable Colette Y. Garibaldi presided.
2
As relevant to Abella’s prosecutorial misconduct claim, which we
decline to reach, see infra note 9, Abella filed a pre-trial motion in limine
requesting a number of things. At the hearing for the motion, State agreed
not to “comment upon [Abella’s] assertion of his right to remain silent prior
to, or during, trial[.]”
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they heard the sound of a glass bottle breaking. Each looked in
the direction of the sound and saw Shelton Higa fall to the
ground.
Landrio further testified that after Higa fell to the
ground, a man stood over Higa and began punching him. King
testified that after Higa fell to the ground, a man, whom he
identified as Abella, began “very violently” kicking Higa several
times, “trying to strike his head as much as he can.” As Higa
was on the ground, King noticed that Higa was “holding his head”
and “trying to protect himself.” King testified that he saw Higa
getting struck “[i]n the head, in the shoulders, and arms,
because . . . [Higa was] trying to cover his face and his head.”
Landrio testified that while the man was punching Higa,
a group of people went over and stopped the man. The man then
left the area.
An ambulance and police officers arrived at the scene
at 9:04 pm. Honolulu Police Department (HPD) Officer Celestino
Herana testified that he was dispatched to Smith and Pauahi
Streets on an assault call at approximately 8:54 p.m. and met
Higa. Higa was holding the right side of his head, which was red
and swelling. Officer Herana detected a slight odor of alcohol
emanating from Higa’s breath, but Higa was coherent. Officer
Herana took photographs of the scene, had Higa fill out
paperwork, and left.
Kell Tanabe, Jr., then a paramedic-in-training for the
City and County of Honolulu, testified to examining Higa and
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witnessing superficial lacerations to the right side of his face
and a hematoma3 to his right temple. Tanabe testified that
Higa’s vital signs were stable and that Higa refused a ride to
the hospital.
Antoinette Tuituu testified that she saw the ambulance
leave, and she went over to talk to Higa. She said that Higa was
sitting at first, and then he got on his hands and knees, trying
to stand up and return to the ambulance. She recounted that Higa
said he felt dizzy, and he asked Tuituu to call the ambulance
again.
Tuituu continued that as Higa was on his hands and
knees, “[t]hat guy came ([pointing to Abella in the courtroom])
and starting hitting him just out of the blue[.]” Tuituu
testified that Abella “was wild” and hitting Higa on the head
with both hands. After seeing Higa get hit about “five, six
times,” Tuituu ran to the police station about a block away to
get help.
King testified that he saw Abella kicking Higa “more
than several . . . maybe up to 14 or 20” times. He said that
Higa was attempting to get away, but since there was a wall in
front of him, it was “like he’s trying to crawl into the wall to
get away from this guy.”
Landrio testified that he intervened after seeing “the
3
A hematoma is “a mass of usually clotted blood that forms in a
tissue, organ, or body space as a result of a broken blood vessel.” Merriam-
Webster’s Collegiate Dictionary 579 (11th ed. 2009).
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same figure[,]” whom he identified as Abella, “beating on [Higa]
again.” Landrio noted that Higa was not fighting back during the
incident because of his poor health.
Landrio “came up behind [Abella] and grabbed him to
stop him from hitting [Higa] again.” Landrio and Abella then
started punching each other, causing Landrio’s glasses to go
“flying” off of his face, and for Landrio to have a bloody nose
and hurt shoulder. Landrio testified: “I managed to get a couple
of shots in. He was hitting pretty good, so I jumped off into
the street on Smith Street again, just to regroup myself.”
According to Landrio, Abella then walked back toward Higa, hit
him a few more times, and “just walked off down Pauahi Street.”
Tuituu testified that after she returned from the
police station to call for help, she saw Abella walking away.
Tuituu and King both testified that they began following Abella
until they caught up with him. At approximately 9:42 p.m.,
Officer Herana responded to the same area on an assault call and
arrested Abella.
b. Abella’s Testimony
During the defense’s case-in-chief, Abella took the
stand, advancing a theory of self-defense. Abella testified that
on July 17, 2014, at around 8:45 p.m., he was present in
Chinatown near Smith and Pauahi. He testified that he was “just
hanging around” with other people, and around that time, he saw
an ambulance and police lights. He said that he did not go to
check it out, but instead walked over to the River of Life
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Mission to see what food would be served. He testified that Higa
came up to him and instigated the fight; per Abella, “he just hit
me.” After that, Abella claimed that another person jumped in
the fray, and he just blocked hits until he left. He further
claimed that he did not know Higa nor know why Higa would hit
him.
Abella identified Higa in a photograph and acknowledged
that Higa was older than him, but said, “he was quicker. He hit
me quick. He hit me twice in my jaw.” In response to the
State’s questions, Abella acknowledged that he did not have time
to react to the second punch, but thereafter, Abella reacted by
hitting Higa, and did not stop hitting Higa until Landrio broke
it up (“He jump in, too, yes.”) Abella said that he and Landrio
exchanged punches a “little bit . . . . But I - I fled after
that.” Abella said that after he finished fighting with Landrio,
he walked over by the Fort Street Mall and was stopped by police.
On cross-examination, Abella said he thought he (Abella) has “a
pretty good punch[.]”4
c. Higa’s Medical Care
Ashley Hashimoto, then a paramedic-in-training,
testified that at approximately 9:52 p.m., she responded to an
assault call at Smith Street in Chinatown, and when she arrived,
4
As relevant to the prosecutorial misconduct claim, on cross-
examination, the State asked Abella whether he reported to the police “that
this 57-year-old man had thrown two punches so fast that you couldn’t respond
in time[.]” Thereafter, the defense moved for a mistrial, arguing that this
line of questioning commented impermissibly on Abella’s right to remain
silent. The State immediately withdrew the questions, and the court ordered
the jury to disregard. The court denied the motion for a mistrial.
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she saw Higa lying on his back, rolling around, and screaming.
Higa was able to provide his name and date to the responding
medical team, but could not answer any other questions and was
“yelling and screaming and rolling.” The responding medical team
placed Higa in “full spinal mobilization,” started an IV, took
his vital signs, and transported him to Queen’s Medical Center.
Higa was taken to Queen’s, a trauma center, for a
possible brain injury and multiple contusions. Hashimoto
testified that there are a range of symptoms that could indicate
a brain injury, some of which Higa exhibited: Higa was “altered”;
“very combative and agitated”; and had “significantly high” blood
pressure.
At Queen’s, Higa was seen by the emergency room doctor
and was sent for a CT scan of his brain. Higa was given a
sedative before undergoing the CT scan. He fell unconscious and
did not regain consciousness thereafter.
Dr. Susan Steinemann, a surgeon who was qualified as an
expert in trauma and general surgery, testified that she saw Higa
after his CT scan. By the time Dr. Steinemann saw Higa, he was
“comatose” and “would not open his eyes. He was not able to
vocalize. And he had only some minimal movements of his arm and
leg.” In grading the degree of his coma, Dr. Steinemann
explained that a score of three “would be someone that’s
basically dead” and a score of fifteen “is normal.” Dr.
Steinemann scored Higa as a five.
On cross-examination, defense counsel asked Dr.
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Steinemann about Higa’s sedation prior to his CT scan, suggesting
that Higa was verbal when he was first admitted to the emergency
room and that he was sedated prior to his CT scan because he was
agitated. Dr. Steinemann testified that she did not review the
record regarding Higa’s state when he was first admitted, but
agreed that, in general, an agitated patient may be administered
a sedative prior to a CT scan, as “[t]he quality of the scan
would be poor if the patient were moving.” 5
Dr. Steinemann testified that the type of sedation
given to Higa “go[es] away in a fairly predictable period of
time.” She said, “We don’t generally sedate people to the point
of unconsciousness” prior to a CT scan. She acknowledged that
for surgeries, “[o]nce they’re under anesthesia, they’re
unconscious.” Regarding Higa’s state after his CT scan and prior
to surgery, defense counsel asked “And he was not conscious at
that time; isn’t that correct?” Dr. Steinemann replied, “No, he
was comatose.”
On direct examination, Dr. Steinemann testified that
Higa was comatose “[b]ecause of his severe brain injury” (a
“large subdural hematoma” or, in other words, “bleeding inside
the skull[.]”). A subdural hematoma is dangerous because, as
“the blood clot enlarges, it puts pressure on the brain and
squashes the brain down[.]” So, “[a] brainstem herniation is
5
Dr. Eric Oshiro similarly testified that in most circumstances,
prior to a CT scan, “a short-acting sedative” is used, and is expected to
“wear[ ] off” after the CT scan.
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often the response to significant subdural hematoma.”
When asked to describe how a subdural hematoma and
brainstem herniation relate to being comatose, Dr. Steinemann
explained that “the subdural hematoma, where it is located, will
tend to affect more of the higher brain functions, the thinking,
the ability to control movements[,]” while “[t]he brainstem
controls those very basic life responses, breathing and heart
rate.” She explained that “the brainstem herniation is usually
the last thing to happen before somebody’s considered brain
dead.”
When asked to describe the size of the bleeding based
on Higa’s CT scan, Dr. Steinemann testified that it was
“[d]eadly. If he didn’t have emergency surgery, deadly. And
even with emergency surgery, high – high mortality would be
expected.” She testified that “[t]he prognosis even with surgery
for a bleed of this type is – is not good.”
Higa’s neurosurgeon, Dr. Oshiro, testified about the
craniotomy procedure he performed on Higa and the blood clot he
saw inside Higa’s skull. Dr. Oshiro testified that Higa was in a
coma when Dr. Oshiro met him, and he was on a ventilator prior to
the surgery and after the surgery.
Dr. Oshiro said that Higa’s CT scan “confirmed that
there was a large blood clot on the surface of the brain . . .
that was compressing the brain.” He testified that from
reviewing Higa’s presenting exam and his CT scan, Higa’s blood
clot was “a life-threatening situation.” He noted that while
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“not all” blood clots on the brain are life-threatening, Higa’s
was. He drew this conclusion based on “[t]he size” of the clot
as well as “the fact that on clinical exam, he had a dilated
pupil, which is indication of brainstem compression.”
Dr. Oshiro testified that external injuries, such as a
skull fracture, are not necessarily indicative of a serious brain
injury. He testified that this kind of bleeding “is a direct
result of the acceleration/deceleration injury to the brain,”
which he explained “can occur without actually cracking the
skull” and “without having a noticeable outward sign of injury.”
Dr. Oshiro stated that this kind of injury can occur from trauma,
such as “[s]ome sort of impact, blow to the head.” He testified
that Higa’s hematoma could be created by “somebody str[iking] him
on the right side of the skull with a 40-ounce beer bottle, which
cracked the glass” due to an occurrence called a “contracoup
injury.” Because there is space inside the skull for the brain
to move, if the skull is hit on one side, the impact can cause
the brain to “bounce[ ]” and “hit[ ] the other side” of the
skull. He explained that in this regard, the location of the
hematoma in relation to the location of the impact is “not that
predictable.” Dr. Steinemann also testified that Higa’s injury
would be consistent with being punched or kicked in the head.
Dr. Oshiro testified that the craniotomy procedure had
“satisfactory results as far as removing the blood clot and
reducing the pressure on the brain.” He observed Higa’s brain
surface turn from “very tense” to having “a normal pulsation that
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curves with the heartbeat,” and he saw that Higa’s dilated pupil
on the left side “came back down” after the surgery.
“[U]nfortunately,” however, a successful procedure
“does not guarantee a full recovery” because “sometimes you can’t
tell before doing the surgery how much damage is done already,
how much damage is permanent, [or] how much can be . . . improved
by reducing the pressure.” According to Dr. Oshiro, “[i]n other
words, there may be some permanent injury to the brain already
done that cannot be reversed.”
After the craniotomy, Dr. Oshiro examined Higa every
day. He noticed that “[t]here was very slight improvement. His
pupils were reactive to light; that is, they reacted normally
when you shine a light. Normal reaction is they constrict. But
he never fully regained consciousness.”
From July 20 to July 28, 2014, notes in Higa’s medical
record provided as follows. On July 20, a note indicated
“minimal change” in Higa’s neurological exam. On July 21, Higa
had a “slight eye opening,” which, in comparison to where he was
before, indicated “a slight bit of consciousness.” Higa also
reacted to a sternum rub, which is “an irritating kind of
maneuver” used “to get a reaction” from a patient. A July 22
note stated that “his eyes open briefly, and he blinks to threat
and tracks a little,” thus “show[ing] a slight improvement in
consciousness.”
On July 25, Higa likewise showed a “slight improvement
in the neurologic exam” compared to the previous day. He was
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“clearly localizing with left arm,” meaning that when he was
given a sternum rub, he was able “to localize where the stimulus
is coming from and actually reach toward it[,]” as opposed to an
“abnormal response,” which would be “no movement at all” after a
sternum rub. This, again, showed “little gradations of
consciousness” and was “somewhat of an improvement[.]” On July
26, Higa showed “a slight improvement in eye opening.”
On July 27, Higa was “more alert” and “improving levels
of alertness with sustained eye opening[.]” On July 28, Higa’s
“eyes open to voice,” thus indicating “a slight improvement in
consciousness.” He had a “stable neurologic exam,” meaning “that
it’s not worsening.”
When asked whether Higa “was ever going to regain
independent breathing[,]” Dr. Oshiro testified that there was a
“less than 50/50” chance. He opined that while it was “probably
possible” for Higa to regain independent breathing, it was “not
more likely than not.” Dr. Steinemann testified that based on
the significance of Higa’s brain injury, if care were not
withdrawn, she “would expect that his prognosis would be poor for
return to independent living.”
With respect to taking a patient off life support,
Dr. Steinemann explained that the decision “is usually made in
consultation with the family based upon the patient’s previously
expressed wishes about quality of life.” Dr. Oshiro testified
that he does not recall whether he was “physically present” when
Higa’s breathing tube was removed. He did not state whether he
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was aware that Higa’s improvements were or were not communicated
to Higa’s next of kin, and noted that “these decisions are
primarily made by the intensive care physician” or “the
neurointensive care physician.”
On July 27, Higa’s daughter and next-of-kin (Daughter)
was notified about her father’s presence at the hospital, where
she worked as a registered nurse. Daughter had an “estranged
relationship” with her father, but she was aware of his kidney
problems and that he was “going blind.”
Daughter testified that after a social worker called
and found her, she spoke with an “ICU doctor” named Dr. Chang who
told her about Higa’s present condition and presented her with
the decision to take Higa off life support.
Daughter said she decided to take her father off life
support because:
[DAUGHTER:] I knew what he -- we had talked about that
before when my grandmother was on life support and we had to
make that decision. And I’ve seen what happens when you
leave people on life support who -- and the doctors'
prognosis.
[STATE]: Which was what?
A. That he wasn't going to have any kind of a meaningful
recovery, and he’d probably be hooked up to the ventilator
and wouldn’t be able to regain an independent lifestyle.
Daughter testified that she was informed about Higa’s
condition over the previous ten days in which he was under the
care of Dr. Steinemann and Dr. Oshiro. She said that she was
provided “a summary of what happened in the surgery and his
current condition[,]” but she was not notified “as to the
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improvement in his condition regarding his neural exams
throughout the ten days[.]” She testified that, as a nurse, she
has seen people in a condition like her father’s. She said that
she has never seen other people in such a condition regain or
even “somewhat regain” their faculties.
d. Higa’s Death
Higa was pronounced dead on July 29, 2014, after his
breathing tube was removed.
Dr. Oshiro opined that the sedation administered prior
to the CT scan did not kill Higa. Dr. Oshiro also testified that
while Higa had end-stage renal disease, which complicated his
recovery, the renal disease did not cause Higa’s death. 6 Dr.
Oshiro testified that the subdural hematoma caused Higa’s death.
The following exchange took place between defense
counsel and Dr. Oshiro on recross-examination:
[DEFENSE COUNSEL:] . . . . in this case, there was slight
6
Higa’s end-stage renal disease meant that he could not survive
unless he was on dialysis. Dr. Oshiro did not know the last time Higa had
dialysis, but testified that he could “take a guess” that “it hadn’t been very
recent” based on Higa’s blood test. Dr. Oshiro explained that Higa’s
“creatinine and his BUN [blood urea nitrogen] were markedly elevated as well
as his potassium in his blood.” When asked to explain the blood interaction
with the body’s organs, Dr. Oshiro stated that the answer was “very complex”
and “beyond the scope of what I can answer.” However, he provided an example
that “potassium being high could make him go into a bad heart rhythm, which
would be fatal.” He also suggested that “electrolyte abnormalities” could
cause fluid accumulation in the lungs that “may create a problem with
oxygenation from the lungs.”
When asked how the quality of the blood might affect the brain,
Dr. Oshiro noted that “the blood clotting is probably not completely normal,”
meaning “that it probably takes a little bit longer for the blood to clot than
it normally would.” Dr. Oshiro also noted that “the brain doesn’t function as
well as it normally should” when blood is not processed through dialysis when
necessary.
Dr. Christopher Happy, the medical examiner, was asked whether the
end-stage renal disease contributed to Higa’s condition, to which Dr. Happy
responded: “to his overall health, sure, but not his death.”
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improvement happening on a day-to-day basis; right?
[DR. OSHIRO:] Yes.
Q. And there’s no telling where that improvement was going
to stop at that point when -- I mean, in two weeks’ time
that you had him under your care, Mr. Higa; is that right?
A. Correct.
Q. And you said just before we took a recess that the cause
of death was the subdural hematoma, but you really -- that’s
not really accurate, because isn’t it true that Mr. Higa
could well have survived a little longer than the two weeks
without them pulling the tubes and pulling the plug? Isn't
that right?
A. Yes.
Q. I mean, he wasn’t at a stage where he was going to die
right then and there?
A. That is correct.
On July 30, 2014, Dr. Christopher Happy, the chief
medical examiner for the City and County, performed an autopsy on
Higa. Dr. Happy concluded that Higa’s death was caused by
“[c]omplications from blunt force head injury with subdural
hemorrhage.” He read Higa’s medical records and could see during
the autopsy that Higa had a prior surgery to remove the blood
from around his brain. He explained that when there is bleeding
around the brain, it creates pressure in a finite space and
begins to push the brain downward “through the large hole at the
bottom of the skull.” He explained that “the first thing that
goes through that hole is the brainstem[,]” which is “where the
blood pressure, heart rate, and respiratory rate are controlled.”
He testified that when it is pushed down, the brainstem is
impinged, “[a]nd so the heart will stop, breathing will stop.”
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Dr. Happy testified that the brain injury Higa received
“in you or me or anybody healthy would cause death.” He further
explained that a toxicology report was conducted. He said that
the report indicated “some morphine, which was given in the
hospital for pain control,” as well as “acetone, which is a
ketone, which is sometimes formed after a prolonged period of a
person being essentially brain dead.”
On cross-examination, Dr. Happy testified that he was
not aware that, after Higa’s craniotomy, he was “improving in his
alertness[.]” However, he testified that this fact would not
have made a difference in his final report regarding Higa’s cause
of death.
2. Motion for Judgment of Acquittal
After the close of the State’s evidence, the defense
made an oral motion for judgment of acquittal. Defense counsel
asked the court to grant the motion based on HRS § 327E-13(b), 7
arguing that the statute provides a basis for dismissing the
murder charge, as well as “other lesser charges” that cover the
death of a person. He contended that “we could continue the
trial on the basis of an assault in the second degree or less.”
7
HRS § 327E-13(b) provides:
Death resulting from the withholding or withdrawal of health
care in accordance with this chapter shall not for any
purpose constitute a suicide or homicide or legally impair
or invalidate a policy of insurance or an annuity providing
a death benefit, notwithstanding any term of the policy or
annuity to the contrary.
Although the legislature amended HRS § 327E-13 in 2018, subsequent
to Abella’s trial, subsection (b) remains unchanged.
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In response, the State argued that HRS Chapter 327E
should not absolve criminal defendants from penal liability under
these circumstances. The State argued: “[HRS §] 327E-13(b)
applies, and it applies to [Daughter] in this case. It does not
apply to the defendant. To do so would lead to an absurd
result.”
In rebuttal, defense counsel focused on “the plain
language of the statute,” and argued that “the standard that the
legislature has put on this type of case” means “that nobody’s
going to be held responsible for homicide if someone else pulls
the plug.” The court asked him whether anything in the
legislative history supported his argument, to which he replied:
Well, I did not go into the legislative intent of this
statute. However, when the -- when they say, shall not for
any purpose constitute a homicide, they know what a homicide
is. It’s not a surprise to them, that murder is a homicide,
involves homicide. Manslaughter involves homicide. Assault
in the first degree involves potentially a homicide. So it’s
not a surprise to the legislature that those types of cases
are happening under -- under the framework of homicide. So,
you know, it’s in the plain language of this statute, you
know, so I would assume that the legislature knew what it
was doing when it did this.
The court denied the motion. The court determined that
the statute’s “reference that death from withholding medical care
would not constitute a homicide or suicide appears to protect
healthcare providers and the decision-makers,” as well as “the
beneficiaries of the decedent[.]” It reasoned that defense
counsel’s reading of the statute “would produce absurd results in
situations similar to” this case.
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3. Jury Instructions
The parties agreed to the court’s general jury
instructions and reviewed the court’s supplemental instructions.
Supplemental instruction “T” provided: “Conduct is the
cause of a result when it is an antecedent but for which the
result in question would not have occurred.” The defense
objected to this instruction and argued, “I think it confuses -
this instruction is more confusing than anything. It’s not
necessary. It’s duplicative of what’s going on in the [c]ourt’s
general instructions.” The State, on the other hand, argued that
the instruction was necessary
in light of the fact that it was the defendant’s conduct
that caused the subdural bleed which put him in respiratory
distress which caused him to be put on the ventilator and
lose consciousness, which ultimately resulted in the
decision by his daughter to take him off life support. So
all of these events stem from the defendant’s conduct.
In other words, but for the defendant’s conduct, none
of the - the operation or the treatment at Queen’s or
lifesaving decision would have occurred. So in light of the
facts of this case, this is an applicable and relevant
statement of the law to help the jury explain - help the
jury.
The court included the instruction over defense’s
objection, noting that the instruction came verbatim from HRS
§ 702-214 (2014). Defense counsel did not request an instruction
on causation pursuant to HRS §§ 702-215 and -216, and the court
did not provide one.
Ultimately, the jury was instructed with regard to the
offenses of Murder in the Second Degree, Manslaughter based upon
reckless conduct, Assault in the First Degree, Assault in the
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Second Degree (Substantial Bodily Injury), Assault in the Second
Degree (Serious Bodily Injury), Assault in the Third Degree, and
Reckless Endangering in the Second Degree. The jury was also
instructed as to self-defense, deadly force, causation, and the
relevant states of mind. The Manslaughter instruction read:
If and only if you find the Defendant not guilty of
Murder in the Second Degree or you are unable to reach a
unanimous verdict as to this offense, then you must consider
whether the Defendant is guilty or not guilty of the
included offense of Manslaughter based upon reckless
conduct.
A person commits the offense of Manslaughter based
upon reckless conduct if he recklessly causes the death of
another person.
There are two material elements of this offense, each
of which the Prosecution must prove beyond a reasonable
doubt.
These two elements are:
1. That on or about July 17, 2014, to and including
July 29, 2014, in the City and County of Honolulu,
State of Hawaii, the Defendant caused the death of
Shelton Higa; and
2. That the Defendant did so recklessly.
(Emphasis added.)
Consistent with its ruling as to instruction “T,” the
court instructed the jury on causation as follows: “Conduct is
the cause of a result when it is an antecedent but for which the
result in question would not have occurred.”
4. Verdict and Sentence
The jury returned a verdict finding Abella guilty of
Manslaughter pursuant to HRS § 707-702 (2014). The circuit court
subsequently sentenced Abella to a term of imprisonment for
twenty years. Abella timely filed a notice of appeal.
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B. ICA Proceedings
On appeal, Abella argued that the circuit court plainly
erred by failing to instruct the jury regarding the causal
connection, or lack thereof, between Abella’s conduct and Higa’s
death. He also claimed that the circuit court erred by failing
to apply HRS § 327E-13 to his case. Accordingly, Abella asked
that the ICA reverse the circuit court’s judgment and dismiss his
case.8
Abella argued that the circuit court plainly erred when
it failed to instruct the jury, sua sponte, on the issue of
causation between Abella’s conduct and Higa’s death, and that
this failure was prejudicial. Abella contended that his conduct
could not have caused Higa’s death, in light of the twelve days
that passed between the confrontation at issue and his death, and
the intervening acts by numerous persons within that time frame,
“i.e., medical treatment, and a decision made that terminated
Higa’s life.”
In light of these circumstances, Abella argued that
Higa’s death was “too remote” or “too dependent on another’s
8
Abella also argued that the circuit court should have ordered a
mistrial in light of the prosecutor’s attempts to elicit testimony from Abella
about why he did not report his interactions with Higa to the police. See
supra note 4. Abella argued that the prosecutor’s line of questioning
encroached upon Abella’s constitutional right to remain silent.
The ICA did not credit this argument, determining that the
prosecutor’s actions did not amount to misconduct, and even if the questioning
was improper, the circuit court’s subsequent instructions to the jury
constituted a “prompt curative instruction.” State v. Abella, 144 Hawai i
141, 152, 438 P.3d 273, 284 (App. 2019).
Abella raises this issue again in his application for writ of
certiorari. Because, as discussed infra, we decide this case on the basis of
the jury instructions and remand for a new trial as a result, we need not and
do not reach this issue.
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volitional conduct” to assign responsibility to Abella for Higa’s
actual death. As such, Abella argued that the instructions as a
whole, which did not include a causation instruction based on HRS
§§ 702-2159 and -21610, were “prejudicially insufficient,
erroneous, inconsistent, and misleading.”
Abella also argued that the circuit court erred by
failing to apply HRS § 327E-13 to his case when its plain
language prohibited his conviction. Abella explained that,
pursuant to HRS § 327E-13, a “[d]eath resulting from the . . .
withdrawal of health care in accordance with [Chapter 327E] shall
not for any purpose constitute a . . . homicide,” and that
further, under Chapter 327E, “death” occurs “when a person has
experienced [the] irreversible cessation of spontaneous
respiratory and circulatory functions” and “at the time when the
irreversible cessation of the functions first coincide.”
Applying Chapter 327E, Abella contended that Higa’s
death necessarily occurred when his ventilator was removed, and
could not have occurred before that time. Abella pointed to Dr.
Oshiro’s testimony that “Higa had a 50% possibility of regaining
independent breathing,” that “there was no telling where that
improvement was going to stop,” and that “Higa could have
survived longer than he did” had his ventilator not been
withdrawn.
9
For the text of HRS § 702-215, see infra note 12.
10
For the text of HRS § 702-216, see infra note 13.
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The ICA disagreed. State v. Abella, 144 Hawai i 141,
438 P.3d 273 (App. 2019). With regard to Abella’s argument that
the medical treatment was an intervening cause of Higa’s death,
citing to several cases from other jurisdictions, the ICA
determined that the “removal of life support is not an
independent intervening cause [of death] in settings similar to
the instant case.” Id. at 148, 438 P.3d at 280. The ICA
therefore concluded that the circuit court did not plainly err in
failing to instruct the jury “regarding intervening acts by
persons terminating Higa’s medical treatment.” Id. at 149, 438
P.3d at 281.
In addition, based on the plain language of HRS § 327E-
13, the ICA determined that, “[c]ontrary to Abella’s argument,
HRS § 327E-13(b) applies to advance health-care directives and
other health-care decision-making procedures and the persons
involved. It does not apply to criminal conduct which leads to
the need for health-care.” Id. at 150, 438 P.3d at 282 (emphasis
added). The ICA further noted that the relevant legislative
history lacked any indication that HRS § 327E-13(b) was meant to
“absolve defendants of alleged criminal conduct which
necessitated that a victim receive medical treatment in the first
place.” Id. Accordingly, the ICA rejected Abella’s argument
that HRS § 327E-13(b) should apply.
On the circuit court’s failure to give jury
instructions pursuant to HRS §§ 702-215 and 702-216, the ICA
concluded that the “removal of life support is not an independent
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intervening cause [of death] in settings similar to the instant
case,” citing to cases from other jurisdictions. Id. at 148-49,
438 P.3d at 280-81. Accordingly, the ICA held that the circuit
court did not plainly err by failing to give those instructions.
Id. at 149, 438 P.3d at 281.
C. Supreme Court Proceedings
Abella timely filed an application for a writ of
certiorari, which we accepted. His application argues that the
ICA gravely erred for not reversing the trial court on the basis
of HRS § 327E-13. In addition, Abella urges us to hold that the
trial court’s failure to instruct the jury “regarding the causal
connection[,] or lack thereof, between Abella’s conduct and
Higa’s death” constituted plain error.
II. STANDARDS OF REVIEW
A. Statutory Interpretation
“Questions of statutory interpretation are questions of
law to be reviewed de novo under the right/wrong standard.”
Nakamoto v. Kawauchi, 142 Hawai i 259, 268, 418 P.3d 600, 609
(2018).
B. Jury Instructions
“When jury instructions . . . are at issue on appeal,
the standard of review is whether, when read and considered as a
whole, the instructions given are prejudicially insufficient,
erroneous, inconsistent, or misleading.” State v. Nichols, 111
Hawai i 327, 334, 141 P.3d 974, 981 (2006).
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III. DISCUSSION
A. HRS § 327E-13 Does Not Prevent a Jury from Convicting Abella
of Homicide
We first consider whether HRS § 327E-13 applies to this
case, which is a matter of statutory interpretation. We hold
that it does not.
When construing a statute, “our foremost obligation is
to ascertain and give effect to the intention of the legislature,
which is to be obtained primarily from the language contained in
the statute itself.” Nakamoto, 142 Hawai i at 268, 418 P.3d at
609 (quoting Lingle v. Hawai i Gov’t Emps. Ass’n, AFSCME, Local
152, AFL-CIO, 107 Hawai i 178, 183, 111 P.3d 587, 592 (2005)).
“A ‘cardinal’ canon of statutory interpretation is that this
court ‘cannot change the language of the statute, supply a want,
or enlarge upon it in order to make it suit a certain state of
facts.’” State v. Haugen, 104 Hawai i 71, 75, 85 P.3d 178, 182
(2004) (quoting State v. Dudoit, 90 Hawai i 262, 271, 978 P.2d
700, 709 (1999)).
Nevertheless, statutory language is read “in the
context of the entire statute” and interpreted “in a manner
consistent with its purpose.” Haugen, 104 Hawai i at 76, 85 P.3d
at 183 (quoting Gray v. Admin. Dir. of the Court, 84 Hawai i 138,
148, 931 P.2d 580, 590 (1997)). We construe statutes “to avoid,
if possible, inconsistency, contradiction, and illogicality.”
Id. (quoting State v. Cornelio, 84 Hawai i 476, 484, 935 P.2d
1021, 1029 (1997)) (emphasis omitted). If a literal construction
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of statutory language would produce an absurd result, we presume
that result was not intended and construe the statute in accord
with its underlying legislative intent. See id. at 77, 85 P.3d
at 184 (citing Dudoit, 90 Hawai i at 270, 978 P.2d at 708).
Abella argues that he was entitled to an acquittal
based on HRS § 327E-13(b), a provision in the Uniform Health-Care
Decisions Act (Modified). HRS § 327E-13(b) provides:
(b) Death resulting from the withholding or withdrawal
of health care in accordance with this chapter shall
not for any purpose constitute a suicide or homicide
or legally impair or invalidate a policy of insurance
or an annuity providing a death benefit,
notwithstanding any term of the policy or annuity to
the contrary.
(Emphasis added.)
In effect, Abella interprets this statute to supply a
general defense to criminal liability whenever a crime victim is
allowed to die from their injuries due to “the withholding or
withdrawal of health care.” HRS § 327E-13(b). He contends that
because Higa died from the decision by Daughter and the medical
team to withdraw care, his death “shall not for any purpose
constitute a . . . homicide[.]” According to Abella, the terms
“for any purpose” plainly and unambiguously prevent the State
from holding anyone criminally liable for Higa’s death. Thus, he
argues, the statute absolves him of criminal liability, and he
was accordingly entitled to a judgment of acquittal.
However, we conclude that HRS § 327E-13(b), when read
in context, applies only to the persons involved in making and
carrying out health-care decisions. Chapter 327E codifies in
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Hawai i the right to refuse life-sustaining medical treatment, a
right that is incident to the rights to privacy, bodily autonomy,
and self-determination. The parameters of the right to refuse
life-sustaining treatment have common law origins and may be
traced to the seminal case In re Quinlan, 355 A.2d 647 (N.J.
1976), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922
(1976).
In Quinlan, the Supreme Court of New Jersey recognized
that “the State’s interest [in the preservation of life] weakens
and the individual’s right to privacy grows as the degree of
bodily invasion increases and the prognosis dims.” 355 A.2d at
664. The court held that under the circumstances, Ms. Quinlan’s
right to refuse further life-sustaining medical treatment
outweighed the State’s interests. Id. Recognizing that Ms.
Quinlan was no longer competent to assert this right, the court
also held that the only practical way to protect it would be to
permit her family to assert it on her behalf. Id. Further, the
court considered the relationship between this right and the
criminal law. The Quinlan court made clear that physicians who
carry out these wishes would not be held criminally liable for
terminating life-sustaining treatment, consequently accelerating
the patient’s death. Id. at 669–70.
Since this 1976 decision, state courts and the United
States Supreme Court have recognized the right to refuse
treatment, and developed tests for determining how and when this
right may be asserted in specific circumstances. See, e.g.,
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Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990)
(recognizing that a competent person has a Fourteenth Amendment
liberty interest in refusing medical treatment); Matter of
Welfare of Colyer, 660 P.2d 730 (Wash. 1983); In re Conroy, 486
A.2d 1209 (N.J. 1985) (holding that an incompetent, but not
necessarily comatose, patient has the right to refuse life-
sustaining treatment). Recognizing the issue as a fundamental
societal concern, state legislatures have passed laws addressing
the right to refuse life-sustaining medical treatment,
established procedures for creating and implementing advance
directives (i.e. “living wills”), and enabled surrogate decision-
makers to exercise authority on another’s behalf. See, e.g.,
N.J.S.A. 26:2H-54a (“New Jersey Advance Directives for Health
Care Act”); GA Code Ann. § 31-32-1 (“Georgia Advance Directive
for Health Care Act”); Cal. Prob. Code §§ 4600-4660 (“Health Care
Decisions Law”).
In 1986, the Hawai i legislature followed suit,
enacting HRS chapter 327D. 1986 Haw. Sess. Laws. Act 338. This
act, among other things, recognized the right to individual
autonomy in medical choices and protected medical providers from
criminal prosecution. See, e.g., HRS § 327D-1 (1993) (“The
legislature finds that all competent persons have the fundamental
right to control the decisions relating to their own medical
care, including the decision to have medical or surgical means or
procedures calculated to prolong their lives provided, continued,
withheld, or withdrawn.”); id. § 327D-14 (“Death resulting from
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the withholding or withdrawal of life-sustaining procedures from
a patient under this chapter does not, for any purpose,
constitute a suicide.”); id. § 327D-18 (“In the absence of actual
notice of the revocation of a declaration, no health care
provider, health care facility, physician, or any other person
acting under the direction of an attending physician shall be
subject to criminal prosecution . . . as a result of the
withholding or the withdrawal of life-sustaining procedures from
a patient in accordance with this chapter[.]”).
In 1999, the Hawai i legislature replaced chapter 327D
with chapter 327E, the Uniform Health-Care Decisions Act. 1999
Haw. Sess. Laws Act 169. Standing Committee Report No. 1600 from
the Senate Committee on the Judiciary stated:
The purpose of this measure is to enact the Uniform
Health-Care Decisions Act.
Your Committee finds that since the Supreme Court's
decision in Cruzan v. Commissioner, Missouri Department of
Health, 497 U.S. 261 (1990), significant changes have
occurred in state legislation on health care decision
making. Nearly all states have statutes authorizing the use
of powers of attorney for health care. In addition, a
majority of states have statutes allowing family members,
and in some cases close friends, to make health care
decisions for adult individuals or emancipated minors who
lack capacity.
However, your Committee recognizes that there is a
greater need for uniformity among advance directives for
health care and believes that this Uniform Health Care
Decisions Act will simplify and facilitate the making of
advance health care directives. . . . .
Your Committee intends that this measure replace
chapter 327D, Hawaii Revised Statutes, relating to medical
treatment decisions which was first enacted in 1986 and has
not been revised since 1992. In the intervening years,
medical science has advanced tremendously and medical ethics
has developed correspondingly. This measure brings medical
treatment decisions into today's world of advances in
medicine, patient rights, and attitudes toward dying. Your
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Committee notes that this measure is not intended to disrupt
the existing surrogate law and practices in acute care and
long-term care settings.
S. Stand. Comm. Rep. No. 1600, in 1999 Senate Journal, at 1657.
HRS § 327E-13(b) closely tracks 13(b) of the Uniform
Health-Care Decisions Act (1993). See Unif. Health-Care
Decisions Act § 13(b) (“Death resulting from the withholding or
withdrawal of health care in accordance with this [Act] does not
for any purpose constitute a suicide or homicide or legally
impair or invalidate a policy of insurance or an annuity
providing a death benefit, notwithstanding any term of the policy
or annuity to the contrary.”). HRS § 327E-13(b) is also
substantively the same as other state statutes derived from the
uniform law. See, e.g., Cal. Prob. Code § 4656; Me. Rev. Stat.
Ann. tit. 5, § 813(b); Miss. Code. Ann. § 41-41-227(2); see also
N.M. Stat. Ann. § 24-7A-13(B) (“Death resulting from the
withholding or withdrawal of health care in accordance with the
Uniform Health-Care Decisions Act does not for any purpose: (1)
constitute a suicide, a homicide, or other crime[.]”).
In declaring that “[d]eath resulting from the
withholding or withdrawal of health care in accordance with this
chapter shall not for any purpose constitute a suicide or
homicide,” HRS § 327E-13(b), the Hawai i legislature adopted the
well-recognized principle that persons properly involved in
making and carrying out decisions to terminate life-support,
including patients, surrogates, and doctors, should be free of
criminal and civil liability for their involvement. See, e.g.,
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Matter of Farrell, 529 A.2d 404, 415–16 (N.J. 1987); 11 In re
Quinlan, 355 A.2d at 669. There is no indication in either the
language or legislative history of HRS chapter 327E, or in case
law related to the right to refuse treatment, that the exercise
of this right protects any person from criminal liability.
The statute’s language should not be taken out of
context; rather, it should be read to protect only those whose
11
For example, in the New Jersey case Matter of Farrell, the
plaintiff petitioned to the New Jersey Chancery Court to be appointed the
special medical guardian for his wife, who had amyotrophic lateral sclerosis
(more commonly known as Lou Gehrig’s disease), and had expressly granted
permission to remove a respirator that had been keeping her alive for the past
three years. 514 A.2d 1342, 1343 (N.J. Ch. 1986). The court recognized Mrs.
Farrell’s right to discontinue this life-sustaining treatment, found that Mrs.
Farrell was competent and capable of making this decision, and appointed the
plaintiff, her husband, as her guardian ad litem to carry out her wishes. Id.
at 1347. In addition, the court ordered “that [Mr.] Farrell, or any physician
or other person involved in the removal of said respirator from [Mrs.] Farrell
pursuant to the terms of this judgment, will be free from any criminal and
civil liability.” Id. In a footnote, the court explained:
This finding is made in accordance with In The Matter
of Quinlan, 70 N.J. 10, 51-52, 355 A.2d 647[, 669]
(1976), where the New Jersey Supreme Court stated that
upon the termination of life support systems, “the
ensuing death would not be homicide but rather
expiration from existing natural causes. Secondly,
even if it were to be regarded as homicide, it would
not be unlawful.” The Quinlan Court added that there
is a “real” and “determinative distinction between the
unlawful taking of the life of another and the ending
of artificial life support systems as a matter of
self-determination.” Id. at 52, 355 A.2d 647. The
Court clearly established that the exercise of this
constitutional right is protected from criminal
prosecution, which “extends to third parties whose
action is necessary to effectuate the exercise of that
right.” Ibid.
Id. at 1347 n.3 (emphasis added).
The New Jersey Supreme Court affirmed the chancery court’s
decision, and, in addition to providing guidance for when a patient requests
“the discontinuance of life-sustaining medical treatment,” Matter of Farrell,
529 A.2d at 413, it held that “no civil or criminal liability will be incurred
by any person who, in good faith reliance on the procedures established in
this opinion, withdraws life-sustaining treatment at the request of an
informed and competent patient[.]” Id. at 415–16 (emphasis added).
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conduct “in accordance with [chapter 327E]” leads to the
patient’s death. Chapter 327E specifically enumerates and
defines people who are relevant to its provisions. This list
includes agents (someone who has “power of attorney for health
care to make a health-care decision for the individual granting
the power”); guardians (“a judicially appointed guardian having
authority to make a health-care decision for an individual”);
health-care providers (“an individual licensed, certified, or
otherwise authorized or permitted by law to provide health care
in the ordinary course of business or practice of a profession”);
and others. HRS § 327E-2. Those corresponding people in Higa’s
life acted “in accordance with” Chapter 327E-2 when they decided
to remove his ventilator. HRS § 327E-13(b). Abella, when he
allegedly set into motion the events leading to Higa’s death, did
not.
Accordingly, we hold that HRS § 327E-13(b) does not
shield from criminal liability for homicide those actors whose
conduct caused another to require life-saving medical
intervention if the victim’s medical care is subsequently
withdrawn, causing death. To hold otherwise would lead to
absurdity. Haugen, 104 Hawai i at 76–77, 85 P.3d at 183–84
(“Every construction which leads to an absurdity shall be
rejected.”) (citation omitted). Interpreting HRS § 327E-13(b) to
apply to any actor would insulate from liability the very person
who caused Higa to require life support technology to stay alive.
In other words, the legislature could not have intended for a
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statute designed to protect an individual’s right to bodily
autonomy in the age of medical advancement to be used as a shield
for a wrongdoer who caused the need for medical intervention in
the first place - and did so by severe physical intrusion into
someone else’s bodily autonomy, the very right enshrined in the
statute.
The above analysis supports the conclusion that HRS
§ 327E-13(b) of the Uniform Health-Care Decisions Act shields
family members and medical professionals from criminal liability
for death resulting from the withdrawal of medical care, but it
does not extend its protections to actors whose conduct rendered
medical care necessary in the first instance. Thus, we hold that
HRS § 327E-13(b) does not bar Abella, an actor whom the statute
does not contemplate protecting, from being convicted of a
homicide. Therefore, Abella’s motion for a judgment of acquittal
was properly denied.
B. The Circuit Court Should Have Instructed the Jury on
Causation Pursuant to HRS §§ 702-215 and 702-216
We next consider whether Abella was entitled to jury
instructions on causation and intervening action under HRS
§§ 702-21512 and 702-216.13 We hold that the circuit court
12
HRS § 702-215 provides:
In the following instances intentionally or knowingly
causing a particular result shall be deemed to be
established even though the actual result caused by the
defendant may not have been within the defendant's intention
or contemplation:
(1) The actual result differs from that intended or
(continued...)
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plainly erred by failing to include instructions pursuant to
those provisions.
In a jury trial, it is the court’s responsibility to
ensure that the jury is properly instructed on the law and the
questions the jury is to decide. See Nichols, 111 Hawai i at
334-35, 141 P.3d at 981-82. The State must prove “[e]ach element
of the offense” beyond a reasonable doubt. HRS § 701-114.
Causation is a question of fact (and an element of the offense of
12
(...continued)
contemplated, as the case may be, only in the respect
that a different person or different property is
injured or affected or that the injury or harm
intended or contemplated would have been more serious
or more extensive than that caused; or
(2) The actual result involves the same kind of injury or
harm as the intended or contemplated result and is not
too remote or accidental in its occurrence or too
dependent on another's volitional conduct to have a
bearing on the defendant's liability or on the gravity
of the defendant's offense.
(Emphasis added.)
13
HRS § 702-216 provides:
In the following instances, recklessly . . . causing a
particular result shall be deemed to be established even
though the actual result caused by the defendant may not
have been within the risk of which the defendant was . . .
aware:
(1) The actual result differs from the probable result
only in the respect that a different person or
different property is injured or affected or that the
probable injury or harm would have been more serious
or more extensive than that caused; or
(2) The actual result involves the same kind of injury or
harm as the probable result and is not too remote or
accidental in its occurrence or too dependent on
another's volitional conduct to have a bearing on the
defendant's liability or on the gravity of the
defendant's offense.
(Emphasis added.)
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manslaughter) and is therefore reserved for the jury as fact
finder to determine.
The Hawai i Penal Code addresses causation in HRS
§§ 702-214, 702-215, and 702-216, which are derived from the
Model Penal Code (MPC) § 2.03. 14 HRS § 702-214 supplies the test
14
MPC § 2.03 provides:
(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in
question would not have occurred; and
(b) the relationship between the conduct and result
satisfies any additional causal requirements imposed
by the Code or by the law defining the offense.
(2) When purposely or knowingly causing a particular result
is an element of an offense, the element is not established
if the actual result is not within the purpose or the
contemplation of the actor unless:
(a) the actual result differs from that designed or
contemplated, as the case may be, only in the respect
that a different person or different property is
injured or affected or that the injury or harm
designed or contemplated would have been more serious
or more extensive than that caused; or
(b) the actual result involves the same kind of injury
or harm as that designed or contemplated and is not
too remote or accidental in its occurrence to have a
[just] bearing on the actor's liability or on the
gravity of his offense.
(3) When recklessly or negligently causing a particular
result is an element of an offense, the element is not
established if the actual result is not within the risk of
which the actor is aware or, in the case of negligence, of
which he should be aware unless:
(a) the actual result differs from the probable result
only in the respect that a different person or
different property is injured or affected or that the
probable injury or harm would have been more serious
or more extensive than that caused; or
(b) the actual result involves the same kind of injury
or harm as the probable result and is not too remote
or accidental in its occurrence to have a [just]
bearing on the actor's liability or on the gravity of
(continued...)
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for “actual causation” and “is commonly called the ‘but for’
test.” HRS § 702-214 cmt. (2014). Like subsection 1(a) of MPC
§ 2.03, it provides: “Conduct is the cause of a result when it is
an antecedent but for which the result in question would not have
occurred.” HRS § 702-214. According to the Commentary to this
statute, once actual causation is established, “causality in its
strict sense is finished and attention must then shift to §§ 702-
215 and 216 which deal with the defendant’s culpability with
respect to the result.” HRS § 702-214 cmt. (2014). But:
The difficulty of the problem of causation does not lie in
making a determination of actual causation, but rather in
setting the appropriate standard for determining those
instances in which the defendant will not be held liable for
the result of the defendant's conduct because the defendant
did not intend or contemplate the result or was unaware of
the risk that it would obtain.
HRS § 702-214 cmt. (2014).
To address that difficulty, the Hawai i legislature
adopted the “culpability” assessment in HRS §§ 702-215 and 216 as
the proper inquiry for determining whether it would be unjust to
attribute the result that occurred to the defendant’s conduct,
even if the conduct was a cause-in-fact of that result. See HRS
§ 702-214 cmt. (2014). This test derives from subsections (2)
and (3) of MPC § 2.03, but clarifies the MPC in an important
respect: HRS §§ 702-215 and 216 make explicit that “another’s
14
(...continued)
his offense.
(4) When causing a particular result is a material element
of an offense for which absolute liability is imposed by
law, the element is not established unless the actual result
is a probable consequence of the actor's conduct.
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volitional conduct” may be a factor to consider in the
“culpability” analysis. See HRS § 702-215 cmt. (2014).15 In
State v. Pelham, the dissent recognized that Hawai i and New
Jersey are the only two states “that have adopted MPC § 2.03 and
explicitly added the intervening volitional conduct of others as
a factor to be considered in determining causation.” 16 824 A.2d
1082, 1097 (N.J. 2003) (Albin, J., dissenting)
As noted in the Commentary to the HRS, the
“culpability” standard relates to the idea of “proximate cause”
in that “culpability” captures when the law will “allow the just
imposition of liability” for causing a particular result. HRS
§ 702-214 cmt. (2014). However, the culpability standard
departs from the common-law concept of ‘proximate cause’ (at
best a poor label for a host of largely unarticulated
considerations) and analyzes the question of whether a
defendant will be held liable for having caused a particular
result not in terms of factual or “scientific” causation
(which has to be resolved according to the test set forth in
§ 702-214) but in terms of those factors which properly bear
on the defendant's culpability with respect to a result
15
The Commentary explains:
The Code follows the Model Penal Code1 as supplemented by
the suggestion of Hart and Honore that provisions regarding
liability for unintended or uncontemplated results must be
separately stated for those instances when the difference in
result is due to natural events and those instances when it
is due to the volitional conduct of another. Although the
commentary to the Model Penal Code would suggest that
volitional conduct of another is adequately covered as a
factor which might make the actual result “too remote or
accidental,” greater clarity is achieved by the language of
this Code.
HRS § 702-215 cmt. (2014) (footnotes omitted) (citing H.L.A. Hart & A.M.
Honore, Causation in the Law (1959)).
16
For this reason, we consider case law from New Jersey interpreting
similar causation principles as persuasive authority on these provisions.
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other than one which the defendant intended or contemplated.
The factors to be considered are, as stated, whether the
actual result is more serious or extensive than the intended
or contemplated result and whether the actual result is too
remote or accidental in its occurrence or too dependent on
another's volitional conduct to have a bearing on
defendant's liability (or the gravity of the defendant’s
offense).
HRS § 702-215 cmt. (2014); see id. § 702-216 cmt. (2014).
The culpability standard for causation comes into play
when the actual result can be “contrasted with the designed or
contemplated (or in the case of subsection (3), the probable)
result in terms of its specific character and manner of
occurrence.” State v. Martin, 573 A.2d 1359, 1364 (N.J. 1990)
(emphasis added) (quoting Model Penal Code and Commentaries
§ 2.03 comment at 260 n.13 (1985)). Subsection (1) of both HRS
§§ 702-215 and 216 refer to differences in the character of the
actual result. See, e.g., HRS § 702-215(1) (considering when “a
different person or different property is injured or affected” or
when the injury or harm is more or less serious than
contemplated). Subsection (2) of both statutes refers to
differences in the manner of the result’s occurrence. See, e.g.,
HRS § 702-215(2) (considering whether the result is “too remote
or accidental in its occurrence” or whether its occurrence is
“too dependent on another’s volitional conduct”).
Specifically, subsection (2) concerns the concept of
intervening causation. In a case involving reckless
manslaughter, the Supreme Court of New Jersey addressed the
concept of intervening causation under N.J.S.A. 2C:2-3(c), a
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statutory provision that is substantially identical to HRS § 702-
216, as follows:
[W]hen permitted by the law, “‘it is for the jury to
determine whether intervening causes or unforeseen
conditions lead to the conclusion that it is unjust to find
that the defendant's conduct is the cause of the actual
result.’” Pelham, supra, 176 N.J. at 461, 824 A.2d [at 1089-
90] (quoting Martin, supra, 119 N.J. at 13, 573 A.2d [at
1365]). The Code “does not identify what may be an
intervening cause,” ibid., but “‘deals only with the
ultimate criterion by which the significance of such
possibilities ought to be judged,’” Martin, supra, 119 N.J.
at 13, 573 A.2d [at 1365] (quoting [The New Jersey Penal
Code: Final Report of the New Jersey Criminal Law Revision
Commission], commentary to § 2C:2–3, at 50). An
“‘intervening cause’” occurs when an event “‘comes between
the initial event in a sequence and the end result, thereby
altering the natural course of events that might have
connected a wrongful act to an injury.’” Pelham, supra, 176
N.J. at 461, 824 A.2d [at 1090] (quoting Black's Law
Dictionary 212 (7th ed. 1999)). “Generally, to avoid
breaking the chain of causation for criminal liability, a
variation between the result intended or risked and the
actual result of [the] defendant's conduct must not be so
out of the ordinary that it is unfair to hold [the]
defendant responsible for that result.” Id. at 461–62, 824
A.2d [at 1090] (citing Martin, supra, 119 N.J. at 14, 573
A.2d [at 1365]; Wayne R. LaFave & Austin W. Scott, Jr.,
Handbook on Criminal Law § 35, at 246 (1972)). Thus, an
“intervening cause” denotes an event or condition which
renders a result “too remote, accidental in its occurrence,
or dependent on another’s volitional act” to fairly affect
criminal liability or the gravity of the offense. See
N.J.S.A. 2C:2–3(c); Pelham, supra, 176 N.J. at 461–62, 824
A.2d [at 1090].
State v. Buckley, 78 A.3d 958, 968 (N.J. 2013).
In the instant case, the circuit court instructed the
jury only as to “but for” causation under HRS § 702-214. At the
time, Abella did not request a causation jury instruction based
on the culpability standard relating to intervening causation in
subsection (2) of HRS §§ 702-215 and -216. As such, he asks this
court to recognize plain error in omitting such an instruction.
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He asserts:
Here, there was an intervening act by numerous persons,
other than Abella, i.e., medical treatment, and a decision
made that terminated Higa's life. In other words, the
result caused was “too remote” or “too dependent on
another's volitional conduct to have a bearing on the
defendant's liability or on the gravity of the defendant's
offense.” § 702-215(2), HRS [2014]; see also § 702-216(2),
HRS [2014] (reckless or negligent causation).
In this case, the court’s instruction on causation was
an incomplete and a misleading statement of the law - and thus
plain error - because it omitted any reference to the
“culpability” standard in HRS §§ 702-215(2) and –216(2).
Evidence was adduced at trial of intervening events, from which a
jury could have inferred that Abella’s culpability was
diminished. Specifically, jurors could have considered evidence
of Higa’s daily improvements after his surgery, showing that Higa
could reach toward stimuli and open his eyes in response to
voice, that he was becoming more alert, and that his condition
was not worsening. Jurors also could have considered Dr.
Oshiro’s testimony that it was “probably possible” that Higa
could have regained independent breathing. Moreover, jurors
could have also fairly considered the circumstances surrounding
the decision to withdraw Higa’s life support, including that
Higa’s daughter was not informed of the progress he had been
making since the surgery.
This evidence could enable a jury to conclude that
intervening volitional conduct caused Higa’s death such that it
would be unjust to convict Abella of a homicide. “When the
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actual result is of the same character, but occurred in a
different manner from that designed or contemplated, it is for
the jury to determine whether intervening causes or unforeseen
conditions lead to the conclusion that it is unjust to find that
the defendant’s conduct is the cause of the actual result.”
Martin, 573 A.2d at 1365. Indeed, in his closing argument before
the jury, defense counsel specifically urged the jurors to draw
this conclusion:
One more thing. Remember I asked the doctor, I said what if
you didn't pull the tubes out, would he have survived
another day? He said yeah. Would you survive another day?
Said yeah. Would you survive another day? Yeah. So they
don't really know to this day whether that guy would still
be alive and what kind of progress he would have been making
over this past year. They really don't know, and they made
a judgment call, and in making that judgment call, they want
you to hold my client responsible for that, and that's just
not right. That's just not right.
In light of the evidence, whether it would be unjust to
hold Abella accountable for the result he in fact caused is
precisely the inquiry the legislature intended for a jury to
consider per subsection (2) of HRS §§ 702-215 and -216. In this
instance, by limiting the jurors’ understanding of legal
causation to the “but for” rule under HRS § 702-214, the circuit
court prevented the jurors from meaningfully considering the
issue of whether it would be unjust to consider Abella criminally
liable for causing Higa’s death on July 29, 2014 based on
evidence of intervening events. For this reason, the circuit
court plainly erred in omitting a jury instruction based on
subsection (2) of HRS §§ 702-215 and -216.
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In reaching this conclusion, we disagree with the ICA’s
holding that, as a matter of law, removal of life support cannot
constitute an intervening cause that may absolve a defendant from
liability for causing death. See Abella, 144 Hawai i at 148-49,
438 P.3d at 280-81. Thus, we also disagree with the New Jersey
Supreme Court majority in Pelham, relied upon by the ICA.
Pelham is the only case cited by the ICA that is
directly relevant to the instant case, given the unique statutory
definitions of causation in New Jersey and Hawai i.17 In Pelham,
17
In addition to Pelham, the ICA cited People v. Bowles, 607 N.W.2d
715 (Mich. 2000), State v. Yates, 824 P.2d 519 (Wash. App. 1992), and People
v. Funes, 28 Cal. Rptr. 2d 758 (Cal. App. 1994). See Abella, 114 Hawai i at
148-49. The majority in Pelham also favorably cited these cases. See Pelham,
824 A.2d at 1091-92. However, the Pelham dissent persuasively observed:
New Jersey is only one of two states that have adopted MPC
§ 2.03 and explicitly added the intervening volitional
conduct of others as a factor to be considered in
determining causation. . . .
[T]he majority’s heavy reliance on other states’
common-law proximate causation jurisprudence as support for
its position is misplaced. Not one case cited by the
majority interprets a causation provision similar to our
own. Only twelve states have codified general statutory
causation provisions. Three states have adopted the
essential elements of MPC § 2.03 verbatim, and do not
include N.J.S.A. 2C:2–3’s additional requirements that the
actual result of a defendant’s conduct not be “too . . .
dependent on another’s volitional act to have a just
bearing” on his liability or on the gravity of the offense.
Three states have wholly rejected the MPC causation
provision on which ours was patterned and instead rely
solely on a draft provision of the Final Report of the
National Commission on Reform of Federal Criminal Laws
(Brown Commission) that “deals with only one aspect of the
traditional problem of causation, indicating that if an act
is a but-for’ or concurrent cause of a result causation ‘may
be found.’” See MPC, supra, § 2.03 cmt. 5 at 264–65 & n.
23. Two states have adopted provisions incorporating the
Brown Commission draft provision, along with provisions
analogous to MPC § 2.03(3)(a), supra note 2.6. Two states
have adopted the MPC tentative draft alternative that the
ALI ultimately rejected, and thus couch causation
culpability in terms of whether the actual result was
(continued...)
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the victim suffered “catastrophic injuries” after a car accident,
including a spinal column fracture paralyzing him from the chest
down, multiple broken ribs, a punctured lung, and head injury,
among other things. 824 A.2d at 1084. He required a vena cava
filter, a surgical airway through his neck and into his windpipe,
a feeding tube inserted directly to his stomach, and a catheter.
Id. Despite his brain injuries, he “was aware of his physical
and cognitive disabilities” and occasionally “tried to remove his
ventilator” during lucid moments. Id. at 1085. About five
months after the accident, “[b]ecause of his brain damage, his
lack of improvement, and his severe infections[,] [his] family
decided to act in accordance with his wishes and remove the
ventilator.” Id. He was pronounced dead within two hours of the
ventilator’s removal. Id.
The defendant, who was charged with aggravated
manslaughter and convicted of second-degree vehicular homicide,
argued on appeal that the trial court committed reversible error
in instructing the jury that “the removal of life supports, in
this case a ventilator, is not a sufficient intervening cause to
17
(...continued)
“foreseen or foreseeable as a substantial probability.” See
MPC, supra, § 2.03 cmt. 3 at 261 n. 17. The majority’s
reliance on other jurisdictions' law of causation is thus
not persuasive because those cases do not interpret our
unique provision, which explicitly incorporates both the
intervening volitional conduct of others and the jury’s
sense of justice as factors to be considered in determining
a defendant's liability.
Id. at 1097, 1099 (Albin, J., dissenting) (footnotes omitted) (emphasis
added).
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relieve the defendant of criminal liability.” Id. at 1086. The
court of appeals agreed and vacated the conviction, concluding
that “the trial judge’s instructions on intervening cause
deprived defendant of the opportunity to have the jury decide the
essential issue of causation.” State v. Pelham, 801 A.2d 448,
456 (N.J. App. 2002). The court of appeals thus held that the
instruction “deprived defendant of his constitutional right to
have the jury in a criminal trial to decide all elements of the
charged offense.” Id.
On further review, the Supreme Court of New Jersey
upheld the conviction. See Pelham, 824 A.2d at 1092. The court
held that “removal of life support, as a matter of law, may not
constitute an independent cause for purposes of lessening a
criminal defendant’s liability.” Id. The majority reasoned:
Removal of life-sustaining treatment is a victim's right.
It is thus foreseeable that a victim may exercise his or her
right not to be placed on, or to be removed from, life
support systems. Because the exercise of the right does not
break unexpectedly, or in any extraordinary way, the chain
of causation that a defendant initiated and that led to the
need for life support, it is not an intervening cause that
may be advanced by the defendant.
Id. at 1093.
The court’s decision in Pelham turned largely and, in
our view, incorrectly, on the importance of upholding a person’s
right to refuse life-sustaining medical treatment and “the effect
to be given to a victim’s exercise of that right in the context
of a homicide trial.” Id. at 1089. As the dissent pointed out,
Pelham was “not about a patient’s right to self-determination”
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and the majority’s ruling, in essence, “conflates the right of
the patient to self-determination with the right of the accused
to have his case decided by a jury.” Id. at 1095-96 (Albin, J.,
dissenting).
The dissent focused on N.J.S.A. 2C:2-3c, the criminal
causation provision patterned on the MPC, which provides for the
consideration of whether a result is “too remote, accidental in
its occurrence, or dependent on another’s volitional act to have
a just bearing on the actor’s liability or on the gravity of his
offense.”18 Id. at 1095 (Albin, J., dissenting). The dissent
observed that this “general and broad language . . . was intended
to apply to the infinite number of variables that arise in the
unique circumstances of each case, including that of this
defendant.” Id. (Albin, J., dissenting). The dissent also
emphasized, “Causation was a matter that the jury should have
been trusted to decide correctly” and that the majority “ignores
the statutory language that governs this case[.]” Id. (Albin,
J., dissenting). Further, the dissent noted:
the drafters of our Code clearly contemplated, as previously
recognized by this Court, that “[w]hen the actual result is
of the same character, but occurred in a different manner
. . ., it is for the jury to determine whether intervening
causes or unforeseen conditions lead to the conclusion that
it is unjust to find that the defendant's conduct is the
cause of the actual result.” Martin, supra, 119 N.J. at 13,
573 A.2d [at 1366-67] (emphasis added). This is just such a
case.
Here, . . . defendant does not dispute that his
18
Although HRS §§ 702-215(2) and 702-216(2) differ from the New
Jersey provision because they do not include the word “just,” this does not
bear on our analysis.
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conduct was a “but-for” cause of the victim's death.
Instead, he claims that the State must prove the additional
requirement of N.J.S.A. 2C:2–3c that he recklessly caused
the actual result, i.e., the victim's death, five months
after the accident and two hours after the victim and his
family elected to disconnect his ventilator. In order for
this defendant to be guilty of vehicular homicide, the State
must prove that the specific character and manner of the
victim's death was either: (1) within the risk of which
defendant was aware; or, (2) if not, then not “too remote,
accidental in its occurrence, or dependent on another's
volitional act to have a just bearing” on defendant's
liability or the gravity of his offense. N.J.S.A. 2C:2–3c;
Martin, supra, 119 N.J. at 12, 573 A.2d [at 1364].
Id. at 1098 (Albin, J., dissenting) (emphasis in original).
We adopt the reasoning of the dissent in Pelham. To
hold as a matter of law that the removal of life support cannot
constitute an intervening cause ruling interferes with the role
of the jury in finding the essential element of causation. See
id. at 1098 (Albin, J., dissenting) (“The majority holds, in
essence, that the risk that a victim will elect to reject or
terminate some life-sustaining measure as a result of his
injuries is, as a matter of law, within the risk of which
defendants are aware. I part with the majority on this point.
Whether defendant was aware of the risk was a question for the
jury.”). Moreover, we agree that
[i]n making no allowance for the varied circumstances in
which life support may be terminated by a victim, the
majority does not permit the jury to consider the level of
medical assistance required to sustain life, for example,
whether the medical regimen is so burdensome as to deny even
a minimal quality of life, or is relatively benign in
comparison. The nature and scope of the medical care and
the quality of life of the victim are factors that should be
considered along with remoteness in determining whether
intervening circumstances — the voluntary termination of
life support — should have a just bearing on the outcome of
the case.
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Id. at 1100 (Albin, J., dissenting).
In adopting this analysis, we in no way diminish the
importance of the right to refuse medical treatment as provided
in Chapter 327E. However, we cannot infringe on a defendant’s
right in a criminal case to have the jury determine causation, an
element of the crime, beyond a reasonable doubt. The choices of
patients or their families do not affect that right. This is
particularly so when, as was the case here, there was evidence
suggesting that the prognosis for the victim was uncertain at the
time the life support was discontinued. We at once respect the
difficult, highly personal, and protected decision made by Higa’s
family while recognizing our responsibility to ensure that Abella
receives a fundamentally fair trial. 19
For the above reasons, we hold that the trial court
should have instructed the jury on intervening causation pursuant
to HRS §§ 702-215 and 702-216, and its failure to do so was
“prejudicially insufficient,” requiring a new trial. Nichols,
111 Hawai i at 334, 141 P.3d at 981.20
IV. CONCLUSION
For the foregoing reasons, we vacate the ICA’s May 7,
19
We note that on remand, a jury might well come to the same
verdict, and nothing in this decision should be read to foreclose that
possibility. But that must be a decision left to the jury. Pelham, 824 A.2d
at 1100 (Albin, J., dissenting).
20
The circuit court should be mindful of administering jury
instructions consistent with this opinion such that the jury is informed
whether the causation instructions discussed herein apply to a lesser-included
offense.
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2019 judgment on appeal and vacate the circuit court’s
December 16, 2015 judgment of conviction. The case is remanded
to the circuit court for proceedings consistent with this
opinion.
Dana S. Ishibashi /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Chad M. Kumagai /s/ Sabrina S. McKenna
(Brandon H. Ito
/s/ Richard W. Pollack
on the brief)
for respondent /s/ Michael D. Wilson
48