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The Honolulu Advertiser

Posted on: Friday, April 26, 2002

Judge to rule on mortuary warrant

By Hugh Clark
Advertiser Big Island Bureau

HILO, Hawai'i — Big Island Judge Greg Nakamura will rule May 3 on whether to invalidate a state search warrant used to seize 13 boxes of records from a Hilo mortuary under investigation after allegations that bodies were buried without caskets.

The owners of Memorial Mortuary, Robert and Momi Diego, both 59, and their 32-year-old daughter Bobbie-Jean Diego were arrested March 20 for second-degree theft. They were released 24 hours later and have not been charged.

The Diegos deny allegations by a former employee that the mortuary sold caskets and then buried several bodies in bags, that Robert Diego conducted embalmments even though he is not licensed to do so, and that the business sold pre-need funeral plans without state authorization.

At a hearing yesterday in Hilo Circuit Court on a petition filed by the Diegos, their attorney Brenda Carreira argued the search warrant was too broad and should have been confined to the four burials whose circumstances have come into question.

She said the warrant gave state investigators "unbridled discretion to take whatever they wanted" during the Feb. 20 search. "There were absolutely no limits."

Carreira argued that even if the claims contained in the state affidavit seeking the warrant were true, the state is too late to make a case.

The alleged theft of caskets occurred in 1982 and 1983, and the statute of limitations for second-degree theft goes back just three years, she said. As for claims involving funeral plan sales and embalming, the statute of limitations covers two years and that time has lapsed, she said.

Deputy Attorney General Christopher Young argued that Carreira's motion was premature since no charges have been filed.

Carreira also asked why state investigators never interviewed Mike Letson, the embalmer who was under contract to Memorial Mortuary when Robert Diego is alleged to have conducted five embalmments in 1994-95.

The Diegos have said they were not responsible for the actual burial of bodies at Mauna Kea Memorial Park, where a state affidavit said at least two bodies were buried without caskets. If any theft of caskets occurred, they said, it was the responsibility of the former owners of the cemetery.

The complaints against the mortuary were brought to state investigators by Lucille Mossman, a former employee and former girlfriend of Robert Diego. She did not attend yesterday's hearing.

If the judge allows the search warrant to stand, another hearing will be held May 23 on Carreira's motion to suppress evidence and return all records to the Diegos.