Posted on: Friday, May 9, 2003

Judge lets Aki stay silent on names

By David Waite
Advertiser Courts Writer

Christopher Aki, accused of killing 11-year-old Kahealani Indreginal, cannot be compelled to identify people whom he does not intend to call as witnesses at trial, Circuit Judge Victoria Marks ruled yesterday.

State Deputy Public Defender Todd Eddins, representing Aki, said Marks' ruling means Aki will not have to disclose the names of people Aki believes may have killed the girl, unless he intends to call them as witnesses on his behalf.

City Prosecutor Peter Carlisle last month filed a request in hopes of obtaining a court order that would require Aki and Eddins to provide him with the names of others if Aki is going to assert at trial that he did not kill the girl and that someone else did.

Carlisle told Marks that the prosecution has a right not to be surprised at trial by a sudden disclosure by Aki of the names of people who Aki would claim actually were the killers.

If Aki is going to claim that he was present when the killing occurred but that others did the killing, it would be a form of alibi defense and the Hawai'i Supreme Court and U.S. Supreme Court have made it clear that the names of alibi witnesses must be disclosed prior to the start of a trial, Carlisle said.

The girl's body was found off 'Aiea Loop Trail on Dec. 13, three days after she disappeared from Pu'uwai Momi public housing in Halawa.

Aki was arrested a day later, after police said he gave two statements, one implicating two men in the murder and a second in which he admitted killing the girl. The statements implicating the other two men were discredited.

But at yesterday's court hearing, Carlisle cited a letter that Aki sent to his mother shortly after his arrest.

In the letter, Aki tells his mother: "I am just an innocent victim like Kahealani," Carlisle said. Aki tells his mother that the statements he gave to police were not true and that he, too, was "beaten and held against my will" by the girl's killers.

Carlisle said the letter continues with Aki telling his mother, "You have to trust me — me and my lawyer are the only ones who know what happened."

Aki has pleaded not guilty to a charge of second-degree murder.

According to Carlisle, Aki's letter to his mother indicates that the girl was "thrown into bathroom" and that Aki was not present in the room to witness what happened to her.

Carlisle said that Aki is telling his mother in the letter, "I was not there, I was not present, my hand was not there upon the instrument that caused her death."

"That," Carlisle said, "is an alibi defense."

But Eddins told Marks that forcing Aki to disclose the names of others who might be the killers would be a clear violation of Aki's rights against self-incrimination which are protected by the state and U.S. constitutions.

As for Carlisle's argument that Aki's constitutional rights would not be violated, Eddins called it "a newfangled and almost Ashcroftian approach to the Constitution."

Any criminal defendant has an absolute right not to testify at his own trial, Eddins said, and Carlisle's request was akin to asking Aki to testify on certain facts in the case in advance of the decision Aki will have to make at trial as to whether to testify.

The case is set to go to trial on Sept. 15. Aki remains in custody at O'ahu Community Correctional Center in lieu of $5 million bail.