Judge frees O'ahu suspect in 1999 killing
By David Waite
Advertiser Courts Writer
A O'ahu man who spent the past four years in jail awaiting trial on murder charges walked out of Circuit Court a free man yesterday after a state judge ruled that his constitutional right to a speedy trial had been violated.
But Harvey Ababa's new-found freedom may be short-lived.
Circuit Judge Marcia Waldorf dismissed four criminal counts against Ababa, but did not prohibit city prosecutors from reinstating the charges with an O'ahu grand jury indictment.
Prosecutor's office spokes-man Jim Fulton said steps will be taken to bring the same charges against Ababa "as quickly as possible."
Ababa, then 23, and his cousin, Rodrigo Ababa, 18 at the time, were charged with the shooting in Kapalama on Near Year's Eve 1999 that left one man dead and another critically wounded. Richard Tambua, 22, was killed by a shot in the neck and Donald Kamaka was wounded with a shot in the abdomen.
Ababa and his cousin were charged with one count each of attempted first-degree murder and attempted second-degree murder as well as second-degree murder and a firearms charge.
Earle Partington, a long-time Honolulu criminal defense lawyer, yesterday said charges are rarely dismissed in Hawai'i because of a delay in bringing a defendant to trial. "In a murder case, it's virtually unheard of," Partington said.
A search of records by the prosecutor's office going back five years showed that only one other murder defendant cited lack of a speedy trial in attempting to have the charges against him dropped, but that request was denied.
According to court documents and statements made in earlier court hearings, the shooting occurred at North King Street and Wolter Lane following a confrontation between two groups of men. The cousins were in one group and fired a handgun at members of the other group, the documents said.
Rodrigo Ababa pleaded guilty to a lesser charge of manslaughter in September 2000 as part of a plea agreement and in March 2001 was sentenced to no more than 20 years in prison.
Meanwhile, Harvey Ababa has remained confined at the O'ahu Community Correctional Center since his arrest Jan. 3, 2000, waiting for his trial to start.
Much of the four-year delay was attributed to a ruling early in the case by Circuit Judge Michael Town to toss out statements Harvey Ababa made to police shortly after his arrest.
An appeal of Town's ruling wended its way through the state Intermediate Court of Appeals and then the Hawai'i Supreme Court before various issues were resolved and the case scheduled for trial the week of July 2003.
But as that date approached, the trial was rescheduled to begin the week of Jan. 5, 2004.
On Dec. 31, 2003, Harvey Ababa's lawyer, state Deputy Public Defender Todd Eddins, filed a request with the court to dismiss the charges against his client, claiming the state failed to ensure that he was brought to trial in a timely manner.
City Deputy Prosecutor Russell Uehara argued in papers submitted to Waldorf that 1,457 days had passed between Ababa's arrest in January 2000 and Dec. 31, 2003, when Eddins filed his request to dismiss the charges.
But 1,440 of those days should have been excluded under various rules that govern criminal cases in Hawai'i, Uehara argued. That would mean that as of Dec. 31, the prosecution still had 163 days to begin the trial against Ababa, Uehara said.
Waldorf sided with the defense, and yesterday morning ordered that Ababa be set free immediately. He walked out of court with Eddins shortly before noon.
"He's very excited," Eddins said. "I had to take him back to the jail to pick up some of his belongings and then he planned to surprise his grandmother on her birthday," Eddins said.
Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030.
