June 5, 2018
KEALAKEKUA — A 3rd Circuit Court judge was shocked to learn Monday that a piece of DNA evidence in the reported 2016 rape at Old Kona Airport Park had disappeared while in the possession of Hawaii County police.
Defense counsels for Samuel Latrik and Tyron Sigrah sought to have sexual assault charges dismissed due to loss, spoliation and/or destruction of key forensic evidence after a tampon collected from the crime scene went missing while being stored at the Kona Police Station's outdoor evidence locker.
Latrik, 18, and Sigrah, 17, are facing sexual assault, terroristic threatening and kidnapping charges in connection to a Sept. 3, 2016, incident at Old Kona Airport Park. The Hawaii Police Department says two boys approached a woman, punched and sexually assaulted her. Police added the boys fled when confronted by an unidentified person.
"What were they thinking?" Judge Robert D.S. Kim asked deputy prosecutor Sherri Lawson about the lost tampon. "Don't you think in a sex assault case a tampon in a victim is critical in this case? Would you not agree that this is spoliation of evidence?"
Lawson agreed the loss of evidence was reckless but unintentional. She added the tampon isn't a critical loss.
Hawaii Police Department Maj. Robert Wagner when contacted after the hearing said the evidence was locked inside a cage within a cage, and it appeared a faulty door allowed what police believe was a rodent to get in.
"It's definitely a failure on our part. It was not an intentional mistake," he said.
Kim said in court Monday that the missing evidence is cause for concern because evidence "is to be safeguarded."
"That's not acceptable, however, in view of the seriousness of the charges, I'm going to grant in part and deny in part," he said.
Kim denied the dismissal of sexual assault charges and denied the suppression of DNA evidence. However, Kim said jury instruction would be given regarding the missing evidence, which could appear favorable to the defense.
A motion to continue Latrik's trial date was also addressed. Latrik's counsel, James Biven, said he needed more time to prepare the case with regards to the DNA evidence. Kim granted the motion. Latrik's trial is scheduled for Oct. 23.
Lawson also filed a motion to consolidate Latrik and Sigrah's cases. Kim didn't dispute that there were similarities in the case. However, since Sigrah's trial is firm-set for Aug. 21, the judge didn't think it was practical to advance Latrik's case after granting the continuance.
Kim questioned why the cases weren't filed together in the first place. Lawson explained evidence against both suspects came in at different times.
"We proceeded on these cases as quickly as possible," Lawson said.
Defense counsel for Sigrah, Wendy DeWeese, opposed the motion to consolidate.
"There is possible finger-pointing between the two," DeWeese said of the defendants. "It might behoove my client to keep (the trial date) where it is rather than join."
Kim denied consolidation of the cases.