WAILUKU - Saying there wasn't enough evidence to link a defendant to crimes, a judge Thursday dismissed charges against a man who had been driving a truck that blocked in a car before a robbery and shooting in the Piihana Farms area of Wailuku.
But Wailuku District Judge Jan Apo did find probable cause for robbery and other charges against Erath Kaihewalu, another suspect in the case, after testimony during a preliminary hearing Thursday.
Kaihewalu, 20, of Waiehu was identified as the man who used a rock to smash the driver's side window and hit the forehead of the driver of a black Jaguar during what was described as an attempt to steal the car May 4.
Erath Kaihewalu, 20, of Waiehu appeared at a preliminary hearing in Wailuku District Court on Thursday, facing robbery and other charges stemming from an incident May 4 that was described as an attempt to steal a car in the Piihana Farms area of Wailuku. The judge found probable cause for the charges and bound him over to 2nd Circuit Court.
The Maui News / MATTHEW THAYER photo
Joy Flint was a witness in the preliminary hearing of Erath Kaihewalu and Kyle Keahi, who were facing robbery and other charges.
The Maui News / MATTHEW THAYER photo
At about 9 that morning, Kahului resident Nelson Magsayo had driven the Jaguar to take Joy Flint to the Piihana housing area, where she said she wanted to give some methamphetamine to someone she knows. She returned to the car after finding that the person wasn't home, Flint said, and a low-rider truck with tinted windows reversed near the Jaguar.
Magsayo said two men from the truck approached the Jaguar, with one going to the driver's side and saying, "What you guys doing in my town?"
Feeling intimidated, Flint said that she told Magsayo to go, and he drove down Piihana Road, which becomes a dirt road and ends in a dirt turnaround in a farmland area. Flint said that the truck followed and blocked the road so the Jaguar couldn't leave.
Flint got out of the car and walked toward the truck, intending to go around it, when someone from the truck grabbed her and asked, "Where's the dope - you got it or does he have it?" she testified.
She said she dumped out the contents of her bag to show Flint testified she was sitting in the truck next to Kyle Keahi, who was in the driver's seat, when she saw one man use a shotgun to shoot the back window of the Jaguar and another man use a rock to hit the Jaguar's driver's side window. One or two other men were outside the truck, Flint said.
Afterward, she said Keahi wouldn't let the man, who fired the shotgun, into the truck.
"He just was upset," Flint said. "He didn't want anybody to get hurt with a shotgun."
Flint said that she at first didn't tell police Keahi was the driver. But she said she later came forward when she felt threatened after someone put a gun to her niece's head.
"They said they got the wrong girl," Flint said.
She said she feared that her daughters instead may have been the intended targets.
Magsayo pointed out Kaihewalu as the man who approached, "telling me open your door, open your door."
After another man standing near the back passenger side of the car fired the shotgun that shattered a back window, Magsayo said, Kaihewalu threw the rock through the driver's window.
"I see the rock coming for my head," Magsayo said. "I see the blood coming out."
The man again told Magsayo, "Get out of your car, leave the key," he said.
"I'm scared," Magsayo said. "I'm not doing anything to him. I don't know why he doing that to me."
Magsayo said he drove out of the area, going home. Later, his nephew arrived and took him to the hospital, from where police were called.
Police Detective Oran Satterfield said spent 12-gauge shotgun shells were recovered from the Jaguar and birdshot was found in the passenger door panel behind the driver's seat. He said police also recovered a brown porous rock from the back seat floor and wadding from a 12-gauge shotgun shell behind the driver's seat. The driver's side window and rear passenger window were shattered, Satterfield testified.
After first testifying that she had gone with Magsayo to Wailuku to do errands that day, Flint said under cross-examination that she was dropping off drugs.
"So we're not talking about an errand - you were going with Nelson to distribute drugs?" asked Keahi's defense attorney Jon Apo, who is not related to the judge.
"Well, yeah," Flint replied.
She also acknowledged that she had been on a methamphetamine binge and hadn't slept for five days before the incident. Flint said she had smoked a gram of methamphetamine with Magsayo that morning, as well as a couple of nights earlier at his house.
Flint said her probation officer knows her situation, and she would be entering drug treatment following a relapse after four years of being clean.
Cross-examined by defense attorney Apo, Magsayo denied doing drugs with Flint, either that day or earlier. Magsayo said he had just completed his probation for drug charges. He said he had picked up Flint that day after his nephew asked.
Deputy Prosecutor Carson Tani said Keahi, 26, of Wailuku was charged as an accomplice in the case. If Keahi hadn't used the truck to block in the Jaguar, Magsayo "would have been able to get away and this probably wouldn't have occurred," Tani said.
In asking the judge not to find probable cause in Keahi's case, Jon Apo said "the state's perspective is based on the perception of two druggies."
Defense attorney Matthew Nardi, representing Kaihewalu, said that the credibility of the witnesses would have to be determined to find probable cause.
Judge Apo said he wouldn't rule on credibility of the witnesses, although he said there were issues. He found there was sufficient evidence for the charges of first-degree robbery, using a firearm in the commission of a felony, first-degree criminal property damage, keeping a loaded firearm in an improper place and first-degree terroristic threatening against Kaihewalu. His bail was reduced to $50,000, with his arraignment scheduled for May 30 in 2nd Circuit Court.
As for Keahi, "that's a whole different story," Judge Apo said.
"The most the evidence establishes here is he was at the scene, he was in this truck," he said.
* Lila Fujimoto can be reached at firstname.lastname@example.org.