For the second time this week, a judge has dismissed a murder charge at the request of Big Island prosecutors.
For the second time this week, a judge has dismissed a murder charge at the request of Big Island prosecutors.
Prosecution witness Shannon Souza invoked his Fifth Amendment right against self-incrimination in the continuance of a preliminary hearing Friday for Eric Fontes Jr., who was accused of the gruesome New Year’s murder of 59-year-old Barton Bumatay at Bumatay’s Hawaiian Paradise Park home.
Bumatay’s decomposing, decapitated and dismembered body was found Jan. 23 in two locations off Beach Road in the same Puna subdivision.
Souza refused to answer the first question from Deputy Prosecutor Kevin Hashizaki, the same question he asked two previous witnesses when the hearing started Feb. 19: “I want to direct your attention to the date of Dec. 31, 2015. That would New Year’s Eve. On that date, were you at the residence of Barton Bumatay?”
After Souza pleaded the Fifth, Hashizaki said he had no further questions and asked Hilo District Judge Barbara Takase to dismiss charges of second-degree murder, being a felon in possession of a firearm, two counts of first-degree terroristic threatening, and a single count of second-degree terroristic threatening against the 34-year-old Fontes — without prejudice, which would allow the state to refile charges in the future.
“In light of the fact that Sharina Pavao, Christian Alameda and now Mr. Souza have asserted their Fifth Amendment rights, the state has no … evidence to proceed with the charge against Mr. Fontes,” Hashizaki told the judge.
Cody Frenz, Fontes’ court-appointed attorney, requested the judge dismiss the charges with prejudice, which would prohibit prosecutors from refiling the charges.
“We were prepared to present an actual defense to this case, both alibi witnesses as well as witnesses that would indicate someone other than my client is, in fact, responsible for this crime. We were hoping to seek justice at today’s preliminary hearing.”
Takase dismissed the charges without prejudice.
According to court documents filed by police, Alameda told detectives he and Souza went to Bumatay’s 33rd Ave. home shortly after midnight New Year’s Day, and saw Fontes with a .22 caliber revolver and Bumatay dead on the kitchen floor.
Alameda and Souza told detectives Fontes forced them at gunpoint to help him dispose of Bumatay’s body.
Alameda led detectives to Bumatay’s remains. An autopsy found Bumatay was shot twice in the head.
Documents state Pavao told detectives Fontes bragged to her about making Alameda and Souza chop up the body.
After Friday’s hearing, Frenz commended the state for “being able to acknowledge what the evidence became and make the call that they did.”
“My client was asserting his innocence, wanting to pursue the case to defend himself, not only in the judicial system but also in the community,” she said. “We do hope for the sake of the Bumatay ohana that justice can be sought on his behalf at some point.”
County Prosecutor Mitch Roth said it was “a bit of a surprise” that Souza pleaded the Fifth. He said it appeared as of Thursday that Souza would testify.
“Generally, we don’t charge a case unless we can prove a case beyond a reasonable doubt,” he said. “All three of these people who took the stand were willing to come forward and testify until their attorneys convinced them to do otherwise.”
Roth said his office is “reassessing” options. That includes taking the case to a grand jury for possible indictment. There is no statute of limitations on murder.
“There’s a lot of forensic (evidence) and there are some people we are interviewing … ,” he said. “After talking to the (police) chief and the officers here, we’re pretty confident that in the end, justice will prevail.”
Roth wouldn’t say if witnesses would be offered immunity for their testimony but said “different options” will be discussed with their lawyers.
Fontes remains in custody at Hawaii Community Correctional Center in lieu of $100,000 bail on unrelated drug charges.
“He may be able to make bail, but his bail is pretty high,” Roth said. “We’re asking the police to rush (forensic evidence) testing in this case.”
On Wednesday, Hilo Circuit Judge Glenn Hara dismissed without prejudice a charge that Xavier “Pee Wee” Cortez Jr. fatally strangled his 20-year-old girlfriend, Sommer Ferreira, on Sept. 20, 2011, in the Wainaku home where they lived.
Prosecutors requested charges dropped in that case, as well, stating noncooperation of witnesses.
Cortez is still accused of the beating death of Ferreira’s 18-month-old daughter, Pomaikai Ferreira, and is scheduled for trial in May.
Email John Burnett at jburnett@hawaiitribune-herald.com.