KEALAKEKUA — The defense attorney representing a police standoff suspect is seeking to have all the charges tossed.
KEALAKEKUA — The defense attorney representing a police standoff suspect is seeking to have all the charges tossed.
Third Circuit Judge Ronald Ibarra is expected to rule on the motion before the start of the Jan. 17 trial.
At a hearing that concluded Tuesday, Terri Fujioka Lilley, attorney for Macdon Donny Thromman, sought the dismissal of all charges against her client stemming from a 20-hour standoff with police at his home in Halaula in North Kohala between July 13-14 of 2015.
Thromman is charged with a host of counts stemming from two indictments, the most serious of which are several counts of attempted murder in the first degree. Court documents state he shot his girlfriend, Heather Coito, in her leg, as well as Hawaii County Officer Ray Fukada in his forearm when the officer responded to a domestic disturbance call at Thromman’s residence on July 13, 2015.
The other counts of attempted murder in the first degree originate with bullets fired from inside the house, said to have endangered the life of Officer Paul Kim, who was present outside the home during the standoff.
“Based on three shots fired, (Thromman) has been charged with six counts of attempted murder,” Fujioka Lilley said. “That seems a bit beyond the pale to me, but obviously (the prosecution) has a different view.”
The defense’s argument for dismissal of all charges with prejudice, meaning they could not be refiled, relies on what Fujioka Lilley said are a number of issues involving incorrect police procedure.
She said the faults in procedure may have been motivated by a potential bias, as police officials entered the fray with the knowledge that one of their colleagues had been shot by the suspect.
She also contended bias may have existed for those officers who were aware that Coito, who Thromman allegedly abused physically before shooting her, is a relative of Assistant Chief Marshall Kanehailua.
“There are a number of evidentiary issues with respect to evidence that was available but is no longer available in the case for the defense,” Fujioka Lilley said.
The first such issue was that the more than five hours of conversation between Thromman and the Crisis Negotiation Team (CNT) over the 20-hour standoff were not recorded.
This is a problem, the defense contended, because the content of the conversations may have provided exculpatory evidence speaking to Thromman’s state of mind in the context of stressful circumstances.
The defense said Thromman’s stress level was exacerbated at the time, as he had recently lost his job and Coito had told him she was leaving him for another man.
“Mr. Thromman’s state of mind is the primary and sometimes only fact at issue with respect to 28 of the 32 crimes with which he is charged,” the motion to dismiss states. “Without that evidence, which is now lost, destroyed, and/or otherwise unrecoverable, Mr. Thromman cannot receive a fair trial as to these 28 charges.”
The prosecution countered, noting that the CNT’s common practices reflect that it isn’t standard procedure to record negotiations.
Officers testified that the circumstances of the case made traditional recording methods unusable, adding they didn’t use a speaker phone and a recording device because the noise from a busy department could have complicated negotiations and led to a less favorable outcome.
Officers also unanimously testified that the knowledge of Officer Fukada’s shooting didn’t materially change any of their actions during or after the confrontation.
Another central issue for the defense was the contention by the prosecution that Thromman intentionally shot at officers attempting to enter his residence after deploying pepper spray.
Fujioka Lilley said Thromman’s state of mind, the tense and prolonged nature of the standoff, and the surprise of OC canisters (pepper spray), which were deployed near the standoff’s conclusion, caused the defendant to fire his weapon in response.
She said those shots were never intended to harm anyone, despite exiting the residence toward police, who had it surrounded.
According to the motion to dismiss, Detective Walter Ah Mow spoke with Coito’s parents, Tim and Ann Coito, the day following the standoff, requesting they clean up the residence. The task included removing OC canisters within the residence, which Ah Mow said his team had forgotten to collect.
During the course of the cleanup, the Coito’s picked up glass from a broken bathroom window. Officer Paul Bugado noted in his report of the incident that when police deployed OC canisters, he heard a gunshot and saw glass from the bathroom window being expelled outward, “as if a bullet had passed through them.”
But Mr. and Mrs. Coito said there was no glass in the yard outside the window, which the defense contended indicates that the glass was not broken by a bullet fired from Thromman’s gun at police, but rather by an OC canister that was thrown by police through the window.
The defense also said that none of the 286 crime scene photos accurately capture the distribution of OC canisters or broken glass at various points throughout the home, which could have spoken to the nature and catalyst of any gunshots Thromman may have fired as police moved into the residence.
Mr. and Mrs. Coito also removed a television set, which was situated in front of a large picture window at the front of the house. The television had reportedly been knocked over and had a bullet hole in the screen.
A bullet hole through the window behind where the television was situated indicates that Thromman’s gunshot — which the defense argued first pierced the television, then the window and ultimately exited the residence toward police officers — was not fired with intent to harm, Fujioka Lilley said.
The photos taken at the scene never highlighted the damage to the television or its “position relative to the bullet hole through the frame of the street-facing picture window,” the motion states.
All of this, the defense contended, shows an improper handling of evidence, rendering it unusable for Thromman’s defense.
The prosecution argued that proper chain of evidence was upheld, and went on to say any officers collecting evidence on scene couldn’t have known at the time that the placement of the OC canisters would be relevant evidence to the upcoming case, dismissing notions of any bad-faith bias during the processing of the scene.
Both the prosecution and the defense were ordered to submit findings of fact and conclusions of law by Jan. 3, 2017.
The trial is set for Jan. 17, meaning Ibarra will issue his ruling on the motion to dismiss all charges with prejudice sometime during that two week period — unless the trial date is delayed.
One count of endangering the welfare of a minor, stemming from Thromman’s alleged physical abuse of Coito while she held one of their two children, was dismissed on Tuesday.