Man who gagged child
found guilty of manslaughter

By Susan Kreifels
Star-Bulletin

Mikael Malakha today was found guilty of manslaughter for killing his girlfriend's 3-1/2-year-old son by gagging him with a sock.

Circuit Judge Herbert Shimabukuro issued the verdict in the jury-waived trial, rejecting the second-degree murder charge brought by prosecutors.

Malakha will be sentenced Oct. 30 and faces a maximum term of 10 years in prison.

Shimabukuro said prosecutors did not prove beyond a reasonable doubt that Malakha intended to kill Zachary Riviera, or was aware the gagging "was practically certain to cause death."

Zachary's nasal passages were never covered during the gagging, and the child was checked every 10 to 15 minutes until he was found not to be breathing, the judge noted.

However, Malakha disregarded the risk to the child and recklessly caused the death, he said.

The child was gagged on Oct. 21, 1991, in Malakha's seventh-floor Ala Moana apartment. He died about four days later in Kapiolani Hospital of cardiac arrest after suffocation.

Malakha's girlfriend, Gina Lynn Riviera, 31, also had been charged with second-degree murder, but pleaded guilty to reckless manslaughter in 1996 in a plea agreement and was sentenced to five years' probation.

Riviera, who took the witness stand last week, said that Malakha had gagged her son at least five times before the incident leading to the death.

The child, who was brain-damaged, cried a lot, and the couple developed a routine to quiet him while they were having sex, she said.

They would play a tape with Malakha's voice, turn on the air conditioner, stick a rag or some gag in his mouth, and tie strips of material around his head, according to her testimony.

The child was unable to use his hands to tear off the binding that held the sock in place, she said.

Shimabukuro said that, according to medical reports, the sock had "migrated" to the back of the child's throat.