Murder conviction
overturnedThe defense got short shrift
in the case of pilot John
Latchum's death, a court rules
The federal court murder convictions in 2000 of two young men in the 1998 slaying of Army helicopter pilot John Latchum in Waianae were overturned yesterday by the 9th U.S. Circuit Court of Appeals.
The San Francisco-based court ruled that U.S. District Judge Helen Gillmor erred when she would not let defense attorneys for Bryson Jose and Roberto Miguel argue their theory of the case. Both men were sentenced to life in prison without parole.
A third man originally charged with murder, Keala Leong, pleaded guilty to attempted burglary in exchange for prosecutors dropping the murder charge. He was sentenced to 10 years in prison.
The appeals court affirmed the uncontested convictions of Jose and Miguel for attempted robbery, attempted burglary, possession of an unregistered firearm and possessing a firearm while using illegal drugs.
Latchum, 33, on vacation with his family, was shot and killed when he went onto the porch of his rented cabin at the Waianae Army Recreation Center to chase away a group of young men who were trying to break in.
The appeal was based on the defense theory that a shell casing from the rifle that fired the fatal shot was found 114 feet from the cabin, while prosecution witnesses said Jose and Miguel, the alleged gunman, were 30 to 40 feet from the cabin.
When defense attorneys argued that one of the witnesses and not Miguel may have fired the gun, Gillmor said there was no evidence of that and instructed the jury to discount it.
The appeals court said in not allowing the defense to make their argument during closing remarks, Gillmor determined there was no evidence supporting the idea that witness Donald Calarruda was the gunman and that Miguel's attorney did not have a good-faith basis to make the argument because he had stated in earlier proceedings that Miguel was the gunman.
"The record supports neither ground," the court said. "Because reasonable inferences from the evidence supported the defense theory, the court erred in precluding counsel from arguing his theory and in instructing the jury that no evidence supported it. Such an error is structural and requires reversal."
Jose's post-trial attorney, Barry Edwards, said he was pleased that the appeals court agreed with their position and that "these two gentlemen deserve a new trial."
Miguel's attorney, Federal Public Defender Peter Wolff, and prosecutors did not immediately return telephone calls seeking comment on the ruling.
According to court records, on June 2, 1998, Miguel, Jose, Leong and Calarruda were carousing with several friends including Keoni Tapaoan, Jason Afong and Eddie Lovell and had gone to Waianae to drink and gamble.
Calarruda brought along a sawed-off rifle, which was handed around to others in the group, according to testimony.
The defense suggested that Calarruda and Tapaoan colluded to blame the defendants for the shooting.
The appeals court noted that the shell casing was 114 feet from the cabin were Latchum was standing and that a prosecution expert testified that a casing ejected from the rifle would go about five to 10 feet.
The court said Calarruda's and Tapaoan's testimony placed themselves in the area where the shell casing was found by police and that they testified that Miguel and Jose were about 40 feet from the cabin.
"Therefore, the government's own witnesses' testimony placed them, not Miguel or Jose, near where the physical evidence suggested the shooter was located," the appeals court said.
