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Killer’s term
cut 5 years as
manslaughter
count dropped

Based on a Supreme Court
ruling, his lawyer successfully
argued that he can't be convicted
of the same crime twice

---

By Debra Barayuga
Star-Bulletin

A man who was supposed to serve a minimum of 15 years for killing his girlfriend will now only have to serve a minimum of 10 years.

Abraham Fu is serving five years for manslaughter in the death of Sherry Morioka and 10 years for using a firearm to kill her when she tried to leave him seven years ago.

But Circuit Judge Gail Nakatani yesterday set aside Fu's September 1993 manslaughter conviction, reducing his minimum sentence by five years. That makes him eligible for parole in 2002.

The defense had requested the manslaughter conviction be set aside based on a Hawaii Supreme Court ruling.

The justices ruled in 1998 that a defendant can't be convicted of a charge of murder and a separate charge of using a firearm in a murder -- which amounts to being convicted of the same crime twice, said defense attorney Earle Partington. "It's the same crime by a different name."

The Legislature intended that the defendant be punished at the most serious level, Partington said.

In Fu's case, the firearm offense, not manslaughter, netted him a higher term of 10 years. Manslaughter at the time was punishable by 10 years but Fu only received five years on that charge.

Manslaughter didn't became a class A felony, punishable by a maximum 20 years, until 1996.

The state had no grounds to object to the defense's motion, said Deputy Prosecutor Maurice Arrisgado, who called the ruling a "clear travesty of justice for the Morioka family."

"There's no way that family or the public is going to get any justice with a law like that."

The Morioka family could not be reached for comment.

Arrisgado said he had tried Fu on separate charges of murder and use of a firearm in committing the murder because juries sometimes don't convict in domestic violence cases. If juries do convict, its usually on lesser offenses.

A jury could sympathize with Fu, whom Arrisgado described as "clean-cut." Morioka, a University of Hawaii student, had been going with Fu for 17 months. Their relationship, according to her diary, was marred by arguments, physical abuse and a suicide attempt by Fu when she tried to leave him.

She was shot in Fu's bedroom and she identified Fu as the person who shot her in a note she wrote in the hospital before she died. Although Fu was charged with murder, the jury convicted him on the lesser charge of manslaughter, meaning he killed her recklessly, not intentionally.

The Legislature's intent in 1996, when it upgraded manslaughter to a class A felony, was to show that crimes using firearms are serious, Arrisgado said.

The Legislature noted at the time that "10 years was inadequate" for the taking of a life.

Arrisgado said the Legislature should clearly specify to the Supreme Court that it was their intent to make the use of a firearm a very serious offense and allow for defendants who kill using firearms to be sentenced to both murder and the use of a firearm.

"That way a person can get consecutive sentences to show how serious we are about persons who kill with guns."

The question remaining, Arrisgado said, is whether the parole board will honor the 15-year minimum Fu was originally given or reduce it by five years now that the manslaughter conviction has been set aside.

The parole board can refuse to parole Fu when he comes up for review, but if the board tries to increase his minimum, "we'll be back in court," Partington said.

Nevertheless, "I think he will have a hard time getting parole because of his record and history and the toughness of the (parole) board."