State wants
Rodrigues off duty

A Hawaii Guardsman awaits
a tour in Iraq or a long prison
term for a home invasion

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Prosecutors have asked the Hawaii National Guard to take a soldier found guilty in a Manoa home invasion robbery off active duty status so that he can be sentenced to prison instead of deployed to Iraq.

If the National Guard grants the request to remove Shaun Rodrigues, 24, from active duty, a hearing tomorrow may be moot since he can be ordered to appear for sentencing, Deputy Prosecutor Russell Uehara said yesterday.

The Hawaii National Guard had earlier indicated that Rodrigues had to be sentenced before they take any action against him.

Defense attorney William Harrison told Circuit Judge Virginia Crandall last week that Rodrigues, a specialist with 1st Battalion, 487th Field Artillery, reported for active duty as ordered Aug. 16.

Prosecutors contend that Rodrigues was found guilty by Circuit Judge Virginia Crandall in March 2002, and should be sentenced as soon as possible.

Crandall also wrote a 27-page document in December 2003 outlining the basis for her finding Rodrigues guilty as charged of first-degree burglary, two counts of first-degree robbery and two counts of kidnapping in the July 8, 2000, robbery of Dianne Sugihara and her daughter, Dawn. He faces 20 years in prison on each of the robbery and kidnapping counts.

Uehara said the Hawaii National Guard requested certified copies of Crandall's findings last week.

Harrison said he was not aware of any action being taken by the National Guard to reclassify his client, but agrees the legality of the conviction would no longer be an issue.

Even if Rodrigues is placed on inactive status, Crandall must still rule on the defense motion to reopen the case based on new evidence, he said.

If Crandall grants their motion, then they will go to trial. If she denies it and sets sentencing, the defense is prepared to oppose the state's motions to extend the 20-year terms to life with parole. "Clearly, we don't believe it should be extended, because he is not guilty of the offense," Harrison said.

Uehara said he anticipates Crandall will set a new date for sentencing and to consider defense motions to stay the judgment pending appeal and for a new trial based on newly discovered evidence.

The defense has steadfastly maintained Rodrigues' innocence, arguing that he was wrongly convicted based on flawed identification by the Sugiharas. They argued that there was no physical evidence to link Rodrigues to the crime.

In court documents, the defense claims that another man, who is currently serving time for an August 2000 home invasion in Kailua, is responsible for the Sugihara robbery.

"We believe it's new evidence that makes it clear my client didn't commit the crime and the judge didn't have that when she made her ruling," said Harrison. "Obviously, if we had it earlier, we would have submitted it at trial and changed her decision."

The allegations are based on information gleaned from Evan Lowther, a co-defendant in the Kailua home invasion.

During a February 2004 phone interview Harrison had with Lowther at the Diamondback Correctional Facility in Oklahoma, Lowther revealed that the man had solicited his help in a burglary in Manoa close to his job site, Harrison said. Lowther's co-defendant worked for a construction company that was doing work at nearby Manoa Elementary School.

According to the employer's records, the man failed to show up for work on that day and on a day that another burglary occurred in Manoa, Harrison said.

Lowther also described his co-defendant as carrying a silver pellet gun and backpack and that he wore construction boots, similar to how the Sugiharas described the robber to police, he said.

Myles Breiner, the man's attorney, said the allegations against his client are unsubstantiated.

"My client adamantly denies any participation in any robbery by Shaun Rodrigues," he said last week. Rodrigues should be advised not to defame or impugn his client, Breiner said.

By pinning the blame on someone else, the defense is attempting to erode the judge's confidence in her findings and raise questions about whether she convicted the wrong person, Uehara said.

The defense is not claiming that the Sugiharas lied, but that they misidentified Rodrigues as the one who robbed them, Uehara said. "There has never been a single misidentification in this case -- during the photo lineup, the preliminary hearing or at trial," he said.

Both mother and daughter said Rodrigues' face "jumped at them" when shown photos of possible suspects two days after they were both tied up and robbed at gunpoint. They viewed the photo lineup individually and both picked out Rodrigues' photo without hesitation, Uehara said.

"They said, 'That's the guy -- that's the guy who robbed us,'" Uehara said.

Dianne Sugihara didn't even look at the remaining photos that police provided because she immediately recognized the man who robbed them, he said.

When shown the photos of Lowther and his co-defendant earlier this year, the Sugiharas both deny recognizing or seeing them before and were adamant that neither was the man who robbed them at gunpoint, Uehara said.

The robber had made no efforts to conceal his face, Uehara said. "He was so brazen."

Any hesitation the Sugiharas may have made initially when asked to describe and identify the robber is because they wanted to make sure they got the right person, he said.

Lowther and his co-defendant were both convicted in March 2001 of breaking into the home of 82-year-old Momoye Sakata, handcuffing and robbing her.

During the robbery, she was shoved and sustained a broken left wrist. Both defendants blamed the other for injuring Sakata.

It's not surprising that Lowther is now pointing an accusing finger at his co-defendant since he ended up having to serve the longer sentence, Breiner said.

Lowther's co-defendant served a mandatory minimum sentence of three years and four months, which expired in December 2003. He was denied parole in April this year because the paroling authority wanted him to complete a substance abuse treatment program at the Waiawa Community Correctional Center, said Tommy Johnson, parole board administrator. He faces another parole hearing in December.

Harrison said he has asked the prosecutor, Honolulu police and the state attorney general to look into the possibility that someone else committed the Sugihara home invasion robbery. "They have not responded," he said.

Meanwhile, Rodrigues is sequestered at Schofield Barracks and performing his duties. "I speak to him every day and he wants to know his status," Harrison said. "Clearly, this whole problem has just been wearing on him."

The fact that he hasn't fallen apart is a testament to his character and his faith, Harrison said. "He's very religious and believes eventually justice will prevail."

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