William Lowell McCrory’s 2002 conviction of second-degree murder in the death of Brent “Kerby” Kerr was overturned by the state Supreme Court last week. McCrory, who was sentenced to life in prison with the possibility of parole, is still being
William Lowell McCrory’s 2002 conviction of second-degree murder in the death of Brent “Kerby” Kerr was overturned by the state Supreme Court last week.
McCrory, who was sentenced to life in prison with the possibility of parole, is still being held in an Arizona prison in lieu of bail.
The five Hawai‘i Supreme Court Justices agreed, in an opinion written by Kaua‘i native Simeon Acoba Jr., that one of the prosecution witnesses’ testimony was irrelevant and prejudicial.
Since the tainted evidence was admitted by Circuit Court Judge Clifford L. Nakea, Acoba wrote, the court vacated the September 19, 2002, judgment.
In the July, 2002, trial, county prosecutors called Rory Knezevich to the stand to testify that when he and McCrory were cellmates in the Kaua‘i Community Correctional Center, McCrory failed to proclaim his innocence while awaiting trial, according to Acoba’s opinion, and then Nakea excluded defense testimony of other cellmates to rebut Knezevich as irrelevant.
Public Defender James Itamura was McCrory’s lawyer at the trial, and objected to the calling of Knezevich as a witness.
Knezevich also testified that McCrory hoped the charges will also be reduced to manslaughter, the opinion related.
It was Acoba’s and the other judges’ opinion that the testimony should have been excluded, because, since McCrory had never admitted guilt to Knezevich either, “the absence of such a statement had no bearing on any ‘fact of consequence,’ such as whether (McCrory) stabbed Kerr, whether he knew Kerr, or whether he had the requisite intent for the offense of murder.
“Such testimony was prejudicial and would mislead the jury,” the opinion continued, “because it incorrectly suggested that (McCrory) had the burden of proving his innocence.”
McCrory will receive a new trial. According to Hawai‘i law, the trial must be held within the next six months, although no trial date has been set.
Deputy Prosecuting Attorney Craig DeCosta, who prosecuted McCrory with County Prosecuting Attorney Michael Soong, said last week he was “surprised” by the Supreme Court’s decision.
“We think Judge (Nakea) was right in admitting the evidence,” DeCosta said. “We still have several pieces of evidence that were stronger,” including DNA evidence and witnesses.
Daniel Hempey, who was appointed by the court to represent McCrory on the appeal, said that the court may appoint another lawyer to represent McCrory at the new trial.
He would not say how the exclusion of Knezevich’s testimony would help in the next trial.
He added that McCrory has been moved from Halawa Prison on O‘ahu to a prison in Arizona.
Prosecutors believe Kerr was stabbed in the early morning of Oct. 26, 2001 in Nawiliwili. According to testimony at the trial, Kerr and McCrory both lived in vehicles in the area.
Staff Writer Tom Finnegan may be reached at 245-3681 (ext. 252) or mailto:tfinnegan@pulitzer.net.
