LIHU‘E — Lihu‘e attorney Greg Meyers said he thinks it is unfair that his client is out $15,000 in bail money and may be made to pay a similar amount if he is re-arrested on sexual assault charges. So, a
LIHU‘E — Lihu‘e attorney Greg Meyers said he thinks it is unfair that his client is out $15,000 in bail money and may be made to pay a similar amount if he is re-arrested on sexual assault charges.
So, a ruling Wednesday by 5th Circuit Judge Kathleen Watanabe granting Meyers’ motion to quash a grand-jury indictment for his client, Roscoe Agapay, is a bit of a bittersweet victory.
The $15,000 Agapay is out is 10 percent of his total bail of $150,000 for three charges of first-degree sexual assault brought against him under a grand-jury indictment late last year, for allegations of wrongdoing dating back to late 2006, Meyers said.
If he is re-indicted, allowed by Watanabe’s granting the motion to quash without prejudice, he may have to again pay $15,000 of his own money, non-refundable, for his continued freedom, Meyers said.
The state’s case against Agapay, and the basis of the grand-jury indictment, both involved hearsay, as prosecutors said the victim was not available to testify personally, said Meyers.
Agapay had faced up to 60 years in prison if convicted for the three class A felonies, Meyers said.
Relying on the testimony of a Kaua‘i Police Department detective and the alleged victim’s grandfather instead of having the words of the victim herself weakened the state’s case, Meyers said.
Watanabe told Meyers she is “in complete agreement with you,” though county Deputy Prosecuting Attorney Chris Donahoe said the state did not rely solely on hearsay during the grand-jury proceedings, which give prosecutors “wide discretion” on allowable evidence.
There was also no evidence that prosecutors deliberately withheld the accuser’s personal testimony, which Meyers said he thought happened.
Watanabe did not rule on the witness-unavailability arguments, but said she didn’t think prosecutors deliberately prevented the alleged victim from testifying.
She did ask Donahoe why the grand jury’s taped proceedings weren’t entered into evidence, and Donahoe responded that such a decision is up to county Prosecuting Attorney Shaylene Iseri-Carvalho.
Donahoe said the live testimony of the detective and grandfather were enough evidence for the grand jury.
Meyers said he thought the alleged victim was trying to protect one of three O‘ahu men the victim met when they were doing construction work on Kaua‘i, and that one of the men, Justin Espinueva, has pleaded guilty to sexually assaulting the same girl, now 17.
Espinueva is scheduled to be sentenced next month.
Further, Meyers said a videotaped interview with the alleged victim, if presented to the grand jury, would have exonerated Agapay.
Watanabe said she is “dismayed” at the evidence the grand jury was presented with, echoing Meyers’ “hearsay” argument.
But she left the door open for the state re-charging Agapay, granting without prejudice Meyers’ motion to quash the grand-jury indictment and rendering moot three other motions Meyers was prepared to argue.
Watanabe said the state could bring the charges again, but told Donahoe to “do it right.”
Iseri-Carvalho said via e-mail Wednesday her office has “not made a decision to charge or not at this stage.”
• Paul C. Curtis, staff writer, can be reached at 245-3681 (ext. 224) or pcurtis@kauaipubco.com.
