LIHUE — A prosecuting attorney says that a convicted murderer is playing with court rules in an attempt to remain at the county jail and slow his transfer to a state prison.
Vicente Kote Kapika Hilario, 26, of Anahola, asked his court appointed defense attorney Warren Perry to withdraw from the defendant’s case on a firearms and drug conviction at his sentencing hearing last week. Perry represented Hilario through the jury trial and a 5th Circuit jury found Hilario guilty on May 16, shortly after his murder conviction the previous month.
The court obliged Halario’s request — somewhat — meaning the convicted murderer’s sentencing has been pushed back.
Perry said that the issue is that the defendant wants $2,792 in cash that was taken as evidence in the firearms case returned to him. It wasn’t a stall tactic to prevent Hilario from going to the big house, as the prosecution claimed.
“The defendant is unhappy with me from a prior case and it spilled over to this case,” Perry said. “It is not so much to do with the trial or the sentencing in this case.”
Chief Judge Randal Valenciano said Perry should remain as counsel at Thursday’s sentencing. The defense attorney has the experience of the entire trial and a new attorney would not be as beneficial for the defense without that experience, the judge said. But Valenciano also said the defendant can make a request for a new defense attorney in writing, which continued the sentencing until a later day. A hearing for the withdrawl request is scheduled for 1 p.m. Thursday, Oct. 3.
County Deputy Prosecuting Attorney Melinda Mendes said the cash issue was not material to Thursday’s sentencing hearing. She objected to the request and said there was no valid reason for sentencing not to continue after the jury trial conviction.
A third case involving a misdemeanor marijuana charge, and the one that Perry said upset Hilario, was dismissed March 11. The matter of returning the cash held in evidence was discussed as a separate matter and continued.
Hilario said he no longer wanted Perry to represent him at a July 16 hearing on the motion. The court ruled that Perry would remain as stand-by counsel.
Perry said the prosecution was to present a letter in open court Thursday regarding the return of funds, but there was a delay in the return, which upset Hilario.
“If the government had $2,700 of yours, regardless of who it would go to, you would like it to be out of their hands,” Perry said. “That to me is a very reasonable position to have and he is just dissatisfied with the prosecutor who had a couple of months to return the funds.”
Valenciano ruled that restitution and fees could be applied to the cash held in evidence at the same hearing. He ordered the state to return the remaining funds to the defendant.
After the order wasn’t processed in court Thursday, Hilario asked his defense attorney to step aside, which the prosecution said was a stall tactic. Hilario is being housed at Kauai Community Correctional Center.
Valenciano said that the court would not accept an oral motion to withdraw at the sentencing hearing, but granted a continuance that would allow Perry to file a written motion and scheduled the October hearing for it.
Hilario will either have new counsel and the sentencing will be continued to allow the attorney to prepare, or Perry will remain if Hilario agrees and sentencing will occur.
A jury convicted Hilario of the first-degree murder of 34-year-old Aureo Eric Moore at Anahola Beach Park on Dec. 17, 2010. Moore was shot five times execution style and died three hours later at Wilcox Memorial Hospital.
Hilario was convicted and sentenced to life without parole in July.
Following the murder sentencing, the court granted a state order for Hilario to pay $800 in restitution from the $2,792 in seized funds. The deduction was to cover the funeral expenses of the murder victim and Hilario objected to the request.
At past hearings Hilario said he believes the prosecution and the police illegally seized his money and that they continue to hold it using inappropriate procedures.
The Perry case stems from an Aug. 24, 2010, arrest near a Wailua gas station. Hilario was pulled over by Kauai police officers for his role in an alleged armed robbery of Moore.