Honolulu Advertiser

Sunday, September 19, 2004

Rodrigues' conviction was hardly convincing

By Robert Rees

What most distinguished the recent criminal trial of Hawaii vs. Shaun C. Rodrigues was the failure of our judicial system to fullfill the mandates for a speedy trial and that guilt be proven beyond a reasonable doubt.

In this case, if the defendant goes to jail, it will be an injustice. An injustice not because we know he is innocent but because we know there is reasonable doubt as to his guilt.

• • •

On March 1, 2002, following a nonjury or bench trial requested by defense attorneys because of pre-trial publicity, Circuit Court Judge Virginia Crandall pronounced defendant Shaun C. Rodrigues guilty of two counts of kidnapping and two counts of first-degree robbery.

Eighteen months later, Crandall belatedly filed her findings and decision with sentencing still to come. Last month, while still awaiting sentencing, Rodrigues was activated and nearly deployed to Iraq by the National Guard. On Sept. 10, two and one-half years after she had found him guilty, Crandall sentenced Rodrigues to a prison term of 20 years maximum. He will remain free pending his appeal to Hawai'i's Supreme Court.

Buried in these chronological facts and much more astounding than the delays and near military deployment of an officially guilty but unsentenced felon is the reasonable doubt that permeates the finding of guilt. Rodrigues has never stopped maintaining his innocence.

In a meeting with this writer on the morning after he was sentenced, with copies of the Sept. 11 Honolulu Advertiser that featured his photo on the front page scattered about the premises of Starbucks in Kailua, a depressed and emotional Rodrigues said, "I'm not the person who did this."

Star-Crossed Lives

Rodrigues, then 20 years old, spent the late hours of July 7, 2000, dancing away a Friday night in Waikiki with friends. He didn't return to his home in Kailua until 2 a.m. the next morning. According to Rodrigues and family members, he slept on the futon in the family room until about 10:30 a.m.

Rodrigues' mother later testified she saw her son sleeping when she left for breakfast that Saturday morning at 7:40 a.m. He was still sleeping, she asserted, when she returned from Brent's Restaurant at 8:50 a.m. Rodrigues' younger brother testified he was sitting in the family room where Rodrigues was sleeping during the time his mother was at breakfast.

On that same Saturday morning, on the other side of the Pali, another family was going about its affairs. Law student Dawn Sugihara, today an attorney in Honolulu, had breakfast with her father at the Hungry Lion. Dawn's mother, Dianne, didn't join the breakfast but was up watching CNN and was in the shower by 8:45 a.m.

When Dawn returned from breakfast to the Sugihara home in Manoa, the nightmare began with the unannounced suddenness that so often characterizes the bleak side of life. Dawn recalled that suddenness in her statement to the Honolulu Police Department:

"On July 8, 2000, around 9:10 a.m. I came home from breakfast. I parked the car in the garage and went to the front yard to put a letter in the mailbox. I let the dog out with me in the front yard. ... Then I walked upstairs to ask my mom when she would be ready to leave. When I got up to the bathroom door, a man with a gun stepped out from behind the wall."

The man with the gun forced the mother and daughter to lie on the floor, tied their hands and covered their heads. He told the mother that if she didn't remove her wedding ring, he would cut off her finger. He rummaged through the home for 45 minutes and left. Dawn Sugihara freed herself and called 911.

Detective Robert Cravalho of the Honolulu Police Department found it noteworthy that the Sugihara home and another residence robbed just four days before on July 4 had only recently had their burglar alarms updated by Hawaii Alarm Systems.

Cravalho noticed also that a young man from Kailua, Shaun C. Rodrigues, had worked as an employee on both installations. Rodrigues had joined the company after graduating with an associate's degree in electronic technology from a business trade school.

Lt. Henry Nobriga of HPD, working on the deduction of Cravalho, used a computer-generated photo apparently taken from Rodrigues' driver's license database to prepare a photo spread or line-up with six side-by-side photos of similar looking males. The use of this photo line-up will be a central point in the appeal of Rodrigues to the Hawaii Supreme Court.

In position number one and distinguished by its sharper and glossier appearance was the photo of Rodrigues. (The four-color photos actually used in the line-up are still in evidence pending appeal, but even black-and-white reproductions illustrate the differences between the photos. In addition, says Rodrigues, "Everybody else has a much darker complexion. I stand out.")

The Identification

When Dawn Sugihara phoned 911, she was asked repeatedly if she could describe the perpetrator. Some of her various responses were:

Answer: "Ummm. I didn't really see him. I ... I saw his feet a lot. He put us on the ground and we were tied up."

Answer: "(Inaudible) he might have had a little mustache. I didn't think to look at him until I was tied up. He made us put clothes over our head."

Answer: "He had like, a silver with ... silvery kinda ... I don't know anything about guns. It looked kind of like a pistol. It didn't look that big. It was a handgun. He had a black, leathery looking bag that he took all our stuff in."

Nevertheless, Dawn in her subsequent written statement on that same morning said she was "pretty sure" she could identify the perpetrator.

In her statement to the police, Dawn's mother wrote, "Because I was about to shower I did not have my contacts on and could not clearly see the suspect. ... I did not look up when he was in the house as I was very scared. ... I don't think I would recognize him again."

Yet both mother and daughter, two days after the robbery, separately and independently identified Rodrigues as the perpetrator after looking at the photo line-up prepared by Nobriga. Dawn told Nobriga that the face of Rodrigues, who by the way did not have the "little mustache" she thought she might have noticed, "jumped out" at her. Dianne said the face "just came to her."

Even though Dianne had served Rodrigues a cold drink in her kitchen when he installed the Sugihara's new alarm system only two weeks earlier on June 27, she did not recognize him as the worker in her home. Following her identification of Rod-rigues in the photo line-up, she had to be told he was the same person with whom she had spent time in her own kitchen.

Because Dawn's and Dianne's identifications were quick and seemingly certain, police thought they had their man even though they had used a photo line-up procedure that was increasingly under scrutiny.

According to the ABA Journal, one state, New Jersey, had replaced its side-by-side photo line-up because of "the growing number of innocent prisoners who have been exonerated through post-conviction DNA testing." New Jersey's new system requires that photos be shown one at a time by officers who have no knowledge who the suspect is.

HPD Taints the Alibi

HPD had no physical evidence linking Rodrigues to the 45 minutes of rummaging through the Sugihara home. They did find one latent fingerprint on a jewelry box in Dawn's bedroom but it wasn't Rodrigues'. Based solely on the photo line-up, Rod-rigues was arrested at his home on July 10 at 6 p.m.

With the consent of Rodrigues, HPD searched his home for a silver-colored handgun, a black backpack (described by Dawn not as a backpack but as a "black leathery looking bag"), jewelry, tan boots, a blue-colored aloha shirt and, apparently covering all bases, a black handgun. The police did recover a silver-colored plastic toy pistol from the bedroom of the younger brother, then 15 years old, but both victims testified the toy was not the gun they had seen.

HPD found no construction boots and in fact did not find one piece of evidence that could be used to link Rodrigues to the crime.

It was at this point that HPD made it nearly impossible for Rodrigues to defend himself with an alibi. Inexplicably, Detective Glen Muramoto provided Rodrigues' mother with a summary, complete with specific dates and times, of recent home invasions for which Rodrigues was now a suspect.

As Lt. Nobriga wrote after Rodrigues was found guilty, this error "made it impossible for me to determine the guilt or innocence of Mr. Rodrigues. ... Specifically, by Detective Glen Muramoto providing a key witness — the suspect's mother —a complete summary of recent home invasions, this investigation was seriously hampered and its integrity prejudiced."

Judge Crandall noted in her Findings of Fact that Muramoto observed the mother recording these dates and times in her day planner. It was then that she had offered the alibi that her son had been at home sleeping at the time of the July 8 robbery. She at first said she left the house at 8 a.m. and returned home at 10:30 but later changed these times to 7:40 a.m. and 8:50 a.m., respectively.

Apparently, it was this discrepancy and the fact that Rodrigues' mother had been told the dates and times of the crimes that led Crandall to discount the alibi and to conclude, "The defense witnesses are not credible witnesses in this case."

On the other hand, Crandall gave the victims high marks for credibility even to the point of contradicting her own findings. The judge, for example, noted that Dianne immediately identified Rodrigues but also ruled, "Dianne looked at Rodrigues for a while at the preliminary hearing because Dianne did not want to accuse Rodrigues of committing the crimes if she was not sure of the identification."

Crandall seemed to go out of her way to bolster the mother's testimony. Dianne, in her own statement to HPD, had specifically said that without her contacts she could not see the suspect clearly. The judge's interpretation of this was, "Although not wearing her glasses, the lighting in the bathroom and bedroom area was sufficient such that Dianne could clearly see Rodrigues' face."

Second thoughts

Toni Kurihara, left, defends her son, convicted Manoa home invader Shaun Rodrigues, right, by repeating that she and her family were not lying when they said Rodrigues was at home at the time of the crime. At middle is defense attorney William Harrison.

Richard Ambo • The Honolulu Advertiser

What's most astounding about the verdict is not the delays and even buffoonery that ensued but the reasonable doubt that immediately engulfed it. On the day of the verdict, for example, Deputy City Prosecutor Russell Uehara confessed, "We were hopeful, but it wasn't a clear-cut case." Uehara had advised the victims not to be in court lest they be "traumatized" by a verdict of not guilty.

Shaken by the decision and convinced of his client's innocence, attorney William Harrison had a polygraph or Psychophysiological Detection of Deception administered to Rodrigues and his mother on May 4, 2002. Concluded the report from Clarke & Associates, "It is the opinion of this examiner that (Rodrigues and his mother) were truthful in answering. ..."

On top of all this, Lt. Nobriga stated in a letter he signed on Feb. 5 of this year, "It is my honest belief that despite Mr. Rodrigues' conviction, our investigation was not thorough enough to prove Mr. Rodrigues' guilt beyond a reasonable doubt."

Nobriga, in a newspaper interview on Sept. 9 of this year, claimed one sentence from a long conversation had been taken out of context and stuck into his letter by Rodrigues' attorneys.

Said Nobriga, "Taking one sentence out of an hour-and-half-long conversation is ... not exactly truthful. I know (Rodrigues) was guilty."

However, the fact is that Nobriga's letter contains four full paragraphs devoted to why, "As I stated, that guilt or innocence has never been proved to my satisfaction. Under penalty of perjury, I declare the foregoing statement to be true and accurate."

On March 29 of this year, Harrison filed a motion for a stay of judgment and for a new trial. The motions, denied on Sept. 10 by Judge Crandall, offered Nobriga's sworn statement and also proffered that a chance encounter with an inmate at the Diamondback Prison Facility in Oklahoma has led to the identification of a new suspect.

According to the inmate in a phone conversation with Harrison on Feb. 6, 2004, the alleged new suspect tried to interest the inmate in assisting on the robbery. Among other information supplied by the inmate was that the alleged new perpetrator, an ice addict, is known to keep a silver pellet pistol in his car and was working near the Sugihara home on a construction job at Manoa Elementary School in early July, 2000, but didn't show up for work on the day of the invasion of the Sugihara home.

Harrison has been able to independently confirm some of the inmate's story and has tracked down the employer, whose records show that the alleged new suspect didn't show up for the construction job at Manoa Elementary on July 8. Crandall, on Sept. 10, ruled this testimony to be vague and inadmissible as evidence.

There are other lingering and disturbing questions. Rodrigues has never been linked to the robbery of July 4, 2000, at the other residence where he helped to install a burglar alarm. Yet this was the connection, proffered as more than coincidence by the prosecution, that placed him under suspicion to begin with.

Rodrigues became a popular suspect and at one point was under investigation for 10 other robberies, including one on July 12 where the perpetrator was described as a 6-foot Caucasian. For that one, Detective Cravalho actually opined to the press that the suspect was either a copycat of or connected to Rodrigues.

On July 18, 2000, on St. Louis Drive, there was a robbery that to HPD must have reeked of Rodrigues. The perpetrator was described as 5 feet 4 and brandishing a silver handgun. The victims were tied up on the floor of the home. There was one problem: Rodrigues didn't make bail until July 21.

Under suspicion for nearly the entire epidemic of home invasions then occurring, Rodrigues was charged with only one other crime, terroristic threatening, that probably won't go to trial.

On July 6, 2000, two days before the Sugihara robbery, a family encountered a strange male just outside their home. When confronted, the stranger removed a small silver-colored handgun from his pocket and fled. Of the six witnesses, one identified the photo of Rodrigues but indicated the perpetrator had a "darker complexion." Harrison believes the prosecutor charged Rodrigues with that crime in an attempt to bolster a weak case in the Sugihara incident.

What can we learn?

A friend of Rodrigues had it right on the day of the guilty verdict when she said to the Advertiser, "I think they just took his life away." Besides facing 20 years in prison, Rodrigues has been discharged from the National Guard unit he joined when he graduated from Kailua High School in 1998. In addition, his plan for a career in electronics after putting himself through a trade school has been derailed.

What we have here is an injustice illustrative of the dangers inherent in eyewitness identifications without one iota of physical evidence. Those identifications are usually well intended and even careful but often wrong. As the ABA Journal reports, "More than 4,250 Americans per year are wrongfully convicted due to sincere, yet woefully inaccurate, eye-witness identifications."

The Rodrigues verdict is illustrative also of the danger of combining overzealous prosecutors, uninhibited either by a dearth of evidence or by sloppy police work, with a judge who may have allowed her subjective feeling about the credibility of witnesses to become a factor in determination of guilt.

It's possible that a gnawing recognition of reasonable doubt and a realization of the unconscionable delays in the trial may have led Judge Crandall on Sept. 10 to try to rectify the situation by having it both ways.

In granting Harrison's motion that Rodrigues remain free on bail while appealing to the Hawai'i Supreme Court, Crandall had to rule the very person she had found guilty of kidnapping and of threatening to cut off a woman's finger is not a threat to the community.

That sounds an awful lot like reasonable doubt, and Crandall may be hoping that the Hawai'i Supreme Court comes to the same conclusion.

Robert M. Rees is moderator of 'Olelo Community Television's "Counterpoint" and Hawaii Public Radio's "Talk of the Islands."

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