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Appeals court cites discovery to reverse murder conviction

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  • GEORGE F. LEE / 2011
    The Hawaii Intermediate Court of Appeals reversed the conviction of Makuola Collins in the murder of his friend Joel Botelho.

A state appeals court has overturned a Kaneohe man’s murder conviction in the death of a childhood friend because the prosecutor withheld critical information from the defense.

The Hawaii Intermediate Court of Appeals on Thursday reversed the conviction of Makuola Collins because the prosecutor did not disclose to the defense before trial that he planned to use expert testimony that the victim, Joel Botelho, 27, was probably on his knees when he was shot in the chest in January 2011.

The ICA also overturned Collins’ attempted-murder conviction involving Botelho’s brother, Leon, and related firearm offenses. The court sent the case back for retrial.

Defense lawyer David Hayakawa, who represented Collins at trial, said he looks forward to a new trial.

“We’re very happy with the appeals decision. We believe it’s the right decision,” Hayakawa said.

Honolulu Prosecutor Keith Kaneshiro said, “We strongly disagree with the Makuola Collins ruling and will appeal to the (Hawaii) Supreme Court the ICA’s interpretation of the discovery rule.”

The U.S. justice system discourages surprise revelations by requiring opposing parties to disclose to their adversaries prior to trial the evidence they plan to introduce during the trial. That fact-finding concept, known as discovery, is written into Hawaii’s rules of civil and criminal procedures.

The state did provide to the defense Botelho’s autopsy report, which Collins had requested. But the ICA said the deputy prosecutor on the case should have also disclosed that he intended to present to the jury the expert opinion of forensic pathologist Dr. Kanthi De Alwis, who performed the autopsy, which the defense had also requested.

De Alwis testified that based on her expert opinion, the angle in which the fatal gunshot entered and traveled through Botelho’s body is consistent with Botelho having been on his knees when he was shot.

Hayakawa asked Circuit Judge Karen Ahn to order the jurors to disregard De Alwis’ opinion because the state did not include it in the pretrial discovery material it turned over to the defense. Ahn refused.

The ICA said De Alwis’ testimony was critical because it bolstered the testimony of another prosecution witness who said she heard a conversation outside her home, just prior to hearing what may have been the fatal gunshot, that suggests that Collins ordered Botelho to his knees.

The early morning shooting outside Botelho’s home happened after a confrontation between Collins and Leon Botelho at Club Komomai in Kaneohe Shopping Center during which Leon, also known as “Bubba,” sucker-punched Collins, according to trial testimony.

Leon Botelho was the only person to tell police and testify at trial that he saw Collins shoot his brother. But his trial testimony differed from his two statements to police, which also differed from each other. He also admitted that he lied to police.

Collins and Joel Botelho grew up about a quarter-mile apart, were classmates since elementary school, played youth baseball and basketball together and were co-captains on Castle High School’s football team, on which Botelho was a star quarterback.

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