Citing prosecutorial misconduct, the state Intermediate Court of Appeals has overturned the conviction of a man serving 20 years in prison for shooting two men in Mililani.
The court’s opinion vacates the sentence for Richard Silva III, who was convicted of shooting a man in the stomach and another man in the back at Kipapa Park in the early morning hours of July 4, 2011.
Silva, 46, said the shootings were in self-defense. Both men survived.
Jeffrey Hawk, Silva’s attorney for the appeal, said the court’s decision was based on comments the prosecutor made in closing arguments.
"There have been a few decisions similar to this recently where convictions have been reversed based on last-minute sort of comments by the prosecuting attorney’s office," Hawk said. "It’s happened a few times in the past year."
Silva remains in custody at Waiawa Correctional Facility.
Hawk said that if the prosecutor’s office doesn’t appeal, Silva will be retried in Circuit Court on the three charges that yielded jury convictions: second-degree reckless endangering, second-degree assault and carrying or use of a firearm in the commission of a separate felony.
Initially, Silva was indicted on seven charges, including first-degree attempted murder, which carries a mandatory life sentence without the possibility of parole.
A spokesman for the prosecutor’s office said no decision has been made on whether to appeal.
According to the appellate court’s opinion, Deputy Prosecutor Rodney Veary twice misstated the self-defense law, saying in various ways that a person cannot use self-defense as a defense if he has an opportunity to retreat and doesn’t take it.
The first time Veary misstated the law, the judge struck that comment from the record. The second time, the judge let the comment stand.
According to state Public Defender John Tonaki, who represented Silva in the criminal case, the self-defense law does apply to Silva because it requires that a defendant knows he can retreat in complete safety. Silva could not retreat safely, Tonaki said, because a group of people had chased him in vehicles to a park after a confrontation.
The court’s opinion said there "is a reasonable possibility that the (prosecutor’s) misstatement of the law of self-defense contributed to Silva’s convictions."
Tonaki said Veary has more than 30 years of legal experience and likely made the misstatements inadvertently.
"In the heat of battle, I think he went a little overboard," Tonaki said. "You’ve got to restrain yourself. … It happens."
Hawk added, "We’re talking about a man’s freedom, so it’s important that the prosecutor gets everything right."
A judge sentenced Silva to 20 years in prison for the firearm offense, five years for the assault charge and one year for reckless endangering, with the three sentences running concurrently.
Tonaki said Silva could knock out the largest sentence if he prevails against the assault charge. That’s because the firearm offense relates to committing a felony while carrying a firearm and the assault charge is the only felony remaining in the case.
Silva already has served more than three years of his sentence, having been in custody since turning himself in on the day of the shooting.
