A Circuit Court judge has ordered the supervised release of Oscar Cardona, who was convicted in 2022 of second-degree murder in the June 1, 2021, stabbing death of a visitor in Waikiki.
Cardona will live with his mother in her one-bedroom Waikiki condo while he awaits a new trial.
The Hawaii Supreme Court overturned the December 2022 conviction and life sentence with the possibility of parole, finding prosecutorial misconduct, which violated Cardona’s right to a fair trial. It also vacated the Intermediate Court of Appeals’ decision, which affirmed the
conviction.
On Wednesday, Judge James Kawashima granted the defense’s motion to modify the terms of the supervised release by allowing Cardona not only to live with his mother in her Waikiki home, but also to
attend school and seek employment remotely while he awaits retrial.
Attorney Myles Breiner, who handled his appeal, said that if Cardona gets a job, he could help out his single mother. He also asked that Cardona be allowed to obtain MedQuest medical coverage and his Hawaii State ID.
The state did not object to the defense’s motion for modifying the supervised release.
The defense said Cardona will also take out the trash and get mail in the building.
During his trial, Deputy Public Defender Christian Enright said Cardona’s single mother worked as a jewelry salesperson in Waikiki to support her only child, and that Cardona’s father lived in Mexico. The then-21-year-old man was described as a sheltered innocent who wore thick glasses since age 5 and played Pokemon Go. He had moved out only a couple of months before his
arrest.
The Sept. 20 Supreme Court opinion details what was presented at trial and where Deputy Prosecutor Franklin Don Pacarro Jr. and the appeals court erred:
Cardona brought a gold pocketknife to Kuhio Beach Park after his new roommate, Elijah Horn, called him for help.
Horn had just met four women at Kuhio Beach Park, when two men approached, 19-year-old California visitor Elian Delacerda, who was later killed, and Osvaldo
Castaneda-Pena.
They were initially friendly but began calling Horn the “N-word” and other names and became
aggressive. Horn phoned Cardona for help. He testified he didn’t want to look like a “pipsqueak.”
Cardona arrived on his electric bicycle.
The argument turned physical. Cardona pulled out his gold pocketknife. Castaneda-Pena struck Horn, who hit back with his skateboard. One of the women also hit Castaneda-
Pena with the skateboard.
Delacerda punched Cardona in the face. Cardona, who has extremely poor
vision and wears thick glasses, said he lost his glasses in the scuffle.
Cardona stabbed him several times, and he died of a sharp-force wound to his heart.
The high court said in closing arguments Pacarro improperly called Cardona a liar and an “enforcer,” denying him the right to a fair trial.
Cardona filed a notice of intent that explains he has myopic degeneration, resulting in extremely blurred vision and headaches, and needs extremely thick glasses at all times to see.
Horn said Cardona was not a fighter, not violent, and that he had never seen him fight before.
The ruling says the deputy prosecutor asked Horn improper leading questions.
The chief medical examiner testified Delacerda died of an inch-long wound between 1 and 2 inches deep that hit his heart.
He had a total of five sharp-force injuries. His blood alcohol content was more than three times the legal limit.
Cardona testified Delacerda punched him in the face, which broke his glasses, and everything went “blurry and dark.”
He also testified that he held out the knife, and Delacerda may have run up against it and stabbed
himself.
Cardona and Pacarro got into a back-and-forth about whether Delacerda walked into the knife.
“You never gave him any strikes?” Pacarro asked.
“No,” Cardona answered.
“Oh, so he stabbed himself?” the prosecutor asked.
“He probably ran into it,” Cardona said.
The high court found prosecutorial misconduct when, during the deputy prosecutor’s rebuttal closing argument, he said:
“People lie. The evidence doesn’t lie.
“Defendant said, ‘Well, when I don’t wear my glasses, I’m blurry.’ He didn’t say he was colorblind. Guy was wearing
a red hat, black shirt, red shorts. You take off your glasses … you see a
figure.”
He also says, “He’s scared? He looks like the
enforcer,” “riding around on his bike, like he owned those streets.”
Pacarro also said, “There’s no credible, independent evidence that he had an eye problem.”
The high court found
the appeals court erred
by characterizing the deputy prosecutor’s statements as benign, and that his use of leading questions throughout the trial was harmless beyond a reasonable doubt.
“We conclude that prosecutorial misconduct prejudiced Cardona’s right to a fair trial in violation of the due process clause … of the Hawaii Constitution,” the opinion reads.
