By JOHN BURNETT
Tribune-Herald staff writer
A state appeals court has overturned the murder conviction of a 23-year-old Puna man who admitted to the 2007 shotgun slaying of a friend after discovering him having sex with the defendant’s girlfriend.
The unanimous opinion of a three-judge panel of the Intermediate Court of Appeals orders a new murder trial for Malaki McBride. The appeals court ruled that Hilo Circuit Judge Glenn Hara’s oral instructions to the jury on the extreme mental or emotional disturbance (EMED) defense differed from the agreed-upon written instructions. The opinion stated that the judge’s “erroneous reading of the EMED instruction not only rendered the instruction wrong on the law, but also utterly confusing and misleading.”
“Under the circumstances of this case, we cannot say that the error in the Circuit Court’s oral instruction to the jury on the EMED defense was harmless beyond a reasonable doubt,” the appellate court’s written opinion stated.
“We have to wait for judgment to come out, because this is just opinion,” said Deputy Prosecutor Michael Kagami, who tried the case for the state. “When the judgment comes out, I’ll file a motion to set the case for trial in Circuit Court. It’ll be within six months of the judgment date.”
That doesn’t mean the trial will occur within six months of judgment, as the defense could waive its right to a speedy trial to prepare its case for a second time, Kagami concluded.
McBride was sentenced to life plus 20 years in 2010 for the shooting death of 21-year-old Tyrone Torres, who was killed Feb. 25, 2007, while seated in a car parked in a secluded cul-de-sac in Nanawale Estates. McBride was 17 when the shooting occurred, but he was tried as an adult on charges of second-degree murder, use of a firearm in the commission of a separate felony and auto theft.
The murder charge carries a mandatory life sentence with the possibility of parole. The firearm violation carries a 20-year sentence. Hara ordered that the firearm sentence and the five-year sentence for auto theft run concurrently with each other, but consecutive to the murder sentence.
Early on the morning of the shooting, McBride and a friend were driving around in McBride’s sister’s car — which McBride had taken without permission — when they found Torres having sex with McBride’s girlfriend, Adri Sabaratnam, in her car, which was parked at Nanawale Estates’ Hanalei Circle. McBride opened the passenger side door and shot Torres in the head with the shotgun.
Then, McBride drove Sabaratnam’s car to Waa Waa and torched the vehicle with Torres’ body inside.
McBride’s court-appointed attorney, Kay Iopa, did not dispute any of this during the trial, but argued that her client suffered from extreme mental or emotional distress at the time of the shooting. The jury deliberated for nine hours before rejecting that argument.
In addition to the jury instructions, McBride’s appeal alleged that Iopa “failed to provide effective assistance of counsel with respect to” the EMED defense, and that the court violated the legal precedent of Hawaii vs. Hussein “by failing to state its reasons for imposing consecutive rather than concurrent sentences.”
“In light of our decision, we need not address the other issues McBride raises on appeal,” the opinion concluded.
McBride remains in custody at Saguaro Correctional Center in Eloy, Ariz., on the firearm and auto theft convictions, which were not overturned.
Tribune-Herald staff writer Peter Sur contributed.
Email John Burnett at email@example.com.