By JOHN BURNETT
By JOHN BURNETT
Tribune-Herald staff writer
The trial of a former mortician accused of a near-fatal hammer attack on a downtown Hilo antique and coin merchant opened Tuesday in Hilo Circuit Court with the defense attorney telling jurors his client was defending himself.
“Robert Diego did not attempt to murder anybody, did not attempt to rob anybody, did not attempt to assault anybody,” William Heflin said. “The evidence in this case will show that Robert Diego used the force that he felt was necessary to defend himself from a physical and a sexual assault.”
In the final sentence of his opening statement, Heflin, Diego’s court-appointed attorney, dropped a bombshell about the coin dealer.
“Donald Nigro … will admit on this stand that he had a 1972 conviction of murder in the second degree for the 1971 murder of a Kenneth Wayne Visnich of Kansas City, Mo,” Heflin said. Heflin declined to elaborate further afterwards.
The 70-year-old Diego, of Hawaiian Paradise Park, is charged with attempted second-degree murder, first-degree assault and first-degree robbery for the alleged attack on Nigro, then 65, on June 13, 2011, in Nigro’s Hilo apartment. Nigro, owner of Antiques & Coins on Kilauea Avenue, suffered a fractured skull and head lacerations that required 33 stitches.
According to court records, prosecutors agreed during pre-trial motions that Nigro had been convicted of murder more than four decades ago.
Deputy Prosecutor Darien Nagata said that Nigro allowed Diego in his apartment because he believed Diego had some rare Hawaiian coins that Nigro wanted to buy. She said that Nigro had a clipboard with a cashier’s check made out for $18,000 and some jewelry from his shop to purchase the coins.
Nagata showed the jury slides on the court’s overhead flat-screen that showed the injuries Nigro sustained to his skull, narrating with a list of the injuries that Nigro, who was hospitalized for several days, suffered. The prosecution also showed a slide of Nigro lying supine on the floor of his Hualalai Street apartment, a pool of blood emanating from his head. A few feet away from the body is a green cloth Foodland grocery bag that both the prosecution and defense say Diego brought to the apartment and contained the hammer that Diego used to strike Nigro.
“What did they (police) find in that green recyclable bag from Foodland? They found a plastic bag, and in that plastic bag was an icepick,” Nagata said. “They also find a wooden box that was sealed, shut, closed with a strap of duct tape. What did they find in that box? No, not the coins that Mr. Nigro expected to buy. But instead they find some type of weight, what appears to be a trophy base and an impact screwdriver wrapped in newspaper. No coins at all.”
Heflin told jurors that Diego had the hammer, ice pick and weight in the bag because he used them to as tools to effect temporary repairs on a malfunctioning pump on the water catchment system at his Puna home. He suggested that Diego had the coins in his possession when he met Nigro, but that police didn’t find them because the consent to search form that Nigro filled out while in the hospital didn’t permit officers to search all of Nigro’s apartment.
Heflin said that Nigro grabbed Diego by the crotch without Diego’s consent, that Diego was shocked when that occurred, and that Nigro also pushed Diego in the chest. He said that Diego will testify that he hit Nigro with the hammer, but that he did so in self-defense.
Neighbors heard Nigro’s cries for help and called police, who arrived to find Nigro on the apartment floor with Diego on top of him, police and prosecutors have said.
Diego is the former owner of Memorial Mortuary, which closed in 2006 after he pleaded no contest to charges of stealing from pre-need funeral plan funds. He served two months in jail.
More than 100 plaintiffs filed a 2004 civil suit against Diego, his wife and a daughter. The Diegos never answered the suit.
In 2008, a Honolulu judge ordered that each plaintiff be reimbursed $10,000 for the lost funeral plans, and assessed $2.7 million against each of the three Diegos in punitive damages, for a total sum of $9 million.
Then-Gov. Linda Lingle authorized a $142,000 payout by the state to the plaintiffs in 2009 to settle an allegation that the state failed to properly regulate the funeral home.
Diego is also charged with two counts each of attempted first-degree murder and criminal solicitation of first-degree murder for allegedly twice trying to hire a hit man to kill Nigro. According to the indictment, the solicitations allegedly took place on June 16 and Aug. 10, 2011, while Diego was incarcerated at Hawaii Community Correctional Center.
A separate trial is scheduled for June 3 on those charges, but it will likely be delayed.
Diego remains in custody without bail in HCCC.
Email John Burnett at jburnett@hawaiitribune-herald.com.