By JOHN BURNETT
By JOHN BURNETT
Tribune-Herald staff writer
A judge has dismissed several attempted murder-for-hire charges against a former mortician sentenced to life in prison for a brutal hammer attack on a downtown Hilo coin dealer.
On Friday, Hilo Circuit Judge Greg Nakamura dismissed two counts each of attempted first-degree murder and two counts of criminal solicitation of first-degree murder against 70-year-old Robert Diego. At the request of prosecutors, the charges were dismissed without prejudice, meaning the state is free to re-file them in the future. Trial was scheduled to start on Oct. 21, and a conviction on those charges would have meant a mandatory sentence of life imprisonment without the possibility of parole for Diego.
Diego, who was sentenced to life in prison with the possibility of parole on Sept. 9 for the June 13, 2011, hammer attack on Donald Nigro, was accused of twice trying to solicit a hit man to kill Nigro. Diego’s court-appointed attorney, Bill Heflin, said that Diego would appeal the conviction, which followed a jury trial in which Diego accused Nigro of attempting to sexually assault him and swindle him in a coin deal.
Nigro, 67, suffered a skull fracture in the attack, but has since recovered and continues to run his store, Antiques & Coins on Kilauea Avenue.
The attempted murder-for-hire indictment alleged that the solicitations occurred on June 16, 2011, and on Aug. 10, 2011. Diego was incarcerated at Hawaii Community Correctional Center at the time, following the assault on Nigro.
“I’m hoping that at some point in time, those additional charges can be brought back up against him,” Nigro said Tuesday.
Court records indicate the inmates Diego was alleged to have solicited to kill Nigro are Michael Ortiz and George Kahakua. Both are currently incarcerated at Halawa Correctional Facility on Oahu. The 45-year-old Ortiz is serving a 10-year sentence for burglary, while the 53-year-old Kahakua is serving a 10-year term for commercial promotion of marijuana.
Both Ortiz and Kahakua were to have appeared at a court hearing during Diego’s attempted murder trial, but both refused to leave their cell to testify on May 28, according to court records.
“Due to the totality of the circumstances, part of it being the conviction in the attempted murder case where he did receive a life sentence with two mandatory minimums, one of 15 years and one of 10 years, coupled with the fact that … there were issues with the witnesses in the case, … it made sense to move to dismiss this case without prejudice,” said Deputy Prosecutor Darien Nagata. Nagata added that neither Ortiz nor Kahakua were made any offers by the state in return for their testimony.
Ortiz gained notoriety in the late 1990s when he was mistakenly sent from Halawa to an Oklahoma prison instead of to Hilo for trial on felony theft charges. He also garnered attention as a prosecution witness in the Dana Ireland murder trial, telling authorities that Albert Ian Schweitzer admitted his involvement in the crime to Ortiz while both were incarcerated at HCCC. Schweitzer and Frank Pauline Jr. were sentenced to life imprisonment for their roles in the rape and murder of Ireland on Christmas Eve 1991.
Ortiz also recently filed a wrongful injury lawsuit against the state, claiming he was trampled during a Nov. 18, 2011, cellblock fire at HCCC. He alleges adult corrections officers were sleeping on the job and that a sprinkler system malfunctioned, causing a human stampede when the guards awakened and opened the doors to the smoke-filled cellblock.
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 on a felony theft charge.
More than 100 plaintiffs filed a 2004 civil suit against Diego, his then-wife Momi, and a daughter, Bobby-Jean Crivello. 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.
Email John Burnett at
jburnett@hawaiitribune-herald.com.