The oft-delayed jury trial for a 21-year-old man accused of sexually assaulting an elderly woman at a South Kohala campground in 2019 will begin later this month after the defendant allowed a material witness to testify via Zoom.
Zeth Browder on Friday waived his constitutional right to confront a witness face-to-face, permitting the nurse who performed the sex assault examination on the victim following the alleged June 15, 2019, incident at Spencer Beach Park in Kawaihae to testify via Zoom.
His OK allows the jury trial to commence Nov. 30 as scheduled a year ago by Kona Circuit Court Robert D.S. Kim. Without Browder waiving his right, the trial could have been delayed a fourth time, or the case even dismissed.
Honolulu prosecutors assigned to the case sought the fourth continuance earlier this month. In that motion, Prosecuting Attorney Kristen Yamamoto said a state witness was unavailable to appear in person for the scheduled trial.
At a hearing on Monday, the prosecutor informed the court the witness was unable to appear in person because she was caring for parents on the mainland. Yamamoto was also unable to provide an exact date when she would be available.
Browder’s counsel, Deputy Public Defender James Greenberg stated in court that as of Nov. 30, Browder will have been incarcerated 900 days awaiting trial, and if the case was continued, he would file a motion to dismiss due to violation of his right to a speedy trial under state law.
Yamamoto countered if the trial goes forward Nov. 30, the state would make arguments to dismiss, as well.
Kim told Yamamoto that her office had to make it happen and either “fish or cut bait.”
The judge set a material witness order hearing for Friday, which if granted, would compel the witness to appear.
The issue became moot Friday, however, when Browder agreed to having the witness testify via Zoom.
“I just want this to go. I don’t want it pushed back any more,” said Browder via video conference from the Hawaii Community Correctional Center.
Kim informed Browder of his constitutional right to have the witness present in the courtroom and asked him if he was sure he wanted to give up that right.
Browder iterated he just wanted the trial to move forward.
With that matter settled, the prosecution withdrew its motion to continue and Kim set jury selection for Nov. 30.
The case is being prosecuted by the Honolulu City and County Prosecutors Office because of an undisclosed conflict of interest with the Hawaii County Office of the Prosecuting Attorney.
Browder has been confined at Hawaii Community Correction Center in lieu of $166,000 bail since his arrest on June 15, 2019. He has pleaded not guilty to two counts each first-degree sexual assault and third-degree sexual assault and one count each first-degree burglary, kidnapping and tampering with evidence.
According to prosecutors and police, the then 78-year-old female victim reported that she had been sexually assaulted by a man who was also camping at Spencer Beach Park, a county facility. Police identified and subsequently charged Browder in connection with the alleged crime.
First-degree sexual assault and kidnapping are class A felonies punishable by up to 20 years imprisonment; first-degree burglary is a class B felony that carries a 10-year sentence; and third-degree sexual assault in a class C felony punishable by five years behind bars. Evidence tampering is a misdemeanor offense
Because prosecutors intend to seek enhanced sentencing measures if Browder is convicted of two or more the felony counts he faces longer terms behind bars. Such enhancement would mean a life sentence with the possibility of parole for the class A felonies and double the time behind bars for the class B and C felonies.
Email Laura Ruminski at lruminski@westhawaiitoday.com.