The state dropped one of two pending murder charges against a 40-year-old Mountain View man.
On Wednesday, Hilo Circuit Judge Glenn Hara dismissed a charge that Xavier “Pee Wee” Cortez Jr. fatally strangled his 20-year-old girlfriend, Sommer Ferreira, on Sept. 20, 2011, in the Wainaku home where they lived.
The charge was dismissed without prejudice, which means prosecutors are free to refile charges at a later date.
The dismissal came at the request of the prosecution, which stated in its motion to dismiss that the state was unable to gain the cooperation of witnesses, which impaired the state’s ability to prove the case beyond a reasonable doubt, the standard for a jury trial.
“We had one (witness) who pleaded the Fifth (Amendment right against self-incrimination),” County Prosecutor Mitch Roth said. “And we had some other witnesses we couldn’t find and some witnesses we had the court ruled we couldn’t use. So, at this time, we felt, in the interest of justice, we felt it was best to dismiss the case without prejudice, as the judge allowed us to do, instead of moving forward.
“We do have an ethical duty if we can’t prove our case beyond a reasonable doubt to not move forward.”
The trial was set to resume Feb. 29. Jury selection was halted at least twice as appeals of pretrial rulings were made to the state’s Intermediate Court of Appeals and Supreme Court.
Cortez is still charged with the beating death of Ferreira’s 18-month-old daughter, Pomaikai Ferreira, 8 1/2 months earlier. That trial is scheduled to start May 3 in Hilo before Kona Circuit Judge Ronald Ibarra. Hara and Hilo Circuit Judge Greg Nakamura recused themselves from that case.
Roth said the state intends to move forward with that trial.
Cortez remains in custody at Hawaii Community Correctional Center in lieu of $1 million bail.
Cortez’s court-appointed attorney, Stanton Oshiro, argued the charge for Sommer Ferreira’s homicide should be dismissed with prejudice, which means the state could not refile charges. He said the state’s request for the dismissal is “the product of an inherently weak case.”
Oshiro said afterward the possibility of the charges being reinstated has an impact on Cortez’s pending murder trial.
“Now he has to think about whether or not he can take the stand and testify in his own defense,” Oshiro said.
Oshiro said all the delays in bringing the case to trial were “occasioned by the state.”
“My client waived his right to file a motion to dismiss on the basis of (the right to a speedy trial), notwithstanding the fact that I specifically told him that, under the law, if I filed the motion, he would get the case dismissed early on, much earlier than today,” Oshiro said. “But he refused to allow me to file that motion because he wanted to go to trial.
“He wanted to have his day in court and to prove his innocence.”
Email John Burnett at jburnett@hawaiitribune-herald.com.
