A 2nd Circuit Court jury found criminal defense attorney Cary Virtue’s client not guilty of attempted second-degree murder. The case was presided by Judge Peter Cahill.
The incident occurred shortly after midnight New Year’s Day 2017. The 55-year old defendant had an argument with his then-girlfriend (now-wife) and left her Harbor Lights apartment. He took his backpack and planned to stay out overnight. He was looking for a friend and saw a shopping cart outside of the former Century 21 real estate office at Puunene and Kaahumanu avenues in Kahului. Virtue’s client thought the shopping cart belonged to his friend and walked up the stairs of the former real estate office to the dark lanai.
A man swore, told the defendant to leave, and punched him in the mouth. He said he was punched again, then stepped back when a second man punched him in the back of the head and choked him from behind.
“It’s like someone firing a firework in your brain, and then you kind of see black for a second. I thought they were going to kill me. I just grabbed my knife. I tried to get him to stop choking me.”
The all-purpose knife had a 3- to 3.5-inch blade and was in a sheath attached to the defendant’s backpack. He first stabbed the man in the arm in an attempt to get the attacker to let go of his throat, but the choking and punching continued.
“Then I started flailing to the left side,” Virtue’s client said. “He’s behind me. I was trying to reach anything.”
The defendant inflicted four stab wounds – a cut across the man’s face through the nose cartilage, on the upper left arm, the upper left abdomen, and under the left armpit. He said he lost consciousness and later woke up on the lanai and everyone was gone.
The 31-year old man who was stabbed told a different story of the events leading up to stabbing. He said he and his girlfriend were on the beach watching the New Year’s Eve fireworks and then went to see his cousin at the old Century 21 building.
His cousin told him that the defendant was showing up all week looking for money. His “uncle,” the boyfriend of his cousin’s mother, told the defendant to leave. When he saw his uncle on the ground, he decided to step in. He admitted he didn’t know who swung first and that Virtue’s client never shouted, argued, or threatened him.
“Naturally, I going protect my uncle,” he said. “I wen’ drop everything. I went over there. I wen’ hit him.”
He said he punched the defendant once in the face before the defendant pulled out the knife.
“We was swinging at each other. I thought just my nose was broken. I nevah see him with a knife,” he said.
After he was stabbed, he walked to the canoe hale at Hoaloha Park, where he asked his grandmother to call 911. He was transported to Maui Memorial Medical Center and treated by Dr. Mitchell Tasaki in the emergency room.
Tasaki said none of the CAT scans and x-rays of the stab wounds showed obvious life-threatening injuries. “But in reality, it’s often a different story,” Tasaki said. “It doesn’t always show everything.”
Two of the four lacerations, on the upper left abdomen and under the left armpit, had the potential to be life-threatening. However, his rib and shoulder blade prevented the knife from going deeper into the chest to reach his heart, aorta, lung, or diaphragm.
Tasaki said the 3-inch-deep cut to the lower chest had an upward trajectory toward the middle of the body that hit his rib. If the knife had not hit his rib, “it would likely have gone through the diaphragm to probably have hit the lung.” If the knife had punctured the lung, there would have been significant bleeding that would have been life-threatening.
A 4-inch-deep cut in the left chest near the armpit showed a broken fragment where bone had chipped off his shoulder blade, stopping the knife from entering the chest cavity. “If it had penetrated into the chest cavity, there’s some vital structures nearby, primarily the lung,” Tasaki said. “If it had gone deeper, the aorta, the heart.”
When asked by Deputy Prosecutor Emlyn Higa what would have happened if the knife had gone deeper, Tasaki said, “If it hit the aorta, the heart, he probably would have bled out immediately.”
Tasaki testified that those injuries showed “tremendous amount of force.”
Under questioning by Virtue, Tasaki acknowledged he doesn’t have training in forensic pathology and doesn’t respond to crime scenes with police, but did point out his experience as a general surgeon. “I do cut every week and I know how much force it takes to get that deep,” Tasaki said. “You’re not going to get that injury that severe where the bone is breaking off from the shoulder blade bone with lackadaisical force,” Tasaki said.
In addition to the stab wounds on the chest, there was a 1.5-inch-deep cut through the nose that had to be sutured and a jagged cut in the left upper arm that shredded the deltoid muscle.
The man who had been stabbed was found to have methamphetamine in his system. Under cross-examination by defense attorney Cary Virtue, he admitted to using methamphetamine every day and being under the influence of methamphetamine the night he got in an altercation with Virtue’s client.
Citing “the number of stab wounds inflicted by the defendant upon the victim,” Judge Blaine Kobayashi ruled there was sufficient evidence to support a charge of attempted second-degree murder against Virtue’s client. The defendant was held at the Maui Community Correctional Center in lieu of $200,000 bail.
Higa said the force and placement of the stab wounds in the man’s torso showed the defendant had an intent to kill.
Virtue argued that cuts in the black jacket of the man who was stabbed supported his client’s testimony that he had used the knife to try to stop the man from choking him.
The stab wounds also helped to prove that the defendant was being held from behind and not fighting face to face. There were no stab wounds in the middle of the man’s body.
“What is a man or a woman to do if they’re being beaten up and punched by two other people?” Virtue asked. “He did the only thing he could do. He grabbed that sheath knife, and he tried to get [the assailant] off him.”
Virtue said his client suffers from seizures and takes medication. “He felt he walked into an ambush, was mugged and had to defend himself,” Virtue said.
The man who was stabbed was in the hospital for a couple of days and none of the wounds were life-threatening.
Virtue praised the jury when they came back with a not guilty verdict. “I thought this was overcharged from the get-go, and I’m glad the jury agreed that this wasn’t proven.”
“I just really want to thank the jury for their very hard work in this case,” Virtue said. “They really took this case to heart and really examined the evidence thoroughly.”