LIHUE — Defense attorneys for the police officer charged in the death of a man struck on Kaumualii Highway said no evidence exists to prove the state’s probable cause argument. A hearing for a motion to dismiss the felony information
LIHUE — Defense attorneys for the police officer charged in the death of a man struck on Kaumualii Highway said no evidence exists to prove the state’s probable cause argument.
A hearing for a motion to dismiss the felony information in the complaint against officer Irvin Magayanes was scheduled Thursday before Fifth Circuit Court Judge Randal Valenciano. The hearing was continued two weeks to Nov. 24.
Documents obtained by The Garden Island reveal the defense’s argument against the state in its motion to dismiss felony information citing the state did not have probable cause to prove negligent homicide or gross negligence against its client.
Magayanes is charged with negligent homicide in the second degree for hitting 19-year-old Michael Kocher Jr. of Hanapepe with his car on Jan. 3 while responding to the scene of a previous accident where Kocher had just been hit by the driver of another vehicle, according to initial police reports. Kocher died at the scene.
Defense attorneys said the state argued that the only alleged negligence in this case was the alleged speeding.
When Magayanes responded to the scene, he was going 19-24 mph over the speed limit, according to court records. Investigating officers concluded that Kocher would have died even if Magayanes was going the speed limit, which was 50 mph, according to court records.
The defense further argued that no evidence exists that proves Magayanes’ speeding was unjustifiable. They argue that as a law enforcement officer, Magayanes was justified in quickly trying to get the scene of the accident.
Defense attorneys Daniel Hempey and Craig De Costa declined to comment, but in their address to the court Thursday, they asked the court for the allowance of witnesses to enter this new information.
Witnesses included Kauai police officers Arthur Carberto, Joseph Himongala, Arthur Styan, Shawn Hanna and Sgt. Kennison Nagahisa, and resident Alan Yamagata, the man who initially hit Kocher on the night of Jan. 3.
Prosecuting Attorney Justin Kollar argued the defense must provide a declaration to the court that lists all witnesses by name and what each witness would say to avoid the hearing becoming a “mini trial.”
Hempey then stated he could declare immediately what each officer would say in their testimony.
“The police officers would testify that they also exceeded the speed limit and that driving in excess of 70 mph to an emergency is a common practice,” he said.
After a brief discussion between the parties and the court as to whether to allow witnesses, Valenciano ruled the defense would be allowed to present evidence at the hearing, including witnesses who would testify against the state’s probable cause argument.
All witnesses were ordered to return on Nov. 24.
Kollar then asked to have the court records, including the motion to dismiss felony information with exhibits, sealed.
According to police, Kocher was walking on the roadway about 9:30 p.m. Jan. 3 on Kaumualii Highway in Kaumakani, just east of the Kaumakani Post Office when he was struck by an eastbound Toyota Corolla being driven by Yamagata. Mayaganes, responding to the scene and also heading east, then struck Kocher again. Medics confirmed Kocher had no vital signs and he was presumed dead at the scene.
“The evidence presented to the reviewing Judge clearly established probable cause that Officer Magayanes was negligent in his driving on the night in question,” Kollar told TGI. “We look forward to resolving this and achieving justice for the Kocher family.”
Magayanes had been with the department for two years. Since the incident, he has been reassigned to administrative duties.
KPD declined to comment.
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Michelle Iracheta, cops and courts reporter, can be reached at 245-0424 or miracheta@thegardenisland.com. Follow Michelle on Twitter @cephira
