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The Honolulu Advertiser
Posted on: Monday, April 26, 2010

Appeals court rules out evidence

By Jim Dooley
Advertiser Staff writer

Hawaii news photo - The Honolulu Advertiser
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A statement to police by a man accused in a Big Island killing can't be used as evidence in his long-delayed trial, a state appeals court has ruled.

The decision was issued by the state Intermediate Court of Appeals last week in the case of Marwan Jackson, charged with the 2005 fatal beating of his pregnant girlfriend.

The victim, Sarah Fay, 34, was left brain-dead as a result of the Nov. 25, 2005, assault but was kept on life support for nearly a month until her baby could be safely delivered.

Jackson was indicted for second-degree murder, first−degree sexual assault, kidnapping and violation of a restraining order that Fay had obtained a year earlier to keep the man away from her.

The appellate decision upheld an earlier ruling by Big Island Circuit Judge Greg K. Nakamura suppressing a statement made by Jackson after he had been arrested, refused to speak with police and asked for a lawyer.

After his arrest, police served a warrant on Jackson authorizing them to photograph the suspect and take fingernail clippings. During that process, according to Hawai'i Police Department Detective Gregory Esteban, Jackson "asked out loud to no one in particular, 'What am I being charged for?'"

Esteban, who has since been promoted to lieutenant, told Jackson, "You're not being charged for anything right now but what we're investigating is serious enough that you may spend the rest of your life in prison."

Esteban said Jackson then became upset and said "something to the effect of, 'The rest of my life? I'm only 24. I'm a young man. How can I spend the rest of my life in prison just for fighting with my wife?'"

Jackson then said, "We were just fighting. She hit me two times. The second time she hit me in the head, I just lost it," according to Esteban's report.

Judge Nakamura ruled, and the Intermediate Court of Appeals confirmed in a 2-1 decision, that Jackson's statement could not be used against him because it was the product of a "custodial interrogation."

"By confronting Jackson with information that the police were investigating an offense that might put Jackson in prison for the rest of his life, Detective Esteban effectively accused Jackson of a serious criminal offense," the appeals court ruled.


Esteban's statement "was reasonably likely to elicit an incriminating response," the court found.

The circumstances violated Jackson's Miranda rights against self-incrimination, Judges Daniel Foley and Alexis Fujise wrote in their majority decision.

Chief Judge Craig Nakamura, a former prosecutor, dissented in an opinion longer than the majority ruling.

"I conclude that Detective Gregory Esteban did not 'interrogate' (Jackson)," Nakamura wrote.

Another officer present when Jackson spoke reported that Esteban several times "had reminded Jackson that he had invoked his rights and should remain silent and that Jackson was also given the same reminder after his response," Nakamura wrote.

"Esteban did not question Jackson, but simply answered Jackson's repeated demand to know what Jackson was being charged with."

Big Island Deputy Prosecutor Kanani Laubach said her office is still studying the decision and may ask the state Supreme Court to review it. She said the suppressed statement from Jackson is not the only evidence against him or even the only statement that he made that can be introduced at trial.

Having the suppressed statement still in evidence would "definitely help our case," she said.

"Will (the suppression) cause us to dismiss our case? No way," Laubach said.

Jackson's attorney, Stanton Oshiro, did not respond to a request for comment.