A former professional boxer once accused of murdering his girlfriend and the woman’s 18-month-old daughter in separate incidents in 2011 has accepted a plea deal in the case of the toddler’s beating death.
Jury selection was scheduled to start Tuesday in the trial of Xavier “Pee Wee” Cortez Jr., but the 40-year-old Mountain View man pleaded no contest Thursday in Kona to first-degree assault in the beating death of Pomaikai Ferreira. Court records indicate Cortez was allowed to enter the no contest plea because of civil liability.
Kona Circuit Judge Ronald Ibarra scheduled sentencing for 1 p.m. Aug. 12. Both Hilo Circuit judges, Glenn Hara and Greg Nakamura, recused themselves from hearing the case for undisclosed reasons.
First-degree assault is a Class B felony punishable by up to 10 years in prison. Cortez could’ve been sentenced to life in prison with the possibility of parole if convicted of second-degree murder.
“The plea agreement is that the state can ask for 10 years in prison; Xavier can ask for any legal sentence, which includes probation and time served,” Keith Shigetomi, Cortez’s court-appointed attorney, said Saturday.
Cortez has been in custody since his arrest Jan. 28, 2014.
“I think the evidence at trial was questionable, which explains why there was a plea agreement in this case, that a jury could have found him not guilty,” Shigetomi said. “At the same time, a jury might have found him guilty, so there was a plea agreement reached that reflects the strength of the evidence.
“I think it was a very difficult decision for Xavier. It was a difficult case for both sides to go through and I think some sort of middle ground was found.”
Deputy Prosecutor Rick Damerville confirmed details of the plea agreement but said he doesn’t think Cortez will be released from jail with time served. He said Cortez will also be ordered to pay restitution totaling about $54,000 to the state Department of Human Services and Crime Victim Compensation Commission.
“The reason for the plea agreement is the loss of witness by death and the loss of another witness who just refuses to cooperate,” Damerville said.
Damerville called this case and other child death cases “agonizing.”
“That poor child had a real, real tough life and a tough death, and it’s so dispiriting at so many different levels,” he said. “That human beings are capable of killing innocent children is just appalling.”
On Jan. 2, 2011, police received a report that the girl, who lived with her mother and Cortez in a Wainaku apartment, had been taken to Hilo Medical Center and was experiencing difficulties breathing. She was transferred by air ambulance to The Queen’s Medical Center on Oahu, where she died a week later.
Cortez was arrested on suspicion of first-degree assault on the day of the incident but was released from custody pending further investigation. He was indicted on the murder charge for the girl’s death Jan. 22, 2014. The indictment was sealed by a judge until Cortez was arrested.
On Feb. 24, Hara dismissed a second-degree murder charge against Cortez for the Sept. 20, 2011, strangulation death of his 20-year-old girlfriend, Sommer Ferreira, the girl’s mother, in a Wainaku home where they lived.
That charge was dismissed without prejudice, which means prosecutors are free to refile 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 at the time. “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.”
“There’s no statute of limitations on murder. That case can be brought back at any time,” Damerville said Saturday.
Cortez remains in custody at Hawaii Community Correctional Center in lieu of $1 million bail.
Email John Burnett at jburnett@hawaiitribune-herald.com.
