Court denies government motion for reconsideration in fatal hit and run case

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SUPERIOR Court Associate Judge Joseph N. Camacho has denied the Office of the Attorney General’s motion for reconsideration regarding restitution in a fatal hit and run case.

Esekiel “Easy” Smith, 31, was sentenced by Judge Camacho last year to five years and six months’ imprisonment after pleading guilty to reckless driving and leaving the scene of an accident without rendering assistance.

As part of Smith's sentence, he was ordered to pay restitution to the victim’s family and was made eligible for work release while serving his sentence to pay his restitution.

The parties have agreed that, at a minimum, Smith owed $1,000 in restitution, which was immediately paid from the bail money he posted.

However, the judge noted, the parties disagreed as to how much more Smith owed in restitution and to whom.

On March 30, 2020, Judge Camacho issued an order stating that the Department of Fire and Emergency Medical Services and the Commonwealth Healthcare Corp. are not eligible to receive restitution when they are only "indirect third-party victims" of a crime.

The judge said, “The tort defense of comparative negligence is not applicable here because the victim's family members did not negligently contribute to their damages.”

Moreover, “voluntary offertory gifts to priests for performing funeral Mass are not economic losses for purposes of restitution,” the judge said.

The AG’s office then filed a motion to reconsider the judge’s order.

Chief prosecutor John Bradley, in an email to Variety on Monday, stated that the AG’s office notified the court that the CNMI Constitution guarantees a victim the right to restitution.

“The CNMI Code of Criminal Procedure recognizes that the estate of a deceased victim inherits that right to restitution. Nonetheless, Judge Camacho denied the family restitution and left them exposed to a debt for medical expenses,” Bradley said.

He said Judge Camacho took the position that the victim had to pay the bill to gain the right to restitution. “That's not possible, as the victim was killed by the reckless driver,” Bradley added.

The AG’s office, he said, will, once again, look at whether the Supreme Court should be asked to review this decision.

According to the chief prosecutor, the victims of crimes, especially those killed by a criminal defendant, and the victims’ surviving families, deserve to be made whole, as the CNMI Constitution and the Code of Criminal Procedure clearly state.

In an order issued Friday, Judge Camacho denied the government’s motion to reconsider because 1) there was no economic loss by the victim because he did not pay DFEMS and CHCC bills; and 2) the estate of the victim cannot recover restitution as it is not a “direct victim” of defendant’s crime pursuant to 6 CMC §§9101, 4109(B).

Assistant AG J. Robert Glass Jr. represented the government while Smith was represented by Assistant Public Defender Jean Pierre Nogues.

The Department of Public Safety identified Smith as the driver of a vehicle that fatally struck 21-year-old Melton Agulto Jr. on Aug. 19, 2018. Smith surrendered to the police the same day. The victim was pronounced dead due to severe head trauma.

Smith was charged initially with homicide by vehicle, operating a vehicle without a valid driver’s license, failure to exercise due care to pedestrian, and leaving the scene of an accident without rendering assistance.

According to court documents, in the evening of Aug. 18, 2018, the victim, Melton Agulto, was intoxicated and got into two physical altercations — first at the San Vicente basketball court and then later at his home.

These altercations caused Agulto to sustain injuries, which resulted in DFEMS being called to transport Agulto from his home to CHCC.

Agulto was still intoxicated at the time he was admitted to CHCC.

In his intoxicated state, Agulto acted belligerently to CHCC personnel and other patients. Subsequently, CHCC personnel called for police assistance. Agulto fled from CHCC before the police arrived.

CHCC personnel informed the police that Agulto headed north on foot on Middle Road. The police searched for Agulto, but could not locate him. After evading the police search, Agulto continued north in Puerto Rico walking in the middle of the street.

Sometime after midnight on Aug. 19, 2018, Esekiel Smith, while driving north in Puerto Rico, struck Agulto as Agulto walked in the middle of the street. Smith fled the scene of the accident. Sometime later, the accident was reported to the police. Agulto was transported to CHCC in an ambulance operated by DFEMS. Agulto died as a result of his injuries.

In the early morning hours of Aug. 19, 2018, the same morning of the accident, Smith appeared at the police station and voluntarily surrendered himself to the police.

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