State v. Asaeli
| Decision Date | 31 March 2009 |
| Docket Number | No. 35799-2-II.,No. 35269-9-II.,No. 35792-5-II.,35269-9-II.,35792-5-II.,35799-2-II. |
| Citation | 150 Wn. App. 543,208 P.3d 1136 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Benjamin S. ASAELI, Darius A. Vaielua, and Eroni J. Williams, Appellants. |
Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma WA, for Respondent.
Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle WA, Lise Ellner, Attorney at Law, Vashon WA, Sheri Lynn Arnold, Attorney at Law, Tacoma WA, Reed Manley Benjamin Speir, Attorney at Law, University Place WA, for Appellants.
¶ 1 In this consolidated appeal, Darius Asafo Vaielua and Eroni Joseph Williams appeal their convictions for second degree felony murder based on the assault or attempted assault of the murder victim, Faalata Fola. Their co-defendant, Benjamin Salofi Asaeli, appeals his convictions for first degree murder by extreme indifference and first degree assault, both with firearm enhancements.1 We hold that the evidence was insufficient to support Vaielua's murder conviction and reverse his conviction and remand for an order dismissing with prejudice. We further hold that, although the evidence was sufficient to support Williams's murder conviction, the trial court erred when it admitted gang association evidence and gang expert testimony and that this error unfairly prejudiced Williams. Accordingly, we reverse Williams's conviction and remand for further proceedings. Finally, we hold that (1) although the trial court erred when it admitted the gang association evidence and gang expert testimony, that error was not prejudicial to Asaeli; (2) the trial court did not err when it denied Asaeli's numerous motions to sever; (3) Asaeli waived his right to challenge the trial court's admission of evidence regarding threatening phone calls received by the victim's sister before the victim's death; (4) the prosecutor did not engage in prejudicial prosecutorial misconduct during closing argument; and, finally, (5) cumulative error does not require reversal. Accordingly, we affirm Asaeli's murder and assault convictions.2
¶ 2 In the early morning hours of October 30, 2004, two groups of young people, many of them of Samoan descent, gathered at Thea Foss Park, in the Dock Street area of Tacoma's downtown waterfront. Fola arrived at the park with his cousin, James Fola,3 in a green Mercury Mystique driven by Tailulu Gago. Breanne Ramaley, Fola's girlfriend, arrived separately with friends in her red Nissan. Asaeli drove to the park with his girlfriend, Rosette Flores, in her white Chevrolet Lumina. Vaielua arrived in his girlfriend's "blueish green" Ford Explorer. VI Williams/Vaielua Report of Proceedings (WRP) at 869. Williams was a passenger in the Explorer.
¶ 3 Several persons, including Vaielua asked for Fola4 by his street name "Blacc." Williams5 located Fola seated in the driver's seat of the Nissan, which was parked between Gago's Mercury and the Lumina driven by Asaeli. Williams challenged Fola to a fight and then moved back. He said that Fola had a gun, and he tapped Asaeli.6 Asaeli immediately stepped forward and fatally shot Fola 7 to 10 times as Fola remained seated in the Nissan. Fola's friend, Tiare-Ann Misionare, was in the back seat of the Nissan at the time of the shooting. Vaielua was not near Williams and Asaeli when the shooting occurred; he was standing with James on the other side of Gago's car. Asaeli later confessed to shooting Fola. But he asserted that he had acted in self defense after Fola pulled a gun and shot at Williams and then pointed the gun at him.
¶ 4 The State charged Vaielua,7 also known as "Skills," and Williams,8 also known as "Twix," with (1) first degree premeditated murder or, in the alternative, first degree murder by extreme indifference for Fola's death (count I) and (2) second degree felony murder predicated on assault for Fola's death (count III).9 The State also alleged firearm enhancements on each count.10
¶ 5 The State charged Asaeli with (1) first degree premeditated murder or, in the alternative, first degree murder by extreme indifference for Fola's death (count I); (2) first degree assault of Misionare (count II); (3) second degree felony murder based on the predicate offense of assault for Fola's death (count III); and (4) possession of a stolen firearm (count IV). The State also alleged firearm enhancements on the assault and murder counts.
¶ 6 The State's trial theory was that Vaielua, Williams, and Asaeli all had ties to Kushmen Blokk, a purported Blood gang set, and that they planned to confront Fola, who had connections to a Crip gang set from the South Seattle area, about his behavior at the same park a week before the fatal shooting and to either assault or kill him. Although Asaeli admitted that he shot Fola, at trial Vaielua, Williams, and Asaeli all asserted that (1) there was no plan to confront or assault Fola, (2) Williams and Vaielua were not aware Asaeli was armed or willing to shoot Fola; (3) Asaeli acted in self defense; (4) there was no proof that Kushmen Blokk existed or, if it did exist, that it was a gang; and (5) there was no proof that they were associated with Kushmen Blokk.
¶ 7 Over repeated objections, the trial court consolidated the cases against all three defendants for trial,11 denied numerous motions to sever throughout the trial, and ruled that the State could present evidence of gang affiliation and expert testimony on gang culture from Detective John Ringer of the Tacoma Police Department and the Federal Bureau of Investigation Violent Crimes Task Force operating in Pierce County.
¶ 8 Following several weeks of trial, a jury convicted Vaielua and Williams of second degree felony murder; it did not find that they were armed with a firearm. The jury rejected Asaeli's self defense claim and convicted him of first degree murder by extreme indifference, second degree felony murder, first degree assault, and possession of a stolen firearm. The jury also found that Asaeli was armed with a firearm when he committed the murder and the assault. XV/XV RP(8/4/2006) at 2243.
¶ 9 It was common for groups of young Samoans to gather at Tacoma waterfront parks on Friday and Saturday nights after the bars closed. A week before the deadly shooting, several groups of young people had gathered at Thea Foss Park. Those present included Fola, Misionare, Ramaley, James (also known as "Tulo"), Gago, (Fola's friend and James's cousin—also known as Tai or "Psycho T"), Feleti Asi (also known as "Flex"), Williams, and Asaeli. Fola and Gago fired several rounds from a gun that Fola kept in Ramaley's car.13 Witnesses, including Asaeli, testified that, at one point, when a car with Asians in it arrived, people at the park threw beer bottles at the car and Fola shot at the Asians' car as it left the park.14
¶ 10 A week later, on October 29, 2004, Asaeli, Williams, and Vaielua spent time at Papaya's, a Lakewood bar, playing pool and socializing. Vaielua played pool with his friend, Ishmail Asaeli,15 who is Asaeli's cousin. Vaielua's uncle, Faleapa, and Vaielua's friends, Verdel Malo (also known as "Shake" or "Shaak") and Jeff Niuamoa, were also at the bar.
¶ 11 Between 11:00 and 11:30 pm, Flores and a female friend arrived at the bar; both had been drinking throughout the evening. They were in Flores's friend's car because Asaeli was driving Flores's Lumina that night. According to Flores, Williams arrived at approximately the same time they did and Asaeli showed up in Flores's car "an hour or so later." VIII Asaeli/Vaielua/Williams Report of Proceedings (RP) at 1170. Flores and Asaeli had not planned to meet at the bar that night.
¶ 12 Around 2:00 am, most of Papaya's patrons—including Williams, Vaielua, and Asaeli—left the bar. Ishmail testified that Faleapa had already passed out in the Explorer by the time they left. Vaielua talked to some of the others for about five minutes while Ishmail waited by the Explorer. Vaielua then dropped Ishamail off at Vaielua's mother's house near the bar and drove to Thea Foss Park. Ishmail testified that he and Vaielua had never before gone to the waterfront after the bars closed and that he was unaware of any plan to do so that night.
¶ 13 Although Flores and Asaeli had not arranged to meet at the bar, Flores agreed to ride with him to the park in her car. As Asaeli left the bar, he helped Flores's friend to her own car,16 and then he said "good bye to everybody that was there."17 VIII ARP at 1175. Although Flores could not hear what Asaeli said, she saw Asaeli talking to Vaielua before Asaeli returned to Flores's car.
¶ 14 Flores testified that "[t]here was a whole crowd in the cars" that headed down to the waterfront together, although she was not aware of any specific plan to caravan to the park. VIII ARP at 1176. She and Asaeli both talked on the cellular telephone18 on the way to the waterfront.
¶ 15 Asi received a telephone call while he and his roommate, Eugene Van Camp, were playing pool at a different pool hall. After the call, Asi asked Van Camp if he wanted to go to the waterfront. Van Camp agreed, they left in Van Camp's car, dropped Gloria Moso19 off at her house, and headed to the waterfront.20
¶ 16 Asi testified that he did not recall seeing Vaielua's vehicle on the way to the waterfront. But Van Camp testified that he and Asi saw the Explorer on the freeway and that Asi told him to get behind the Explorer and to follow it. Van Camp also noted that a white car was following them on the freeway.
¶ 17 Some time after midnight, Fola, James, and Gago arrived at Thea Foss Park in Gago's car; they were the only people at the park when they arrived. Ramaley, Misionare, Misionare's sister, Tami,21 and ...
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