State v. Titialii, No. 30187-3-II (WA 9/27/2005)
| Decision Date | 27 September 2005 |
| Docket Number | No. 30314-1.,No. 30187-3-II,consolidated with No. 30191-1,No. 30284-5.,30187-3-II,30284-5.,30314-1. |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. TODD TAIULU TITIALII, CAMPBELL VAINUU ALEFAIO, FRED ASO TITIALII, ALAIVAA TAUESE, JR., Appellants, and PUNI VAINUU ALEFAIO, Defendant. |
Appeal from Superior Court of Pierce County. Docket No. 01-1-05544-7. Judgment or order under review. Date filed: 04/02/2003. Judge signing: Hon. Frank E Cuthbertson.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Mary Katherine Young High, Attorney at Law, 109 N Tacoma Ave, Tacoma, WA 98403-2631.
Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.
Pattie Mhoon, Attorney at Law, 5303 Pacific Hwy E, Pmb 274, Fife, WA 98424-2679.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Campbell Alefaio, Fred Aso Titialii, Todd Titialii, and Alaivaa Tauese, Jr. appeal convictions for perjury and conspiracy to commit perjury. We affirm, except that we reverse and dismiss Todd's perjury count for insufficient evidence.
On Friday night, March 28, 1997, Casey Harrell, Ann Marie Harris, and two friends attended a party in Lakewood, Washington. After midnight, they drove toward Harrell's home. Harrell was behind the wheel, and Harris was in the back seat.
That same night, Campbell Alefaio, Fred Titialii, Todd Titialii, Alaivaa Tauese, Jr. (`Junior'), Jason Lee, Lawrence Fetui, and Ken Tuialuuluu were socializing at Campbell's house in Lakewood. After midnight, Fred, Campbell, Junior, Ken, and Jason left in Fred's car, with Fred driving. Lawrence and Todd remained at Campbell's house.
After dropping Jason at his house, Fred drove toward Junior's house. He came up behind Harrell's car and began tailgating it, to which Harrell responded by tapping his brakes. Using the center turn lane, Fred passed Harrell, came to a red light, and waited to turn left. Harrell pulled up and stopped at the same red light, waiting to turn right.
A shot rang out, and the bullet penetrated Harrell's car. It struck Harris, and she died a short time later. Fred turned left and took Junior home, after which he, Campbell, and Ken returned to Campbell's home.
That same night, Harrell told the police that he thought the shooter had been in the front passenger seat of the other car and might be of Pacific Island descent. Knowing that Campbell is of Pacific Island descent and lived in the neighborhood, Harrell speculated that the shooter might have been coming from Campbell's home.
On April 10, 1997, Harrell made another statement to the police, this one on tape. He said that the shooter was not Campbell, whom he knew and would have recognized. The prosecutor did not discover this statement until the weekend before trial.
On April 17, 1997, Jason gave the police the names of the people who had been at Campbell's house and in Fred's car. Jason said that when he got out of the car at his house, Fred was driving, Todd was in the front passenger seat, and Ken and Campbell were in the back seat.
On April 18, 1997, Ken, Fred, and Junior spoke with the police. Each said that Fred had been driving, that Campbell had been in the front seat, that Ken and Junior had been in the back seat, and that Campbell had fired the shot. Ken's statement was tape recorded.
That same day, Campbell was arrested and made a statement on tape. He confessed that he had been in the front passenger seat and that he had fired the shot. To the interviewing detective, he seemed remorseful and choked up.
The State charged Campbell with Harris' murder, and he remained in jail pending trial. Sixteen months passed, and trial was set to start on Monday, August 10, 1998. Then, on or about Friday, August 7, 1998, the prosecutor's office notified Campell's defense counsel that it had just discovered the April 10, 1997, taped statement in which Harrell had said Campbell was not the shooter. On Monday, August 10, 1998, the prosecutor notified the court of Harrell's taped statement. The defense moved for a continuance to investigate further, and the court granted that motion.
Meanwhile, on Saturday August 8, defense counsel visited Campbell in jail. At that time, the State infers, defense counsel told Campbell about Harrell's April 10th statement.
Shortly after August 8, according to the State, Fred, Lawrence, Todd, and Puni met because Puni had come up with a plan to `flip the script'1 i.e., to substitute Ken's name for Campbell's, but keep the rest of the story the same. They agreed to do that, and if one accepts the inferences that the State draws from subsequent events, Campbell and Junior soon agreed also.
When defense counsel next saw Campbell in jail, Campbell said that Ken, not Campbell, had fired the shot. Campbell explained that he had confessed so Ken could get his affairs in order, that Ken was then to come forward and take responsibility, and that Ken had failed to do that. Campbell also said that the others in the car that night would confirm his story.
Between August 18 and August 20, defense counsel interviewed Fred, Junior, Todd, and Ken. Fred and Junior each stated that Ken had fired the shot and that Campbell had taken the blame so Ken could get his affairs in order. Todd said that when the group returned to Campbell's house, Campbell and Fred were angry with Ken, and Ken was talking about the shooting. Ken denied firing the shot.
On October 21, 1998, Campbell's murder trial began. Campbell, Fred. and Junior each testified that Ken had fired the shot and that Campbell had confessed only so Ken could get his affairs in order. Todd testified that when the five men left Campbell's house, Fred was driving, Ken was in the front passenger seat, and Campbell, Jason, and Junior were in the back seat. Todd also testified that when Fred, Campbell, and Ken returned to Campbell's house, Ken `didn't say who did it.'2 Ken testified that Campbell had fired the shot. On October 28, 1998, the jury acquitted Campbell.
In July 1999, the prosecutor's office petitioned for a special inquiry proceeding to aid it in determining whether perjury charges should be filed. The petition was granted and proceedings were held in July and August 1999. Puni and Todd were called as witnesses, and Todd was not offered counsel before he took the stand.
In October 2001, Lawrence was arrested and interviewed by the police. He said that Campbell had fired the shot, after which he and the others had agreed to blame Ken.
On October 26, 2001, the State filed charges against Fred, Campbell, Junior, Todd, Lawrence, and Puni. As later amended, those charges alleged (1) that Fred, Campbell, and Junior had committed first degree perjury by testifying in the murder trial that Ken had fired the shot; (2) that Todd and Lawrence had committed first degree perjury by testifying in the murder trial (a) that Ken had been in the front passenger seat when the car returned to Campbell's and (b) that Ken had admitted being the shooter; (3) that Fred, Campbell, Junior, Todd, Lawrence, and Puni had conspired to commit perjury; and (4) that Puni had committed perjury by testifying at the special inquiry proceeding. The State and Lawrence formed a plea bargain in which he agreed to testify for the State. The jury could not reach a verdict on Puni, and he is not part of this appeal.
On September 23, 2002, before the perjury trial started, the defendants moved to dismiss the perjury charges on grounds of double jeopardy and collateral estoppel. They asserted that the identity of the shooter had already been litigated and determined in the murder trial. The trial court denied their motions.
In late November 2002, a jury was selected, and on December 3, 2002, the State began presenting its evidence. Harrell testified that the shooter was a large male whom he could not identify. He was impeached with the April 10, 1997, taped statement in which he had said that if Campbell had been in the car, he would have recognized him. Harrell explained that he knew Campbell and had not wanted to believe it was him.
A police officer testified that he had interviewed Campbell, Junior, and Fred not long after the shooting. Campbell had admitted shooting Harris while sitting in the front passenger seat, and he had appeared to be choking back tears as he spoke. Junior and Fred had also said that Campbell fired the shot from the front passenger seat.
Jason testified that he had lied to the police by telling them Todd had been in the front seat. In truth, Jason now said, Fred was driving; Campbell was in the front passenger seat; and he, Ken and Junior were in the back seat. Jason said that either Fred or Campbell had a gun, and he was `pretty sure' it was Campbell.3
Lawrence testified that on the night of the shooting, Campbell, Fred Ken, Junior, and Jason left in Fred's car to take Jason and Junior home. When they returned, Campbell admitted firing the shot, and Fred and Ken said Campbell had fired the shot. Later however, Lawrence met with Puni, Fred, and Todd. They knew by then about Harrell's April 10, 1997, taped statement, and Puni proposed substituting Ken's name for Campbell's but keeping the rest of the story the same. Lawrence, Puni, Fred, and Todd agreed they would do that, and Lawrence thought that Campbell and Junior had also agreed, even though `{a}t no time did anybody ever tell me they told Campbell what was going on.'4 Lawrence had lied when, in August 1998, he had told Campbell's attorneys that Ken had fired the shot. He had also lied at the murder trial when he testified that Ken had fired the shot from the front passenger seat. He presently was testifying as part of a plea bargain in which he had agreed to plead guilty to conspiracy in exchange for the State's dismissing the perjury charge...
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