State v. Toki
| Decision Date | 25 August 2011 |
| Docket Number | No. 20090383–CA.,20090383–CA. |
| Citation | 2011 UT App 293,689 Utah Adv. Rep. 37,263 P.3d 481 |
| Parties | STATE of Utah, Plaintiff and Appellee,v.Sitamipa Ulisis TOKI, Defendant and Appellant. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Joan C. Watt, Salt Lake City, for Appellant.Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.Before Judges McHUGH, ORME, and CHRISTIANSEN.
¶ 1 Defendant Sitamipa Toki was convicted of discharging a firearm from a vehicle or in the direction of a person, building, or vehicle, with an “in concert” enhancement, see Utah Code Ann. § 76–10–508 (2008),1 a second-degree felony, and possession of a dangerous weapon by a restricted person, see id. § 76–10–503, a second-degree felony. On appeal, he asks us to reverse his convictions and remand the case for a new trial based on multiple claims of error, the most significant of which concerns expert testimony on Defendant's gang affiliation. Defendant also claims error in the trial court's improper references to Defendant having been charged as a “restricted person” and to its handling of an altercation that occurred during the trial. We affirm.
¶ 2 In February 2007, the State charged Defendant with three counts: discharging a firearm in the direction of a building, see id. § 76–10–508; possession of a dangerous weapon by a restricted person, see id. § 76–10–503(2); and aggravated assault, see id. § 76–5–103 (Supp. 2010). In March 2007, the State amended the information, adding David Kamoto and Daniel Maumau as codefendants. At the time of trial, however, Kamoto was the sole codefendant. Defendant filed a motion to sever the possession charge from the other charges. In response, the court severed the “restricted person” element from the possession charge. Defendant also filed a Notice of Alibi. The State gave notice that it intended to present expert testimony from Detective Break Merino regarding “gang recognition, behavior, membership, and conflicts related to the Tongan Crip Gang.”
¶ 3 Following a trial in October 2008, Defendant was convicted of possession of a dangerous weapon by a restricted person and unlawful discharge of a weapon, with an “in concert” enhancement. The jury acquitted him of the charge of aggravated assault. The trial court denied Defendant's motion for a new trial, and Defendant appealed.
¶ 4 In the early hours of February 3, 2007, a family party was underway in the carport of a home in Kearns. The carport was enclosed on all sides with a tarp. Myla, her nieces Camilla and Mele, her nephew Magic, her friend Patty, and other family members were at the party and drinking heavily. Mele left the party around 2:00 a.m., driving Patty's SUV.
¶ 5 Around 4:00 a.m., some of Mele's relatives noticed that she was gone and tried to locate her. A relative later called and told them that he had noticed the missing SUV parked on his street. Myla, Camilla, and Magic left the party around 5:30 a.m. to find the SUV. When they located it, Camilla opened the driver's door, and Camilla and Myla saw Mele and Defendant, whom Camilla recognized and later identified. They were both naked. When Magic saw the couple, he punched Defendant in the face. Defendant got out of the car to confront Magic, and Camilla yelled at Magic to get back in the car. Myla, Camilla, and Magic then returned to the party, and Mele remained with Defendant.
¶ 6 Defendant later called Myla several times and told her that he wanted to come over to apologize. Myla did not want him to come over because of the earlier altercation between Defendant and Magic. Defendant was undeterred. Mele testified that Defendant told her to drive him “to get some of his boys ... just in case [Mele's] family jumped him or just in case anything happened at [Mele's] house.” She drove to a Glendale neighborhood where a man later identified as codefendant Kamoto got into the car and spoke with Defendant in Tongan, a language Mele does not understand. Kamoto then got into a silver car with another man. Mele knew these two men as D–Locc and D–Down, and someone had told her they were Defendant's “boys.”
¶ 7 Defendant directed Mele to drive to her house; the silver car followed. As Mele pulled into the driveway, Myla was standing on the driveway outside the carport. Defendant got out of the car with a shotgun and walked toward Myla, saying he wanted to apologize and talk to Magic. Myla refused to let him pass. Myla testified that Defendant pointed a gun toward her and told her to move. As Defendant advanced toward her, she backed up toward the carport and yelled, “Magic, he has a gun.” Magic and Camilla were in the carport when they heard Myla yell. They saw her backing through the tarp into the carport, followed by Defendant holding a gun. Magic grabbed Camilla and got down on the floor. Magic heard a gunshot a second or two later.
¶ 8 Mele and Myla both saw the silver car arrive shortly after Defendant began approaching Myla. Two men, wearing blue bandannas over their faces and carrying guns, emerged from the car. Myla did not see either man fire his weapon. Mele saw Myla and Defendant go through the tarp opening, heard a shotgun blast in the carport, and then heard multiple shots coming from behind her. She saw D–Locc and D–Down near the silver car, shooting toward the house, and she saw the shots hitting a window. Defendant then ran toward the silver car, and Mele saw him shoot once toward the front of the house. Mele ran after Defendant, yelling at him to leave. As she neared the silver car, Defendant opened the door to get in and the door hit Mele, knocking her down.
¶ 9 Magic heard several shots from outside the carport and kept Camilla on the ground. When the shooting ended, Myla, Magic, and Camilla found several shotgun shells, holes in the front of the house, and Mele lying in the street. Myla punched Mele in the face. Mele then went to the hospital where she gave a written statement to police, claiming that Defendant had raped her. She later admitted that she lied about the rape.
¶ 10 Police found fired and unfired rifle ammunition, 12–gauge shotgun shells, and holes in the front window of the house consistent with a single shotgun blast and two rifle shots. They also found evidence of a shotgun blast on the carport ceiling and a hole in the tarp hanging from the carport.
¶ 11 Two witnesses testified that Defendant was at a birthday party in Sugarhouse on February 3, 2007, from 1:30 a.m. to 7:00 a.m. Both witnesses were certain Defendant was present until about 7:00 a.m.
¶ 12 Detective Break Merino testified as an expert on gangs in general and on the Tongan Crip Gang (TCG) in particular. He defined a gang as “two or more people acting in concert ... for the furtherance of a group or an organization or a gang” and indicated that a “gang” had to be engaged in criminal activity. He identified Defendant, codefendant Kamoto, and Daniel Maumau as members of TCG. He testified about the identifying characteristics of TCG members, such as tattoos, monikers (which he described as street names that members will use “especially if they're out doing crimes”), and common clothing. He testified that TCG members carry a blue bandanna to indicate to other gang members or to the public that they are members of TCG and also to use as a disguise when they are “putting in work.” He also testified in broad terms about “our gang problem”; “our problem gangs”; gang activities, particularly criminal activities; his involvement with gangs through the law enforcement units to which he had been assigned; and his investigation of gang crimes.
¶ 13 Before trial, Defendant's counsel asked that the possession of a dangerous weapon by a restricted person charge be severed from the other charges. Rather than severing the charge, however, the court severed the “restricted person” element from the rest of the charge. In view of this ruling, counsel twice asked the court to remove references to the “restricted person” element from the jury instructions. First, before the court read the preliminary instructions to the jury, the prosecutor requested omission of any language referring to Defendant being “on probation or parole for any felony.” Second, after closing arguments, codefendant Kamoto's counsel reminded the court to remove the “by a restricted person” language just before the court disseminated the instructions to the jury. During both discussions, the court readily agreed to remove the identified language.
¶ 14 Nevertheless, the trial court referred to the restricted person language several times, as follows: (1) When he was first talking to the panel of prospective jurors, he stated that “Count 2 is purchase, transfer, possession or use of a firearm by a restricted person,” and (2) when he read the preliminary instructions to the jury before the presentation of evidence, he twice mentioned that Defendant was charged with purchase, transfer, possession, or use of a firearm by a restricted person. In addition, the court neglected to amend Instruction 5, the jury instruction outlining the charges, to remove the “restricted person” language before a copy of the instructions was given to the jury.
¶ 15 During deliberations, the jury sent out a note asking for clarification of the term “restricted person.” At that time, Defendant's counsel agreed that the trial court could respond as follows: “Do not concern yourself with the language of ‘restricted person.’ ”
¶ 16 During the trial, an altercation occurred between the two sets of doors at the entrance to the courtroom, just after the jury had been excused for lunch. The trial court discussed the situation with counsel and ultimately decided to remove from the courtroom several people identified as having a connection to the altercation. When...
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...that the Gang Affiliation Evidence was probative of the three assailants' relationship and their “alleged collusion.” 9See State v. Toki, 2011 UT App 293, ¶ 45, 263 P.3d 481 (holding that “shared gang affiliation” is “highly probative” to show codefendants acted “in concert”), cert. denied,......
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