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AMERICAN SAMOA GOVERNMENT, v.PUNEFU TUAOLO

 

AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
PUNEFU TUAOLO, Defendant.†
High Court of American Samoa
Trial Division
CR No. 30-98
January 31, 2000

 

[1] An expert witness who is qualified by knowledge, skill, experience,
training, or education is permitted to testify by giving an opinion on a
matter involving scientific, technical, or other specialized knowledge
that will assist the trier of fact to understand the evidence or to determine
a fact in issue.
[2] The standard for the admissibility of DNA evidence is governed by
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
[3] The court must determine, preliminarily in a jury trial, that the basis
of proposed expert opinion testimony is reliable and relevant.
† This case was inadvertently omitted from 4 A.S.R.3d (2000). Due to
its importance it is being published at this time.

[4] In evaluating the admissibility of expert testimony under T.C.R.Ev.
702, the trial court must look for such factors as: (a) whether the theory
or technique in question has been or can be tested and has been subjected
to peer review and publication; (b) the known or potential rate of error of
the particular theory or technique and whether operational control means
exist for it; and (c) the extent to which the theory or technique has been
accepted.
[5] Evidence must be sufficiently related to the facts at issue to assist the
trier of fact.
[6] The probative value of evidence must substantially outweigh the
dangers of unfair prejudice, confusion of the issues, or misleading the
trier of fact.
Before RICHMOND, Associate Justice, ATIULAGI, Associate Judge
and TAUANU’U, Temporary Associate Judge.
Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General
For Defendant, Tautai A.F. Faalevao, Public Defender
OPINION AND ORDER
Plaintiff American Samoa Government ("ASG") charged defendant
Punefu Tuaolo ("Tuaolo") with the crimes of robbery in the first degree
(Count 1), felonious stealing (Count 2), felonious restraint (Count 3), and
assault in the second degree (Count 4) by the information filed on May
11, 1998. A Daubert hearing on the admissibility of certain expert
opinion evidence was conducted on December 1-2, 1999. Tuaolo then
waived his right to a jury trial. The bench trial commenced on the same
date and concluded on December 10, 1999. Tuaolo and both counsel
were present throughout the hearing and trial.
The Daubert Hearing and the Court's Rulings
This criminal prosecution presented evidentiary issues of first impression
in this jurisdiction: the admissibility of the results of forensic
deoxyribonucleic acid ("DNA") comparisons with questioned items of
evidence. The DNA examinations, as well as other forensic testing,
were done at the Federal Bureau of Investigation ("FBI") laboratory in
Washington, D.C. Five members of the FBI laboratory staff were
required to present this evidence by testimony before the court. Hence,
pursuant to T.C.R.Ev. 104(a) - (c), the parties proposed, and we agreed,

that a pretrial hearing on the admissibility issues be conducted during the
week before the trial.
[1-2] T.C.R.Ev. 702 applies to expert opinion testimony. Rule 702
permits a witness who is qualified by knowledge, skill, experience,
training, or education to testify by giving an opinion on a matter
involving scientific, technical, or other specialized knowledge that will
assist the trier of fact to understand the evidence or to determine a fact in
issue. F.R.Ev. 702 is identical to our local Rule 702. Thus, the parties
also agreed, and we concur, that the standard for the admissibility of
DNA evidence is governed by Daubert v. Merrill Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).
[3-6] The court must determine, preliminarily in a jury trial, that the
basis of the proposed expert opinion testimony is reliable and relevant.
Daubert, 509 U.S. at 590-91, 594. The Supreme Court held that Federal
Rule 702 rejects the traditional test of general acceptance in the relevant
scientific community as the basis for admitting novel scientific evidence,
as required by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Under Rule 702, the trial court must still look for such reliability factors
as: (a) whether the theory or technique in question has been or can be
tested and has been subjected to peer review and publication; (b) the
known or potential rate of error of the particular theory or technique and
whether operational control means exist for it; and (c) the extent to
which the theory or technique has been accepted. Daubert, 509 U.S. at
593-94. Once reliability is satisfactorily established, the court must
determine that the evidence is sufficiently related to the facts at issue to
assist the trier of fact, and that its probative value substantially
outweighs the dangers of unfair prejudice, confusion of the issues, or
misleading the trier of fact. Id., at 595; see T.C.R.Ev. 401-403.
Following receipt of the FBI laboratory reports, and prior to the Daubert
hearing, the parties filed two written stipulations. In essence, the parties
stipulated to the admissibility in evidence by way of expert opinion
testimony of the results of DNA testing of certain evidence in this case
performed by Julie Ann Kidd ("Kidd") and Dr. John E. Stewart
("Stewart"), both FBI laboratory personnel.
However, as part of our learning process, we agreed with ASG's strategy
to have Stewart and Kidd testify about their professional qualifications,
DNA theory and practice, and the results of their DNA analyses in this
case. Based upon the parties' stipulations and particularly the testimonial
amplification, we specifically made and reiterate the following findings.
First, Stewart and Kidd are qualified by education, training and
experience to provide expert opinion testimony in the DNA field.

Second, DNA examinations and the DNA analytical protocols applied to
the evidence in this case have a scientific basis and are reliable under the
Daubert standard. Third, Stewart properly performed the DNA
procedure called mitochondrial. Kidd properly performed the DNA
procedures called restriction fragment length polymorphism ("RFLP")
and polymerase chain reaction ("PCR"). Fourth, Stewart's and Kidd's
expert opinions on the results of their examinations are relevant, and will
assist the trier of fact to understand the DNA evidence and to determine
identity of the perpetrator(s) of the crimes charged. The probative value
of this evidence substantially outweighs any prejudice and other dangers
of unfairness.
During the Daubert hearing, ASG also called Monica Knuckles
("Knuckles") of the FBI laboratory to testify as a forensic chemist with
respect to her comparative analyses of items of masking tape recovered
as evidence in this case. Based upon her testimony, we found and still
find the following facts. Knuckles is qualified as a forensic chemist by
education, training and experience. The types of analyses she made of
the items of masking tape are scientifically reliable under the Daubert
standard. The results of Knuckles' examinations are relevant to assist the
trier of fact to identify the perpetrator(s) of the crimes charged and
significantly exceed any prejudicial effects.
The Trial and the Court’s Findings and Conclusions
A. Jury Waiver and Further Stipulations
Shortly after the Daubert hearing was concluded, Tuaolo filed a written
waiver of his right to trial by jury. On December 6, 1999, before the trial
commenced, we again admonished Tuaolo of his right to trial by jury.
Tuaolo orally reaffirmed his written decision to waive that right and
proceed with a bench trial.
The parties also provided three more stipulations for purposes of the
trial. First, before filing the written jury waiver, they stipulated that the
statement of Aukusitino Fanene ("Fanene") given to Sgt. Lavata’i T.
Sagapolutele ("Sagapolutele") on or about October 26, 1999 may be read
to the jury. During the bench trial, without objection, Sagapolutele read
Fanene' s statement to the court.
During the first day of the bench trial, December 6, 1999, the parties
stipulated that the court may take judicial notice of the testimony given
by Stewart and Kidd during the Daubert hearing in lieu of taking further
testimony from them. We take judicial notice of this evidence.

Lastly, during the second day of the bench trial, December 7, 1999, the
parties stipulated that based upon Fanene's statement to Sagapolutele, the
FBI's DNA analyses, and other evidence, ASG would seek an arrest
warrant for Fanene as a principal or accessory to the charges in this case
after the bench trial concluded.
B. The Crimes
Well beyond any reasonable doubt, the four crimes charged in this case
were committed. At least two accomplices directly participated. A third
accomplice was possibly involved either as a principal or abettor.
The offenses occurred at the poker machine center in the Tautua Hall
during nighttime, shortly after 3:00 a.m. on April 30, 1998. Tautua Hall
is located near the northwesterly side of Pago Park in the Village of Pago
Pago. Two victims were present, Ho Min, an owner and the operator of
the center, and Beam Fa'alogo (“Fa'alogo"), one of his employees. Both
heard noise at one of the entrance doors to the center, just as someone
turned off the lights in the center. Two perpetrators wearing black masks
entered the center. One of them, a large male, struck Ho Min's head with
a shotgun. He pushed Ho Min to the floor and kicked him several times.
He demanded money and threatened to kill Ho Min. Ho Min told
Fa'alogo to give the perpetrators all the money in the center. The large
perpetrator bound Ho Min's hands, feet and face with masking tape. Ho
Min heard three shotgun shots. He probably then lost consciousness for
a short time. Upon waking, Ho Min was able to remove the tape. He
called the police from a telephone outside the center.
The second masked perpetrator went to Fa'alogo. She was in the
cashier's office at the center. He had a flashlight and held a shiny
handgun on her. She heard Min being struck and scream. Fa'alogo tried
to close the door to the office, but her attacker kicked or pushed open the
door. He told Fa'alogo, who had fallen to the floor, to kneel and put all
the money in the knapsack he threw in front of her. After Fa'alogo put
the money in the knapsack, this perpetrator bound her hands, feet and
mouth with masking tape. Fa'alogo heard two gun blasts and feared for
her life. However, the perpetrators suddenly left the center. She
unbound herself and went to help Ho Min. She saw that Ho Min was
bleeding from a head injury and appeared to be unconscious. After Ho
Min regained consciousness, the police were called.
Three poker machines were damaged by the shotgun blasts.
Approximately $1,500 in United States quarter coins were taken from
these machines. United States currency in other denominations, totaling
approximately $500.00, was taken from the cashier's office. Ho Min's

wallet, containing about $650.00 and a VISA credit card, was taken from
his person. His and his wife’s cellular telephones were also stolen.
C. The Perpetrators’ Identities
We must still solve beyond a reasonable doubt the genuine puzzle of the
perpetrators' identities. On May 1, 1998, almost immediately after the
crimes were committed, Tuaolo was arrested for the crimes charged. He
is, of course, the only accused presently on trial. Fa'alogo identified
Tuaolo as her masked attacker, and ASG initiated his prosecution
principally on this basis. At the trial, Fa'alogo maintained that Tuaolo is
that culprit. This is the strongest evidence of Tuaolo's guilt. Certain
factors tend to corroborate Fa'alogo's identification of Tuaolo. Other
factors raise questions about her identification. We will review the
evidence in substantial detail in analyzing her identification.
1. The Surrounding Circumstances
Tuaolo was also employed at the poker machine center. He first worked
there during the weekend before the crimes were committed and knew
the layout of the premises. However, he did not come to work the night
of the charged offenses. On his first night on the job, Tuaolo had a shiny
handgun, which he showed to Ho Min and identified as a .38 caliber gun.
He took the handgun with him when he left work that night. The
handgun was similar to the gun Fa'alogo's attacker held on her.
Fa'alogo's attacker was similar to Tuaolo in height, build, and voice.
During the attack, she called her attacker "Punefu" and said she was
surprised at his conduct.
According to Fa'alogo, her attacker wore the off-white shirt and
camouflaged "army" pants in evidence. She said that the shirt was
yellow, but Fa'alogo saw the shirt by the yellow lens or bulb of her
attacker's flashlight. The police arrived at the crime scene within
minutes after they were called. A short time later, Tuaolo drove up to
the scene in a red pickup. Bobby Tuiletufuga ("Tuiletufuga") is the
registered owner of this pickup. Tuaolo was then wearing the off-white
shirt and "army" pants.
Tuaolo, Tuiletufuga, and Fanene are long-standing friends. Tuaolo is
also a former employee, perhaps as long as eight to 10 years, of ASG's
Emergency Medical Service ("EMS") and a long-term friend of EMS
employees Teofilo Mageo ("Mageo"), Aukusitino Fruean ("Fruean"),
and Christy Moa ("Moa"). Tuaolo attended Mageo's birthday party in
Aua during the evening of April 29, 1998. He was driven to the party by
Tuiletufuga, who also picked him up there in the early morning of April

30. Fruean and Moa were also at the party. Mageo, Fruean, and Moa
consumed considerable quantities of beer at the party.
According to Mageo, Fruean, and Moa, they went to Tuaolo's pool hall
in Pago Pago about 2:00 a.m. on April 30. Tuaolo and his wife Mina
Tuaolo ("Mina") live in a two-story building behind the pool hall. These
two buildings are located very near, not more than a five-minute walk to,
Tautua Hall. Tuaolo and Mina were in the pool hall when Mageo,
Fruean, and Moa arrived there. They consumed more beer and played
pool with Tuaolo. Two other EMS employees stopped by briefly but did
not join the pool game. They were on their way to StarKist Samoa for a
training exercise involving EMS personnel. At some point during the
pool game, Mina retired to her home.
Again according to Mageo, Fruean, and Moa, after Mina and the other
EMS visitors left, and some time after 3:00 a.m., Tuiletufuga and Fanene
arrived at the pool hall in Tuiletufuga' s pickup. Tuiletufuga was
screaming or crying out for help and asking Tuaolo to take him and
Fanene to the ASG's LBJ Tropical Medical Center ("LBJ") in Faga'alu.
They told Tuaolo that they had been shot. Despite their EMS training
and experience, Mageo, Fruean, and Moa were not asked to assist
Tuiletufuga and Fanene. Instead, Tuaolo drove off with them.
Tuaolo drove Tuiletufuga and Fanene to the LBJ and left them there for
medical treatment. Tuaolo then drove the pickup back to Pago Pago and
stopped at Tautua Hall during the ongoing initial police investigation at
the crime scene. It was then that Fa'alogo observed Tuaolo wearing
"army" pants and an off-white shirt.
Mina was also there, apparently having been awakened by crying or
other noise from the direction of Tautua Hall. After Tuaolo arrived, he
instructed Mina to drive Tuiletufuga's pickup to their home. She did so.
Mina claimed that a roll of new masking tape fell outside when she
exited the pickup, and that she took the tape inside, later used it to repair
a hand fan, and left it in the bedroom used by Tuaolo and her.
2. The Physical Evidence
Police Captain Vaaomalo Sunia ("Sunia"), the head of the Criminal
Investigation Division and as such in ultimate charge of the investigation
of this case, seized the roll of masking tape from Tuaolo's and Mina's
bedroom during the course of the execution of a search warrant on May

1, 1998.1
There are numerous other items of physical evidence. We take note of
the police investigators' observations and recovery of those items that are
particularly significant to this discussion. At the crime scene, they
observed Ho Min's injuries, the three damaged poker machines, and a
blood stain on the floor near the door to the cashier's office. They
recovered from the customer area of poker machine premises, among
other items, three empty shotgun cartridges, strips of masking tape near
the one entry door to the center, and strips and a roll of masking tape
within the cashier's office.
The investigators impounded Tuiletufuga's pickup from Tuaolo's
residence. Inside the pickup, they found and took for evidence a black
mask from the front right floor, a tee shirt and black pants on the seat,
and another black mask underneath this clothing. A cellular telephone
was inside the right back pocket of the pants. A pocket knife and two
bullets were also found in the pickup. The police also seized the "army"
pants and off-white shirt worn by Tuaolo when he returned to the crime
scene.
Body samples were also taken, using proper procedures, to provide
known submissions for the FBI's DNA analyses. These samples
included blood, hair, and saliva from Tuaolo; blood, hair, and saliva
from Tuiletufuga; blood and hair from Fanene; and blood from Ho Min.
In addition, fingerprints from Tuaolo, Tuiletufuga, Fanene, Ho Min, and
Fa'alogo were imprinted and sent to the FBI for comparison.
3. The Statements by Tuaolo and Fanene
After he drove to the crime scene, Tuaolo made oral statements to the
police at the crime scene and, later on April 30, a written statement to the
police at the central police station. Both statements were admitted into
evidence without objection. Tuaolo's statements were essentially
consistent with the other evidence in the case.2
1 Sunia also interviewed Mina on May 6, 1998. During that interview,
she told Sunia that Tuaolo owned a stainless steel revolver, which she
last saw on April 28, 1998, and that she did not know where Tuaolo may
have “hid” the gun. Mina put her credibility at serious issue during
cross-examination when she denied that Tuaolo owned a gun and denied
that she made the prior inconsistent statement to Sunia that Tuaolo
owned a stainless steel revolver.
2 There are two noteworthy inconsistencies between Tuaolo's written
statement and Mina's testimony. First, Tuaolo wrote that Tuiletufuga

Fanene and Tuaolo appear similar in height and build. ASG intends to
charge Fanene with the same offenses for which Tuaolo in now on trial.3
Fanene's statement to the police is one basis for this intended action. On
October 26, 1999, police Lt. Sagapolutele wrote what Fanene told him
about the offenses. Fanene then signed this document. This statement
was admitted into evidence pursuant to the parties' pretrial stipulation.
We will set forth the presently important aspects of Fanene's statement.
Fanene claimed that Tuiletufuga, threatening him with a shiny handgun,
forced Fanene to join Tuiletufuga's plan to commit the offenses. Both
wore masks at Tautua Hall. Fanene then had the handgun and a
flashlight, and wore black pants and a white shirt, all furnished by
Tuiletufuga. Tuiletufuga turned off the lights in the poker machine
center and beat the Korean. Fanene admitted that he had the female
cashier put money in a bag, and then tied her hands and mouth with
masking tape, as Tuiletufuga had instructed him to do. While tying the
cashier, he became afraid when the cashier called him Punefu and said
she was surprised at what he had done to her, but he finished tying her.
A third person appeared, locked the front door, and opened the back door
(apparently but not clearly Tautua Hall rather than the center's doors).
This third person wore "army" pants and a shirt Fanene said he could not
drove him to Mageo's birthday party in Aua at about 11:00 p.m. on April
29. Mina testified that Tuaolo went to the party at about 6:00 or 7:00
p.m. Second, Tuaolo wrote that after he was picked up at the party,
Tuiletufuga drove him to and dropped him off at Tautua Hall. Tuaolo
stated he walked into the poker machine center and was there briefly to
tell a person identified as Boy Faumuina to look after the center. Then
he walked home. Mina, on the other hand, testified that shortly after
Tuaolo came to the pool hall from the party, at about 1:00 a.m. on April
30, and before Mageo, Fruean, and Moa arrived, Tuaolo walked to the
poker machine premises and returned about 10 minutes later, around
1:30 a. m. Like her prior inconsistent statement to Sunia, Mina' s
credibility is put at issue by these inconsistencies. At the very least, they
indicate that Mina was prepared to stretch the truth in her effort to help
her husband Tuaolo. In fact, Fa'alogo testified that she did not see
Tuaolo at the poker machine premises at any time during the evening
before the crimes were committed. Tuaolo's visit to the poker machine
premises about 90 minutes before the offenses were committed, if it
happened, may have been in preparation for commission of the crimes.
However, under the evidence, such a finding would be highly
speculative.
3 ASG has charged Tuiletufuga with these crimes. A warrant for his
arrest is outstanding.

describe. Fanene claimed that he heard five gunshots, one before and
four after he left Tautua Hall with the bag of money. A short time later,
he and Tuiletufuga met at their car parked near the Mauga guesthouse at
the easterly side of Pago Park. He first and then Tuiletufuga drove the
car through the park. As they reached Korea House near the far easterly
end of the park, Tuiletufuga tried to put on the handgun's safety, but the
car hit a cement block. When Fanene grabbed the steering wheel, the
gun discharged. Fanene's left arm and Tuiletufuga's right hand were
wounded by the discharge. They then headed west. At the Seagull store,
Tuiletufuga drove up the hill into that part of Pago Pago village and
threw their two guns and the bag of money into a stream bed.
Tuiletufuga then drove to Tuaolo's pool hall and asked Tuaolo to take
them to the hospital. Fanene denied receiving any money from the
robbery, and claimed that Tuiletufuga told him three days later that
Tuiletufuga had instructed Tuaolo to recover the guns and bag of money
from the stream bed.
C. Evaluation of Fa’alogo’s Eyewitness Identification
The evidence supporting Fa'alogo's eyewitness identification of Tuaolo
is significant. She knew Tuaolo as a fellow employee. He was familiar
with the premises at Tautua Hall and the poker machine center. She saw
him in possession of a shiny handgun, like the gun her attacker held, a
few days before the crimes were committed. Her attacker had Tuaolo's
height, build, and voice. She believed that her attacker wore "army"
pants and, by a yellow light, a yellow shirt. She saw Tuaolo at the crime
scene a short time later when he drove there in Tuiletufuga's pickup. He
was then wearing "army" pants and an off-white shirt.
Tuaolo, Tuiletufuga, and Fanene were friends. Tuaolo and Tuiletufuga
were companions at times during the evening before the crimes occurred.
Tuaolo operated a pool hall and lived nearby Tautua Hall. Though not
then seen by Fa'alogo, he may have been at the hall, and perhaps in the
poker machine center, for a short time about 90 minutes before the
crimes were committed. Fanene implicated a third person wearing
"army" pants who assisted in committing the crimes. After the crimes
took place, Tuiletufuga drove the pickup, with Fanene the passenger, to
the pool hall and sought Tuaolo' s assistance to take him and Fanene to
LBJ for medical treatment of their self-inflicted gunshot wounds.
Fanene suggested that Tuaolo was later instructed by Tuiletufuga to
retrieve the perpetrators' guns and the stolen money from the hiding
place in the stream bed. Tuaolo certainly had opportunity to directly
participate in the crimes.

On the other hand, Fa'alogo's attacker wore a mask and was similar in
height and build to both Tuaolo and Fanene. Thus, we consider her
eyewitness identification of Tuaolo with caution. Fanene clearly admits
that he was Fa'alogo's attacker, while he possessed a shiny handgun and
flashlight. He claimed that he wore a white shirt and black pants. Such
clothing was found in the pickup. He also clearly identified Tuiletufuga
as the second perpetrator who beat Ho Min and suggested that Tuaolo
was present as a third culprit. Fanene recited details which only
participants in the crimes would likely know. However, Fanene is an
accomplice, and we must also evaluate his statement connecting others
in the commission of the crimes with caution. Fanene's credibility, to
some extent, is also put in question by his unconvincing claim that
Tuiletufuga forced him to participate in the crimes.
Despite his physical proximity to the crime scene, Tuaolo's friends and
former EMS associates placed Tuaolo at the pool hall at the time of the
crimes. Mina, Tuaolo's wife, corroborated the presence of these friends
at the pool hall. These witnesses are clearly biased in Tuaolo's favor.
Mina's credibility is also doubtful by her prior inconsistent statement
concerning Tuaolo's ownership of a shiny handgun. Tuaolo could easily
have fabricated this story with Mina and his friends later. However,
their testimony still provided an alibi at least for Tuaolo's direct
participation in the crimes.
In sum, the accuracy of Fa'alogo's identification of Tuaolo as her attacker
must be questioned.
D. The Expert Opinion Testimony
It is the considerable and varied expert opinion evidence in this case that
provides the most satisfactory basis for deciding Tuaolo's guilt or
innocence. The DNA evidence is particularly illuminating. Using the
mitochondrial protocol, Stewart compared the DNA in a hair found in
one of the masks recovered by the police from Tuiletufuga's pickup with
DNA in the blood samples obtained from Tuaolo, Tuiletufuga, Fanene,
and Ho Min. Fanene and Ho Min were excluded as the source of the
hair. Tuiletufuga cannot be excluded as the source. The results were
inconclusive as to Tuaolo being the source.
Kidd applied both the RFLP and PCR testing procedures. With the
RFLP method, she compared the DNA in four blood stains on the tee
shirt and several blood stains on the pants recovered by the police from
Tuiletufuga's pickup with the DNA in the four known blood samples.
Ho Min was the source of one blood stain on the tee shirt. Tuiletufuga

was the source of another blood stain on the tee shirt and one blood stain
on the black pants. Fanene was the source of two blood stains on the tee
shirt and the remaining blood stains on the pants. Because of these
matches, Tuaolo was excluded as the source of any of the blood stains on
the tee shirt and pants.
Kidd used the PCR procedure to compare the DNA in several samples of
substance found in both masks with the DNA in the four known blood
samples. This substance from both masks could be saliva, perspiration
and/or nasal secretion. Four samples of this substance were found in the
same mask where the hair was found. The results were totally
inconclusive with respect to two of these four samples. However, the
results showed that there were both major and minor contributors to the
other two samples. Fanene is the potential major contributor. Tuaolo,
Tuiletufuga, and Ho Min cannot be either determined or excluded as the
minor contributor.
Three samples of the substance were removed from the second mask.
The testing results showed that Tuiletufuga was the potential major
contributor to a reasonable degree of scientific certainty. Because of this
finding, Tuaolo, Fanene, and Ho Min are excluded as the sources of the
samples in the second mask.
Kidd also used the PCR technique to compare the DNA in a blood stain
on the masking tape removed from Tuaolo's bedroom with the four
known blood samples. The results showed that both Tuiletufuga and Ho
Min are potential sources of this blood stain, but excluded Tuaolo and
Fanene as the source.
Knuckles examined the masking tape items recovered by the police at
the crime scene. She compared the strips of masking tape found on the
floor of the customer area and on the floor of the cashier's office at the
poker machine center with the roll of masking tape found in the cashier's
office. The strips were different in color, width, and texture from the roll
and thus did not originate from the roll. She asked if any other roll of
masking tape was seized and later received the roll recovered from
Tuaolo's bedroom. The strips of masking tape and this second roll of
masking tape are of consistent color, texture, and other physical
characteristics, and in chemical composition. However, there was no
identifiable tear match between the strips and the second roll. Thus,
Knuckles concluded that the strips could have originated from the
second roll or tape of similar manufacture.
Terry G. Amburgey ("Amburgey"), also employed in the FBI laboratory,
was qualified as an expert in comparative fingerprint identifications. He

used several methods most likely to be productive in lifting latent
fingerprints on the two strips of masking tape, the three shotgun shells,
the cellular telephone, and the roll of masking tape recovered from
Tuaolo's bedroom. He found only one latent fingerprint, the extreme tip
of a finger on one set of masking tape strips, but none of probative value
on the other items. Amburgey compared the one latent fingerprint with
the submitted fingerprints of Tuaolo, Tuiletufuga, Fanene, Ho Min, and
Fa'alogo and determined that it was not the fingerprint of any of these
persons.
Robert Fram ("Fram"), another FBI laboratory employee, was qualified
as an expert in trace evidence comparisons of questioned hair with
known hair. Hair comparisons are not a basis for absolute identification
of persons. They only determine that for identification purposes, the
hairs examined are similar or dissimilar with each other, based on
consistent or inconsistent characteristics, or are insufficient for this
purpose, due to the presence of both similar and dissimilar
characteristics. Fram compared the hair removed from the masks with
known hair samples of Tuaolo, Tuiletufuga, and Fanene. The removed
hair is similar to Tuaolo's hair and dissimilar to Tuiletufuga's and
Fanene's hairs.
The expert opinion testimony concerning fingerprints does not connect
Tuaolo to the crimes charged and, in fact, is not helpful in this particular
case. The expert opinion testimony concerning trace and DNA
mitochondrial examinations of the hair found in the mask is essentially
inconclusive with respect to Tuaolo. Even though Tuaolo could be the
source of this hair, it is also known that he was in Tuiletufuga's pickup at
least after the crimes were committed. The expert opinion testimony
concerning the masking tape comparisons shows that the tape apparently
used to tie Ho Min or Fa'alogo, or both, may have originated from the
roll of masking tape seized at Tuaolo's bedroom or may have only been
produced by the same manufacturer. We know that this roll was in
Tuiletufuga's pickup after the crimes were committed, but Mina,
Tuaolo's wife, explained, reasonably and innocently if believed, how the
roll happened to be in the bedroom.
However, the results of the DNA RFLP and PCR examinations are
telling. The RFLP testing positively identified Tuiletufuga and Fanene
as the sources of the blood stains on the white tee shirt and black pants
recovered from Tuiletufuga's pickup and, by his admission, worn by
Fanene during the criminal acts. This testing excluded Tuaolo and Ho
Min as sources of these blood stains. The PCR process showed that
Fanene was potential major contributor of the saliva, perspiration and/or
nasal secretion substance removed from one of the masks found in the

pickup, and did not exclude Tuaolo, Tuiletufuga, or Ho Min as the minor
contributor of the substance. The same process demonstrated that
Tuiletufuga was the potential major contributor of the same type of
substance taken from the second mask. The examination supported this
finding to a reasonable degree of scientific certainty and thus excluded
Tuaolo, Fanene, and Ho Min as sources of the substance in the second
mask. The PCR technique also identified Tuiletufuga and Ho Min as
potential sources of the blood stain on the roll of masking tape found in
Tuaolo's bedroom, and at the same time, excluded Tuaolo and Fanene as
sources of this blood stain.
E. Reasonable Doubt
The DNA connections of Tuiletufuga and Fanene with the two masks
leads us to have reasonable doubt about Tuaolo's guilt as a principal.
This evidence strongly points to them as the certain principal
perpetrators of the crimes charged. When coupled, in particular, with
Fanene's admissions of committing the crimes with Tuiletufuga, recited
in explicit detail, our doubt is reinforced. However, Fanene's implication
of Tuaolo's participation in the crimes is questionable and adds to our
doubt. In this light, Tuaolo's alibi is also plausible. The evidence
certainly falls far short of proving beyond a reasonable doubt that Tuaolo
was an accessory to the crimes.
DECISION
We find Tuaolo not guilty of the four crimes charged in the information.
It is so ordered.