Mulitauaopele v. American Samoa Government

KRUSE, Chief Justice,

Concurring:

I agree with the portion of the lead opinion, authored by Acting Associate Justice Mollway, concerning the inadmissibility of the drug courier profile evidence. In my view, that alone is enough to warrant a new trial. Thus, I do not find it necessary to explore other improprieties with Captain Sunia’s testimony, though many aspects of it were troubling.1 As the lead opinion amply demonstrates this profile evidence was unfairly prejudicial and thus substantially outweighed its probative value. The trial court abused its discretion in admitting it.

Finding error, the next question is whether or not it was harmless. Compare United States v. Pinnigorii, 96 F.3d 1132, 1143 (9th Cir. 1996) (harmless error analysis applied to classic trial error such as improper admission of evidence) and T.C.R.Cr.P. 52(a), with U.S. v. Burt, 143 F.3d 1215, 1217 (Plain error analysis typically reserved for forfeited errors) and T.C.R.Cr.P. 52(b). Under a harmless error standard, “if the evidence presented at trial is ambiguous, even a relatively minor error requires reversal.” United States v. Smart, 9 F.3d 1379, 1386 (D.C.Cir. 1996) (citing O’Neal v. McAninch, 514 U.S. 432 (1995)). “We must reverse . . . unless it is more probable than not that the error did not materially affect the verdict” United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997).

Here, the government’s case without the profile evidence was at best ambiguous and open to reasonably differing interpretations. But see United States v. Lim, 984 F.2d 331, 335 (9th Cir. 1993); United States v. *43Williams, 957 F.2d. 1238, 1242-43 (5th Cir. 1992); United States v. Quigley, 890 F.2d 1019, 1024 (8th Cir. 1989). Essentially, the prosecution’s evidence was the self-serving testimony of Vitolio, bolstered by Sunia’s improper testimony. Additionally, the trial judge did not give any limiting instructions, either during Sunia’s testimony or before jury deliberation. Thus, absent any physical evidence tying the defendant to the drugs — which is typical in a case of constructive possession — the verdict turned entirely on the credibility of the witnesses, spcifically Vitolio’s. See generally United States v. Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998) (quoting United States v. North, 910 F.2d 843, 895 (D.C. Cir; 1990) (defendant’s entitlement to a new trial depends on the “closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error”). The admission of the profile evidence, therefore, did, more probably than not, materially affect the verdict.

I therefore concur with the lead opinion’s result, requiring a new trial, and express no view as to the scope of T.C.R.Ev. 702-705.

The lead opinion and the dissent differ as to whether Sunia’s testimony was properly admitted under the rules governing expert testimony. See T.C.R.Ev. 702-705. I do not find this discussion necessary because, even if expert testimony is proper under those rules, it can still be excluded under Rule 403. See, e.g., United States v. Boney, 977 F.2d 624, 631 (D.C. Cir. 1992); United States v. Young, 745 P.2d 733, 755-65 (2d Cir. 1984) (Newman, J., concurring). Thus, because I am of the view that the profile evidence itself merits reversal under Rule 403,1 do not feel we need to address those points, even if raised by ASG.