Kruse takes gov't to task for failing to produce evidence
“Lots of things went walking from the evidence room and that's why we keep on top of what they (the Police ) seize. Now, if it’s contraband, it’s subject to court orders,” said Chief Justice Michael Kruse, during the sentencing of Reupena Siaulaiga in a drug case on Tuesday.
The issue of “handling evidence” within the Department of Public Safety evidence room was again brought up in court when Kruse was told the evidence in this drug case was not in the evidence room, rather it’s been sent off island for testing.
Siaulaiga was initially charged with unlawful possession of a controlled substance of marijuana, and in a plea agreement with the government the defendant pleaded guilty to the amended charge, a lesser offense of the same count.
The criminal count against the defendant was filed after police allegedly caught him with four marijuana joints. It is court procedures that during sentencing in each criminal case, (where evidence exists) such evidence is brought before the court for the Judge’s determination as to what will be done with it.
When this case was first called on Monday, Kruse asked about the whereabouts of the evidence and Assistant Attorney General Kimberly Hyde told the court that she had been informed by Police Evidence Custodian Lt. Pele Uia that the drugs were not in the evidence room, but had been sent off- island to the Federal Lab for testing.
Kruse asked the prosecutor why Lt. Uia was not in court to say this on the record, and the prosecutor responded that he went back to his job at the governor’s office, because he was assigned to the governor’s police detail.
Kruse told the prosecutor to have Lt. Uia in court the next day (Tuesday) in order to say on record what happened to the evidence. He also pointed out that there must be someone assigned by the Commissioner to take over this post.
Appearing before the CJ, Lt. Uia presented to the court partial evidence in this drug case, and was questioned by Kruse as to who is overseeing the Evidence Room. Lt. Uia responded that he’s taken two posts — one within the Department of Public Safety, as Evidence Custodian and one as the Governor’s Security Detail.
Kruse asked Lt. Uia if there was a report indicating the test results. Uia responded no, noting that such report should come from Capt. Peau Paulo Leuma, who removed the drugs, given that he was the person sending the drugs off island.
The CJ questioned the signatures on the evidence release form and asked who had released the drugs. Lt. Uia responded that he signed the form releasing the evidence to Capt. Leuma — who signed the approval for release on the evidence form.
The Chief Justice stated the court can't continue doing this until the court hears testimony about the evidence, given that nothing on the release form indicates that the drugs went to a lab.
“All I can tell you is that Capt. Leuma told me that it’s still at the lab,” said Ass’t AG Hyde.
Kruse then asked the prosecutor if Capt. Leuma had been subpoenaed or were there any documents from him indicating the drugs went to a lab? The prosecutor replied, no.
The CJ responded, “I’m not prepared to take the police's word on this. I’ve had to deal with the history of the evidence room."
The prosecutor noted that she’ll see if Capt. Leuma can produce a receipt that shows that he mailed the evidence, or some form of documentation indicating the lab has the evidence.
(Samoa News later asked Capt. Leuma for a comment regarding this issue, and was told that the drugs are still off-island with the Federal Lab. He said sometimes it takes longer than usual to await tests results from the federal labs and this has happened in the past.)
Kruse pointed out to the prosecution that if this case went to jury trial this week, it would have been thrown out since the government did not have a lab report.
“Counsel, it was before your time in this Territory, but lots of things went walking from the evidence room and that's why we keep on top of what they seize."
“Now, if it's contraband it’s subject to court orders,” said Kruse.
The prosecutor noted that she doesn't have any reason to believe that the evidence has been mishandled in this case.
Kruse said, “Well, we do," and explained that “the last Custodian of Evidence (Jerry Sauni), as Officer Uia would tell you, was sent to jail for the very concerns that we have. So that submission, just falls off our backs. And I believe there's a large quantity of money that they're still looking for that was seized from some poker-machine or video machine operation."
He added, "we'll go ahead and order (sentence) the defendant. I'll order the government to have a satisfactory accounting of the seized material by 9:00 A.M Friday's court date; so I don't care how you do that. I don't want another casual report saying …'We don't know'.”
The Chief Justice then questioned Lt. Uia about his post and Uia responded that he’s with the governor’s police detail and further explained that he was assigned as Evidence Custodian on July 19, 2010 and on January 14, 2013 he was reassigned by the DPS Commissioner to the governor’s office as Police Detail, and Capt. Pierre Clemens assumed his position as the Evidence Custodian.
Uia further stated that he took Clemens into the evidence room to conduct inventory of the evidence, however after two weeks Clemens did not take over the Evidence room.
He said that another meeting was scheduled where he met with Clemens and Deputy Commissioner Leiseau Laumoli and another inventory of the evidence was conducted, including counting the money and accounting for drugs, and other evidence.
“Yet after that meeting, he gave Clemens the keys to the Evidence room and he (Clemens) refused to take the keys,” Uia said.
He told the court given his other appointment, he does not mind also being the Evidence Custodian and is willing to work with the prosecutors, saying that whenever they need evidence from the Evidence room he’ll make sure to do his job as Evidence Custodian.
Calls to DPS for Capt. Clemens were not returned as of press time. However, the Commissioner told Samoa News the reason Clemens refused to take the key to the Evidence Room was because a full and thorough inventory had not been completed.
“A thorough inventory of the evidence is a cumbersome undertaking that Clemens, who will be taking over the evidence room, has yet to complete. Clemens has to make sure that all the evidence is there and everything is accounted for. No one would want to assume any position, yet does not have full understanding if all the evidence is there.
“Clemens only refused to take over the Evidence Custodian task until he’s certain that all the evidence is accounted for,” Haleck reiterated.
He further stated that DPS is working on assuring that Clemens assumes his position as Evidence Custodian for DPS, while Uia focuses on his post at the governor’s office.
Kruse proceeded with the case and sentenced Siaulaiga to five years in jail, however execution of sentencing was suspended and the defendant was placed on probation for five years under certain conditions: that he pay a fine of $2,000, he cannot congregate with people who are consuming alcohol and cannot enter any bars or taverns, and he’s subject to random testing for alcohol or illegal substances.
The Chief Justice noted the court had considered 12 months jail time, however he sentenced the defendant to time served, for which the defendant has been in jail for over four months.
According to the government’s case, police officers working with the underage drinking law enforcement on New Year’s Day, responded to a call regarding juveniles drinking near MJ Store. It’s alleged that upon arrival at the scene four males were drinking beer and Reupena was one of them. Court filings say police officers witnessed Reupena discarding something from his pockets into the bushes nearby, and it was a plastic bag allegedly containing four hand rolled marijuana joints. Police seized the plastic bag, and the joints tested positive as marijuana.
In June 2010, former Evidence Custodian Jerry Sauni was sentenced to serve five years behind bars for his role in the missing evidence case that led to the dismissal of a drug case.
Sauni was the main defendant in the missing evidence case as he was the Evidence Custodian for the DPS Evidence Room from March 2008. He was charged with five other officers in the missing evidence case.
In a plea agreement with the government the former cop pled guilty to five counts out of the 44 original counts. Those counts were embezzlement, tampering with physical evidence, possession of a prohibited weapon, unlawful possession of ammunition and tampering with public records. The remaining counts were dismissed.
Chief Justice Michael Kruse sentenced Sauni to five years in prison for each felony count and one year for each misdemeanor, the sentences to run concurrently.
During sentencing, Kruse said there was a large quantity of money that went missing before Sauni took charge of the Evidence Room and large quantities of drugs went missing when Sauni took over the Evidence Room.
“I get the uncomfortable feeling Mr. Sauni that you’re carrying the weight of this… you are unwilling to share with the government…” Kruse told him.