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Two DPS prison guards’ cases dismissed without prejudice

TCF Officer, Toloa Koowaiyou TCF Officer, Viopapa Vitolio
One remains
ausage@samoanews.com

Pago Pago, AMERICAN SAMOA — The government’s cases against two of the three DPS prison guards charged in the matter connected with the escape of a prisoner, who allegedly shot a man in Leone, were dismissed without prejudice by District Court Judge Fiti Sunia yesterday morning.

The case against Officer Viopapa Vitolio was dismissed after the court granted a motion from the government to dismiss the case against Vitolio, while Officer Toloa Koowaiyou’s case was dismissed after the court was unable to find probable cause and sufficient evidence to bind the case over to High Court for arraignment.

The case against Watch Commander, Mosese Lomu remains before the District Court with the court taking under advisement the PX for Lomu, awaiting the result of his second PX which was scheduled for yesterday, Thursday, at 10:30 a.m. but is now continued to next week. The government has added a new charge to Lomu’s case — one count of tampering with a witness, a class D felony.  In the first matter, he’s facing charges of criminal fraud and tampering with public records, both class C felonies. (See Samoa News, Oct. 4, 2018 edition for details.)

OFFICER VITOLIO’S CASE

Officer Vitolio appeared in court yesterday morning for her pretrial conference. She was represented by private attorney Richard deSaulles of RDA Law Firm, while prosecuting the case was Assistant Attorney General, Laura Garvey.

When the case was called, Judge Sunia informed both parties that the court had received a new filing regarding the case, and he needed time to review the file. He then called for a brief recess.

When the case was called again, the government’s attorney informed the court of the motion, saying the government is moving to dismiss the case against Vitolio. She did not elaborate further about the basis of the motion to dismiss.

After hearing the motion, Sunia immediately granted it, and ordered the case against Vitolio to be dismissed, without prejudice.

Off. Vitolio was initially charged with tampering with public record, a class C felony, and conspiracy to tamper with public records, a class A misdemeanor.

During Vitolio’s preliminary examination (PX) on Sept. 20, 2018, the court dismissed the felony charge against her, after the court was unable to find probable cause to bind her felony charge over to High Court, leaving her with the misdemeanor charge, which was dismissed by the court yesterday.

The government claimed that Vitolio was one of the 5 TCF officers working on the morning watch on Aug. 12, 2018, during the time inmate Manu Lefatia allegedly escaped from confinement and shot a man in Leone last month.

The five-member TCF crew working the morning watch on the day of the incident were all interviewed by police during the investigation, and discrepancies were allegedly found between officers' accounts of when checks on inmates’ cells were made.

Vitolio, who provided a statement to police regarding the incident, said she only logs down transmissions from her co-workers who are the ones physically checking the inmates' cells.

The government alleges that changes were made to the TCF log to reflect that there were head counts made on the hour, after they received a call from a DPS officer to check Lefatia’s cell to see whether he was there or not.

KOOWAIYOU’S CASE

Off. Koowaiyou appeared in court yesterday morning for his PX on the charge of criminal fraud, a class C felony. He was represented by Assistant Public Defender, Ryan Anderson, while prosecuting the case was Assistant Attorney General, Woodrow Pengelly.

During the hearing, the government called one witness to the stand, Det. Justin Thomsen, the lead investigator in the case.

Thomsen testified that he interviewed Koowaiyou twice concerning the matter of the cell checks for Lefatia, as related to the prisoner’s alleged escape and shooting of a man in Leone.

During the first interview, Det. Thomsen said Koowaiyou said Lefatia was in his cell when they checked him around 3:30a.m. However, in the second interview, Koowaiyou changed his story, saying it was Lomu who instructed them to stick to the story that Lefatia was inside his cell.

During final submission, the government’s attorney asked the court to bind over Koowaiyou’s case to the High Court, as sufficient evidence had been presented; but the defense argued there was no evidence to connect his client to the allegation.

In delivering his decision, Sunia pointed out that the purpose of the PX is for the court to determine whether there is enough evidence to prosecute the case in High Court. However, after hearing the evidence, the court was unable to find probable cause to bind the case over to High Court.

Therefore, the government’s case against Koowaiyou is dismissed, without prejudice.

(A case dismissed without prejudice allows for the re-filing of the case, on the same matter, in the future, if so desired.)