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In re Personal Restraint of Lui

Supreme Court of Washington, En Banc

June 22, 2017

In the Matter of the Personal Restraint of SIONE P. LUI, Petitioner.

          GONZALEZ, J.

         Petitioner Sione P. Lui challenges his conviction for the second degree murder of his fiancee, Elaina Boussiacos.[1] He seeks a new trial based on allegations of ineffective assistance of counsel, prosecutorial misconduct, Brady[2] nondisclosure, jury misconduct, and newly discovered evidence. The Court of Appeals dismissed each claim as meritless and denied Lui's request for a reference hearing. We affirm.

         Factual and Procedural History

         Lui and Boussiacos began dating in 1999 and were engaged to be married by the following summer with no set date for their nuptial. The couple moved into a duplex in Woodinville, Washington, in early 2001. A month later, Boussiacos's body was discovered stuffed in the trunk of her car approximately one mile from the couple's Woodinville home. Her murder remained unsolved for several years until police detectives reexamined her case file and conducted further DNA (deoxyribonucleic acid) testing in 2006. Lui was eventually charged with and convicted for her murder in 2008.

         The State's theory was that Lui killed Boussiacos after he learned she was leaving him. A few days before her disappearance, Boussiacos discovered Lui had been secretly communicating with a former girlfriend with whom he had previously had an affair. On Wednesday, January 31, Boussiacos confronted Lui about his deception. That same day, she informed a witness that the wedding was off, the relationship was over, and either she or Lui would be moving out of their home. Boussiacos closed the couple's joint banking account the next afternoon[3] and reaffirmed, albeit less resolutely, the following Friday that she was "probably" going to break up with Lui and was looking forward to being single again, 5 Report of Proceedings (RP) at 539. Boussiacos was last seen alive that Friday evening.

         Boussiacos was scheduled to travel to California the next morning, Saturday, February 3, 2001, at 8:30 a.m. to visit her mother, but she never boarded the plane. The last call made from Boussiacos's cell phone was at 7:04 a.m. to check her flight status. Her luggage and car were not at home, but the confirmation ticket for her rental car reservation in California was there.

         Police found Boussiacos's body six days later, on Friday, February 9, 2001, stuffed in the trunk of her car in the parking lot of the nearby Woodinville Athletic Club (WAC) approximately one mile from her home. Her death was caused by asphyxia due to neck compression.

         When police officers discovered her body, Boussiacos was wearing a white T-shirt, black sweat pants, and sneakers. By all accounts, Boussiacos wore only sweat pants and T-shirts to bed. Boussiacos was not wearing a bra, though a bra was wadded up and stuffed between her breasts. Her socks were twisted and pulled up too high, and her left shoelace was tied askew as if someone else had dressed her. Forensic testing of the shoelaces revealed DNA belonging to three male bloodlines. One bloodline belonged to either Lui or his son from a prior marriage. The second bloodline belonged to either Boussiacos's ex-husband, James Negron, or the son she shared with him. The identity of the third bloodline was unknown.

         Boussiacos's suitcase and travel bag[4] were found with her in the car. At trial, the State focused on the unusual way Boussiacos's travel bag was packed and missing typical travel items, which suggested, according to the State, that someone else probably packed it for her in haste. Notably, even though Boussiacos typically wore makeup when she went out in public, her makeup bag was not in either her suitcase or travel bag. Instead, loose in her travel bag were a hairbrush, deodorant, a hairdryer, a nearly empty bottle of hair gel, a second uncapped bottle of hair gel, an uncapped bottle of liquid makeup foundation, a compact of bronze makeup powder, a large bottle of lotion, a large bottle of nail polish remover, and several makeup brushes. There was no toothbrush or nail polish. In contrast, her suitcase was very neatly packed. It contained folded clothes, sandals, black boots, tennis shoes, and a small bottle of lotion.

         Despite the prolonged police investigation, the detectives suspected Lui early on. They suspected that he probably strangled Boussiacos at home, finished packing for her, stuffed her body in the trunk of her car, drove the car to the WAC, abandoned it there, and walked home. To corroborate their theory, the detectives hired a scent-detection specialist to locate Lui's scent at the WAC. The scent tracking occurred on February 14, 2001-11 days after Boussiacos's car was first spotted at the WAC. The dog traced Lui's scent from the car directly to his home.

         Lui, however, was not charged with Boussiacos's murder until 2007. Lui maintained his innocence at trial and was represented by defense attorney Anthony Savage. At trial, Savage criticized the detectives for being so determined in their pursuit to convict Lui that they failed to test obvious articles of Boussiacos's clothing for DNA and ignored all exculpatory DNA and fingerprint evidence they did obtain. Savage got the State's experts to admit that there were nine fingerprints lifted from Boussiacos's car, none of which belonged to Lui, that there was DNA belonging to an unknown male on the gearshift skirt of her car, as well as DNA belonging to an unknown male on her shoelaces, and that there was sperm possibly belonging to an unknown male inside Boussiacos's vagina. Savage even got the detectives to admit there was an earlier murder in Woodinville involving a female victim a few weeks prior to Boussiacos's disappearance and that they never considered the possibility that these two murders might have been linked.

         To refute the scent track evidence, Savage argued it was nearly impossible for the State's dog to track an 11-day-old scent trail left by Boussiacos's assailant when he or she abandoned the car at the WAC. Instead, Savage explained it was more likely that the dog was tracking the scent trail left by Lui eight days earlier when he and his friend Senisi Taumoefolau were at the WAC distributing missing person flyers to nearby businesses.

         After five hours of deliberations, the jury convicted Lui of second degree murder. Lui timely filed this personal restraint petition, [5] claiming he is entitled to a new trial, or at least a reference hearing, because (1) Savage provided ineffective assistance, (2) the State failed to disclose internal police disciplinary records in violation of Brady, (3) the jury improperly considered extrinsic evidence, and (4) the parties acquired newly discovered DNA evidence. The Court of Appeals denied each claim. In rePers. Restraint of Lui, No. 72478-9-1 (Wash.Ct.App. Jan. 19, 2016) (unpublished), Lui sought review in this court, which we granted. In re Pers. Restraint of Lui, 186 Wn.2d 1008, 380 P.3d 504 (2016). We now affirm.


         I. Ineffective Assistance of Counsel and Related Prosecutorial Misconduct Claims

         Lui contends his trial attorney, Savage, was ineffective because he (a) was inattentive at trial, (b) failed to prepare Taumoefolau for trial, (c) failed to hire a scent track expert for the defense to rebut the State's expert, (d) failed to elicit testimony establishing a later date for when Boussiacos's car appeared at the WAC, (e) failed to impeach lead detective Denny Gulla about his lengthy disciplinary history, (f) failed to argue Boussiacos's ex-husband was a possible suspect, (g) failed to present evidence that Lui was physically incapable of manually strangling Boussiacos with his right arm due to an earlier injury, (h) failed to object when the detectives commented on Lui's veracity, (i) failed to object when the prosecutor suggested that Lui may have strangled Boussiacos during the course of a sexual assault, (j) failed to object when the detectives and the prosecutor described Lui's reaction to Boussiacos's disappearance and murder as inconsistent with an innocent, grieving partner, and (k) failed to object when the prosecutor asked questions about Lui's religion.[6] Lui also raises separate but related prosecutorial misconduct claims based on the detectives' testimony, the prosecutor's questions regarding Lui's Mormon faith, and the prosecutor's suggestion during closing that Lui may have sexually assaulted Boussiacos during the course of the murder.

         We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009) (citing In rePers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001)). We apply the same prejudice standard to ineffective assistance claims brought in a personal restraint petition as we do on appeal. In re Pers. Restraint of Grace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012) ("[I]f a personal restraint petitioner makes a successful ineffective assistance of counsel claim, he has necessarily met his burden to show actual and substantial prejudice."). To prevail, Lui must prove counsel's performance fell below an objective standard of reasonableness in light of all the circumstances and that in the absence of counsel's deficiencies, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.'" Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 693). "Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."5 Id. (quoting Strickland, 466 U.S. at 687). In other words, "[t]he likelihood of a different result must be substantial, not just conceivable." Id. at 112.

         To combat the biases of hindsight, our scrutiny of counsel's performance is highly deferential and we strongly presume reasonableness. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011); Strickland, 466 U.S. at 689. To rebut the presumption of reasonableness, a defendant must establish an absence of any legitimate trial tactic that would explain counsel's performance. Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). "'[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation, '" Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (alteration in original) (quoting Strickland, 466 U.S. at 690-91).

         For Lui to prevail as a personal restraint petitioner on his stand-alone prosecutorial misconduct claims, he must prove the alleged misconduct was either a constitutional error that resulted in actual and substantial prejudice or a fundamental defect that resulted in a complete miscarriage of justice. In re Pers. Restraint of Cross, 180 Wn.2d 664, 676-77, 327 P.3d 660 (2014). Additionally, because Lui did not object to the misconduct at trial, his claim is considered waived unless the misconduct is '"so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by a curative instruction.'" In re Pers. Restraint of Caldellis, 187 Wn.2d 127, 143, 385 P.3d 135 (2016) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).

         A. Defense Counsel's Health and Attentiveness at Trial

         Lui contends that Savage was inattentive during trial. He alleges that Savage dozed off at times, was forgetful, and suffered from a knee injury that caused him to deteriorate mentally and physically. Pers. Restraint Pet. at 8-9. Lui submits several declarations from trial attendees who question whether Savage was fully alert during trial. App. to Pers. Restraint Pet. at 29 (Decl. of Sione Lui for Pers. Restraint Pet.) ("He dozed off several times."), 34 (Decl. of Grant Mattson) ("Mr. Savage did not look particularly alert at many points during the trial."), 35 (Decl. of William Harris) ("Anthony Savage did not seem to be very alert during the trial.").

         Allegations of sleeping counsel and mental unfitness are serious, and if proved, may support a finding of deficient performance. In re Pers. Restraint of Caldellis, 187 Wn.2d at 145 n.6 (listing cases where counsel was found deficient for having fallen asleep during critical portions of trial); State v. Abercrombie, No. 60603-4-1, noted at 151 Wn.App. 1052, 2009 WL 2595007, at *4 ("'[S]leeping counsel is tantamount to no counsel at all.'" (quoting United States v. DiTommaso, 817 F.2d 201, 216 (2d Cir. 1987))).

         To prevail on an ineffective assistance claim, however, a defendant must prove more than deficient performance; he must prove prejudice. In re Pers. Restraint of Caldellis, 187 Wn.2d at 144-45. Lui fails to specify how he was harmed by counsel's alleged sleeping. He does not cite to any particular moment when counsel was alleged to have been sleeping. Nor do we observe any signs that counsel was sleeping or otherwise inattentive in the record to form a basis for evaluating prejudice.

         The record shows the trial judge was acutely observant of the courtroom and cautious of possible grounds for ineffective assistance claims. Twice the trial judge cited jurors for perceived inattentiveness. 5 RP at 442 (juror's use of electronic device); 9 RP at 1277 (juror's head was down and his eyes appeared closed). At no time, however, did the judge ever indicate that defense counsel was sleeping or otherwise inattentive. To the contrary, the record demonstrates that Savage, as the only attorney present on Lui's behalf, remained engaged throughout trial. Savage made numerous evidentiary objections during the State's case in chief based on relevancy, hearsay, the confrontation clause, and evidence preservation. U.S. CONST, amend. VI; WASH. CONST, art. I, § 22; e.g., 5 RP at 434-38; 6 RP at 643-50, 761-62; 7 RP at 869-77; 8 RP at 932-33, 953, 975-81, 1034; 9 RP at 1177-81, 1200-07, 1243-45; 10 RP at 1344-47, 1352, 1336-72. He also conducted several strategically timed voir dires of the State's witnesses during direct examination in attempt to undermine the strength of their anticipated testimony. See, e.g., 6 RP at 773-81; 7 RP at 859, 884-85, 894, 896, 916, 984-85; 9 RP at 1188, 1252-53, 1306; 10 RP at 1353, 1358; 12 RP at 1489, 1494-95, 1512-13, 1588-89. Savage even reminded the judge at one point that the judge had failed to provide a final ruling on an earlier matter. 9 RP at 1207; 12 RP at 1481. He also reminded the State that it could not discuss certain pieces of evidence because that evidence had not yet been admitted. 6 RP at 762; 8 RP at 985-86.

         Although Savage did suffer a fall during trial, the trial judge quickly noted the injury on the record and provided counsel a one-day recess, which with the weekend amounted to four days off, to recover and avoid any potential claims of ineffective assistance. 11 RP at 1466, 1469-71. After the recess, the trial judge appeared to have no further concern about Savage's health other than with his inability to stand and walk, for which he was excused. 12 RP at 1476, 1562.

         In the absence of prejudice, Lui is not entitled to relief. Nor is he entitled to a reference hearing to determine whether counsel was actually sleeping. To obtain a reference hearing, Lui must raise disputed material facts that, if proved, would establish prejudice sufficient to entitle him to relief. In re Pers. Restraint of Caldellis, 187 Wn.2d at 146; In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). Lui fails to prove prejudice meriting a reference hearing.

         B. The Path Lui Took While Distributing Flyers

         At trial, the State argued the scent trail tracked by its scent-detection specialist's dog was left by Lui 11 days earlier when he walked home after dumping Boussiacos's body and car at the WAC parking lot. Lui admitted to having been in the area but explained he was there 8 days earlier distributing missing person flyers and that the trail tracked by the dog largely coincided with the path he and his friend Taumoefolau took while distributing those flyers. Because Lui did not testify at trial, Savage relied on Taumoefolau to explain the complicated route they took. Lui is displeased, however, with the quality of Taumoefolau's trial testimony. He argues, and Taumoefolau agrees, that had Savage prepared Taumoefolau better before trial and provided him with a more comprehensive map of the area, Taumoefolau would have been able to explain better the two loops he and Lui took.

         According to Taumoefolau, he and Lui started from Lui's home, walked west past a 7-Eleven convenience store and a farm supply store, and then turned north to stop at a Kinko's printing store to order more flyers. App. to Pers. Restraint Pet. at 41 (Taumoefolau Decl.). While their order was processing, they resumed west toward a Mexican restaurant. After that, they headed northeast to a fire station, but then cut south through the WAC parking lot toward Kinko's to pick up their order. After picking up their order, they continued on a northeastern path toward a Top Foods grocery store, an AT&T telecommunication store, and a Barnes & Noble bookstore. From there, they continued southeast toward Lui's home, cutting through a nearby Park & Ride parking lot along their way. Taumoefolau complains this route was difficult to describe during trial because the map Savage provided depicted only a portion of that route. Notably, the Kinko's, the Mexican restaurant, and the fire station were not pictured on the map.

         Regardless of whether Taumoefolau's testimony could have been clearer about the path he and Lui took, their exact route was not critical to Lui's defense. The purpose of Taumoefolau's testimony was to undermine the significance of the State's scent track evidence by explaining that he and Lui had been in the area passing out flyers and testifying that the scent tracked by the dog coincided with the path they took. Taumoefolau provided clear testimony on that point. He testified that on Tuesday, February 6, 2001, he and Lui walked on foot from Lui's home to nearby businesses, including the WAC, to distribute flyers and that they walked the same path as the path tracked by the dog on their way home. The map utilized at trial covered the significant portions of that path related to the scent track and sufficiently aided Taumoefolau in his effort to explain how their path coincided with the scent track. Lui was therefore not prejudiced by counsel's failure to prepare Taumoefolau or use a more comprehensive map.

         Although the State mentioned during closing that the path Taumoefolau described did not make sense, the State was not criticizing the testimony as incomprehensible. 14 RP at 1841. Instead, the State argued the testimony defied common sense. To find Taumoefolau's testimony credible, the State explained, the jury would have to believe that the scent trail followed by the State's dog was left by Lui when he was passing out flyers and yet Lui somehow failed to pass out any flyers to the many businesses located along the path, including those businesses at a busy Target shopping center. Taumoefolau's posttrial declaration does not refute this; he does not say that he and Lui stopped at Target to pass out flyers. Thus, a more comprehensive map or additional pretrial preparation would not have helped.

         Counsel also did not act unreasonably in choosing not to elicit testimony from Lui's sister and others who would have testified that Lui had passed out flyers near the WAC. Again, contrary to Lui's evaluation of trial, the debate at trial was never over whether Lui had passed out flyers in the area. The State specifically conceded in its opening statement that Lui had distributed flyers throughout the neighborhood and city during the days following Boussiacos's disappearance. Instead, the debate centered on whether the dog tracked Lui's path while he was passing out flyers around the WAC or, as the State alleged, the path he took home after he disposed of Boussiacos's car and body at the WAC. The proffered testimony from Lui's sister and friends was irrelevant to that debate.

         C. State's Scent Track Evidence

         Lui further asserts Savage was ineffective for failing to exclude the State's scent track evidence and failing to introduce a scent-detection expert to counter the State's evidence. At trial, the State argued that its scent- detection dog was able to track the path Lui took 11 days earlier after he abandoned Boussiacos's car and body at the WAC and walked home. Savage sought to discredit this testimony by getting the State's expert to admit it was unlikely his dog could even track an 11-day-old scent trail left by Boussiacos's assailant and to admit it was more likely the dog was tracking the path Lui took while distributing flyers since that path was only 8 days old.

         The State's expert testified, however, that it did not matter that Lui had been in the area passing out flyers closer in time to the dog's scent tracking because his dog could distinguish among scents left by the same person on different days. 8 RP at 1100-07. The expert explained that his dog was following the scent that matched the age of the scent on the clothes the police collected from Lui's home, which the jury was left to assume was worn about the same time as Boussiacos's disappearance since no evidence was admitted regarding when Lui wore those clothes.

         Lui contends Savage should have hired a scent tracking expert for the defense to discredit the State's expert testimony that its dog could discern among scent particles left by the same person on different days. But "'[generally the decision whether to call a particular witness is a matter for differences of opinion and therefore presumed to be a matter of legitimate trial tactics.'" In re Pers. Restraint of Morris, 176 Wn.2d 157, 171, 288 P.3d 1140 (2012) (plurality opinion) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 742, 101 P.3d 1 (2004)).

         Savage's cross-examination of the State's expert reveals he had a plan to discredit the State's scent track evidence without the use of a defense expert. The State's expert, however, provided surprise testimony regarding his dog's extremely sensitive olfactory senses. While testimony from an expert for the defense certainly could have been helpful to counter that surprise testimony, Lui has not shown counsel knew or should have known that the State's expert would so testify. He therefore fails to show Savage's strategy to discredit the State's scent track evidence through cross-examination alone was an unreasonable strategy.

         Moreover, Lui fails to prove prejudice. Lui simply concludes it was critical to rebut the State's scent track evidence because one of the prosecutors described the evidence as "the best piece of evidence we have" during the early stages of the State's investigation. App. to Pers. Restraint Pet. at 105. Even without the scent track evidence, the reliability of which was strenuously debated at trial, the remainder of the State's evidence pointed to the murder occurring at Boussiacos's home after she had dressed for bed and before she had finished packing for her trip, and supported the inference that her assailant had dressed her and finished packing for her.

         There was no evidence that anyone other than Lui had access to the couple's home, since the couple had just moved into the home a month earlier and there were no signs of a break-in. See 8 RP at 998. Indeed, Lui confirmed that he and Boussiacos were home alone the entire night. 9 RP at 1322. He explained that they watched the news on television until he fell asleep on the couch at about 12 a.m., and that Boussiacos was gone by the time he woke at 7 a.m. the next morning. Lui's cell phone records, however, contradicted that timeline, documenting that Lui had called and later spoke with his sister at around 1:30 a.m. that morning. 7 RP at 811. His downstairs neighbor also testified that he heard footsteps upstairs at around 3:15 a.m., 5 RP at 583, 593, and that Lui inquired later that morning about the location of the light switch for their shared driveway, informing the neighbor that he was "going crazy" the night before trying to turn off that light, id. at 585.

         Lui's related claim that Savage should have objected to the admission of the State's scent track evidence pursuant to State v. Lord, 161 Wn.2d 276, 294-96, 165 P.3d 1251 (2007), also fails. Lord is not analogous. In Lord, we held the trial court did not abuse its discretion in excluding a scent track expert on behalf of the defense because the expert could not narrow when, within a two-week window, the scent trail was left by the victim. Id. at 294-95 & n.16. In Lord, it was undisputed that the victim had walked that same path numerous times during those two weeks. Id. at 295. The issue therefore was whether the dog tracked the victim's path on the day she disappeared, as the defense argued, or on an earlier date, as the State argued. See id. Without specifying a date, the expert's testimony was helpful to neither the State nor the defense, and we held the trial court did not abuse its discretion in excluding that evidence as a result. Id. We, however, specifically recognized that "j/the dog handler had been able to determine that the scent track was from the date of the crime, such evidence might have been admissible and relevant." Id.

         Unlike the victim in Lord, Lui walked the path tracked by the State's dog only once. The debate at trial centered on when and why he walked that path. Did he walk that path after he disposed of Boussiacos's car and body at the WAC, or did he walk that path when he was distributing flyers? The State argued the path Lui took was inconsistent with someone passing out flyers because of the irregular route taken and because Lui failed to pass out any flyers along that route. Thus, unlike the party proffering the scent track evidence in Lord, the State in this case could date the scent trail through other circumstantial evidence. Moreover, unlike the defense's expert in Lord, the State's expert did testify, albeit to Savage's surprise, that his dog could distinguish between different trails left by the same person on different days and that the dog tracked the scent trail that matched the age on Lui's clothing. 8 RP at 1100-07. Given these critical differences, Lui has not proved the trial court was required to exclude the State's scent track evidence pursuant to Lord and consequently fails to prove he was prejudiced by counsel's failure to seek its exclusion.

         Lui's assertion that Savage should have argued the State's dog was tracking Boussiacos's scent rather than his scent also fails. This claim is wholly without merit. Savage did question the State's expert about the possibility that Boussiacos's scent may have transferred onto Lui's clothing, resulting in the dog tracking her scent rather than his. Id. at 1085-87. The State's expert acknowledged that in some cases of sample contamination, there would be no way to rule out the possibility that the dog tracked a scent different from the intended scent, id. at 1086-87, but explained he could rule out Boussiacos as a possible scent source in this case because his dog could not track someone traveling in a car (or more specifically the trunk of a car). Id. at 1089. Since there was no evidence that Boussiacos had walked from her home to the WAC in the days prior to her death, it was reasonable for counsel to not pursue that theory any further.

         It was similarly reasonable for Savage to not call a defense expert to explain the scent trail tracked by the dog through nearby bushes could not coincide completely with the actual trail taken by Lui because the State's expert conceded that point. The State's expert explained the path tracked by his dog was only an approximation of the route taken by Lui because the dog was following scent particles that had been blown and deposited by the wind along nearby street curbs and bushes. Id. at 1096. Any additional defense expert testimony would merely have been duplicative on this uncontroverted matter.

         D. The Date Boussiacos's Car Appeared in ...

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