IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Personal Restraint of          No. 72478-9-1                  o

SIONEP. LUI,
                                                    DIVISION ONE
                            Petitioner.
                                                    UNPUBLISHED OPINION            u>




                                                    FILED: January 19, 2016
                                                                                  od     -;:




       Appelwick, J. — Lui filed this personal restraint petition challenging his

conviction for murder in the second degree.           He seeks a new trial based on

ineffective assistance of counsel, violations of his rights of due process and

religious freedom, and prosecutorial and juror misconduct.          In a supplement to

his petition, he argues for relief on the basis of newly discovered evidence.

Because Lui fails to establish any ground for relief, we deny his petition.

                                            FACTS


       On February 9, 2001, detectives found the body of Elaina Boussiacos,

Sione Lui's fiancee, in the trunk of her car in a parking lot. State v. Lui, 179

Wn.2d 457, 463-64, 315 P.3d 493, cert, denied, 134 S. Ct. 2842, 189 L. Ed. 2d

810 (2014). She had been strangled. \± at 465. In 2007, detectives reviewing

cold cases interviewed Lui again, ultimately charging him with murder in the

second degree.       Id. at 464.          The late defense attorney Anthony Savage

represented Lui at trial.
No. 72478-9-1/2




          At trial, the State called as a witness a "dog track" expert, who testified

that after smelling an article of Lui's clothing, bloodhounds followed a scent trail

from the parking lot where Boussiacos's car was found back to Lui's house. Id.

Deputy Denny Gulla, a detective who worked on Boussiacos's case, also testified

about the dog track evidence. The State presented DNA (deoxyribonucleic acid)

evidence, along with circumstantial evidence that Boussiacos wanted to end their

volatile relationship and that Lui had motive and opportunity to kill her. Lui, 153

Wn. App. at 310-13. The State called witnesses who placed Boussiacos's car in

the parking lot as early as Saturday, the day before she was reported missing

and nearly a week before police discovered her body.           The prosecutor also

attacked Lui's credibility, noting, for example, that he gave friends several

different accounts of his and Boussiacos's relationship and denied having sexual

intercourse with Boussiacos despite DNA evidence suggesting the contrary.

State v. Lui, 153 Wn. App. 304, 312-13, 221 P.3d 948 (2009), affd, 179 Wn.2d

457, 315 P.3d 493 (2014), cert, denied. 134 S. Ct. 2842, 189 L. Ed. 2d 810

(2014).

          The defense theory was that Boussiacos left the home on Saturday

morning and was killed by an unknown perpetrator. Counsel called Lui's friend

Sam Taumoefolau, who testified that Boussiacos's car was not in the parking lot

when he and Lui posted flyers in the area a few days after Boussiacos

disappeared.       Defense counsel cast doubt on the DNA and other forensic

evidence. A jury convicted Lui as charged. Lui, 179 Wn.2d at 466.
No. 72478-9-1/3




        Lui appealed to this court, which affirmed. Lui, 153 Wn. App. at 325. In

2014, our Supreme Court affirmed, transferring Lui's personal restraint petition to

this court. Lui, 179 Wn.2d at 498. On June 23, 2014, the U.S. Supreme Court

denied certiorari. Lui v. Washington.       U.S.    , 134 S. Ct. 2842, 189 L. Ed. 2d

810(2014).

                                    DISCUSSION


        In order to obtain collateral relief by means of a personal restraint petition,

Lui must demonstrate either an error of constitutional magnitude that gives rise to

actual prejudice or a nonconstitutional error that "inherently results in a complete

miscarriage of justice." In re Pers. Restraint of Cook. 114 Wn.2d 802, 813, 792

P.2d 506 (1990). If a petitioner makes a prima facie showing of actual prejudice,

but the reviewing court cannot determine the merits of the claims solely on the

record, the court should remand for a full hearing on the merits or for a reference

hearing under RAP 16.11(a) and RAP 16.12. In re Pers. Restraint of Rice, 118

Wn.2d 876, 885, 828 P.2d 1086 (1992). But "[tjhis does not mean that every set

of allegations which is not meritless on its face entitles a petitioner to a reference

hearing. Bald assertions and conclusory allegations will not support the holding

of a hearing." jd. 886. A petitioner "must state with particularity facts which, if

proven, would entitle him to relief and must show that he has "competent,

admissible evidence" to establish those facts. Jd.

   I.   Ineffective Assistance of Counsel


        In his petition, Lui claims that trial counsel Savage's deficient performance

violated his constitutional right to effective assistance of counsel. To prevail on a
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claim of ineffective assistance, Lui must show both that (1) his attorney's

representation fell below an objective standard of reasonableness, and (2)

resulting prejudice, that is, a reasonable probability that the result of the trial

would have been different absent the deficient performance.           Strickland v.

Washington. 466 U.S. 668, 687-88, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). The reviewing court "must make every effort to eliminate the distorting

effects of hindsight and must strongly presume that counsel's conduct constituted

sound trial strategy." Rice. 118 Wn.2d at 888-89. If one of the two prongs of the

test is absent, we need not inquire further. Strickland, 466 U.S. at 697.

       Lui makes several allegations of "general problems" with defense counsel.

He alleges that Savage "was not always alert" and "dozed off several times." Lui

contends that "Mr. Savage had a falling accident that caused him to deteriorate

significantly, both mentally and physically." Lui argues that these problems led to

errors during trial.

       But, as Savage pointed out in a declaration, the trial judge was in an

excellent position to observe counsel during this lengthy trial. Yet there is no

indication in the record of any concern on the judge's part that Savage was falling

asleep or not alert enough to be effective. And, contrary to Lui's contention, the

court's decision to recess early one day during trial to allow Savage to seek

treatment for a knee injury does not support a claim of ineffective assistance.

       Next, Lui faults Savage for failing to challenge the State's theory of the

case. He asserts that Savage failed to properly interview and then call to testify

several witnesses to impeach the State's witnesses.             Lui contends that
No. 72478-9-1/5




Woodinville Athletic Club employee Amber Mathwig could have testified that she

did not see the victim's car in the parking lot until the Wednesday after

Boussiacos disappeared, contrary to another witness's testimony that the car

was in the lot as early as Saturday morning. He argues that Lui's friend, Paul

Finau, and Lui's sister, Falepaini Harris, would have also testified that they did

not see the car early in the week, and that they could have corroborated Sam

Taumoefolau's testimony about posting missing person flyers in the area of the

dog search. Lui argues further that the defense should have presented its own

expert witness on dog tracking, as Lui's family wished, in order to impeach the

State's expert.

       Generally, the decision to call witnesses is a matter of trial tactics that will

not support an ineffective assistance claim. State v. Bvrd, 30 Wn. App. 794, 799,

638 P.2d 601 (1981). As he states in his declaration, counsel made a strategic

decision to follow his "general philosophy that it is preferable to explain

circumstances rather than to directly confront them." In this case, rather than set

up a direct confrontation by denying the possibility that the dog tracked Lui's path

from Boussiacos's car to his home, counsel explained that the dog tracked the

scent that Lui left in the area while posting flyers. The decision to avoid a "clash

of experts" is consistent with reasonable trial strategy. In re Pers. Restraint of

Khan. No. 89657-7, slip op. at 13 (Wash. Nov. 25, 2015). Moreover, Mathwig

told Savage before testifying that she had seen the car in the lot on Monday and

again on Wednesday. This information contradicted the defense investigator's

notes which reported that she first saw the car on Wednesday. This was not
No. 72478-9-1/6




favorable to the defense.    It was not objectively unreasonable for Savage to

decide not to present witnesses whose testimony would be favorable to the State

or whose testimony would, at best, attempt to prove a negative.

      Lui alleges further that Savage was ineffective for failing to present

evidence that Lui's arm injury "precluded him from committing the crime," for not

introducing evidence that Boussiacos's ex-husband committed the crime, and for

failing to "aggressively pursue[ ] impeachment information" about Deputy Gulla.

He establishes none of these claims.

      In his declaration, Savage noted Lui's size and athletic ability, as well as

the possibility that Boussiacos was strangled with some kind of ligature. He

stated that an argument that Lui would not have had the strength to strangle the

much smaller Boussiacos "seemed tenuous, at best."           Rather than help, he

viewed it as another example of evidence that could hurt by diminishing the

defense case.


      Savage made a reasonable strategic decision that a proffer Boussiacos's

of ex-husband Negron as another suspect "was not legally colorable under

current case law," and, "even if admitted [that evidence] could have diminished

the defense case." Savage noted that Negron had an alibi, DNA evidence on a

shoelace could have come from either Negron or the son he had with

Boussiacos, and no evidence suggested a motive for killing his son's mother.

       Finally, Lui does not show either deficient performance or prejudice

related to Savage's alleged failure to impeach Gulla's credibility. Before trial, the

State moved to exclude evidence of disciplinary actions against Gulla.            Lui
No. 72478-9-1/7




argues that "Gulla's tenuous status with [King County Sheriff's Office] goes

directly to his motivation to trump up a case against Lui."       He contends that

Savage should have impeached Gulla for bias as well as previous dishonesty.

But, as Savage knew, findings of Gulla's misconduct that were related to

dishonesty were more than 20 years old, and Savage told the trial court, "I don't

see any nexus between the alleged misconduct of Detective Gulla [in] other

cases and this case."     The record indicates, however, that Savage did not

overlook or ignore Gulla's past misconduct. Savage expressly put the court and

the prosecutor on notice that if the State attempted to portray Gulla as

particularly experienced or expert, Savage would consider the door opened to

Gulla's entire history. Lui counters that "[i]f that was indeed Savage's strategy

then he failed miserably in pursuing it," given his own questions that elicited facts

about Gulla's training and experience. But, Lui does not show how Savage's

decisions fell below an objective standard of reasonableness or prejudiced him.

Matters that go to trial strategy or tactics do not show deficient performance, and

Lui bears the burden of establishing there were no legitimate strategic or tactical

reasons behind his attorney's choices. State v. Rainev, 107 Wn. App. 129, 135-

36, 28 P.3d 10 (2001). Lui's speculation and conjecture based on Gulla's alleged

actions in other matters, without more, does not meet that burden or overcome

the presumption that counsel's strategic decisions in his case were reasonable.

       Lui also claims that Savage was ineffective for failing to object to several

instances of alleged prosecutorial misconduct. He asserts that "the prosecutor

argued, without evidence, that the defendant committed a sexual assault." He
No. 72478-9-1/8




argues that the State elicited opinion testimony from officers that Lui lied, and

that he "showed his guilt by failing to act like an aggrieved fiancee [sic]." And, he

alleges that the prosecutor violated Lui's constitutional rights by questioning

Taumoefolau about the Mormon religious beliefs he and Lui shared.

       The decision to object, or to refrain from objecting even if testimony is not

admissible, is a tactical decision not to highlight the evidence to the jury. State v.

Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).              "Only in egregious

circumstances, on testimony central to the State's case, will the failure to object

constitute incompetence of counsel justifying reversal." jd, Lui maintained that

he had not had sex with Boussiacos for weeks, a claim contradicted by evidence

of Lui's DNA on Boussiacos's underwear and in the vaginal wash taken from

Boussiacos's body. Lui, 179 Wn.2d at 466; Lui, 153 Wn. App. at 312. Refraining

from lodging an objection that could have highlighted the inconsistencies

between Lui's statements and the evidence was a reasonable tactical decision.

While Savage did not object to the detectives' testimony about Lui's truthfulness

and response to news of the victim's death, Savage impeached the detectives'

conclusions and inconsistent statements during cross-examination.

       As for Lui's claim of that his right to religious freedom was violated, he

does not show how he suffered prejudice from Savage's failure to object to the

State's questions to Taumoefolau. The Washington Constitution guarantees that

no person shall "be questioned in any court of justice touching his religious

beliefs to affect the weight of his testimony." Wash. Const, art. I, § 11. Here, the

State's questions highlighted an area of disagreement between Lui and


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No. 72478-9-1/9




Boussiacos and were relevant to Lui's activities during the weekend Boussiacos

disappeared. They did not touch on Taumoefolau's "religious beliefs to affect the

weight of his testimony."     Id. And, contrary to Lui's assertion, they were not

analogous to the prosecutor's improper injection of racial stereotypes in State v.

Monday. 171 Wn.2d 667, 257 P.3d 551 (2011).

        Finally, Lui contends that counsel was ineffective for failing to request

additional DNA testing.       In his declaration, however, Savage describes a

reasonable tactical decision:


        The DNA testing and results provided by the State indicated the
        presence of the defendant's semen in the victim's vagina and
        underwear. Partial profiles of the victim's husband and/or son were
        also detected on the victim's shoes. The presence of unidentified
        male profiles in any of these samples allowed me to argue that we
        don't know who else had been in contact with the victim (thus
        leaving behind his unidentified DNA profile) and, therefore, a
        reasonable doubt existed as to who killed         her.    Had   I taken
        additional steps to have the unidentified DNA results further
        analyzed, there was a high probability that none of them would
        have matched each other, thereby weakening the argument that
        the unidentified male profiles belonged to the real killer. If the blood
        on the stick shift and the unidentified male profiles on the steering
        wheel, vaginal swabs, and the shoe laces did not match one
        another, then any argument that another person committed this
        crime would be severely weakened.

        Lui does not establish any claim of ineffective assistance.

  II.   Prosecutorial Misconduct


        Next, Lui contends that prosecutorial misconduct violated his constitutional

rights. He raises an argument under Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963), that the prosecution violated his due process

rights by failing to provide impeachment information about Gulla.             And, he
No. 72478-9-1/10



maintains that the prosecutor's questions about Taumoefolau's religion violated

Lui's constitutional rights.

       In Brady, the United States Supreme Court held that due process requires

the State to disclose evidence that is favorable to the defendant and material

either to guilt or punishment.    Id at 87. This includes material impeachment

evidence.    State v. Knutson. 121 Wn.2d 766, 771-72, 854 P.2d 617 (1993).

Evidence is material if there is a "'reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been

different.'" id. at 772 (quoting Rjce, 118 Wn.2d at 887). "'Wrapped up in this

standard of materiality are issues of admissibility; if evidence is neither

admissible nor likely to lead to admissible evidence[,] it is unlikely that disclosure

of the evidence could affect the outcome of a proceeding.'" jd. at 773. Here, Lui

does not show a reasonable probability that even admissible evidence about

Gulla's alleged past misconduct would have changed the outcome of the trial.

Because he does not show that the additional evidence was material, he does

not establish grounds for relief under Brady.

       Defense counsel did not object to the prosecutor's allegedly improper

questions about religion. Therefore, Lui has waived this claim of error unless he

can show that the prosecutor committed misconduct that was "so flagrant and ill

intentioned that an instruction could not have cured the resulting prejudice."

State v. Emery. 174 Wn.2d 741, 760-61, 278 Wn.3d 653 (2012). Lui must show

both (1) that "no curative instruction would have obviated any prejudicial effect on

the jury" and (2) that the misconduct resulted in prejudice that "had a substantial


                                         10
No. 72478-9-1/11




likelihood of affecting the jury verdict." State v. Thorgerson, 172 Wn.2d 438, 455,

258 P.3d 43 (2011). Because Lui shows neither, his claim fails.

 III.   Juror Misconduct


        Lui also alleges that juror misconduct violated his constitutional right to an

impartial jury.   He presents a declaration from investigator Denise Scaffidi, in

which Scaffidi reported that she learned from juror Clare Comins that the jury

considered extrinsic information based on one juror's purported personal

knowledge of the area around the crime scene. According to Scaffidi, Comins

stated that during deliberations, a female juror said that Lui and Taumoefolau

could not have placed leaflets at the mall in Woodinville because that mall had

not yet been built. Scaffidi alleges that Comins believed that "jurors discussed

this information during deliberations and that it reflected poorly on Mr.

Taumoefolau's testimony."      However, Comins refused to sign a declaration to

that effect. The trial court denied defense counsel's request for access to the

other jurors' contact information. Lui argues that this court should remand for an

evidentiary hearing for purposes of questioning all the jurors about Comins's

statements.


        A criminal defendant is constitutionally entitled to a fair trial before an

unbiased and unprejudiced jury. State v. Jackson, 75 Wn. App. 537, 543, 879

P.2d 307 (1994). Jurors are expected to bring their opinions, insights, common

sense, and everyday life experiences to their deliberations. State v. Briggs, 55

Wn. App. 44, 58, 776 P.2d 1347 (1989). A juror's introduction of specialized or

expert knowledge, however, may be grounds for a new trial,                 jd. at 59.


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No. 72478-9-1/12




Generally, however, in evaluating a claim of juror misconduct, a court may not

consider matters that inhere in the verdict.   State v. Jackman, 113 Wn.2d 772,

777, 783 P.2d 580 (1989). This includes the mental processes, both individual

and collective, by which jurors reach their conclusions, jd. at 777-78. Even if

Comins or other jurors were willing and available to submit declarations, their

statements would likely be inadmissible as pertaining to matters inhering in the

verdict.   And, the alleged statements themselves are based on the juror's

everyday life experiences, not the product of specialized knowledge or outside

sources.



       An evidentiary hearing is not warranted in a collateral challenge if the

defendant fails to allege facts that establish prejudice. Rice, 118 Wn.2d at 889.

Here, the alleged extrinsic evidence may impeach one portion of Taumoefolau's

testimony.   But, it does not tend to disprove the defense theory that Lui and

Taumoefolau posted flyers near where the victim's body was found and that this

explains why bloodhounds tracked Lui's scent in the area. Therefore, Lui does

not show actual prejudice. He fails to establish grounds for relief.

 IV.   Newly Discovered Evidence

       In 2001, crime scene investigators found a blood stain on the stick shift

"skirt" of Boussiacos's car. Two years after trial, in 2010, the Washington State

Patrol Crime Laboratory matched the DNA from this blood sample to Sandro M.

Enciso, who later changed his name to Alesandro Biagi. On November 4, 2013,

police questioned Biagi.




                                         12
No. 72478-9-1/13




       Biagi had moved to Washington around 1992. He held a number of jobs

in the Seattle area, mostly related to automobiles. He worked at dealerships and

auto detailing shops, and also had a side business buying, detailing, and selling

cars on his own. When detectives showed Biagi a picture of Boussiacos, he was

"100 percent" certain he had seen her somewhere before, but could not say

where. He denied murdering her.         In a later conversation with a detective, he

opined that he probably worked on her car. He stated that he did not recognize

Lui.


       In a supplement to his personal restraint petition, Lui contends that

evidence of the DNA match is grounds for a new trial.              He argues that the

evidence "is certainly material because it points to a specific, alternate

perpetrator" who "has no innocent explanation" for leaving his blood in

Boussiacos's car.


       Newly discovered evidence is grounds for relief in a personal restraint

petition if those facts, "in the interest of justice," require vacation of the conviction

or sentence. RAP 16.4(c)(3). To warrant this relief, this evidence would have

been admissible at trial and would have probably changed the outcome. In re

Pers. Restraint of Jeffries. 114 Wn.2d 485, 493, 789 P.2d 731 (1990). To prevail

here, Lui must show that the evidence: "'(1) will probably change the result of the

trial; (2) was discovered since the trial; (3) could not have been discovered

before trial by the exercise of due diligence; (4) is material; and (5) is not merely

cumulative or impeaching.'" In re Pers. Restraint of Lord, 123 Wn.2d 296, 319-

20, 868 P.2d 835 (1994) (quoting State v. Williams. 96 Wn.2d 215, 223, 634 P.2d


                                           13
No. 72478-9-1/14




868 (1981)). The absence of any one of these five factors justifies the denial of a

new trial. State v. Macon. 128 Wn.2d 784, 800, 911 P.2d 1004 (1996).

      Washington courts have long followed the rule that in order to present

evidence suggesting another suspect committed the charged offense, the

defendant must show "such a train of facts or circumstances as tend clearly to

point out some one besides the prisoner as the guilty party." State v. Downs.

168 Wash. 664, 667, 13 P.2d 1 (1932). In other words, "some combination of

facts or circumstances must point to a nonspeculative link between the other

suspect and the charged crime." State v. Franklin. 180 Wn.2d 371, 381, 325

P.3d 159 (2014). "Mere evidence of motive in another party, or motive coupled

with threats of such other person, is inadmissible, unless coupled with other

evidence tending to connect such other person with the actual commission of the

crime charged." State v. Kwan. 174 Wash. 528, 533, 25 P.2d 104 (1933). The

evidence must show "some step taken by the third party that indicates an

intention to act" on the motive or opportunity. State v. Rehak, 67 Wn. App. 157,

163, 834 P.2d 651 (1992). The defendant must lay a foundation establishing a

clear nexus between the other person and the crime. State v. Condon, 72 Wn.

App. 638, 647, 865 P.2d 521 (1993).          The defendant bears the burden of

showing that the other suspect evidence is admissible. State v. Pacheco, 107

Wn.2d 59, 67, 726 P.2d 981 (1986).

      Lui does not carry this burden here. He establishes no nexus between

Biagi and the crime—no motive, threat, or step taken that would indicate any

intention on Biagi's part to act on any opportunity. Because Lui does not show


                                        14
No. 72478-9-1/15




that this "other suspect" DNA evidence is admissible, he cannot show that it

would have changed the outcome of his trial. For the same reason, he does not

establish his claim that Savage was ineffective for not seeking additional DNA

testing.   Speculation and conjecture based upon a small amount of DNA

deposited in the victim's car by a person who has held several Seattle-area jobs

selling and detailing automobiles does not justify relief here.

       We deny the petition.




WE CONCUR:




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