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      vwo->                                                       SUSAN L CARLSON
   CHEF
                                                                SUPREME COURT CLERK


        IN THE SUPREME COURT OF THE STATE OF WASHINGTON



  In the Matter of the                                No. 92816-9
  Personal Restraint of


  SIONE P, LUI,

                         Petitioner.                  En Banc


                                                      Filed      JUN 2 2 2017

          Gonzalez, J.—Petitioner Sione P. Lui challenges his conviction for

 the second degree murder of his fiancee, Elaina Boussiacos.' He seeks a

  new trial based on allegations of ineffective assistance of counsel,

 prosecutorial misconduct, Brady^ 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.




 'This is Lui's second time challenging his murder conviction before this court. His
 direct appeal raised an unrelated issue about whether a state expert may testify regarding
 tests performed by a nontestifying lab technician without violating the defendant's
 confrontation rights under Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct.
 2527, 174 L. Ed. 2d 314 (2009). and Bu/lcoming v. New Mexico, 564 U.S. 647, 131 S. Ct.
 2705, 180 L. Ed. 2d 610(2011). State v. Lui, 179 Wn.2d457, 315 P.3d 493 (2014).
'Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
In re Pers. Restraint ofLui(Stone P.), No. 92816-9

                      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^ and reaffirmed, albeit less

resolutely, the following Friday that she was "probably" going to break up


 Lui disputes the significance ofthis closure since the checking account was overdrawn.
In re Pers. Restraint ofLui (Sione P.), No. 92816-9

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
In re Pars. Restraint ofLui(Stone P.), No. 92816-9

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'^ 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 ofliquid

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



^ Lui debates whether this bag was Boussiacos's travel bag or merely her gym bag, but he
never objected to the State's characterization of the bag as a "travel bag" at trial. 7 RP at
895. We refer to the bag as it was described to the jury.
In re Pars. Restraint ofLui(Stone P.), No. 92816-9

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 fi-om 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.
In rePers. Restraint ofLui(Stone P.), No. 92816-9

       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,^ 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 ofBrady,(3)the jury improperly considered

extrinsic evidence, and (4)the parties acquired newly discovered DNA

evidence. The Court of Appeals denied each claim. In re Pers. Restraint of

Lui, No. 72478-9-1(Wash. Ct. App. Jan. 19,2016)(unpublished),

http://www.courts.wa.gov/opinions/pdfr724789.pdf. Lui sought review in

this court, which we granted. In re Pers. Restraint ofLui, 186 Wn.2d 1008,

380 P.3d 504(2016). We now affirm.


^ Lui filed this personal restraint petition simultaneously with his appeal. Review of
Lui's personal restraint petition was stayed pending resolution of his appeal, which
concluded in 2014. Lui v. Washington, 134 S. Ct. 2842,189 L. Ed. 2d 810(2014)
(denying certiorari review).
In re Pers. Restraint ofLui(Stone P.), No. 92816-9

                                        Analysis


   L Ineffective Assistance ofCounsel 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.^ Lui also raises separate but related




^ Lui originally listed counsel's failure to obtain independent DNA testing as a possible
ground for ineffective assistance, Pers. Restraint Pet. at 47, but is no longer pursuing that
claim. Wash. Supreme Ct. Oral Argument(Feb. 2, 2017), available at
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

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 ofthe murder.

        We review"ineffective assistance of counsel claims de novo. State v.


Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916(2009)(citing             re Pers.

Restraint ofFleming, 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

www.tvw.org/watch/?eventID=2017021009, at 44:20-45:08; see Suppl. to Pers. Restraint
Pet. at 2.
In re Pers. Restraint ofLui(Stone P.), No. 92816-9

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.'" 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)). "'[Sjtrategic

choices made after thorough investigation oflaw 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
In re Pers. Restraint ofLui(Stone P.), No. 92816-9

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 ofjustice. In

re Pers. Restraint ofCross^ 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(Deck 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.").



                                       10
In re Pers. Restraint ofLui (Sione P.), No. 92816-9

       Allegations of sleeping counsel and mental unfitness are serious, and

if proved, may support a finding of deficient performance. In re Pers.

Restraint ofCaldellis, 187 Wn.2d at 145 n.6 (listing cases where counsel

was found deficient for having fallen asleep during critical portions oftrial);

State V. Abercrombie, No. 60603-4-1, noted at 151 Wn. App. 1052, 2009 WL

2595007, at *4 ("'[SJleeping 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 ofCaldellis, 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,


                                      11
In re Pers. Restraint ofLui(Stone P.), No. 92816-9

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 ofthe 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



                                      12
In re Pers. Restraint ofLui(Stone P.), No. 92816-9

recess, the trial judge appeared to have no hirther 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 ofprejudice, 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 ofCaldellis, 187 Wn.2d at 146;In re Pers.

Restraint ofRice, 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 Fivers


      At trial, the State argued the scent trail tracked by its scent-detection

specialist's dog was lefl 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 ^d 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



                                       13
In re Pars. Restraint ofLui(Sione P.)^ No. 92816-9

argues, and Taumoefolau agrees, that had Savage prepared Taumoefolau

better before trial and provided him with a more comprehensive map ofthe

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 Deck). 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 ofthat 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



                                       14
In re Pers. Restraint ofLui(Stone P.), No. 92816-9

Lui's defense. The purpose ofTaumoefolau's testimony was to undermine

the significance ofthe 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 ofthat 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. MRP 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


                                       15
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

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 WAG. Again, contrary to Lui's evaluation oftrial,

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 WAG or, as the State alleged, the path he took home after he disposed of

Boussiacos's car and body at the WAG. The proffered testimony from Lui's

sister and friends was irrelevant to that debate.


         G. 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-



                                       16
In re Pers. Restraint ofLui (Stone P.)^ No. 92816-9

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 ofthe 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

"'[gjenerally the decision whether to call a particular witness is a matter for

differences of opinion and therefore presumed to be a matter of legitimate



                                       17
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

trial tactics.'" In re Pers. Restraint ofMorris, 176 Wn.2d 157, 171, 288

P.3d 1140(2012)(plurality opinion)(quoting In re Pers. Restraint ofDavis,

152 Wn.2d 647, 742, 101 P.3d 1 (2004)).

      Savage's cross-examination ofthe 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 proye 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 ofthe 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 ofthe 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



                                      18
In re Pers. Restraint ofLui (Sione P.), No. 92816-9

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.      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 ofthe light switch for their shared driveway, informing the

neighbor that he was "going crazy" the night before trying to turn offthat

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. InLord,

we held the trial court did not abuse its discretion in excluding a scent track

expert on behalf ofthe defense because the expert could not narrow when.



                                       19
In re Pers. Restraint ofLui (Sione P.), No. 92816-9

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 ";/the dog handler had been able to determine

that the scent track was from the date ofthe 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



                                      20
In re Pers. Restraint ofLui (Stone P.)^ No.92816-9

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.



                                       21
In re Pers. Restraint ofLui (Stone P.), No.92816-9

      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 ofthe 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 the WAC Parking Lot

      Lui also disagrees with Savage's decision to accept the State's theory

about when Boussiacos's car appeared in the WAC parking lot. The State

theorized that Lui killed Boussiacos sometime between Friday night and

Saturday morning and then abandoned her car at the WAC parking lot early

that morning. Corroborating that timeline, the owner ofthe WAC testified

that she first noticed Boussiacos's car in the parking lot that Saturday

morning when she arrived to open the gym at 7:00 a.m. but waited six days

to report it because she thought it may have belonged to one of her members.

Another gym employee also testified that other employees said they had

seen Boussiacos's car at the WAC that weekend. Lui disputes the accuracy



                                      22
In re Pers. Restraint ofLui (Stone P,f No. 92816-9

ofthese observations and argues his trial counsel was deficient for failing to

elicit testimony from Taumoefolau and others about how they did not see

Boussiacos's car in the WAC parking lot until later that week.

      Lui fails to prove counsel's decision not to present that testimony was

devoid of trial tactic or strategy. Evidence placing the vehicle's appearance

at the WAC on a later date, closer in time to the scent tracking would have

undermined the defense theory that the scent trail left by Boussiacos's

assailant was too old to track. "An attorney need not pursue an investigation

that would be fruitless, much less one that might be harmful to the defense."

Harrington, 562 U.S. at 108. Counsel therefore reasonably chose not to

present that testimony.

      Moreover, even though Savage did not question Taumoefolau about

when he saw Boussiacos's car in the WAC parking lot, Taumoefolau

volunteered that information during cross-examination by the State. He

testified that he was in the shopping area at least three times that week and

did not see the vehicle at the WAC until the following Friday when the

police discovered it. 14 RP at 1775-76.

         E. Officer Gulla's Disciplinarv Historv

      Lui insists Savage should have impeached Gulla's credibility with his

lengthy disciplinary history. Prior to trial, the State moved to exclude



                                      23
In re Pars. Restraint ofLui (Sione P.), No. 92816-9

Gulla's disciplinary history as detailed in a 2005 Seattle Post-Intelligencer

article. The article revealed Gulla had been under internal investigation

numerous times for making sexual advances toward a minor in 1986, for

tampering with a breathalyzer test in exchange for a date with a young

woman in 1986, for striking and cursing at a hit-and-run suspect in 1988,for

videotaping gang members assaulting other gang members rather than

intervening to stop the assault in 1992, and for using his authority as an

officer to intimidate and threaten his girlfriend's estranged husband in 2004.

      Savage agreed not to introduce evidence of Gulla's disciplinary

history at Lui's 2008 trial unless the State opened the door. He explained

that he did not intend to present the evidence because the allegations made

against Gulla in the article and in other unidentified cases had no nexus to

Lui's case. Counsel's assessment was not unreasonable.


      ER 608 permits impeachment of a witness through his or her character

for truthfulness and untruthflilness. Although ER 608(b) allows

impeachment through specific instances of misconduct, such conduct must

be probative. Because the probative value of misconduct diminishes over

time,ER 609(b) places a presumptive 10-year time limit on prior

convictions. As indicated above, many of Gulla's infi-actions cited in the

Seattle Post-Intelligencer article were over 10 years old by the time Lui



                                      24
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

went to trial in 20087 It was therefore not unreasonable for counsel to have

conceded their exclusion. It was also not unreasonable for counsel to forgo

impeaching Gulla with testimony he gave in 2001 in a different case since

the court in that case could not determine whether Gulla's testimony was

"intentionally misleading or just carelessly inaccurate." App.to Pers.

Restraint Pet. at 451,468.

       Furthermore, even if evidence of Gulla's prior misdeeds were relevant

and not too remote in time, Lui still fails to show how impeaching Gulla

about his past transgressions would have altered the results in this case.

"The need for cross-examination on misconduct diminishes with the


significance ofthe witness in the state's case." State v. Clark, 143 Wn.2d

731,766,24 P.3d 1006 (2001). Contrary to Lui's contention, Gulla was not

a decisive witness for the State. As previously discussed, the linchpin ofthe

State's case was the way Boussiacos was dressed and how her travel bag

was packed when the officers found her. Although Gulla was at the crime

scene when Boussiacos's body was found, he was not alone and his

testimony was corroborated by other officers who were present at the crime

scene and the many photographs they took there.


^ "The 10-year period starts at conviction or 'release from confinement for that
conviction,' whichever is later. The 10-year period ends when the conviction is admitted
at trial." State v. Russell, 104 Wn. App. 422,432,436 & n.27, 16 P.3d 664(2001)
(quoting H.R. Rep. No. 650, at 11 (1973), reprinted in 1974 U.S.C.C.A.N. 7075,7085).


                                            25
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

       The only evidence to which Gulla testified independently was the

preservation ofDNA evidence at the precinct and the seizure of clothing

from Lui's home that was used as scent samples for tracking purposes. That

testimony was not particularly helpful to the State's case. The strength of

the DNA evidence was debatable since there were multiple male DNA

sources on Boussiacos's shoelaces and vaginal wash. Even worse for the

State, forensic testing ofthe bloodstain on Boussiacos's gearshift skirt and

fingerprint analysis of the prints lifted from her car excluded Lui as a

possible source for both. As for the scent track evidence, it was highly

disputed at trial, with the State's expert even admitting that an 11-day-old

scent fell within the outer limits for a reliable scent track.

         F. Exclusion of Boussiacos's Ex-husband, Negron. as a Possible
           ■ Suspect

     Lui's defense theory at trial was that someone else killed Boussiacos.

Lui asserts his trial counsel was deficient for not offering Boussiacos's ex-

husband, Negron, as a possible suspect. DNA matching Negron's paternal

bloodline was found on Boussiacos's shoelaces, and Negron knew

Boussiacos would be heading to the airport the Saturday morning that she

disappeared. Negron also had a hot temper and possible motive for killing

Boussiacos because the two were involved in a custody and child support

dispute over their son. Lui contends that dispute was especially significant

                                        26
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

because custody and child support matters had been extremely hostile

between Negron and Boussiacos in the past, resulting in Negron absconding

with their son, moving to Washington, and forging Boussiacos's signature

on dissolution and custody papers in 1994 and 1995. When questioned by

the detectives, Negron confirmed that Boussiacos had mentioned that she

wanted to change their parenting plan and child support arrangement but

explained they were still in the informal discussion phase.

        Prior to trial, the State moved to exclude evidence of Negron's

alleged gang affiliation, evidence that he physically abused his son, and

testimony from Boussiacos's former roommate about Negron's credibility.

Savage conceded that such evidence was not relevant and informed the State

that he did not intend to offer Negron as an alternative suspect. Lui contends

there was no strategic or tactical purpose for this concession. In a posttrial

declaration, Savage explains he did not offer Negron as an alternative

suspect because he did not believe it was legally colorable under state law

and because Negron was a church pastor, had an alibi corroborated by three

people, and was not fighting with Boussiacos over custody oftheir son.

Savage dismissed the presence ofDNA matching Negron's bloodline on

Boussiacos's shoelaces as probably belonging to Negron's son who shared




                                      27
In re Pers. Restraint ofLui(Stone P.), No. 92816-9

the same paternal DNA profile as him^ and over whom Boussiacos shared

custody.

       "The standard for relevance of other suspect evidence is whether

there is evidence 'tending to connect' someone other than the defendant with

the crime" beyond mere speculation. State v. Franklin, 180 Wn.2d 371, 381,

325 P.3d 159(2014)(internal quotation marks omitted)(quoting State v.

Downs, 168 Wash. 664,667, 13 P.2d 1 (1932)), While motive alone may

not be enough, id. at 379-80, Lui had more than motive. He had DNA

evidence matching Negron's paternal bloodline on Boussiacos's shoelaces,

which, according to the State's theory, had been tied by Boussiacos's

assailant.


       The decision to forgo otherwise permissible evidence does not,

however, render counsel ineffective if the decision can be characterized as

part oflegitimate trial strategy. Here, counsel weighed the debatable

importance of Negron's DNA on Boussiacos's shoelaces against the strength

of his alibi, his reputation in the community as a church pastor, and the

absence of any recent altercation between Negron and Boussiacos and

decided not to pursue Negron as a possible other suspect. Savage explains


^ Negron's son could not be excluded as a possible DNA source because the State
performed Y-STR DNA testing on the shoelaces. The Y-STR test focuses on the short
tandem repeats on the Y chromosome that are the same in all males with the same
paternal lineage.


                                          28
In re Pars. Restraint ofLui(Stone P.), No. 92816-9

his trial strategy was to highlight deficiencies in the State's case rather than

engage in a contest between theories for fear that it would reflect poorly on

the defense in the event the jury disagreed with the defense theory that

Negron was the true assailant. State's Resp. to Pers. Restraint Pet., App. C

at 2-3.


       The touchstone for ineffective assistance is not whether we agree with

counsel's approach. "Even the best criminal defense attorneys would not

defend a particular client in the same way." Strickland, 466 U.S. at 689. In

light of the unidentified DNA evidence found on Boussiacos's gearshift

skirt, the unidentified fingerprints lifted from her car, the unidentified male

DNA on her shoelaces, and the unidentified semen found in Boussiacos's

vagina, it was not unreasonable for counsel to focus on that unidentified

suspect or suspects rather than specifically target Negron, especially when

Negron had an alibi, albeit not as strong as Savage believed,^ and did not

know where Boussiacos lived. App,to Pers. Restraint Pet. at 24(explaining

how Boussiacos kept her residential address a secret from Negron). Lui fails

to overcome Strickland's strong presumption of reasonableness.




^ Although Savage noted that Negron had three alibi witnesses for Friday night, the
record shows that his wife was the only person who could corroborate his whereabouts
that Saturday morning.


                                           29
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

         G. Lui's Arm Injury

      Next, Lui asserts Savage was deficient for failing to introduce

evidence that Lui was physically incapable of manually strangling

Boussiacos due to an arm injury. Lui fractured his right forearm playing

rugby four months before Boussiacos's murder. He had six screws placed in

his arm and wore a cast for several weeks. The cast was removed in mid-


November over two months before Boussiacos's murder.


      Before trial, the State requested Lui's medical records in anticipation

of a possible medical defense. Savage acknowledged that Lui had an arm

injury and that medical records corroborated it but informed the State that he

would not be raising a medical defense. In his posttrial declaration, Savage

explains that he did not present this evidence because he believed a medical

defense was "tenuous, at best," given Lui's stature and athletic prowess,

testimony from one witness that Lui was physically able to move a heavy

dresser by himself despite the injury, and Lui's statement to the police that

he had changed Boussiacos's flat car tire by himself the night before she

disappeared. State's Resp. to Pers. Restraint Pet., App. C at 8-9.

      Lui dismisses Savage's reservations as easily rebuttable by medical

records. According to Lui, those records show that he was wearing a cast

until mid-November and was still going to physical therapy in March



                                      30
In re Pers. Restraint ofLui (Sione P.), No. 92816-9

2001—a month after Boussiacos's disappearance. Lui's posttrial medical

expert opines that based on Lui's physical therapy records, Lui could not

have moved a dresser by himself in November or December 2000, as one

witness testified, since muscle atrophy would have been at its worst during

those initial weeks after his cast was removed. App. to Pers. Restraint Pet.

at 201-02(Becker Deck).

       While evidence that Lui had a weak right arm raises doubt about

whether he could have manually strangled Boussiacos with that arm, it does

not cast doubt on the State's theory that Lui strangled her with a ligature.

The State's medical examiner identified "band" marks with "a linear

quality" along one side ofBoussiacos's neck that was consistent with

strangulation by a cord or other ligature. 10 RP at 1386-90. The medical

examiner also found finger marks on that same side ofBoussiacos's neck

that could have belonged to either her or her assailant. 10 RP at 1387-90.

As a result, the medical examiner could not specify whether Boussiacos died

by manual strangulation or strangulation with a ligature. Id. The State did,

however, find Boussiacos's DNA under her nails, which supported the

theory that a ligature was probably used and that Boussiacos tried to pry it

loose during the struggle. 9 RP at 1218-19.

      Lui presents no evidence showing that he was incapable of strangling


                                      31
In re Pars, Restraint ofLui(Stone P.), No. 92816-9

someone with a ligature. Lui's post-trial medical expert merely postulates

that Boussiacos probably died of manual strangulation given the position of

the fingermarks on her neck. His expert provides no explanation for the

linear band marks; nor does he opine that Lui was incapable ofstrangling

Boussiacos with a ligature. Thus, regardless of whether it was unreasonable

for counsel to not present evidence of Lui's arm injury, Lui has failed to

show a reasonable probability that this evidence would have altered the

outcome of his case where the medical examiner concluded Boussiacos was


strangled either manually or with a ligature.

         H. Police Testimonv That Lui Was Lying

      Lui contends Savage was deficient for failing to object when

Detectives Christina Bartlett and Susan Peters testified that they believed

Lui had lied during police interviews. Police officers are generally not

permitted to testify about a defendant's veracity. State v. Demery, 144

Wn.2d 753, 759,30 P.3d 1278 (2001)(plurality opinion)("[N]o witness

may offer testimony in the form of an opinion regarding the guilt or veracity

of the defendant."). But an officer may repeat statements made during

interrogation accusing a defendant oflying if such testimony provides

context for the interrogation. Id at 763-64(discussing State v. O'Brian, 857

S.W.2d 212, 221 (Mo. 1993), ^nADubria v. Smith, 224 F.3d 995, 1001-02



                                      32
In re Pars. Restraint ofLui (Stone P.), No. 92816-9

(9th Cir. 2000)); see also State v. Kirkman, 159 Wn.2d 918, 931, 934, 155

P.3d 125 (2007).

        Bartlett's testimony stayed mostly within this permissible boundary.

Bartlett initially testified that she interviewed Lui in 2006 because she

wanted him to explain the "lies" he told during earlier interviews, but she

immediately clarified that she was referring to inconsistencies in the file,

rather than actual lies told by Lui.'^ 10 RP at 1449-53. In contrast, Peters

went too far. She testified that "the object of[the] interview was to get more

information,on specifics that had never been answered and [her] goal was to

get the truth and a confession," and explained she "would have loved to have

a confession, the truth." 14 RP at 1720. Together, Peters's statements

implied a belief on the detective's part that Lui was guilty.

       Nonetheless, Lui cannot prevail because he cannot prove defense

counsel's failure to object to these statements was unreasonable. Counsel

wanted Peters to testify that the goal ofthe interrogation was to obtain a

confession from Lui. That testimony laid the foundation for his defense that

  Bartlett also testified that "[Lui] clearly did lie to me several times." 13 RP at 1675.
Lui did not, however, challenge this statement. This statement probably exceeded the
scope of permissible testimony, but the burden is on Lui to establish the facts for his
claim ofineffective assistance. Even if Lui had listed this as a basis for ineffective
assistance, he still cannot prevail because he cannot prove prejudice when his own
counsel conceded during closing that Lui did lie to the police at least regarding the
whereabouts of Boussiacos's engagement ring, which he claimed was in the possession
of Boussiacos's mother, 10 RP at 1431, even though he had given it to his new wife. 14
RPat 1867.



                                             33
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

the detectives targeted Lui early on as a suspect and manipulated him

throughout their interrogation with lies about fictitious suspects and

misrepresentations regarding.the evidence in an effort to coerce him to

confess to a murder he did not commit,


     Lui's related but separate prosecutorial misconduct claim based on the

detective's testimony fails as well. The disputed testimony was elicited by

defense counsel, not the prosecutor, during cross-examination to support the

defense theory that the detectives had fixated on Lui as a suspect, blatantly

lied to him, and badgered him throughout hours of interrogation in a futile

attempt to get him to confess to a crime he did not commit.

         I. Prosecutor's Inference of Sexual Assault


      During closing, the prosecutor suggested that Lui may have strangled

Boussiacos during the course of a sexual assault. Lui claims that the State

overstepped the scope of closing arguments and that Savage was deficient

for failing to object. Although prosecuting attorneys have wide latitude to

argue facts and reasonable inferences from the evidence, State v.

Thorgerson, 172 Wn.2d 438,453,258 P.3d 43 (2011), they are not

permitted to make prejudicial statements unsupported by the record. See

State V. Rose,62 Wn.2d 309, 312-13, 382 P.2d 513(1963)(improper to refer

to defendant as "'drunken'" when every witness testified that he did not



                                      34
In re Pers. Restraint ofLui (Stone P.), No. 92816-9

appear drunk or intoxicated); State v. Boehning, 127 Wn. App. 511, 519-23,

111 P.3d 899(2005)(cannot infer multiple instances of rape from unpursued

rape charges because unpursued charges are not evidence).

      Lui contends there were no facts to support the State's inference of

sexual assault. Lui is wrong. DNA testing revealed Lui's semen on

Boussiacos's panties and inside her vagina, revealing they recently had

intercourse, 12 RP at 1540-43, even though Boussiacos had informed several

people that their relationship was over, 5 RP at 394-95, 498-504, 531-45;6

RP at 608-10, 71,3-14. When Boussiacos's body was discovered, she had

bruises on her nose and face, and she was dressed strangely as if someone

else had dressed her. 7 RP at 866-68; 10 RP at 1361-65, 1376. The medical

examiner testified that he could neither confirm nor rule out the possibility

that Boussiacos had been sexually assaulted. 10 RP at 1404-05. Drawing

from this evidence, the prosecutor asked the jury to consider why Lui

continued to deny having had sex with Boussiacos in the days prior to her

death when DNA evidence proved that he did. 14 RP at 1828-29. The

prosecutor suggested that perhaps something "very bad" happened that

night, id. at 1828, and that "[mjaybe it happened at the same time she was

being strangled, maybe not," id. at 1830. The prosecutor further theorized

that given the small amount of sperm found in the vaginal wash,9 RP at



                                      35
In re Pers. Restraint ofLui(Stone Pf No. 92816-9

1212, 1236, 1292-93,"[i]t is entirely possible that there was no completed

sex act and that would have been the final humiliation for him." 14 RP at

1830. The prosecutor later confirmed her theories were just speculation:

"Did he try to have sex with her, before he was strangling her, at the same

time he was strangling [her], after he strangled her. We don't know." Id. at

1853.


        The prosecutor's inference of sexual assault was supported by trial

testimony and within the wide latitude given to attorneys during closing

arguments. Lui's claim of ineffective assistance and his related claim of

prosecutorial misconduct therefore fail.

          J.   Comments on Lui's Guilt or Innocence


        Lui further contends Savage was deficient for failing to object when

the detectives and the prosecutor told the jury his reactions to Boussiacos's

death did not align with the reactions of a "'grieving fiance[ ]'" or an

"'innocent man.'" Pers. Restraint Pet. at 43-45. Whether a defendant is

innocent or guilty is a question solely for the jury. State v. Todd, 78 Wn.2d

362, 375, 474 P.2d 542(1970). On the issue of bereavement, a witness may

testify that a defendant showed no signs of grief so long as the conclusion is

logically supported by personal observations and the witness does not

attempt to testify as an expert on whether the defendant's reaction was that



                                      36
In re Pers. Restraint ofLui (Sione P.), No. 92816-9

of a truly bereaved person. See State v. Stenson, 132 Wn.2d 668, 721-24,

940 P.2d 1239(1997)."

       Peters testified that she and Bartlett presented "several questions to

[Lui] that were lies that were test questions, to see how he would respond,

being the grieving fianc[e]." 14 RP at 1720. She explained that "[they]

were expecting, if it was a true victim ... or someone [who] had a family

member murdered, that the reasonable person to [her] would ask,'who are

those suspects? When are you going to arrest them?"' Id. at 1722(emphasis

added). She testified that Lui never asked any of those questions.

       To prevail on his ineffective assistance claim, Lui must prove counsel

acted unreasonably, without legitimate trial strategy or tactic, in failing to

object to that testimony. Notably, defense counsel was the one who elicited


•' See Stenson, 132 Wn.2d at 722(paramedic permitted to testify that he was "surprised"
to learn the defendant was the victim's spouse because he did not"show any grief);
State V. Craven,69 Wn. App. 581, 586,849 P.2d 681 (1993)(emergency room social
worker permitted to testify the defendant's behavior was "unusual" when compared to the
behavior of other family members she saw in the hospital); State v. Day,51 Wn. App.
544, 552-53, 754 P.2d 1021 (1988)(permissible for officers to testify the defendant's
reaction was "'inappropriate'" based on their observations that he had shown "'very little
emotion,'" was "'unemotional,'" and did not ask any qiiestions the officers expected he
would); State v. Allen, 50 Wn. App. 412,416-19,749 P.2d 702(1988)(police officer
allowed to testify the defendant's sobbing "'did not look genuine or sincere'" based on
"her facial expression, the lack of tears,[and] the lack of any redness in her face"). But
see State v. Sargent,40 Wn. App. 340, 349-51,698 P.2d 598 (1985)(improper for
detective to testify the defendant's reaction to his wife's death was "'contrived'" because
it was based on an unfounded assumption that the defendant had already known his wife
was dead); State v. Haga, 8 Wn. App. 481,490-92, 507 P.2d 159(1973)(ambulance
driver not permitted to testify based on his 12 years of experience as a deputy coroner and
ambulance driver that the defendant was "'very calm and cool,'" showed no signs of
grief, and reacted "'unusual[ly]'" by not offering to assist).


                                            37
In re Pers. Restraint ofLui(Sione Pf No. 92816-9

the challenged testimony. Rather than object to this testimony, he used it to

force Peters to admit that Lui's failure to inquire about the status ofthe

State's investigation or the identities of the fictitious suspects was not

evidence of guilt. Id, Thus, regardless of whether Peters's testimony fell

outside the permissible scope of opinion testimony, Savage's decision to

undercut the force ofthat testimony through cross-examination rather than

an objection is not without legitimate trial strategy.

      Moreover, counsel's decision not to object to Peters's testimony

allowed him to respond effectively to Bartlett's otherwise permissible

testimony, Bartlett never opined about Lui's guilt or innocence. Instead,

she testified that when she interviewed Lui years after Boussiacos's murder,

he never asked her about the status of the investigation or the identities of

any suspects even though she had expected him to so inquire. 10 RP at

1437,1453-54. Specifically, she testified that she misled Lui into believing

the State had two suspects because she wanted to see if"he would ask about

anybody who was a suspect in the death ofhis fianc[e]e or what their

relationship was or questions that [she] thought he would, anybody would

ask." Id. at 1437. She further explained that "very much like people who

lose great people who are very important in their life," she believed "one of

the common things that someone would say is, 'oh, I feel some sense of



                                       38
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

relief, some sense of wanting to know what happened to the love of their

life, who was involved, how it happened, how we got to this information and

do expect some relief" Id. at 1453-54. In addition to not asking those
                  /




questions, she added that Lui never appeared angry or upset and never

questioned her about why the investigation was taking so long. Id. at 1437.

Although Bartlett never specifically opined on the reactions oftrue victims,

Savage was nevertheless able to rebut her testimony by getting Peters to

admit later that Lui's failure to ask those questions or react in a certain way

was not evidence of guilt.

      Lui's related challenge regarding defense counsel's failure to object

when the prosecutor suggested Lui's reaction was inconsistent with that of

an "innocent man" also fails. During closing, the prosecutor explained:

             We know that an innocent man would have kicked and
      screamed over the length ofthis investigation and how long it took
      to solve.


            He would have screamed at the detectives the night that [s]he
      was found instead of saying, I have to go to her. I have to go to her,
      pounding on the table. He would have asked who did it, how did it
      happen?

             Where are your leads? What is going on? He would have
      wanted to know everything about the two new suspects that he was
      told about. He didn't ask once about anything like that.

            He would not have sat watching TV and dosing [sic] with the
      remote while the detectives are searching his house.

14 RP at 1849-50(emphasis added).


                                        39
In re Pars. Restraint ofLui(Sione P.), No. 92816-9

      Although prosecutors have wide latitude during closing argument to

draw inferences from the evidence, Thorgerson, 172 Wn.2d at 453, it is

impermissible for a prosecutor to express a personal opinion as to the

credibility of a witness or the guilt of the defendant. State v. McKenzie, 157

Wn.2d 44, 53-54, 134 P.3d 221 (2006). Nonetheless,"'there is a distinction

between the individual opinion ofthe prosecuting attorney, as an

independent fact, and an opinion based upon or deduced from the testimony

in the case.'" Id at 53 (emphasis omitted)(quoting State v. Armstrong, 37

Wash. 51, 54-55, 79 P. 490 (1905)). To determine whether the prosecutor is

expressing a personal opinion ofthe defendant's guilt, independent ofthe

evidence, a reviewing court views the challenged comments in context:

      "It is not uncommon for statements to be made in final arguments
      which, standing alone, sound like an expression of personal opinion.
      However, when judged in the light ofthe total argument, the issues
      in the case, the evidence discussed during the argument, and the
      court's instructions, it is usually apparent that counsel is trying to
      convince the jury of certain ultimate facts and conclusions to be
      drawn from the evidence. Prejudicial error does not occur until such
      time as it is clear and unmistakable that counsel is not arguing an
      inference from the evidence, but is expressing a personal opinion."

Id. at 53-54 (emphasis omitted)(quoting State v. Papadopolous,34 Wn.

App. 397, 400,662 P.2d 59(1983)).

      The State defends the prosecutor's statements as a reasonable

inference drawn from the detectives' testimony about the reaction they had




                                       40
In rePers. Restraint ofLtd (SioneP.), No. 92816-9

expected from Lui. However, as previously detailed, the detectives never

testified that innocent people react a certain way. At most,Peters testified

that a "true victim" would ask certain questions but then admitted that Lui's

failure to ask those questions was not evidence of his guilt. It was, therefore,

improper for the prosecutor to compare Lui's grieving process against her

perceptions of how an "innocent man" grieves, especially given the vast

differences in cultural and individual mourning processes.

      However,for Lui to prevail on his ineffective assistance claim, he

must prove more than just prosecutorial misconduct; he must prove deficient

performance by defense counsel and resulting prejudice. Lui fails to prove

prejudice. The State's closing encompassed 49 pages. In those 49 pages,

the prosecutor described Lui's history ofjealousy and control and

Boussiacos's decision to leave him. The prosecutor then described how

Boussiacos was unusually dressed and her luggage unusually packed when

police officers discovered her body. From that evidence, the prosecutor

opined that Boussiacos was probably murdered at night because she wore

sweat pants only to bed and was wearing them when she was found. This

evidence pointed to Lui as the assailant since he was home alone with

Boussiacos that evening. Indeed, phone records documented that Lui was

awake and called his sister at 1:30 a.m. that morning, even though he



                                      41
In re Pers, Restraint ofLui(Sione P.), No. 92816-9

claimed to be sleeping at the time. The prosecutor explained that whatever

the substance of that conversation was, it gave his sister reason to question

whether Lui had a role in Boussiacos's disappearance. The prosecutor also

highlighted the presence ofDNA matching Lui's paternal bloodline on

Boussiacos's shoelaces, the many inconsistent statements he told the police

throughout the investigation, and the scent track evidence that traced Lui's

scent particles from Boussiacos's car at the WAC to his home.

      Lui has not proved by a reasonable probability that the result oftrial

would have been different in the absence of the prosecutor's singular

reference to the behaviors of an innocent man. Thus, Lui's claim of

ineffective assistance fails.


      Lui's separate due process claim based on the same prosecutorial

misconduct similarly fails. Because Lui failed to object at trial, the claim is

waived unless he can show that the misconduct was "so flagrant and ill-

intentioned that it evinces an enduring and resulting prejudice" and was

incurable by a jury instruction. Stenson, 132 Wn.2d at 719. Even ifthe

prosecutor's discussion of the "innocent man" were sufficiently flagrant and

ill intentioned, we do not find the prosecutor's singular reference to the

behaviors of an innocent man, when considered in context with the State's

entire closing argument, produced pervasive prejudice in the minds ofthe



                                      42
In re Pers. Restraint ofLui(Stone P.), No.92816-9

jury and was incapable of being remedied by a curative instruction.

         K. Lui's Religion


      Lui practices the Mormon faith. He contends that the State

improperly commented on his religion in violation of article I, section 11 of

our state constitution and that his counsel was ineffective for failing to

object. Our state constitution does not prohibit all questions pertaining to

one's religion. See, e.g.. State v. Dhaliwal, 150 Wn.2d 559, 579-80,79 P.3d

432(2003)(permissible for prosecutor in an assault case to question a

witness about the importance of respect in Sikh culture to establish a

possible motive for that assault). It guarantees only that no person "shall...

be incompetent as a witness or juror, in consequence of his opinion on

matters of religion, nor be questioned in any court ofjustice touching his

religious beliefto affect the weight of his testimony." CONST, art. I, § 11;

see also ER 610("Evidence ofthe beliefs or opinions of a witness on

matters of religion is not admissible for the purpose ofshowing that by

reason oftheir nature the witness'[s] credibility is impaired or enhanced.").

      The State elicited testimony regarding Lui's religion because it

provided context to the case. During his interview with detectives, Lui

claimed he and Boussiacos had reconciled and explained he was sleeping on

the couch the night Boussiacos disappeared only because they had decided



                                       43
In re Pers. Restraint ofLui(Stone P.)^ No. 92816-9

to abstain from sexual intercourse until their wedding in order to live more

consistently with the tenets of his Mormon faith,

        The State sought to discredit Lui's claim that he and Boussiacos had

reconciled and therefore he had no motive to kill her. Because Lui did not

testify, the State instead questioned Lui's fnend Taumoefolau, who was also

a practicing Mormon. During cross-examination, the prosecutor asked

Taumoefolau whether he and Lui were practicing Mormons and whether he

knew Lui had an affair with another woman when he was with Boussiacos.

The State then inquired whether it was against the Mormon faith to have

premarital sex, to live with someone outside of marriage, to drink

(presumably alcohol), to smoke (presumably cigarettes), and to consume

caffeine. The State also asked Taumoefolau about the date and significance

of attending stake^^ conference meetings in their religion. The State asked

these questions to highlight a critical inconsistency in Lui's statements,

which was that if his faith were as important to him as he claimed, why did

he engage in premarital sex with multiple women, and why was he

inexplicably absent from the stake conference meeting on Sunday—the day


  Lui's audiotaped statements were played to the jury but not designated as part of the
record for review. The State, however, described substantive parts of his statements
during closing. Lui carries the burden in an ineffective assistance of counsel claim to
prove these descriptions are inaccurate.
  Although the trial transcript refers to this meeting as a "state" conference, Lui clarifies
that they meant"stake" conference. Reply on Pers. Restraint Pet. at 19 n.4.


                                             44
In re Pars. Restraint ofLui (Stone P.), No. 92816-9

after Boussiacos's disappearance—^when he claimed he did not know she

was missing until the following Monday.

       The record shows the State's questioning was calculated to provide

foundation for permissible arguments and not meant to impermissibly affect

the weight or credibility of Tamouefolau's testimony. Lui's ineffective

assistance claim and separate claim of prosecutorial misconduct based on the

same alleged violation of his religious freedom fail as a result.

         L. Cumulative Error


       Lui argues that if we find the above errors do not result in sufficient

prejudice individually, their combined prejudice does. "The cumulative

error doctrine applies where a combination of trial errors denies the accused

a fair trial." In re Pers. Restraint ofCross, 180 Wn.2d at 690(citing In re

Del ofCoe, 175 Wn.2d 482, 515, 286 P.3d 29(2012)). As the petitioner,

Lui bears the burden of showing the accumulated prejudice from multiple

trial errors resulted in substantial prejudice that denied him a fair trial. Id.

Lui has not met this burden.


      Even if we assume Savage was sleeping at some point during trial or

that it was unreasonable for him to not present evidence of Lui's arm injury

to the jury (issues we do not decide), Lui fails to show how these errors,

when combined with the prosecutor's singular comment about the expected



                                        45
In re Pers. Restraint ofLui (Stone P.), No. 92816-9

reactions of an "innocent man," resulted in substantial prejudice. The errors

are completely unrelated, and any prejudice caused by them was extremely

minor. Lui has not proved substantial prejudice that warrants a new trial.

   11. State's Duty To Disclose Gulla's Disciplinary File under Brady

       Lui contends the State violated its affirmative duty under Brady to

disclose Gulla's disciplinary file. Under Brady and its progeny, the

prosecution has an affirmative duty to leam of and disclose any

impeachment evidence known to the prosecution that is material to guilt or

punishment. Strickler v. Greene, 527 U.S. 263, 280-81, 119 S. Ct. 1936,

144 L. Ed. 2d 286 (1999). This duty extends to information held by others

acting on the government's behalf, not just those facts within the

prosecutor's file. State v. Davila, 184 Wn.2d 55, 71, 357 P.3d 636(2015).

This includes the disclosure of personnel records. Id.

       As previously discussed, before trial, the State moved to exclude

references to Gulla's disciplinary history as detailed in the Seattle Post-

Intelligencer article. The article investigated several allegations of

misconduct lodged against Gulla throughout his years ofservice and noted

there were additional allegations in Gulla's disciplinary file that the

newspaper was unable to investigate because they involved unfounded

allegations that were withheld by the police department from public



                                       46
In re Pers. Restraint ofLui (Stone P.), No,92816-9

disclosure.


      Lui fails to carry his burden of.proving a Brady violation. See id. at

69;In re Pers. Restraint ofStenson, 174 Wn.2d 474, 487, 276 P.3d 286

(2012). "[T]o establish a Brady violation, a defendant must demonstrate the

existence of each ofthree necessary elements:'[(1)] The evidence at issue

must be favorable to the accused, either because it is exculpatory, or because

it is impeaching; [(2)] that evidence must have been suppressed by the State,

either willfully or inadvertently; and [(3)] prejudice must have ensued.'"

State V. Mullen, 171 Wn.2d 881, 895, 259 P.3d 158 (2011)(most alterations

in original)(quoting Strickler, 527 U.S. at 281-82). "The mere possibility

that an item of undisclosed evidence might have helped the defense or might

have affected the outcome of the trial... does not establish 'materiality' in

the constitutional sense." State v. Kwan Fai Mak, 105 Wn.2d 692, 704-05,

718 P.2d 407(1986), rejected on other grounds by State v. Hill, 123 Wn.2d

641, 645-47, 870 P.2d 313(1994)(rejecting rule requiring independent

appellate evaluation oftrial court findings when constitutional rights are

involved). Nor does a "broad, unsupported claim that the police officers'

personnel files may lead to material information ... justify automatic

disclosure ofthe documents." State v. Bldckwell, 120 Wn.2d 822, 829, 845

P.2d 1017(1993).



                                      47
In re Pers. Restraint ofLui (Sione Pf No. 92816-9

       Lui fails to present any specific evidence that the State suppressed that

would form the basis of a Brady violation. Instead, he argues the State

should be required to turn over Gulla's entire file so that he can assess

whether it contains material impeachment information, particularly with

respect to those unfounded allegations referenced in the Seattle Post-

Intelligencer article. But "[a] defendant's right to discover exculpatory

evidence does not include the unsupervised authority to search through the

[govemmentj's files." Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct.

989,94 L. Ed. 2d 40(1987). Nor is a defendant entitled to an in camera

inspection of an officer's disciplinary file absent a showing that those

records are unavailable to him or her. Cf id. at 57-58 (granting in camera

review of confidential records). Although Lui provides evidence

establishing that he was unable to obtain Gulla's complete disciplinary file

through a public records request in 2009, he fails to show the same result

would occur now following our 2011 decision in Bainbridge Island Police

Guildv. CityofPuyallup, 172 Wn.2d 398,418, 259P.3d 190(2011)(lead

opinion)(requiring the production of public records related to

unsubstantiated allegations of sexual assault within officer's disciplinary-

file); id. at 431 (Madsen, C.J., concurring)(same).^"^


  The availability of records through a public records request does not alleviate or excuse


                                           48
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

          Because Lui fails to prove there was material exculpatory or

inculpatory information in Gulla's disciplinary file, we do not address

whether the State would have been required to disclose that information

under Brady ifthe information involved unfounded or unsubstantiated

allegations.

   III.    Juror Misconduct


          Next, Lui contends that he is entitled to a new trial because a juror

mentioned to another juror during jury deliberations that she thought

Taumoefolau, whom she referred to by his nickname Sam, said he and Lui

were posting flyers at the shopping mall near the WAG and that she knew

that testimony could not be true because the shopping mall was not built

until after the murder occurred.


          Central to our jury system is the secrecy ofjury deliberations. See

Long V. Brusco Tug & Barge, Inc., 185 Wn.2d 127, 131, 368 P.3d 478

(2016). This does not mean that jury discussions are immune from judicial

review. Jurors can engage in reversible misconduct when they inject

extrinsic evidence into jury deliberations because in doing so, they strip a


the government of its affirmative duty to learn of and disclose any exculpatory or
impeachment evidence known to the prosecution or others working on its behalf.
Strickler, 527 U.S. at 280-81. For this reason, the reasonable probability standard for
obtaining relief from a Brady violation is less onerous than the "probably would have
resulted in acquittal" standard for newly discovered evidence. United States v. Agurs,
427 U.S. 97, 109-11, 96 S. Ct. 2392,49 L. Ed. 2d 342(1976).


                                           49
In re Pers. Restraint ofLui (Stone P.), No. 92816-9

defendant ofthe opportunity to object, cross-examine, explain, or otherwise

rebut that evidence. Breckenridge v. Valley Gen. Hasp., 150 Wn.2d 197,

199 n.3, 75 P.3d 944(2003). To balance these competing rights, courts will

not consider allegations ofjury misconduct that inhere in the verdict. Long,

185 Wn.2d at 131-32. Matters that inhere in the verdict include "facts


'linked to the juror's motive, intent, or belief, or describ[ing] their effect

upon' the jury" or facts that cannot be rebutted by other testimony without

probing any juror's mental processes. Id. (alteration in original)(quoting

Gardner V. Malone,60 Wn.2d 836, 841, 376 P.2d 651 (1962)). "Only if a

court concludes thatjuror declarations allege actual facts constituting

misconduct, rather than matters inhering in the verdict, does it proceed to

'decide the effect the proved misconduct could have had upon the jury,"' Id.

at 132(quoting Gardner,60 Wn.2d at 841),

       Our inquiry therefore begins with deciding whether Lui alleges juror

misconduct that inheres in the verdict. M at 131. Lui submits the following

declaration from his private investigator:

      On or about June 16, 2008,1 received a telephone call from one of
      the jurors, Clare Comins, in response to my telephone message. Mr.
      Comins informed me that during deliberations there was discussion
      concerning the credibility ofone ofMr. Lui's defense witnesses, a
      man named Sam. Comins recalled Sam testifying that both he and
      Mr. Lui had distributed missing person's leaflets at a partieular mall.
      The mall was outside the area ofthe aerial photographs that had
      been introdueed as exhibits in the case, but Sam described the



                                        50
In re Pers. Restraint ofLui (Stone P.), No. 92816-9

        location. During deliberations, one ofthe female jurors explained
        that she had lived in Woodinville at the time ofthe murder and she
       knew that the mall described by Sam could not possibly have been
       leafleted in the days following Ms. Boussiacos's disappearance
       because the mall had not yet been built. The otherjurors discussed
       how Sam's misstatement concerning the existence ofthe mall
       reflected poorly on his overall testimony.

App. to Pers. Restraint Pet. at 65-66(DecL of Denise Scaffidi)(emphasis

added). Jury discussions about Taumoefolau's credibility and the date the

mall was constructed are matters that inhere in the verdict. See Cox v.

Charles Wright Academy, Inc.., 70 Wn.2d 173, 179-80, 422 P.2d 515 (1967).

As the emphasized text above illustrates, the challenged discussion touched

on the mental processes by which individual jurors arrived at the verdict, the

effect Taumoefolau's testimony had on the jury, and the weight particular

jurors may have given Taumoefolau's testimony.'^

   IV.     Newly Discovered DNA Evidence

       Finally, Lui asserts he is entitled to a new trial based on newly

discovered DNA evidence. "Newly discovered evidence is grounds for

relief in a personal restraint petition if those facts 'in the interest ofjustice

require' vacation of the conviction or sentence." In re Pers. Restraint of

Lord, 123 Wn.2d296, 319, 868 P.2d 835 (1994)(quoting RAP 16.4(c)(3)).


   Because Lui's challenge inheres in the verdict, we do not consider the State's argument
that the affidavit from Lui's investigator relaying what a juror told her is insufficient to
support a claim ofjury misconduct, or Lui's corresponding argument that he is entitled to
a reference hearing if his investigator's affidavit is insufficient.


                                            51
In re Pers. Restraint ofLui(Stone P.), No. 92816-9

To prevail, a "defendant must show; 'that the evidence(1) will probably

change the result ofthe 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.'" Id. at 319-20

(quoting State v. Williams, 96 Wn.2d 215, 223,634 P.2d 868 (1981)).

       Boussiacos purchased her car used. At trial, the State acknowledged

the police had found a bloodstain on the gearshift skirt ofBoussiacos's car

and that DNA extracted from the stain did not match Lui's or any other

DNA profile in the police database at the time. It was not until Alesandro

Biagi was arrested in 2009 that police learned the bloodstain belonged to

him. Thus, there is no dispute that Lui could not have discovered Biagi's

identity before trial. Lui, however, fails to show how the jury's knowledge

of Biagi's identity would have altered the result ofthe trial. The jury already

knew there was blood on the gearshift skirt that belonged to someone else.

See, e.g., 9 RP at 1224. The only thing the jury did not know was that the

bloodstain belonged to Biagi.'^

       Apart from the bloodstain, Lui presents no evidence that Biagi knew


  Lui presents no evidence linking Biagi to the unidentified fingerprints on Boussiacos
car, the unidentified male DNA on Boussiacos's shoelaces, or the unidentified semen in
her vaginal wash. Wash. Supreme Court oral argument,In re Pers. Restraint ofLui, No.
92816-9(Peb. 2, 2017), at 43 min., 37 sec. to 44 min., 23 sec., audio recording by TVW,
Washington State's Public Affairs Network, http://www.tvw.org. The sole evidence
linking Biagi to Boussiacos's murder is his blood on the gearshift skirt.


                                           52
In re Pers. Restraint ofLui (Sione Pf No. 92816-9

or was somehow connected to Boussiacos. Biagi's statements to the police

establish that he was living in Seattle (not Woodinville) around the time

Boussiacos was murdered and that he was in the business of repairing,

selling, and detailing used cars. Biagi did not recall having ever worked on

Boussiacos's car, though he believed she looked familiar even though he

could not pinpoint when or where he might have seen her. He may have

seen her at the 24 Hour Fitness gym where she formerly worked,though she

had not worked there since 1999(over two years before her death). Biagi

explained that although he was not a member of the gym where Boussiacos

used to work, his membership subscription allowed him to visit all affiliate

24 Hour Fitness gyms and that he would occasionally go to gyms closer to

his friends* homes. He also stated that it was possible that he may have

visited the WAC gym where Boussiacos's body was found at some point

when he was living in Washington.

      Evidence that Biagi may have seen Boussiacos before and may have

attended the gym where her body was found at some point in time is not

enough to warrant a new trial, especially when the jury knew the bloodstain

on the gearshift skirt belonged to someone other than Lui. Without more,

Biagi's connection to Boussiacos is too tenuous to show evidence of his

identity would probably have changed the result oftrial.



                                     53
In re Pers. Restraint ofLui(Stone P.), No. 92816-9

       Lui contends that the jury may have been persuaded by evidence that

Biagi legally changed his name shortly after Boussiacos's murder and had

prior convictions for assaulting a security guard during a shoplifting attempt

at a Goodwill store in 2009, felony forgery in 1997, and felony possession of

stolen property in 1996. But Lui does not explain how these theft-related

crimes would be admissible in a murder-by-strangulation trial where there

was no evidence of theft or unlawful entry. See ER 404(b)("Evidence of

other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith," though it "may ...

be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or

accident."). Moreover, Biagi provided an explanation for his name change.

He explained that in 2001, he had applied for a job in New York and was

ultimately rejected due to his criminal history. He changed his legal name

afterward because he believed it would allow him to circumvent future


background checks. Evidence of Biagi's name change and criminal history

is insufficient to prove that had the jury known the bloodstain on

Boussiacos's gearshift belonged to Biagi, they would have reached a

different result.




                                      54
In re Pers. Restraint ofLui(Sione P.), No. 92816-9

                                  Conclusion


       We affirm the Court of Appeals's denial ofLui's claims and

dismissal of his personal restraint petition. Lui is not entitled to a new trial

due to ineffective assistance of counsel, prosecutorial misconduct, or newly

discovered evidence. Nor is he entitled to a reference hearing to determine

whether counsel was sleeping at trial or whether the State withheld

exculpatory or impeachment Brady evidence, or to prove his juror

misconduct claim.




                                       55
In re Pers. Restraint ofLui (Stone P.), No. 92816-9




WE CONCUR:




                                                      /




                                    56
In re Pers. Restraint ofLui(Sione P.)




                                        No. 92816-9



       MADSEN,J.(dissenting)—^In this personal restraint petition(PRP), Sione Lui has

alleged errors that warrant a reference hearing consistent with Rule of Appellate

Procedure(RAP) 16.11(b). In particular, Lui's ineffective assistance of counsel claims

based on the dog scent-tracking expert evidence and defense counsel's attentiveness at

trial merit further fact-finding. Because the majority dismisses Lui's PRP without first

ordering a reference hearing, I respectfully dissent.

       Under RAP 16.11(b), if a PRP cannot be determined solely on the record, this

court will transfer the petition to the superior court for a reference hearing. The findings

offact from that reference hearing then aid the appellate court in deciding whether the

petition has merit. RAP 16.13. To obtain a reference hearing, a petitioner must show

that he has competent, admissible evidence to establish the facts that entitle him to relief.

In re Pers. Restraint ofRice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).

       First, Lui has made a sufficient showing to warrant a reference hearing addressing

whether his counsel was ineffective for failing to use an expert to dispute the State's

scent-tracking evidence. With his PRP,Lui submitted a declaration of James Ha,PhD.

Pers. Restraint Pet., App. 14. Dr. Ha has a PhD in zoology with a specialization in
No. 92816-9




animal behavior. He has testified in several cases—both civil and criminal—about scent-


tracking evidence. According to Dr. Ha,the accuracy of scent-tracking decreases each

day of delay following the establishment ofthe scent track. The oldest documented

successful scent track was 13 days old. This led Dr. Ha to conclude that, given the low

probability of a dog following an 11-day-old trail, it was more likely that the dog in Lui's

case followed a scent that was established more recently. Further, Dr. Ha stated that a

dog cannot tell when a scent particle left a person's body, so if a person had been in the

area more than once, the dog would not be able to distinguish between a scent trail

established earlier and one established later.

       Contrary to Dr. Ha's declaration, the State's expert testified that his dog could

distinguish between scents left by the same person on different days. 8 Report of

Proceedings at 1100-07. It is hard to overstate the importance ofthe scent-tracking

testimony; it was the only piece of evidence tying Lui to the location ofthe victim's

body. Whether Lui left his scent 11 days prior when disposing ofthe victim's body or 8

days prior when distributing fliers was a critical fact for the jury to decide. Given Dr.

Ha's unequivocal statements that a scent-tracking dog is not capable of what the State's

expert alleged and the importance ofthe evidence, we should order a reference hearing to

further explore whether counsel was ineffective in how he handled the issue before

dismissing Lui's PRP.

       Second, Lui has made a sufficient showing to warrant a reference hearing on the

issue of whether his counsel, Anthony Savage, was functionally absent from critical
No. 92816-9



stages of trial due to his declining health and allegations that he slept during trial. A

defendant's counsel sleeping through substantial or critical portions of trial can support a

finding of ineffective assistance of counsel. In re Pers. Restraint ofCalciellis, 187 Wn.2d

127, 145 n.6, 385 P.3d 135(2016)(citing Biirdine v. Johnson, 262 F.3d 336,348(5th

Cir. 2001)(unconscious counsel functionally absent throughout critical stages oftrial

warranted presumption of prejudice); Javor v. United States, 724 F.2d 831, 833 (9th Cir.

1984)(functionally treating sleeping defense counsel as structural error)). As courts have

acknowledged,"[SJleeping counsel is tantamount to no counsel at all." United States v.

DiTommaso,817 F.2d 201,216(2d Cir. 1987).

       The record shows that Savage, who was approximately 78 years old at the time of

trial, injured his knee partway through trial. Lui submitted several declarations from

people present at trial who had concerns about Savage's health and attentiveness, both

before and after counsel's injury. App. to Pers. Restraint Pet. at 5 (Decl. of Celese Lui),

26-27(Decl. of Sione Lui), 28-29(Decl. of Ray Taylor), 30-31 (Decl. of Grant Mattson),

32(Decl. of William Harris), 34(Decl. of Joan Byers). These declarations identify a

number of concerns regarding Savage's mental and physical health, including dozing

during trial, not recalling conversations from interviews, being disoriented, not being

alert, not being engaged, appearing to be in a great deal of pain, and moving and talking

noticeably slower after his accident. In response, the State submitted a declaration from

Savage. State's Resp. to Pers. Restraint Pet., App. C. According to Savage, he never fell

asleep during trial and if he had, it would have been in full view ofthejudge and .
No. 92816-9



prosecutors, none of whom raised a concern. Further, he was attentive during trial, did

not take any narcotic medication after his accident, and had no mental impediment.

       The majority declines to grant a reference hearing to determine if Savage was

functionally absent during critical stages ofthe trial because, in its view, Lui has failed to

establish prejudice. Majority at 9-10. But the question of prejudice is more appropriately

addressed after the reference hearing because the findings offact from such a hearing

could determine whether there is a presumption of prejudice. A reference hearing could

show, consistent with the declarations that Lui submitted, that Savage was functionally

absent throughout critical stages, which may warrant a presumption of prejudice.

       I recognize that a reference hearing on this matter may be difficult in light of

Savage's passing in January 2012. But such a hearing would not be impossible. As

shown by the six declarations that Lui submitted on the matter, there were many

witnesses who can attest to Savage's performance at trial. Further, the superior court

could consider Savage's other cases and how his health impacted his performance and

attentiveness at those trials. For example, another of Savage's clients made similar

allegations of inattentiveness and sleeping during trial in a case after Lui's. See State v.

Huber, No. 67776-4-1(Wash. Ct. App. Dec. 23, 2013)(unpublished),

http://www.courts.wa.gov/opinions/pdfr677764.pdf. Although the Court of Appeals

ultimately dismissed that PRP,the case could provide a useful look into Savage's health

and ability to be an effective advocate at that stage of his career. Given the importance of

effective counsel and the multitude of concerns regarding Savage's health and
No. 92816-9



attentiveness during trial raised in the declarations, ordering a reference hearing on the

matter is appropriate before dismissing Lui's PRP.

       Because the majority dismisses Lui's PRP without first ordering a reference

hearing to further explore the alleged errors, I respectfully dissent.
No. 92816-9
