INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter ofthe Personal Restraint of SIONEP. LUI, Petitioner. No. 72478-9-1 o DIVISION ONE UNPUBLISHED OPINION u> FILED: January 19, 2016 od -;: Appelwick, J. — Lui filed this personal restraint petition challenging his conviction for murder in the second degree. He seeks a new trial based on ineffective assistance of counsel, violations of his rights of due process and religious freedom, and prosecutorial and juror misconduct. In a supplement to his petition, he argues for relief on the basis of newly discovered evidence. Because Lui fails to establish anyground for relief, we deny his petition.
FACTS On February 9, 2001, detectives found the body of Elaina Boussiacos, Sione Lui's fiancee, in the trunk of her car in a parking lot. State v. Lui, 179 Wn.2d 457, 463-64, 315 P.3d 493, cert, denied, 134 S. Ct. 2842, 189 L. Ed. 2d 810 (2014). She had been strangled. \± at465. In2007, detectives reviewing cold cases interviewed Lui again, ultimately charging him with murder in the 

### second degree. Id. at 464. The late defense attorney Anthony Savage represented Luiattrial.No. 72478-9-1/2 At trial, the State called as a witness a "dog track" expert, who testified that after smelling an article of Lui's clothing, bloodhounds followed a scent trail from the parking lotwhere Boussiacos's carwas found back to Lui's house. Id. Deputy Denny Gulla, a detectivewho worked on Boussiacos's case, also testified aboutthe dog trackevidence. The State presented DNA(deoxyribonucleic acid) evidence, along with circumstantial evidencethat Boussiacos wanted to end their volatile relationship and that Luihad motive and opportunity to kill her. Lui, 153 Wn. App. at 310-13. The State called witnesses who placed Boussiacos's carin the parking lot as early as Saturday, the day before she was reported missing and nearly a week before police discovered her body. The prosecutor also attacked Lui's credibility, noting, for example, that he gave friends several different accounts of his and Boussiacos's relationship and denied having sexual intercourse with Boussiacos despite DNA evidence suggesting the contrary. State v. Lui, 153 Wn. App. 304, 312-13, 221 P.3d 948 (2009), affd, 179 Wn.2d 457, 315 P.3d 493 (2014), cert, denied. 134 S. Ct. 2842, 189 L. Ed. 2d 810 (2014).The defense theory was that Boussiacos left the home on Saturday 

### morning and was killed by an unknown perpetrator. Counsel called Lui's friend Sam Taumoefolau, who testified that Boussiacos's carwas not inthe parking lot when he and Lui posted flyers in the area a few days after Boussiacos 

### disappeared. Defense counsel cast doubt on the DNA and other forensic evidence. A juryconvicted Lui as charged. Lui, 179Wn.2d at 466.No. 72478-9-1/3


### Lui appealed to this court, which affirmed. Lui, 153 Wn. App. at 325. In 2014, ourSupreme Courtaffirmed, transferring Lui's personal restraintpetition to this court. Lui, 179 Wn.2d at 498. On June 23, 2014, the U.S. Supreme Court denied certiorari. Lui v. Washington. U.S. , 134 S. Ct. 2842, 189 L. Ed. 2d 810(2014). DISCUSSION Inorderto obtain collateral reliefby means of a personal restraint petition, Luimustdemonstrate eitheran errorofconstitutional magnitudethatgives riseto actual prejudice or a nonconstitutional errorthat "inherently results in a complete miscarriage ofjustice." In re Pers. Restraint ofCook. 114 Wn.2d 802, 813, 792 P.2d 506 (1990). If a petitionermakes a primafacie showing ofactual prejudice, but the reviewing court cannot determine the merits ofthe claims solely on the record, the courtshould remand for a full hearing on the merits or for a reference hearing under RAP 16.11(a) and RAP 16.12. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992). But "[tjhis does not mean thatevery set ofallegations which is not meritless on its face entitles a petitionerto a reference hearing. Bald assertions and conclusory allegations will not supportthe holding 

### of a hearing." jd. 886. A petitioner "must state with particularity facts which, if proven, would entitle him to relief and must show that he has "competent, admissible evidence" to establish thosefacts. Jd.
I. Ineffective Assistance ofCounsel In his petition, Luiclaims thattrial counsel Savage's deficientperformance violated his constitutional right to effective assistance ofcounsel. To prevail on aNo. 72478-9-1/4


### claim of ineffective assistance, Lui must show both that (1) his attorney's representation fell below an objective standard of reasonableness, and (2) resulting prejudice, that is, a reasonable probability that the result of the trial would have been different absent the deficient performance. Strickland v. Washington. 466 U.S. 668, 687-88, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

### (1984). The reviewing court "must make every effort to eliminate the distorting effects ofhindsightand must stronglypresumethatcounsel's conductconstituted sound trial strategy." Rice. 118Wn.2d at 888-89. Ifone ofthe two prongs ofthe test is absent, we need not inquirefurther. Strickland, 466 U.S. at697. Luimakes several allegations of "general problems" with defense counsel. He alleges that Savage "was notalways alert" and "dozed offseveraltimes." Lui contends that "Mr. Savage had a falling accident that caused him to deteriorate significantly, both mentally and physically." Luiargues thatthese problems led to
errors during trial. But, as Savage pointed out in a declaration, the trial judge was in an excellent position to observe counsel during this lengthy trial. Yet there is no indication inthe record ofanyconcern on thejudge's partthatSavagewas falling asleep or not alertenough to be effective. And, contrary to Lui's contention, the court's decision to recess early one day during trial to allow Savage to seek treatmentfor a knee injurydoes not supporta claim ofineffective assistance. 

### Next, Lui faults Savage for failing to challenge the State's theory ofthe
case. He asserts that Savagefailed to properly interview and then call to testify several witnesses to impeach the State's witnesses. Lui contends thatNo. 72478-9-1/5


### WoodinvilleAthletic ClubemployeeAmber Mathwig could have testified that she did not see the victim's car in the parking lot until the Wednesday after Boussiacos disappeared, contrary to another witness's testimony that the car 

### was inthe lotas early as Saturday morning. He argues that Lui's friend, Paul Finau, and Lui's sister, Falepaini Harris, would have also testified that they did not see the car early in the week, and that they could have corroborated Sam Taumoefolau's testimony about posting missing person flyers in the area ofthe dog search. Lui argues further that the defense should have presented its own expert witness on dog tracking, as Lui's family wished, in order to impeach the State's expert. Generally, the decision to call witnesses is a matterof trial tactics thatwill notsupportan ineffective assistance claim. State v. Bvrd, 30Wn. App. 794, 799, 638 P.2d 601 (1981). As he states in his declaration, counsel made a strategic decision to follow his "general philosophy that it is preferable to explain circumstances ratherthan to directly confrontthem." Inthis case, ratherthan set up a directconfrontation by denying the possibilitythatthe dog tracked Lui's path from Boussiacos's car to his home, counsel explained that the dog tracked the scentthat Lui left inthe area while posting flyers. The decision to avoid a "clash of experts" is consistent with reasonable trial strategy. In re Pers. Restraint of Khan. No. 89657-7, slip op. at 13 (Wash. Nov. 25, 2015). Moreover, Mathwig 

### told Savage beforetestifying thatshe had seen the carinthe lot on Monday and again on Wednesday. This information contradicted the defense investigator's notes which reported that she first saw the car on Wednesday. This was notNo. 72478-9-1/6
favorable to the defense. It was not objectively unreasonable for Savage to decide not to presentwitnesses whose testimonywould befavorable to the State
orwhosetestimonywould, atbest, attemptto prove a negative. Lui alleges further that Savage was ineffective for failing to present 

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

### introducing evidencethat Boussiacos's ex-husband committedthe crime, and for failing to "aggressively pursue[ ] impeachment information" about Deputy Gulla.
He establishes none ofthese claims. 

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

### the possibilitythat Boussiacos was strangled with some kind of ligature. He stated that an argumentthat Lui would not have had the strength to stranglethe much smaller Boussiacos "seemed tenuous, at best." Rather than help, he 

### viewed it as another example of evidence that could hurt by diminishing the
defense case. 

### Savage made a reasonable strategic decision that a profferBoussiacos's of ex-husband Negron as another suspect "was not legally colorable under current case law," and, "even ifadmitted [that evidence] could have diminished 

### the defense case." Savage noted that Negron had an alibi, DNAevidence on a shoelace could have come from either Negron or the son he had with Boussiacos, and no evidence suggested a motive forkilling his son's mother. 

### Finally, Lui does not show either deficient performance or prejudice 

### related toSavage's allegedfailureto impeach Gulla'scredibility. Beforetrial, the State moved to exclude evidence of disciplinary actions against Gulla. LuiNo. 72478-9-1/7


### argues that "Gulla's tenuous status with [King County Sheriff's Office] goes directly to his motivation to trump up a case against Lui." He contends that Savage should have impeached Gulla for bias as well as previous dishonesty. But, as Savage knew, findings of Gulla's misconduct that were related to 

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


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

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

### overlookor ignore Gulla's past misconduct. Savageexpressly put the court and the prosecutor on notice that if the State attempted to portray Gulla as 

### particularly experienced orexpert, Savage would consider the door opened to Gulla's entire history. Lui counters that "[i]fthat was indeed Savage's strategy then hefailed miserablyin pursuingit," given his ownquestionsthatelicitedfacts 

### about Gulla's training and experience. But, Lui does not show how Savage's decisions fell below an objectivestandard ofreasonableness or prejudicedhim. 

### Mattersthat go totrial strategy or tactics do not showdeficientperformance, and Lui bearsthe burden of establishing there were nolegitimate strategic or tactical
reasons behind his attorney's choices. State v. Rainev, 107Wn. App. 129, 135- 

### 36, 28P.3d10(2001). Lui's speculationandconjecturebased onGulla'salleged actions inother matters, without more, does not meet that burden or overcome 

### thepresumptionthat counsel's strategic decisionsinhiscasewere reasonable. Lui also claims that Savage was ineffectiveforfailing to object to several instances of alleged prosecutorial misconduct. He asserts that "the prosecutor 

### argued, without evidence, that thedefendant committed a sexual assault." HeNo. 72478-9-1/8

argues that the State elicited opinion testimony from officers that Lui lied, and thathe "showed his guilt by failing to act like an aggrieved fiancee [sic]." And, he alleges that the prosecutor violated Lui's constitutional rights by questioning Taumoefolau aboutthe Mormon religious beliefs he and Luishared. The decision to object, or to refrain from objecting even iftestimony is not admissible, is a tactical decision not to highlightthe evidenceto thejury. Statev. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). "Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence ofcounseljustifying reversal." jd, Lui maintained that he had not had sexwith Boussiacos for weeks, a claim contradicted by evidence of Lui's DNA on Boussiacos's underwear and in the vaginal wash taken from 

### Boussiacos's body. Lui, 179 Wn.2d at 466; Lui, 153 Wn. App. at 312. Refraining from lodging an objection that could have highlighted the inconsistencies between Lui's statements and the evidence was a reasonable tactical decision. 

### While Savage did not objectto the detectives' testimony about Lui's truthfulness and response to news ofthe victim's death, Savage impeached the detectives' conclusions and inconsistentstatementsduring cross-examination. 

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

### does not show how he suffered prejudice from Savage's failure to objectto the State's questions to Taumoefolau. The Washington Constitution guaranteesthat
no person shall "be questioned in any court ofjustice touching his religious 

### beliefs to affect the weight of his testimony." Wash. Const, art. I, § 11. Here, the State's questions highlighted an area of disagreement between Lui and

8No. 72478-9-1/9


### Boussiacos and were relevantto Lui's activities during the weekend Boussiacos disappeared. Theydid not touch on Taumoefolau's "religious beliefsto affectthe weight of his testimony." Id. And, contrary to Lui's assertion, they were not analogous to the prosecutor's improper injection ofracial stereotypes inState v. Monday. 171 Wn.2d 667, 257 P.3d 551 (2011). Finally, Lui contends that counsel was ineffective for failing to request additional DNA testing. In his declaration, however, Savage describes a reasonable tactical decision: The DNA testing and results provided by the State indicated the presence of the defendant's semen in the victim's vagina and underwear. Partial profiles ofthe victim's husband and/orson were also detected on the victim's shoes. The presence of unidentified male profiles in any ofthese samples allowed me to argue thatwe don't know who else had been in contact with the victim (thus leaving behind his unidentified DNA profile) and, therefore, a reasonable doubt existed as to who killed her. Had I taken additional steps to have the unidentified DNA results further analyzed, there was a high probability that none of them would have matched each other, thereby weakening the argument that the unidentified male profiles belongedto the real killer. Ifthe blood on the stick shift and the unidentified male profiles on the steering wheel, vaginal swabs, and the shoe laces did not match one another, then any argument that another person committed this crimewould be severelyweakened. Lui does not establish any claim ofineffective assistance.
II. Prosecutorial Misconduct 

### Next, Lui contendsthatprosecutorial misconductviolated his constitutional 

### rights. He raises an argument under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), that the prosecution violated his due process 

### rights by failing to provide impeachment information about Gulla. And, heNo. 72478-9-1/10 

### maintains that the prosecutor's questions about Taumoefolau's religion violated Lui'sconstitutional rights. 

### In Brady,the United States Supreme Court held that due process requires the State to disclose evidence that is favorable to the defendant and material 

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

### evidence. State v. Knutson. 121 Wn.2d 766, 771-72, 854 P.2d 617 (1993). Evidence is material ifthere is a "'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" id. at 772 (quoting Rjce, 118 Wn.2d at 887). "'Wrapped up in this standard of materiality are issues of admissibility; if evidence is neither admissible nor likely to lead to admissible evidence[,] it is unlikelythatdisclosure 

### of the evidencecould affectthe outcome of a proceeding.'" jd. at 773. Here, Lui does not show a reasonable probability that even admissible evidence about 

### Gulla's alleged past misconduct would have changed the outcome of the trial. Because he does not show that the additional evidence was material, he does notestablish grounds for reliefunderBrady. 

### Defense counsel did not object to the prosecutor's allegedly improper questions about religion. Therefore, Lui has waived this claim oferror unless he
can show that the prosecutor committed misconductthatwas "so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice." State v. Emery. 174Wn.2d 741, 760-61, 278 Wn.3d 653 (2012). Luimust show both (1) that "no curative instructionwould have obviated any prejudicial effecton thejury" and (2) thatthe misconduct resulted in prejudice that "had a substantial

10No. 72478-9-1/11
likelihood ofaffecting thejuryverdict." Statev. Thorgerson, 172Wn.2d 438, 455, 258 P.3d 43 (2011). Because Luishows neither, his claimfails.

III. Juror Misconduct Lui also alleges thatjurormisconductviolated his constitutional right to an impartial jury. He presents a declaration from investigator Denise Scaffidi, in which Scaffidi reported that she learned from juror Clare Comins that the jury considered extrinsic information based on one juror's purported personal knowledge of the area around the crime scene. According to Scaffidi, Comins stated that during deliberations, a female juror said that Lui and Taumoefolau could not have placed leaflets at the mall inWoodinville because that mall had not yet been built. Scaffidi alleges that Comins believed that "jurors discussed 

### this information during deliberations and that it reflected poorly on Mr. Taumoefolau's testimony." However, Comins refused to sign a declaration to that effect. The trial court denied defense counsel's request for access to the 

### otherjurors' contactinformation. Lui argues thatthis courtshould remand for an evidentiary hearing for purposes of questioning all the jurors about Comins's

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

### unbiased and unprejudicedjury. State v. Jackson, 75 Wn. App. 537, 543, 879 P.2d 307 (1994). Jurors are expected to bring their opinions, insights, common 

### sense, and everyday life experiences to their deliberations. State v. Briggs, 55 Wn. App. 44, 58, 776 P.2d 1347 (1989). Ajuror's introduction ofspecialized or expert knowledge, however, may be grounds for a new trial, jd. at 59.

11No. 72478-9-1/12 Generally, however, in evaluating a claim ofjuror misconduct, a court may not consider matters that inhere in the verdict. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989). This includes the mental processes, both individual and collective, by which jurors reach their conclusions, jd. at 777-78. Even if Comins or otherjurors were willing and available to submit declarations, their statements would likely be inadmissible as pertaining to matters inhering in the verdict. And, the alleged statements themselves are based on the juror's everyday life experiences, not the product of specialized knowledge or outside

sources. An evidentiary hearing is not warranted in a collateral challenge ifthe defendant fails to allege facts that establish prejudice. Rice, 118 Wn.2d at 889. Here, the alleged extrinsic evidence may impeach one portion ofTaumoefolau's testimony. But, it does not tend to disprove the defense theory that Lui and Taumoefolau posted flyers nearwhere the victim's body was found and thatthis explains why bloodhounds tracked Lui's scent in the area. Therefore, Luidoes not showactual prejudice. He fails toestablishgrounds for relief.

IV. Newly Discovered Evidence In 2001, crime scene investigators found a blood stain on the stick shift "skirt" of Boussiacos's car. Two years aftertrial, in2010, the Washington State 

### Patrol Crime Laboratory matched the DNA from this blood sample to Sandro M. Enciso, who laterchanged his name to Alesandro Biagi. On November4, 2013, police questioned Biagi.

12No. 72478-9-1/13 

### Biagi had moved to Washington around 1992. He held a number ofjobs inthe Seattle area, mostly related to automobiles. Heworked atdealerships and auto detailing shops, and also had a side business buying, detailing, and selling
cars on his own. When detectives showed Biagi a picture ofBoussiacos, he was "100 percent" certain he had seen her somewhere before, but could not say where. He denied murdering her. In a later conversation with a detective, he opined that he probably worked on hercar. He stated that he did not recognize Lui. In a supplement to his personal restraint petition, Lui contends that evidence of the DNA match is grounds for a new trial. He argues that the evidence "is certainly material because it points to a specific, alternate perpetrator" who "has no innocent explanation" for leaving his blood in Boussiacos's car. Newly discovered evidence is grounds for relief in a personal restraint petition ifthosefacts, "inthe interestofjustice," require vacation ofthe conviction
or sentence. RAP 16.4(c)(3). To warrant this relief, this evidence would have been admissible at trial and would have probably changed the outcome. In re Pers. Restraint ofJeffries. 114Wn.2d 485, 493, 789 P.2d 731 (1990). To prevail here, Luimustshowthatthe evidence: "'(1) will probablychangethe resultofthe trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise ofdue diligence; (4) is material; and (5) is not merely cumulative or impeaching.'" In re Pers. Restraint of Lord, 123 Wn.2d 296, 319- 20, 868 P.2d 835 (1994) (quoting Statev. Williams. 96 Wn.2d 215, 223, 634 P.2d

13No. 72478-9-1/14


### 868 (1981)). The absence of any oneofthesefivefactorsjustifies the denial of a new trial. Statev. Macon. 128 Wn.2d 784, 800, 911 P.2d 1004 (1996). Washington courts have long followed the rule that in order to present evidence suggesting another suspect committed the charged offense, the 

### defendant must show "such a train offacts or circumstances as tend clearly to point out some one besides the prisoner as the guilty party." State v. Downs. 168 Wash. 664, 667, 13 P.2d 1 (1932). In other words, "some combination of facts or circumstances must point to a nonspeculative link between the other suspect and the charged crime." State v. Franklin. 180 Wn.2d 371, 381, 325 P.3d 159 (2014). "Mere evidence of motive in another party, or motive coupled with threats of such other person, is inadmissible, unless coupled with other evidencetending to connect such otherperson withthe actual commission ofthe crime charged." State v. Kwan. 174 Wash. 528, 533, 25 P.2d 104 (1933). The evidence must show "some step taken by the third party that indicates an intention to act" on the motive or opportunity. State v. Rehak, 67 Wn. App. 157, 163, 834 P.2d 651 (1992). The defendant must lay a foundation establishing a clear nexus between the other person and the crime. State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993). The defendant bears the burden of 

### showing that the other suspect evidence is admissible. State v. Pacheco, 107 Wn.2d 59, 67, 726 P.2d 981 (1986). Lui does not carry this burden here. He establishes no nexus between 

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

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

14No. 72478-9-1/15
that this "other suspect" DNA evidence is admissible, he cannot show that it would have changed the outcome of his trial. For the same reason, he does not 

### establish his claim that Savage was ineffective for not seeking additional DNA testing. Speculation and conjecture based upon a small amount of DNA deposited inthe victim's carby a person who has held several Seattle-areajobs selling and detailing automobiles does not justify reliefhere. Wedenythe petition.

WE CONCUR:



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