In re Lui

• Decision Date: 22 June 2017
• Docket Number: No. 92816-9,92816-9
• Citation: 397 P.3d 90,188 Wash.2d 525
• Court: Washington Supreme Court
• Parties: In the MATTER OF the Personal Restraint of Sione P. LUI, Petitioner.

188 Wash.2d 525

397 P.3d 90

In the MATTER OF the Personal Restraint of Sione P. LUI, Petitioner.

No. 92816-9

Supreme Court of Washington.

Argued Feb. 2, 2017

Filed June 22, 2017

David B. Zuckerman, Attorney at Law, 705 2nd Ave., Ste. 1300, Seattle, WA, 98104-1797, for Petitioner.

James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave., W554 King County Courthouse, Seattle, WA, 98104-2385, for Respondent.

González, J.¶1 Petitioner Sione P. Lui challenges his conviction for the second degree murder of his fiancée, Elaina Boussiacos.¹ He seeks a new trial based on allegations of ineffective assistance of counsel, prosecutorial misconduct, Brady² nondisclosure, jury misconduct, and newly discovered evidence. The Court of Appeals dismissed each claim as meritless and denied Lui's request for a reference hearing. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 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.

¶3 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 afternoon³ and reaffirmed, albeit less resolutely, the following Friday that she was "probably" going to break up with Lui and was looking forward to being single again, 5 Report of Proceedings (RP) at 539. Boussiacos was last seen alive that Friday evening.

¶4 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.

¶5 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.

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

¶7 Boussiacos's suitcase and travel bag⁴ were found with her in the car. At trial, the State focused on the unusual way Boussiacos's travel bag was packed and missing typical travel items, which suggested, according to the State, that someone else probably packed it for her in haste. Notably, even though Boussiacos typically wore makeup when she went out in public, her makeup bag was not in either her suitcase or travel bag. Instead, loose in her travel bag were a hairbrush, deodorant, a hairdryer, a nearly empty bottle of hair gel, a second uncapped bottle of hair gel, an uncapped bottle of liquid makeup foundation, a compact of bronze makeup powder, a large bottle of lotion, a large bottle of nail polish remover, and several makeup brushes. There was no toothbrush or nail polish. In contrast, her suitcase was very neatly packed. It contained folded clothes, sandals, black boots, tennis shoes, and a small bottle of lotion.

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

¶9 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.

¶10 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.

¶11 After five hours of deliberations, the jury convicted Lui of second degree murder. Lui timely filed this personal restraint petition,⁵ claiming he is entitled to a new trial, or at least a reference hearing, because (1) Savage provided ineffective assistance, (2) the State failed to disclose internal police disciplinary records in violation of Brady , (3) the jury improperly considered extrinsic evidence, and (4) the parties acquired newly discovered DNA evidence. The Court of Appeals denied each claim.

In re Pers. Re straint of Lui , No. 72478-9-I, 2016 WL 234365 (Wash. Ct. App. Jan. 19, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/724789.pdf. Lui sought review in this court, which we granted. In re Pers. Restraint of Lui , 186 Wash.2d 1008, 380 P.3d 504 (2016). We now affirm.

ANALYSIS

I. Ineffective Assistance of Counsel and Related Prosecutorial Misconduct Claims

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

¶13 We review ineffective assistance of counsel claims de novo. State v. Sutherby , 165 Wash.2d 870, 883, 204 P.3d 916 (2009) (citing In re Pers. Restraint of Fleming , 142 Wash.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 Crace , 174 Wash.2d 835, 846-47, 280 P.3d 1102 (2012) ("[I]f a personal restraint petitioner makes a successful ineffective assistance of counsel claim, he has necessarily met his burden to show actual and substantial prejudice."). To prevail, Lui must prove counsel's performance fell below an objective standard of reasonableness in light of all the circumstances and that in the absence of counsel's deficiencies, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). "It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.’ " Harrington v. Richter , 562 U.S. 86, 104, 131 S.Ct....