State Of Washington, V. Thomas P. Leae

• Court: Court of Appeals of Washington
• Decided: July 26, 2021
• Docket: 82531-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 82531-3-I ) Respondent, ) ) DIVISION ONE v. ) ) THOMAS PHILLIP LEAE, ) ) UNPUBLISHED OPINION Appellant. ) )

MANN, C.J. — Thomas Leae appeals his convictions for murder in the first degree

and rendering criminal assistance in the third degree. He argues that insufficient

evidence supports his murder conviction, the prosecutor committed misconduct, a

detective’s testimony was improper opinion and expert testimony, his counsel was

ineffective, and that the discretionary Legal Financial Obligations (LFOs) imposed on

him should be stricken. 1 We remand to strike the discretionary LFOs. We otherwise

affirm.

1 Leae also filed a statement of additional grounds that raises no issues of merit.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 82531-3-I/2

FACTS

The State charged Leae with murder in the first degree and robbery in the first

degree based on the November 25, 2015, murder of Bentley Brookes. The State later

amended the information, adding a charge of rendering criminal assistance in the first

degree. At trial, the State presented testimony from witnesses to establish the following

timeline of events.

Pacific Bullion Precious Metals (Pacific Bullion) is a coin, metal, and jewelry store

in Vancouver, Washington that Brookes owned with his brother. The store had a

camera surveillance system that recorded video, but not audio. The surveillance video

showed Leae entering Pacific Bullion on November 12, 2015, and engaging in a brief

purchase transaction with Brookes. Brookes is seen taking an item from Leae, getting

out his wallet, and then going to the cash drawer.

On November 18, 2015, surveillance video depicts Leae and Ailiana Siufanua at

Pacific Bullion. Brookes spoke with Leae and Siufanua, and purchased something from

them after weighing it.

On the morning of November 25, 2015, Keith West, a silver coins dealer, made

an agreement with Brookes over the phone to sell Brookes some silver coins. West

arrived at Pacific Bullion within an hour of the call, where he discovered Brookes’ body

lying on the floor with a large pool of blood around his head.

When police arrived, they reviewed the Pacific Bullion surveillance footage. The

footage depicts a woman, later identified as Siufanua, enter the store with a backpack.

Siufanua approached the counter, put down the backpack, and pulled out a gun.

Brookes stepped around the counter, trying to reach for the gun, and Siufanua shot him

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in the face. Brookes dropped immediately. Siufanua filled the backpack with items from

the store, stepped over Brookes’s body, and left from the same door from which she

entered.

On November 25, 2015, video footage from a Vancouver C Tran bus showed a

silver Honda Accord with a driver and passenger. Police obtained the partial license

plate “AND84” from the footage. The footage was taken about a minute prior to

Brookes’s murder a block away from Pacific Bullion. The passenger matched

Siufanua’s description from the Pacific Bullion footage. The driver had a “round hair

style, maybe an afro.”

A witness, Chaz Davis, identified Siufanua as a woman he saw near Pacific

Bullion on the day of the murder. He saw an old “blue-ish” or “gray-ish” car pull near the

transit station close to Pacific Bullion, and a woman got out of the car and entered

Pacific Bullion. He described the driver of the car as a male with facial hair and an afro

hair style. After learning of the murder, Davis contacted police.

Police canvassed the local motels, businesses, and pawn shops, and released

an image of Siufanua from the Pacific Bullion footage to the public to help identify the

suspect. During the course of the investigation, police discovered additional sightings of

Leae and Siufanua in the days leading up to the murder. On November 12, 2015,

surveillance footage captured Leae and Siufanua at the Vancouver WinCo. On

November 14, 2015, Leae and a woman checked in a Motel 6 in Kalama, Washington.

The desk clerk, Michelle Shertzer, later identified Leae in a photo montage. On

November 18, 2015, Leae pawned four guitars at Lucky Loan, a pawn shop located

diagonally across the intersection from Pacific Bullion.

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On November 26, 2015, Leae checked into the Motel 6 in Kalama and checked

out the following day. 2 The desk clerk, Courtney Brumitt, who later identified Leae in a

photo montage, said that Leae checked in the motel in the middle of the night, and he

had blood on his hands. The clerk saw him reaching down at his sock, and observed

Leae’s girlfriend waiting out in the parking lot.

On November 30, 2015, Siufanua’s family contacted the police and identified the

suspect in the surveillance video as Siufanua. Siufanua’s father told police that he

spoke with his daughter and Leae that morning and he encouraged her to turn herself

in.

On the evening of November 30, 2015, California highway patrol officers

attempted to stop a speeding silver Honda Accord traveling southbound of Interstate 5.

Police ran the license plate, AND8486, and discovered the car was a stolen vehicle

from Washington. After a high speed chase, the car crashed into a tree between the

northbound lane and an exit ramp at a rest area. Siufanua, the identified passenger,

died at the scene. Leae, the identified driver, suffered a broken leg. Officer John

Rosendale searched Leae at the scene where he discovered Leae’s Washington

driver’s license and about $1,600 in cash on his person.

Leae was transported to the hospital, where Officer Rosendale spoke with him in

the trauma unit. Officer Rosendale advised Leae of his Miranda rights, and Leae

agreed to speak with him. He identified Siufanua as the passenger. He claimed he was

borrowing the Honda Accord, then he said he was in the process of buying the car from

an unidentified friend.

2 Leae’s name was on the motel receipt.

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Washington detectives searched the Honda Accord, discovering coins, jewelry,

various silver items, and a backpack filled with DVD movies, a laptop computer, and a

paystub belonging to Siufanua. Police also recovered a Vancouver WinCo receipt from

November 12, 2015, and Leae’s pay stubs. Brookes’s brother identified a tungsten ring,

a pair of grape shears, a Tiffany pot, a goblet, and a hand mirror as items from Pacific

Bullion from the recovered items. Two precious metal dealers, who frequently sold

precious metals to Brookes, identified plastic bags containing metals, a turquoise ring, a

mirror, scissors, a water pitcher, a chocolate pot, and a tea caddy as items they had

sold to Brookes.

During Leae’s trial, Vancouver Police Detective Lawrence Zapata testified about

how Leae became a suspect. Detective Zapata also testified about the blood splatter

seen on the surveillance video.

The jury found Leae guilty of murder in the first degree (count 1), robbery in the

first degree (count 2), and rendering criminal assistance in the first degree (count 3).

The jury found by special verdict that Leae or an accomplice was armed with a firearm

in the commission of counts 1 and 2. The court found that counts 1 and 2 merged for

sentencing purposes, as robbery was the triggering crime for the felony murder charge.

See RCW 9A.32.030(1)(c).

The court sentenced Leae to 540 months, followed by community custody. The

court determined that Leae would serve this sentence consecutively to his sentence in

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California, where Leae is currently serving 25 years and 8 months to life. 3 Leae

appeals.

ANALYSIS

A. Sufficiency of the Evidence

Leae contends that insufficient evidence supports his conviction for an

accomplice to first degree felony murder. We disagree.

We review if evidence is sufficient in the light most favorable to the prosecution to

determine if any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628

(1980). “A sufficiency challenge admits the truth of the State’s evidence and accepts

the reasonable inferences to be made from it.” State v. O’Neal, 159 Wn.2d 500, 505,

150 P.3d 1121 (2007). Circumstantial and direct evidence carry equal weight on

appeal. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).

The State charged Leae as an accomplice to felony murder with robbery in the

first degree as the predicate offense. A person is guilty of felony murder in the first

degree if they attempt to commit the crime of robbery in the first degree, and in the

furtherance of the crime, they or another participant causes the death of an uninvolved

person. RCW 9A.32.030(1)(c). RCW 9A.08.020(3) states:

(a) A person is an accomplice of another person in the commission of a crime if: (1) With knowledge that it will promote or facilitate the commission of the crime, he or she: (i) Solicits, commands, encourages, or requests such other person to commit it; or

3 Leae was convicted of murder in the second degree, theft of a vehicle, and evading a peace officer for the November 30, 2015, car chase and Siufanua’s death in the crash.

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(ii) Aids or agrees to aid such other person in planning or committing it.

Despite Leae’s argument that he was simply pawning items in the Vancouver

area, the State presented overwhelming evidence that Leae was an accomplice to the

robbery where Siufanua murdered Brookes. The surveillance tape establishes that

Siufanua killed Brookes in the furtherance of the robbery. Leae was in Pacific Bullion

twice in the weeks leading up to the murder, once with Siufanua. On the day of the

murder, the surveillance footage depicted the Honda Accord with a male driver and

passenger matching Siufanua’s description a block away from Pacific Bullion. The day

after the murder, Leae checked into a motel with blood on his hands accompanied by a

woman. Leae’s photo in the photo montage that the hotel clerks used to identify Leae

matches the description of the driver of the Honda Accord from the surveillance tape,

and Davis’s testimony. When police apprehended Leae in California, he had crashed

the Honda Accord seen on the surveillance video, with Siufanua as the passenger, and

the car contained items from Pacific Bullion.

While a large portion of the evidence is circumstantial, it carries the same weight

as direct evidence. When viewing the evidence in the light most favorable to the State,

it is clear that Leae aided Siufanua in robbing Pacific Bullion. Sufficient evidence

supports the jury’s finding that Leae acted as an accomplice.

B. Prosecutorial Misconduct

Leae next argues that the prosecutor committed misconduct during closing

arguments. We disagree.

To demonstrate prosecutorial misconduct, the defendant must prove that the

prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d

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741, 756, 278 P.3d 653 (2012). If the defendant did not object at trial, the error is

waived unless the prosecutor’s conduct was “so flagrant and ill intentioned that an

instruction could not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760. On

appeal, the defendant must demonstrate that (1) no curative instruction would have

obviated any prejudicial effect on the jury and (2) the misconduct resulted in prejudice

that had a substantial likelihood of affected the jury’s verdict. Emery, 174 Wn.2d at 760-

61. “The prosecutor has wide latitude in closing argument to draw reasonable

inferences from the evidence and to express such inferences to the jury.” In re Pers.

Restraint of Davis, 152 Wn.2d 647, 716, 101 P.3d 1 (2004).

1.

Leae contends first that the prosecutor misstated that law of accomplice liability.

The court instructed the jury that in the context of accomplice liability, aid means “all

assistance whether given by words, acts, encouragement, support, or presence. A

person who is present at the scene and ready to assist by his or her presence is aiding

in the commission of the crime.” During closing argument, the prosecutor said

The word aid means all assistance whether given by words, acts, encouragement, support, or presence. It goes on that a person who is present and is willing to assist essentially lending moral support to the principal, the actor, is aiding in the commission of that crime. So you have to—you don’t have to actually do a whole lot. As long as you’re willing, and you’re there to lend moral support, you are aiding in the commission of that crime.[4]

The defense did not object.

Leae contends that this statement by the prosecutor was a misstatement of

accomplice liability. Despite Leae’s contention that the jury could find that Leae aided

4 (Emphasis added.)

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by merely lending moral support, he ignores the fact that the jury was also instructed

that Leae had to “solicit, command, encourage, or request,” or “aid or agree to aid

another person” with the “knowledge that it will promote or facilitate the commission of

the crime.” 5 (Emphasis added). Because moral support with knowledge would be

sufficient to establish Leae was an accomplice to the robbery, the prosecutor did not

misstate the law.

2.

Leae contends next that the prosecutor committed misconduct by arguing facts

not in evidence. During closing, the prosecutor argued

Ailiana Siufanua, like I said, was 18 years old living at home with her parents and her sisters. Never got into trouble. Never had any experience with firearms. They don’t have any guns in their house. Her father Aitu said that he never even fired a gun. So where would she have access to a firearm? Who was she with that would get her access to a firearm? What is—everything points to the defendant. He brought her down here. He was the one that had the car. He has family down here. Okay. And he was the only one who had the opportunity to convince his girlfriend, his 18-year-old gullible girlfriend to commit this horrible crime.

Leae cannot demonstrate that this statement was so flagrant and ill intentioned

that a curative instruction could not cure it, and that this statement affected the jury’s

verdict. While the State agrees that this statement was improper, the jury was

instructed that the attorneys’ arguments were not evidence, and to disregard any

argument unsupported by the evidence. The jury was not required to find that Leae

provided Siufanua with the gun to convict him as an accomplice. Ultimately, Leae

5The jury is presumed to follow the court’s instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).

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cannot demonstrate that any error was incurable by instruction, or that this single point

affected the verdict when there is overwhelming evidence of his involvement in the

crime.

3.

Leae also argues that his counsel was ineffective for failing to object to these

statements made during closing argument. We disagree. Washington follows the

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674

(1984) test to determine if defense’s counsel’s performance was deficient. To

demonstrate ineffective assistance of counsel, a defendant is required to show that: (1)

defense counsel’s representation was deficient, falling below an objective standard of

reasonableness based on consideration of all the circumstances and (2) defense

counsel’s deficient representation prejudiced the defendant. State v. McFarland, 127

Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

We have a strong presumption that counsel’s performance was reasonable.

State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). The defendant must show the

absence of a legitimate strategic or tactical reason supporting the challenged conduct

by counsel. State v. Mannering, 150 Wn.2d 277, 286, 75 P.3d 961 (2003).

Leae cannot demonstrate his counsel was ineffective. Although defense counsel

did not object, this statement was during the State’s closing argument. It is rare for

counsel to object during closing argument, therefore choosing not to object is a

legitimate strategy. Further, counsel’s objection could have brought more attention to

how Siufanua obtained the gun, which was unnecessary for the jury’s determination.

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Because defense counsel had a legitimate strategy by not objecting during closing,

Leae cannot demonstrate his counsel was ineffective.

C. Opinion Testimony

Leae contends that Detective Zapata improperly gave his opinion about Leae’s

guilt. We disagree.

We review a trial court’s evidentiary rulings for an abuse of discretion. Gilmore v.

Jefferson County Pub. Transp. Benefit Area, 190 Wn.2d 483, 494, 415 P.3d 212 (2018).

The trial court abuses its discretion when a decision is manifestly unreasonable or

based on untenable grounds. Gilmore, 190 Wn.2d at 494.

In general, no witness, lay or expert, may offer an opinion about the defendant’s

guilt, whether by direct statement or inference. City of Seattle v. Heatley, 70 Wn. App.

573, 577, 854 P.2d 658 (1993). “However, testimony that is not a direct comment on

the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and

is based on inferences from the evidence is not improper opinion testimony.” Heatley,

70 Wn. App. at 578.

Detective Zapata testified that Leae became a suspect in mid-December. The

State then asked “what do you base your progression of the case on when you

determine that he was now a suspect in this case? . . . What evidence did you have?”

Defense counsel objected. The court sustained the objection, allowing the State to

“rephrase your question as to what prompted him to make a decision and become a

suspect.” Over objections by defense, Detective Zapata discussed the factors that led

police to discovering Leae’s involvement: the video footage, the car, and the items

discovered in the car. The court addressed defense’s concern, stating Detective Zapata

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is “not going to state on the record that he believe[s] Mr. Leae is guilty. He merely is

commenting on the videos and factors that led him to become a suspect. That’s it.

We’re not going any farther than that.”

Later, the prosecutor asked if Detective Zapata was able to determine whether

Siufanua was acting alone, and Detective Zapata said “we were able to determine she

was not acting alone.” Defense objected and moved to strike. The court ultimately

rejected defense’s contention that this was opinion testimony, reasoning that

“[t]estimony that is not a direct comment on the defendant’s guilt or on the veracity of a

witness is otherwise helpful to the jury. And it’s based upon inferences from the

evidence. It is not improper opinion testimony.” The court sustained the objection after

asking the State to rephrase the question: “But as you asked it, during the course of the

investigation, did you determine, somewhat of [an] opinion conclusion. Rephrase it to

include the facts. Sustained on that basis alone.”

Leae cannot demonstrate that the court abused its discretion in allowing the

State to elicit this testimony from Detective Zapata. Despite Leae’s claim that Detective

Zapata testified that Leae was the guilty accomplice, Detective Zapata’s testimony was

merely connecting the facts of the investigation for the jury. Explaining why someone

became a person of interest, and how the police came to realize that Siufanua had an

accomplice is not improper opinion testimony. The trial court carefully directed the

State to ask questions in a way that would not elicit opinion testimony, and cured any

potential error through the rephrased questions. Leae cannot demonstrate the court

erred.

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D. Blood Splatter Testimony

Leae next argues that Detective Zapata’s testimony about blood splatter should

have been excluded because he was not qualified as an expert witness. We disagree.

The trial court has wide discretion to determine the admissibility of evidence and

we will not disturb the trial court’s evidentiary decision absent an abuse of discretion.

State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). Under ER 701, a lay

witness may testify to “inferences which are (a) rationally based on the perception of the

witness, [and] (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.”

At trial, Detective Zapata testified about the blood seen on the Pacific Bullion

surveillance footage, and if it was likely that Siufanua would have gotten any blood on

her shoes or clothing. The defense did not object to this line of questioning until

Detective Zapata was asked if he was surprised that police were never able to locate

the clothing Siufanua wore at the time of the murder. Because Leae raises this issue

for the first time on appeal, and does not contend it is manifest error affecting a

constitutional right, we need not consider this argument. RAP 2.5; McFarland, 127

Wn.2d at 332-33 (we do not consider issues raised for the first time on appeal).

Leae also argues that his counsel was deficient for failing to object to Detective

Zapata’s testimony about blood splatter. Despite Leae’s contention that Detective

Zapata improperly testified as an expert lacking foundation, this testimony was

permissible under ER 701. Detective Zapata had been a detective for 19 years at the

time of trial, 10 of those years as a major crimes detective mainly working homicides.

His testimony regarding blood splatter was inferred from his perspective as a detective

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as to why Siufanua may or may not have gotten the victim’s blood on her shoes or

clothing. The comments he made regarding blood patterns were to illustrate to the jury

what they were seeing on the video, and how Detective Zapata formulated his opinion.

Because Detective Zapata’s testimony was permissible under ER 701, Leae cannot

demonstrate that his counsel acted below an objective standard of reasonableness by

not objecting. See McFarland, 127 Wn.2d at 334-35.

E. Discretionary LFOs

Leae argues that the court erred by imposing discretionary LFOs. The State

concedes. We accept the State’s concession.

The trial court found Leae indigent and waived all waivable fees, fines, and

interest. The court imposed community custody supervision fees and stated that the

LFOs would bear interest from the date of judgment to the date of payment in full. 6

Courts shall not impose discretionary costs on defendants who have been found

indigent. RCW 10.01.160(3); State v. Ramirez, 191 Wn.2d 732, 748, 426 P.3d 714

(2018). Supervision fees are discretionary LFOs. State v. Dillon, 12 Wn. App. 2d 133,

152, 456 P.3d 1199 (2020). “As of June 7, 2018, no interest shall accrue on

nonrestitution legal financial obligations.” RCW 10.82.090(1). We remand to the trial

court to strike the community custody supervision fees and interest accrual provision. 7

6 While Leae notes that the court imposed a $500 victim assessment fee, that fee is a mandatory LFO. 7We also remand for the trial court to strike the references from the judgment and sentence about the robbery as the robbery conviction was properly merged with the murder conviction for sentencing purposes.

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Affirmed.

WE CONCUR:

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