State v. Emery

278 P.3d 653, 174 Wash. 2d 741
CourtWashington Supreme Court
DecidedJune 14, 2012
Docket86033-5
StatusPublished
Cited by999 cases

This text of 278 P.3d 653 (State v. Emery) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Emery, 278 P.3d 653, 174 Wash. 2d 741 (Wash. 2012).

Opinions

Fairhurst, J.

¶1 In this case, we resolve four issues that arose after Anthony Marquise Emery Jr. and Aaron Edward Olson were convicted at a joint trial of first degree kidnapping, first degree robbery, first degree rape, and first degree accomplice rape. They are (1) whether the trial court erred in denying Olson’s motions to sever, and whether Emery’s counsel was ineffective in failing to move for severance; (2) whether the prosecutor’s statements during closing argument constitute misconduct that entitles Emery and Olson to a new trial; (3) whether the trial court erred in denying Emery’s motion for a mistrial based on Olson’s outbursts; and (4) whether Emery is entitled to a new trial based on cumulative error. The Court of Appeals affirmed the convictions, and we affirm the Court of Appeals.

I. FACTS

¶2 On February 27,2006, GC1 was working at Walgreens in Tacoma, Washington. She attempted to leave work shortly after 11:00 p.m., but her key would not open the car door. GC called her boyfriend for help.

[747]*747¶3 As GC turned to go back into Walgreens, two men appeared in the parking lot. A “white guy” pointed a gun at GC’s stomach, and a “Filipino kind of guy” stood by him. 3 Verbatim Report of Proceedings (VRP) at 100. The white guy seized GC’s cell phone and demanded money. When GC said she did not have any money, the white guy ordered her into her car.2 GC dumped the contents of her pockets in the parking lot so her boyfriend would know something had happened to her.

¶4 The white guy ordered GC to drive to a darker parking lot and said, “[Y]ou don’t have any money, so go to the back side because we are going to rape you.” 3 VRP at 112. In an attempt to avoid being raped, GC told the men she was pregnant.3 The white guy then ordered GC to perform oral sex. He pointed the gun at her and said, “[Y]ou have to do it or I’m going to kill you.” 3 VRP at 114.

¶5 The white guy forced GC to perform oral sex on him while the Filipino guy stood outside. After the white guy ejaculated, GC wiped some of his semen on her pants. The Filipino guy then forced GC to perform oral sex on him while the white guy stood outside. After he ejaculated, GC wiped his semen on her smock. The white guy reentered the car and drove GC to a different parking lot where the men got out of the car. As they exited, the white guy said, “ T know where you work. If you say anything, we’re going to kill you.’ ” 4 VRP at 133.

¶6 GC drove to the home of a friend. GC began crying, screaming, and vomiting as she told her friend she had been raped. After her friend’s husband called 911, responding law enforcement officials collected forensic evidence from GC and photographed GC’s vomit in the toilet. GC later [748]*748described her attackers to a forensic sketch artist, who made composite drawings of the two suspects.4

¶7 The police later received a tip that Olson had claimed responsibility for a series of rapes and robberies in the area. The informant said Olson associated with a “Samoan” male who closely resembled the sketch of one of the suspects in GC’s case. Clerk’s Papers (CP) (Olson) at 5. After a records check indicated that Olson and Emery were suspects in a residential burglary, a detective created photomontages that included Emery’s and Olson’s photographs. GC positively identified Emery from the photomontage but was unable to identify the second rapist.

¶8 The State obtained orders to take deoxyribonucleic acid (DNA) samples from Emery and Olson. The Washington State Patrol Crime Lab determined that Olson’s DNA matched the semen on GC’s pants and Emery’s DNA matched the semen on GC’s smock. Emery and Olson were each charged with first degree kidnapping, first degree robbery, first degree rape, and first degree accomplice rape. The case proceeded to trial.

II. PROCEDURAL HISTORY

¶9 Olson moved to sever his trial from Emery’s in a pretrial motion,5 arguing that his mistaken identity defense was mutually antagonistic to Emery’s consent defense. The trial court questioned Emery’s counsel as follows:

[COUNSEL]: We are not providing an alibi defense, Your Honor. [Emery] would testify as to the issue of a weapon, the nonexistence of a weapon.
THE COURT: All right. He will otherwise acknowledge being there.
[749]*749[COUNSEL]: Apparently so, yes, Your Honor.
THE COURT: He is intending to acknowledge some or all of these acts?
[COUNSEL]: Yes, Your Honor. Some of the acts, yes.
THE COURT: With respect to at least the counts that have been severed for this trial, he is going to indicate that Mr. Olson was present?
[COUNSEL]: If he is asked, yes, Your Honor.

1 VRP at 45-46. When further questioned, Emery’s counsel repeated that Emery “would testify that the events occurred, [Olson] was there, and there was no gun.” 1 VRP at 55.

flO The trial court noted that each defendant was charged as a principal and an accomplice actor in the accomplice rape charge and that the evidence would be the same for each defendant. It also noted that Olson was entitled to cross-examine Emery if Emery testified. The trial court then reasoned, “[I]f you believe [Emery], you could still say, but Olson has shown that he wasn’t the other guy. Emery may be right about the gun, but he is wrong about who he was with.” 1 VRP at 56-57. The trial court concluded that Emery’s and Olson’s defenses were not antagonistic and denied Olson’s motion to sever. Olson unsuccessfully renewed his severance motion before the State presented its first witness, and after the State rested its case. Emery’s counsel did not argue in favor of severance.

¶11 The trial lasted eight days. GC testified that she was raped and identified Emery as one of the rapists. GC did not identify Olson, but a State’s witness testified that Emery spent a lot of time with Olson. GC testified that she did not cry during the attack but became hysterical afterward. GC’s friend and two responding police officers also testified that GC was hysterical, screaming, crying, and vomiting after the attack. The State produced video evidence from a security camera that corroborated the first portion of GC’s [750]*750testimony6 and a photograph of GC’s vomit in the toilet. The State also offered the contents of GC’s pockets and the testimony of the officer who found them in the Walgreens parking lot. Finally, the State presented a DNA expert who testified that the DNA profiles collected from GC’s clothes matched those of Emery and Olson. The expert testified that the chance of a random match was 1 in 2.3 to 2.4 quintillion — greater than the total number of people who have ever lived on the planet. 7 VRP at 569.

¶12 Emery testified that he was there, Olson was with him, and GC performed oral sex on them both, but there was no gun and GC was not forced to do anything she did not want to do. Emery testified that he had assumed Olson knew GC. He also testified that he could not hear the conversation between GC and Olson because he was listening to music through headphones. Olson interrupted Emery, saying, ‘You are sitting there lying, man. . . . This is peijury. ...

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Cite This Page — Counsel Stack

Bluebook (online)
278 P.3d 653, 174 Wash. 2d 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-emery-wash-2012.