State v. Emery
| Decision Date | 14 June 2012 |
| Docket Number | No. 86033–5.,86033–5. |
| Citation | 278 P.3d 653,174 Wash.2d 741 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Anthony Marquise EMERY, Jr., Petitioner. State of Washington, Respondent, v. Aaron Edward Olson, Petitioner. |
OPINION TEXT STARTS HERE
Valerie Marushige, Attorney at Law, Kent, WA, Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Petitioners.
Thomas Charles Roberts, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.
[174 Wash.2d 746]¶ 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.
¶ 2 On February 27, 2006, GC 1 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.
[174 Wash.2d 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, “ ” 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 described 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.
¶ 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:
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.
¶ 10 The trial court noted that each defendant was charged as a principal and 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, 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 testimony 6 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 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, 8 VRP at 693. The trial court excused the jury and cautioned Olson that he could be removed. Emery unsuccessfully moved for a mistrial. The trial court instructed the jury to disregard Olson's comments. Olson interrupted Emery again later, saying, 8 VRP at 708. The court stated, “Mr. Olson, not another outburst, sir.” Id.
¶ 13 Olson testified that he and Emery were friends but he “was not there that night.” 8 VRP at 733. He testified that he was at home with a foot injury and implied the DNA evidence linking him to GC was the result of laboratory error.
¶ 14 The prosecutor made the following statements in closing:
[I]n order for you to find the defendant not guilty, you have to ask yourselves or you'd have to say, quote, I doubt the defendantis guilty, and my reason is blank. A doubt for which a reason exists. If you think that you have a doubt, you must fill in that blank.7
....
I want to talk to you right now [about] a Latin term, “verdictum.” The Latin term “verdictum” I'm told is the Latin root for the English word “verdict.” The literal translation of “verdictum” into the English language is to speak the truth. Your verdict should speak the truth.
In this case, the truth of the matter, the truth of these charges, are that Aaron Olson is guilty of Robbery in the First Degree, Kidnap in the First Degree, ... and Rape in the First Degree, which is the same for Tony Emery, for the offenses that he committed on February 27th, 2006, against [GC].
Members of the jury, I ask you, go back there to deliberate, consider the evidence, use your life experience and common sense, and speak the truth by holding these men accountable for what they did.
9 VRP at 830–32. Neither Emery nor Olson objected to the prosecutor's statements.
¶ 15 The jury convicted Emery and Olson of all charges. Emery unsuccessfully moved for a new trial based on the trial court's denial of Olson's motion to sever and his own motion for a mistrial. Emery and Olson appealed to Division Two of the Court of Appeals and the court affirmed their convictions. State v. Emery, 161 Wash.App. 172, 253 P.3d 413 (2011). Each defendant filed a separate petition for review, and we granted every issue in each petition. State v. Emery, 172 Wash.2d 1014, 262 P.3d 63 (2011).
¶ 16 A. Did the trial court abuse its discretion in denying Olson's motions to sever...
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Table of Cases
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