State v. Emery
161 Wash. App. 172
Wash. Ct. App. U2011Background
- Consolidated appeal of Emery and Olson with convictions for first degree kidnapping, first degree robbery, and two counts of first degree rape.
- Olson moved to sever trials; Emery joined issue only for pretrial severance of charges, not defendants, and later did not support severance during proceedings.
- DNA testing linked Emery and Olson to semen aboard GC; GC positively identified Emery and Olson from photomontages; multiple identifications corroborated.
- Olson challenged suppression of house search; trial proceeded with four counts against both defendants.
- Olson interrupted Emery’s testimony leading to a mistrial motion; court instructed jury to disregard but did not grant mistrial.
- Trial court ruled on severance issues; jury convicted both defendants; Emery appealed on severance, mistrial, and new-trial grounds; Olson appealed on prosecutorial misconduct, sufficiency of evidence of alternate means, and severance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Severance waiver and impact on trial strategy | Emery contends denial of Olson’s severance was error | Olson argues severance was necessary due to antagonistic defenses | Emery waived severance; no reversible error on severance denial |
| Ineffective assistance for failing to seek severance | Emery’s counsel should have moved to sever for prejudice | Joint trial prejudiced Emery due to antagonistic defenses | No deficient performance; no prejudice shown; no reversal |
| Prosecutorial misconduct in closing | State’s closing statements improperly urged verdict | Statements not clearly personal beliefs; context matters; no prejudice shown | No reversible prosecutorial misconduct; no prejudice to verdict |
| Sufficiency of evidence for alternative means (deadly weapon) | Evidence supports both alternative means for robbery and rape | Insufficient proof of actual firearms as weapons | Sufficient evidence supports both means; conviction validated |
| Amended information and probable cause (SAG grounds) | Second amended information violated speedy trial rights; warrant lacked probable cause under Aguilar-Spinelli | Amendment non-prejudicial; corroboration cured deficiencies; probable cause established | Amended information not shown to prejudice; probable cause for warrant properly supported |
Key Cases Cited
- State v. McFarland, 127 Wash.2d 322 (1995) (ineffective assistance framework; Strickland standard applied in WA)
- State v. Grisby, 97 Wash.2d 493 (1982) (mutually antagonistic defenses not per se prejudicial; need specific prejudice)
- State v. Anderson, 153 Wash.App. 417 (2009) (prosecutorial remarks improper; may be cured by instruction if not flagrant)
- State v. Venegas, 155 Wash.App. 507 (2010) (flagrant 'fill in the blank' argument; reversible in some contexts)
- State v. Johnson, 158 Wash.App. 677 (2010) (prosecutorial misstatement; potential for reversible error depending on impact)
- State v. Davis, 152 Wash.2d 647 (2004) (ineffective assistance framework; prejudice required)
- Ortega-Martinez v. State, 124 Wash.2d 702 (1994) (right to unanimous verdict on means; jury unanimity issues)
- State v. Mathe, 35 Wash.App. 572 (1983) (sufficiency of evidence for real firearm when not recovered)
- State v. Maddox, 152 Wash.2d 499 (2004) (probable cause standard; nexus between crime, items, and place)
- State v. Goble, 88 Wash.App. 503 (1997) (probable cause nexus between item seized and place searched)
- State v. Vickers, 148 Wash.2d 91 (2002) ( Aguilar-Spinelli: basis of knowledge and veracity; corroboration possible)