State v. Emery, 174 Wash. 2d 741

Emery and Olson were charged and tried jointly in Washington Supreme Court for first degree kidnapping, first degree robbery, first degree rape, and first degree accomplice rape based on GC's attack February 27, 2006 in Tacoma.
GC testified she was raped by two men after being abducted from Walgreens; Emery identified as one attacker; Olson's involvement was not directly identified by GC but DNA connected him to semen found with GC.
DNA analysis linked Olson to semen on GC's pants and Emery to semen on GC's smock; photomontage led GC to identify Emery; Olson claimed he was not there.
Olson moved pretrial to sever to avoid antagonistic defenses; trial court denied, noting defenses could be separated and Olson could cross-examine Emery.
Trial evidence included surveillance video, GC's identification, an eyewitness' testimony of Emery's association with Olson, and strong DNA evidence; GC's demeanor and recovered items from the parking lot corroborated the assault.
Convictions were entered; Emery moved for a new trial unsuccessfully; Court of Appeals affirmed; Washington Supreme Court granted review on severance, ineffective assistance, prosecutorial misconduct, mistrial, and cumulative error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the court abuse its discretion denying severance and was Emery's counsel ineffective for not seeking severance?	Olson contends antagonistic defenses require severance.	Emery argues no abuse; severance not required or strategically necessary.	No abuse; no prejudice shown; severance denied.
Do prosecutorial closing remarks constitute misconduct warranting a new trial?	Emery and Olson contend improper fill-in-the-blank and truth statements undermined presumption of innocence.	State asserts remarks were improper but curable and not prejudicial.	Misconduct occurred but did not warrant a new trial.
Did the court err in denying Emery's motion for a mistrial due to Olson's outbursts?	Olson's outbursts prejudiced Emery; merits mistrial.	Outbursts were limited, cumulative, and curable by instruction.	No abuse of discretion; mistrial denied.
Is Emery entitled to a new trial based on cumulative error?	Cumulative errors require reversal.	No single or cumulative substantial prejudice shown.	Emery not entitled to a new trial on cumulative error.

State v. Hoffman, 116 Wash.2d 51, 804 P.2d 577 (1991) (abuse of discretion standard for severance; high court guidance)
State v. Grisby, 97 Wash.2d 493, 647 P.2d 6 (1982) (mutually antagonistic defenses may be non-per se prejudicial; need specific prejudice)
State v. Warren, 165 Wash.2d 17, 195 P.3d 940 (2008) (prosecutorial misstatements about burden of proof cured by instruction; harmless error framework)
State v. Thorgerson, 172 Wash.2d 438, 258 P.3d 43 (2011) (prosecutorial misconduct standard; two-step prejudice analysis)
State v. Camara, 113 Wash.2d 631, 781 P.2d 483 (1989) (burden of proof not shifted to defense; improper arguments misstate burden)
In re Winship, 397 U.S. 358 (1970) (standard of proof beyond a reasonable doubt; foundational)
State v. Anderson, 153 Wash.App. 417, 220 P.3d 1273 (2009) (jury instruction and burden-of-proof principles in closing arguments)