The State of Washington, Respondent v. Anthony Marquise Emery, Jr., Petitioner; the State of Washington…

Summary

The Washington Supreme Court, sitting en banc, affirmed the Court of Appeals and the convictions of Anthony Marquise Emery Jr. and Aaron Edward Olson for first degree kidnapping, robbery, rape, and accomplice rape arising from a 2006 joint trial. It held the trial court did not abuse its discretion in denying Olson's motions to sever even though the defendants' defenses were mutually antagonistic, because Olson could not show specific prejudice, and it held Emery waived the severance issue and failed to show his counsel was ineffective. The court declared the prosecutor's 'fill-in-the-blank' reasonable doubt remark and 'speak the truth'/'verdictum' statements improper because they subtly shifted the burden of proof and misdescribed the jury's role, but, because neither defendant objected at trial, it held the prejudice was curable and declined to adopt the constitutional harmless error standard for such misconduct; it also upheld the denial of Emery's mistrial motion based on Olson's outbursts and rejected cumulative error. Justice Chambers concurred in the result, writing separately that the trial court should have granted severance but that neither defendant carried the specific-prejudice burden on appeal.