State v. Lindsay

• Decision Date: 08 February 2013
• Docket Number: Nos. 39103–1–II, 40153–3–II, 39113–9–II.,s. 39103–1–II, 40153–3–II, 39113–9–II.
• Citation: 171 Wash.App. 808,288 P.3d 641
• Parties: STATE of Washington, Respondent, v. James Leroy LINDSAY, Sr., Appellant. State of Washington, Respondent, v. Jennifer Sarah Holmes, Appellant.
• Court: Washington Court of Appeals

171 Wash.App. 808

288 P.3d 641

STATE of Washington, Respondent,

v.James Leroy LINDSAY, Sr., Appellant.

State of Washington, Respondent,

v.Jennifer Sarah Holmes, Appellant.

Nos. 39103–1–II, 40153–3–II, 39113–9–II.

Court of Appeals of Washington, Division 2.

Nov. 7, 2012.

As Amended Feb. 8, 2013.

Barbara L. Corey, Attorney at Law, Tacoma, WA, Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Appellant.

Kimberley Ann Demarco, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

JOHANSON, A.C.J.

¶ 1Jennifer Sarah Holmes appeals her jury convictions for first degree burglary, first degree robbery, unlawful imprisonment, second degree assault, and theft of a firearm.James Leroy Lindsay, Sr., appeals his jury convictions for first degree burglary, first degree robbery, second degree kidnapping, second degree assault, and theft of a firearm.Among other arguments, in the published portion of this opinion, Lindsay and Holmes argue that the prosecutor engaged in multiple acts of misconduct requiring reversal of their convictions and that the trial court violated constitutional protections against double jeopardy.

¶ 2 In the unpublished portion of this opinion, Holmes and Lindsay argue that the trial court violated their public and open trial right.Additionally, Lindsay argues that the jail guard's disposal of Lindsay's notebook violated his right to counsel.Holmes argues that (1)the trial court abused its discretion by failing to admit evidence of the alleged victim's cocaine addiction; (2) her restitution hearing lacked due process; and (3) several errors combine to create cumulative error.

¶ 3 In the published portion of this opinion, we hold that although the prosecutor committed misconduct, the misconduct did not substantially affect the jury's verdict.We further hold that both Lindsay's conviction for second degree assault and his conviction for second degree kidnapping merge with his first degree robbery conviction.Additionally, we hold that Holmes's conviction for second degree assault merges with her first degree robbery conviction.Finally, in the unpublished portion of this opinion, we address and reject Holmes's and Lindsay's remaining issues.Thus, we affirm both Lindsay's and Holmes's convictions and remand for resentencing on the merged convictions.

FACTS

I.Substantive Facts and Procedure

¶ 4Jennifer Holmes and Lawrence Wilkey began their seven-year romantic relationship in 1998.In 2004, after living in Washington State, the couple moved to Idaho.Thereafter, Holmes met James Lindsay, decided to marry him and told Wilkey that she no longer loved him.Three weeks later, when Holmes and Lindsay were away on a day trip, Wilkey moved out, taking many property items ¹ with him to Washington.

¶ 5 When Holmes returned home, she called the sheriff's office and reported that a theft had occurred.The deputies concluded that Holmes's property loss was a civil matter and advised her to consult with a civil attorney.

¶ 6 Months later, Holmes and Lindsay drove from Idaho to Wilkey's home in Pierce County.According to Wilkey, Lindsay “burst open” Wilkey's door and entered with a pipe in his raised hand.25 VRPat 1901.After Lindsay and Holmes violently invaded his home, they bound him with zip ties and a leash, beat and choked him, with a pipe, rendered him unconscious, taunted him, and took his property.

¶ 7 In contrast, Lindsay told the police ² that Wilkey opened the front door and then ran toward the back door saying something about a gun.Lindsay claimed that he was worried Wilkey was about to arm himself, so he ran into the house and the two men wrestled.Lindsay admitted that he used zip ties to restrain Wilkey so he would not interfere as Lindsay and Holmes collected their belongings.According to Holmes, Wilkey seemed happy, albeit surprised, to see her and, although he did not protest to her entering his home, she remembered a scuffle between the two men.Holmes further claimed that she never saw Wilkey restrained in any way and that Wilkey never objected to her taking her property.

¶ 8 After Lindsay and Holmes left his home, Wilkey eventually freed himself, went to his neighbor's house, and his neighbor called the police.The responding paramedic unit found Wilkey upset, with scratches and bruises on both legs and zip ties around his wrists and ankles, and they took him to the hospital.The attending doctor treated Wilkey for abrasions on his extremities, a contusion on his head, and issues relating to diabetes.But the doctor did not find bruises on Wilkey's torso consistent with being beaten with a pipe.Nor did Wilkey's computed tomography (CT) scan, x-rays, or urine tests reveal other assault injuries.

¶ 9 Based on the March 2006 events, the State charged Holmes and Lindsay with one count each for first degree burglary,³ first degree robbery, ⁴ first degree kidnapping,⁵ first degree assault,⁶ and four counts each for theft of a firearm.⁷The jury found Holmes guilty of first degree burglary, first degree robbery, unlawful imprisonment, second degree assault, and one count of theft of a firearm.The jury found Lindsay guilty of first degree burglary, first degree robbery; the lesser-included charges of second degree kidnapping, second degree assault, and one count of theft of a firearm.By special verdict, the jury found that neither Holmes nor Lindsay was armed with a firearm during the commission of the crimes.Also, by special verdict, the jury found that Lindsay and Holmes committed the lesser-included charge for second degree assault on the basis of an “assault committed with the intent to commit a felony.”Clerk's Papers (Lindsay)(CPL)at 394;Clerk's Papers (Holmes)(CPH)at 732.

¶ 10The trial court sentenced Holmes on each count, to be served concurrently for a total of 89.5 months.⁸The trial court sentenced Lindsay on each count, to be served concurrently for a total of 102 months.⁹The trial court ordered both defendants to pay restitution.Holmes and Lindsay appeal.

II.Objectionable Conduct

A.Trial Conduct

¶ 11 Holmes and Lindsay's joint trial occurred over more than a year and produced 98 volumes reporting the proceedings.Holmes and Lindsay had separate counsel.The record reveals objectionable conduct by the prosecutor and Holmes's counsel throughout the trial; much of which occurred outside the jury's presence.¹⁰The following are descriptions of conduct that occurred in the jury's presence.

¶ 12 At one point, Holmes's counsel objected to the prosecutor's examination of Wilkey saying, “Oh, your Honor, let's lead a little bit more.”24 VRPat 1852.The prosecutor objected and asked for a sidebar, and Holmes's counsel said, “I would like it on the record outside the presence of the jury if counsel is going to be personally attacking me for my meritorious objections.”24 VRPat 1853.

¶ 13 Several days later, Holmes's counsel objected to the prosecutor's questions as eliciting hearsay, the prosecutor replied that he asked the question to put the defendant's statement into context.Holmes's counsel replied that she did not know the “context exception” and that perhaps the prosecutor could point it out for her.40 VRPat 3222.The prosecutor asked that parties make objections to the court instead of insulting fellow counsel.Holmes's counsel requested an opportunity to argue outside the jury's presence and the prosecutor responded, “Maybe counsel should have asked that two minutes ago.”Holmes's counsel replied, “[M]aybe [the prosecutor] should keep his mouth shut.”40 VRPat 3223.

¶ 14 Days later as Holmes's counsel cross-examined a witness, this exchange occurred:

[THE STATE]: Same objection [calls for speculation].

[HOLMES'S COUNSEL]: He said that he does—

THE COURT: Can I hear the question?

[THE STATE]: She's making argument as we go and she doesn't care if the objection is sustained or not.

[HOLMES'S COUNSEL]: Your Honor, once again we have Mr. Sheeran reporting to read my mind.

47 VRPat 4118.

¶ 15 During the State's redirect of Wilkey, Holmes's counsel objected to the prosecutor's question saying that the answer to that question would be new discovery that she had not been “blessed with” before her cross-examination of Wilkey.51 VRPat 4341.The prosecutor stated, “I can't respond politely,” then offered, “I'll ask another question.”51 VRPat 4341–42.

¶ 16 Later that day, when the prosecutor and Holmes's counsel argued about one of Holmes's objections, the prosecutor said, “We're going to have like a sixth grader [argument]—”51 VRPat 4357.At that point, the trial court excused the jury.

¶ 17 The next day, although the trial court had previously determined that the defendants could elicit testimony regarding Wilkey's alleged drug use only for relevant time periods,¹¹ Holmes's counsel asked the witness whether 13 years ago, Wilkey's father had kicked Wilkey out of the house for drug use.Becoming upset, the prosecutor said:

[THE STATED]: Objection, Your Honor, and motion outside the presence.

And counsel walked right into this after freaking six weeks—

THE COURT: Hold on just a minute.

[HOLMES'S COUNSEL]: Mr. Sheeran is having a tantrum.

THE COURT: If I could have the jury go into the jury room.

[THE STATE]: Tantrum, because you—

52 VRPat 4554.After the jury left, the parties continued to argue.

¶ 18 Several days later, as Holmes's counsel cross-examined a witness, the prosecutor objected saying, “[I]t seems like impeachment on a collateral matter and we're into silly.”61 VRPat 5423.After the jury was at recess, Holmes's counsel told the trial court that the prosecutor's remark about “silly” denigrated the defense counsel and the prosecutor should know better.61 VRPat 5428.

¶ 19 While Holmes testified on her own behalf that, during their relationship, Wilkey hurt her physically and emotionally, she added that while she was testifying, the prosecutor was laughing and that his behavior upset her....