State v. Lindsay

• Decision Date: 08 May 2014
• Docket Number: No. 88437–4.,88437–4.
• Citation: 180 Wash.2d 423,326 P.3d 125
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. James Leroy LINDSAY, Sr., Petitioner. State of Washington, Respondent, v. Jennifer Sarah Holmes, Petitioner.

180 Wash.2d 423

326 P.3d 125

STATE of Washington, Respondent,

v.James Leroy LINDSAY, Sr., Petitioner.

State of Washington, Respondent,

v.Jennifer Sarah Holmes, Petitioner.

No. 88437–4.

Supreme Court of Washington, En Banc.

May 8, 2014.

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

Kimberley Ann Demarco, Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Tacoma, WA, for Respondent.

GORDON McCLOUD, J.

¶ 1 Jennifer Holmes and James Lindsay entered the home of Laurence Wilkey, Holmes's former boyfriend. They tied him up, beat him, and took a number of items from his home. The State charged Holmes and Lindsay with first degree robbery, burglary, kidnapping, and assault, as well as firearm theft. Holmes and Lindsay argued that they did not intend to commit a felony but were instead repossessing things that Wilkey had originally stolen from Holmes. A jury convicted them on most, but not all, counts.

¶ 2 The trial was plagued by misconduct. The prosecutor and the lawyer for Holmes (but not Lindsay) engaged in unprofessional behavior, trading verbal jabs and snide remarks throughout over 90 volumes of proceedings in this case. On appeal, Holmes and Lindsay argued that the prosecutor's remarks, particularly during closing arguments, constituted misconduct that prejudiced both defendants. The Court of Appeals agreed that the prosecutor committed misconduct but split as to whether that misconduct caused prejudice. State v. Lindsay, 171 Wash.App. 808, 288 P.3d 641 (2012) ( Lindsay & Holmes ). Two judges thought it did not; one dissenter thought that it did. Although Holmes and Lindsay submitted several issues to this court in their petitions for review, we accepted review of only the prosecutorial misconduct issue. State v. Lindsay, 177 Wash.2d 1023, 303 P.3d 1064 (2013).

¶ 3 We reverse. To be sure, the jury did its best to focus on the facts: it made separate decisions on each of the separate crimes charged against each defendant and it convicted on some, acquitted on some, and convicted of lesser offenses on others. In addition, the trial court attempted to maintain civility. But given the magnitude of the problem and the two lawyers' inability to control their conduct, we agree with the Court of Appeals dissent that reversal is required.

FACTS

¶ 4 Jennifer Holmes met James Lindsay and decided to marry him. This ended her relationship with Laurence Wilkey, with whom she had been living in Idaho. Wilkey moved out while Holmes and Lindsay were away on a trip together, and he took several things of value with him. When Holmes returned to an empty house, she called the police. After investigating, the police in Idaho advised her that it was a civil matter and that she should get a civil attorney.

¶ 5 Holmes did not follow this advice. Instead, she and Lindsay tracked Wilkey down to his new home in Pierce County. The precise details of their encounter are disputed, and Lindsay, Holmes, and Wilkey all gave significantly different accounts of what happened. Taking the facts in the light most favorable to the State, though, Lindsay and Holmes entered the house; Lindsay and Wilkey scuffled; Wilkey got the worst of it and ended up tied up on the floor. He may have been threatened with a gun and beaten with a pipe after he was tied up. Lindsay and Holmes then took a number of things that they claimed belonged to Holmes and left.

¶ 6 The State charged Lindsay and Holmes with one count each of first degree burglary, first degree robbery, first degree kidnapping, and first degree assault, and four counts each of theft of a firearm. At a joint trial, the jury convicted Lindsay of first degree burglary, first degree robbery, one of the four counts of firearm theft, and the lesser included crimes of second degree kidnapping and second degree assault. Clerk's Papers (CP) (Lindsay) at 382–89. It also convicted Holmes of first degree burglary, first degree robbery, one of the four counts of firearm theft, and the lesser included crimes of unlawful imprisonment and second degree assault. CP (Holmes) at 708–27.

¶ 7 The record shows that the prosecutor, John Sheeran, and Holmes's defense counsel, Barbara Corey, engaged in unprofessional exchanges throughout the trial. The dissent in the Court of Appeals accurately describes some of those exchanges: ¹

For example, not only did the prosecutor and Holmes's counsel interrupt each other, they interrupted the trial court, at one point causing the trial court to ask, “Can I finish for once?” 42 [Report of Proceedings (PvP) ] RP at 3569. Other examples of disrespect to the trial court include the prosecutor telling the trial court that Holmes's counsel's request to interrupt the trial was “a joke” and “ridiculous” and that Holmes's counsel wanted a “Burger King trial ... [h]ave it my way.” 34 RP at 2557. At another point, the prosecutor told the trial court, “I didn't object [earlier] because I was laughing so hard it was so stupid.” 53 RP at 4572–73. Later, the prosecutor told Holmes's counsel that she was repeating herself[;] she replied by telling him to “kindly shut up.” 51 RP at 4309. The prosecutor then asked the trial court to instruct Holmes's counsel not to repeat herself; Holmes's counsel replied, “Maybe [the prosecutor] could borrow Your Honor's gown and tell us all how to run this trial.” 51 RP at 4309.

In another instance, Holmes's counsel told the trial court that the prosecutor's comments were “obnoxious.” 44 RP at 3831. In response, the prosecutor said, “This is the same garbage that I was talking about days ago when I lost my temper in this courtroom, because it's what she does.” 44 RP at 3833.

Lindsay & Holmes, 171 Wash.App. at 850, 288 P.3d 641 (Armstrong, J. Pro Tern., dissenting) (most alterations in original).

¶ 8 The record is filled with similar acrimony. The primary source of the misconduct, however—according to the parties and the Court of Appeals—was the prosecutor's closing argument.

¶ 9 In his closing, the prosecutor called the defense's closing argument “a crock.” 95 Verbatim Report of Proceedings (VRP) at 8877.

¶ 10 The prosecutor also stated that the defendant Holmes's testimony was “funny,” “disgusting,” “comical,” and “the most ridiculous thing I've ever heard.” Id. at 8717, 8722, 8708. He told the jury that Holmes should not “get up here and sit here and lie.” Id. at 8882.

¶ 11 The prosecutor described the beyond a reasonable doubt standard as follows: “[Y]ou put in about 10 more pieces and see this picture.... [Y]ou can be halfway done with that puzzle.... You could have 50 percent of those puzzle pieces missing and you know it's Seattle.” Id. at 8727. He also compared it to the amount of certainty one needs to cross the street in a crosswalk. Id. at 8728 (“You're walking because beyond a reasonable doubt you're confident you can walk across that crosswalk without getting run over.”). Further, the prosecutor exhorted the jury to “[s]peak the truth.” Id. at 8730. He asked the jury “only to do what you swore to do: Render verdicts.” Id. He explained that “verdict” is Latin for “to speak the truth” and that “voir dire” means the same in French. Id. Finally, he stated, “You start with one, voir dire, when you started this trial, and you end with one, verdictum, verdict. So I'm just asking you to do what you know is true: Speak the truth. Convict both of these defendants....” Id.

¶ 12 Finally, the prosecutor spoke so quietly to the jury on several occasions that the court reporter could not hear him and the judge had to ask him to repeat himself. The prosecutor then made a joke out of this when Holmes's counsel protested by standing behind her and speaking very loudly, to the laughter of the jury.

ANALYSIS

¶ 13 “Allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard.” State v. Brett, 126 Wash.2d 136, 174–75, 892 P.2d 29 (1995) (citing State v. Hughes, 106 Wash.2d 176, 195, 721 P.2d 902 (1986)). The defendant bears the burden of showing that the comments were improper and prejudicial. State v. Warren, 165 Wash.2d 17, 26, 195 P.3d 940 (2008). In the past, our court has also stated that if the defendant fails to object or request a curative instruction at trial, the issue of misconduct is waived unless the conduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice. State v. Stenson, 132 Wash.2d 668, 719, 940 P.2d 1239 (1997).² In this case, however, defense counsel made a motion for a mistrial due to prosecutorial misconduct directly following the prosecutor's rebuttal closing argument, citing many of the same examples that are raised on appeal. Thus, the issue was preserved for appellate review. See United States v. Prantil, 764 F.2d 548, 555 n. 4 (9th Cir.1985) (mistrial motion following the prosecutor's closing is “an acceptable mechanism by which to preserve challenges to prosecutorial conduct”). The judge ruled that the prosecutor's comments were not improper—thus, curative instructions were not discussed.

¶ 14 The prosecutorial misconduct inquiry therefore consists of two prongs: (1) whether the prosecutor's comments were improper; and (2) if so, whether the improper comments caused prejudice. Warren, 165 Wash.2d at 26, 195 P.3d 940. We thus begin by analyzing the propriety of the prosecutor's comments.

I. Improper Comments

¶ 15 The prosecutor made improper statements in this case. Both the Court of Appeals majority and dissent concluded that many of his comments were improper. Even the State, in its supplemental briefing to this court, admits that some of the comments were improper. The State's argument is, essentially, that many of the improper comments either were not objected to, or were made in response to goading by Holmes's counsel; and, since those comments were not so flagrant and ill intentioned that an instruction would not have cured any...