Argued February 11, 2014.
Appeal from Pierce County Superior Court. 06-1-01432-6. Honorable Brian M. Tollefson.
Thomas M. Kummerow (of Washington Appellate Project ); and Barbara L. Corey, for petitioner.
Mark E. Lindquist, Prosecuting Attorney, and Kimberley A. DeMarco and Kathleen Proctor, Deputies, for respondent.
AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez, James M. Johnson, Justice Pro Tem.
Gordon McCloud, J.
[180 Wn.2d 426] ¶ 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 [180 Wn.2d 427] 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 Wn.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 Wn.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.
¶ 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 [180 Wn.2d 428] 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; and 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: 
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 (RP)] 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 [180 Wn.2d 429] 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 Wn.App. at 850 (Armstrong, J. Pro Tem., 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 ...