State v. Lindsay, 171 Wash. App. 808

Jennifer Holmes and James Lindsay were tried together for burglary, robbery, unlawful imprisonment, assault, and firearm theft arising from March 2006 home intrusion.
Holmes and Lindsay were convicted of several counts; Lindsay’s convictions included first degree burglary, first degree robbery, second degree kidnapping, second degree assault, and theft of a firearm, while Holmes was convicted of first degree burglary, first degree robbery, unlawful imprisonment, second degree assault, and theft of a firearm.
The prosecutor engaged in extensive misconduct during trial, much outside the jury’s presence, and in closing arguments, which Holmes and Lindsay challenged as violating due process and fair trial rights.
The majority held that although misconduct occurred, it did not substantially affect the verdict; certain offenses merged for double jeopardy purposes and the matter was remanded for resentencing.
The panel’s unpublished portion also rejects Holmes’s remaining challenges, rejects Lindsay’s double jeopardy arguments beyond the merged offenses, and affirms the convictions with resentencing on the merged counts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct prejudicing trial	Holmes/Lindsay argue misconduct prejudiced the verdict	State contends misconduct un prejudicial given instructions and record	Misconduct occurred but not prejudicial to verdict
Double jeopardy and merger of offenses (robbery, kidnapping, assault)	Lindsay’s separate convictions should stand despite overlapping elements	Some convictions were incidental to robbery and must merge	Robbery and kidnapping, and robbery and second degree assault, merge; Holmes’s assault merges with robbery; remand for resentencing on merged counts
Cumulative error	Cumulative prosecutorial misconduct warrants reversal	Any errors were harmless in light of instructions and evidence	No reversible cumulative error; convictions affirmed with remand for merged counts
Prosecutor's whispered closing remarks	Whispered closing impaired review and prejudiced jury	Record sufficiency allows review despite inaudible portions	Record is sufficiently complete; no reversal on this basis

State v. Anderson, 153 Wn. App. 417 (2009) (standard for assessing prosecutorial misconduct prejudice)
State v. Emery, 174 Wn.2d 741 (2012) (prejudice standard depending on preservation and curative instructions)
State v. Thorgerson, 172 Wn.2d 438 (2011) (prosecutor overstepping bounds in closing arguments)
State v. Reed, 102 Wn.2d 140 (1984) (personal opinion vs. inference in closing arguments)
State v. McKenzie, 157 Wn.2d 44 (2006) (distinction between personal belief and inferred credibility)
State v. Walker, 164 Wn. App. 724 (2011) (cumulative error considerations in closing arguments)
State v. Glasmann, 175 Wn.2d 696 (2012) (substantial likelihood misconduct affected verdict; emphasis on overall impact)
State v. Freeman, 153 Wn.2d 765 (2005) (merger doctrine for overlapping offenses; independent purpose or effect)
State v. Vladovic, 99 Wn.2d 413 (1983) (merger analysis for degree distinctions in robbery/assault)
State v. Curtiss, 161 Wn. App. 673 (2011) (analogy tests and burden of proof considerations in closing)