(dissenting) — The majority concedes that the prosecutor committed serious misconduct by arguing that in order to accept the defense theory of the case and find the Defendant guilty only of theft, the jury would have to violate their oath as jurors. I dissent because I strongly disagree with the majority’s conclusion that this was merely harmless error.
As the authorities cited by the majority uniformly hold, a prosecutor commits blatant misconduct by telling the jurors *842they would violate their oath by adopting the defense theory of the case. By placing highly inappropriate pressure on the jury, such comments constitute implicit threats to the jury, and they have no place in a prosecutor’s closing argument.
This type of misconduct is so egregious that it can require reversal in and of itself. State v. Acker, 265 N.J. Super. 351, 356-57, 627 A.2d 170, 173, cert. denied, 134 N.J. 485 (1993). Here, additional circumstances actually compounded the error. First, despite the egregious nature of the prosecutor’s misconduct, the trial court overruled defense counsel’s immediate objection. Thus, rather than correcting the error, the court left the jury to mistakenly conclude that the prosecutor’s reference to its oath was entirely legitimate. Second, the misconduct came at the very end of the prosecutor’s rebuttal, making the prosecutor’s improper comments the last words the jury heard before beginning its deliberations.
This court’s opinion in State v. Powell, 62 Wn. App. 914, 919, 816 P.2d 86 (1991), review denied, 118 Wn.2d 1013 (1992) underscores the importance of these circumstances. In Powell, the prosecutor argued that an acquittal would send a message that children reporting sexual abuse are not going to be believed, thereby " 'declaring open season on children’ ”. Powell, at 918. The defense attorney objected and the trial court sustained the objection. On appeal, the State argued that because the objection had been sustained, the misconduct was not prejudicial. This court disagreed and reversed, reasoning: "The remarks were made at the completion of the final closing argument, immediately prior to the jury beginning its deliberations. This is one of those cases of prosecutorial misconduct in which '[t]he bell once rung cannot be unrung.’ ” Powell, at 919 (quoting State v. Trickel, 16 Wn. App. 18, 30, 553 P.2d 139 (1976)).
Here, too, the bell was rung at the very end of the trial just before the jury began deliberations. However, this case is even more egregious than Powell because in this case the trial court gave its official stamp of approval to the misconduct by overruling the defense attorney’s prompt and proper objection to the comments.
*843Finally, in order to put the misconduct in context, it is essential to focus on the fact that this case turned on a single question — whether Coleman should be found guilty of robbery or of the lesser included offense of theft. Because there were facts that would allow the jury to decide this either way, it was a very close question. The jurors’ task was to focus on the evidence, not the potential risk to themselves, in deciding the case. Telling the jury it would violate its oath by accepting the defense theory that the Defendant merely committed theft, not robbery, went to the heart of the issue before the jury.
Given that the court, in the jury’s presence, overruled defense counsel’s objection, the fact that the improper argument was literally the last words the jury heard before deliberating and the close factual question that the jury had to decide, the error cannot be deemed harmless. Yet the majority so concludes, holding that the prosecutor’s improper argument was tempered by her preceding comments that the jury’s verdict would not be second-guessed. I fail to see how this in any way mitigates the particular prejudice engendered by this type of misconduct. All that the preceding comments conveyed to the jury was the fact that the verdict would be binding as to the fate of the Defendant; the comments did nothing to address the fate of the jury should it choose to violate its oath by adopting the defense theory of the case.
How can we say with any degree of confidence that the jury did not take the line of least resistance and simply find the Defendant guilty of the greater offense in order to avoid worrying about whether it was violating its oath? After all, by overruling defense counsel’s objection, the trial judge had let the jury know that the prosecutor’s comment was not a misstatement of the law.
In short, it simply cannot be said that the prosecutor’s blatant misconduct did not affect the verdict when all indications point to the contrary. I would reverse and remand for a new trial.
Review denied at 125 Wn. 2d 1017 (1995).