State v. Goins , 151 Wash. 2d 728 ( 2004 )

Alexander, C.J.

(concurring in the dissent) — I concur in Justice Sanders’ dissent to the extent that he concludes the jury’s general verdict and its special finding are irreconcilable, thus requiring the reversal of Matthew Goins’ conviction. I write separately because I believe that in State v. Hurley, 4 Wn. App. 781, 483 P.2d 1274, review denied, 79 Wn.2d 1005 (1971), Division Three of the Court of Appeals decided this issue persuasively. In addition, I wish to state my view that the proper remedy here is a remand for a new trial.

In Hurley, the defendant was charged with robbery, which required the jury to find that the defendant “ ‘was armed with a deadly weapon.’ ” Hurley, 4 Wn. App. at 782 (emphasis omitted). The jury was also asked to make a special finding of whether the defendant was “armed with a deadly weapon at the time of the occurrence,” which was “solely for the use of the Board of Prison Terms and Paroles in fixing a minimal term of confinement” as required by former RCW 9.95.015 (Laws of 1961, ch. 138, § 1). 4 Wn. App. at 783, 782. The Hurley jury found the defendant guilty of robbery “but answered the special interrogatory in the negative.” Id. at 783.

The Court of Appeals held in Hurley that when there is a conflict within the same count, between a general verdict and a special finding that is required by a separate statute for a distinct purpose, a conviction will not stand. The court, therefore, reversed the robbery conviction and remanded for a new trial.

Because Hurley is indistinguishable from the present case and, I believe, decided correctly, I would have us follow it. I, therefore, dissent. Unlike Justice Sanders, however, I would remand for a new trial on the second degree assault charge, the remedy imposed in Hurley.