State v. Goins , 113 Wash. App. 723 ( 2002 )

Ellington, J.

(dissenting) — I concur in much of the scholarly majority opinion. I cannot agree, however, with its conclusion that an irreconcilable inconsistency between general and special verdicts on the same count should be governed by the rule that applies to inconsistencies between verdicts on different counts. I therefore respectfully dissent.

As the majority points out, where verdicts on different counts are inconsistent, the question is simply the sufficiency of the evidence to support the verdicts of guilt. This rule is mainly a recognition of the role played by jury lenity. The jury has an “ ‘unreviewable power ... to return a verdict of not guilty for impermissible reasons.’ ” United States v. Powell, 469 U.S. 57, 63, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984) (quoting Harris v. Rivera, 454 U.S. 339, 346, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981)). As the Powell Court emphasized:

[I]n such situations the Government has no recourse if it wishes to correct the jury’s error ....

Inconsistent verdicts therefore present a situation where “error” . . . most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction....

Powell, 469 U.S. at 65. Thus, where two general verdicts are inconsistent, the inquiry is only whether the evidence supports the verdict of guilt.

Where only one count is involved, however, and the general verdict is guilty, lenity offers no explanation for an inconsistent special verdict on the same count, and the integrity of the general verdict is called into question.

I cannot join in extending the “different counts” rule to this circumstance. Rather, I would hold that such verdicts are void, and require a new trial. Goins either acted for purposes of sexual gratification, or he did not. The jury’s implicit finding in the general verdict that he did, and its explicit finding in the special verdict that he did not, leave us no confidence in the integrity of either determination, and I would remand for retrial.

Review granted at 149 Wn.2d 1001 (2003).