IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
• STATE OF WASHINGTON, )
) No. 74733-9-1
Respondent, )
:01I-1V OAOHLIOZ
) DIVISION ONE
V. )
)
ARTHUR IDOWU THOMAS, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: November 20, 2017
)
BECKER, J. — The issue in this appeal is whether a trial court lacks
authority to empanel a second jury solely for the purpose of considering a firearm
sentence enhancement allegation when the first jury convicts the defendant of a
crime but is unable to reach a unanimous verdict on the firearm allegation. We
conclude the empaneling of a second jury is not unlawful.
On July 24, 2015, appellant Arthur Thomas entered a breezeway outside
a Seattle bank. He was unarmed. He struck security guard Bruce Golphenee
from behind and attempted to take Golphenee's firearm. Golphenee resisted. In
the course of their struggle, several rounds were discharged from Golphenee's
firearm. Golphenee suffered substantial bodily harm, including a fractured ankle,
an amputated finger, and a gunshot wound to his abdomen, which damaged his
intestines and urinary tract. Despite Golphenee's efforts, Thomas was
successful in wresting away control of the firearm, at which point he placed the
barrel in his own mouth and pulled the trigger. Although Thomas suffered
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extensive damage to his face, he survived. The State charged him with first
degree assault and an accompanying firearm enhancement.
After a 10-day trial, a jury convicted Thomas of the lesser included charge
of second degree assault but was unable to reach a unanimous verdict on the
question of whether he was armed with a firearm at the time of the commission of
the crime. Thomas asked the court to move immediately to sentencing. Instead,
the trial court empaneled a new jury for the sole purpose of retrying the firearm
sentence enhancement allegation. The second jury was instructed that Thomas
"has previously been found to be guilty of Assault in the Second Degree" and that
the previous jury's verdict "establishes the existence of those facts and
circumstances which are the elements of the crime." After a 7-day trial in which
the details of the incident were presented again, the second jury unanimously
found that Thomas was armed with a firearm at the time of the commission of
assault in the second degree. He was sentenced to a 42-month prison term, of
which 36 months were for the firearm enhancement.
In the trial court, Thomas objected to the empaneling of a second jury on
the grounds that there had been an implied acquittal on the firearm allegation
and that a retrial would violate due process. He argued that the second jury
would not know whether the assault conviction was grounded on the initial
punch, the broken ankle, or the gunshot. His only argument on appeal is that the
trial court lacked authority to impanel the second jury. The State contends that
under RAP 1.5(a), Thomas is precluded from raising that argument for the first
time on appeal. If the trial court lacked authority to empanel a second jury to rule
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on the sentence enhancements as Thomas alleges, then the court exceeded its
authority and the sentence is contrary to law. Illegal sentences may be
challenged for the first time on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193
P.3d 678 (2008). Thus, we consider the argument.
Trial courts lack inherent authority to empanel sentencing juries. State v.
Pillatos, 159 Wn.2d 459, 469-70, 150 P.3d 1130 (2007). Thomas reasons that
absent a statute directly authorizing the empaneling of a new jury, the trial court
exceeded its authority and his sentence must be reversed.
As the State argues, Washington law explicitly permits a jury to consider a
firearm enhancement. State v. Nguyen, 134 Wn. App. 863, 870-71, 142 P.3d
1117 (2006), review denied, 163 Wn.2d 1053 (2008), cert. denied, 555 U.S. 1055
(2008). The issue here, though, is whether Washington law permits the
empaneling of a second jury to consider a firearm enhancement on which the
first jury was unable to agree. The State suggests that RCW 9.94A.825 provides
that authority. That statute, however, does not answer the question and in fact
arguably can be read as requiring the jury that finds the defendant guilty to also
make the special verdict finding.1 But appellant does not discuss that statute and
1 RCW 9.94A.825 provides:
In a criminal case wherein there has been a special allegation and
evidence establishing that the accused or an accomplice was
armed with a deadly weapon at the time of the commission of the
crime, the court shall make a finding of fact of whether or not the
accused or an accomplice was armed with a deadly weapon at the
time of the commission of the crime, or if a jury trial is had, the jury
shall, if it find[s] the defendant guilty, also find a special verdict as
to whether or not the defendant or an accomplice was armed with a
deadly weapon at the time of the commission of the crime.
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instead attacks the State's argument that post-Pillatos developments in the law
provide the necessary authority.
Of the more recent cases, the most similar is State v. Reyes-Brooks, 165
Wn. App. 193, 202-06, 267 P.3d 465 (2011), modified on remand as noted at 171
Wn. App. 1028 (2012). In that case, this court affirmed a defendant's convictions
but vacated a firearm enhancement, finding that the language of the special
verdict form was erroneous in light of State V. Bashaw, 169 Wn.2d 133, 147, 234
P.3d 195 (2010). Bashaw was later overruled by State v. Nunez, 174 Wn.2d
707, 285 P.3d 21 (2012), but that had not yet occurred. Following Bashaw, we
instructed the trial court to empanel a new jury to consider the firearm
enhancement on remand. Reyes-Brooks, 165 Wn. App. at 206.
To support authorizing the empanelling of a second jury, we relied in part
on the legislative statement accompanying RCW 9.94A.537: "The legislature
intends that the superior courts shall have the authority to impanel juries to find
aggravating circumstances in all cases that come before the courts for trial or
sentencing." LAWS OF 2007, ch. 205 § 1 (emphasis added), cited in Reyes-
Brooks, 165 Wn. App. at 206. We held that it is from this guiding public policy
that courts derived their authority to empanel a new jury and that this authority
applied to all aggravating factors, including those not covered by RCW
9.94A.537(2). Reves-Brooks, 165 Wn. App. at 206. Reyes-Brooks was
ultimately reversed and remanded by the Supreme Court when the court
overruled Bashaw, but Thomas offers no persuasive reason why we should
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reject the Reyes-Brooks reasoning that trial courts possess the authority to
empanel a new jury in these circumstances.
The argument made by Thomas is also incompatible with State v.
Thomas, 166 Wn.2d 380, 393, 208 P.3d 1107 (2009) (Thomas II). The
defendant was convicted of premeditated first degree murder. His death
sentence was overturned on appeal. He then challenged the trial court's
authority to impanel a new jury to consider anew the existence of aggravating
factors. The Supreme Court rejected this argument and stated that under CrR
6.1(a), "the power to empanel a jury to hear aggravating factors is a court
mandated component of the power to hear cases 'required to be tried by jury."
Thomas 11, 166 Wn.2d at 393, quoting CrR 6.1(a). We reject appellant's
argument that the holding of Thomas II is limited to consideration of aggravating
factors listed in RCW 10.95.020. Thomas II focuses on broad authority provided
by court rules rather than tying the holding to a specific statute. As evidenced by
this court's reliance on Thomas 11 in Reyes-Brooks, the applicability of Thomas II
extends beyond first degree murder.
Finally, as the State correctly notes, prohibiting trial courts from
empaneling a new jury to hear sentence enhancement allegations would
effectively transform a nonunanimous verdict into a de facto acquittal and would
thereby contravene Nunez, 174 Wn.2d at 719. Nunez overruled Bashaw and
held that unanimity was required to reject aggravating circumstances, including
deadly weapon sentence enhancements. Nunez, 174 Wn.2d at 715. Implicit in
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the unanimous rejection requirement is the authority to empanel a new jury to
consider sentence enhancements.
Both the United States and Washington Constitutions
prohibit successive prosecutions for an offense on which the
defendant has been acquitted. But proving the elements of an
offense is different from proving an aggravating circumstance. The
Supreme Court has held that the prosecution's admitted failure to
prove an aggravating circumstance beyond a reasonable doubt
does not preclude retrial of that allegation at a new sentencing
proceeding, except in the context of death penalty cases.
Accordingly, whether a jury unanimously rejected an aggravating
circumstance has no bearing on whether the factor may be retried
outside of the death penalty context. The nonunanimity rule would
therefore not preclude retrial of a non-death-penalty aggravator.
Nunez, 174 Wn.2d at 717-18 (footnotes omitted).
Because Thomas has failed to establish that the trial court lacked the
authority to empanel a second jury, his claim must be denied.
Thomas asks that no costs be awarded on appeal. The State does not
respond. Appellate costs are generally awarded to the substantially prevailing
party on review. Thomas was found indigent by the trial court. When a trial court
makes a finding of indigency, that finding remains throughout review "unless the
commissioner or clerk determines by a preponderance of the evidence that the
offender's financial circumstances have significantly improved since the last
determination of indigency." RAP 14.2. If the State has evidence indicating that
Thomas's financial circumstances have significantly improved since the trial
court's finding, the State may file a motion for costs with the commissioner.
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Affirmed.
WE CONCUR:
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State Of Washington v. Arthur Thomas
Combined Opinion