¶38 (concurring) — I agree with the majority that Brian Eggleston’s third trial did not violate double jeopardy or collateral estoppel and that his exceptional sentence is invalid under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). I write separately because, like Justice Sanders, I would not disregard a unanimous verdict by 12 sworn jurors.
f39 As the majority recognizes, we generally give effect to a jury’s acquittal even when clearly in error. See Fong Foo v. United States, 369 U.S. 141, 82 S. Ct. 671, 7 L. Ed. 2d 629 (1962). Yet the majority states, “[T]he jury’s answer in the special verdict was unnecessary, irrelevant, and in violation *82of the court’s instructions, and we decline to consider it.” Majority at 73. Although the jurors in the second trial should have put their pencils down after finding Eggleston not guilty of first degree murder, I would not ignore the special verdict form.10
¶40 The jury’s answer to the special verdict form did not contradict its general verdict, as was the case in Statler v. United States, 157 U.S. 277, 15 S. Ct. 616, 39 L. Ed. 700 (1895). In Statler, the jury added to its verdict by summarizing the charge of which it found the defendant guilty. This summary omitted the essential element of intent. Id. at 277-78, 280. The defendant argued the jury had, therefore, found him not guilty of the crime. Id. at 278. The court concluded the jury’s superfluous summary did not invalidate its guilty verdict. Id. at 279-80.
¶41 By contrast, the jurors in Eggleston’s second trial merely answered a special verdict form, despite instructions to leave it blank if they found him not guilty of first degree murder. The jury’s conclusion that the State failed to prove Eggleston knew his victim was a police officer did not contradict its verdicts of not guilty of first degree murder and guilty of second degree murder. Nor did the jury add superfluous language to the verdict form, as it did in Statler. While unnecessary, given the acquittal on first degree murder, the jury’s special verdict was both clear and consistent with its overall decision. We should not disregard it.
¶42 But collateral estoppel requires more than a previous determination of an issue by a jury. Dowling v. United States, 493 U.S. 342, 348, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990). The same issue must be an ultimate fact or issue in the subsequent proceeding as well. Id. I agree with the majority that Eggleston’s knowledge was not an ultimate fact or issue in this most recent third trial. See id. As the majority points out, the third jury’s guilty verdict on second degree murder did not require the jury to decide whether *83Eggleston knew his victim was a police officer. Majority at 74. Whether Eggleston knew the person storming into his home was a police officer was not an “ultimate fact” essential to the claim of second degree murder. See Dowling, 493 U.S. at 348.
¶43 I conclude Eggleston’s third trial did not violate collateral estoppel, not because I disregard the second jury’s special verdict, but because Eggleston’s knowledge was not an ultimate issue in the third trial. With that reservation, I concur in the remainder of the majority’s opinion.
J.M. Johnson, J., concurs with Chambers, J.Nor would I so sharply reprimand the jury for its error. It is hard enough to serve on a jury in a murder case. We should not denigrate this jury’s attempt to give a careful and thorough verdict.