Opinion
27306-7-III
01-17-2013
STATE OF WASHINGTON, Respondent, v. JOHN JOSEPH COOK, Appellant.
UNPUBLISHED OPINION
Sweeney, J.
This is the second time this case is before us. We previously filed an unpublished decision, and there held that even if the trial court improperly instructed the jury that unanimity was required to answer "no" to the special verdict, Mr. Cook was not prejudiced by the error. State v. Cook, noted at 152 Wn.App. 1053, 2009 WL 3465915. Mr. Cook then filed a petition for review in the Supreme Court. The court granted his petition and remanded the case for our reconsideration in light of State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), overruled in part by State v. Guzman Nuñez, 174 Wn.2d 707, 285 P.3d 21 (2012). In May 2011, we stayed this appeal pending the decision by our Supreme Court in State v. Guzman Nuñez, 160 Wn.App. 150, 248 P.3d 103 (2011), aff'd, 174 Wn.2d 707. The stay was recently lifted after issuance of the mandate in Guzman Nuñez.
The State charged Mr. Cook with four offenses. A jury was asked to find by special verdict whether two of the charges took place in front of minor children and was instructed that it had to be unanimous in answering the special verdict form:
In order to answer the special verdict form[s] "yes", you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer "no".Clerk's Papers at 57 (alteration in original).
The jury found that the two pertinent counts occurred within the sight of minor children. Based on the special verdict, the trial court imposed an exceptional sentence of 12 months plus 1 day. Mr. Cook appeals the sentence.
Mr. Cook contends that the trial court improperly instructed the jury that a unanimous decision was needed to answer "no" on the special verdict form. Citing Bashaw, he contends the trial court was required to give a nonunanimity instruction. He asks this court to remand for resentencing without the enhancement.
We have held that the court's failure to instruct a jury that it must be unanimous to acquit a defendant of an aggravating factor is not an issue of constitutional magnitude. Guzman Nuñez, 160 Wn.App. at 159, 162-63.
Mr. Cook did not object to the unanimity instruction and, therefore, waived the right to assign error on appeal. But more importantly, the Supreme Court reconsidered and concluded that such a rule set out in Bashaw "conflicts with statutory authority, causes needless confusion, does not serve the policies that gave rise to it, and frustrates the purpose of jury unanimity" and the court overruled the non unanimity rule established by Bashaw. Guzman Nuñez, 174 Wn.2d at 709-10. In reaching this decision, the Guzman Nuñez court noted that for Sentencing Reform Act of 1981 aggravating circumstances, the legislature "intended complete unanimity to impose or reject an aggravator." Id. at 715.
Chapter 9.94A RCW.
The court here then properly instructed the jury. We affirm the sentence.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: Korsmo, C.J., Kulik, J.