State Of Washington v. Arthur Thomas, 74733-9

Arthur Thomas attacked a security guard at a bank, wrested the guard's firearm, and shot both the guard and himself; Thomas was unarmed at the outset but gained control of the gun during the struggle.
Thomas was charged with first degree assault with a deadly-weapon (firearm) sentence enhancement; after trial the jury convicted him of the lesser included offense of second degree assault.
The first jury was unable to reach a unanimous verdict on the firearm enhancement allegation; Thomas asked to proceed directly to sentencing.
Instead, the trial court empaneled a second jury solely to decide the firearm enhancement; the second jury was told Thomas had already been found guilty of second degree assault.
After a 7-day retrial limited to the firearm issue, the second jury unanimously found the firearm enhancement proved; Thomas received a 42-month sentence, 36 months attributable to the enhancement.
Thomas challenged the empaneling of a second jury as beyond the trial court’s authority (and akin to retrying an acquitted issue); the court of appeals considered the claim despite preservation questions because an illegal sentence may be raised on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a trial court lacks authority to empanel a second jury solely to decide a firearm sentence-enhancement after the first jury convicted but was nonunanimous on the enhancement	Thomas: Empaneling a new jury is unlawful absent statutory authorization; a nonunanimous verdict on the enhancement amounts to an acquittal and bars retrial	State: Courts have authority under court rules and case law to empanel juries to decide aggravating factors; retrial of nonunanimous aggravators is permitted	Court affirmed: Trial court had authority to empanel a second jury to decide the firearm enhancement; empaneling was not unlawful

State v. Pillatos, 159 Wn.2d 459 (2007) (trial courts lack inherent authority to empanel sentencing juries absent rule or statute)
State v. Thomas, 166 Wn.2d 380 (2009) (CrR 6.1(a) authorizes empaneling a jury to hear aggravating factors as part of jury-tried cases)
State v. Nunez, 174 Wn.2d 707 (2012) (unanimity required to reject aggravating circumstances; nonunanimous rejection does not preclude retrial of aggravators outside death-penalty context)
State v. Reyes-Brooks, 165 Wn. App. 193 (2011) (trial court empaneled new jury to consider firearm enhancement on remand; discussed legislative intent regarding empaneling juries for aggravating circumstances)
State v. Bashaw, 169 Wn.2d 133 (2010) (addressed special verdict language for enhancements; later overruled in part by Nunez)
State v. Bahl, 164 Wn.2d 739 (2008) (illegal sentences may be raised for the first time on appeal)
State v. Nguyen, 134 Wn. App. 863 (2006) (jury may consider firearm enhancements)