State v. Davis
| Decision Date | 09 August 1983 |
| Docket Number | No. 5784-1-II,5784-1-II |
| Citation | 667 P.2d 1117,35 Wn.App. 506 |
| Parties | The STATE of Washington, Appellant, v. Michael C. DAVIS, Respondent. |
| Court | Washington Court of Appeals |
Christine Quinn-Brintnall, Deputy Pros. Atty., Bill Griffies, Prosecutor, Tacoma, for appellant.
George Kelley, Tacoma, for respondent.
The State appeals the granting of a new trial to defendant, who was charged with accomplice liability for first degree robbery. At issue is whether a general verdict finding defendant guilty of first degree robbery is inconsistent and irreconcilable with a special verdict finding he was not armed with a deadly weapon. We hold the verdicts are not inconsistent and reverse.
On December 30, 1980, Herbert Wallace pointed a gun at a pharmacy clerk in Tacoma and demanded money. At the same time, defendant was seen standing near the glass doors of the store about 12 feet away from the clerk and the cash register. He was observed looking to the left and right, back and forth out of the windows of the store. Witnesses also observed defendant and Wallace running out of the store together in a northerly direction. At trial, defendant testified he did not know Wallace was going to rob the store or that Wallace was armed. No witness ever observed defendant with a gun.
The jury was instructed they should find the defendant guilty of robbery in the first degree if they found that he or an accomplice committed the elements thereof. Instruction 8 defined an accomplice, and instruction 9 set forth the accomplice theory as follows:
You are instructed that when one or more persons act as accomplices and co-defendants in a case where use of a firearm is alleged, all of them may be deemed armed, even though only one of the defendants in fact had a gun. This does not modify the requirement that the guilt of each defendant must be determined separately.
The jury was also given a special verdict form to use only if they found defendant guilty. They were to answer the question, "Was the defendant, Michael Curtis Davis, armed with a deadly weapon at the time of the commission of Robbery in the First Degree?" In connection with this special verdict, the jury was instructed:
In this case, the state has alleged that the defendant, (or an accomplice) was armed with a deadly weapon at the time of the commission of the crime of Robbery in the First Degree.
* * *
In order to find that the defendant was armed, you must find beyond a reasonable doubt that the object in question was in fact a deadly weapon and not merely an object appearing to be a deadly weapon.
When the jury returned the special verdict that defendant was not armed with a deadly weapon, defendant moved for a new trial on the ground the special verdict negated a necessary element of the State's case of first degree robbery, i.e., that defendant or an accomplice was armed. The trial court agreed and granted a new trial on the basis that the two verdicts were inconsistent and irreconcilable. We disagree.
Where the general verdict and the special finding can be harmonized by considering the entire record of the case, including the evidence and the instructions, it is the duty of the court to harmonize them. State v. Kimball, 14 Wash.App. 951, 546 P.2d 1217 (1976).
Where a special finding is susceptible of two constructions one of which will support the general verdict and the other of which will not, that construction shall be adopted which will support the general verdict. State v. Roberts, 25 Wash.App. 830, 611 P.2d 1297 (1980).
The evidence showed that Davis, cast as the accomplice in the State's case, did not possess a weapon during the course of the robbery. Rather, the evidence showed that Wallace, the main actor, possessed the gun and committed the actual robbery.
The jury may have decided that Davis was a lookout for Wallace and thus, the two men acted together to rob the pharmacy. Because the "to convict" instruction properly directed the jury to find Davis guilty of first degree robbery if defendant or an accomplice committed the elements of the crime, the jury could have found Davis guilty because his accomplice, Wallace, committed the actual robbery while armed with a gun.
The special verdict, however, only directed the jury to answer whether defendant was armed with a deadly weapon. The jury answered no. The special finding may be interpreted to mean either the jury did not believe defendant was guilty of first degree robbery under the accomplice theory instruction, or it may mean the finding was in accordance with the facts in the case, namely, that defendant did not possess a weapon during the robbery. This latter interpretation follows logically from the instruction given with the special verdict. A special finding as to whether defendant was armed with a deadly weapon adds nothing to the element of the crime and a negative finding of possession, consistent with the evidence, is not inconsistent with the general verdict. State v. Kimball, supra. Accordingly, we hold the verdicts are not inconsistent.
The trial court's ruling can be affirmed, however, if the result reached is supported by any legal reason within the pleadings, facts...
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