Opinion
June 12, 1969.
September 11, 1969.
Criminal Law — Practice — Jury — Duty of trial judge to hear questions of jurors as to votes before recording of verdicts.
1. After the jury has been polled and before the verdicts have been recorded, the trial judge must hear questions jurors may have as to their votes before proceeding.
2. A court should be alert to any indication from the jurors that the announced verdict does not reflect their actual thinking.
3. Defendant was tried by a jury on three bills of indictment: robbery, burglary, and conspiracy.
The forelady of the jury announced that the jury had reached a guilty verdict on each of the three bills. Defendant then moved that the jury be polled. Ten of the jurors stated that they had found defendant guilty on all counts, but two jurors said that they had found defendant not guilty on the robbery bill.
A sidebar conference followed, after which the trial court announced that the jury was unanimous as to the burglary and conspiracy bills, but not as to the robbery bill. At this time, one of the jurors indicated that he had a question. The trial judge directed him not to make a statement at this point. The trial court ordered the verdicts recorded, before hearing this juror, over defendant's objection. After this, an interchange took place between the trial judge and the juror, which revealed that the juror had voted on the incorrect assumption that he was required to find defendant guilty or not guilty on all counts.
It was Held that, in the absence of any clear indication of the actual vote of the juror who had wanted to change his vote, none of the convictions could be allowed to stand.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeals, Nos. 622 and 623, Oct. T., 1969, from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1963, Nos. 1464 and 1466, in case of Commonwealth of Pennsylvania v. Eugene Corbin. Judgment vacated and new trial ordered.
Petition for post-conviction relief. Before SLOANE, J.
Order entered granting leave to defendant to file a direct appeal, nunc pro tunc. Defendant appealed.
John W. Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellant.
James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
WATKINS, J., dissented.
Argued June 12, 1969.
Appellant was tried by a jury on three bills of indictment: robbery, burglary and conspiracy. After the jury returned from its deliberations, the trial court asked the forelady for its verdict. She announced that the jury had reached a guilty verdict on each of the three bills. Appellant then moved that the jury be polled. The first eight jurors stated that they had found appellant guilty on all counts. Jurors 9 and 10, however, said that they found appellant not guilty on the robbery bill. Jurors 11 and 12 then stated that they found defendant guilty on all counts. A sidebar conference followed, after which the trial court announced that the jury was unanimous as to the burglary and conspiracy bills but not as to the robbery bill.
At this point, the following interchange took place: "JUROR No. 12: May I ask, sir — THE COURT: You had better not make a statement at this point." Appellant then objected to the recording of the verdicts before juror 12 was heard. The trial court overruled the objection and ordered the verdicts recorded.
After this was done, the following interchange took place: "THE COURT: I will hear Juror No. 12. JUROR No. 12: I was a little confused in the way I voted and I find there is others [sic] in this jury who voted the way I did were also confused. I was of the understanding that we had to come back with a complete bill of guilty on all three things. Now I find that it's different, that we don't have to do that. And under those circumstances, I would like to change my vote. THE COURT: You can't do it after the verdict is recorded."
This case thus presents the question whether, after the jury has been polled and before the verdicts have been recorded, the trial court must hear questions jurors may have as to their votes.
In Pennsylvania, a defendant who is tried before a jury is entitled to unanimous verdict. Commonwealth v. Fugmann, 330 Pa. 4, 29, 198 A. 99 (1938); Pa. R. Crim. P. 1120(b).
In this instance, the polling revealed that juror 12 had voted on the incorrect assumption that he was required to find defendant either guilty or not guilty on all counts. Juror 12 wanted to alter his vote, but the court refused to hear him prior to the recording of the verdict.
Our traditional notions of justice do not sanction such action. In criminal cases, where we are vitally concerned with safeguarding the rights of an accused, a court should be alert to any indication from the jurors that the announced verdict does not reflect their actual thinking. When, as here, a juror addresses the court as to some problem concerning him, the court must inquire of that juror before proceeding. Because the court refused to inquire here, we cannot ascertain whether juror 12 would have dissented from the robbery verdict, as had jurors 9 and 10, or from the burglary and conspiracy verdicts, nor should we speculate about such matter. In the absence of any clear indication of juror 12's actual vote, we cannot allow any of the convictions to stand.
The general rule of law is that until it is recorded, the jury's verdict is alterable. Commonwealth v. Martin, 379 Pa. 587, 598, 109 A.2d 325 (1954); Commonwealth v. Johnson, 359 Pa. 287, 59 A.2d 128 (1948). The obvious corollary of that rule is that prior to the recording of the verdict, any juror should be permitted to dissent from the announced verdict. In fact a defendant is entitled to poll a jury in order to see if any juror wishes to dissent. Commonwealth v. Martin, supra; Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965).
See People v. Superior Ct., 67 Cal.2d 929, 64 Cal.Rptr. 327, 434 P.2d 623 (1967), where the California Supreme Court approved a trial court's inquiry into a juror's hesitancy during polling and found that its declaration of a mistrial was not an abuse of discretion.
The judgment of sentence is vacated and a new trial is ordered.
WATKINS, J., dissents.