Apodaca , 1997-NMCA-051, ¶ 25, 123 N.M. 372, 940 P.2d 478. If the actual intent of the jury, as reflected in a preliminary verdict, appears ambiguous or inconsistent, it is within the trial court's authority to refuse to accept the preliminary verdict and seek to clarify the jury's intent. See id. ¶ 21 (citing State v. Searles , 113 Conn. 247, 155 A. 213, 216 (1931). "[T]he trial court is under a nondiscretionary duty to clarify any ambiguity in the jurors’ responses and obtain a clear and unambiguous response from the jury ...."
In a word, "`[i]nstructions should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over portions of the testimony on the other side which deserve equal attention.'" State v. Rome, 64 Conn. 329, 339, 30 A. 57 (1894); see Anderson McPadden, Inc. v. Tunucci, supra; State v. Searles, 113 Conn. 247, 258, 155 A. 213 (1931); Maltbie, Conn. App. Proc. 89. The wide discretion a trial court has in its comments on the evidence may not require it to discuss particular items of testimony, particularly where issues were clearly delineated during the trial, where the arguments of counsel fairly presented the case and where there was no request to charge. Gosselin v. Perry, supra, 165; Quednau v. Langrish, supra, 710.
The court was compelled to return the jury for further deliberations so that the verdict rendered would be clear and unambiguous. State v. Searles, 113 Conn. 247, 255, 155 A. 213 (1931). The verdict form accepted by the court was an intelligible finding and its meaning was clear.
In order for a verdict to be set aside, a verdict must exist. See State v. Searles, 113 Conn. 247, 256, 155 A. 213, and Black v. Griggs, 74 Conn. 582, 584, 51 A. 523. (Both courts distinguish the power of a judge to return the jury for further consideration from the power to set aside a verdict, emphasizing that in the former situation the power must be exercised before the verdict is accepted.) Since a valid verdict exists, no double jeopardy bar rises to preclude an appeal in this case.
Under similar circumstances, where the facts were largely undisputed, where the defendant admitted the acts charged, and where the only substantial issue was one of intent, this court held that the trial court did not exceed its wide discretion to comment on the evidence, or lack thereof, when it expressed the opinion that the state had produced evidence of a very strong nature in support of the charge. State v. Searles, 113 Conn. 247, 257-58, 155 A. 213; see State v. Mullings, supra, 274. The court charged the jury that the state had the burden of proving the defendant guilty beyond a reasonable doubt, that until this was done the defendant was presumed innocent, and that there was no burden on the accused to prove himself innocent. It thoroughly summarized the only evidence presented by the defense, which was the defendant's testimony.
The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter. State v. Searles, 113 Conn. 247, 257-58, 155 A. 213; State v. Wade, 96 Conn. 238, 245-46, 113 A. 458; State v. Cabaudo, 83 Conn. 160, 163, 76 A. 42. "`The ultimate test of a court's charge is whether it fairly presents the case to a jury in such a way that injustice is not done to either party under established rules of law.' `A charge must be read in its entirety; . . . and it is to be considered from the standpoint of its effect upon the jury in guiding them to a correct verdict.'"
The statute allows the trial court twice to return the jury to reconsider their verdict if it judges that the verdict which has been returned indicates that the jury have mistaken the facts or failed to follow the directions of law. See State v. Searles, 113 Conn. 247, 256, 155 A. 213. If a verdict in the proper form is returned by the jury after the jury's second reconsideration, it must be accepted by the court. State v. Searles, supra; Black v. Griggs, 74 Conn. 582, 584, 51 A. 523. The process of rendering a verdict is complete when the verdict of the jury is accepted by the court.
It was not error to send the jury back for further consideration of the other two counts. State v. Cianflone, 98 Conn. 454, 462, 120 A. 347; see State v. Searles, 113 Conn. 247, 253, 155 A. 213. The defendant was presented for sentence, and the state moved for sentence on each count of the indictment, whereupon the court sentenced the defendant to the death penalty "on each of the convictions returned by the jury."
When the jury returned with a defendant's verdict in the first instance, the judge remarked to them at considerable length, stating, among other things, that he considered the verdict should have been a plaintiff's verdict but that they might retire and consider the case further and if they brought in a defendant's verdict he would accept it. The right of the court to comment to the jury upon the evidence in the case and to express its opinion thereon is well recognized in this state. State v. Searles, 113 Conn. 247, 256, 155 A. 213. In such a commentary, however, it is the better practice that the court confine its remarks to discussion of the evidence.
It is the rule that the giving of additional instructions to aid the jury in reaching a correct solution has always been a matter in the sound discretion of the trial court. Allis v. United States, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91; Caldwell v. United States, 10 Cir., 36 F.2d 738; Phares v. State, 158 Ark. 156, 249 S.W. 551; Davis v. People, 83 Colo. 295, 264 P. 658; State v. Searles, 113 Conn. 247, 155 A. 213; People v. Hudson, 258 Ill. App. 378; McClellan v. State, 118 Tex.Crim. R., 40 S.W.2d 87; State v. Frandsen, 176 Wn. 558, 30 P.2d 371. The charge may be given on the court's own motion and it is not restricted solely to matters requested by the jury.