Benefield v. State

602 S.E.2d 631, 278 Ga. 464, 2004 Fulton County D. Rep. 2970, 2004 Ga. LEXIS 600

• Court: Supreme Court of Georgia
• Decided: September 13, 2004
• Docket: S04G0664
• Status: Published

Opinions

Thompson, Justice.

We granted certiorari to the Court of Appeals in Benefield v. State, 264 Ga. App. 511 (591 SE2d 404) (2003), to determine whether a criminal defendant’s right to a poll of the jurors was violated when the trial court received a negative response to a poll question posed to a juror, and no further deliberation occurred. We answer in the affirmative and reverse the judgment of the Court of Appeals.

Walter Clifford Benefield was found guilty by a jury of three counts of aggravated child molestation and one count of child molestation. After the verdict was published, Benefield’s counsel requested that the jury be polled. In accordance with that request, the trial court asked each of the jurors whether the published verdict was their verdict in the jury room and whether it was still their verdict. The twelfth juror responded “no” to the first poll question. Neither defense counsel, the prosecutor, nor the court reacted to the response. The trial court then asked that juror the second question, “is it now your verdict,” to which the juror responded “yes.” At the conclusion of the poll, the court informed the jury, “if any of you had said that it is not your verdict that was published or it is not your verdict now, what I would have done would have been sent you back to the jury room and let you deliberate again.” The court then entered judgment and sentenced the defendant.

Benefield appealed to the Court of Appeals, raising for the first time a claim of ineffective assistance of trial counsel due to counsel’s failure to object to the jury poll. By order, the Court of Appeals remanded the case to the trial court for a hearing on that issue.¹ On remand, the trial court ruled that any ambiguity in the verdict was removed when the juror replied affirmatively to the second question, and that Benefield was not denied effective assistance of trial counsel. Benefield again appealed to the Court of Appeals, which affirmed the trial court’s ruling that the verdict was unanimous, and concluded that Benefield was not denied effective assistance of counsel. Benefield, supra.

“There is no uniformity in, nor statutory authority for, polling a jury although it is a material right derived from common law. [Cit.] The obj ect of the poll is to ascertain before the public and the prisoner that the verdict agreed upon in the jury roomis still the unanimous verdict of the jury.” [Cit.] We have held that the questions, “Was that your verdict?” and “Is it now your verdict?” meet the minimum requirements of the defendant’s right to a poll of the jurors. [Cit.]

(Emphasis omitted.) Tucker v. State, 252 Ga. 263 (349 SE2d 172) (1984).

Where a poll of the jury discloses other than a unanimous verdict, the proper procedure is for the trial court to return the jury to the jury room for further deliberations in an effort to arrive at a unanimous verdict. Rouse v. State, 265 Ga. 32 (3) (453 SE2d 30) (1995). On this principle, the cases are legion. See, e.g., Larry v. State, 266 Ga. 284 (5) (466 SE2d 850) (1996); Burnett v. State, 240 Ga. 681 (11) (242 SE2d 79) (1978); Young v. State, 239 Ga. 53 (6) (236 SE2d 1) (1977); Miller v. State, 265 Ga. App. 402 (2) (593 SE2d 943) (2004); Hunter v. State, 202 Ga. App. 195 (5) (413 SE2d 526) (1991); Lockleer v. State, 188 Ga. App. 271 (1) (372 SE2d 663) (1988); Rosser v. State, 156 Ga. App. 463 (2) (274 SE2d 812) (1980); White v. Seaboard C.L.R. Co., 139 Ga. App. 833 (1) (229 SE2d 775) (1976).

The Court of Appeals incorrectly interpreted precedent from both our appellate courts in arriving at the conclusion that the juror’s answer to the second question “cured any ambiguity that may have been caused by [her] negative response to the first.” Benefield, supra at 514. In Larry v. State, supra at 287 (5), upon which the Court of Appeals relied, the trial court properly returned the jury for further deliberations when a juror answered a poll question in the negative. After further deliberations the jury arrived at a unanimous verdict and another poll was conducted. That poll confirmed that each juror assented to the verdict both in the jury room and during the jury poll. We held that “[t]he earlier voiced reservations ... did not prevent the final verdict from being free and voluntary and unanimous.” Id. at 287. That was because the proper procedure had been implemented and the jury ultimately was able to reach a unanimous verdict.

This is not a case in which a juror expressed reservations about her verdict, but reluctantly agreed with it.

[T]here is a great difference between agreeing reluctantly to a verdict and so unwillingly consenting to a verdict as to seize the first proper opportunity to declare that fact. . . . [W]hen the juror states that his assent to a verdict of guilty was not freely and voluntarily given, it is necessarily to be implied that his concurrence was due to external pressure, not to his own volition, but to the volition of another, substituted in place of his own.

Ponder v. State, 11 Ga. App. 60, 61 (74 SE 715) (1912). Thus, the Court of Appeals’ reliance on Larry, supra and Scruggs v. State, 181 Ga. App. 55 (1) (351 SE2d 256) (1986), was misplaced. See also in that context Rouse, supra; Hanson v. State, 258 Ga. 564 (4) (372 SE2d 436) (1988); Young, supra; Parker v. State, 81 Ga. 332 (5) (6 SE 600) (1888).

“In criminal cases the privilege of polling a jury is the legal right of the defendant, and does not depend upon the discretion of the court.” Maddox v. State, 233 Ga. 874, 876 (2) (213 SE2d 654) (1975). The purpose of the rule is to insure that each member of the jury assents to the verdict, and for the court to discern possible coercion. In accordance with that precept and a century of precedent of our appellate courts, we conclude that a negative response to a poll question “is enough to raise the inference that the finding of the jury was not concurred in by each of the jurors, and, this being true, there was no legal verdict.” Ponder, supra at 62. We hereby adopt the reasoning of White v. Seaboard C.L.R. Co., supra at 836-837:

When this juror answered “No” to the question “Did you vote for this verdict your individual self?” and that it was not his verdict, then there was no verdict, and the jurors should have been returned to the jury room for further deliberation. No motion by the parties was necessary — this should have been done by the court on its own motion. There having been no legal verdict, there could be no valid judgment.

Thus, it was not incumbent upon counsel to move the court for further deliberations. To the extent that Hanson v. State, supra; Jackson v. State, 184 Ga. App. 123 (361 SE2d 14) (1987); and Person v. State, 235 Ga. 814 (4) (221 SE2d 587) (1976), are inconsistent with this ruling, they are expressly overruled.

Judgment reversed.

All the Justices concur, except Carley, J., who dissents.

1 At the hearing, trial counsel stated that he did not hear the juror’s negative response; and the prosecutor stated that he thought he heard the juror say “no,” but because no one else reacted, he thought he heard incorrectly. The prosecutor then approached the court reporter, who confirmed that the response was “no.” By this time, the jury had been dismissed. The trial court apparently did not hear the negative response.