holding that no manifest necessity exists where the jury is unanimous against guilt on a greater offense but deadlocked on a lesser included, and the trial court should allow a partial verdict in such cases
How later courts described this case
- holding that no manifest necessity exists where the jury is unanimous against guilt on a greater offense but deadlocked on a lesser included, and the trial court should allow a partial verdict in such cases
- declining “to place a burden on the trial judge to sua sponte inquire further or perform a special poll of jurors who deliberate on cases involving lesser included offenses”
- characterizing A Juvenile, supra, as “clearest and most comprehensive” of decisions rejecting use of partial verdicts on complaints “involving greater and lesser offenses”
- stating “[j]urors are presumed to understand and follow the jury instructions”
Written by the judges who cited it.
The opinion
COATS, Judge,
dissenting.
The great majority of courts which have addressed the issue of whether a trial court must accept a partial verdict on a greater offense when the jury is unable to unanimously agree on a verdict on a lesser-included offense have concluded that the court has no such duty. In fact, it appears that most courts clearly reject the proposition that the trial court has the authority to *280 receive such a verdict. See Fitzgerald v. Lile, 732 F.Supp. 784 (N.D.Ohio 1990); A Juvenile v. Commonwealth, 392 Mass. 52 , 465 N.E.2d 240 (1984); State v. Bell, 322 N.W.2d 93 (Iowa 1982); State v. Booker, 306 N.C. 302 , 293 S.E.2d 78 (1982); People v. Hickey, 103 Mich.App. 350 , 303 N.W.2d 19 (1981); People v. Hall, 25 Ill.App.3d 992 , 324 N.E.2d 50 (1975); Walters v. State, 255 Ark. 904 , 503 S.W.2d 895 (1974); State v. Hutter, 145 Neb. 798 , 18 N.W.2d 203 (1945). So, at the time Judge Buckalew was confronted with the decision of whether to ask the jury if it had acquitted Whi-teaker of first-degree murder, the great weight of precedent was against his having the authority to receive such a verdict. When the case came up for retrial, Whi-teaker’s counsel argued that the trial court had no authority to retry Whiteaker on first-degree murder, because the trial judge had not determined that there was manifest necessity for a mistrial on that charge. Whiteaker’s counsel, who had considerable time to consider the motion, never thought to raise the issue that Whiteaker could not be retried for second-degree murder or manslaughter. Following a second jury trial, a jury convicted Whiteaker of second-degree murder. On appeal, Whi-teaker now argues that we should adopt the minority position that Judge Buckalew was required in her first trial to accept a partial verdict on any offenses upon which the jury could agree as long as the jury followed the instruction which required them to unanimously agree to acquit on a greater offense before moving on to a lesser offense. Since we are unable to know the state of jury deliberations in the first trial, Whiteaker points out that we only know for certain that the jury was unable to agree on the negligent homicide charge. She contends that the maximum charge which she can face is a negligent homicide charge.
In my view, Whiteaker has a strong argument that if the jury in her first trial concluded that she should be acquitted of first-degree murder, but was unable to agree on second-degree murder, that the judge should have accepted the not guilty verdict on first-degree murder. On retrial, she should only face a maximum charge of murder in the second degree. But at the time of Whiteaker’s trial, only a small number of jurisdictions had such a procedure. Judge Buckalew had no way of knowing that this court would adopt a minority position. The result of Judge Buckalew’s “error” is an extreme windfall for Whiteaker. Having been convicted of second-degree murder, she can only be convicted of negligent homicide. Although I favor a change in the criminal rules to effectuate the rule for which Whiteaker argues, I do not believe that it is fair to apply this rule retroactively.