☢ test - Í

verdict that it found the defendant ‘guilty with reasonable doubt.’ The trial court correctly refused to accept this verdict because reasonable doubt was inconsistent with a finding of guilt and cast doubt upon the unqualified nature of the guilty verdict. See State v. Benton, 278 Ga. 503, 505, 604 S.E.2d 169 (2004). ‘There is no verdict as long as there is any uncertainty or contingency to the finality of the jury's determination.’ (Citations omitted.) Cook v. United States, 379 F.2d 966, 970 (5th Cir.1967). Because the verdict was inconsistent or otherwise defective, the trial court correctly called the jury’s attention to the defect and gave instructions to the jury to resume deliberations to cure the defect. Kennedy v. State, 274 Ga. 396, 398, 554 S.E.2d 178 (2001) and Wade v. State, 258 Ga. 324, 332, 368 S.E.2d 482 (1988) (where jury returns ambiguous verdict, trial court may refuse to accept it and require the jury to continue deliberations); State v. Freeman, 264 Ga. 276, 277-278, 444 S.E.2d 80 (1994) (trial court has duty to insist on legal verdict according to the issues framed by the indictment and the court’s charge to the jury).” Analogized to Loftin v. State, 180 Ga.App. 613-614, 349 S.E.2d 777 (1986); distinguished from Maltbie v. State, 139 Ga.App. 342, 344, 228 S.E.2d 368 (1976). “ In Maltbie, we found the jury’s verdict of ‘guilty without intent’ was the equivalent of an acquittal , which the trial court was required to accept, because the jury’s separate finding that the defendant acted without criminal intent was clear and unambiguous, and without criminal intent there was no guilt as a matter of law.” “ In Loftin, we found the trial court correctly refused to accept the jury’s verdict of ‘guilty of voluntary manslaughter by reason of insanity .’ (Punctuation omitted.) Id. at 613, 349 S.E.2d 777. Finding the legal concept of ‘insanity’ inherently less clear than the concept of ‘intent,’ we rejected Loftin’s argument that a finding of ‘insanity’ negated any possibility of legal guilt and was the equivalent of an acquittal. Id. at 613-614, 349 S.E.2d 777. Similarly, we find that, unlike the separate finding in Maltbie that the defendant acted without criminal intent, the verdict of ‘guilty with reasonable doubt’ is not clear and has no single element that is ‘necessarily dispositive of the jury’s finding with regard to ultimate criminal responsibility.’ (Emphasis omitted.) Loftin, 180 Ga.App. at 614, 349 S.E.2d 777.” Ellis v. State, 282 Ga.App. 17, 637 S.E.2d 729 (October 2, 2006). “Ellis contends that the form and return of the verdict was improper. When the jury first announced that it had a verdict, the trial court examined the verdict form and instructed the jurors to return to the jury room, because based on their conclusions on counts three and four (aggravated battery and aggravated assault) they had to make a finding regarding the lesser included offenses included on the verdict form (battery, simple battery, and simple assault). The jury retired, and the foreperson sent a note to the judge that said, ‘Your Honor, first time jury, first time foreman. I marked the verdict wrong. I made a clerical mistake. I am sorry.’” The jury then returned a verdict of guilty on lesser-included offenses. Held, the trial court’s procedure was proper. “When the jury has not decided the lesser included offenses of which the defendant is charged, the trial court commits no error in directing them to deliberate further to decide those counts. Easley v. State, 262 Ga.App. 144, 150(2) (584 S.E.2d 629) (2003).” Buttram v. State, 280 Ga. 595, 631 S.E.2d 642 (June 12, 2006). “It is not error to refuse to include voluntary manslaughter on the verdict form where the court instructs the jury on voluntary manslaughter. Brinson v. State, 276 Ga. 671(4) (581 S.E.2d 548) (2003).” Accord, Leeks v. State , 296 Ga. 515, 769 S.E.2d 296 (February 16, 2015). Cox v. State, 279 Ga. 223, 610 S.E.2d 521 (March 14, 2005). “The jury sent out a note indicating that a question had arisen about the distinction between felony murder and malice murder. Before the trial court could respond, it received another note stating that the jurors had reached a verdict as to two of the three co-defendants. In response to these two notes, the trial court gave the recharge, and then asked only for the identity of the two co-defendants on whom agreement had been reached. The foreperson stated that the jury had come to a decision as to Cox and Kellogg. At that point, the jurors retired to commence redeliberations. Eventually, the trial court received a note from the jury indicating that it could not reach a verdict as to Parker. Only then did the jurors return to the courtroom and publish the verdicts finding that Cox and Kellogg were guilty. ‘“ [N]o legal verdict occurs until it is received and published in open court (cit.),” [cit.]....’ Daniley v. State, 274 Ga. 474, 475(2), 554 S.E.2d 483 (2001). At the time of the recharge, all that the trial court established was that the jury had come to some unspecified agreement as to Cox’s and Kellogg’s guilt or innocence. The record clearly shows that the actual guilty verdicts against them were not received and published until after the jurors heard the recharge and then had retired for further deliberations. Moreover, Cox was given the benefit of the clarification of the crime of murder, because the trial court concluded the recharge with the admonition that the jurors should ‘go back and rethink the two that you have previously decided on, and [determine] if you still have the same decision or if you have a different decision....’ Daniley v. State, supra. Accordingly, there was no error either in the recharge or in the reception of the guilty verdicts in this case.” Accord, Brown v. State , 310 Ga.App. 285, 712 S.E.2d 521 (June 9, 2011) (where jury indicated it had a verdict, but trial court replaced juror and instructed jury to begin deliberations again before verdict was published, there was no verdict).

Made with FlippingBook Ebook Creator