State v. Gray

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No. 101,481

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CLAUDIE GRAY,
Appellant.


SYLLABUS BY THE COURT

1.
Under K.S.A. 22-3421, a party in a criminal case has the burden to request
individual polling of the jury.

2.

When a party in a criminal case fails to make a timely request to poll the jury, the
party waives the right to have the jury individually polled.

3.
Under K.S.A. 22-3421, the jury's verdict shall be written, signed by the presiding
juror, and read by the clerk to the jury, and an inquiry made regarding whether it is the
jury's verdict.

4.
K.S.A. 22-3421, which requires that an inquiry be made to the jury regarding
whether the verdict represents the jury's verdict, mandates reversal of the verdict when
the trial court neglects to make an inquiry to the jury as required by K.S.A. 22-3421.
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Appeal from Reno District Court; RICHARD J. ROME, judge. Opinion filed March 18, 2011.
Reversed and remanded with directions.

Carl Folsom, III, of Kansas Appellate Defender Office, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Steve Six,
attorney general, for appellee.

Before HILL, P.J., GREEN, J., and BUKATY, S.J.

GREEN, J.: Claudie Gray was convicted by a jury of one count of aggravated
assault of a law enforcement officer and three alternative counts of fleeing and attempting
to elude a police officer. In the present case, we must determine whether Gray is entitled
to a new trial where the trial court fails to inquire in open court, before the jurors are
discharged, whether the jury agrees with the verdict just announced by the foreperson.
We determine that a jury verdict rendered and announced in open court that does not
follow the statutory mandate of K.S.A. 22-3421, requiring the trial court to inquire
whether the verdict is the jury's verdict, is reversible error. Accordingly, we reverse and
remand for a new trial.

Gray contends that the trial court erred when it failed to ask the jury whether the
verdict that was announced was its verdict. Before accepting a verdict and discharging
the jury, Kansas law requires trial judges to comply with the provisions of K.S.A. 22-
3421 to ensure the unanimity of the jury's verdict:

"'The verdict shall be written, signed by the presiding juror and read by the clerk to the
jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury
must be sent out again; but if no disagreement is expressed, and neither party requires
the jury to be polled, the verdict is complete and the jury discharged from the case. If the
verdict is defective in form only, it may be corrected by the court, with the assent of the
jury, before it is discharged.'" (Emphasis added.) K.S.A. 22-3421.
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K.S.A. 22-3421 includes two provisions to ensure the proper rendition of a verdict before
it is accepted and the jurors are discharged.

First, the trial judge must inquire as to the jury's verdict. Second, the trial judge
must, if asked by either party, poll the jury. The trial judge complies with the first
requirement by asking the jury collectively: "Is this your verdict?" The trial judge
satisfies the second requirement (if requested by either party) by asking each juror
individually: "Is this your verdict?" See State v. Holt, 285 Kan. 760, 770-71, 175 P.3d
239 (2008) ("While trial courts do not have to be 'letter perfect' in their polling
procedures and language, the better practice is to poll the jury in such a way as to ensure
that each juror is answering for him or herself, e.g., asking, 'Is this your verdict?'").

Here, because Gray never requested polling of the jury, he waived his right to have
the jury individually polled. See State v. Johnson, 40 Kan. App. 2d 1059, 1075, 198 P.3d
769 (2008) ("In the absence of a request by either party to poll the jury, . . . the trial court
[does] not err in failing to individually poll the jury.").

Nevertheless, as stated earlier, Gray asserts that the trial court erred when it failed
to ask whether the verdict was the jury's verdict. Moreover, Gray argues that the trial
court violated K.S.A. 22-3421 by not "asking whether the verdict read by the presiding
juror was the jury's verdict." We have unlimited review over issues of jury unanimity.
State v. Dayhuff, 37 Kan. App. 2d 779, 784, 158 P.3d 330 (2007).

On the day that the jury reached its verdict, the following occurred:

"THE COURT: Foreman of the jury. Have you reached a verdict?
"PRESIDING JUROR: Yes, we have, Your Honor.
"THE COURT: Would you hand the verdict form to Mr. Miller and I'll look at it.
"(The verdict was delivered to the Court.)
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"THE COURT: Thank you. All right. I think, Mr. Hageman, I do this sometimes.
Sometimes I get on a—on a kick. Sometimes I read it. Sometimes I have the foreman
read it, and today I feel like I am going to let you read it. So would you read the verdict?
It is—just start out In The District Court and go all the way down, okay, and read it.
[The presiding juror then read the verdict on all four of the counts against Gray.]
"THE COURT: All right. Does either side wish to have the jury polled?
"MR. STANTON: No, Your Honor.
"MR. TIMAN: No, we don't."

The court then excused the jury. The court did not ask the jury after reading the verdict
whether it was the jury's verdict.

There is no dispute that the trial court did not ask the jury whether the verdict was
the jury's verdict. In Johnson, we held that the trial court's failure to inquire as to whether
the verdict was the jury's verdict was reversible error. The State, however, asserts that
Johnson is distinguishable from this case because unlike Johnson, there were no concerns
about the unanimity of the jury's verdict. Nevertheless, the Johnson court held that "until
the inquiry is made and the trial court is satisfied that the verdict is truly unanimous, the
verdict is not complete." 40 Kan. App. 2d at 1077.

The reason why K.S.A. 22-3421 requires the trial court to inquire in open court
whether the jury agrees with the verdict, even when the parties waive polling, is to ensure
a defendant's constitutional right to a unanimous verdict and to safeguard the concept of
finality with respect to the jury verdict. Johnson, 40 Kan. App. 2d at 1076 ("This
requirement accomplishes the important purpose of ensuring that the jury's verdict is
unanimous.").

"By requiring inquiry as to whether the verdict is the jury's verdict, K.S.A. 22-
3421 gives jury members the opportunity to express disagreement with or dissent from
the verdict in open court." 40 Kan. App. 2d at 1077. In this case, the trial judge simply
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asked the jury foreperson whether the jury had reached a verdict. At no point after having
heard the verdict read in court were the jurors given an opportunity to express
disagreement with the verdict. Therefore, asking the jury foreperson if a verdict has been
reached does not accomplish the same objective as inquiring whether the verdict is the
jury's verdict.

The trial court's failure to follow the statutory mandate of K.S.A. 22-3421 to
inquire as to whether the verdict was the jury's verdict was reversible error.
Consequently, a new trial is warranted in this case. To hold otherwise would ignore the
importance of the requirements of unanimity and finality with respect to jury verdicts.

Because we have determined that there was reversible error in this case, it is
unnecessary to address Gray's remaining arguments raised in his appeal.

Reversed and remanded for a new trial.