Cantrell v. State ( 1996 )

Thompson, Justice.

We granted certiorari to the Court of Appeals in Cantrell v. State, 217 Ga. App. 641 (459 SE2d 564) (1995), to answer this question: When a jury states it has reached a verdict of guilty on an unindicted lesser offense that is included within an indicted offense, and the jury further states that it is unable to agree on the indicted offense, is it error for the trial court to reject the verdict and require the jury to reach agreement on the indicted offense before rendering a verdict on the lesser included offense?

Cantrell was indicted and tried for possession of cocaine with intent to distribute. The court charged the jury that possession of cocaine was a lesser included offense. In the midst of deliberations, the jury inquired whether it could render a verdict on possession of cocaine without reaching a verdict on intent to distribute. The court replied:

You should first consider whether the State has proven possession with intent to distribute beyond a reasonable doubt. If so you would be authorized to find the defendant guilty. If not you should then consider whether the State has proven possession beyond a reasonable doubt. If so you would be authorized to find the defendant guilty of possession. If not, you should find the defendant not guilty.

The jury returned to the jury room and continued deliberations. Anticipating an evening recess, the court brought the jury into the courtroom and asked if it needed more time to deliberate. The foreman replied that further deliberation was unnecessary — they could “settle it right now.” Asked if he had a verdict, the foreman replied affirmatively. The verdict was tendered to the court. Dated, and signed by the foreman, it read: “We the jury . . . find the defendant . . . guilty for the possession of a controlled substance. ... We the jury are unable to reach a verdict on the charge of intent to distribute a controlled substance. . . .” The court then asked if the jury was able to agree unanimously one way or the other on the intent to distribute charge and the foreman replied: “It hadn’t been unanimous. We’re in disagreement.” The court inquired whether the jury wanted to continue deliberating on the indicted offense. When a juror responded affirmatively, the court decided to send the jury back for further deliberations. Once again, it instructed the jury that it must consider the indicted offense before it considered the lesser included offense.

As soon as the jury left the courtroom to resume deliberations, Cantrell asserted that unanimity on the greater offense was not required and that the court should have accepted the verdict on the lesser included offense. He pointed out that a unanimous verdict had been reached, i.e., the jury unanimously returned a verdict of guilty of possession of cocaine. The court disagreed, taking the position that the jury had not returned a verdict. The next day, the jury found Cantrell guilty of possession of cocaine with intent to distribute.

The Court of Appeals upheld the conviction, ruling that the trial court was authorized to shelve any verdict on the lesser included offense until the jurors reached a unanimous verdict on the greater offense. Cantrell, supra at 642. We reverse.

This Court has long held that when an indictment charges an offense, and the jury returns a verdict of guilty on a lesser included offense, the verdict operates as an acquittal of the greater offense. Miller v. State, 58 Ga. 200, 202 (2) (1877); Jordan v. State, 22 Ga. 545 (1857). Thus, if a jury returns a verdict on a lesser included offense, further deliberations are precluded.¹ In this case, the jury returned a verdict of guilty of possession of cocaine. In so doing, the jury acquitted Cantrell of the greater offense, possession of cocaine with intent to distribute. Miller v. State, supra.

Alexander v. State, 247 Ga. 780 (279 SE2d 691) (1981), upon which the Court of Appeals relied, does not compel a different result. While Alexander acknowledged that a jury should be charged that it has the authority to consider a lesser offense if it finds the defendant “not guilty” of the greater offense,² it did not intimate that a court can insist upon unanimous agreement on a greater offense before consideration of a lesser offense. In fact, by pointing out that the trial court did not require unanimity on the greater offense, Alexander implied that such a charge would be erroneous. In so doing, Alexander cited People v. Ray, 204 NW2d 38 (Mich. App. 1972), in which the Michigan Court of Appeals held that where a jury deliberates a greater offense and an included offense, unanimity is not required for the greater offense before the jury can vote on the included offense.

People v. Ray, supra, yields a sound result. Indeed, as the District of Columbia Court of Appeals noted in Jones v. United States, 544 A2d 1250 (D.C. App. 1988), requiring unanimity with respect to the greater offense gives the prosecution an unfair advantage.

In Jones, defendant was charged with possession of cocaine with intent to distribute. After deliberating, the jury twice reported that it was deadlocked. It then inquired whether it could consider the lesser offense of simple possession if it could not reach an agreement on the greater offense. The court instructed the jury that it must convict or acquit on the greater offense before considering the lesser offense. On appeal, the court rejected a unanimity requirement with respect to the greater offense: Id. at 1253. Accord State v. Ogden, 580 P2d 1049 (Or. App. 1978).

Under [a unanimity requirement] the lesser offense cannot even be considered until the whole jury votes to acquit the defendant of the greater [offense]. Jurors favoring the lesser offense, unless they can dissuade those favoring the greater, must either hold out until a mistrial is declared because of the deadlock or surrender their opinions and vote for the greater offense. [Cit.] Members of the jury who have substantial doubts about an element of the greater offense, but believe the defendant guilty of the lesser offense, may very well choose to vote for conviction of the greater rather than to hold out until a mistrial is declared, leaving the defendant without a conviction on any charge. [Cits.]

While this case does not involve a unanimity instruction, the end result is the same. By refusing to accept the jury’s verdict of guilty on the possession offense, the court forced the jury to reach unanimous agreement on the intent to distribute offense before considering the possession offense.³

It is true that, generally speaking, if a jury is in disagreement, the disagreement is not a verdict. Romine v. State, 256 Ga. 521, 525 (350 SE2d 446) (1986). Thus, where a jury deliberates imposition of the death penalty, unanimity, one way or the other, is required. Id. Likewise, where a jury deliberates separate crimes, unanimity, one way or the other is required for each crime. But where, as here, a jury deliberates a greater offense and an included offense, unanimity is not required for the greater offense before the jury can vote on the included offense. See Alexander v. State, 247 Ga. 780, 784, supra. In this connection, we note that the pattern jury instructions do not require unanimity with respect to an indicted offense before consideration of an included offense. They simply require a unanimous verdict as to the whole.

We conclude that the jury did not have to reach unanimous agreement on the possession of cocaine with intent to distribute offense before considering the lesser included offense of possession of cocaine. It follows that the trial court erred in rejecting the verdict and requiring the jury to deliberate further.⁴ Miller v. State, 58 Ga. 200, supra.

Judgment reversed.

All the Justices concur, except Sears, Hun-stein and Carley, JJ., who dissent.

1 The rule is otherwise, however, if the jury returns a verdict of guilty with regard to an offense which was not within the range of instructions given by the court. State v. Freeman, 264 Ga. 276 (444 SE2d 80) (1994).

2 Alexander, supra at 784. We recognize that Alexander has been cited for the proposition that a jury should not consider a lesser offense unless the defendant be found not guilty of the greater offense. See, e.g., Leslie v. State, 211 Ga. App. 871, 872 (440 SE2d 757) (1994). We have no quarrel with such a charge so long as the court does not insist upon unanimity and is willing to accept a verdict on the lesser offense.

3 It was necessary for the jury to consider the intent to distribute charge before it considered the possession charge. The court so instructed the jury and it complied with that instruction.

4 The State erroneously argues that the jury did not return a verdict at all because its findings were written on mere notepaper. “A verdict is legal even though written on the wrong paper. Verdicts acquire their legality from return and publication. [Cits.]” Martin v. State, 73 Ga. App. 573, 578 (4) (37 SE2d 411) (1946).