dissenting.
I respectfully dissent. Specifically, I do not agree that the instant case can be favorably distinguished from Gomez. Rather, I believe the trial court’s inadvertent failings in this case lent an appearance of coercion and duress more egregious than that of Gomez.
First, there are many similarities between the instant matter and Gomez. In both cases, the jury had difficulty in reaching a verdict. In both cases, the jury queried the court as to the effect of its not being able to reach a verdict. In both cases, the jury did not indicate that it was deadlocked. In both cases, the trial court assembled the jury and engaged in a dialogue but failed to answer a direct question regarding the implications of a hung jury. Based on such circumstances, the Gomez court concluded that there existed a reasonable possibility that the trial court’s comments contributed to the verdict. Gomez, 137 Idaho at 677, 52 P.3d at 321. This standard has been met in the instant matter as well.
The facts of the present case describe circumstances more compelling than those the Gomez court determined to be unacceptable. For example, in Gomez, but not the instant case, the trial court responded to the jury’s concern by indicating, correctly, that a mistrial would be declared if a unanimous verdict could not be reached. Furthermore, in Gomez, but not the instant case, individual jurors were able to ask questions. In the present case, the only questions or answers came from the presiding juror. As to whether the jury may have been misled, in Gomez, the trial court failed to answer a procedural question whereas here, the trial court failed to answer a question of law not addressed in the previous instructions given to the jury.
Finally, the context of the stage of the deliberations must be taken into account. Late in the evening, the presiding juror in the instant matter informed the trial court that agreement had been reached in the burglary count, but that no agreement had been reached in the aggravated assault count. The court polled the jurors, and a majority indicated that they would rather stay and deliberate further rather than resume in the morning. The trial court then instructed the *380jury to continue with deliberations, reminding them that they had the option of letting the bailiff know at what point the jury would like to recess if they could not reach a verdict. This response by the trial court only exacerbated the confusion of the jury and does not amount, as the majority suggests, to a mere directive to the jury to resume deliberations. Rather, by refusing to answer the jury’s question as to the effect of an inability to return two unanimous verdicts, and then telling the jury that they could take a recess suggested that they would have to keep trying until unanimity was reached. Less than an hour later, the jury returned with a guilty verdict on the aggravated assault count.
The Gomez court recognized that a trial court’s comments need not amount to a dynamite instruction to be error, concluding instead that the pertinent inquiry is whether such comments nevertheless “may well have misled the jury.” Id. The Gomez court stated:
It is clear that the jury was confused about what would happen if it did not reach a unanimous verdict. It is also clear what the proper answer was to the jury’s questions: The prosecutor’s office decides whether to seek a new trial. E.g., State v. Clay, 112 Idaho 261, 265, 731 P.2d 804, 808 (Ct.App.1987) (“when a jury is unable to agree on a verdict, the case may or may not be retried”).
It is apparent that the jury had difficulty reaching a verdict. It is quite possible that the district court’s comments left the jury with the impression that if it did not reach a verdict, there would not be another trial. The court’s comments did not amount to a dynamite instruction, but they may well have misled the jury. The district court could have answered the jury’s question with a simple statement: the prosecutor decides whether to seek a new trial, and the case may be retried before another jury.
Gomez, 137 Idaho at 677, 52 P.3d at 321. The question is therefore not whether there is tangible evidence of a pervasive confusion, but whether the circumstances, and the trial court’s response to those circumstances, cast any doubt on the reliability of the verdict. As in Gomez, the trial court’s comments in the instant case did not amount to a dynamite instruction, but it is quite possible the trial court’s failure to answer the jury’s question contributed to the verdict that was reached by the jury. Consequently, I would vacate the judgment of conviction and remand for further proceedings.