Ogundipe v. State

BELL, C.J.,

dissenting.

I.

This case presents the question whether the communications referenced in Md. Rule 4-326(d),1 which requires a trial *78court to notify counsel of all communications received from the jury, include a signed verdict sheet, which, upon receipt and prior to accepting the verdict or discharging the jury, the court must disclose to a criminal defendant or his counsel. The majority, agreeing with the Court of Special Appeals, holds that a verdict sheet cannot be considered a “communication” within the meaning of Rule 4-326(d) and, therefore, the trial court did not commit reversible error in failing to disclose it and its contents to the defendant or his counsel. Ogundipe v. State, 73-74, 33 A.3d at 992-93 (2011). Under the circumstances of this case, I disagree.

A jury sitting in the Circuit Court for Washington County found the petitioner, Olusegun Ogundipe, guilty of first degree murder, attempted first degree murder, two counts of first degree assault, use of a handgun during the commission of a crime of violence, and wearing, carrying, and transporting a handgun. The instructions given the jury and the circumstances surrounding the taking of its verdict provide the predicate for the issue this Court must resolve. To assist it in its deliberations and to record its verdict, the jury was given a verdict sheet containing twelve questions. In his instructions to the jury, the trial judge explained the composition of the verdict sheet and related the twelve questions to the charges against the petitioner, and addressed the consequences of the answer on other questions and charges. Thus, in that regard, the jury was instructed:

“Questions One and Two relate to the charges of first and second degree murder of Jackson Rodriguez. Question One is: As to the charge of first degree murder of Jackson Augustin Rodriguez, on or about July twenty-three 2006, how do you find the defendant Olusegun Hakeem Ogundipe, guilty or not guilty?
*79“You’re given further instruction then: If your answer to that question would be not guilty, then I would ask you to consider Question Number Two, which is second degree murder of Jackson Rodriguez.
“After you have done that, then Question Three and Four relate to the attempted first and second degree murder of Tony Perry. You would consider first degree murder. If your answer to that would be not guilty then you would consider attempted second degree murder of Tony Perry.
“Questions Five and Six relate to the first degree assault of Jackson Rodriguez. Using the same means of analysis, Questions Seven and Eight relate to the first and second degree assault of Tony Perry. And Questions Nine and Ten relate to the first and second degree assault of Steven Broadhead.
“Question Eleven relates to the charge of the use of a handgun in the commission of a crime of violence. I would ask you to once again consider the instructions that were given. Before you consider that question and the last question is as to the charge of wearing and carrying and transporting a handgun. How do you find the defendant, guilty or not guilty?
“Once again, I would remind you that your decision must be unanimous. In other words, all twelve of you must agree.”

Notwithstanding these detailed instructions, the verdict sheet was completed inconsistently with the instructions, suggesting, if not reflecting, a misunderstanding of those instructions. With respect to the charges of first degree murder, first degree assault, use of a handgun in commission of a crime of violence, and wearing, carrying and transporting a handgun, the jury answered “guilty.” Contrary to the court’s instructions, however, it went on to answer, “not guilty,” to the subsequent questions addressing second degree murder, and second degree assault, lesser degrees of two of the above offenses.

*80Thereafter, with the defendant present, the verdict was taken, as required by Maryland Rule 4-327,2 in open court. In that regard, the following exchange occurred between the clerk and the jury:

“The Court: Okay. Mr. Clerk, if you would take the verdict of the jury, please.
“Clerk: Yes, sir. Ladies and gentlemen of the jury, are you agreed as to your verdict? If so, please answer, “We are.”
“Jury: We are.
“Clerk: Who shall say for you?
“Jury: Our foreman.
“Clerk: Please stand. As to the charge of first degree murder of Jackson Austin Rodriguez ... how do you find the defendant ... guilty or not guilty?
“Foreman: Guilty.
*81“Clerk: As to the charge of attempted first degree murder of Tony Perry ... how do you find the defendant ... guilty or not guilty?
“Foreman: Guilty.
“Clerk: As to the charge of first degree assault of Jackson Austin Rodriguez ... how do you find the defendant ... guilty or not guilty?
“Foreman: Not guilty.
“Clerk: As to the charge of second degree assault of Jackson Austin Rodriguez ... how do you find the defendant ... guilty or not guilty?
“Foreman: Not guilty.
“Clerk: As to the charge of first degree assault of Tony Perry ... how do you find the defendant ... guilty or not guilty?
“Foreman: Guilty.
“Clerk: As to the charge of use of a handgun in the commission of a crime of violence ... how do you find the defendant ... guilty or not guilty?
“Foreman: Guilty.
“Clerk: As to the charge of wearing, carrying and transporting a handgun ... guilty or not guilty?
“Foreman: Guilty.”

Ogundipe v. State, 191 Md.App. 370, 375-76, 991 A.2d 200, 203-04. Rather than ask each question to which an answer was given, however, the clerk of the court only asked the jury for its verdict, and hearkened those verdicts, with respect to those offenses as to which the jury indicated a verdict of “guilty” or there was no inconsistency' — the jury found the petitioner “not guilty” of both first and second degree assault of Rodriguez. Thus, The clerk did not ask for the jury’s verdict with respect to questions Two, regarding the second degree murder of Austin Rodriguez, Four, attempted second degree murder of Tony Perry, Eight, second degree assault of Tony Perry, or Ten, second degree assault of Steven Broad-*82head. The jury had marked these questions, “not guilty.” The verdict of the jury was then hearkened, as follows:

“Ladies and gentlemen of the jury, hearken your verdict as the Court hath recorded it. Your foreman saith that Olusegun Hakeem Ogundipe is guilty of first degree murder of Jackson Augustin Rodriguez on or about July 23, 2006. That Olusegun Hakeem Ogundipe is guilty of attempted first degree murder of Tony Perry on or about July 23, 2006. That Olusegun Hakeem Ogundipe is not guilty of first degree assault of Jackson Augustin Rodriguez on or about July 23, 2006.
“That Olusegun Hakeem Ogundipe is not guilty of second degree assault of Jackson Augutin Rodriguez on or about July 23, 2006. And Olusegun Hakeem Ogundipe is guilty of first degree assault of Tony Perry on or about July 23, 2006. That Olusegun Hakeem Ogundipe is guilty of first degree assault of Steven Ramel Broadhead on or about July 23, 2006. That Olusegun Hakeem Ogundipe is guilty of the charge of use of a handgun in the commission of a crime of violence on or about July 23, 2006. And that Olusegun Hakeem Ogundipe is guilty of wearing, carrying and transporting a handgun on or about July 23, 2006.
“And so say you all? If so, please answer, “We do.”

Id., 191 Md.App. at 376, 991 A.2d at 204. The jury responded in the affirmative, and, upon being individually polled at the request of defense counsel, confirmed that they each, indeed, had arrived at this verdict unanimously. The jury was then dismissed. At no time prior to its dismissal was it revealed that the jury had inconsistently completed the verdict sheet. Judgment was entered consistent with the verdict rendered in open court and the petitioner subsequently was sentenced to life imprisonment plus an additional ten years.

The petitioner learned of the inconsistencies on the verdict sheet days after the trial, id., whereupon, after filing a motion for modification which was held sub-curia by the trial court, he challenged the verdict, in particular, the process by which the verdict was taken. He argued that the verdict sheet *83constituted a “communication,” within the meaning of Rule 4-326(d), which, therefore, was required to be disclosed to counsel. The trial court disagreed, as did the Court of Special Appeals, to which the petitioner noted an appeal. The intermediate appellate court held that the presiding trial judge is neither required “to review the verdict sheet, [n]or to show the verdict sheet to the defendant during the return of the verdict,” and further, that “the jury sheet is not a ‘communication’ from the jury to the court seeking a response by the court.” Ogundipe, 191 Md.App. at 385, 991 A.2d at 209-10. It relied, in part, on Maryland Rule 4-327, supra, note 2, which governs the procedure for returning a jury verdict, stating that it “does not require the judge to review the verdict sheet or to show the verdict sheet to the defendant at any time during the return of the verdict.” Id., 191 Md.App. at 385, 991 A.2d at 209.

The majority affirms the decision of the Court of Special Appeals. Ogundipe, 61-62, 33 A.3d at 985-86. It holds that a verdict sheet does not come within the meaning of “communication” as used in Rule 4-326(d). Id., 73-74, 33 A.3d at 992-93. That this is so, the majority says, is demonstrated by the plain language of, as well as by the intent underlying, the Rule. Id., 74-76, 33 A.3d at 993-94. The majority relies on Denicolis v. State, 378 Md. 646, 837 A.2d 944 (2003). There, we addressed the purpose of Rule 4-326(d), concluding that it is to allow parties the opportunity to provide input before the court responds to a communication. Id., 378 Md. at 656, 837 A.2d at 950. It follows, the majority states, looking to the plain language of the Rule and noting that a verdict sheet does not require input from counsel or the court, Ogundipe, 75-76, 33 A.3d at 994, that a verdict sheet cannot be the sort of communication contemplated by 4-326(d). Moreover, according to the majority, agreeing with the intermediate appellate court, since a “verdict sheet itself is a tool for the jury to utilize in deciding its verdict,” id., 72, 33 A.3d at 992 quoting 191 Md.App. at 381, 991 A.2d at 207, the contents of a verdict sheet do not evince a final verdict. Ogundipe, 72-73, 33 A.3d at 992. It reasons further that the verdict sheet, as it was *84completed by the jurors, did not reflect or demonstrate any confusion, since the trial court did not specifically instruct the jurors to skip those questions regarding the lesser included offenses of which the petitioner was found not guilty. Id., 72-73, 33 A.3d at 992. The majority finally is satisfied that the courtroom clerk acted properly in skipping the questions related to those lesser included offenses. Id., 72-73, 33 A.3d at 992. Accordingly, it holds that the trial court did not commit error and, thus, that the petitioner’s convictions must be upheld. Id., 76-77, 33 A.3d at 994-95.

I agree that it is unnecessary for this Court to look beyond the plain meaning of Rule 4-326(d) to resolve the question this case presents. I do not agree, however, with the conclusion it reaches upon conducting the plain meaning analysis. I believe, on the contrary, that the plain language of Rule 4-326(d) requires, without exception, that “any communication from a jury pertaining to the action ” be disclosed to counsel. (Emphasis added). Accordingly, I dissent.

II.

The question before us for resolution is:

“Whether there is a duty of the trial court to disclose a signed verdict sheet to a defendant or his counsel before the jury is discharged when that verdict sheet has been completed in violation of the trial court’s instructions, which verdict sheet evidences an inconsistent verdict, confusion and/or possible acquittal, and which verdict sheet was only partially covered during oral pronouncement of the verdict by the jury?”

As a threshold matter, the majority elects to address only that portion of the question that asks whether disclosure is required. 60, 33 A.3d at 985 n. 1. It reasons that the second portion, questioning the accuracy of the verdict sheet, is based on an underlying assertion which was not accepted by the Court of Special Appeals and, thus, is irrelevant, and improp*85er. Id., 61, 33 A.3d at 985. As I will demonstrate, this approach is unwarranted. Indeed, by taking this approach, the majority ignores a key part of the issue on which we granted certiorari. As a result, it fails to provide a complete response to the issue we agreed to resolve.

Turning first to the question of the nature of a verdict sheet, we look for guidance, first, to the language of Maryland Rule 4-326(d). It provides:

“The court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action. The clerk or the court shall note on a written communication the date and time it was received from the jury.”

In construing a court rule, as in the case of a statute, see Pickett v. Sears, Roebuck & Co., 365 Md. 67, 78, 775 A.2d 1218, 1224 (2001), Johnson v. State, 360 Md. 250, 264, 757 A.2d 796, 804 (2000), we “begin[ ] with the plain language of the statute,” and look to “ordinary, popular understanding of the English language [to] dictate[ ] interpretation of its terminology.” Kushell v. Dep’t of Natural Res., 385 Md. 563, 576, 870 A.2d 186, 193 (2005). It is important, in so doing, that we “neither add nor delete language so as to reflect an intent not evidenced in the plain language of the statute; nor construe the statute with forced or subtle interpretations that limit or extend its application.” Id., 385 Md. at 566-77, 870 A.2d at 193. “If statutory language is unambiguous when construed according to its ordinary and everyday meaning, then we give effect to the statute as it is written.” Id., 385 Md. at 577, 870 A.2d at 193. Specifically, “[i]f there is no ambiguity in that language, either inherently or by reference to other relevant laws or circumstances, ... we do not need to resort to the various, and sometimes inconsistent, external rules of construction, for the Legislature is presumed to have meant what it said and said what it meant.” Arundel Corp. v. Marie, 383 Md. 489, *86502, 860 A.2d 886, 894 (2004) (quoting Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165 (2002)) (internal quotation marks omitted). Applying these principles of construction to the interpretation of Rule 4-326(d) makes clear that a verdict sheet is a “communication” within its ambit.

Rule 4-326(d) references “any communication received from the jury pertaining to the action.” It requires, without further defining “communication” or making any exception, that such communications be disclosed to counsel “as promptly as practicable and in any event before responding to the communication.” To decide whether a jury verdict comes within the Rule, it is necessary, therefore, that we determine the meaning of “communication,” and “pertains.” Looking to the ordinary usage of the language in question, as we are instructed by the canons of construction to do, Kushell, supra, we find that the Merriam-Webster Dictionary defines a “communication” as “information communicated”; “a verbal or written message.” Merriam-Webster Dictionary 100 (3d ed. 2005). To “communicate”, according to Merriam-Webster, is “to convey knowledge of or information about: make known.” Id.

The word, “pertain”, as it is used in Rule 4-326(d), is defined in the Merriam-Webster dictionary as, “to have reference.” Id. at 370, 870 A.2d 186. A verdict sheet certainly “ha[s] reference” to the action at hand. It is, in fact, as characterized by the petitioners, “the ultimate communication.” While it is not really the ultimate communication with regard to the case, it is, at that moment, the most critical communication concerning the issues to be decided that the jury could make. As such, it meets and far exceeds the requirement of simply referencing the action. Concluding otherwise, in light of the plain language of the Rule, is illogical.

A verdict sheet, containing the jury’s findings, albeit required by, and in response to, the court’s instructions, on its face, is a communication and it very clearly pertains to the case. It is the encapsulation, in written form, of the result of the jury’s deliberations. Specifically, it apprises the court of *87the jury’s findings, following deliberations, on the factual issues of a case, to be subsequently announced in open court. See Black’s Law Dictionary 1696 (9th ed. 2009). The jury verdict indubitably “convey[s] knowledge of or information about” the case and the jury’s findings, Merriam-Webster, supra; it “makes known” those findings. Id. Rule 4-326(d) does not limit or even address how, by whom, or with what purpose a “communication” may be initiated. Indeed, and therefore, it clearly does not exclude jury verdicts. This is clear on the face of the Rule.

Nor does the existence of Rule 4-327, pertaining to jury verdicts, suggest or require a different conclusion. That Rule does not require that verdicts be recorded on verdict sheets, thus creating a separate and distinct communication device for the taking of a verdict. Like Rule 4-326, Rule 4-327 recognizes that the communication of the verdict, like the communication of a jury question, can be oral, in which case it must occur in open court, on the record. The Rule requires only that “[t]he verdict of a jury shall be unanimous and shall be returned in open court.” Rule 4-327(a). And there is, contrary to the majority’s assertion, a response, or several responses, required of the court: polling of the jury, see Rule 4-327(d), hearkening of the verdict and discharge of the jury. To hold that the plain meaning of ‘communication’ does not encompass a verdict sheet requires that we construe Rule 4-326(d) “with forced or subtle interpretations that limit ... its application.” Kushell v. Dep’t of Natural Res., 385 Md. at 576-77, 870 A.2d at 193. But that is precisely what the majority does.

That it is so clear, from the face of Rule 4-326(d) alone, that a verdict sheet is a communication that pertains to an action, renders the majority’s opposite conclusion all the more inexplicable. More notable, our cases involving Rule 4-326(d), and its underpinnings, buttress the conclusion that a verdict sheet is a communication that must be disclosed to counsel. Our prior analyses of Rule 4-326(d) have occurred, to be sure, only in the context of jury communications, originating with the jury, during deliberations, requiring a response from the trial *88court, see Denicolis, 378 Md. 646, 837 A.2d 944; Stewart v. State, 334 Md. 213, 638 A.2d 754 (1994); however, contrary to what the majority suggests, 75-76, 33 A.3d at 994, we have never held that the reach of Rule 4-326(d) does not extend beyond those circumstances.

We discussed the purpose of the Rule 4-326(d) requirements in Denicolis v. State, 378 Md. at 656, 837 A.2d at 950, where we recognized, inter alia, that the Rule sought to safeguard “the Constitutional and common law right of a criminal defendant to be present at every critical stage of trial.” Citing Midgett v. State, 216 Md. 26, 36-37, 139 A.2d 209, 214 (1958), we again emphasized the principle, consistently adhered to by this Court, that “an accused in a criminal prosecution has the absolute right to be present at every stage of trial from the time the jury is impaneled until it reaches a verdict or is discharged,” and further, that “any communications whatsoever between the court and the jury” must be conducted in the presence of the defendant. Denicolis, 378 Md. at 656, 837 A.2d at 950 (emphasis added). It is significant, and telling, that the reference is to “any communication,” rather than to one that requires a response from the court. Surely, the fact that a communication does not seek a direct response from the court or require input from counsel does not make it any less critical to the outcome of the trial. Nor should it automatically undermine a defendant’s right to be present and, more important, be privy to the information it conveys, all of it.

It is not enough simply to be present. The right to be present means nothing, is but a show, if all information is not available to all parties. When the jury verdict is announced in open court orally, the parties are on the same field; they have all the available information.3 That is not the case when the jury verdict is written and not all of what the jury wrote is *89shared. To be sure, a defendant well may be physically present when the jury verdict is taken, but if he is not given access to information on that written verdict sheet that may undermine the verdict announced and that may be used to explore that possibility, his right to be present will be rendered hollow.4 Had the petitioner been aware of how the verdict sheet was completed, he could have, and I expect, would have asked the court to voir dire the jury on the point and, perhaps, sought to present a case for mistrial. The point is that the petitioner was not playing on a level playing field.5

Furthermore, contrary to what the majority suggests and would be the result of this decision, this right to be present does not expire immediately at the conclusion of the jury’s deliberations; it persists until the jury has been discharged from its duties, after the reading of the verdict in open court, the polling of the jury and the hearkening of the verdict. See Midgett, supra. In Denicolis, supra, we also explained, relying on Stewart, 334 Md. at 225, 638 A.2d at 759 (1994), that “this right is absolute and that a judgment of conviction ordinarily cannot be upheld if the record discloses a violation of the right.” (internal quotation marks omitted).

*90Our Rule 4-326(d) jurisprudence, thus, demonstrates that the majority’s conclusion that verdict sheets are not “communications” within its contemplation is unfounded, both in light of the plain language of the rule, and the rights it seeks to protect. This is made especially clear upon reviewing the facts of this case where the petitioner’s constitutional and common law right to be present was, in fact, infringed upon by the trial court’s nondisclosure. The record demonstrates that, whether or not the jury misunderstood the detailed instructions provided by the trial court, it answered questions that did not need to be answered and that the court appeared to say did not have to be answered, resulting in inconsistent verdicts, and, thus, logically could be found to be confused. The court’s failure to disclose the verdict sheet, then, and the courtroom clerk’s failure to read the sheet in its entirety, deprived defense counsel of valuable information necessary to the defense of his client and deprived the petitioner of information that gave substance to his right to be present. With the knowledge that the jury failed to comply with the instructions they were provided, the petitioner would have had an opportunity to provide input, including urging the court to take curative measures. The existence of this possibility, alone, is sufficient to call into question whether the petitioner’s rights were safeguarded throughout the trial. Such uncertainties have no place in criminal proceedings, where the freedom and, indeed, the lives of defendants are at stake.

Additionally, whether a verdict sheet constitutes the final verdict of the jury may be an interesting question to be addressed, but it is hardly one that is dispositive of the pivotal question in this case — whether the trial court, upon receipt, was required to disclose the contents of the verdict sheet to the petitioner. Consequently, as we did not grant certiorari on that issue and it is not argued by the petitioner, I believe that it should not have been decided.

The verdict sheet was, in fact, completed in contravention of the trial court’s instructions. The effect and consequence of the jury having done so must be addressed as a part of the Court’s overall analysis. In any event, I do not agree that the *91intermediate appellate court’s refusal to accept the petitioner’s argument that the verdict sheet was completed in error, as the majority believes, 60, 33 A.3d at 985, somehow limits this Court’s ability to address that very issue anew or, at the very least, to consider it as part of our overall analysis. We are authorized to review the decision of the lower court de novo, and may do so, in its entirety, regardless of that court’s disposition. See Md. Rule 8-131. Furthermore, as I have explained, even if we were to accept the proposition that the verdict sheet was not completed in error, the plain language of Rule 4-326(d) still requires a trial court to disclose its contents under all circumstances.

The majority conflates the issue before this Court, whether a jury verdict sheet is a jury communication, with a related, but irrelevant question, whether a verdict sheet constitutes the actual verdict of a jury. Admitting that the latter issue was not raised by the petitioners and is not one on which we granted “cert,” it justifies its decision to address it by reference to the petitioner’s complaint with regard to the clerk’s failure to read the verdict sheet in its entirety, in which he referred to the verdict sheet as “the ultimate communication,” implying, according to the majority, 70-71, 33 A.3d at 991, that the verdict sheet constituted the verdict itself. That is, I think, an overly expansive and inappropriate understanding of the petitioner’s position. As I read the question he presents, whether a trial judge is required to disclose the contents of a verdict sheet, particularly, when it “evidences an inconsistent verdict, confusion and/or possible acquittal, and which verdict sheet was only partially covered during oral pronouncement of the verdict by the jury,” the petitioner is simply seeking to assert that the clerk’s failure to read the answers to the other questions, much like the court’s decision not to disclose the contents of the verdict sheet, denied the petitioner the knowledge that it was completed in error and, more important, the opportunity to urge the court to take curative measures before the conclusion of the proceedings. Addressing those circumstances did not require the majority to determine whether a verdict sheet constituted the verdict of the jury. Its relevance *92to our inquiry is in its indication that the failure of the trial court to disclose the contents of the verdict sheet not only ran afoul of the language of Rule 4-326(d), but also, that the court’s and the clerk’s subsequent conduct infringed upon the petitioner’s right to be present at every critical stage of the trial, a right which the rule seeks to protect.

III.

It is particularly troublesome that the majority fails to sufficiently support its position and, instead, seeks to debunk the notion that a verdict sheet constitutes a communication within the reach of Rule 4r-326(d), with an analysis intended to demonstrate that a verdict sheet is distinguishable from the actual verdict of the jury. I do not undertake to explore that question since, as I have explained, that is not the issue before this Court today. Indeed, even if a verdict sheet is not considered the actual jury verdict, this does not make it any less of a communication which pertains to the action. The majority’s decision to embark upon that line of analysis was, thus, unnecessary, as the issue of distinguishing the verdict sheet from the actual verdict does not, and should not, bear on the conclusion of whether this particular verdict sheet is a communication as contemplated by Rule 4 — 326(d).

I dissent.

. Md. Rule 4-326(d) provides:

"Communications with jury. The court shall notify the defendant and the State’s Attorney of the receipt of any communication from *78the juiy pertaining to the action as promptly as practicable and in any event before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action. The clerk or the court shall note on a written communication the date and time it was received from the jury.”

. Maryland Rule 4-327 states:

(a) Return. The verdict of a jury shall be unanimous and shall be returned in open court.
(b) Sealed verdict. With the consent of all parties, the court may authorize the rendition of a sealed verdict during a temporary adjournment of court. A sealed verdict shall be in writing and shall be signed by each member of the juiy. It shall be sealed in an envelope by the foreperson of the juiy who shall write on the outside of the envelope "Verdict Case No.........” "State of Maryland vs. ....................................." and deliver the envelope to the clerk. The juiy shall not be discharged, but the clerk shall permit the jury to separate until the court is again in session at which time the jury shall be called and the verdict opened and received as other verdicts.
(c) Two or more defendants. When there are two or more defendants, the jury may return a verdict with respect to a defendant as to whom it has agreed and any defendant as to whom the jury cannot agree may be tried again.
(d) Two or more counts. When there are two or more counts, the jury may return a verdict with respect to a count as to which it has agreed, and any count as to which the jury cannot agree may be tried again.
(e) Poll of juiy. On request of a party or on the court's own initiative, the juiy shall be polled after it has returned a verdict and before it is discharged. If the sworn jurors do not unanimously concur in the verdict, the court may direct the juiy to retire for further deliberation, or may discharge the juiy if satisfied that a unanimous verdict cannot be reached.

. The equivalent to this situation in an oral verdict situation would be if the judge or the clerk had been apprised of the unreadiness of a juror, which was not disclosed when the verdict was taken because the juror did not him or herself disclose.

. The verdict sheet was, in fact, completed in contravention of the trial court's instructions. The court instructed the jury:

"If your answer to that question would be not guilty, then I would ask you to consider Question Number Two, which is second degree murder of Jackson Rodriguez.
"After you have done that, then Question Three and Four relate to the attempted first and second degree murder of Tony Perry. You would consider first degree murder. If your answer to that would be not guilty then you would consider attempted second degree murder of Tony Perry.”

It was told to use the same analysis with regard to the assault degrees. If there were a question about this, the ambiguity of the instruction would nevertheless warrant concern and a desire to inquire into why the jury completed the sheet as it did. The effect and consequence of the jury having done so, in any event, was a matter that could, and should, have been addressed during the verdict taking phase of trial.

. In truth, neither was the State. The difference, however, is that the non-disclosure did not, under the circumstances, potentially prejudice the State.