Defendant James Cook was charged by bill of information with possession of marijuana with intent to distribute,
Defendant relies on two assignments of error,
The penalty for violation of R.S. 40:967(A)(1), possession of marijuana with intent to distribute, is a maximum of ten years' imprisonment at hard labor. R.S. 40:967(B)(2). Therefore, according to the Louisiana Constitution of 1974, Art. I, § 17, and according to C.Cr.P. art. 782, the offense is triable by a jury consisting of no less than twelve persons, ten of whom must concur to render a verdict. In his instructions to the jury, the trial judge erroneously stated that only nine of the jury's number needed agree to render a verdict.
After charging the jury, the judge gave them a list of the verdicts responsive to the offense charged, as is required by C.Cr.P. art. 809. The verdict sheet contained inked notations on both the front and the back. On the front, typewritten, was the following:
Beside the third and fourth options, "GUILTY OF POSSESSION OF MARIJUANA and GUILTY OF ATTEMPTED POSSESSION OF MARIJUANA", there appeared no markings. Beside the first entry, "GUILTY", there appeared nine strokes, or "1" entries. Beside "NOT GUILTY" appeared two strokes or "1's". And beside "GUILTY OF ATTEMPTED DISTRIBUTION OF MARIJUANA" there appeared one stroke, or "1".
On the reverse of the verdict sheet there appeared the entry signed by the foreman "We the people of the jury find the defendant Guilty." Beneath that recitation appeared the following:
It is evident from the review of the typewritten list of responsive verdicts and from the corresponding handwritten entries on the reverse with a 9-0-1-2 tally that the single entry beside "Dist." on the reverse was intended to correspond with a single stroke appearing on the front of the responsive verdict beside "GUILTY OF ATTEMPTED
The trial judge accepted the jury's verdict apparently continuing in his misapprehension concerning the number of concurrences required for a conviction. He did, of course, poll the jury after being presented the inscribed verdict sheet, but his question and the juror responses as appear in the record are ambiguous. The question was "[i]s this your verdict?", and apparently each of the jurors in turn answered affirmatively. It is noteworthy that each juror
As previously stated, the trial judge's error in the instruction is not part of the record for this Court's error patent review and is therefore, absent objection, not grounds for reversal of the conviction. State v. Chaney, 273 So.2d 259 (La.1973); State v. Bueche, 243 La. 160, 142 So.2d 381 (1962); State v. Marqueze, 45 La.Ann. 41, 12 So. 128 (1893). The verdict of the jury, however, is discoverable in the pleadings and proceedings for purposes of the errors patent review, as we have repeatedly held. State v. Sanford, 248 La. 630, 181 So.2d 50 (1965); State v. Craddock, 307 So.2d 342 (La.1975); and the verdict proper surely includes those markings placed upon the verdict sheet by the jury. As earlier noted, the sheet included, in addition to the foreman's designation of the guilty verdict, a vote tally, and on the reverse, markings indicating a pre-tally count. This verdict, therefore, represents a finding of guilty with only nine juror concurrences. Since we find error evident in the verdict, the defendant's conviction must be reversed.
In the absence of a concurrence of ten of the twelve jurors, there was no legal verdict rendered, either of conviction or of acquittal. Hence, it is proper that the defendant be retried. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824).
Accordingly, for the reasons set out above, the defendant's conviction is reversed and the defendant is remanded to the district court for retrial.
REVERSED AND REMANDED.