State v. David I. Rogers, unpublished opinion, App. Div. Docket No. A-4165-07T4 (June 28, 2010) – Conviction for first degree robbery reversed…
“because the court did not resolve a discrepancy between the jurors’ findings as announced by their foreperson in court and the verdict sheet, which indicated that the jury found defendant not guilty of first-degree robbery…. [On the verdict sheet,] the jurors placed one checkmark on the line above the word ‘GUILTY’ [of robbery] and another on the line above the word ‘NO’ [for being armed during the robbery].
The markings are clear and unambiguous; there are no stray marks, cross-outs or any other indication of ambivalence. The verdict sheet reflects that the jurors determined that defendant committed robbery but was not armed, using or threatening the immediate use of a deadly weapon. When the jurors reported that they had a verdict and returned to the courtroom, the judge inquired of the foreperson. ‘Question one, as to Mr. Rogers, guilty or not guilty?’ The foreperson responded, ‘Guilty.’
The judge then asked, ‘Was the defendant armed with or did he use or threaten the immediate use of a deadly weapon?’ The foreperson responded, ‘Yes.’… After the jurors were polled, they were discharged with thanks for their service and without further inquiry…. Relying upon the polling of the jurors, the State argues that we should disregard the blatant inconsistency between the verdict sheet and the determinations announced by the foreperson.
The polling, however, provides no information that permits us to discern whether a mistake was made when the line on the verdict sheet was checked above the word ‘No’ or when the foreperson responded ‘Yes.’ If the mistake was made by the foreperson, the question the judge posed to poll the jurors would not have elicited a response from a juror who believed that the foreperson misspoke….
In short, the polling, as conducted, did not address or eliminate the doubt raised by the discrepancy…. This case demonstrates that a verdict sheet should be reviewed before the verdict is accepted and the jury is discharged. That simple precaution will permit a judge to formulate proper questions for polling and to address any ambiguities suggested by discrepancies…. Because we have a reasonable doubt about whether defendant’s conviction for first-degree robbery rests upon facts found by a unanimous jury, reversal of that conviction is warranted.”