Jones v. State

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Kerwin Jones v. State of Maryland, No. 59, September Term, 2004. Criminal Law and Procedure. Jury Verdicts The Return of the Verdict. For a verdict to be properly returned by a jury, it must be orally announced in open court; the jury must be polled, if requested , and heark ened to its verdict. If the verdict is not orally announced, and the jury is neither polled nor hearkened to that verdict, it d oes not co nstitute a final v erdict. Therefore, any sentence imposed for such a verdict is an illegal sentence. IN THE COURT OF APPEALS OF MARYLAND No. 59 September Term 2004 __________________________________ KERWIN JONES V. STATE OF MARYLAND __________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Filed: January 20, 2005 This case requires us to determine whether a guilty verdict must be orally given prior to a request to have the jury polled and hearkened1 to its verdict. W e conclud e a sentenc e is illegal if based upon a verdict of guilt that is not orally announced2 in open court in order to permit th e jury to be polled a nd hea rkened to the ve rdict. I. Background On Novem ber 5, 2001 , Kerwin Jones held up Mohammed Shaik at gunpoint as Shaik was walking to the First Union Bank at 1515 Reisterstown Road to make a deposit encased in a money bag from the gas station where he was employed. Shaik struggled with Jones, and within moments, Jones had shot Shaik in the leg, had run from the scene, and entered a car driven by Samuel Murray. Through their investigation, the police determined that Jones was th e individ ual wh o shot S haik. On November 19, 2001, Jones was arrested; the police executed a search warrant on Jones s home and discovered a bulletproof vest, ammunition, and a box for a .380 1 Hearken is defined b y the Rando m Hou se Dictiona ry of the Eng lish Langu age as to give heed or attention to what is said. R ANDOM H OUSE D ICTIONARY OF THE E NGLISH L ANGUAGE, hearken (2 ed. unabridged 1987). Although there is an alternate spelling, i.e. harke n, in prior opin ions of this C ourt, when using he arken as a term of art, we have consistently used th is spellin g. See Ga lloway v. S tate, 371 Md. 379, 404, 809 A.2d 653, 669 (2002); Bishop v. S tate, 341 Md. 288, 290, 670 A.2d 452, 454 (199 6); Hoffert v. Sta te, 319 Md. 37 7, 381, 572 A.2d 53 6, 539 (19 90); Rice v. State , 311 Md. 116, 129, 532 A.2d 1357, 1363 ( 1987) . 2 Maryland Rule 4-327(b) provides that the parties may consent to a sealed verdict, which permits the ju ry to separate du ring a temporary adjournment of the court and reassemb le when th en the court is again in session. The se verdicts are not final, how ever, until the jury is recalled and the verdicts are received as other verdicts, Md. Rule 4-327(b), which we hold requires oral announcement, polling, if requested, and hearkening. semiautom atic handgun. Thereafter, Jones and Murray were cha rged in on e indictmen t: Jones was charged with two counts of assault in the first degree,3 attempted robbery with a dangerous and deadly weapon,4 attem pted robb ery, 5 attempted th eft and the ft,6 three coun ts 3 Md. Code (1957, 1996 R epl. Vol.), Art. 27, §12A-1 defines first degree assault as: (a) Serious physical injury; use of a firearm. (1) A person may not intentionally cause or attempt to cause serious injury to another. (2) A person may not commit an assault with a firearm, including: (i) A handgun, antique firearm, rifle, shotgun, short-barreled shotgun, or short-barreled rifle, as those terms are define d in § 36F of this article; (ii) An assault pistol, as defined in § 36H-1 of this article; (iii) A pistol, revolver, or antique pistol or revolver, as those terms are defined in § 441 of this article; (iv) An assault weapon, as defined in § 481E of this article; (v) A machine gun, as defined in § 372 of this article. (b) Penalty. A person who violates this section is guilty of the felony of assault in the first degree and on conviction is subject to imprisonment for not more than 25 years. Section 12A-1 was recodified without substantive change as Md. Code (2002, 2004 Supp.), § 3-202 of the Criminal Law Article. 4 Md. Code (1957, 1996 R epl. Vol.), Art. 27 § 488 provides: Every person convicted of the crime of robbery or attempt to rob with a dangero us or dead ly weapon or ac cessory thereto is guilty of a felony, shall restore to the owner thereof the thing robbed or taken, or shall pay him the full value thereof, and be sentenced to imprisonment for not more than 20 years. Section 488 was reco dified without substantive c hange as M d. Code (2002, 2 004 S upp.), § 3-403 of the Criminal Law Article. 5 Md. Code (1957, 1996 R epl. Vol.), Art. 27 § 486 provides: Every pers on convicted of th e crim e of r obbery or attempt to (contin ued...) 2 of wearing, carrying or transporting a handgun,7 and three counts of possession of a restricted 5 (...continued) rob, or as acces sory thereto before the fact, is guilty of a felo ny, shall restore the thing taken to the owner, or shall pay to him the full value th ereof, and be sentenced to imprisonment for not more than 15 years. Section 486 wa s recodified without substantive cha nge as M d. Cod e (2002 , 2004 S upp.), § 3-40 2 of the Crimin al Law Code . 6 Md. Code (1957, 1996 R epl. Vol.), Art. 27 § 342 provides: (a) Obtaining or exerting unauthorized co ntrol. A person commits the offen se of theft w hen he w illfully or know ingly obtains control which is unauthorized or exerts co ntrol which is unauthorized over property of the owner, and: (1) Has the purpose of depriving the owner of the property; or (2) Willfully or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the prop erty; or (3) Uses, conceals, or abandons the property knowing the use, concealm ent, or abandonment will probably deprive the owner of th e pro perty. *** (f) Penalty. (1) A person co nvicted of theft wh ere the property or services that was the subject of the theft has a value of $300 or greater is guilty of a felony and shall restore the property taken to the owner or pay him the value of the property or services, and be fined not more than $1,000, or be imprisoned for not more th an 15 years, or b e both fine d and imp risoned in the disc retion o f the co urt. Section 342 was recodified without substantive change as Md. Code (2002, 2004 Sup p.), § 7-104 of the Criminal Law Article. 7 Md. C ode (195 7, 1996 R epl. Vol.), A rt. 27 § 36B provides in pertinent pa rt: (b) Unlaw ful wea ring, ca rrying, or transporting of handguns; penalties. Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person, (contin ued...) 3 firearm.8 The cha rges agains t Murray w ere identical to those again st Jones, except that Murray was not c harged w ith three cou nts of posse ssion of a fire arm by a person pre viously convicted of a felony or crime of violence or the theft count. On September 30, 2002, trial began, and on its third day, the State abandoned Counts one (assault - in the first degree), four (assault in the f irst degree), fiv e (attempted theft), and eig ht (use of a handgun in the 7 (...continued) and any person who sh all wear, carry or knowingly transport any handgun, whether concealed or open in any vehicle traveling upon the public roads, highways, waterways, or airways or upon roads or parking lots gen erally used by the p ublic of this S tate shall be guilty of a misde meanor; a nd it shall be a rebuttable presumption that the person is know ingly transporting the handgun; and on conviction of the misdemeanor shall be fined or impr isoned . . . . (d) Unlawful use of handgun or antique firea rm in commission of crime; penalties. Any person who shall use a handgun or an antique firearm capable of being concealed on the person in the commission of any felony or any crime o f violence as defined in § 441 of th is article, wheth er operable or inoperab le at the time of the o ffense , shall be guilty of a separa te misde mean or . . . . Section 36B w as recodifie d withou t substantive change as Md . Code (2002, 20 04 Supp.), §§ 4-202 to 4-205 of the Criminal Law Article. 8 Md. Code (1957, 1996 R epl. Vol.), Art. 27 § 445(d) provides: (d) Restrictions on possession In genera l. A person may not possess a regulated firearm if the person: (1) Has been convicted of: (i) A crime of violence; (ii) Any violation classified as a felony in this State; (iii) Any violation classified as a misdem eanor in this State that carried a statuto ry penalty of more th an 2 year s; . . . Section 445(d) was recodified without substantive change as Md. Code (2003), § 5-133 of the Public Safety Article. 4 commission of a felony). The Cou rt also entered judgmen ts of acquitta l for Cou nts six (wearing, carrying, or transporting a handgun) and twelve (theft); and entered jud gments nolle prosequi at the request of the State for Counts ten (possession of a firearm by a person convicted of a violent crime classified as a felony) and eleven (possession of a firea rm by a person convicted of a violent crime classified as a misdemeano r). On the same day, the jury received instructions from the judge, a verdict sheet, and began its deliberations on the remaining four counts against Jones: attempted robbery with a dangerous and deadly weapon (Count two), attempted robbery (Count three), possession of a firearm by a person convicted of a crime of violence (Count nine), and use of a handgun in the commission of a crime of violence (Count se ven), and th ree counts a gainst M urray: attempted robbery with a dangerous and deadly weapon (Count two), attempted robbery (Count three), and the use of a handgun in the commission o f a crime of violence (Count seven). After deliberating for approximately two hours, the jury returned a guilty verdict against Murray on all three counts and was polled and hearkened to the verdict. In the proceedings pertaining to Jones,9 the following dialogue ensued: THE CLERK: Madam forelady, ladies and gentlemen of the jury, have you agreed upon a verdict in the case of State v. Kerwin Jones, case number 01-CR-4391. 9 Although the completed verdict sheet, signed by the foreperson, was filed in the record, no mentio n of mec hanically how that was ac complishe d appears in the trial transcrip t. We presume, as does the State, that the foreperson handed it to the courtroom clerk who, in turn, filed it in the court jacket. The verdict sheet reflected that Jones was found guilty of each of the four counts submitted. 5 JUROR: We have. THE CLERK : Who shall say for you? JUR OR : Ou r for elad y. THE CLERK : Madam forelady, if you w ould stand . As to the case 01-CR-4391, State of Maryland v. Kerwin Jones, how do you find as to attempted robbery with a dangerous and deadly weapon, not guilty or guilty as charged? MADA M FOREL ADY: Guilty as charged. THE CLERK: As to Count two, attempted robbery, not gu ilty or guilty as charged? MADA M FOREL ADY: Guilty as charged. THE CLER K: As to possession of a handgun in the commission of a crime of violence, not guilty or guilty as charged? MADA M FOREL ADY: Guilty as charged. MR. PARVIZIAN [counsel for Jones]: Would you poll the ladies and gentlemen of the jury please. THE CLERK: You can be seated. The Court has recorded in the aforesaid case, in case number 01-CR-4391, State of Maryland v. Kerwin Jones you have found a verdict of guilty of attempted robbery with a dan gero us an d deadly w eapo n, you have found him guilty of attemp ted robbery, an d you have f ound him guilty of the use of a deadly weapo n in the commission of a crime of violence. Is that your verdict juror number 1? The clerk polled the jurors individually and each juror responded affirmatively. The clerk then hearkened the jury to the verdict stating: Hearken to the verdict as the Court has recorded it, in case No. 01-CR-4319, State of Maryland v. Kerwin Jones, your forelady 6 said that you find him guilty of attempted robbery with a dangerous and deadly weapon; find him guilty of attempted robb ery, find him guilty of possession of a handgun in the commiss ion of a crim e of violen ce and so say you all? JUROR[S ]: Yes. The trial court then excused the jury and postponed sentencing for Jones until November 6, 2002, without there having been any acknowledgment of the discrepancy between the verdict sheet upon which Jones was found guilty of the four Counts submitted and the hearkened verdicts . On November 6, 2002, Jones was sentenced to twenty years incarceration for the charge of attempted robbery with a dangerous and deadly weapon (C ount two), twenty years incarceration without the possibility of parole for the first five years for the use of a handgun in the commission of a crime of violence (Count seven), and five years incarceration for the possession of a firearm by a person previously convicted of a felony or crime of violence (Count nine). 10 Each of the sentences was to be served concurrently. Jones did not object to the imposition of the senten ce for the use of a firearm after a conviction, which had not been orally conveyed in the courtroom and to which the jury had not been polled or hearkened. On March 26, 2003 , Jones note d his appeal to the Court of Spe cial Appeals. Befo re 10 The attempted robbery conviction (Count three) merged with the attempted robbery with a dangero us and de adly weapo n convictio n (Coun t seven) fo r the purposes of sentencing. 7 that court, Jones argued th at his conviction for possession of a firearm by a person previously convicted of a felony or crime of violence should not stand because the jury foreman did not ann ounce the guilty verdict in open court. In an unpublished opinion, the Court of Special Appeals noted, where it is unmistakable that the jury found the defendant guilty, substance will prevail over form even if the guilty verdict is not announced and even if it is negle cted agai n wh en th e jury is po lled. Ultima tely, the court de clined to disturb the sentence imposed for the firearm possession charge and concluded that the issue was not properly preserved by Jones because he had failed to object at any time when the verdict was delivere d or w hen he was se ntence d. Jones filed a petition for writ of certiorari in this Court for consideration of the following question: When a jury returns a verdict shee t showing a guilty verdict, but fails to announce the verdict in open court, does the trial court violate Maryland Rule 4-327 by accepting the verdict, and does such a violation ren der the imp osed subs equent sentence illega l? On August 25, 200 4, we granted Jon es s petition and issued the wri t of certio rari. Jones v. State, 382 M d. 688, 856 A.2d 723 (2004). We hold that the trial court could not legally impose a sentence for a verdic t that was no t orally conveyed in open court and to which the jury was neither polled nor hearkened. Therefore, we reverse the decision of the Court of Specia l Appe als. II. Standard of Review A court s revisory power over a defenda nt s sentenc e is provide d in Ma ryland Rule 8 4-345, w hich states in re levant part: (a) Illegal se ntence . The court may correct an illegal sentence at any time. As we have oftentimes stated, a senten ce may b e correc ted eve n on ap peal. See Evans v. State, 382 Md. 248, 278, 855 A.2d 291, 308 (2004 ); Ridgew ay v. State, 369 Md. 165, 171, 797 A.2d 1287, 1290 (2002); State v. Kanaras, 357 Md. 170, 183-84, 742 A.2d 508, 516 (1999); State v. Griffiths, 338 Md. 485, 496, 659 A.2d 876, 882 (199 5); Matthew s v. State, 304 Md. 281, 288 , 498 A.2d 65, 65 8 (1985), quoting Walczak v. State, 302 Md. 422, 427, 488 A.2d 949, 951 (1985). In Ridgeway, we explained that when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court. Such review and correction of an illegal sentence is especially appropriate in light o f the fa ct that R ule 4-3 45(a) . . . provides that [t]he court may correct an illegal sentence at any time. Ridgeway, 369 Md. at 171, 797 A.2d at 1290, quoting Walczak, 302 M d. at 427, 48 8 A.2d a t 951; see also Evans, 382 M d. at 278 , 855 A .2d at 30 8-09. III. Discussion Jones argues that because the verdict for the charge of possession of a firea rm by a person previously convicted of a felony or crime of violence was not orally announ ced in open court, the trial court s imposition o f sentence on that cou nt was illega l. He asserts that 9 Maryland Rule 4-327 (a)11 requires that the verdict not merely be handed to the clerk but that it also be read aloud into the record. He maintains that announcement in open court is required because of its relationship to a party s right to poll the jury as a means of ensuring the unanim ity of the v erdict. A lternativ ely, Jones state s, the announcing in o pen court permits polling of ju rors to that verdict if re quested to do so and hearkening of the jury to that verdict. He asserts that because the verdict was not announced in open court, he was deprived of his opportunity to poll the jury and the jury was never properly hearkened to Count nine of the indictmen t, possession of a firearm by a person p reviously convicted of a felony or crime of violence. As such, Jones notes that there was no assurance that the guilty verdict on the verd ict sheet with respect to Count nine was in fact unanimous. Jones argues that the use of shall in Rule 4-327(a) makes the announcing of the verdict in open court mand atory for th e verdic t to be ef fective . Con vers ely, the State urg es this Cou rt to affirm the decision reach ed by the Court of Special Appea ls. The State a sserts that Jon es did not p roperly preserve this issue for appeal because he did not bring the missing verdict for Count nine to the trial court s attention and did not object at the time the trial court imposed the sentence. Moreover, the State contends that Jones should have objected to the trial court s instruction that the jury was to retu rn its verdict on the verdict sheet if he intended to argue that to return a verdict requires it to be 11 Maryland Rule 4-327(a) states: (a) Return. The verdict of a jury shall be unanimous and shall be returned in open co urt. 10 announced in open court rather than simply recorded on a form that appears in the record. The State argue s that the prob able hand ing of the v erdict sheet to the clerk should be considered returning the verdict in open court for the purposes of Rule 4-327(a). It maintains that Jones s c laim regard ing the failur e to annou nce the ve rdict with resp ect to Count nine should only be co nsidered an attack on th e form of the verdict ra ther than its substance. The State asserts that the delivery of the v erdict sheet to the clerk in open court in Jones s pre sence satisfie d the require ments of Maryland Rule 4-327. Therefore, according to the State, there is no support for Jones s claim that the verdict at issue is invalid. A. Historic Procedures for Returning the Verdict The protocol for the return of v erdicts at trial in Marylan d in the late N ineteenth Century was articulated in Givens v . State, 76 Md. 485, 48 7, 25 A. 689, 689 (1893): When the jury have com e to a unan imous de termination with respect to their verdic t, they return to the box to deliver it. The clerk then calls them over, by their names, and asks them whether they agree on this verdict, to which they reply in the affirmative. He then demands who shall say for them, to which they answer, their foreman. This being done, he desires the prisoner to hold up his right hand and addresses them: Look upon the prisoner at the bar; how sa y you, is he guilty of the matter whereo f he indicted or not guilty? The foreman then answers guilty or not gu ilty, as the verdict may be. The officer then writes the word guilty or not guilty as the verdict is, on the record and again addresses the jury: Hearken to your verdict as the court hath recorded it. You say that _____ is guilty (or not guilty) of the matter whereof he stands indicted, and so say you all. This procedu re for return ing a verdic t is nearly identical to those used in the Provincial Court 11 established during the co lonial pe riod. See Proceedings of The Provincial Court, 1666-1667, at 64 (describ ing how the jurors retu rned to the c ourtroom , the clerk called their names, asked if they agreed on their verdict, and w ho was to speak for them). Moreover, it wa s standard practice throughout the rest of the U nited States as long ago as the ear ly Nin etee nth c entu ry. See James Parker , The Co nductor G eneralis, 323-24 (1801) (providing procedures identical to those used in the Prov incial Court); Samu el Freem an, The Massachusetts Justice, 40 (1802) (same); Samuel B ayard, An Abstract of those Laws of the United Sta tes Which Relate Chiefly to the Duties and Authority of the Judges of the Inferior State Courts, and the Justices of the Peace, Throughout the Union, 230 (180 4) (same ); 1 Jo seph Chitty, A Practical Treatise on the Criminal Law, 436-37 (1819) (stating that verdicts in criminal cases must be given publicly, not privately, in the accused s presen ce); 4 Jo seph C hitty, A Practical Treatise on The Criminal Law, 318, 421 (1819) (providing procedures identical to those used in the P rovinc ial Cou rt of M aryland). Maryland Rule 4-327 (a) and (e)12 embody the essence of this historical procedure for 12 Maryland Rule 4-327 (a) and (e) provide: (a) Return. T he verdict o f a jury shall be unanimous and shall be returned in open co urt. *** (e) Poll of jury. On request of a party or on the court s own initiative, the jury shall be polled after it has returned a verdict and before it is discharge d. If the jurors do not un animous ly concur in the verdic t, the court m ay direct the jury to retire for further deliberation, or may discharge the jury if satisfied that a unanimous verdict cannot be reached. 12 returning a verdict. This Rule is identical to former Maryland Rule 759,13 which was derived from Rule 40 of the Uniform Rules of Criminal Procedure promulgated by the National Conference of Comm issioners on Uniform State Laws. 14 Former Md. Rule 759, ed. note. Former Rule 7 59 (a) and (e) were recodified without any change on April 7, 1986 as Maryland Rule 4-327 (a) and (e). Md. Rule 4-327 (a), (e). Throughout the Rule s many incarnations there has been no comment on what proced ures are ne cessary for a ju ry to return a verd ict. Nevertheless, we do know that the return of a verdict by a jury has been comprised of three distinct procedures, each fulfilling a specific purpose. After the jury returned to the 13 Former M d. Rule 75 9 provide d in pertinen t part: (a) Return. The verdict of a jury shall be unanimous and shall be returned in open co urt. *** (e) Poll of Jury. Upon the request of a party or upon the court s own motion, the jury shall be polled after it has returned a verdict and before the jury is discharged. If upon the poll the jury do not unanimously concur in the verdict, the court may direct the jury to retire for further deliberation or may discharge the ju ry. 14 Uniform Rules of Criminal P rocedure R ule 40 pro vides in per tinent part: (b) Return . The verd ict shall be unanimous [except as otherwise provided by law]. It shall be returned by the jury to the judge in open cou rt. *** (e) Poll of jury. When a verdict is retu rned and before it is recorded the jury shall be polled at the request of any party or upon the court s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further delibera tions or m ay be disc harged . 13 jury box to deliver its ve rdict, the forem an, speakin g for the jury, ora lly answered the inq uiry of the clerk and sta ted the v erdict to the trial co urt. Givens, 76 Md. at 487, 25 A. at 689. Although in the colon ial period, po lling occurre d immed iately upon the jury s return to the court regard less of a failure to reques t to do so , id., at some point after 1893, the re quest to poll the jury came to be ma de afte r the ora l annou ncem ent of th e verdic t. Smith v. Sta te, 299 Md. 158, 166, 472 A.2d 988, 992 (1984). A poll of the jury is conducted to ensure the unanimity of the verd ict prior to its entry on the reco rd. Id. at 166, 472 A.2d at 991. The underlying requirement of a final verdict is that it be unanimous. Id. at 163, 472 A.2d at 990. The requirement of unanimity is, of course, a constitutional right set forth in Article 21 of the Marylan d Declara tion of Rig hts, which states that every man hath a right . . . to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty, and implemented through Rule 4-327(a). This Court explained this constitutional right in Ford v. Sta te, 12 Md. 514 (1 859): The verdict is the unanimous decision made by the jury and reported to the court, on the matters lawfully submitted to them in the course of the trial. Unanim ity is indispensable to the sufficienc y of the verdic t. Id. at 549, quoting 10 Bacon s Abridged Title Verdict, 306 (emphasis in origina l).15 A defendant has the absolute righ t to poll the j ury, Smith, 299 Md. at 165, 472 A.2d 15 The right to a unanimous verdict, however, may be duly waived by the express consent of the def endant, Sta te, and cou rt. See State v. McKay, 280 Md. 558, 567, 375 A.2d 228, 233 (1977 ). 14 at 991. As this Court asserted over a century ago in Williams v. State, 60 Md. 402, 403 (1883): [A defendant is] entitled, as a matter of right, to a poll of the jury, and he [may] not be convicted, except upon the concurrence of each juror. See L. H OCHHEIMER, The Law of Crimes and Criminal Procedure (2d ed. 1904) § 179. In order to exercise the right to poll, the defendant must request to poll the jury. Md. Rule 4-327 (e). The procedure for polling is set forth in Maryland Rule 4-327(e), which provides: (e) Poll of jury. On request of a party or on the court s own initiative, the jury shall be polled after it has returned a verdict and before it is discharged. If the jurors do not unan imously concur in the verdic t, the court ma y direct the jury to retire for further deliberation, or may discharge the jury if satisfied that a unanimous verdict cannot be reached. The assent of each juror [polled] must be free and unqualified. Smith, 299 Md. at 167, 472 A.2d at 992, quoting Hochheimer § 179. When a poll is demanded, the verdict becomes final only upo n its acce ptance after the poll. Smith, 299 M d. at 168 , 472 A .2d at 99 3. After polling, the third step occurs when the jury is hearkened to its verdict as the traditional formality announcing the recording of the verdict. Id. It was once required that a demand to poll the jury had to precede the recordation of the verdict upon hearkening. Once a verdict was hearkened it was too late to poll the panel. Id. at 166, 472 A.2d at 992, quoting Ford v. State, 12 Md . 514, 546 (1 859). We since have determine d that a dem and to poll the jury may be made at any time in the proceeding prio r to th e dischar ge of the jury. Id. at 167, 472 A.2d at 992. Hearkening of the jury to the ver dict, like polling the jury, is conducted to secure c ertainty and accuracy, and to enable the jury to correct a verdict, which 15 they have mistaken, or which their foreman has improperly delivered. Id. at 165, 472 A.2d at 991,citing Givens, 76 Md. at 488, 25 A. at 689-90. It is in the absence of a demand fo r a poll that a heark ening is require d for th e prope r record ation of a verdic t. Id. at 166, 472 A.2d at 992. As previously stated, Under our practice the hearkening of a verdict is the traditional formality announcing the recording of the verdict. A jury poll has the same effect . Id., citing Ross v. Sta te, 24 Md. App. 246, 254, 330 A.2d 5 07, 512 (1975). Trad ition ally, hearkening removed the case from the jury s consideration; however, because the parties and the trial court retain the right to poll the jury until its discharge after hearkening, wh ere polling the jury follows its hearkening, the p oll of the jury performs the same f unction . Smith, 299 M d. at 168 , 472 A .2d at 99 3. B. The State argues that the probable handing of the verd ict sheet to the clerk constitutes a proper return of the jury s verdict for Count nine. We, however, disagree. Returning the verdict in open court mandates an oral announcement of the verdict upon the conclusion of the jury s delibera tions to enab le the defen dant to exe rcise the right to poll the jury as to the verdicts. Fur thermore, o rally announc ing each c ount of the verdict prevents possible confusion during polling and hearkening where there are multiple counts considered by the jury, as in the present case. This conclusion is not only consistent with our own jurisprudence, but also has been recognized by those of our sister jurisdictions which have 16 addressed the issue.16 Therefore, we conclude that for a ve rdict to be co nsidered f inal in a criminal case it must be announ ced orally to per mit the defe ndant the o pportunity to exercise the right to poll the ju ry to ensur e the verd ict s unanimity. 17 This was not done with respect to Count nine, the possession of a firearm by a person previously convicted of a felony or 16 See State v. Williams, 794 N.E.2d 27, 38 (Ohio 2003) (holding that [a] verdict is final if (1) the delibe rations are ov er, (2) the resu lt is announced in open court, and (3 ) the jury is polled and no d issent is registere d. ); Daniley v . State, 554 S.E.2d 483, 485 (Ga. 2001) (stating that no legal verdict occ urs until it is receiv ed and pu blished in open cou rt. ); State v. Hightower, 680 A.2d 649,659 (N.J. 1996) (observing that neither a stalemate nor a verdict becomes final until ann ounced in open cou rt); State v. Kiper, 887 P.2d 592, 598 (Ariz. 1994) (holding that a verdict is final when an nounced in op en court); State v. Taylor, 544 So.2d 1387, 1389 (Miss. 1989) (setting forth procedures for rendering verdicts which include announcement in open co urt); Comm onwea lth v. Morgan, 573 N.E.2d 989, 995 (Mass. App. 1991) (stating that a jury verdict in a criminal case is not effective unless there has been oral affirmance of the verd ict by the jurors. ); State v. Reid , 479 N .W.2d 572, 57 4 (Wis . App. 1991) (concluding th at [a] jury s verd ict is not accep ted until it is receiv ed in open court, the resu lts anno unced , the jury po lled, if req uested , and the judgm ent ente red. ). Where the courts determined that the jury must announce the verdict without specifying whether it was requ ired to be su bmitted ora lly, it appears that an oral announcement was assumed based on the history of the procedu res for return ing a verdic t. See, e.g., Daniley v . State, 554 S.E.2 d 483 (G a. 2001); State v. Hightower, 680 A.2d 649 (N.J. 1996); State v. Reid, 479 N.W.2d 572 (Wis. App. 1991). Thus, it appears to be generally accepted throughout our sister states that the verdict must be announ ced orally for it to be pr operly ac cepted by the co urt. 17 The State relies on Government of the Virgin Islan ds v. Smith , 558 F.2d 691 (1977), to support its argument that a written verdict is sufficient to be considered a final v erdict. The issue, however, is not the form in which the verdict was returned but rather whether proper mechanisms w ere utilized to ensure the unanimity of the verdict. In Government of the Virgin Islan ds v. Smith , the jury returned a verdict slip signed by all of the jurors, which ensured the unanim ity of the verdic t. Id. at 694. In the case at bar, only the foreperson signed the verdict sheet; there were no means to determine whether all of the jurors agreed with the verdict marked for Count nine on the verdict sheet. Thus, the verdict sheet in the present case did not ensure a unanimous verdict and the verdict at iss ue could n ot properly be accep ted, thereby rend ering any sente nce impo sed for C ount nine illeg al. 17 crime of violence, against Jones.18 Therefore, becau se the jury was not polled and hearkened to that Count in absence of its oral announcement, the verdict of guilt cannot stand and any sentence apport ioned th ereto m ust be v acated . We hold that Jones s sentence of f ive years imprisonment for the possession of a firearm by a person previously convicted of a felony or crime of violence is an illegal sentence. The judgment of the Court of Special Appeals is reversed. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AS TO COUNT NINE. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR FURTHER PROCEEDINGS CONSIS TENT W ITH TH IS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY BALTIMORE COUNTY. 18 Jones does n ot conte nd that th e other v erdicts a re impr oper. We have previously he ld that where verdicts are returned as to some Counts but not others, those verdicts to which the jury is hearkened or polle d are leg ally prope r. See Hoffert, 319 Md. at 386, 572 A.2d at 541. 18

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