UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, Wright, Circuit Judge, and Matthews,* Senior District Judge.
Appellant, age 25, was convicted of and sentenced to life imprisonment for armed robbery. *fn1 His only previous conviction was in 1965 for tampering with an automobile for which he received a sentence of 90 days, the execution of which was suspended with one year probation. Under familiar principles, because of the severity of the sentence imposed in this case, we study the record with unusual care. *fn2
On June 22, 1968, two men robbed the Congressional Liquor Store in the Southeast section of Washington. The robbers, one armed with a shotgun and one with a silver-colored pistol, entered the store in the early evening and ordered the manager, Mr. Bernard Levine, five or six customers, and the couple that owned the store into the back room. In the course of the robbery, Mr. Levine struggled briefly with the man carrying the shotgun and received, for his efforts, several blows on his head from the robber with the pistol. Appellant here was identified by Mr. Levine as being the robber with the shotgun. *fn3
While appellant raises several points on appeal, *fn4 our attention is directed primarily to the circumstances surrounding the taking of the verdict. When the jury poll reached the eleventh juror, she responded to the clerk's request to "state yes or no whether or not your verdict is the same as that given by your foreman" with the answer: "Yes, with a question mark." Whereupon the trial judge instructed the juror to answer yes or no. She then answered "Yes." Defense counsel immediately approached the bench and objected to the taking of the verdict "until the juror has stated her position." The trial court accepted the verdict without further inquiry or other action over the objection of defense counsel.
Appellant relies on Matthews v. United States, D.C.App., 252 A.2d 505 (1969), in which a juror, asked for her verdict during a poll, responded, "It is conditional." The trial judge instructed the juror, "You have to answer either guilty or not guilty," and the juror responded "Guilty." The District of Columbia Court of Appeals reversed the conviction, finding no assurance that the jury freely and fairly arrived at a unanimous verdict:
". . . When the juror stated that her verdict was conditional, the trial judge should have been alerted to the probability that there might not be unanimity in the verdict. Therefore, he should not have required the juror to answer 'either guilty or not guilty,' but should have returned the jury to the jury room for further deliberation.
"The juror's subsequent statement of 'Guilty' did not serve to remove the uncertainty of her verdict since she was responding to the court's directive that 'you have to answer either guilty or not guilty.'"
252 A.2d at 406. (Emphasis in original; footnote omitted.) The Government here relies primarily on Williams and Coleman v. United States, 136 U.S.App.D.C. 158, 162-163, 419 F.2d 740, 744-745 (1969) (en banc), in which the juror being polled, on being asked "what say you as to the defendant Gerald Coleman on Count 1?" answered "Not guilty" several times before answering "Guilty."
We think this case is significantly closer on its facts to Matthews than to Williams and Coleman. In Williams and Coleman, this court upheld the Government's contention that the juror was merely confused and that as soon as it was made clear to her which defendant of the three *fn5 on trial was the subject of the poll, she unequivocally answered "Guilty." Moreover, in Williams and Coleman the trial judge, after the poll, asked the jury to retire again to make certain that all doubt as to its verdict had been resolved. See Rule 31(d), Fed.R.Crim.P. On the jury's returning to the courtroom, a further poll was not even requested.
By contrast here the question or uncertainty raised by the juror was not resolved, see Matthews v. United States (supra) nor is her statement attributable to any confusion. Indeed, the juror was not given the opportunity to state the question she had about the verdict, despite the immediate request by appellant's trial counsel that she be allowed to do so. Nor was the jury returned to the jury room to clear up any doubts about the unanimity of its verdict, as occurred in Williams and Coleman.
It is true that after the trial the District Judge met with the juror in his chambers and gave her an opportunity to state her question. *fn6 But neither appellant, his counsel, the prosecutor, nor a court reporter *fn7 was present. The Sixth Amendment requires the presence of defense counsel and the accused at all critical stages of the prosecution. *fn8 We think that resolving questions raised by jurors during the jury poll is such a stage. Moreover, Rule 31(a) of the Federal Rules of Criminal Procedure provides: "The verdict shall be unanimous. It shall be returned by the jury to the judge in open court." *fn9 Under the circumstances this conviction must be reversed.
Appellant's challenge to the events surrounding his sentencing also require comment, particularly in view of the possibility of a retrial. In sentencing appellant to life imprisonment for armed robbery, the District Judge stated: "I announce at this time that anyone else that is convicted by a jury before me of armed robbery of this nature may expect a similar sentence." In a subsequent letter to appellant, the judge repeated his position: "As you recall, I announced at the time I sentenced you that anyone else who was convicted by a Jury before me of Armed Robbery would receive a life sentence." We note that at the time appellant elected to exercise his right to a jury trial the judge's policy had not been stated publicly. *fn10 If the Government seeks to retry appellant, however, serious questions would arise whether "the inevitable effect of any such provision is . . . to discourage assertion of ...