This is an appeal from the appellant's second trial for this offense. The following occurred at the appellant's first trial:
"(Jury returned to the courtroom after deliberating during which the following occurred:)
"THE COURT: Mr. Perez, are you the foreman?
"FOREPERSON: Your Honor, I'm the designated foreman of the jury. We have come across a problem that we need some advice upon.
"THE COURT: All right.
"FOREPERSON: We have taken a preliminary vote which is not unanimous and we are going back for further discussion. There is one member of our jury who feels at this point that he or she cannot vote one way or another because he was not a witness to the crime. We would like you to instruct the jury in whole without pointing out this particular person why it is his responsibility to make a decision of guilty or not guilty based on the testimony here; that he did not have to witness the crime to make a decision." (S.R. 2.)
The trial judge then told the jury that if a person witnessed a crime, that person could not serve as a juror in the trial of that case. He stated that their duty as jurors was to decide the case based on the evidence presented at trial. The colloquy between the trial judge and the foreperson of the jury then continued:
"FOREPERSON: Your Honor, excuse me. One last question. I'm hoping that that explained to this particular person exactly what his duty is.
"THE COURT: Don't y'all get aggravated at anybody because this is brand new. It's a new experience.
"FOREPERSON: I understand that. I need to ask a question that you can clarify for us. If we go back and this person still refuses to vote guilty or not guilty and we come out, we cannot give a decision, can we?
"THE COURT: The verdict has to be unanimous.
"FOREPERSON: So you're going to ask each one of us if we vote guilty or not guilty?
"THE COURT: Yes.
"FOREPERSON: And a person cannot say, I refuse to vote?
"THE COURT: Well, a refusal to vote on that ground, refusing to vote simply because the person didn't see the crime would be failing to fulfill the oath of office. I'm not planning to put anybody in jail.
"FOREPERSON: No. But what I mean is that we would not be fulfilling our duty? As a jury we would not reach a decision.
"THE COURT: Well, that's correct. It would be a waste of two days. And it means that we would start all over again and pick twelve more people. Probably not as wonderful a group of twelve people as we've got here cause as I've said, this is a remarkable, wonderful cross section of the community here. The next time we pick a jury I don't know if it would be quite as wonderful a jury. But we would pick somebody and somebody would sit through exactly the same procedure and eventually we would get a verdict. If the case has to be tried many times, it has to be tried many times. I trust--I'm sure every juror wants to fulfill his oath of office. Now that I've defined it perhaps the jury will succeed.
"FOREPERSON: May I ask you in layman's terms, by oath of office you mean a promise to work on the jury and come to a decision?
"THE COURT: Well, sure. When all of you got in the jury box, when the thirteen jurors got in the jury box I asked you all to stand and raise your right hands and I administered an oath of office to you. That oath was as sacred an oath as I took. When I was sworn in as a judge I took an oath of office that I would rule with the law. If a case came before me and I just said, well, I just don't feel like making any decision in this case, that would be a violation of my oath of office. I could be censored by the judicial inquiry commission. It would be that serious of a thing. I have to fulfill my oath of office or else I've just violated my oath.
"FOREPERSON: I understand, Your Honor. I simply was bringing it down to the word promise because I think this person would understand that better than oath.
"THE COURT: Well, it's a sacred kind of promise. It's a promise that you make to God and your fellow citizens. It's more than just a promise to pick up the bread at the grocery store.
"FOREPERSON: Right. I was trying to get it in layman's terms. Thank you, Your Honor." (S.R. 4-7.)
The trial judge then told the jury that while a verdict had to be unanimous, he was not suggesting that everyone had to agree with the majority and he wanted each juror to vote his conscience. The jury then continued their deliberations. The following occurred after these deliberations:
"THE COURT: All right. Mr. Perez, how are y'all doing?
"FOREPERSON: We're doing a little better, Your Honor. We have eleven members in agreement. We still have one juror--
"THE COURT: Don't tell me which way it's going. Don't tell me that.
"FOREPERSON: We have a juror who is confused. She still believes that she had to have been a witness to the crime to cast a decision one way or the other. It's not a reasonable doubt situation. It's just that she believes she cannot make a decision because she did not witness the crime. And your last instruction did not explain it fully to her. And perhaps if you want to do it again in
layman's terms, she might understand." (S.R. 13-14.)
The trial judge again told the jury that a juror could not be a witness to the crime. He then thoroughly instructed them on the duties and responsibilities of a juror. The trial judge then sent the jury out for further deliberations. After a period of time, the following took place:
"THE COURT: All right. Mr. Perez, has the jury reached its verdict?
"FOREPERSON: Yes, Your Honor, we have.
"THE COURT: Would you read it to us, please, sir?
"FOREPERSON: We, the jury, find the defendant, John Anthony McKinney, not guilty.
"THE COURT: Mr. Myers, would you bring me the verdict form. Now, first of all, I'll ask Mr. Perez, is this your signature on this verdict?
"FOREPERSON: Yes, Your Honor.
"THE COURT: Now, I'm going to do as I said I would do and poll the jury. Mr. Perez, is this your verdict?
"FOREPERSON: Yes, Your Honor, it is.
"....
"THE COURT: Ms. Smith, is this your verdict?
"MS. SMITH: I don't understand.
"THE COURT: I see. Well, I need to know whether or not you agree that the defendant is not guilty and whether you have voted that the defendant is not guilty.
"MS. SMITH: I don't know.
"THE COURT: You do not know. I see. Did you cast a vote on the final vote? Ms. Smith, can you hear me? And I'm not trying to badger you. I don't want to make you feel bad. I just need to know whether this is your verdict and whether you agreed to it or did not agree to it. Can you tell me that? Can you tell me whether you did agree or did not agree to this verdict?
"MS. SMITH: I don't know cause I didn't see it. And I don't know.
"MS. MURPHREE: Your Honor, we would respectfully move for a mistrial at this time.
"MR. SHARBROUGH: We would object to that, Your Honor.
"THE COURT: Well, we don't have a verdict at this point. It may be that--I will have to inquire into Ms. Smith, into whether or not she can perform as a juror. Ms. Smith, let me ask you whether you understand that you are not required to see the event in order to serve as a juror? So you understand that?
"FOREPERSON: Your Honor, I think Ms. Smith is hard of hearing also.
"THE COURT: I see. You know, that may have been the problem. That would create real problems. I'm afraid we don't have a verdict.
"MR. SHARBROUGH: Your Honor, the defense would request that the jury be allowed more time.
"MS. MURPHREE: Your Honor, again, based upon the response and lack of response of that juror we would again move for a mistrial.
"THE COURT: Ms. Smith, let me ask you this. Were you able to hear the evidence as it was being presented to you during the trial? Let the record show that I have spoken to Ms. Smith in a louder than usual tone of voice or at least in a very audible tone of voice, somewhat louder than conversational, and Ms. Smith has not responded. I have the feeling Ms. Smith is not hearing what I'm saying at all. Either not hearing it or not comprehending it. And because I can't get a response from Ms. Smith on whether or not she has heard the evidence, I'm concerned whether she can serve as a juror. This is an unfortunately late time in the proceedings to be finding out. But Ms. Smith, I'll ask you again whether you were able to hear the evidence as it was presented? Were you able to hear it? Let the record show that after a long, long pause, I did not get any response from Ms. Smith. Ladies and gentlemen, this is a real misfortune. None of us had any way of knowing that this situation existed and all you ladies and gentlemen or the eleven of you certainly who have been able to hear the trial have worked awfully hard on it.
Both sides have worked awfully hard. But we don't seem to have a verdict. It takes a unanimous verdict from a competent jury either to acquit or to convict. We can neither convict or acquit without twelve affirmative votes. I mean twelve votes for one verdict or the other.
"MR. SHARBROUGH: Your Honor, the defense would request that the jury be sent home and brought back in the morning before this case is declared a mistrial.
"THE COURT: Well, if it were a cerebral problem, if it were a matter of figuring something out, that's one thing but where my conclusion is that one of the jurors simply has not absorbed anything--the Code of Alabama says that in order to serve a juror must be able to hear. That is, to be able to hear the evidence and must...
