T.D.M. argues that his rights against double jeopardy were violated because the trial court allowed the jury to change its verdict after the jury had been discharged.
The record indicates that after the jury had finished its deliberations and returned to the courtroom, the following occurred:
“THE COURT: Ladies and gentlemen, it's my understanding the jury has reached a verdict in this case. The Court's not going to tolerate any outbursts or any response from anyone in reference to the verdict. Once the jury reads the verdict, we're going to allow the jury to go out and we're going to—everybody's going to sit and remain silent until the jury leaves. Then one family's going to go out at a time. So does everybody understand that?
“Bring them in.
“(The jury returned to the courtroom at 5:19 p.m., after which the following proceedings were had before the Court and jury.)
“THE COURT: You may be seated. Has the jury reached a verdict?
“FOREPERSON: We have, Your Honor.
“THE COURT: Please read the verdict.
“FOREPERSON: We, the jury, find the defendant, [T.D.M.], guilty of the offense of sexual abuse in the first degree as charged in count one of the indictment.
“We, the jury, find the defendant, [T.D.M.], not guilty of the offense of sodomy as charged in count two of the indictment.
“THE COURT: What says the State?
“[Prosecutor]: The State's satisfied. Your Honor.
“THE COURT: What says the defendant?
“[Defense counsel]: We don't want you to poll, Judge, if that's what you're asking. And we want to make a posttrial motion.
“THE COURT: Ladies and gentlemen, on behalf of the lawyers involved in this case; our Circuit Clerk, Mr. Ervin; the Sheriff; and the other judges in this circuit, we thank you for your time. We hope you have enjoyed your experience. This concludes your jury service for the week. Mr. Ervin's office has prepared your checks and your excuses. You will now be free to go. However, if you desire to stay around and talk to the family members or any of lawyers, you may. That is up to you. Again, it was a pleasure meeting you. Mr. Ervin will take your badges. He will also hand you the information you need to go.
“Ladies and gentlemen, you will remain seated until after the jurors have been excused.
“(The jury was excused at 5:21 p.m.)
“THE COURT: [T.D.M.], based on the jury finding you guilty of the offense of sexual abuse in the first degree, I'm going to find you guilty of the offense of sexual abuse in the first degree. Based on the jury's verdict of finding you not guilty of the offense of sodomy in the first degree, I'm going to find you not guilty of the offense of sodomy in the first degree.
“Do y'all want a presentence report?
“[Defense counsel]: Yes, Your Honor.
“THE COURT: Is the defendant going to remain on the same bond?
“[Prosecutor]: Yes, sir. Your Honor.
“THE CLERK: Excuse me. Judge.
“(WHEREUPON, an off-the-record discussion was held.)
“THE COURT: The foreperson signed the wrong one.
“[Defense counsel]: What happened?
“THE COURT: They read the wrong verdict form. She signed the wrong verdict form.
“Bring the foreperson in....
“THE COURT: [Foreperson], you handed the Court the jury verdicts and you represented to the Court that you gave the Court incorrect information.
“FOREPERSON: Yes, sir.
“THE COURT: Explain that to the Court.
“FOREPERSON: Well, when I stood up to read, I realized that I had signed the wrong one. We agreed on both counts of guilty.
“THE COURT: And the form you handed me is indicating not guilty?
“FOREPERSON: Right.
“THE COURT: And you are saying that is not the jury's verdict?
“FOREPERSON: No. That wasn't our verdict.
“THE COURT: What says the State?
“[Prosecutor]: Your Honor, it appears that there has been a clerical mistake. And I think that they should be allowed to adjust that.
“[Defense counsel]: Judge, under double-jeopardy laws, the jury—she signed the verdict, she published the jury verdict and the State did not request that the jury be polled. The Court actually entered judgment after that. Under double-jeopardy laws, you can't go back and change it. It is what it is. It wouldn't be any different if they read a guilty verdict. Once they make the verdict and they publish it and the Court accepts it and neither party asks for a polling of the jury, neither party objected to anything about the verdicts and the Court has actually entered judgment and that prevents him from being put back in jeopardy for that crime.
“[Prosecutor]: Your Honor, this case is not being tried again. This is part of the process. I mean, she—the foreman made a mistake. We don't suspect that there's been any bad faith on her part, just human error.
“... They just want to go in and correct what the verdict should accurately reflect, and that's a guilty verdict on both counts.
“THE COURT: We've put all the information on the record. I'm going to bring the jurors back in, and let them make their representation to the Court. And I'll give y'all a chance to make an issue.... We'll let the jurors correct it and explain as to the reason why they did this.
“....
“(The jury returned to the courtroom at 5:30 p.m., after which the following proceedings were had before the Court and jury.)
“THE COURT: [Foreperson], it's my understanding you would like to make a correction for the Court concerning the verdict. What is the jury's verdict as to count two in the indictment?
“FOREPERSON: We, the jury, find the defendant, [T.D.M.], guilty of the offense of sodomy first degree as charged in count two of the indictment.
“THE COURT: We're going to start down here on the end.
“(Each juror, upon being asked by the Court, ‘Is that your verdict?’ answered in the affirmative.)
“(Short recess.)
“....
“THE COURT: We're going to go back on the record to clarify exactly what happened. My understanding is that the jurors had left the courtroom and were outside to receive excuses and they brought it to the attention of the clerk that the verdict they had given and was accepted was not the correct verdict. At that point, we brought the jurors back and questioned the foreperson and then polled the entire jury.
“[Prosecutor]: That's the States's position that that's an accurate understanding as to what occurred.
“[Defense counsel]: Yeah. I mean, we don't dispute what the Court described.”
(R. 517–25.)
The clerk testified that just before sentencing, when the jurors were discharged, the others present in the courtroom remained inside as the jurors exited. The clerk stated that he held the door open for the jurors to exit. As the foreperson walked by, she informed him of the mistake and he stepped into the hall to confer with her. He stated that all the jurors “huddled” around him as he was told that the wrong form was signed. (R. 353.) He immediately informed the judge of the mistake. He further testified that none of the jurors had left the third floor, which he considered “his jurisdiction.” (R. 355.)
Subsequently, during the sentencing hearing, the trial court stated that the Alabama Supreme Court had refrained from addressing the proposed certified question from T.D.M. concerning the acceptance of the sodomy verdict after the jury had been discharged; the Court had instructed the trial court to rule on the matter. The trial court stated that it was accepting the guilty verdict as to the sodomy charge. Defense counsel then argued that, because the jury had found T.D.M. not guilty, to go any further or “to go behind it” was a violation of double-jeopardy principles. (R. 345.) The prosecutor responded that because the jury, although discharged, was still within the control of the court, it could properly correct the mistake in its verdict and there was no double-jeopardy violation. The prosecutor argued:
“In this case. Judge, if you will recall, the clerk was in the process of holding the door open for the jury as they were on their way out of the courtroom. And one of the jurors—I believe the foreperson—walked by the clerk, told him after she had read the verdict that she made a mistake, that that was not their findings back in the jury room. And most of the jury—or maybe all of them—were still on this floor, had not left this floor. They were in the process of going out of the courtroom. It was brought to the Court's attention. The Court reassembled the jury, directed them to go back into the jury room, not to deliberate further, but to correct the mistake that they had discovered. And after the jury corrected the mistake, you brought them back out. And they were polled individually. And they all said that that was their finding.
“So, in conclusion. Judge, although it may be argued that a jury may not be recalled to effect its verdict once discharged, Alabama law dating back more than one hundred years states that a discharge is only effective if the jury has gone beyond the immediate and continuous control of the court; thereby, subjecting themselves to extra-trial influences.”
(R. 346–47.)
Defense counsel responded that because the jury had left the courtroom, the members were out of the control of the court, had been discharged, and no longer had the ability to deliberate.
“The constitution of the United States, in the fifth amendment, declares, ‘nor shall any person be subject to be twice put in jeopardy of life or limb.’ ” Ball v. United States, 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). “[T]he...
