Andrews, Presiding Judge.
This is the second appearance of this case in this Court. In Washington v. State , we concluded that the state of the appellate record prevented us from reviewing Devin Washington's claim that "the trial court erred by declaring a mistrial as to the charge of felony murder and, accordingly, that double jeopardy bars a second prosecution such that the trial court should have granted his plea in bar." 333 Ga.App. 236, 775 S.E.2d 719 (2015) (" Washington I "). Following a hearing on remand, the Superior Court of Richmond County again denied Washington's plea in bar, and he appeals. We conclude that the original trial judge erred in failing to properly review the verdict form prior to publishing the verdict and discharging the jury. As a consequence, the judge failed to identify an ambiguous verdict and take appropriate action to clarify the ambiguity. The result is that Washington's plea in bar as to felony murder, based upon double jeopardy, should have been granted. Accordingly, we reverse the trial court's denial of Washington's plea in bar and remand for a new trial on voluntary manslaughter.
1. We adopt our findings concerning the evidence in Washington I , in which we noted that the evidence, when viewed in a light most favorable to the jury's verdicts, revealed that
in the early morning hours on the day in question, Devin Washington and the victim, Preshawn Williams, arrived at an Augusta nightclub in a Jeep driven by Williams. At the same time, Marcus Washington (no relation to Devin) arrived at the club in a Monte Carlo driven by an acquaintance and accompanied by Williams's cousin. When Marcus prepared to enter the club, he was suddenly attacked from behind by Devin, and the two continued to scuffle in the parking lot until the club's owner demanded that they leave the premises.
Marcus returned to the Monte Carlo and Devin returned to the Jeep, which was parked beside the Monte Carlo. Marcus demanded that the driver unlock the Monte Carlo so that he could get inside the vehicle, but she hesitated to do so and passed the keys to Williams's cousin. The cousin eventually unlocked the Monte Carlo and Marcus immediately retrieved a firearm from beneath the front-passenger seat. At that point, a gun battle erupted between Marcus and Devin (who, according to witnesses and Marcus, had been threatening to shoot if Marcus got into the Monte Carlo). At some point, Williams, who had reentered the Jeep, was shot in the leg and head by two of Marcus's bullets, and he subsequently died as a result of the head injury.
(Footnotes omitted.) 333 Ga.App. at 236, 775 S.E.2d 719. As a result, "Marcus and Devin were jointly indicted on charges of malice murder, felony murder, and possession of a firearm during the commission of a felony[,]" and "the jury found both defendants not guilty of malice murder but guilty of possessing firearms during the commission of a felony." Id. at 236–237, 775 S.E.2d 719. "As to felony murder, the jury acquitted Marcus, but the trial court declared a mistrial as to Devin." Id. at 237, 775 S.E.2d 719.
2. In his first enumeration of error, Washington contends that the trial court erred in crossing out the phrase "not guilty" on Count 2 (felony murder) of the verdict form and declaring a mistrial on that count. Due to the state of the appellate record, we were unable to address this argument in Washington I . Our concern was grounded primarily upon the record's silence on the following questions: (1) "at what point the trial judge saw the verdict form[,]" which precluded us from determining "whether the trial judge saw the form before or after deciding to declare a mistrial[,]" Washington I , 333 Ga.App. at 247 (1), 775 S.E.2d 719 ; (2) "whether, if the judge saw the form after the verdict was read into the record, it was before or after the jury had dispersed[,]" Id. at 248 (1), 775 S.E.2d 719 ; and (3) whether "it was the trial judge who marked through the words [felony murder not guilty] written by the jury foreperson on the verdict form as to [felony murder]...." Id. As a result, we remanded Washington's case to the trial court for a hearing before a different judge to further address these issues and, ultimately, to permit meaningful appellate review of Washington's claim. Id.
(a) Publication of the Verdict. Although we previously reviewed the record for the history of the publication of the verdict and the trial court's decision to declare a mistrial as to Count 2, see Washington I , 333 Ga.App. at 239–242, 775 S.E.2d 719, our review of this case will be assisted by recounting it here:
[T]he record reflects that both Marcus and Devin requested that the jury be instructed on voluntary manslaughter as a lesser-included offense of malice murder and felony murder, and the jurors were so charged. Then, after retiring to deliberate and requesting and receiving reinstruction as to the various offenses at issue, the jurors inquired as to whether they could "apply voluntary manslaughter instead of felony murder." In response, the court reinstructed the jurors that should they find a defendant not guilty of malice murder or felony murder, they would be authorized to determine whether he was guilty of the lesser-included offense of voluntary manslaughter.
A while later, the jurors sent out a second note indicating that they "[could] not reach a unanimous decision on Count 2 for both defendants." Because the trial court and the attorneys were unclear as to what this note meant (i.e., whether the jurors believed that they must reach the same verdict as to both defendants or whether they had reached a verdict as to one defendant but not the other), the court requested in writing that the jurors clarify their question. The jurors then asked, "[i]f we are unable to come to a unanimous decision on Count 2 for both defendants what are our options?" The court, still unclear as to the jury's exact issue, responded in writing as follows: "You have to make a decision as to each count 1 for (sic) each defendant independently. Have you reached a decision as to one defendant or are you undecided as to both?" The jurors responded that they were "not all in agreement on Count 2 for Devin Washington."
The trial court then struggled with this response by the jury, pondering
... [a]re they not in agreement as to the charge or as to the verdict? They are not in agreement. So are half [of] them going to voluntary [manslaughter] or other (sic) half going to felony murder or are they—I mean I don't know how to get them to answer that. I guess what we should say—but I mean we've got—I mean are they—if they are not in agreement as to the charge that's different than if they are not in agreement as to guilt or innocence.
Ultimately, the trial court decided to issue an Allen charge to the jury. The court also decided to write back to the jurors, advising that they would "need to continue [their] deliberations."
Although the transcript gives no indication as to the timing, either concurrent with the aforementioned communication or after it, the trial court requested in writing that the jurors, "[w]ithout specifying which way [they] [were] leaning, ... provide a count (number) as to each defendant and each count and what the split is." This handwritten sheet submitted to the jury by the trial court referred to the various charges only by count number, not by the name of the charged offense; and in response, the jurors indicated that they were unanimous as to every count for the defendants except "Count 2" for Devin Washington, on which they were split eleven to one.
After receiving the Allen charge and again retiring to deliberate, the jurors sent another communication to inform the trial court that they had "exhausted all attempts to come to a unanimous decision on Count 2 for Devin Washington." At that point, the following colloquy took place on the record:
THE COURT: All right. Thank you we are back in session and everybody can be seated. I'll ask the foreperson while we're waiting on the verdict form.
It is my understanding, based on the communication that you have made to the Court, that a unanimous verdict [h]as been reached on all counts with the exception of count 2 as to Devin Washington; is that correct?
FOREPERSON: That's correct.
THE COURT: And that—to the—who is the foreperson? And based on your communication you have written that y'all are hopelessly deadlocked to that count as to Devin Washington. Is that correct?
FOREPERSON: Yes.
THE COURT: You do not believe that any further deliberations would result in resolution of that count?
FOREPERSON: We—nobody's budging.
THE COURT: All right. And so what I would need you to do—we are going to take the verdict on all other counts. As to the count on Devin Washington that will be handled separately as to count 2. But I need for you to sign the verdict, make sure that's the verdict that y'all have agreed to for the other counts.
FOREPERSON: Yes. Do you need to know what exactly—
THE COURT: I'm going to ask for the verdict in just a second, but it has to be filled in and signed and dated by you as foreperson. And if y'all need to go—if y'all need to go back out and complete some paperwork, that's fine.
I need to ask you some questions. Madame foreperson, can you stand where you are. Have you reached a verdict?
FOREPERSON: We have.
THE COURT: Was it unanimous as to all of the counts other than the ones that you have told me—
FOREPERSON: We have.
THE COURT: —were deadlocked? Has the verdict form been filled in, signed, and dated by you.
FOREPERSON: It has.
THE COURT: Would you pass it to the bailiff, please.
THE CLERK: In the Superior Court of Richmond County in the case of the State of Georgia versus Marcus Washington and Devin Washington,
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