FIRST DIVISION

DOYLE, C. J.,

ANDREWS, P. J., and RAY, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

November 15, 2016

In the Court of Appeals of Georgia

A16A1430. WASHINGTON v. THE STATE.

ANDREWS, Presiding Judge.

Thisisthe 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 SE2d 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 isthat Washington’s plea in bar asto 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,

butshe 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

2
witnesses and Marcus, had been threatening to shoot if Marcus got into

the Monte Carlo). Atsome 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. As a result, “Marcus and Devin were

jointly indicted on charges of malice murder, felony murder, and possession of a

firearmduring 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. “As to felony murder, the jury acquitted Marcus, but the

trial court declared a mistrial as to Devin.” Id. at 237.

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 addressthis argument in Washington I. Our concern was grounded

primarily upon the record’ssilence 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); (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[,]”

3
Id. at 248 (1); 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, 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

4
defendants.” Because the trial court and the attorneys were unclear asto

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 jurorsthen

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.”

5
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

jurorssent another communication to informthe 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.

6
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?

7
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,

indictment number 2012-RCCR-1600 for count 1, malice murder, we,

the jury, find the defendant Marcus Washington not guilty. For count 1

malice murder, we, the jury, find the defendant Devin Washington, not

guilty. For count 2, felony murder, we, the jury, find the defendant

Marcus Washington not guilty. For count 3, possession of a firearm

during the commission of a crime, we, the jury, find the defendant

Marcus Antwan Washington guilty. For count 4, possession of a firearm

during the commission of a crime, we, the jury, find the defendant Devin

Washington guilty so found this 3rd day of May 2013, [(name of

foreperson)], foreperson.

8
THE COURT: All right. Members of the jury I want to thank you for

your service. This case has been tried exhaustively and you have heard

and made a decision with regard to the evidence so your service is now

concluded. I do need to ask do y’all wish to poll the jury as to counts 3

and 4?

Trial counsel for both Devin and Marcus declined to poll the jury on the

verdict of guilt as to the possession-of-a-firearm counts.

Thereafter, the trial court gave the jurors final instructions as to their

ability to now speak about the case and then discharged them from

service. After all jurors had exited the courtroom, the trial court entered

a mistrial as follows:

THE COURT: And for purposes of the record, based on the jury’s

inability to reach a verdict, I will declare a mistrial as to count 2 of the

indictment as to Devin Washington. There was no objection. . . .

(Footnote omitted.) Id. In addition to the foregoing, we note that the text of Count 2

of the verdict form read: “For Count 2, felony murder, we the jury find the defendant

Devin Washington [blank].” Handwritten in the blank immediately following

Washington’s name were the words “not guilty.” Underneath the blank, “the jury

foreperson also wrote “voluntary manslaughter?” A line is drawn through these

handwritten words and, beside them, “mistrial declared” is written in what appears

9
to be different handwriting, along with the initials SBJ.”1 Washington I, 333 Ga. App.

at 242. Although the jury was charged on the lesser included offense of voluntary

manslaughter, the verdict form did not contain a pre-printed option for voluntary

manslaughter,in large part because Washington’s counsel argued againstsuch a form. 

(b) Evidentiary Hearing on Remand. On remand, the trial court conducted a

hearing that included testimony by the original trial judge, courtreporter, deputy clerk

of court, prosecuting attorney, co-defendant’s counsel, the jury foreperson, four trial

jurors, and one alternate juror. Of particular relevance to the three areas of concern

we stated in Washington I, the trial court found that the original trial judge did not

review the verdict form prior to declaring a mistrial on Count 2 or before the verdict

was published in open court;

2

that the original trial judge struck through the “not

guilty” language on the verdict form; and that she did so only after the verdict had

been published and the jury discharged. Furthermore, the trial court found that

1 We noted that the original trial judge’s initials were “SBJ.” 333 Ga. App. at

242, n. 15.

2

 However, the deputy clerk of court who published the verdict in open court

testified that she asked the original trial judge “what [she] was supposed to say for

[Count 2]” in view of the jury’s apparent disagreement. The original trial judge

instructed her to “skip [Count 2] and that she would declare it a mistrial on the

record.” As noted infra, the mistrial was not entered on the record until after the

verdict had been published and the jury discharged.

10
testimony by the jurors was “inconsistent”

3

and that their testimony “did not sustain

or impeach the verdict in a collective sense.” The trial court ultimately concluded that

“a mistrial was declared due to a manifest necessity” and “was made without timely

objection from [Washington]. . . .” Accordingly, the trial court denied Washington’s

plea in bar and held that Washington could be retried for felony murder. 

Therefore, the following timeline is suggested by the hearing on remand and

our review of the record: (1) during several hours of deliberation, the jury expressed

its confusion over Count 2 through a series of notes to the original trial judge,

culminating in an Allen4charge; (2) the jury then reported that it reached a verdict on

every count against both defendants except Count 2 of Washington’s indictment; (3)

3 Specifically, the foreperson testified that “the jury was unanimous that

[Washington] was not guilty of Felony Murder but they were not unanimous on the

offense of voluntary manslaughter. . . .” Another juror corroborated the foreperson’s

testimony, stating that “there was a unanimous verdict that [Washington] was not

guilty of Felony Murder.” A third juror “first testified that there was no agreement as

to Count Two and then testified that the jury agreed [Washington] was not guilty on

Felony Murder but were hung on voluntary manslaughter.” However, two additional

jurors testified that “there was an agreement as to Count Two but [the juror] had no

idea what the agreement was” and that the jury “was hung on Felony Murder.” As a

result, the trial court concluded that “the testimony was not consistent and does not

clearly indicate that the jury intended to return a unanimous verdict of not guilty as

to Felony Murder.” 

4 See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896);

Humphreys v. State, 287 Ga. 63, 79-82 (9) (694 SE2d 316) (2010).

11
in open court, the jury reported that it was hopelessly deadlocked on Count 2

5

; (4) the

original trial judge did notsee the verdict form prior to publishing the verdict; (5) the

original trial judge instructed the deputy clerk of court to publish the verdict with the

exception of Count 2; (6) the verdict, absent Count 2, was published; (7) the original

trial judge discharged the jury; (8) without having seen the verdict form, the original

trial judge declared a mistrial as to Count 2; and (9) at some point, after the verdict

had been published and the jury discharged, the original trial judge struck through the

jury’s handwritten statements “not guilty” and “voluntary manslaughter?” We

therefore follow this timeline to facilitate our analysis.

(c) Review of Mistrial as to Count 2. While this case suffers from several

errors, one primary error - the original trial judge’s failure to review the verdict form

prior to publishing the verdict - so affected Washington’s trial that a retrial is

mandated.

(i) Mistrial. “[W]hether to declare a mistrial isin the discretion of the trial court

and will not be disturbed on appeal unless ‘it is apparent that a mistrial is essential to

the preservation of the right to a fair trial.’” Hogan v. State, 330 Ga. App. 596, 602

5 At no time did the jury indicate the actual charges upon which it was

deadlocked.

12
(4) (768 SE2d 779) (2015). However, “[a] motion for mistrial, by its very nature,

seeks to end the trial proceedings before a verdict is rendered in order to ensure that

the defendant may receive a fair trial.” (Emphasis added.) State v. Sumlin, 281 Ga.

183, 184 (1) (637 SE2d 36) (2006). As a result, “[o]nce the jury returns its verdict,

the trial has ended and the time for granting a mistrial has passed.” Id. (citing State

v. Archie, 230 Ga. App. 253, n. 1 (495 SE2d 581) (1998) (“Clearly, a trial court

cannot grant a mistrial after a verdict has been returned.”); State v. Jorgensen, 181

Ga. App. 502, 503 (353 SE2d 9) (1987) (“A trial court cannot grant a mistrial after

verdict.”)). Accordingly, if it is to be declared at all, a mistrial must be declared prior

to the return of a verdict.

Retrial of a criminal defendant after a mistrial caused by the inability of

the jury to reach a verdict does not constitute double jeopardy where

there is manifest necessity for declaring the mistrial. Where the jury is

hopelessly deadlocked, this constitutes manifest necessity for declaring

a mistrial.

(Emphasis added.) Leonard v. State, 275 Ga. App. 667, 668 (621 SE2d 599) (2005).

“The determination as to whether the jury isin fact hopelessly deadlocked is a matter

somewhat in the discretion of the trial court.” Id. at 668-669. See also Honester v.

13
State, 336 Ga. App. 166 (784 SE2d 30) (2016); Thornton v. State, 145 Ga. App. 793,

794 (245 SE2d 22) (1978).

That discretion, however, is not unbridled, and it must be exercised

carefully, particularly where the trial court is declaring a mistrial . . . sua

sponte. . . . The careful exercise of its discretion, in turn, requires the

trial court to take certain steps before concluding that the jury is

hopelessly deadlocked and that a mistrial is necessary. Given the severe

consequences of ordering a mistrial without the accused’s consent, it is

highly important that the trial court undertake a consideration of

alternative remedies before declaring a mistrial based on a jury’s alleged

inability to reach a verdict. Accordingly, a trial court may not allow

itself to be bound by a jury’s pronouncement that it is hopelessly

deadlocked.

(Citations and punctuation omitted; emphasis added.) Honester, 336 Ga. App. at 170

(citing Sears v. State, 270 Ga. 834, 838 (1) (514 SE2d 426) (1999).

At the outset, we note that the trial transcript is devoid of any discussion

concerning a mistrial prior to publication of the verdict.

6 However, the original trial

6 Although the original trial judge testified that, after receiving a note from the

foreperson that the jury was hopelessly deadlocked, she “verbally pronounced that

there would be a mistrial declared[,]” the trial transcript contains no record of such

a pronouncement. A similar statement by the original trial judge that “we had

declared a mistrial as to count two” is again unsupported by the trial transcript.

Finally, the original trial judge stated that she consulted with counsel concerning the

decision to declare a mistrial as to Count 2, but no such conversations appear in the

14
judge was well aware that the jury struggled with reaching a verdict on Count 2. For

example, following questions by the jury, the original trial judge recharged the jury

on malice murder, felony murder, voluntary manslaughter, aggravated assault, and

mutual combat. Thereafter, the jury asked if it could “apply voluntary manslaughter

instead of felony murder[.]” In response, the original trial judge charged the jury that

if it found the defendants not guilty of felony murder, the jury “would be authorized

to determine whether [each defendant is] guilty of the lesser included offense of

voluntary manslaughter.”7 Two more notes revealed that the jury could not reach an

agreement as to Count 2 for either defendant. The jury’s next note stated that “[w]e

are not all in agreement on Count 2 for Devin Washington.” Thereafter, the jury’s

penultimate note to the original trial judge outlined the number of jurors that agreed

on each count against both defendants; the note revealed an eleven-to-one split on

trial transcript. Nor does the trial transcript contain any notation that an unreported

bench conference occurred during the discussion of the verdict. In fact, the original

trial judge testified that there were no conversations with counsel or with court

personnel that were not included in the record and that court personnel did not voice

any concern concerning reading the verdict as presented. However, both the

prosecuting attorney and the co-defendant’s counsel recalled that the original trial

judge stated she would declare a mistrial as to Count 2 on Washington. 

7 This instruction had also been given as part of the original trial judge’s jury

charge. 

15
Count 2 against Washington, but not in which direction the eleven were leaning or

which charges were at issue. Finally, the jury notified the original trial judge that

“[w]e have exhausted all attempts to come to a unanimous decision on Count 2 for

Devin Washington.” 

When the jury returned to the courtroom some ten hours after deliberations

began, the jury foreperson confirmed that “a unanimous verdict [had] been reached

on all counts with the exception of count 2 as to Devin Washington”; that the jury

was “hopelessly deadlocked as to that count as to Devin Washington”; and that they

did not believe “that any further deliberations would result in resolution of that

count[.]”

8 As a result, the original trial judge stated that she would “take the verdict

on all of the other counts[;] [a]s to the count on Devin Washington that will be

handled separately as to count 2.”

9 The verdict as to Counts 1 and 3 was published

8 At that juncture, based upon the information then in its possession, the

original trial judge would likely have been authorized to declare a mistrial asto Count

2. See Leonard, 275 Ga. App. at 669.

9

Immediately prior to the publication of the verdict, the jury confirmed that it

had reached a verdict, that the verdict was unanimous “as to all of the counts other

than the ones that . . . were deadlocked[,]” and that the verdict form had been

completed by the foreperson. 

16
and the jury discharged prior to the original trial judge’s decision to declare a mistrial

as to Count 2.

(ii) Review of the Verdict Form. “[I]t is the duty of the trial court not only to

tell the jury what the law is, but to insist that they apply it and either render a verdict

on some issue submitted or else make a mistrial.” Brooks v. State, 311 Ga. App. 857,

860 (2) (717 SE2d 490) (2011) (citing State v. Freeman, 264 Ga. 276, 277 (444 SE2d

80) (1994)). See also Washington I, 333 Ga. App. at 247 (1). To that end, the proper

procedure in handling a verdict form

is for the trial court and counsel to review the verdict prior to its

publication in open court, and if the verdict is not proper in that it finds

the defendant guilty of an offense with regard to which the trial court

did not instruct the jury, the trial court should return the jury for further

deliberation with direction to return a verdict within the range of the

instructions originally given to it.

Freeman, 264 Ga. at 278. Here, the trial court received multiple signals from the jury

that it was deadlocked on Count 2 of the indictment. One of the jury’s notes asked

whether it could “apply voluntary manslaughter instead of felony murder[.]”

10 Five

different notes from the jury indicated that it could not reach a verdict on Count 2.

10

 See fn. 5, supra.

17
When the jury indicated in open court that it had reached a verdict on every count

except Count 2 against Washington, the foreperson passed the verdict to a bailiff,

who then presented it to the original trial judge. However, the original trial judge only

viewed the verdict form from a few feet away to verify that it had been dated and

signed.

11 Of particular concern, the original trial judge testified that she “saw there

was something written [on the verdict form], but I could not have told you what it

was.” 

The original trial judge’s failure to review the verdict form was error. “Since

verdicts acquire their legality fromreturn and publication, there was no verdict in this

case until it was received and published in open court.” (Citation and punctuation

omitted.) Green v. State, 208 Ga. App. 1, 2 (1) (429 SE2d 694) (1993). As a result,

the jury’s notes that it had deadlocked were not controlling once it returned its

verdict. See State v. Lane, 218 Ga. App. 126, 127-128 (460 SE2d 550) (1995) (jury’s

notes that it acquitted defendant of murder, prior to returning verdict of guilty, were

insufficient to impeach verdict). See also Honester, 336 Ga. App. at 170. Had the

original trial judge viewed the verdict form more carefully, the fact that the jury

11 Nor did the prosecuting attorney or Washington’s defense counsel see the

verdict form prior to publication. The original trial judge testified that she did not

permit counsel to review the verdict form as a matter of practice. 

18
returned a verdict of not guilty as to felony murder, when it previously reported that

it was deadlocked on Count 2 (felony murder), would have become evident. It is also

likely that the judge would have noticed the handwritten words, “voluntary

manslaughter?” Such a verdict would have triggered a number of options for the

original trial court, including:(1) questioning the forepersonmore directlyconcerning

the verdict to eliminate any confusion; (2) polling the jurors to learn the truth of their

verdict before deciding whether to declare a mistrial; or (3) requiring the jury to

continue their deliberations and present a more clear verdict. See Honester, 336 Ga.

App. at 171; Leonard, 275 Ga. App. at 669; Thornton, 145 Ga. App. at 795. None of

these measures were taken.

Moreover, upon the trial court’s ultimate review of the jury verdict after the

jury had been discharged, none of the remedial options to clarify the verdict could

have been exercised. “[W]hen an ambiguous verdict is returned by a jury, the trial

court may refuse to accept the verdict and require the jury to continue its

deliberations.” (Punctuation omitted.) Ingram v. State, 290 Ga. 500, 503 (2) (722

SE2d 714) (2012) (trial court refused to accept verdict of guilty on both felony

murder and voluntary manslaughter). See also Kimmel v. State, 261 Ga. 332, 334 (2)

(404 SE2d 436) (1991) (trial court authorized to require further deliberations when

19
jury returned verdict of “undecided”); Robinson v. State, 282 Ga. App. 214, 215 (638

SE2d 370) (2006) (trial court authorized to require further deliberations when jury

initially returned verdict of “guilty with reasonable doubt”). However, “after [a

verdict] has been received, recorded, and the jury dispersed, it may not be amended

in matter of substance, either by what the jurors say they intended to find or

otherwise.” OCGA § 17-9-40. In such a circumstance, “a defendant is entitled to the

benefit of the doubt in the construction of an ambiguous verdict[.]” Washington I, 333

Ga. App. at 246 (1) (citing Lindsey v. State, 262 Ga. 665, 666 (1) (424 SE2d 616)

(1993)). 

Any corrective measures were lost in this case when the original trial judge did

notsee the verdict until after the verdict was published and the jury discharged. What

remained, then, was a verdict form, completed by the jury, in which the jury

apparently found Washington not guilty of felony murder after repeatedly

communicating that it was unable to reach a verdict on Count 2. Clouding the verdict

further is the “voluntary manslaughter?” language inserted on the verdict form

suggesting the jury’s inability to reach a verdict on that charge.12 The jury’s prior

12 By receiving a proper jury instruction, the jury would have been authorized

to return a verdict on voluntary manslaughter. See Prater v. State, 273 Ga. 477, 482

(5) (545 SE2d 864) (2001) (unless a jury is charged on a particular crime, no verdict

20
communications do not supplant their verdict and, in this instance, the jury’s notes

were sufficient to reinforce the original trial judge’s duty to review the verdict form

prior to publication. Instead, the original trial judge never reviewed the jury’s verdict

until it was too late to seek clarification from the jury. Similarly, the trial court was

not authorized to strike through “not guilty” on the verdict form after the jury had

been dispersed. See OCGA § 17-9-40; Newsome v. State, 323 Ga. App. 15, 17 (747

SE2d 99) (2013). Accordingly, “[b]ecause the trial court in this case did not so

intervene before the dismissal of the jury, a new trial is authorized.” Newsome, 323

Ga. App. at 17 (citing Brooks, 311 Ga. App. at 860 (2)). 

(iii) In sum, we conclude that the original trial court did not abuse its discretion

by declaring a mistrial as to the lesser included offense of voluntary manslaughter.

The jury’s notes, coupled with the verdict form it actually returned, indicate that it

was unable to reach a unanimous verdict on that offense. See Leonard, 275 Ga. App.

at 668. However, as to felony murder, we conclude that the trial court abused its

discretion by declaring a mistrial as to felony murder because it failed to review the

jury’s verdict. See Honester, 336 Ga. App. at 171; Newsome, 323 Ga. App. at 17.

Although the jury’s notes reflected confusion and an inability to reach a verdict, the

may be rendered on that crime).

21
verdict form clearly stated that Washington was “not guilty” of felony murder. See

Lane, 218 Ga. App. at 127-128; Green, 208 Ga. App. at 2 (1). Stated differently, there

was no manifest necessity for a mistrial as to felony murder in view of the jury’s

verdict. Furthermore, once the verdict was returned, it follows that the original trial

judge was without authority to modify or attempt to construe the jury’s verdict in a

certain light. See OCGA § 17-9-40. At worst, the verdict was ambiguous, requiring

that Washington be given the benefit of the doubt. See Washington I, 333 Ga. App.

at 246 (1); Lindsey, 262 Ga. at 666 (1). In either instance, the trial court erred by

striking the words “not guilty” on Washington’s verdict for felony murder and the

trial court on remand abused its discretion by denying Washington’s plea in bar as to

felonymurder. See, e.g., Jorgensen, 181 Ga. App. at 503 (trial court had “no authority

to grant a mistrial as to proceedings that have previously terminated in a jury verdict

of acquittal as to that offense.”). Accordingly, we reverse and remand the case to the

trial court for a new trial as to voluntary manslaughter and with direction to enter a

judgment of acquittal as to felony murder.

3. In a related enumeration, Washington contends that a retrial as to felony

murder would violate his constitutional protection against double jeopardy. In view

of our discussion in Division 2, supra, we agree. As a result, Washington may not be

22
retried for the offense of felony murder. See, e.g., Jorgensen, 181 Ga. App. at 503.

However, the State may retry Washington on the lesser included offense of voluntary

manslaughter if it so elects. See Archie, 230 Ga. App. at 255 (“the acquittal on the

indicted offense of [felony] murder would not bar retrial on the lesser included

unindicted offense of voluntary manslaughter[.]”).

4. Washington next argues that the trial court erred in admitting evidence of

prior bad acts between Washington and co-defendant Marcus Washington. We need

not consider this enumeration because, as in Washington I, Washington

has failed to identify precisely which evidence he now challenges or

show how he was prejudiced by any such evidence. “It is not this

[c]ourt’s job to cull the record on behalf of the [appellant]to find alleged

errors.” Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012)

(citation omitted). Moreover, we will not disturb a trial court’s

determination that such evidence is admissible absent an abuse of

discretion. Joiner v. State, 265 Ga. App. 395, 397 (2) (593 SE2d 936)

(2004).

333 Ga. App. at 256 (McFadden, J., dissenting). Accordingly, Washington has again

failed to demonstrate reversible error. See, e.g., Gordon v. State, 327 Ga. App. 774,

781 (5) (a) (761 SE2d 169) (2014).

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5. Washington also asserts that the trial court erroneously failed to sever his

trial from his co-defendant’s trial because their defenses were antagonistic. Because

Washington’s co-defendant was acquitted of malice murder and felony murder and

cannot be retried, and because Washington may only be retried on the lesser included

offense of voluntary manslaughter, this matter is unlikely to recur in Washington’s

retrial. As a result, we need not consider Washington’s argument. See, e.g., Sales v.

State, 296 Ga. 538, 541 (2) (b) (769 SE2d 374) (2015). 

6. Finally, Washington argues that the trial court erred when it prevented

Washington from calling two jurors as witnesses, admitting their affidavits into

evidence, or otherwise making an offer of proof during his double jeopardy hearing

prior to our decision in Washington I and the ensuing remand. As a threshold matter,

Washington did not raise this enumeration of error in his original appeal to this

Court.

13 However, regardless of whether the original trial court’s ruling was error or

whether the ground is now properly before us, it has been rendered moot because the

trial court cured any alleged error on remand by admitting both affidavit and oral

13

Indeed, we noted in Washington I that Washington did not “contend that the

trial court erred by disallowing the testimony or affidavits of jurors. . . .” 333 Ga.

App. at 244. Accordingly, the enumeration of error appears to be merely an attempt

to generate an argument based upon our prior opinion.

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testimony of the jurors during the remand hearing. See generally Mincey v. State, 251

Ga. 255, 258 (2) (304 SE2d 882) (1983) (trial court’s refusal to conduct evidentiary

hearing “could be cured by a remand for an evidentiary hearing”); Dryden v. State,

316 Ga. App. 70, 74 (3) (b) (728 SE2d 245) (2012) (error concerning mutually

exclusive verdict cured on remand).

Judgment reversed and case remanded with direction. Doyle, C. J., concurs.

Ray, J., concurs in judgment only..

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