People v. Manning

After second jury trial, Defendant was convicted of 1st-degree murder and sentenced to 25 years.  During deliberations, jury asked if non-unanimity as to mitigating factor meant that charge would "revert" from 2nd degree murder to 1st degree murder. Court instructed jury only that its verdict must be unanimous. Court erred in refusing to poll jury to specifically determine if any juror believed that a mitigating factor existed.  A criminal defendant has an absolute right to poll a jury. In light of jury's question, it is a distinct possibility that verdict was wrongly the product of a split vote on Defendant's guilt of 2nd degree murder, thus undermining reasonable confidence in verdict. (McLAREN and JORGENSEN, concurring.)