Before Terry, Ruiz, and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Zoe Bush, Trial Judge)
Appellant Jermaine Jones was convicted by a jury of possession with intent to distribute a controlled substance, marijuana, in violation of D.C. Code § 33-541 (a)(1), (2)(D) (1993 Repl.). Jones filed a timely notice of appeal. On appeal, Jones argues that the trial court erred in conducting a polling of the jury, and thus abused its discretion in accepting the jury's verdict as unanimous. We reverse. *fn1
At trial the government presented several witnesses. Its key witness, however, was Officer Leon Johnson. He testified that on May 21, 1994, while working undercover, he saw Jones approach a group of individuals, pull a plastic bag from his right front pocket area, and show the bag to one of the individuals. According to Officer Johnson, the plastic bag contained a number of smaller ziplock bags with a green, weed-like substance inside of them. After being warned that there were police in the area, Jones started to walk away and tossed the plastic bag over a fence. Jones was arrested and Officer Johnson recovered the plastic bag from where he had seen Jones toss it. The contents of the bag were field tested and found to be marijuana.
On January 19, 1995, the jury began its deliberations. On January 20, at approximately 3:35 p.m., the jury sent the court a note indicating that they could not reach a unanimous verdict. In response to that note, the trial judge gave the jury a Winters instruction *fn2 and the jury resumed its deliberations. At approximately 4:45 p.m., the jury sent the court another note this time indicating that they had reached a unanimous verdict. After the foreperson delivered the verdict of guilty, the jury was polled. The first seven jurors responded that they agreed with the verdict. When it came time for juror number eight to respond, the following exchange took place:
[Court]: Are you able to answer the Clerk's question?
[Court]: Would you ask ...