Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT C. PASCHEN, Judge, presiding. Judgment
reversed and cause remanded for a new trial.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
The defendant, Timothy Richards, was indicted upon the charge of attempted robbery in that he, "with the intent to commit the offense of robbery, attempted to take the property of Harrison E. Stout by threatening the imminent use of force, . . . ." Defendant was subsequently tried before a jury which returned a verdict of guilt as charged in said indictment, sentence being imposed upon him for a term of from not less than five (5) nor more than ten (10) years in the Illinois State Penitentiary. Defendant's post-trial motions for a new trial and in arrest of judgment were thereafter denied by the court, from which denial he brings this appeal.
Defendant requests a review of his conviction upon but a single and limited issue. It is his basic position that prejudicial error was committed below by the trial judge's charge to the jury, over objection, of a certain supplemental instruction, which instruction was calculated to and offered for the sole purpose of obtaining a hastened verdict from the jury. Defendant submits by his theory that either the general form of instruction employed was inherently, or per se, coercive as a matter of law or, that this instruction as given and applied to the facts of the instant case had like effect. He argues that in either event the instruction operated in such a way as to deprive him of his constitutional rights to trial by jury and due process of law.
The State, on the other hand, offers persuasive argument to demonstrate that such "Allen type" supplemental instructions (as they are commonly referred to by the parties) have been countenanced and sanctioned by the overwhelming weight of both state and federal court decisions since first recognized by the United States Supreme Court in the namesake case of Allen v. United States, 164 U.S. 492 (1896). This the State suggests notwithstanding the "Allen type" charge's otherwise admitted design to expedite the deliberations of a deadlocked jury and hence alleviate the hung jury situation. While we find, and the parties stipulate, that this problem area has been resolved in numerous jurisdictions, the precise questions posed by its implementation in the case at bar present a case of first impression in the State of Illinois.
As the defendant argues the prejudicially compounding impact of this instruction from within the factual context of the evidence adduced at trial, a brief review of the evidence is in order.
Defendant was shown to be a gainfully employed family man with a self-admitted prior criminal record for grand larceny in 1948. Defendant resided with his family in an apartment building located at 6543 Cottage Grove Avenue in the City of Chicago, at which residence he likewise served in his full-time occupation as a janitor. In the early afternoon hours of October 15, 1964, defendant was returning home from an automobile repair shop located at 1440 West 63rd Street (almost directly west of his residence) where he occasionally performed odd jobs to earn additional income. For reasons not explained by the accused, he thereafter proceeded to travel home by bus in an indirect route south on Ashland Avenue, disembarking in the process at 83rd Street to have a beer in a local tavern. Shortly thereafter, defendant entered a furniture or fixtures store in that immediate vicinity purportedly in search of some bargain furnishings for the building where he was employed. Defendant testified in this regard to have had authority to make limited purchases in behalf of his employer, Mr. Knight, and that he, at that time, had $54 on his person with which to do so. These were facts uncontradicted by the prosecution.
It appears that the store premises were unoccupied except for a Mr. Harrison Stout, the proprietor, whom defendant testified he observed asleep in a chair as he walked past him, approaching the rear service area. Stout, who conceded that he may have been dozing, testified that he was disturbed by a knocking sound, as if someone were forcibly entering through the rear of his store, observed defendant at or near the rear door, and thereby was given cause to become suspicious of the defendant. It appeared by Stout's own admission that one and possibly both of the double doors to the rear of his showroom were, in fact, opened or unlocked at this time because he recalled, it had been a warm day. The record, however, is rather ambiguous in this respect.
Stout further testified that he confronted defendant near the rear entrance demanding to know his purpose in the store, whereupon, without response, he stated the accused brandished a revolver in a nervous or shaking fashion, pushed it into his stomach and told him to "get back." Stout further stated that even though he had removed his billfold in anticipation, defendant neither confiscated it nor, at any juncture, made a demand upon him for money or items of value. The witness added that he then managed to maneuver the defendant, by a turning motion, in such a way so as to cause him to trip backwards on a bar stool and momentarily lose his balance, further causing five 32-caliber bullets to spill onto the floor, apparently coming from defendant's pocket. Evidently frightened by this event, defendant took flight through the front door and was apprehended a short time later hiding out in a nearby basement by investigating police. He offered no resistance.
Testifying in his own behalf, defendant denied having ever entertained an intent to commit any offense against the property or person of Mr. Stout. Endeavoring to account for his conduct in the store, defendant explained that his inconsistent actions were the product of being a negro finding himself in a predominantly white neighborhood and fearful that he could not reason with the obviously excited owner, then using the gun only to extricate himself from this unfavorable situation. Defendant alleged to have possessed the weapon (32-caliber, five-shot revolver) only for self-protection in conjunction with his janitorial duties, acknowledging in this regard, that while he never carried it loaded, there may have been one or two bullets in the gun's chambers during the altercation. It would appear however, from a brief soliloquy during argument relative to the admissibility of this weapon and the five bullets into evidence, that the Assistant State's Attorney then was of the position that the gun had been empty during the occurrence in question.
This was, in essence, the extent of the material portions of testimony and evidence propounded at the trial, which consumed en toto, the relatively brief period of approximately two hours in duration. After final arguments, and under instructions from the bench, to which no objection is presently made, the jury retired from the courtroom for deliberation. The jury having remained "out," as the expression is employed, for approximately 2 1/2 hours without returning, the trial judge summoned them back. The jury foreman, upon inquiry from the bench, announced that his group was "hopelessly deadlocked." Thereupon, over strenuous objection of counsel for defendant, and upon the motion of the prosecution, the trial judge orally delivered an "Allen type" supplemental instruction to the jury, which instruction has been the sole subject matter of this appeal, to wit:
"In a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusions of others, yet you should examine the questions submitted with proper regard and deference for the opinions of each other, and you should listen to each other's opinions with a disposition to be convinced. It is your duty to decide the case if you can conscientiously do so. If a much larger number of jurors favor conviction, a dissenting juror should consider the reasonableness of his doubt when it makes no impression upon the minds of other jurors, equally intelligent and impartial, and who have heard the same evidence. If upon the other hand, the majority favors acquittal, the minority should ask themselves whether they might not reasonably doubt the correctness of their judgment.
"If you should fail to agree on a verdict the case must be retried. Any future jury must be selected in the same manner and from the same source as you have been chosen, and there is no reason to believe that the case would ever be submitted to twelve men and women more competent to decide it, or that the case can be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced on behalf of either side.
"You may now retire and reconsider the evidence in light of the court's instructions."
Eighteen minutes later (as expressly noted in the Report of Proceedings as including the time for delivery of the charge, as well as the jury's adjournment from and return to the courtroom), the jury returned to pronounce its verdict of unanimity as to the guilt of the accused. Defendant's subsequent poll of the jury disclosed that such a verdict had theretofore failed because of the opinions of two ...