APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant, Ernest Pierce, was charged by indictment with aggravated kidnapping, armed robbery and rape, and was found guilty of all three charges by a jury in the circuit court of Cook County. He was sentenced to a term of 25 to 50 years in the penitentiary. From the judgment of the circuit court he appeals.
The defendant contends that the trial court erred in refusing to grant the jury's request during the course of their deliberations for a rehearing of certain trial testimony. He also contends that the court erred in holding a hearing outside his presence concerning the jury's request to rehear this testimony, and he argues that holding this hearing outside his presence denied him the right to effective assistance of counsel and the right to be present at every stage of the trial proceedings.
During their deliberations, the jury informed the judge through a bailiff that they had reached two out of three verdicts and had a question. With the agreement of the prosecutor and defense counsel, the judge directed the following memo to the jury:
"Foreman: Without telling me what your votes are or anything relative to your verdicts, please put your question in writing and I will then advise you further."
The jury returned the following question in writing:
"What was testimony of Mrs. Knistoft and testimony of arresting Officer Kohn?"
In the presence of both counsel, an interrogation of the bailiffs by the judge again revealed that the jury indicated that they had reached two verdicts but were unable to reach a third. Following this interrogation, the judge and both counsel had a discussion, at the conclusion of which the judge returned the following note to the jury, again with the full agreement of the prosecutor and defense counsel:
"I cannot instruct further. You must continue with your deliberations."
The defendant was not personally present during any of the above proceedings.
• 1, 2 Defendant's first contention is that the trial judge erred in refusing the jury's request to rehear certain portions of the trial testimony. The question of whether the jury has an absolute right to rehear testimony or whether it is a matter of the trial court's discretion to allow the jury to rehear testimony is one of first impression in Illinois. After reviewing cases from other jurisdictions, we think the best rule is that when the jury, in order to refresh their recollection, requests the reading of a portion of the testimony given at trial, it is within the discretion of the trial court to grant such request. (Commonwealth v. Peterman (1968) 430 Pa. 627, 244 A.2d 723; U.S. v. DePalma (9th cir. 1969), 414 F.2d 394; Tyler v. U.S. (10th cir. 1966), 361 F.2d 862; Gregory v. U.S. (8th cir. 1966), 365 F.2d 203; Pinckney v. U.S. (5th cir. 1965), 352 F.2d 69.) No error shall be found on review unless it appears that the trial court abused its discretion. The reasoning for this rule is stated in Commonwealth v. Fontaine (1956), 183 Pa. Super. 45, 128 A.2d 131:
"Although under our system of jurisprudence the jury is the ultimate trier of facts, it does not follow that in all instances and at all times men and women called for jury duty are endowed with infallible powers of retention. Juries may not take notes on the progress of testimony and not infrequently they may retire with confused recollections of the evidence. Particularly may this human failing present itself in lengthy trials involving many complex issues of fact. When, therefore, such admission is frankly disclosed, the trial court must have discretion in determining how best to resolve the confusion or misapprehension of facts in the minds of the jury. This discretion is an incident to the mode and manner of trial and, in the absence of flagrant abuse, should rest with the trial court." Commonwealth v. Fontaine (1956), 183 Pa. Super. 45, at 47, 128 A.2d 131, at 132.
• 3 Examining the circumstances surrounding the trial court's ruling in the instant case, we find no abuse of discretion in the court's refusal to allow the jury's request for a hearing of a portion of the trial testimony. The court took obvious pains to be certain that counsel for both sides agreed with his procedure for ascertaining the jury's question. More importantly, the record shows that the prosecutor and defense counsel agreed to the court's denial of the jury's request and to the court's note informing the jury of this denial. The defendant argues that the testimony which the jury requested related to the issue of identification of the defendant as the perpetrator of the crime involved, and as such, the court should have allowed a rehearing of this testimony. While the jury's purpose in requesting the testimony ...