APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE BUA DELIVERED THE OPINION OF THE COURT:
The defendant was indicted for murder and was tried before a jury in the Circuit Court of Cook County. The jury returned a verdict of guilty, and the court imposed a sentence of imprisonment for a term of from 40 to 100 years. On appeal, the defendant-appellant contends that under the circumstances the trial court erred in refusing to instruct the jurors that they could be discharged without reaching a verdict.
The testimony of various witnesses indicated the following to be the relevant facts. On June 22, 1974, William Moore, James Grady, Johnnie Stuckie, and a man known only as "Lee" shared an apartment at 3725 South Indiana, in Chicago. Lee was a heroin dealer and the other three men were addicts or users of heroin. At about 5:30 p.m. on that day, the four men were in the apartment, together with Freddie Vic, Leroy Turner, and a girl named Rose. Lee began to accuse those living in the apartment of stealing some of his heroin. He questioned them, and after searching the house, left, threatening "trouble" if the heroin was not found by the time he returned. Lee was gone only a short time. Just after he returned a man named Will Sullivan entered the apartment and began to question the occupants concerning the missing narcotics. Sullivan was armed. He said that he was going to go and get his "people" and that someone would be "hurt bad" if the heroin did not turn up by the time he came back. Lee and Sullivan then left the apartment and returned, followed by two men, one of whom was later identified by Moore, Turner, and Stuckie as the defendant, Jerry Allen. Stuckie, Moore, Grady, Turner, and Vic were summoned to Lee's bedroom, where Sullivan and Allen held them at gunpoint. Allen questioned the men about the narcotics. After unsuccessful attempts by Allen and Sullivan to recover the heroin or get any of the five men to admit to stealing it, Allen became upset. At this point, according to witnesses, Allen said, "I'm tired of this," placed a pillow from the bed in front of his gun, and fired a shot into Grady's chest. Grady fell over on the bed where he had been sitting and was later laid on the floor. After threatening to kill the others as well if the heroin was not soon recovered, Lee, Sullivan, and Allen left the apartment. The police were called.
On July 3, 1974, Moore and Turner each identified Jerry Allen from a group of police photographs as the man who had killed James Grady. After Allen's arrest, Moore also viewed and identified Allen in a lineup.
The jury began its deliberations at about 3 p.m. on January 13, 1975. After approximately six hours, at about 9 p.m., the judge called the jury back into the courtroom and asked the foreman whether he felt that a verdict might be reached within the next hour. The foreman answered affirmatively, and deliberations resumed for about 45 minutes. At that point the jury sent a note to the court which read, "We are unable to reach a verdict. What is the alternative?" The judge again called the jury into the courtroom. He told the jurors that they would be spending the evening in the jury quarters and would continue their deliberations in the morning. When the jury had gone, defense counsel asked that the following morning the court instruct the jurors that if they could not reach a verdict they could be discharged without ever doing so. This request was denied.
The next morning, January 14, 1975, the jury began its deliberations at about 10 a.m. Just before the jury went to lunch the foreman sent a second note to the court. At about 2 p.m. the court informed counsel for both sides of the situation and of his plans regarding further deliberations by the jury, saying:
"For the record, what I am going to do at this time * * *. Before lunch, I have received a further note from the jury. They handed it to the Bailiff, which says:
`We, as the jury, are deadlocked and cannot see any possibility of reaching a verdict.
With that in mind they went to lunch. They returned approximately a half an hour ago. At this time I am going to read People v. Prim, which will be taken from 53 Ill.2d 62. Thereafter, I will send the jury back and see if they can reach, after reading the instruction to them I will call them out at approximately an hour and a half, two hours, and see if they have progressed any further in reaching a verdict before I declare it a hung jury."
Defense counsel asked that in addition to reading the supplemental instruction for deadlocked juries set forth in People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, the court inform the jurors that they could be discharged without reaching a verdict. The court refused to do so. In accordance with People v. Prim, the court then called out the jurors and addressed them as follows:
"Your verdict here must represent the considered judgment of each juror. In order to return a verdict, it is necessary for each juror to agree thereto. Your verdict must be unanimous. It is your duty as jurors to consult with each other and to deliberate with a view to reaching a verdict if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after impartial consideration of the evidence with your fellow jurors.
In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous, but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans, you are judges, judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.
So, with that in mind, I want you to go back and I will see in a while longer if you are any closer to a verdict.
You may go back and continue your deliberations at this time."
After returning to its deliberations for 1 to 1 1/2 hours, the jury returned a verdict of guilty as charged. Judgment was entered on that verdict, and the court imposed a sentence of imprisonment for 40 to 100 years.
It is the defendant's contention that the trial court, under these circumstances, committed reversible error by failing to instruct the jurors that they could be discharged without reaching a verdict. The essence of the defendant's argument is not that the court erred in charging the jury as provided in People v. Prim. Rather, it is argued that given the full context of prior events, the court's failure to go beyond the Prim charge and give further explanation to the jury may have resulted in a coerced verdict. Specifically, the defendant points to the jury's express inquiry as to the "alternative" to apparent deadlock, the court's response in telling the jury only that they would be sequestered for the evening in jury quarters, and the overall length of the deliberations. Under these circumstances, it is argued, it was not unrealistic to assume that some jurors might have felt that failure to reach a verdict would result in continued nights of confinement, and it therefore became the duty of the court to expressly dispel any such feelings.
While this argument raises a somewhat novel issue in this court, we are not left entirely to our own judgment in reaching a decision. In People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, the Illinois Supreme Court clearly indicated that when dealing with a possibly deadlocked jury, the Illinois courts> should comply with the provisions of section 5.4 of the Standards Relating to Trial by Jury promulgated ...