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People v. Pankey

OPINION FILED APRIL 7, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JERRY PANKEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McLean County; the Hon. IVAN JOHNSON, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

A jury found defendant guilty of battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-3). The trial court fined defendant $300; no incarceration was imposed.

Defendant argues that the trial court erred in failing to give the jury a Prim instruction and that he was not convicted beyond a reasonable doubt.

Defendant's trial concluded on April 20, 1977, and the 12 jurors retired at 4:45 p.m. The judge excused the court reporter and the following facts have been stipulated by the parties under Supreme Court Rule 323(d). The jury was sent to dinner at 6:15 p.m. and returned to begin deliberating again at 7:45 p.m. At 9:05 p.m., the jury informed the court that it was deadlocked. Counsel for both sides met with the judge in his chambers. The judge indicated that he was going to advise the jury to continue to consider the case and that if, after trying once again a verdict could not be reached, they should so advise the judge. Attorneys for both defendant and the State agreed to this approach.

As the jury was entering the courtroom, the judge called the attorneys to the bench. He then showed them "A New Judge's Creed" (set out in the appendix) which the judge indicated he intended to read to the jury. Defense counsel objected on the basis of relevancy.

The judge proceeded to read the entire Creed to the jury and concluded by remarking "There is no such thing as a hung judge — you will now retire to determine your verdict." The jury reconvened at 9:15 p.m. and returned a verdict of guilty at 10:30 p.m. The jury was polled and each juror affirmed the guilty verdict.

The State argues that the defendant failed to object to the reading of the Creed and that any error has been waived. The stipulation in the record indicates that before the Creed was read to the jury defense counsel said: "I don't believe this is relevant to the case before the jury, your Honor, and I believe that the information presented therein [the Creed] is inappropriate to my client's case."

• 1 No magic words such as "I object" are required. Only a reasonable indication of an objection is necessary to preserve error and it is evident to us that counsel's statement was an objection to the reading of the Creed. McCormick, Evidence §§ 115-116, at 247-49 (2d ed. 1972).

Defendant asserts that it was error for the trial court to read the Creed instead of giving the Prim instruction at such a crucial moment of the trial. The State contends that any error was waived because a Prim instruction was not tendered by defendant. Defendant, however, objected to the reading of the Creed and along with that issue the discussion of Prim is necessary.

In People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731, the Illinois Supreme Court, using its inherent power under section 16 of article VI of the 1970 Illinois Constitution, wrote an instruction for trial courts> to read to deadlocked juries under appropriate circumstances. It reads:

"`The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an 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.'" 53 Ill.2d 62, 75-76, 289 N.E.2d 601, 609.

The instruction was designed to avoid the coercion inherent in the traditional "Allen charge." (Allen v. United States (1896), 164 U.S. 492, 41 L.Ed. 528, 17 S.Ct. 154.) The Allen Charge had the effect of urging those members in the minority on the jury to re-evaluate their position, giving consideration to the fact that the majority of the jury who heard the same evidence took a different position. (Prim.) This aspect of the ...


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