Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Frank J. Wilson, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The defendant, Henry Clay Preston, was indicted in the circuit court of Cook County for the murder, robbery and armed robbery of George Pope. A jury returned verdicts of guilty of murder and robbery and not guilty of armed robbery, and judgments were entered on the verdicts. The defendant received concurrent sentences of from 75 to 100 years on the murder conviction and from 6 to 8 years on the robbery conviction. The appellate court affirmed the convictions (60 Ill. App.3d 162), and we allowed the defendant's petition for leave to appeal.
The defendant was charged with having shot and killed Pope in the course of a robbery in a Chicago Housing Authority building in Chicago, where Pope was employed as a uniformed security guard. There were no eyewitnesses, and the defendant's conviction rested on the testimony of James Fleming, a friend of the defendant, concerning events taking place shortly following the crime. Fleming testified that the defendant visited him on the evening of April 8, 1974, and told Fleming that earlier that evening, after encountering Pope in an elevator, he had taken the latter's pistol from its holster, announced a holdup, and then shot him with the pistol. The defendant told Fleming that he then removed a wallet and some currency from the person of the victim, and he showed Fleming the pistol and wallet. The pistol was sold to another person. It was later recovered, and was identified as having belonged to the victim. The wallet and the currency were not found. The count charging robbery alleged the taking of the pistol, while the charge of armed robbery alleged the taking of the wallet and the currency.
In addition to this direct appeal, the defendant filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.) in which he alleged, inter alia, that Fleming's testimony was perjured. The petition was dismissed without a hearing, and the defendant appealed. The post-conviction appeal was consolidated with the direct appeal, and in the former the appellate court reversed the judgment of dismissal and remanded the cause with directions to hold an evidentiary hearing on the claim of perjury. Neither side has sought review here of the appellate court's judgment in the post-conviction appeal, and that proceeding is accordingly not before us.
Three issues are raised on the direct appeal. One is the propriety of a supplemental instruction given to the jury. The second is the alleged failure of the trial court to explore fully a response made by a juror during the polling of the jury, a response which assertedly indicated dissent from the verdict of guilty on the murder charge. The third is the refusal to admit a post-trial deposition of the juror concerning the deliberations of the jury. No claim is made that the evidence failed to establish the defendant's guilt beyond a reasonable doubt.
The taking of testimony at the trial took slightly less than two days. Fleming and six other witnesses were called by the State; the defendant did not testify and called no witnesses. The jury began its deliberations at about 4:25 p.m. on the second day. At 11 p.m. the judge called counsel to his chambers, and read them a supplemental instruction he intended to give the jury regarding deadlocks. No instruction on that subject had been given the jury before it retired, and no request for a supplemental instruction was made by either party. The defendant objected to the giving of the instruction as premature, and also objected to certain portions of it. The jury was then called in and the following took place:
"THE COURT: * * * Ladies and gentlemen, have you been able to reach a verdict? * * *
THE FOREMAN: Not completely, your Honor.
THE COURT: * * * Do you think you can arrive at a verdict?
THE FOREMAN: I couldn't tell you at the moment, sir.
THE COURT: Okay. I am going to send you back. I just want to let you know that in a large proportion of the cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence of the conclusion of others, yet you should examine the questions submitted with proper regard and deference to 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 you fail to agree on a verdict, the case must be retried and a 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, nor can a case be tried any better or more exhaustively than it has been here, or that any more clear evidence could be produced on behalf of either side. Now you can retire and reconsider the verdicts in this case."
The jury retired, and there followed a colloquy with counsel in which the judge stated that he did not intend to lock the jury up for the night unless some reason appeared to do so, but that on the motion of either side the jury would be called every hour and asked if it could reach a decision. At this point the defendant moved for a mistrial.
At 12:50 a.m. the defendant moved for a directed verdict on the ground that the length of time that the jury had been out showed the existence of a reasonable doubt as to guilt. The defendant also made another motion for a mistrial. The court denied these motions and summoned the jury. The foreman stated that the jury had reached a verdict, but the court, having looked at the verdict forms, disclosed, out of the hearing of the jury, that a finding had been reached on only one of the charges. The court did not specify which charge this was. The jury was given no further instruction at this juncture, and was sent back for additional deliberations.
At 1:50 a.m. the jury returned verdicts on all three charges guilty of robbery, guilty of murder, and not guilty of armed robbery. Before entering judgment, the court, at the defendant's request, directed that the jury be polled with respect to the guilty verdicts, and during the poll the following colloquy took place:
"CLERK: Vera Goss, as to the verdict of guilty of murder, was this and is this now your verdict?
JUROR GOSS: (unintelligible)
CLERK: As to the verdict of guilty of robbery, was this and is this now your verdict?
MR. KALNINS [counsel for the defendant]: We would ask for a side bar.
CLERK: Vera Goss, as to the verdict of guilty of murder, was this and is ...