APPEAL from the Circuit Court of Cook County; the Hon. ROMIE
J. PALMER, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE MEJDA delivered the opinion of the court:
Defendant was charged by information with the offense of pandering. (Ill. Rev. Stat. 1975, ch. 38, par. 11-16(a)(2).) He was convicted by a jury and, following a presentence investigation and a sentencing hearing, was sentenced to prison for not less than one year nor more than three years, the maximum sentence for the offense. Defendant raises two issues on appeal, contending that: (1) he was denied a fair and impartial trial by jury because the trial court continued to poll the entire jury after one juror dissented from the verdict; and (2) the trial court abused its discretion in imposing sentence in that it refused to hear opinion evidence of defendant's character and it considered unverified evidence of prior convictions. We affirm the conviction and sentence.
Defendant does not question the sufficiency of the evidence to convict, raising the issue of reasonable doubt solely in regard to the unanimity of the jury, and we therefore will not recount all of the evidence which led to his conviction.
When the jury returned with its verdict, it was polled at the request of defendant. Two jurors dissented from the verdict and a recess was taken during which the trial judge held an in camera conference with the two prosecuting attorneys and the defense attorney. Following the conference, the court questioned the dissenting jurors as to whether they had been coerced into reaching the guilty verdict. Upon receiving a negative response from both jurors, the jury was returned for further deliberations, with new verdict forms. The jury again returned a guilty verdict which a poll disclosed to be unanimous. The verdict was accepted and judgment was entered.
After the jury was dismissed, defendant made motions for a new trial and for judgment notwithstanding the verdict. The case was continued for five weeks to allow time for presentence investigation and for the preparation of written motions.
The post-trial hearing consisted of argument of defendant's six-point motion for new trial and of evidence in aggravation and mitigation prior to sentencing. Defendant's motion for new trial was denied, including his claim that the court erred in letting the jurors continue their deliberations instead of ordering a mistrial. In sentencing defendant to one to three years in the penitentiary, the court considered the entire presentence report, excluding some juvenile records of defendant's brother as well as arrest reports. The court stated that it also considered the nature and circumstances of the offense and defendant's employment record and prior convictions. It did not allow defense counsel to express his own opinion of defendant's character.
Defendant was sentenced to one to three years in prison and this appeal followed.
Defendant first contends that he was denied a fair trial when the court continued to poll the entire jury after discovering that one of the jurors dissented from the verdict. Defendant maintains that the trial court's actions isolated the dissenter and created a coercive atmosphere that thereby raises a reasonable doubt as to the unanimity of the verdict. He urges that a mistrial should have been declared at that point. The State alternatively contends: (1) that defendant has waived his right to appeal on this issue because he made no objection to the continuation of the poll at trial and did not include the continuation of the poll of the jury in his motion for new trial; and (2) that the trial court's actions in allowing the jury to continue its deliberations were proper.
Citing People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856, the State maintains that defendant failed to raise the continuation of the jury poll in the motion and has therefore waived the issue. We disagree. In Pickett, defense counsel was absent when the verdict was received and filed, and the jury was not polled. When the right to counsel and the right to poll the jury were raised on appeal, our supreme court held the issues waived because they had not been included in the motion for new trial. Here, the issue was included in the motion. While not specifically mentioning the continuation of the polling of the jury in his motion, defendant stated the same ground in other words by citing both the trial court's refusal to declare a mistrial after the two jurors dissented and its subsequent ordering of the jury to continue its deliberations.
The State also points out that no objections were made to the court's action until after the jury's verdict had finally been accepted. Two jurors, the third and the 10th, dissented from the verdict when the jury was polled. In each instance, the court instructed the clerk to continue polling the jury and in neither instance did defendant object. The court then called an in camera conference with the prosecutors and defense counsel. The discussion was off the record, after which the court stated: "All right, gentlemen, we are agreed that this is what we are going to do, is that correct?" Defense counsel replied, "Yes." The court again asked, "Is that the agreement?" to which the State's Attorney responded, "That is the agreement."
The court reconvened and, in the presence of the jury, defendant and counsel, announced that the earlier finding of guilty was not the jury's verdict. After the announcement, the following colloquy between the court and the dissenting jurors occurred:
"THE COURT: Now, Mrs. Friedman, were you coerced in any manner in arriving at, or placing your signator [sic] as you did first on the verdict?
I assume that you know what the word `coerced' means?
JUROR FRIEDMAN: May I speak freely?
JUROR FRIEDMAN: No, I was not coerced. And had I not been questioned when I came into this courtroom I would have let my signature stand and my verdict stand.
THE COURT: When you were questioned when you came into the courtroom?
JUROR FRIEDMAN: Had I not been quetioned.