APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. SKLODOWSKI, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant John Green was found guilty of burglary and sentenced to a term of 14 years. Defendant's appeal pertains solely to the trial court's alleged coercion of the jury. Specifically, the defendant asserts that the trial court: (1) improperly asked the jury foreman to reveal the numerical division of the jury during its deliberations; (2) gave a prejudicially inaccurate version of the Prim charge (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); and (3) refused to declare a mistrial although 10 jurors revealed, after 11 hours of deliberation, that additional deliberation would not result in a verdict.
Because the defendant's alleged errors refer solely to the trial court's actions during the jury's deliberations, it is sufficient to say that the defendant's burglary charge arose out of a burglary occurring December 20, 1977, in the Chicago city limits. At the trial, the State presented evidence through the testimony of the complaining witness and two police officers. Following closing arguments the court instructed the jury and the jury began its deliberations.
The defendant first argues that it was reversible error for the trial court to ask the jury foreman to reveal how the jury was divided. The defendant states that under Crist v. Bretz (1978), 437 U.S. 28, 57 L.Ed.2d 24, 98 S.Ct. 2156, we are bound by the Supreme Court's holding, in Brasfield v. United States (1926), 272 U.S. 448, 71 L.Ed. 345, 47 S.Ct. 135, that it was per se reversible error to require a jury to reveal its numerical division during deliberations. We note that prior to the Crist decision the Illinois Supreme Court in People v. Duszkewycz (1963), 27 Ill.2d 257, 189 N.E.2d 299, and People v. Golub (1929), 333 Ill. 554, 165 N.E. 196, held that, while it was erroneous to ask for the jury's numerical division, it was not reversible error because it could not be said that the inquiry interfered with the deliberations of the jurors to the prejudice of the defendant or that it hastened the verdict.
Whether the rule set forth in Golub is still in effect or whether Brasfield is binding after Crist was recently addressed in People v. Kirk (1979), 76 Ill. App.3d 459, 394 N.E.2d 1212. In Kirk, six hours after the jury began its deliberations, the judge called the jury in and asked them if they could reach a verdict. The foreman asked the court for an additional hour in which to deliberate. The court agreed to this request and gave the jury a Prim instruction. (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.) Two hours later when the jury informed the court it could not come to a verdict, the court asked for the numerical division of the jury. The foreman informed the court that the jury was divided 10 to 2. At this juncture, the court made overnight arrangements for the jury and a verdict was reached the next day. The court, in Kirk, held that Brasfield was not decided based on a constitutional interpretation but rather as a part of the court's supervisory powers. Consequently, the court held that Brasfield was not controlling in a State proceeding under Crist. Because the court concluded that the defendant had failed to show how it had been prejudiced by the court's inquiry, it found that no reversible error had been committed under the Golub and Duszkewycz authority.
In the instant case, the jury began its deliberations at 11:29 a.m. and at 6:05 p.m. sent a note to the trial judge indicating that it was deadlocked. The court returned the jury to open court and asked the foreman if there was a reasonable probability that continued deliberations would result in a verdict. The foreman responded in the negative. Over defense objection, the court then asked the foreman how many ballots had been taken and how the jury was divided numerically. The foreman informed the court that the jury had voted six times and was divided 10 to 2. We note that the foreman did not indicate whether the majority favored guilt or innocence. The trial court then gave the jury a modified version of the Prim instruction. After 4 1/2 more hours of deliberation, the jury was sequestered for the night. A verdict was returned early in the next day's deliberations.
• 1 During oral argument, it was asserted that Kirk is factually distinguishable from the instant case and that, therefore, the Brasfield per se rule must still be followed. In Kirk, the defendant points out, a Prim instruction rather than a modified Prim instruction was given and the jury was "locked up" after nine hours of deliberation and then didn't return a verdict until 3 p.m. the next day, while here the jury was locked up after 11 hours of deliberation and then returned a verdict very early the next day. While we recognize the factual differences between the instant case and Kirk, we are not persuaded that such a difference requires us to distinguish Kirk. In Kirk, the court specifically rejected the argument raised by the defendant here that Brasfield requires a per se reversal where a judge makes an inquiry as to a jury's numerical division. Therefore, even under a different set of facts, Kirk requires use of the Golub rule rather than the per se reversal rule of Brasfield. Consideration of the factual difference between Kirk and the instant case will be made by considering whether sequestering the jury for the night after giving a modified Prim instruction and inquiring as to the jury's numerical division so interfered with the jury's deliberations that it prejudiced the defendant or hastened the verdict. People v. Prim; People v. Duszkewycz (1963), 27 Ill.2d 257, 189 N.E.2d 299; People v. Golub (1929), 333 Ill. 554, 165 N.E. 196; People v. Kirk.
The defendant next complains that the trial court gave an inaccurate recitation of the Prim instruction to the deadlocked jury resembling the so-called "dynamite" Allen charge (Allen v. United States (1896), 164 U.S. 492, 41 L.Ed.2d 528, 17 S.Ct. 154) criticized by the court in Prim. Giving this instruction, the defendant contends, in conjunction with the judge's inquiry as to the division of the jury prejudiced the defendant because the two minority jurors would have felt that the judge was directly asking them to "heed the majority" rather than make their own independent decision as to the case.
In Prim the supreme court, based on its supervisory power, set forth an instruction to be given when a jury is deadlocked to "resolve the many questions created by the uncertainty attendant upon instructing a jury that is in disagreement." (53 Ill.2d 62, 76.) That instruction provided:
"`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.'" ...