APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendants, Alonzo Robertson and Ronald Smith, were charged with robbery. A jury found them both guilty of that charge. The court sentenced Robertson to a term of three years while Smith was granted probation. On appeal defendants contend that they were denied a fair trial because certain comments of the judge coerced the jury into a verdict and because of certain prejudicial remarks by the prosecutor during closing argument.
On May 20, 1978, at about 5 a.m., the alleged victim of a robbery invited a prostitute to his automobile which was parked in a lot at 3525 North Halsted Street in Chicago. As the pair sat in the automobile, two men approached and announced a holdup. One man, identified by the victim as Robertson, pulled the prostitute out of the vehicle and pointed to her pockets. The victim testified that when he emerged from the automobile Smith frisked him. The victim dropped his keys and a small amount of money on the ground. At that time, the victim observed the prostitute walk away from the scene. When the victim realized that the robbers did not have weapons, he asked Smith for the keys. Smith threw the keys away, and the victim began chasing the robbers.
Officer LeRoy Seabury of the Chicago Police Department testified that he was driving a squad car and observed two men being chased by one man. Another squad car halted the two men and the man chasing them came up and reported to the police that he had just been robbed by the two men.
Defendant Smith testified that he, Robertson, and a man named Murphy had been at a party in Evanston. Murphy dropped off the defendants, who lived on the south side, near Belmont Avenue. After purchasing liquor, defendants walked away from one prostitute who approached them. Moments later, in front of a parking lot, defendants swore at another prostitute because of a suggestion she made. Defendants then saw a man walking towards them. Believing him to be a friend of the prostitute, defendants became frightened and ran. After defendants flagged down a squad car, the man ran up and told the police defendants tried to rob him.
Defendants initially contend that the trial court coerced the jury into a verdict. After it had been deliberating for some time, the jury sent a note to the trial court stating it was unable to reach a unanimous verdict. The note indicated that the jury was split 10 to 2, without indicating which way the vote was split. At that time, over defense counsel's objection, the trial court summoned the jury to the courtroom and delivered the deadlock instruction authorized by the supreme court 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 trial court stated as follows:
"Ladies and gentlemen, this is an additional instruction that I'm going to give you very carefully, handwritten, and then I will send it back to the jury room with you.
Your 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 judgments. Each of you must decide the case for yourselves, but do so only after an impartial consideration of all the evidence with your fellow jurors.
In the course of your deliberations do not hesitate to re-examine your own view and to change your opinion if convinced it is erroneous, but do not surrender your honest conviction as to the weight or effect of the evidence solely because of your fellow jurors or for the mere purpose of returning a verdict.
You are not parties, you are judges, judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case."
After giving the foregoing instruction, the trial court made the following additional comments to the jury:
"There is no reason at all why this jury cannot arrive at verdicts in this case. I repeat, I don't care what your verdict is, but you can't be deadlocked. You heard one day of evidence and it is a question of you either believe one side or you believe the other. You can't be deadlocked. Now, Mr. Munoz, ...