Appeal from the Circuit Court of St. Clair County; the Hon.
Patrick J. Fleming, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant, Gregory S. Griggs, was charged by indictment in the circuit court of St. Clair County with murder. A jury, after more than nine hours of deliberation, returned a verdict finding him guilty of the lesser offense of voluntary manslaughter. Defendant was sentenced to the Department of Corrections for a term of six years' imprisonment. Defendant alleges reversible error in that the trial court coerced and unduly hastened a verdict by inquiring of the jury its numerical division after eight hours of deliberation and, after learning that seven of the jurors thought that no verdict could be reached, nevertheless returned the jury to deliberation and refused the State's request for a deadlocked jury instruction in accordance with the supreme court's directive in People v. Prim (1972), 53 Ill.2d 62, 71-77, 289 N.E.2d 601, 607-10, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731. Defendant also contends that the trial court abused its discretion in sentencing.
The underlying facts pertinent here are stated simply. Griggs returned home and found there his cousin, Barbara Davis, and the Chandlers, Gene, Harvey and Luther. Gene Chandler approached Griggs. Hostile words were exchanged, tempers flared and a fight broke out between them. Harvey, Luther and Davis intervened. The fighters were separated for a very short time, then shots were fired. Gene Chandler died from a gunshot wound in the chest. Some evidence tended to establish self-defense.
The jury was instructed about the applicable law and retired to deliberate its verdict at 1:25 p.m.
At 9:45 p.m. the court called counsel into chambers and proposed to call the jury into the courtroom to ask its members the following questions:
"Without giving the results of any vote, approximately how many votes have been taken; * * *.
Second, without giving the results of any votes, guilty or not guilty, what was the numerical breakdown on the last vote, * * *.
Third, if the Court was to ask you to continue your deliberations, do you feel there is a reasonable probability you might yet be able to arrive at a verdict.
If the foreperson answers no to that question, I will ask each juror, if the Court was to ask you to continue your deliberations, do you feel there is a reasonable probability you might be able to arrive at a verdict, I will ask them to respond to that question, yes, no, or maybe."
The State voiced no objection but requested that the instruction mandated by Prim be given first. The State's request was denied. Defense counsel objected "to giving any further questions or instructions at this point." When asked how long the court should allow the jury to deliberate, the State suggested "another hour or two" if a majority thought a verdict could be reached. Defense counsel suggested no time limit be imposed. The court concluded: "If there is an indication they can, or that there is a reasonable probability they can reach a verdict, I will give them [from 10:20 p.m.] until midnight to make a decision, and at that time I will declare a mistrial."
The jury was called in. The foreman responded to question one, "Well, one written and quite a few hand votes." The foreman responded to question two, "About seven to five." The foreman responded to question three, "I doubt it." Then the court asked question three to each juror. Seven jurors responded "no," two jurors responded "yes," and three jurors responded "maybe," including the foreman. The court addressed the jury: "In view of the fact you are divided on the question of whether you can or cannot reach a verdict, I will ask you to continue your deliberations. So, court will be in recess."
Approximately 1 1/4 hours later, without further instruction, the jury returned its verdict guilty of voluntary manslaughter. Defendant refused the court's offer to poll the jury.
Essentially we must determine whether the trial court interfered with the deliberation of the jury to defendant's prejudice. We will not consider defendant's position on appeal regarding the necessity of a Prim instruction for two reasons. First, his position on appeal is inconsistent with his argument at trial, where counsel insisted that no further instruction of any kind be given. Second, the decision of whether to give the supplemental instruction to a deadlocked jury rests within the sound discretion of the trial court. (People v. Thompson (1981), 93 Ill. App.3d 995, 1008, 418 N.E.2d 112, 122.) It is not at all clear that this is a case where the jury was in fact deadlocked, for it is clear that at least five jurors thought that a verdict might yet be reached. While the instruction can be given even if the jury is not deadlocked (see People v. Wilson (1976), 37 Ill. App.3d 560, 346 N.E.2d 161), here it does not appear to have been required. We will, therefore, limit our review of the proceedings to an examination of the actual dialogue claimed to be prejudicial and not whether a supplemental Prim instruction should have been given.
Defendant relies on People v. Golub (1929), 333 Ill. 554, 165 N.E. 196, People v. Duszkewycz (1963), 27 Ill.2d 257, 189 N.E.2d 299, People v. Rohwedder (1967), 78 Ill. App.2d 211, 223 N.E.2d 1, and People v. ...