Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Anthony John Bosco,
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
A jury in the circuit court of Cook County found the defendant, Earl Cowan, guilty of attempted burglary and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 10-3). The appellate court reversed the conviction and in a split decision remanded the cause to the circuit court for a new trial. (122 Ill. App.3d 394.) We granted the State's petition for leave to appeal under Rule 315 (87 Ill.2d R. 315).
The defendant was charged in a nine-count criminal information with two counts of armed robbery, two counts of armed violence, and one count each of home invasion, burglary, aggravated kidnaping, attempted burglary, and unlawful restraint. The trial lasted five days. Seven witnesses testified for the State. Two witnesses and the accused testified for the defense, and there was one rebuttal witness. The prosecution's principal witness, James Wolfe, testified that the defendant broke into the apartment of Michael Dermody, an elderly friend of Wolfe's, and robbed both men at knifepoint. Wolfe said that he was forced to assist the defendant in moving Dermody's stereo and television set to the apartment of the defendant's brother. The defendant's testimony was that Wolfe invited him into Dermody's apartment for homosexual activity and that the stereo and television were taken to his brother's apartment because Wolfe had asked the defendant to repair them.
The jury began deliberations at noon on the fifth day of trial. Sometime before 4 o'clock that afternoon (the record does not show the exact time), the jury sent a note to the judge asking for a transcript of the testimony. The request was denied and the judge instructed the jury to continue its deliberations. Shortly after four o'clock, the jury sent a second message:
We are totally deadlocked. There is no way that we will be able unanimously agree [sic] one way or another. The evidence is inconclusive.
The court did not respond and allowed the jury to continue deliberating. Sometime before 7 p.m., the jury sent a third note:
We have carefully deliberated each and every charge and we are completely and hopelessly unable to unanimously agree on either a guilty or not guilty verdict. We believe that further progress is `impossible' (6 votes) `unlikely' (6 votes).
William Frey Foreperson"
Again, the court did not respond. The jury was sequestered at 7 p.m. and resumed deliberations at 9 o'clock the following morning. After 45 minutes, the jury sent the court this message: