APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
531 N.E.2d 849, 176 Ill. App. 3d 809, 126 Ill. Dec. 222 1988.IL.1648
Appeal from the Circuit Court of Cook County; the Hon. Sophia H. Hall, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
Shortly before midnight on November 5, 1983, William Randolph and Steven Hall were robbed at gunpoint by an unknown assailant on Calumet Avenue in Chicago. While the robbery was in progress, a patrol car passed nearby, and Hall and the robber ran away. Randolph ran to the police car and told the officers that he had just been robbed. He then climbed into the squad car and gave a description of the robber, which was broadcast over the police radio.
Minutes later, police officer Alfred Pirolli spotted a man about two blocks from the scene of the robbery who matched the description of the robber. Pirolli called to the man, who stooped and seemed to put something on the ground, then approached Pirolli's squad car. Pirolli got out of the squad car, ordered the man to stop, then approached the man and conducted a patdown search. The patdown revealed $5.86, the amount Randolph said that the robber had taken, 11 .38-caliber pistol cartridges, and some personal effects.
Soon after, Officer David Roman arrived at the scene and was instructed by Pirolli to search the area where Bryant had stooped and apparently dropped something. The search revealed a Smith & Wesson .38 caliber revolver. The suspect was identified as the defendant, Charles Bryant. Thereafter, a squad car arrived with Randolph, who identified Bryant as the robber.
Bryant was arrested and charged with two counts of armed robbery, one count of attempted armed robbery, and three counts of armed violence. The State nol-prossed all but one count each of robbery and attempted armed robbery. At trial, Randolph, Hall, Pirolli and Roman testified to the facts above.
The case went to the jury, and after some time in deliberation, the jury sent a request to the court, which stated "[May] we have a copy of the trial testimony?" The trial court refused, stating, "There's not a transcript available for you. You should rely on your collective memories of the testimony as you heard it." The record does not conclusively show that either Bryant or his counsel was present when the request was received and answered. The record shows an exchange between the court and the prosecutor immediately before the court addressed the jury. A supplemental hearing on the issue of Bryant's presence revealed that neither Bryant's counsel, the prosecutor, nor the court could recall with certainty whether Bryant or his counsel was present or absent when the jury request was received and refused. The jury returned a verdict of guilty of armed robbery and attempted armed robbery. Bryant was convicted and sentenced to seven years in the Illinois Department of Corrections. Bryant now appeals.
Bryant argues that the trial court failed properly to exercise its discretion when it refused the jury's request for a copy of the trial transcript. Bryant further argues that he was prejudiced because the trial court ruled on the request in his absence. We agree. The trial court erred by failing to determine whether the jury desired specific testimony, and if so, the nature of that testimony. This error indicated the trial court's failure to exercise discretion in denying the jury's request. We also assume, for reasons stated below, that the trial court ruled on the jury's request in Bryant's absence. Because of the need to protect the rights of the accused, we must assume that Bryant's substantial rights were affected and that he was prejudiced by being absent. Because the trial court's initial error indicated a failure to exercise discretion, and was compounded by prejudice, we now reverse.
The trial court has discretion to grant or refuse jury requests. (People v. Pierce (1974), 56 Ill. 2d 361, 308 N.E.2d 577.) It is error, however, for a court to deny a jury request for evidence in the mistaken belief that it has no discretion to grant the request. (People v. Autman (1974), 58 Ill. 2d 171, 317 N.E.2d 570; People v. Tansil (1985), 137 Ill. App. 3d 498, 502, 484 N.E.2d 1169.) Such discretion rests with the court because its experience, and knowledge of a particular case, enables the court to determine whether the materials requested would be helpful to the jury. The discretionary process is facilitated where the trial court knows what specific testimony the jury desires. Failure to determine the specific evidence or testimony desired by a jury making a general request has recently been treated as a signal of a trial court's erroneous belief that it lacked discretion to grant the jury's request. People v. Jackson (1975), 26 Ill. App. 3d 618, 325 N.E.2d 450. See also People v. Autman (1974), 58 Ill. 2d 171, 176, 317 N.E.2d 570; People v. Tansil (1985), 137 Ill. App. 3d 498, 503, 484 N.E.2d 1169.
In the instant case, the trial court made no effort to ascertain the specific testimony desired by the jury, and the record contains no indication that the trial court was aware of its discretionary power. With no indications to the contrary, we conclude that the trial court erred by failing properly to exercise its discretion.
The record indicates that the trial court may have known what the jury wanted. In a colloquy immediately prior to its ruling on the jury's request, the court was informed by a sheriff that the jury wished to see police reports, which were not in evidence. Refusing a request for material not in evidence would not have been error. (People v. King (1988), 165 Ill. App. 3d 464, 472, 518 N.E.2d 1309.) But we do not review rulings that might have been made. The trial court specifically ruled on the general request for a copy of trial transcripts without further inquiry, and in the absence of indications to the contrary, we hold that this was an erroneous failure to exercise ...