{ "id": 3151682, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GREEN, Defendant-Appellant", "name_abbreviation": "People v. Green", "decision_date": "1980-12-22", "docket_number": "No. 79-1309", "first_page": "1085", "last_page": "1091", "citations": [ { "type": "official", "cite": "91 Ill. App. 3d 1085" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "305 N.E.2d 61", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. App. 3d 607", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2463506 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0607-01" ] }, { "cite": "252 N.E.2d 776", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 2d 298", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1588953 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/114/0298-01" ] }, { "cite": "89 S. Ct. 2112", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": 0 }, { "cite": "23 L. Ed. 2d 752", "category": "reporters:federal", "reporter": "L. 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App. 3d", "case_ids": [ 2717600 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0560-01" ] }, { "cite": "288 N.E.2d 922", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "7 Ill. App. 3d 812", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2668927 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0812-01" ] }, { "cite": "365 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1972, "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 900", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3367601 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "905-06" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0900-01" ] }, { "cite": "374 N.E.2d 1114", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 924", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5628402 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0924-01" ] }, { "cite": "41 L. Ed. 2d 528", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "164 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3591459 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/164/0492-01" ] }, { "cite": "394 N.E.2d 1212", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3277860 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0459-01" ] }, { "cite": "165 N.E. 196", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 3, "opinion_index": 0 }, { "cite": "333 Ill. 554", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5217353 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill/333/0554-01" ] }, { "cite": "189 N.E.2d 299", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1929, "opinion_index": 0 }, { "cite": "27 Ill. 2d 257", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360808 ], "weight": 3, "year": 1929, "opinion_index": 0, "case_paths": [ "/ill-2d/27/0257-01" ] }, { "cite": "272 U.S. 448", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1501274 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/272/0448-01" ] }, { "cite": "437 U.S. 28", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177204 ], "weight": 3, "year": 1926, "opinion_index": 0, "case_paths": [ "/us/437/0028-01" ] }, { "cite": "93 S. 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Ed. 2d", "weight": 2, "opinion_index": 0 }, { "cite": "412 U.S. 918", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196194, 6197987, 6196411, 6196635, 6197557, 6196885, 6197787, 6197338, 6197115 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/412/0918-01", "/us/412/0918-09", "/us/412/0918-02", "/us/412/0918-03", "/us/412/0918-07", "/us/412/0918-04", "/us/412/0918-08", "/us/412/0918-06", "/us/412/0918-05" ] }, { "cite": "289 N.E.2d 601", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1973, "opinion_index": 0 }, { "cite": "53 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927578 ], "weight": 5, "year": 1973, "pin_cites": [ { "page": "76" }, { "page": "75-76" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0062-01" ] } ], "analysis": { "cardinality": 718, "char_count": 16271, "ocr_confidence": 0.888, "pagerank": { "raw": 1.0970220123200307e-07, "percentile": 0.5671255351180706 }, "sha256": "d345fda12ba8a68df83466300e5e570b3d2c59276575ee272dac15e76b4e4af3", "simhash": "1:ca20b9ae5646cef7", "word_count": 2791 }, "last_updated": "2023-07-14T14:46:24.599710+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GREEN, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE CAMPBELL\ndelivered the opinion of the court:\nAfter a jury trial, defendant John Green was found guilty of burglary and sentenced to a term of 14 years. Defendant\u2019s appeal pertains solely to the trial court\u2019s 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.\nWe affirm.\nBecause the defendant\u2019s alleged errors refer solely to the trial court\u2019s actions during the jury\u2019s deliberations, it is sufficient to say that the defendant\u2019s 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.\nThe 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\u2019s 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\u2019s 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.\nWhether 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\u2019s 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\u2019s inquiry, it found that no reversible error had been committed under the Golub and Duszketvycz authority.\nIn 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\u00a1\u00ed more hours of deliberation, the jury was sequestered for the night. A verdict was returned early in the next day\u2019s deliberations.\nDuring 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 \u201clocked up\u201d after nine hours of deliberation and then didn\u2019t 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\u2019s 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\u2019s numerical division so interfered with the jury\u2019s 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.\nThe defendant next complains that the trial court gave an inaccurate recitation of the Prim instruction to the deadlocked jury resembling the so-called \u201cdynamite\u201d 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\u2019s 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 \u201cheed the majority\u201d rather than make their own independent decision as to the case.\nIn Prim the supreme court, based on its supervisory power, set forth an instruction to be given when a jury is deadlocked to \u201cresolve the many questions created by the uncertainty attendant upon instructing a jury that is in disagreement.\u201d (53 Ill. 2d 62, 76.) That instruction provided:\n\u201c \u2018The 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.\nIt 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, hut do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine 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.\nYou are not partisans. You are judges \u2014 judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.\u2019 \u201d (Emphasis added.) (53 Ill. 2d 62, 75-76.)\nThe court explained that:\n\u201cWhile acknowledging the possible coercive dangers inherent in a supplemental instruction given to a deadlocked jury, we do not feel that a jury should be left to grope in such circumstances without some guidance from the court. Jurors, and especially those voting in the minority, conceivably could feel a coercive influence if when seeking guidance from the court they are met with stony silence and sent back to the jury room for further deliberation.\u201d (53 Ill. 2d 62, 74.)\nWhile the supreme court chose the Prim case as the occasion to set out guidelines for instructing deadlocked juries, it is important to note that the court did not find that the trial court in Prim committed reversible error by giving an instruction where the language, although not as desirable as the model instruction, nevertheless did not contain \u201cheed the majority\u201d language. Such an instruction, the court held, did not interfere with the jury\u2019s deliberations or hasten the verdict.\nThe record on appeal reveals that the instruction given in the instant case differed from that suggested in Prim, except for minor grammatical differences, only in that the italicized words in the above instruction were absent in the trial court\u2019s instruction. We do not think that an analysis of the pertinent instruction shows that it required the minority in the jury to \u201cheed the majority\u201d as did the Allen charge. (People v. Prim; People v. Pankey (1978), 58 Ill. App. 3d 924, 374 N.E.2d 1114.) The language of the instruction given specifically cautioned the jurors not to \u201csurrender your honest convictions to the weight of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.\u201d Moreover, we note that the jury also did not come back with a verdict shortly after the Prim instruction was given but rather deliberated another 4M hours that evening and an unspecified amount of time the next day. This would indicate that the jury felt no coercion from the court\u2019s action. (People v. Allen (1977), 47 Ill. App. 3d 900, 365 N.E.2d 460; People v. Drayton (1972), 7 Ill. App. 3d 812, 288 N.E.2d 922; see People v. Wilson (1976), 37 Ill. App. 3d 560, 346 N.E.2d 161.) As such, we do not believe that either of the two jurors, who were in the minority at the time the instruction was given, would have felt coerced by the court\u2019s instruction to act in any way other than based on their own convictions. Consequently, we do not find that the trial court\u2019s actions interfered with the deliberations of the jurors to the prejudice of the defendant or hastened the jury\u2019s verdict. Accordingly, we find no reversible error. 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. Pankey; People v. Allen.\nThe defendant\u2019s final argument is that the trial court coerced the verdict of the jury by requiring the jury to be sequestered for the night when, after 11 hours of deliberation, 10 members of the jury informed the court that they did not believe additional deliberation would lead to a verdict. The defendant contends that the trial court\u2019s failure to end the jury\u2019s deliberations and to declare a mistrial at this time indicated to the minority jurors that they would be kept \u201clocked up\u201d until they changed their vote. The defendant stresses that this result was more probable because of the court\u2019s prior action in asking for the numerical division of the jury and giving the deadlocked jury the emasculated Prim instruction.\nAfter the trial judge gave the jury the Prim instruction at 6:05 p.m. he sent them back to deliberate. At 9:05 p.m. he recalled the jury and again inquired as to the possibility of reaching a verdict. At this time, the jury foreman informed the court that, \u201cThere has been movement, sir, I believe it\u2019s possible.\u201d The jury then returned to further deliberate. At 10:25 p.m. the court again summoned the jury foreman and asked him if the jury could reach a verdict if given more time. The foreman replied, \u201cNo, sir.\u201d The trial judge then polled the jury asking each juror whether he felt that a verdict could be reached if additional time was given. Ten jurors answered in the negative. The trial court then stated over defense objection:\n\u201cUnder those conditions then, at this point this Court, in its discretion, will sequester the jury, since there seems to be dissention among the twelve.\nYou will not deliberate during this sequestration. You will be taken by a bus to a place where you can sleep and eat some food, and then you will be brought back to this court at nine o\u2019clock or thereabouts tomorrow morning. I will then allow you to continue your deliberations.\nAnd hopefully you will arrive at a verdict or whatever. Anyway, thank you and good night. You are now sequestered by order of this Court.\u201d\nThe length of a jury\u2019s deliberation is a matter which rests within the sound discretion of the trial court and, therefore, the trial court\u2019s judgment will not be disturbed absent a clear abuse of discretion. (People v. Daily (1968), 41 Ill. 2d 116, 242 N.E.2d 170, cert. denied (1969), 395 U.S. 966, 23 L. Ed. 2d 752, 89 S. Ct. 2112; People v. Allen (1977), 47 Ill. App. 3d 900, 365 N.E.2d 460; People v. Wilson (1976), 37 Ill. App. 3d 560, 346 N.E.2d 161.) In Allen, after the jury had indicated several times through its 9% hours of deliberation that it was unable to reach a verdict, the court gave the Prim instruction. It had already sequestered the jury the night before after the jury had informed the court that it could not reach a verdict. In finding that the facts did not warrant the conclusion that the trial court abused its discretion by requiring the jury to deliberate for an unreasonable amount of time, the court stated the general rule that:\n\u201cThe question of what length of time it is reasonable to permit deliberations to continue in any case is a matter peculiarly within the discretion of the trial judge. (People v. Daily (1968), 41 Ill. 2d 116, 242 N.E.2d 170; People v. Wilson (1976), 37 Ill. App. 3d 560, 346 N.E.2d 161; People v. Bravos (1969), 114 Ill. App. 2d 298, 252 N.E.2d 776.) The jury\u2019s own view of its ability or inability to reach a verdict is but one factor to be considered in the exercise of that discretion. Thus, under proper circumstances, it is within the court\u2019s discretion to permit further deliberations after the jury has expressed the view that it is \u2018hopelessly deadlocked\u2019 (People v. Daily), or to sequester a jury which has on rpore than one occasion indicated that it cannot reach a verdict. People v. Alexander (1973), 15 Ill. App. 3d 607, 305 N.E.2d 61.\u201d 47 Ill. App. 3d 900, 905-06.\nUnder the circumstances of the instant case, as outlined above, we do not think that the trial court erred in allowing the jury to be sequestered for the evening after 11 hours of deliberation. The defendant alleges that the trial court should have terminated deliberations at this point and that the trial court\u2019s failure to so terminate could have caused some jurors to have believed that failure to reach a verdict would result in continued confinement. We do not think that the import of the court\u2019s action coerced the jurors into hastening their verdict. The trial court\u2019s concern, as gleaned by his statement to the jury, was that the jurors should be able to get some food and sleep after deliberating for so long. We do not think that the trial court\u2019s apparent belief that the jury was exhausted and that food and sleep would aid their deliberation was an abuse of discretion. We note that the jury had made some recent progress in their deliberation after the Prim, instruction as noted by the foreman at 9:05 p.m. Accordingly, we find no reversible error in the trial court\u2019s action either considered separately or in conjunction with the court\u2019s earlier actions.\nFor the aforesaid reasons the conviction and sentence of the defendant, John Green, are affirmed.\nJudgment affirmed.\nGOLDBERG, P. J., and O\u2019CONNOR, J., concur.", "type": "majority", "author": "Mr. JUSTICE CAMPBELL" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Mark S. Komessar, Assistant State\u2019s Atttorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GREEN, Defendant-Appellant.\nFirst District (1st Division)\nNo. 79-1309\nOpinion filed December 22, 1980.\nJames J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Mark S. Komessar, Assistant State\u2019s Atttorneys, of counsel), for the People." }, "file_name": "1085-01", "first_page_order": 1107, "last_page_order": 1113 }