dissenting:
I do not agree with the majority of the court. I believe reversible error was committed when the trial judge refused to grant the jury’s request to have testimony reread. Autman, the defendant in this case, and Pulley, the defendant in People v. Pulley, ante, p. 292, were both charged with the robbery of Lewis at his store in Joliet. Each was tried separately before a jury and Autman, the defendant in this case, was convicted of armed robbery. In Pulley’s case, the jury could not agree on the charge of armed robbery but did find Pulley guilty of attempt murder. In the Pulley case, as in the instant case, the jury requested that testimony be reread which request was refused by the trial judge because he believed he was not permitted to do so. That the same problem arises in two separate trials involving the same robbery may, of course, be considered coincidental, but it is also possible the nature of the evidence, which was somewhat similar, contributed to confusion or uncertainty in the minds of the jurors.
In my dissenting opinion in People v. Queen, 8 Ill.App.3d 858, 290 N.E.2d 631 (petition for leave to appeal granted), I discussed at length my reasons for believing that a trial judge commits reversible error when he refuses to respond affirmatively to or make appropriate inquiries with regard to requests by juries for assistance in resolving problems which may have arisen regarding the evidence. As in People v. Pulley, ante, p. 292, where I also dissented from the approval of the action of a trial judge refusing to respond to the request of a jury, and where I found extensive discussion unnecessary, relying on my previous dissent in Queen, I believe it unnecessary to do any more in this dissent than apply my previous reasoning to the facts of this case.
Again the trial judge refused to respond to the request of the jury except by informing them that he was not permitted to grant their request. As in the cases previously noted, the trial judge did not purport to exercise any discretion and under such circumstances there is no basis in the record for reviewing fire reasonableness of his action or determining whether he abused his discretion. If there is no basis for determining whether an abuse of discretion has occurred, then I believe, as I have previously stated, that prejudicial error results.
Notwithstanding the trial judge’s own assertion that he was not permitted to have testimony reread or in other words, that he had no discretion to grant the request, the majority has nevertheless concluded that the judge did not abuse his discretion. Assuming, for the purposes of argument, that perhaps the evidence should be considered as a whole in determining whether defendant was prejudiced and denied a fair-trial, it is, of course, impossible to ascertain the motivation for the jury’s problem or how the failure of the court to respond may have affected its decision. Nevertheless, the evidence reveals many conflicts and discrepancies which the jury was required to resolve. To resolve such issues may well have involved uncertainties based on the frailty of memory and recollection.
The witnesses who testified for the prosecution were first Lewis, the victim of the robbery, second, an employee in the store and then in order, two crime laboratory technicians, the tow truck operator and eleven police officers. Of these witnesses only Lewis and Stahl identified the defendant as being one of the robbers or in the store at the time of the offense. As is pointed out in the majority opinion, the testimony of these two witnesses is hopelessly irreconcilable. The majority concludes that the discrepancies in their testimony raised questions which were within the province of the jury to resolve and even though this be so the extent of the conflict in the testimony of these two witnesses could cause difficult problems in the jury’s determination. Accordingly, I believe defendant could have been prejudiced by the court’s failure to grant the jury’s request for assistance or to inquire into the nature of the jury’s problem.