dissenting:
I do not agree with the majority that the Prim instruction had a coercive effect on the jury. Also, I do not believe that the trial court erred in giving the Prim instruction. Accordingly, I would affirm the judgment.
The jury found defendant guilty of unlawful restraint and attempt burglary, and not guilty of burglary, home invasion, aggravated kidnaping, two counts of armed violence and two counts of armed robbery. I fail to see how this finding demonstrates coercion. To me, the fact that the jury did not reach the same finding as to all counts mitigates against the allegation that the jury was coerced. (See People v. Harris (1981), 96 Ill. App. 3d 970, 976, 422 N.E.2d 208, 212.) Moreover, the jury was not polled. While it is not necessary that a jury be polled in order to establish coercion, the fact that the jury was not polled militates against a conclusion that the jury was coerced.
In addition, I see no error by the trial judge in giving the Prim instruction. The jury began its deliberation at noon. During the course of the deliberation on that day, the judge received two notes from the jury indicating that it was deadlocked.1 At 7 p.m., the judge ordered the jury sequestered for the night. Deliberation by the jury began the following day at 9 a.m. At 9:45 a.m., the jury sent the judge a third note stating that it was deadlocked. At that point, after less than eight hours of deliberation, the judge read the Prim instruction to the jury. Thereafter, the jury returned its verdict. The record does not demonstrate how long the jury deliberated after it was read the Prim instruction. However, even if the jury had deliberated only a short period, that would not demonstrate that the jury was coerced. In People v. Preston (1979), 76 Ill. 2d 274, 285, 391 N.E.2d 359, 364, the court stated: ‘ ‘Nothing in Prim, where the court found no coercion although the jury deliberated only 15 minutes after receiving the instruction, requires a reversal.”
Under the circumstances, I see no reason to reverse the trial judge’s decision to give the jury the Prim instruction. Plainly, it is within the trial judge’s discretion to permit further deliberation even after the jury has stated that it is hopelessly deadlocked or that it cannot reach a verdict. (People v. Allen (1977), 47 Ill. App. 3d 900, 906, 365 N.E.2d 460, 464; People v. Harris (1981), 96 Ill. App. 3d 970, 975-76, 422 N.E.2d 208, 212.) In Allen, after deliberating between six and seven hours, the jury indicated that it was deadlocked. The court then sequestered the jury for the evening and deliberation resumed for about two hours on the following morning. At that point, the jury again indicated in somewhat stronger terms its inability to reach a verdict. The court then read the jury the Prim instruction, and a verdict was reached approximately l/2 hours later. (People v. Allen (1977), 47 Ill. App. 3d 900, 906, 365 N.E.2d 460, 464.) The judgment in Allen was affirmed. In Harris, after a period of deliberation, the jury informed the trial court that it could not reach a verdict. The trial court arranged for overnight housing. The following morning, the foreman sent a note to the trial court which stated, “ T believe that this jury is hopelessly deadlocked (11 to 1) and that further discussion would be pointless.’ ” At that point, the jury had been deliberating for 11 hours. The trial judge then gave the jury the Prim instruction, and the jury subsequently found the defendant guilty on two counts of armed robbery and two counts of armed violence. The defendant was found not guilty on two counts of unlawful restraint. The judgment was affirmed. (People v. Harris (1981), 96 Ill. App. 3d 970, 975, 422 N.E.2d 208, 212.) Here, although the jury sent the trial court three notes stating that it was deadlocked, it had been deliberating less than eight hours when it was read the Prim instruction. The eight-hour deliberation was certainly not unduly long. Thus, I believe that the trial judge acted properly when he gave the jury the Prim instruction.
To my knowledge, up until now, there has never been a criminal case in Illinois in which a verdict was reversed on the ground that the jury was coerced after the Prim instruction was given. While this fact may not be of controlling significance in itself, it does suggest to me that reviewing courts have taken the perspective that trial judges must be given ample discretion and “great latitude” in deciding whether to give the jury the Prim instruction. (People v. Preston (1979), 76 Ill. 2d 274, 283-84, 391 N.E.2d 359, 363.) There is nothing in this record to demonstrate that the trial judge abused that kind of discretion. Moreover, I believe that the majority opinion will unduly restrict the discretion that is to be exercised by trial judges, because it will dissuade the judges from giving the Prim instruction after they have received three notes indicating that a jury is deadlocked. In effect, the use of the Prim instruction will be curtailed to the extent that its use will have a Plimsoll mark, below which trial judges will not act.
The majority seems to place significance on its conclusion that the notes commented “negatively about the evidence.” However, that conclusion can be reached about any note from any jury that states that it is deadlocked. Of course, if a jury did not feel “negatively” about the evidence to some extent, it would not be deadlocked. Thus, contrary to what is stated by the majority, the notes from the jury in the present case were no different from the notes in any other case where the jury stated that it was deadlocked and use of the Prim instruction was approved. (See People v. Allen (1977), 47 Ill. App. 3d 900, 906, 365 N.E.2d 460, 465 (1977); People v. Harris (1981), 96 Ill. App. 3d 970, 975, 422 N.E.2d 208, 212.) Also, if the length of time that the jury is allowed to deliberate is not unreasonable, it should make no difference whether the jury gives the judge two notes or three notes stating that it is deadlocked. It is the function of the jury to continue to deliberate and resolve any deadlock situation it may encounter unless the deadlock continues for an unreasonable length of time. I do not regard an eight-hour period of deliberation to be unreasonable under the circumstances of this case.
In light of my disagreement with the views and holding expressed by the majority in regard to the Prim instruction, I shall not address the other errors claimed by defendant with regard to the sentence imposed and the alleged impropriety of the prosecutor’s closing argument other than to state that I have reviewed these alleged errors, and I believe that defendant’s arguments are without merit. Also, I agree with the majority that there was sufficient evidence to prove defendant guilty of the two crimes for which he was convicted. Accordingly, I would affirm the judgment.
The majority opinion refers to an additional note. In its first note, the jury requested a copy of the trial transcript in order to review Wolf’s testimony. The court denied the request. It is within the discretion of the trial court to allow or refuse a request for review of testimony (People v. Davies (1977), 50 Ill. App. 3d 506, 513-14, 365 N.E.2d 628, 634), and the court here did not abuse its discretion in denying the jury’s request.