specially concurring:
I agree with the majority’s decision to affirm and with much that is stated in its opinion. However, I analyze the issues in a slightly different manner and have concern with some of the language of the majority.
Defendant recognizes that there is a logical inconsistency in the actions of the jury in finding the defendant guilty of armed violence but not being able to agree on the predicate offense. Defendant then seeks to have us treat the situation as if the jury had acquitted defendant of the predicate offense. As the majority points out, acquittal on the armed-violence offense would then have been required. (People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233.) However, where the jury deadlocked rather than acquitted on the armed-violence charge, the trial court placed the two charges in logical symmetry by declaring a mistrial and granting a new trial as to both charges.
Clearly, retrial of defendant on the predicate offense after the jury had been unable to agree as to his guilt on that offense at the first trial will not violate his right against being placed twice in jeopardy. (People v. Bean (1976), 64 Ill. 2d 123, 355 N.E.2d 17.) As the majority explains, in failing to reach a verdict on the charge of the predicate offense, the jury made no determination favorable to the defense on any aspect of the armed-violence charge. When this is so and (1) no prosecutorial misconduct is charged, and (2) no claim is made that the evidence was insufficient to support a conviction of armed violence, the setting aside of the guilty verdict and the retrial of the defendant on that charge is entirely consistent with the defendant’s rights in regard to double jeopardy. People v. Keagle (1955), 7 Ill. 2d 408, 131 N.E.2d 74.
I respectfully submit that the majority’s reference to cases concerning inconsistent verdicts may cause some confusion. The majority quotes from People v. Dawson (1975), 60 Ill. 2d 278, 280-81, 326 N.E.2d 755, 757, which quotes from United States v. Carbone (2d Cir. 1967), 378 F.2d 420, concerning the “power of lenity” possessed by juries. In Frias, cited by the majority, the court held that when a defendant was acquitted of the predicate felony, a conviction for armed violence must be set aside and an acquittal entered. The Frias court stated that the cited language from Carbone was not to be taken to justify legally inconsistent verdicts where one of the verdicts is an acquittal. (People v. Frias (1983), 99 Ill. 2d 193, 198-99, 457 N.E.2d 1233, 1236.) Thus, Frias places in doubt the question of whether the jury’s “power of lenity” is of significance in justifying any type of inconsistent verdicts. Inconsistent verdicts of guilty could hardly be attributed to lenity. The statement in the majority opinion that the jury, in failing to reach an agreement on the predicate offense, might be “in the exercise of lenity” imparts significance to “the power of lenity” as applied to inconsistent verdicts which may no longer exist.