¶1specially concurring:
¶2I concur with the majority’s decision to affirm the defendants’ convictions. I write separately, however, because I believe that the majority’s reading of the holding in People v. Santiago, 108 Ill. App. 3d 787, 806 (1982), is too expansive when it infers from Santiago that the court’s knowledge of the numerical division of the jury combined with the Prim instruction, standing alone, could never constitute harmless error.
¶3Here, as in Santiago, where the issue is reviewed under the plain error doctrine, the question that must be answered is whether the defendant has proven prejudice. Whether prejudice has been proven depends upon the surrounding circumstances and particular facts of each case. Santiago, 108 Ill. App. 3d at 806. It would be possible, therefore, for a situation to arise where the court’s knowledge of the numerical division of the jury, combined with the Prim instruction, would constitute reversible error under a plain error analysis. If the defendant could show from the record that he was prejudiced in such a situation, even without any other actions or statements by the trial court, I believe plain error would be shown, and the defendant would be entitled to a new trial.
¶4I agree that the defendants in this matter have failed to show any prejudice from the trial court’s actions, and I therefore concur with the decision to affirm the trial court.
¶5dissenting:
¶6I believe that the trial court’s inquiry into the numerical division of the jury and subsequent communication improperly interfered with the jury deliberation process to the prejudice of the defendants. Accordingly, I respectfully dissent from the majority’s holding that the communication amounted to harmless error.
¶7Plain error arises when the evidence is closely balanced or when the error is so fundamental that it denied the defendant a fair trial. People v. Bounds, 111 Ill. 2d 1, 662 N.E.2d 1168 (1995). A trial judge’s inquiry into the numerical division of a jury is improper. People v. Duszkewycz, 27 Ill. 2d 257, 189 N.E.2d 299 (1963). Such inquiry may be deemed plain error if it interferes with the jury’s deliberation to the prejudice of the defendant or coerces a verdict. See People v. Fields, 285 Ill. App. 3d 1020, 675 N.E.2d 180 (1996); see also People v. Santiago, 108 Ill. App. 3d 787, 805, 439 N.E.2d 984 (1982), citing People v. Golub, 333 Ill. 554, 165 N.E. 196 (1929); People v. Heidorn, 114 Ill. App. 3d 933, 449 N.E.2d 568 (1983).
¶8In this case, I believe that the court’s communication with the jury denied the defendants a fair trial. By the court’s preface to its question to the jury foreman, it appears that the court intended to ascertain the bare numerical split rather than which verdict each side favored. However, the judge’s question to the foreman with regard to Eppinger was poorly phrased and invited precisely the kind of information that the court sought to avoid. Then, when the foreman disclosed that 11 jurors favored Eppinger’s conviction, the judge failed to qualify his earlier remarks or rephrase the question with regard to Watkins. Under the circumstances, the jurors could have reasonably concluded that the court did want to know what verdicts were favored. The judge’s succeeding comments prodding the jury toward unanimity and the giving of the Prim instruction created the impression that the court agreed with the 11 jurors favoring guilty verdicts. See Santiago, 108 Ill. App. 3d at 807, 439 N.E.2d at 997. Within a short time after the jury resumed deliberations, the holdout juror relented and guilty verdicts were rendered.
¶9The majority cites People v. Farella, 79 Ill. App. 3d 440, 398 N.E.2d 615 (1979), as support for its conclusion that the court’s communication amounted to only harmless error. Farella, however, is factually dissimilar to the instant case. In Farella, the jury sent an unsolicited note to the judge indicating that the jury was deadlocked with three jurors favoring a guilty verdict on one count and seven jurors favoring a guilty verdict on a second count. After informing the parties of the jury’s communication, the judge responded in writing, "[c]ontinue deliberating.” In the instant case, the improper information was elicited by the judge in open court and his subsequent directives were far more explicit. Moreover, the potential for such an interchange to prejudice a defendant increases with the number of jurors favoring the majority position on a particular verdict. In the instant case, unlike in Farella, there was but a single holdout at the time of the improper inquiry and communication.
¶10The other cases cited by the majority also do not support its conclusion. Neither People v. Hanks, 210 Ill. App. 3d 817, 569 N.E.2d 205 (1991), nor People v. Thomas, 185 Ill. App. 3d 1050, 542 N.E.2d 100 (1989), involved jury disclosure of numerical division or verdict preference.
¶11Based on my review of relevant authority and the record in this case, I would reverse the defendants’ convictions and order a new trial.