# People v. Nelson > Illinois Supreme Court · December 17, 2009 · 235 Ill. 2d 386 URL: https://www.frixlaw.com/law-library/cases/9729902 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRIAN NELSON, Appellant - **Court:** Illinois Supreme Court - **Decided:** December 17, 2009 - **Citations:** 235 Ill. 2d 386; 337 Ill. Dec. 479; 922 N.E.2d 1056; 2009 Ill. LEXIS 2308 - **Precedential status:** Published - **Opinion:** Dissent by Kilbride - **Judges:** Garman, Kilbride - **Cited by:** 86 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9729902 ## How later opinions describe it (automated extraction) - noting that the defendant’s confession and videotaped statement disclosed facts of murder, home invasion, and aggravated arson that could not have been suggested to him because the autopsy had not yet been performed and the police had been unable to enter parts of the crime scene ## Opinion text JUSTICE KILBRIDE, dissenting: I agree with the majority that the trial court erred in dismissing Juror 20.1 disagree, however, with the remedy fashioned by the majority. The majority acknowledges remand for a new sentencing hearing is not precluded by double jeopardy but, nevertheless, decides defendant should be resentenced to a term of imprisonment on remand because the jury “most likely” would have reached a non-unanimous verdict if it had been allowed to continue to deliberate with Juror 20 as a member. The majority’s decision on this point, based on a likelihood that the jury would have returned a non-unanimous verdict, is speculative. This court’s decisions should not be based on speculation. See People v. Redd, 173 Ill. 2d 1, 40-41 (1996) (rejecting as “purely speculative” defendant’s contention that a different result “probably” would have been reached if standby counsel had been allowed to cross-examine a witness). The majority further acknowledges a Prim instruction would have been proper in this case. I believe the jury should have been allowed to continue deliberations with Juror 20 as a member after receiving that instruction in an effort to break the deadlock and reach a unanimous verdict. Indeed, in Prim, this court stated a deadlocked jury should not be “left to grope in such circumstances without some guidance from the court.” People v. Prim, 53 Ill. 2d 62, 74 (1972). The purpose of a Prim instruction is to assure that jurors on a deadlocked jury will try to reach a unanimous decision by closely examining their competing views. People v. McNeal, 94 Ill. App. 3d 1000, 1004 (1981). The trial court’s interviews with Juror 20, Juror 41, and the jury foreperson were not an adequate substitute for a Prim instruction to the entire jury. As noted in the majority opinion, the trial court’s interviews with the individual jurors were directed at determining whether Juror 20 was biased, not on instructing the jurors on their duty to deliberate and try to reach an agreement. It is certainly possible that the jury may have returned a non-unanimous verdict after receiving a Prim instruction. It is also possible, however, that the jury may have returned a unanimous decision following the instruction. In any event, I do not believe this court may speculate on the decision the jury would have made had it been allowed to continue deliberations after receiving a Prim instruction. I would also note that the majority’s decision to remand for imposition of a term of imprisonment is not supported by citation to any authority. In these circumstances, I cannot join the majority’s decision on the appropriate remedy for the dismissal of Juror 20. Accordingly, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9729902. Public record. Not legal advice.