Siverson v. O'Leary, 84-1270
| Decision Date | 10 June 1985 |
| Docket Number | No. 84-1270,84-1270 |
| Citation | 764 F.2d 1208 |
| Parties | Charles M. SIVERSON, Petitioner-Appellee, v. Michael O'LEARY and Neil F. Hartigan, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert A. Morelli, Telford & Morelli, LaSalle, Ill., for petitioner-appellee.
Mark L. Rotert, Chief Crim. Appeals Div., Chicago, Ill., for respondents-appellants.
Before FLAUM, Circuit Judge, PELL, Senior Circuit Judge, and WISDOM, Senior Circuit Judge. *
Respondents appeal from a district court order granting Charles M. Siverson's petition for a writ of habeas corpus on the ground that his trial counsel's absence from the courtroom during jury deliberations and the return of the verdicts at his trial deprived him of effective assistance of counsel in violation of the Sixth Amendment. For the reasons set forth below, we reverse.
On November 6 and 7, 1979, petitioner Siverson was tried by a jury in Livingston County, Illinois, on an eight-count indictment charging him with theft, robbery, armed robbery, aggravated battery, and armed violence. The proof at trial showed that Siverson and an accomplice, Timothy Childers, met a person named Robert Bolig at a bar in Streator, Illinois, on the night of July 10, 1979. Siverson later persuaded Bolig to leave the bar with him and Childers for the supposed purpose of driving to a party. Siverson instead drove his car out into the country, where he and Childers hit Bolig on the head with beer bottles and stole approximately $100 from his wallet. Childers, who testified against Siverson at trial, stated that in addition to hitting Bolig on the head with a beer bottle, Siverson continued kicking him in the face with his boots after Bolig had fallen to the ground. Siverson's theory of defense, which he testified to at trial, was that although he met Bolig briefly at the bar, he left soon thereafter without Bolig and had returned to his home by the time that the attack occurred. The jury acquitted Siverson on five of the counts, but convicted him on one count each of theft, robbery, and aggravated battery. The judge thereafter sentenced him on the robbery and aggravated battery counts to concurrent terms of twelve and ten years, respectively. 1
Siverson's claim for habeas relief relates exclusively to the proceedings that occurred after the jury retired to deliberate on the second day of his trial. Siverson's appointed trial counsel left the courtroom after the jury retired and was absent throughout the jury deliberations and at the return of the verdicts. 2 Although, as described below, Siverson declined invitations by the trial judge to speak with his counsel at two specific points during counsel's absence, he did not otherwise waive his counsel's presence during these proceedings on the record. The government was represented at various points during these proceedings by Livingston County State's Attorney C. David Vogel and Assistant State's Attorney Donald Bernardi.
The transcript of Siverson's trial indicates that closing statements had been completed and jury instructions given by 5:42 P.M. on November 7. At that time, the trial judge told the jury that he would send them to the deliberation room with copies of the instructions and the exhibits introduced at trial, and that they could then elect a foreperson and commence their deliberations. The judge also told the jurors that he would direct the bailiffs to take them to dinner at 6:00 P.M., and warned them not to deliberate while they were outside the deliberation room. The judge concluded by telling them to "[h]ave a relaxing dinner and then return to the Court House and you may then commence your deliberations in the privacy of the Jury Deliberation Room." The record does not reveal how much time the jurors spent at dinner or when they recommenced their deliberations.
The next entry in the record shows that at about 9:10 P.M. the judge received a request from the jury to have the testimony of two prosecution witnesses read back to them. The judge stated that he had informed the jurors that he would consult with the prosecution and defense about the request. Accordingly, the judge questioned Vogel and Bernardi in the courtroom, and contacted Siverson's counsel by telephone, and none of them objected to the request. The judge also offered Siverson himself the opportunity to speak with his counsel by phone, which he declined on the record, and asked him whether he had any objection to the jury request, to which he answered "No, sir." The judge thus brought the jury into the courtroom, and asked them whether they had been able to reach a verdict yet on any of the charges. After the foreperson replied in the negative, the judge informed the jury that no one had objected to their request and had the court reporter read the requested testimony to them. Finally, the judge directed the jury to retire and continue their deliberations.
Immediately after the jury retired this second time, the judge conferred on the record with the prosecution and Siverson concerning how much longer the jury should be allowed to deliberate that evening. The judge stated that it was then 9:45 P.M., and Mr. Vogel suggested that the jury be permitted to deliberate at least another hour. Siverson stated "I have no objection," and the judge, after some additional discussion, said that he would let the jury continue deliberating "for the time being."
The next recorded conference between the judge, the prosecution, and Siverson took place at 11:07 P.M., at which time the judge proposed to have the jury cease its deliberations until the next morning. Mr. Vogel asked whether the judge would first inquire as to whether the jurors would prefer to continue their deliberations further that evening. The judge replied that before sending the jurors home he planned to ask them whether they could reach a verdict in "the next ten minutes or so" if they had not reached one already. The judge questioned Siverson about whether he wished "to be heard" on the proposal, and Siverson responded by asking whether the prosecution would be saying anything more to the jury. The judge and Mr. Vogel both responded in the negative, and Siverson said that he had no further comments on the proposal.
At this point Mr. Bernardi intervened to state that the defendant should be made aware of his right to request a mistrial, and to contact his lawyer regarding such a request. 3 The judge asked Siverson whether he wanted to talk with his lawyer, and Siverson in turn asked if the prosecutors were going to ask any questions of the jurors. Bernardi told Siverson that no one could ask the jury questions and Siverson reaffirmed that he had no objection. The judge again asked Siverson if he wanted to talk to his counsel first, but he replied that he did not. The judge then proposed that the jury be brought in and the following colloquy ensued:
Bring the jury in.
The bailiff shortly thereafter returned to the courtroom and reported that the jury would like to have ten more minutes to deliberate. The judge instructed the bailiff to tell the jury "that they could take as much time as they needed to complete their work," and subsequently stated for the record that the bailiff did so.
The record next reflects a pause in the proceedings of unspecified duration, after which time the jury returned to open court. The trial record does not otherwise reveal at what time the following proceedings occurred. The judge asked the jurors if they had reached a verdict, and the foreperson replied that they had. The judge read the verdicts, and then asked whether anyone desired that the jury be polled. Mr. Vogel said that the State did not, but this additional discussion occurred between Siverson's mother (Mrs. Newborn), Siverson, and the judge:
The judge accordingly entered judgments of conviction or acquittal on the verdicts. Finally, after the jurors left the courtroom, Siverson asked the judge what "charge" the jury found him guilty of, and the judge explained that he was convicted of robbery, aggravated battery, and theft.
Siverson appealed his convictions to the Illinois Appellate Court for the Fourth District on several grounds, including ineffective assistance of counsel based on his attorney's absence during the events described above. 4 That court affirmed in an unpublished order, holding that Siverson had waived his ineffective assistance of counsel claim by failing to raise it in a post-trial motion, and holding alternatively that his attorney's absence during the later stages of the trial was harmless error. The Illinois Supreme Court denied leave to appeal. Siverson then filed a petition for a writ of habeas corpus in the United States District Court for the Central District of Illinois, again...
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