United States v. Degraffenried, Frede ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3561
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FREDERICK DEGRAFFENRIED,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 717—David H. Coar, Judge.
____________
ARGUED MAY 27, 2003—DECIDED AUGUST 11, 2003
____________
Before BAUER, POSNER, and COFFEY, Circuit Judges.
BAUER, Circuit Judge. A jury found Frederick
Degraffenried guilty of being a felon in possession of a fire-
arm, and the district court sentenced him to 262 months’
imprisonment. On appeal, Degraffenried contends that the
district court erred in its handling of a note from the jury.
Degraffenried also asserts that the court improperly limited
his cross-examination of Detective Patrick O’Donovan. For
the reasons stated herein, we affirm.
BACKGROUND
On the evening of May 16, 2001, Nakia Stanley heard a
gunshot in the lot next to her home and saw Fabian Patillo
2 No. 02-3561
hobbling around the side of her home, in obvious pain.
Frightened, Stanley called 911. Chicago Police Department
Officers Kevin Cole and Daniel Parrilli responded and saw
Frederick Degraffenried running from the scene with a
sawed-off rifle. Officer Cole chased Degraffenried into a
building. Degraffenried surrendered moments later and
Cole recovered the gun.
Meanwhile, Detective Patrick O’Donovan, also responding
to the 911 call, located Patillo, the man who had been shot.
Patillo eventually told O’Donovan that he had accidentally
shot himself in the foot and that Degraffenried had taken
the gun to hide it. Patillo was treated at Mount Sinai Hos-
pital, where he identified the gun retrieved by Officer Cole
as the gun with which he had shot himself. O’Donovan
interviewed Degraffenried, who confirmed that Patillo had
shot himself and that he (Degraffenried) attempted to con-
ceal the gun.
O’Donovan documented Degraffenried’s statement in a
General Progress Report. ATF Agent Susan Bray, the case
agent, provided the prosecutors with a copy of O’Donovan’s
Supplemental Case Report. Bray mistakenly believed the
Supplemental Case Report incorporated O’Donovan’s hand-
written notes contained in the General Progress Report.
The officials handling the case did not realize the mistake
until March 13, 2002, two weeks before the scheduled trial
date. Upon receiving the newly discovered information, the
prosecution immediately faxed a copy of the General Pro-
gress Report to defense counsel.
In light of the delay, the court granted a continuance of
the trial date, and on June 4, 2002, held a hearing on the
motion to suppress Degraffenried’s statement contained in
the General Progress Report. After hearing testimony from
Cole, O’Donovan, and Degraffenried, the court denied the
motion.
Prior to the trial testimony of O’Donovan, the prosecution
moved in limine to prevent any cross-examination of
No. 02-3561 3
O’Donovan regarding the timing of the prosecution’s pro-
duction of the General Progress Report to defense counsel.
The district court granted the motion.
The trial began on June 5, 2002 and finished at noon the
following day. After approximately three hours of delibera-
tions, the jury sent the judge a note. The judge told counsel,
“I got a note from the jury saying that they are at impasse.
I’m reluctant to share the note with you because it discloses
what the numerical division is among the jurors. The note
also says that one juror does not want to discuss it further,
so that’s where they are.” Defense counsel stated, “I think
it’s important that we see the whole contents [sic] of the
note.” The judge declined to divulge the entirety of the note.
Instead, he sent a note to the jury stating, “Members of the
jury, I’ve read your note. Please continue deliberations.”
Following a recess and additional discussion about the
issue, the judge decided to read the entire note to counsel.
The note stated:
We are at an impasse. We have two people who do not
vote with the majority. One of these two has said
repeatedly that he will never change his mind. The
disagreement turns on the believability of the police of-
ficers’ testimonies. The majority believe the testimony.
The minority believe that it was fabricated to get a
conviction. These two jurors have strong reasonable
doubt that will not be extinguished. One of the . . . does
not want to discuss it further.
The judge subsequently asked counsel what they felt was
the most appropriate action. The prosecution stated that
the court’s response to the note was proper. Defense coun-
sel responded, “The only thing that I might have wanted
was the Silvern instruction, just because the Silvern in-
struction includes the fact that the jurors should maintain
their own personal beliefs, but I think it’s a bit late for
that.” Degraffenried was not present in the courtroom at
4 No. 02-3561
any time when the judge told counsel about the note or
when he disclosed the contents of the note.
On June 7, 2002, the jury found Degraffenried guilty of
being a felon in possession of a firearm, in violation of
18 U.S.C. § 924(e), and not guilty of possessing an unre-
gistered sawed-off rifle. Degraffenried filed a motion for
a new trial, which was denied. The judge admitted error in
discussing the note outside the presence of Degraffenried,
but found the error harmless. The judge sentenced
Degraffenried to 262 months’ imprisonment, with three
years supervised release. Degraffenried appeals.
ANALYSIS
We first address the error in discussing the jury’s note
outside the presence of Degraffenried.
A criminal defendant has the right to be present at every
stage of the trial. Fed. R. Crim. P. 43(a); see also Rogers v.
United States, 422 U.S. 35, 39 (1975). A judge’s response to
a note from the jury is one of those stages. United States v.
Coffman, 94 F.3d 330, 335-36 (7th Cir. 1996). As we noted
in United States v. Neff, 10 F.3d 1321, 1324 (7th Cir. 1993),
when a judge receives a communication from the jury, he
should either follow the procedures set forth in Rogers v.
United States, 422 U.S. 35 (1975), or obtain a clear and
knowing waiver on record from the defendant himself.
There is no dispute that the proper procedures were not
followed, as the judge himself admitted; the remaining
question is whether the error was harmless.
An error is harmless if it does not affect “substantial
rights.” Fed. R. Crim. P. 52(a). A defendant’s absence from
a stage of the trial is harmless if the issue involved is not
one “on which counsel would be likely to consult [the de-
fendant],” or which the defendant, “if consulted, would be
likely to have an answer that would sway the judge.”
No. 02-3561 5
United States v. Silverstein, 732 F.2d 1338, 1348 (7th Cir.
1984).
Degraffenried claims that if present, “he may have sug-
gested a response that was contrary to the district court’s
response which allowed the jury to continue to deliberate
without requesting a mistrial.” We are not persuaded. The
jury’s note was straightforward, issued less than four hours
after deliberations began. While the judge’s methodology
was improper, his response was not. We cannot agree that
defense counsel would have consulted Degraffenried about
the jury’s note. Moreover, given the temporal proximity to
the start of deliberations and the legal nature of the issue,
we fail to see how a response from Degraffenried would
have swayed the judge. Thus, the failure of the court to
secure Degraffenried’s presence was harmless error.
We next consider the court’s handling of the note itself.
The judge’s response to the jury’s note was erroneous, as
the government concedes. Rogers v. United States, 422 U.S.
35 (1975), instructs that a communication from the jury
should be answered in open court and that counsel should
be allowed to respond before the judge resolves the situa-
tion. Rogers, 422 U.S. at 39. Because this procedure was not
followed, error was committed. We again review for harm-
less error. United States v. Pressley, 100 F.3d 57, 59-60 (7th
Cir. 1996).
Degraffenried contends that if the judge had disclosed the
entirety of the note and conferred with him before respond-
ing to the jury, counsel would have asked the judge to
repeat the Silvern instruction. See United States v. Silvern,
484 F.2d 879 (7th Cir. 1973). This supplemental jury
instruction provides, inter alia, that jurors not “hesitate to
change their minds [and] not to surrender honest beliefs
still thought to be correct.” United States v. Rodriguez, 67
F.3d 1312, 1320 (7th Cir. 1995). A Silvern instruction is ap-
propriate only when the court has concluded that a jury is
6 No. 02-3561
deadlocked. United States v. Miller, 159 F.3d 1106, 1110
(7th Cir. 1998).
To begin with, a Silvern instruction was given before the
jury began deliberations. Second, the jury had been deliber-
ating for less than four hours when it issued the note. The
foreman’s opinion that the jury was deadlocked does not
require the judge to give a Silvern instruction; it is also
within the court’s discretion to simply tell the jury to con-
tinue deliberating.
In addition, the substance of the judge’s response was
entirely proper: “Members of the jury, I’ve read your note.
Please continue deliberations.” It was not coercive and its
language was neutral. Such an instruction “carrie[s] no
plausible potential for coercing ‘the jury to surrender their
honest opinions for the mere purpose of returning a verdict.’
”
United States v. D’Antonio, 801 F.2d 979, 983-84 (7th Cir.
1986) (quoting United States v. Thibodeaux, 758 F.2d 199,
203 (7th Cir. 1985)). Similarly, in United States v. Miller,
159 F.3d 1106 (7th Cir. 1998), the judge responded to a
communication from the jury with an instruction to con-
tinue deliberating and without a Silvern instruction. We
found the judge acted properly because the response was
neutral and not coercive. Id. at 1111; see also United States
v. Coffman, 94 F.3d 330 (7th Cir. 1996); United States v.
Kramer, 955 F.2d 479 (7th Cir. 1992). Degraffenried offers
no reason for us to depart from this long line of precedent.
Degraffenried’s final argument concerns the district
court’s decision to limit the scope of the cross-examination
of Detective O’Donovan. Degraffenried says that he was
denied the opportunity to fully cross examine O’Donovan
about the General Progress Report and, thus, was pre-
vented from attacking O’Donovan’s credibility.
The Sixth Amendment guarantees criminal defendants
the right to cross examine witnesses but a trial court has
discretion to place reasonable limits on cross-examinations.
No. 02-3561 7
United States v. Jackson, 51 F.3d 646, 652 (7th Cir. 1995).
In determining the standard of review, we “distinguish
between the core values of the confrontation right and more
peripheral concerns which remain within the ambit of the
trial judge’s discretion.” United States v. Saunders, 973 F.2d
1354, 1358 (7th Cir. 1992). Limiting the right to cross
examine for impeachment purposes involves a peripheral
concern. United States v. Nelson, 39 F.3d 705, 709 (7th Cir.
1994); United States ex rel. Ashford v. Dir., Ill. Dep’t of
Corr., 871 F.2d 680, 683 (7th Cir. 1989). Consequently, we
review the district court’s decision to limit the cross-exami-
nation of O’Donovan for an abuse of discretion. United
States v. Graffia, 120 F.3d 706, 712 (7th Cir. 1997).
The district court precluded Degraffenried from asking
about when the prosecution provided the notes in the
General Progress Report to defense counsel. Degraffenried
maintains that such a limitation deprived the jury of the
opportunity to determine O’Donovan’s credibility. We fail to
see how O’Donovan’s credibility could be attacked on a
matter not within his control or firsthand knowledge. We
give the district court wide latitude when it limits cross-
examination to avoid confusion. United States v. Sasson, 62
F.3d 874, 882 (7th Cir. 1995). Moreover, the court permitted
questioning about O’Donovan’s knowledge of the General
Progress Report; Degraffenried inquired about the date
O’Donovan turned over the notes, to whom he gave the
notes, and the circumstances under which O’Donovan ob-
tained Degraffenried’s statement. Thus, Degraffenried had
opportunities to explore any possible motive or bias regard-
ing the handling of the report. The subject matter the court
limited (the date the prosecution gave the General Progress
Report to defense counsel) is simply irrelevant to anything
involving O’Donovan. For these reasons, we find that the
district court’s limitation of the cross-examination of
O’Donovan was not an abuse of discretion.
8 No. 02-3561
CONCLUSION
The decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-11-03