United States v. Johnnie Taylor ( 2009 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 07-4013
    U NITED S TATES OF A MERICA,
    Plaintiff-Appellee,
    v.
    JOHNNIE L. T AYLOR,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 06 CR 30114—David R. Herndon, Chief Judge.
    A RGUED F EBRUARY 17, 2009—D ECIDED JUNE 26, 2009
    Before P OSNER, K ANNE, and W OOD , Circuit Judges.
    K ANNE, Circuit Judge. The appellant, Johnnie Taylor,
    was accused of being a felon in possession of a firearm
    and was tried twice in front of a jury. The first trial
    resulted in a deadlocked jury, prompting the court to
    declare a mistrial. At the second trial, the jury found Taylor
    guilty as charged. On appeal, Taylor presents three argu-
    ments, the first two of which relate to the mistrial. First,
    Taylor argues that the district court erred in declaring
    the mistrial. Second, he claims that trial counsel was
    2                                             No. 07-4013
    ineffective because the attorney did not seek Taylor’s
    input on whether to recommend to the court that it
    declare a mistrial. Taylor’s third argument, which
    involves Taylor’s second trial, is that the district court
    should have excluded certain statements from the gov-
    ernment’s evidence. We find no merit in Taylor’s
    claims and now affirm.
    I. B ACKGROUND
    In the early evening of September 12, 2005, local law
    enforcement responded to a domestic disturbance call at
    an apartment complex in Alorton, Illinois. Police Officer
    Rick Schell was the first to arrive on the scene, where
    he spoke with Mary Weaver, the woman who had placed
    the call. Weaver pointed across the street and informed
    Schell that a man later identified as Johnnie Taylor had
    taken a gun in that direction. She said that Taylor took
    the weapon to a man she called “Mario,” who the
    police subsequently learned was Mario Dowell.
    Looking in the direction that Weaver pointed, Officer
    Schell saw Dowell working on an automobile in front of
    a neighboring apartment building. At the same time,
    Taylor appeared and approached Officer Schell from
    across the street. Warned by Weaver that Taylor might
    be armed, Officer Schell handcuffed Taylor and checked
    him for a weapon, finding none. Chief Leondra Hughes
    and Captain Robert Cummings then arrived on the
    scene and began investigating the handgun’s where-
    abouts. Upon questioning by Hughes, Dowell admitted
    that Taylor had given him a gun and that he had hidden
    No. 07-4013                                              3
    it for Taylor in a third party’s apartment. Dowell then
    led the police to the gun’s hiding place, where they re-
    covered the weapon.
    On August 18, 2006, the government filed a two-count
    indictment against Taylor, only the first count of which
    is at issue on this appeal. That count alleged that Taylor,
    who had previously been convicted of burglary, was
    a felon in possession of a firearm in violation of
    
    18 U.S.C. § 922
    (g)(1).
    Taylor’s first jury trial began on June 18, 2007. The
    presentation of evidence took approximately six hours
    over two days and concluded shortly after 2:30 p.m. on
    the afternoon of June 19. After final instructions, the
    jury began deliberations that same afternoon at 3:58 p.m.,
    and the court recessed at 5:10 p.m. The jury resumed
    deliberations at 9:00 a.m. the next morning, June 20,
    and deliberated throughout the day.
    The jury sent three notes to the judge over the course
    of its deliberations on June 20. In the first, the jury re-
    quested to rehear Mary Weaver’s 911 telephone call
    and the recorded statements Taylor and Dowell had
    given to the police. In the second note, the jury asked for
    clarification on a point of Chief Hughes’s testimony. The
    court granted the first request and, while working with
    the attorneys to formulate a response to the second,
    received the jury’s third note. Sent to the judge at
    3:50 p.m., the third note read: “We are undecided on
    guilty/not guilty. There are several points we can’t agree
    on. The jury is divided on whether to continue. Your
    direction is required.” After discussions with both attor-
    4                                              No. 07-4013
    neys, the court sent the requested transcript excerpt of
    Chief Hughes’s testimony and stated only, “Please con-
    sider the Court’s reply to your request regarding Chief’s
    Hughes [sic] testimony and in conjunction with all the
    other evidence in the case.” The jury later asked to
    adjourn for the day, writing that “we are aggressively
    going over (flow charting) each witness and piece of
    evidence to arrive at a unanimous decision.” The judge
    granted the jury’s request and recessed the court at
    5:00 p.m.
    The jury returned for a third day of deliberations at
    9:00 a.m. on June 21. At 10:10 a.m., the court received a
    note from the jury that read as follows:
    We, the jury, are “deadlocked” in decision—since
    day 1 until today. We are 8 guilty and 4 not
    guilty—this spit [sic] has not changed since we
    began. We have debated each witness’ testimony
    and piece of evidence and no juror has changed
    their verdict. We ask the court to accept our dead-
    locked condition and conclusion to this case.
    The judge sought input from both the prosecutor and
    defense counsel. The prosecutor suggested that the judge
    encourage the jury to continue its deliberations. Defense
    counsel, citing concerns that the jury would “cave in
    one way or the other,” recommended that the court
    accept the jury’s request and declare a mistrial. The
    judge, after discussing the length of the presentation of
    evidence during the trial and of the jury’s deliberations,
    the simplicity of the issues, the jury’s communications,
    and his concerns about the potentially coercive effects of
    additional prodding by the court, declared a mistrial.
    No. 07-4013                                             5
    Taylor’s second trial commenced on July 9, 2007. Over
    two days of evidence, the government called a number
    of witnesses, including Officer Schell, Captain Cummings,
    Chief Hughes, and Mario Dowell. Neither the govern-
    ment nor the defense called Mary Weaver to testify.
    Dowell’s testimony was particularly instructive on the
    case’s key issue—whether Taylor had knowingly
    possessed the firearm. Dowell explained to the jury that
    on September 12, 2005, he had been working on a car in
    front of his apartment when Taylor, an acquaintance of
    Dowell’s, approached and asked Dowell to “put a gun
    up for him,” i.e., hide Taylor’s weapon. Dowell testified
    that he believed Taylor later intended to recover the
    firearm from its hidden location. Dowell told the jury
    that he took Taylor around to the back of the apart-
    ment building, where Taylor gave the gun to Dowell.
    Knowing that a nearby apartment belonging to Laricka
    Perkins, an uninvolved third party, would be unlocked,
    Dowell took the gun and hid it in Perkins’s apartment.
    On July 10, the jury returned a verdict of guilty as
    charged in count one of the indictment. On December 6,
    2007, the district court sentenced Taylor to seventy-eight
    months’ imprisonment, followed by a three-year term of
    supervised release. Taylor now appeals, citing concerns
    related to both the mistrial declaration and the
    admission into evidence of certain statements during
    his second trial.
    II. A NALYSIS
    On appeal, we divide Taylor’s arguments according
    to the trial to which they pertain. Taylor’s initial two
    6                                                   No. 07-4013
    claims involve the mistrial declaration during his first
    trial. His final claim relates to the admission of certain
    evidence during his second trial. As we explain below,
    we disagree with Taylor’s arguments on all fronts.
    A. The Mistrial (Trial Number 1)
    The Double Jeopardy Clause of the United States Consti-
    tution bars a defendant’s retrial unless the district court
    declared a mistrial either (1) with the defendant’s
    consent, or (2) because the declaration was manifestly
    necessary. United States v. Combs, 
    222 F.3d 353
    , 358-59
    (7th Cir. 2000); see also U.S. Const. amend. V; Arizona v.
    Washington, 
    434 U.S. 497
    , 504-05 (1978) (discussing a
    defendant’s “valued right to have his trial completed by
    a particular tribunal” and stating that a prosecutor “is
    entitled to one, and only one, opportunity to require
    an accused to stand trial”). Taylor contests the district
    court’s decision to declare the mistrial without his
    consent and without finding manifest necessity and
    claims that trial counsel was ineffective because the
    attorney did not seek Taylor’s consent to the mistrial.
    Neither claim withstands scrutiny.
    1. The District Court’s Declaration of a Mistrial
    A court may declare a mistrial if it determines that such
    a declaration is “occasioned by manifest necessity.” Combs,
    
    222 F.3d at 358-59
    . Such a determination is proper with or
    without the defendant’s consent, see 
    id.,
     and need not be
    made explicitly, see Camden v. Circuit Court of the Second
    No. 07-4013                                                  7
    Judicial Circuit, 
    892 F.2d 610
    , 614 (7th Cir. 1989). A mistrial
    is manifestly necessary only if the “scrupulous exercise
    of judicial discretion leads to the conclusion that the
    ends of public justice would not be served by a continu-
    ation of the proceedings.” 
    Id.
     (quotations omitted).
    We review a court’s decision to declare a mistrial for
    an abuse of discretion. United States v. Vaiseta, 
    333 F.3d 815
    , 818 (7th Cir. 2003). Our review becomes even
    more deferential in a situation such as this, where the
    “manifest necessity” prompting the mistrial is a dead-
    locked jury. See id.; see also Washington, 
    434 U.S. at 509
    ;
    Williams v. Bartow, 
    481 F.3d 492
    , 500 (7th Cir. 2007) (noting
    that the reviewing court applies varying degrees of scru-
    tiny within the abuse-of-discretion standard depending
    on the events precipitating the mistrial). Such deference
    is warranted because the trial judge is in the best
    position to balance the defendant’s interest in having a
    given jury decide his fate against the public’s interest
    in fair trials and just judgments. Vaiseta, 
    333 F.3d at 818
    .
    In Vaiseta, we discussed several factors a court should
    consider before declaring a mistrial due to a deadlocked
    jury: (1) statements from the jury that it cannot agree;
    (2) length of the deliberations; (3) length of the trial;
    (4) complexity of the issues; (5) the jury’s communications
    to the judge; and (6) the potentially prejudicial impact
    of continued forced deliberations. 
    Id.
     Here, although the
    court never explicitly stated that it found the mistrial to
    be of “manifest necessity,” the court clearly contemplated
    each of the Vaiseta factors before it declared a mistrial,
    a decision that we conclude was well within the bounds
    of the court’s discretion.
    8                                                No. 07-4013
    First, the court had two written statements from the
    jury indicating its inability to agree, one on June 20,
    the second on June 21. Second, the court discussed both
    the length of the presentation of evidence and the length
    of the deliberations, noting that the evidence had taken
    approximately six hours and that the jury deliberations
    had been ongoing for ten hours. Said the judge: “Just seems
    like with six hours of testimony, with over ten hours,
    thereabouts, of deliberation, that we’re not going to get
    a different result.” Third, the judge expressed his opinion
    that the single issue facing the jury—whether Taylor had
    knowingly possessed the gun—was relatively simple.
    Next, the jury’s communications made clear that it had
    made little progress in three days; in fact, the jury’s
    split had not changed since it began deliberating. And
    finally, the judge explained his fear of coercing the jury
    into a decision by requiring further deliberations. The
    judge discussed each of these factors on the record
    before announcing his decision to declare the mistrial.
    We fail to see how such a measured decision, made with
    ample information and full appreciation for the Vaiseta
    factors, could be an abuse of discretion. Cf. United States v.
    Jackson, 
    546 F.3d 465
    , 471 (7th Cir. 2008) (noting that a
    judge must exercise his discretion, i.e., “consider[] the
    factors relevant to that exercise,” before we accord his
    decision deference).
    On appeal, Taylor essentially asks us to substitute our
    judgment for that of the district judge. He suggests, for
    example, that the issue was not as simple as the court
    believed and that the length of deliberations was not out
    of proportion to the length of the evidence. Taylor argues
    No. 07-4013                                                          9
    that the court should have ordered the jury to deliberate
    “at least until lunch” and should have reread the Silvern
    instruction, see United States v. Silvern, 
    484 F.2d 879
    , 883
    (7th Cir. 1973),1 an instruction that we have held to be
    content-neutral and non-coercive, United States v. Sanders,
    
    962 F.2d 660
    , 676 (7th Cir. 1992) (quoting United States
    v. Beverly, 
    913 F.2d 337
    , 352 (7th Cir. 1990)). But when
    reviewing only for an abuse of discretion, second-guessing
    1
    The Silvern instruction reads as follows:
    The verdict must represent the considered judgment
    of each juror. In order to return a verdict, it is necessary
    that each juror agree thereto. Your verdict must be
    unanimous.
    It is your duty, as jurors, to consult with one another
    and to deliberate with a view to reaching an agreement,
    if you can do so without violence to individual judg-
    ment. Each of you must decide the case for yourself, but
    do so only after an impartial consideration of the
    evidence with your fellow jurors. In the course of your
    deliberations, do not hesitate to reexamine your own
    views and change your opinion if convinced it is
    erroneous. But do not surrender your honest conviction
    as to the weight or effect of evidence solely because of
    the opinion of your fellow jurors, or for the mere
    purpose of returning a verdict.
    You are not partisans. You are judges—judges of the
    facts. Your sole interest is to ascertain the truth from
    the evidence in the case.
    
    484 F.2d at 883
    .
    10                                                 No. 07-4013
    the district court is something we will not do. See Am. Nat’l
    Bank & Trust Co. of Chi. v. Reg’l Transp. Auth., 
    125 F.3d 420
    ,
    431 (7th Cir. 1997). A discretionary decision, as this one
    was, implies a range of acceptable outcomes. See United
    States v. Koen, 
    982 F.2d 1101
    , 1114 (7th Cir. 1992). So long
    as the judge’s conclusion was within that range of out-
    comes, we will defer to his judgment, not substitute
    our own. See id.; see also United States v. Souffront, 
    338 F.3d 809
    , 819 (7th Cir. 2003) (stating that when reviewing
    for an abuse of discretion, this court will not second-guess
    the trial judge’s decision or reweigh the evidence). Further,
    even if we were to conduct a more searching analysis
    of the court’s conclusions, we see no fault in the decision
    it reached. As such, we hold that the district court’s
    decision to declare a mistrial during Taylor’s first jury
    trial was not an abuse of discretion. We turn now to
    Taylor’s ineffective assistance of counsel claim.
    2. Ineffective Assistance of Trial Counsel
    Taylor next argues that he received ineffective
    assistance of counsel because his attorney did not consult
    Taylor before recommending to the court that it accept
    the jury’s deadlocked position and declare a mistrial.
    The test for ineffective assistance of counsel is well estab-
    lished. See Strickland v. Washington, 
    466 U.S. 668
     (1984). To
    prevail on such a claim, Taylor must show both (1) that
    his trial counsel’s performance was objectively deficient;
    and (2) that counsel’s deficiency prejudiced his defense.
    
    Id. at 687
    ; United States v. Shukri, 
    207 F.3d 412
    , 418 (7th Cir.
    2000).
    No. 07-4013                                                11
    As a preliminary matter, we note our standard reluctance
    to consider ineffective assistance of counsel claims on
    direct appeal. United States v. Brooks, 
    125 F.3d 484
    , 495
    (7th Cir. 1997). As we have said:
    [S]uch claims are very unlikely to find any factual
    support in the trial record and an adverse deter-
    mination on direct appeal will be res judicata in
    any subsequent collateral attack. . . . [A] defendant
    who presents an ineffective-assistance claim for
    the first time on direct appeal has little to gain
    and everything to lose.
    United States v. Cooke, 
    110 F.3d 1288
    , 1299 (7th Cir. 1997)
    (citations and quotations omitted); see also Brooks, 
    125 F.3d at 495
    .
    The undeveloped record in this case provides a
    perfect example of why we typically decline to consider
    ineffective assistance arguments for the first time on
    direct appeal. Despite Taylor’s arguments to the con-
    trary, there is no indication in the record whether
    Taylor’s trial counsel consulted with him before sug-
    gesting to the court that it declare a mistrial. Due to the
    strong presumption of counsel’s effectiveness, see Strick-
    land, 
    466 U.S. at 689
    , if we were to express an opinion on
    counsel’s performance based on such an incomplete
    record, it would have to be in counsel’s favor. But we
    need not make such a conclusive finding in this case, nor
    need we defer our decision on this claim, because Taylor
    fails to make the requisite showing of prejudice. Strick-
    land’s two-part test requires both deficient performance
    and prejudice, 
    466 U.S. at 687
    ; requiring a more fully
    12                                                 No. 07-4013
    developed record, therefore, would only delay the inevita-
    ble.
    Courts may deny ineffective assistance of counsel
    claims for lack of prejudice without ever considering the
    question of counsel’s actual performance. 
    Id. at 697
    ; see, e.g.,
    Berkey v. United States, 
    318 F.3d 768
    , 772 (7th Cir. 2003);
    Matheney v. Anderson, 
    253 F.3d 1025
    , 1042 (7th Cir. 2001). To
    demonstrate prejudice, Taylor must show “that the deci-
    sion reached would reasonably likely have been different
    absent the errors.” Strickland, 
    466 U.S. at 696
    . Taylor’s
    entire argument, however, hinges on his trial counsel’s
    purported deficiencies; he makes no claims related to the
    prejudice he suffered. We presume this is because he
    suffered none. As we have already discussed, the district
    court, after careful consideration of the Vaiseta factors
    and over the objection of the prosecution, implicitly
    found a mistrial to be of manifest necessity. The court
    did not need Taylor’s permission to make that decision,
    and there is no reason to believe that an objection by
    defense counsel, or even by the defendant himself, would
    have changed the court’s conclusion. Absent the requisite
    showing of prejudice, Taylor’s ineffective assistance of
    counsel claim fails. We turn now to Taylor’s final argu-
    ment.
    B. Admissibility of Mary Weaver’s Statement (Trial
    Number 2)
    Finally, Taylor claims that the district court erred during
    the second trial by admitting into evidence Mary
    Weaver’s statement to Officer Schell that “he just took a
    No. 07-4013                                                  13
    gun across the street.” Taylor bases this argument on
    two grounds. First, he asserts that the evidentiary rules
    against hearsay prohibited the admission of Weaver’s
    statement. See Fed. R. Evid. 801-802. Second, he argues
    that admitting Weaver’s statement without calling
    Weaver herself to testify violated his constitutional right
    to confront witnesses against him. See U.S. Const.
    amend. VI. We find both arguments unavailing.
    We typically review a district court’s decision to admit
    statements into evidence for an abuse of discretion. United
    States v. Akinrinade, 
    61 F.3d 1279
    , 1283 (7th Cir. 1995).
    During trial, however, defense counsel raised no objec-
    tions to the references to Weaver’s statement, limiting
    our review to plain error. See United States v. Olano, 
    507 U.S. 725
    , 731 (1993); see also Fed. R. Crim. P. 52(b). Under
    this standard, we will not reverse unless we find not
    only an error, but an error “that is ‘plain’ and that
    ‘affect[s] substantial rights.’ ” Olano, 
    507 U.S. at 732
     (alter-
    ation in original). Even in the presence of a plain error,
    the decision whether to correct the error lies in our dis-
    cretion, which the Supreme Court has instructed us not
    to exercise “unless the error ‘seriously affect[s] the
    fairness, integrity or public reputation of judicial pro-
    ceedings.’ ” 
    Id.
     (alteration in original) (quoting United
    States v. Young, 
    470 U.S. 1
    , 15 (1985)).
    We turn first to Taylor’s hearsay arguments. The
    Federal Rules of Evidence prohibit the admission of
    hearsay: out-of-court statements made by non-witnesses
    that are offered to prove the truth of the matter asserted.
    See Fed. R. Evid. 801-802; United States v. Breland, 356
    14                                               No. 07-
    4013 F.3d 787
    , 792 (7th Cir. 2004). Here, Taylor challenges
    numerous references made by Officer Schell and others to
    Mary Weaver’s statement that “he just took a gun across
    the street.” Such testimony created a potential hearsay
    problem because neither side called Weaver to testify,
    relying instead on other people to recount to the jury
    Weaver’s statements. We find that the district court
    committed no error because the challenged statement
    did not satisfy the definition of hearsay.
    We have recognized repeatedly that statements offered
    to “establish the course of the investigation,” rather than
    to prove the truth of the matter asserted, are nonhearsay
    and therefore admissible. Akinrinade, 
    61 F.3d at 1283
    ;
    see also, e.g., Breland, 356 F.3d at 792; United States v.
    Linwood, 
    142 F.3d 418
    , 425 (7th Cir. 1998); United States v.
    Sanchez, 
    32 F.3d 1002
    , 1005 (7th Cir. 1994). But see United
    States v. Silva, 
    380 F.3d 1018
    , 1020 (7th Cir. 2004) (discuss-
    ing, in the context of conversations between DEA agents
    and their confidential informants, that “[a]llowing agents
    to narrate the course of their investigations . . . would go
    far toward abrogating the defendant’s rights under
    the sixth amendment and the hearsay rule”).
    Here, the references to Mary Weaver’s statement by
    Schell, Cummings, and Hughes were offered to explain
    their own actions in the course of their investigation—for
    example, why they looked across the street, why they
    questioned Mario Dowell, and why they handcuffed
    Taylor when he approached. Indeed, Weaver’s state-
    ment was the jumping-off point for the entire investiga-
    tion. Our conclusion might be different if, as in Silva, the
    No. 07-4013                                               15
    police were testifying to statements harvested from an
    ongoing relationship with an informant, see 
    380 F.3d at 1019
    , but those are not the facts of this case; here, the
    police were responding to a developing, potentially
    dangerous situation. The government offered Weaver’s
    statement in the context of the officers’ testimony to
    explain the course of law enforcement’s investigation,
    not as evidence that Taylor possessed the gun. The
    district court, with no objections made by either party,
    properly admitted the testimony as nonhearsay.
    Turning, finally, to Taylor’s Confrontation Clause
    argument, we again find no plain error. Absent “compli-
    cating circumstances,” such as a prosecutor who exploits
    nonhearsay statements for their truth, nonhearsay testi-
    mony does not present a Confrontation Clause problem.
    Lee v. McCaughtry, 
    892 F.2d 1318
    , 1325 (7th Cir. 1990); see
    also Martinez v. McCaughtry, 
    951 F.2d 130
    , 133 (7th Cir.
    1991) (citing Tennessee v. Street, 
    471 U.S. 409
    , 414 (1985)).
    We are satisfied that there were no “complicating cir-
    cumstances” here; thus, because the testimony by Schell,
    Cummings, and Hughes was nonhearsay, nothing ran
    afoul of the Confrontation Clause. See Martinez, 
    951 F.2d at 133-34
    . Furthermore, given the other evidence in the
    record of Taylor’s gun possession, namely, Mario
    Dowell’s testimony, Taylor cannot claim that his “sub-
    stantial rights” were affected. See Olano, 
    507 U.S. at 734
    (stating that in most cases an error affects substantial
    rights only if was prejudicial, i.e., it affected the outcome
    of the proceedings); Akinrinade, 
    61 F.3d at 1283
     (noting
    the absence of a “miscarriage of justice” when reviewing
    a Confrontation Clause claim for plain error).
    16                                             No. 07-4013
    III. C ONCLUSION
    For the foregoing reasons, we A FFIRM Taylor’s conviction.
    6-26-09