Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C 903 -- Thomas R. McMillen, Judge.
Before Wood, Eschbach and Posner, Circuit Judges.
In this appeal from the denial of a state prisoner's petition for habeas corpus, we are called upon to decide whether the rule forbidding trial judges from inquiring as to the jury's numerical division, enunciated by the Supreme Court in Brasfield v. United States, 272 U.S. 448, 47 S. Ct. 135, 71 L. Ed. 345 (1926), is binding on the states through the Fourteenth Amendment, or whether it is merely an exercise of the Supreme Court's supervisory jurisdiction over federal courts. We conclude that it is the latter and affirm the district court's judgment denying the petition.
In August 1977, petitioner was tried for murder in the Circuit Court of Cook County, Illinois. Following closing arguments and instructions, the case was submitted to the jury for verdict at 1:10 p.m. on August 10. When no verdict was forthcoming, the trial judge on his own initiative recalled the jury at 7:06 p.m. and asked them if they could arrive at a decision. The foreman asked for at least another hour, and the trial judge then tendered them a modified Allen*fn1 charge and sent them back to their deliberations.
At 8:55 p. m., the trial judge received a note signed by the foreman indicating that the jury was unable to reach a verdict. After denying a defense request for a mistrial, the judge called out the jury and the following colloquy occurred:
The Court: Mr. Foreman, the Court has received your note. I am going to inquire of you, I don't want to know how the jury is voting, in which direction, but I would like to know the numerical count of your last ballot ..., do you recall?
The Foreman: The last ballot?
The Court: The last ballot, yes. But remember, I don't want-
What we are going to do is, and this determination is not based upon the numerical count of your vote, that was just a matter of inquiry by the Court. What we are going to do is arrange for overnight accommodations for the jury so that you, as you know, you can't be separated during the period of your deliberations, and so we are going to arrange an overnight accommodations (sic) at a motel which we have already begun to arrange for.
The trial court then denied another defense request for a mistrial.
At 2:55 p.m. on the following day, some eighteen hours after the trial judge's inquiry, the jury informed the court they had reached a verdict. Following the denial of another defense motion for mistrial, the jury informed the court they had found petitioner guilty of murder. Petitioner was later sentenced to between ...