The opinion of the court was delivered by: Baker, District Judge.
The petitioner, Charles Siverson, seeks a writ of habeas corpus
on the ground that his state court conviction violated his Sixth
Amendment rights. Specifically, the petitioner contends that he
received ineffective assistance of counsel during his trial
because, once the jury began its deliberations, his lawyer
abandoned him and was voluntarily absent from the trial
thereafter.
The case is here on remand from the Court of Appeals which
reversed this court's dismissal of the petition for failure to
exhaust state remedies. See Siverson v. DeRobertis, 705 F.2d 461
(7th Cir. 1983).*fn1
On November 6, 1979, the petitioner was convicted of robbery
and aggravated battery. He was sentenced to concurrent terms of
twelve years on the robbery charge and ten years on the battery
charge.
The petitioner's trial lasted two days. At approximately 5:40
p.m. on the second day, the jury began its deliberations. (Volume
III, R. 428.) At 9:10 p.m., the jury requested that the testimony
of two prosecution witnesses, Michael Carbone and Timothy
Carbone, be read back to them. The petitioner's attorney was not
present in the courtroom. The trial judge instructed the bailiff
to tell the jury that he would consult with counsel for both the
prosecution and the defense before agreeing to read back the
testimony. (Volume III, R. 429.) The record indicates that the
trial judge discussed the jury's request with the attorneys from
the State's Attorney's office and that they had no objection to
the reading back of the testimony of the Carbone witnesses. The
record further indicates that the petitioner's attorney was
contacted by the trial judge by telephone and that he had no
objection to the jury's request. Finally, the trial judge talked
with the petitioner and offered the petitioner the opportunity to
talk with his attorney over the telephone. The petitioner said
that he did
not wish to talk with his attorney and that he had no objection
to the reading back of the testimony of the two witnesses.
(Volume III, R. 430.) The court then brought the jury back into
open court and asked them if they had reached a verdict with
respect to any of the charges. When it was determined that they
had not, the court exercised its discretion and instructed the
Court Reporter to read back the testimony of the two Carbone
witnesses. (Volume III, R. 431-32.) The jury was then directed to
return to the jury room and resume deliberations.
At 9:45 p.m., the trial judge discussed, with the State's
Attorneys and the petitioner, the question of whether the jurors
should be allowed to continue deliberations or whether they
should be sent home for the night and ordered to resume their
deliberations the following morning. The petitioner's attorney
was not present. The State's Attorney suggested that the jury be
allowed to deliberate for at least another hour. The court stated
that this was "okay" and the petitioner stated that he had no
objection. (Volume III, R. 433.) The court, however, continued
its consideration of the issue and stated:
Well, I think at this time we will just let them
deliberate a while longer this evening and see what
happens. I realize there is a heavy volume of work to
be done and that there are eight Counts. I do not
want to make it appear coercive upon the Jury that
they must reach a verdict tonight. I would prefer
them to give their considered deliberation to it and
if I thought that that would be more likely to occur
tomorrow morning I guess I would be persuaded that we
should recess their deliberations at some stage this
evening.
MR. VOGEL: I agree with that, Your Honor. I would
suggest waiting another hour.
THE COURT: From recent experience I have had good
luck in terms of recessing deliberations and letting
the jury go home and then return to complete them on
the next day when the hour has been late, but we will
just let them go for the time being and see what
occurs.
At 11:07 p.m., the State's Attorneys and the petitioner were
still in the courtroom. The petitioner's defense counsel was
still not present. The court stated that it was going to propose
that it order the jury to cease its deliberations until 9:30 a.m.
the following morning and admonish them not to discuss the case.
Mr. Vogel, one of the prosecutors, asked the court to consider
asking the jury what they wanted to do. The court stated that it
would ask the jury whether or not they had reached a verdict. If
the jury had not reached a verdict, the court intended to ask
them if they could reach one within ten minutes. If they could
not, the court intended to send the home. (Volume III, R. 434.)
The petitioner then asked the judge if the State's Attorney was
going to make any additional statements to the jury. The State's
Attorney and the court informed the petitioner that no additional
statements would be made by the State's Attorney and that nobody
could talk to the jury. The court then asked the petitioner if he
had any comments as to the ...