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SIVERSON v. O'LEARY

February 14, 1984

CHARLES SIVERSON, PETITIONER,
v.
MICHAEL O'LEARY AND NEIL F. HARTIGAN,[FN*] RESPONDENTS.



The opinion of the court was delivered by: Baker, District Judge.

ORDER

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

I.

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:

THE COURT: Okay.

    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.

DEFENDANT: Yes, sir.

(Volume III, R. 433.)

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 ...


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