The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Petitioner Frederick Degraffenried's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 is before this Court. For the following reasons, the motion is denied.
On the evening of May 16, 2001, Nakia Stanley heard a gunshot in the lot next to her home and saw Fabian Patillo hobbling around the side of her home, in apparent pain. Stanley called 911. Chicago Police Department Officers Ken Cole and Daniel Parrilli responded and saw Frederick Degraffenried ("Petitioner") running from the scene with a sawed-off rifle. Officer Cole chased Petitioner into a building. Petitioner 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 Petitioner had taken the gun to hide it. Patillo was treated at Mount Sinai Hospital, where he identified the gun retrieved by Officer Cole as the gun with which he had shot himself. O'Donovan interviewed Petitioner, who confirmed that Patillo had shot himself and that Petitioner attempted to conceal the gun.
O'Donovan documented Petitioner'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 Progress 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 Petitioner's statement contained in the General Progress Report. After hearing testimony from Cole, O'Donovan, and Petitioner, this court denied the motion.
Prior to the trial testimony of O'Donovan, the prosecution moved in limine to prevent any cross-examination of O'Donovan regarding the timing of the prosecution's production of the General Progress Report to defense counsel. This court granted the motion.
The trial began on June 5, 2002 and finished at noon the following day. After approximately three hours of deliberations, the jury sent this court a note. This court 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 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." This court declined to divulge the entirety of the note, and 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, this court 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 officers' 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 counsels what they felt was the most appropriate action. The prosecution stated that the court's response to the note was proper. Defense counsel responded, "The only thing that I might have wanted was the Silvern instruction, just because the Silvern instruction includes the fact that the jurors should maintain their own personal beliefs, but I think it's a bit late for that." Petitioner was not present in the courtroom at 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 Petitioner 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 unregistered sawed-off rifle. Petitioner filed a motion for a new trial, which was denied. This court admitted error in discussing the note outside the presence of Petitioner, but found the error harmless. This court sentenced Petitioner to 262 months' imprisonment, with three years supervised release.
Petitioner appealed to the Seventh Circuit, contending that this court erred in not reading the jury note in its entirety immediately, that this court erred by discussing the note outside the presence of the Petitioner, and that this court improperly limited Petitioner's cross-examination of O'Donovan. The Seventh Circuit found that this court did not err in not reading the entirety of the note immediately, that the court's error in discussing the jury note without Petitioner present was harmless, and that this ...