Appeal from the United States District Court for the Southern District of Illinois. No. 06 CR 30114-David R. Herndon, Chief Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before POSNER, KANNE, and WOOD, Circuit Judges.
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 arguments, 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 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 government's evidence. We find no merit in Taylor's claims and now affirm.
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 whereabouts. Upon questioning by Hughes, Dowell admitted that Taylor had given him a gun and that he had hidden it for Taylor in a third party's apartment. Dowell then led the police to the gun's hiding place, where they recovered 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 requested 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 attorneys, the court sent the requested transcript excerpt of Chief Hughes's testimony and stated only, "Please consider 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.
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 government 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 apartment ...