In the

United States Court of Appeals

For the Seventh Circuit

No. 07-4013

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHNNIE L. TAYLOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 06 CR 30114—David R. Herndon, Chief Judge.

ARGUED FEBRUARY 17, 2009—DECIDED JUNE 26, 2009

Before POSNER, KANNE, and WOOD, Circuit Judges.

KANNE, Circuit Judge. 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
2 No. 07-4013

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.

I. BACKGROUND

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
No. 07-4013 3

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 attor-
4 No. 07-4013

neys, 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 deadlocked 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.
No. 07-4013 5

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 building, where Taylor gave the gun to Dowell.

Knowing that a nearby apartment belonging to Laricka

Perkins, an uninvolved third party, would be unlocked,

Dowell took the gun and hid it in Perkins’s apartment.

On July 10, the jury returned a verdict of guilty as

charged in count one of the indictment. On December 6,

2007, the district court sentenced Taylor to seventy-eight

months’ imprisonment, followed by a three-year term of

supervised release. Taylor now appeals, citing concerns

related to both the mistrial declaration and the

admission into evidence of certain statements during

his second trial.

II. ANALYSIS

On appeal, we divide Taylor’s arguments according

to the trial to which they pertain. Taylor’s initial two
6 No. 07-4013

claims involve the mistrial declaration during his first

trial. His final claim relates to the admission of certain

evidence during his second trial. As we explain below,

we disagree with Taylor’s arguments on all fronts.

A. The Mistrial (Trial Number 1)

The Double Jeopardy Clause of the United States Constitution bars a defendant’s retrial unless the district court

declared a mistrial either (1) with the defendant’s

consent, or (2) because the declaration was manifestly

necessary. United States v. Combs, 222 F.3d 353, 358-59

(7th Cir. 2000); see also U.S. Const. amend. V; Arizona v.

Washington, 434 U.S. 497, 504-05 (1978) (discussing a

defendant’s “valued right to have his trial completed by

a particular tribunal” and stating that a prosecutor “is

entitled to one, and only one, opportunity to require

an accused to stand trial”). Taylor contests the district

court’s decision to declare the mistrial without his

consent and without finding manifest necessity and

claims that trial counsel was ineffective because the

attorney did not seek Taylor’s consent to the mistrial.

Neither claim withstands scrutiny.

1. The District Court’s Declaration of a Mistrial

A court may declare a mistrial if it determines that such

a declaration is “occasioned by manifest necessity.” Combs,

222 F.3d at 358-59. Such a determination is proper with or

without the defendant’s consent, see id., and need not be

made explicitly, see Camden v. Circuit Court of the Second
No. 07-4013 7

Judicial Circuit, 892 F.2d 610, 614 (7th Cir. 1989). A mistrial

is manifestly necessary only if the “scrupulous exercise

of judicial discretion leads to the conclusion that the

ends of public justice would not be served by a continuation of the proceedings.” Id. (quotations omitted).

We review a court’s decision to declare a mistrial for

an abuse of discretion. United States v. Vaiseta, 333 F.3d

815, 818 (7th Cir. 2003). Our review becomes even

more deferential in a situation such as this, where the

“manifest necessity” prompting the mistrial is a deadlocked jury. See id.; see also Washington, 434 U.S. at 509;

Williams v. Bartow, 481 F.3d 492, 500 (7th Cir. 2007) (noting

that the reviewing court applies varying degrees of scrutiny within the abuse-of-discretion standard depending

on the events precipitating the mistrial). Such deference

is warranted because the trial judge is in the best

position to balance the defendant’s interest in having a

given jury decide his fate against the public’s interest

in fair trials and just judgments. Vaiseta, 333 F.3d at 818.

In Vaiseta, we discussed several factors a court should

consider before declaring a mistrial due to a deadlocked

jury: (1) statements from the jury that it cannot agree;

(2) length of the deliberations; (3) length of the trial;

(4) complexity of the issues; (5) the jury’s communications

to the judge; and (6) the potentially prejudicial impact

of continued forced deliberations. Id. Here, although the

court never explicitly stated that it found the mistrial to

be of “manifest necessity,” the court clearly contemplated

each of the Vaiseta factors before it declared a mistrial,

a decision that we conclude was well within the bounds

of the court’s discretion.
8 No. 07-4013

First, the court had two written statements from the

jury indicating its inability to agree, one on June 20,

the second on June 21. Second, the court discussed both

the length of the presentation of evidence and the length

of the deliberations, noting that the evidence had taken

approximately six hours and that the jury deliberations

had been ongoing forten hours. Said the judge: “Just seems

like with six hours of testimony, with over ten hours,

thereabouts, of deliberation, that we’re not going to get

a different result.” Third, the judge expressed his opinion

that the single issue facing the jury—whether Taylor had

knowingly possessed the gun—was relatively simple.

Next, the jury’s communications made clear that it had

made little progress in three days; in fact, the jury’s

split had not changed since it began deliberating. And

finally, the judge explained his fear of coercing the jury

into a decision by requiring further deliberations. The

judge discussed each of these factors on the record

before announcing his decision to declare the mistrial.

We fail to see how such a measured decision, made with

ample information and full appreciation for the Vaiseta

factors, could be an abuse of discretion. Cf. United States v.

Jackson, 546 F.3d 465, 471 (7th Cir. 2008) (noting that a

judge must exercise his discretion, i.e., “consider[] the

factors relevant to that exercise,” before we accord his

decision deference).

On appeal, Taylor essentially asks us to substitute our

judgment for that of the district judge. He suggests, for

example, that the issue was not as simple as the court

believed and that the length of deliberations was not out

of proportion to the length of the evidence. Taylor argues
No. 07-4013 9

The Silvern instruction reads as follows: 1

The verdict must represent the considered judgment

of each juror. In order to return a verdict, it is necessary

that each juror agree thereto. Your verdict must be

unanimous.

It is your duty, as jurors, to consult with one another

and to deliberate with a view to reaching an agreement,

if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but

do so only after an impartial consideration of the

evidence with your fellow jurors. In the course of your

deliberations, do not hesitate to reexamine your own

views and change your opinion if convinced it is

erroneous. But do not surrender your honest conviction

as to the weight or effect of evidence solely because of

the opinion of your fellow jurors, or for the mere

purpose of returning a verdict.

You are not partisans. You are judges—judges of the

facts. Your sole interest is to ascertain the truth from

the evidence in the case.

484 F.2d at 883.

that the court should have ordered the jury to deliberate

“at least until lunch” and should have reread the Silvern

instruction, see United States v. Silvern, 484 F.2d 879, 883

(7th Cir. 1973), an instruction that we have held to be 1

content-neutral and non-coercive, United States v. Sanders,

962 F.2d 660, 676 (7th Cir. 1992) (quoting United States

v. Beverly, 913 F.2d 337, 352 (7th Cir. 1990)). But when

reviewing only for an abuse of discretion, second-guessing
10 No. 07-4013

the district court is something we will not do. See Am. Nat’l

Bank & Trust Co. of Chi. v. Reg’l Transp. Auth., 125 F.3d 420,

431 (7th Cir. 1997). A discretionary decision, as this one

was, implies a range of acceptable outcomes. See United

States v. Koen, 982 F.2d 1101, 1114 (7th Cir. 1992). So long

as the judge’s conclusion was within that range of outcomes, we will defer to his judgment, not substitute

our own. See id.; see also United States v. Souffront, 338

F.3d 809, 819 (7th Cir. 2003) (stating that when reviewing

for an abuse of discretion, this court will not second-guess

the trial judge’s decision or reweigh the evidence). Further,

even if we were to conduct a more searching analysis

of the court’s conclusions, we see no fault in the decision

it reached. As such, we hold that the district court’s

decision to declare a mistrial during Taylor’s first jury

trial was not an abuse of discretion. We turn now to

Taylor’s ineffective assistance of counsel claim.

2. Ineffective Assistance of Trial Counsel

Taylor next argues that he received ineffective

assistance of counsel because his attorney did not consult

Taylor before recommending to the court that it accept

the jury’s deadlocked position and declare a mistrial.

The test for ineffective assistance of counsel is well established. See Strickland v. Washington, 466 U.S. 668 (1984). To

prevail on such a claim, Taylor must show both (1) that

his trial counsel’s performance was objectively deficient;

and (2) that counsel’s deficiency prejudiced his defense.

Id. at 687; United States v. Shukri, 207 F.3d 412, 418 (7th Cir.

2000).
No. 07-4013 11

As a preliminary matter, we note our standard reluctance

to consider ineffective assistance of counsel claims on

direct appeal. United States v. Brooks, 125 F.3d 484, 495

(7th Cir. 1997). As we have said: 

[S]uch claims are very unlikely to find any factual

support in the trial record and an adverse determination on direct appeal will be res judicata in

any subsequent collateral attack. . . . [A] defendant

who presents an ineffective-assistance claim for

the first time on direct appeal has little to gain

and everything to lose.

United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997)

(citations and quotations omitted); see also Brooks, 125

F.3d at 495.

The undeveloped record in this case provides a

perfect example of why we typically decline to consider

ineffective assistance arguments for the first time on

direct appeal. Despite Taylor’s arguments to the contrary, there is no indication in the record whether

Taylor’s trial counsel consulted with him before suggesting to the court that it declare a mistrial. Due to the

strong presumption of counsel’s effectiveness, see Strickland, 466 U.S. at 689, if we were to express an opinion on

counsel’s performance based on such an incomplete

record, it would have to be in counsel’s favor. But we

need not make such a conclusive finding in this case, nor

need we defer our decision on this claim, because Taylor

fails to make the requisite showing of prejudice. Strickland’s two-part test requires both deficient performance

and prejudice, 466 U.S. at 687; requiring a more fully
12 No. 07-4013

developed record, therefore, would only delay the inevitable.

Courts may deny ineffective assistance of counsel

claims for lack of prejudice without ever considering the

question of counsel’s actual performance. Id. at 697; see, e.g.,

Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003);

Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001). To

demonstrate prejudice, Taylor must show “that the decision reached would reasonably likely have been different

absent the errors.” Strickland, 466 U.S. at 696. Taylor’s

entire argument, however, hinges on his trial counsel’s

purported deficiencies; he makes no claims related to the

prejudice he suffered. We presume this is because he

suffered none. As we have already discussed, the district

court, after careful consideration of the Vaiseta factors

and over the objection of the prosecution, implicitly

found a mistrial to be of manifest necessity. The court

did not need Taylor’s permission to make that decision,

and there is no reason to believe that an objection by

defense counsel, or even by the defendant himself, would

have changed the court’s conclusion. Absent the requisite

showing of prejudice, Taylor’s ineffective assistance of

counsel claim fails. We turn now to Taylor’s final argument.

B. Admissibility of Mary Weaver’s Statement (Trial

Number 2)

Finally, Taylor claims that the district court erred during

the second trial by admitting into evidence Mary

Weaver’s statement to Officer Schell that “he just took a
No. 07-4013 13

gun across the street.” Taylor bases this argument on

two grounds. First, he asserts that the evidentiary rules

against hearsay prohibited the admission of Weaver’s

statement. See Fed. R. Evid. 801-802. Second, he argues

that admitting Weaver’s statement without calling

Weaver herself to testify violated his constitutional right

to confront witnesses against him. See U.S. Const.

amend. VI. We find both arguments unavailing.

We typically review a district court’s decision to admit

statements into evidence for an abuse of discretion. United

States v. Akinrinade, 61 F.3d 1279, 1283 (7th Cir. 1995).

During trial, however, defense counsel raised no objections to the references to Weaver’s statement, limiting

our review to plain error. See United States v. Olano, 507

U.S. 725, 731 (1993); see also Fed. R. Crim. P. 52(b). Under

this standard, we will not reverse unless we find not

only an error, but an error “that is ‘plain’ and that

‘affect[s] substantial rights.’ ” Olano, 507 U.S. at 732 (alteration in original). Even in the presence of a plain error,

the decision whether to correct the error lies in our discretion, which the Supreme Court has instructed us not

to exercise “unless the error ‘seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.’ ” Id. (alteration in original) (quoting United

States v. Young, 470 U.S. 1, 15 (1985)).

We turn first to Taylor’s hearsay arguments. The

Federal Rules of Evidence prohibit the admission of

hearsay: out-of-court statements made by non-witnesses

that are offered to prove the truth of the matter asserted.

See Fed. R. Evid. 801-802; United States v. Breland, 356
14 No. 07-4013

F.3d 787, 792 (7th Cir. 2004). Here, Taylor challenges

numerous references made by Officer Schell and others to

Mary Weaver’s statement that “he just took a gun across

the street.” Such testimony created a potential hearsay

problem because neither side called Weaver to testify,

relying instead on other people to recount to the jury

Weaver’s statements. We find that the district court

committed no error because the challenged statement

did not satisfy the definition of hearsay.

We have recognized repeatedly that statements offered

to “establish the course of the investigation,” rather than

to prove the truth of the matter asserted, are nonhearsay

and therefore admissible. Akinrinade, 61 F.3d at 1283;

see also, e.g., Breland, 356 F.3d at 792; United States v.

Linwood, 142 F.3d 418, 425 (7th Cir. 1998); United States v.

Sanchez, 32 F.3d 1002, 1005 (7th Cir. 1994). But see United

States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (discussing, in the context of conversations between DEA agents

and their confidential informants, that “[a]llowing agents

to narrate the course of their investigations . . . would go

far toward abrogating the defendant’s rights under

the sixth amendment and the hearsay rule”).

Here, the references to Mary Weaver’s statement by

Schell, Cummings, and Hughes were offered to explain

their own actions in the course of their investigation—for

example, why they looked across the street, why they

questioned Mario Dowell, and why they handcuffed

Taylor when he approached. Indeed, Weaver’s statement was the jumping-off point for the entire investigation. Our conclusion might be different if, as in Silva, the
No. 07-4013 15

police were testifying to statements harvested from an

ongoing relationship with an informant, see 380 F.3d at

1019, but those are not the facts of this case; here, the

police were responding to a developing, potentially

dangerous situation. The government offered Weaver’s

statement in the context of the officers’ testimony to

explain the course of law enforcement’s investigation,

not as evidence that Taylor possessed the gun. The

district court, with no objections made by either party,

properly admitted the testimony as nonhearsay.

Turning, finally, to Taylor’s Confrontation Clause

argument, we again find no plain error. Absent “complicating circumstances,” such as a prosecutor who exploits

nonhearsay statements for their truth, nonhearsay testimony does not present a Confrontation Clause problem.

Lee v. McCaughtry, 892 F.2d 1318, 1325 (7th Cir. 1990); see

also Martinez v. McCaughtry, 951 F.2d 130, 133 (7th Cir.

1991) (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).

We are satisfied that there were no “complicating circumstances” here; thus, because the testimony by Schell,

Cummings, and Hughes was nonhearsay, nothing ran

afoul of the Confrontation Clause. See Martinez, 951 F.2d

at 133-34. Furthermore, given the other evidence in the

record of Taylor’s gun possession, namely, Mario

Dowell’s testimony, Taylor cannot claim that his “substantial rights” were affected. See Olano, 507 U.S. at 734

(stating that in most cases an error affects substantial

rights only if was prejudicial, i.e., it affected the outcome

of the proceedings); Akinrinade, 61 F.3d at 1283 (noting

the absence of a “miscarriage of justice” when reviewing

a Confrontation Clause claim for plain error).
16 No. 07-4013

III. CONCLUSION

For the foregoing reasons, we AFFIRM Taylor’s conviction.

6-26-09