Clark v. State

COLE, Judge. We granted certiorari in this case to determine whether a trial judge may forbid communication between counsel for co-defendants regarding matters of trial strategy. The parties have agreed to the following facts. Appellant, Steven Lamont Clark, and his co-defendant, Jonathan Hemphill, were indicted by a Baltimore City Grand Jury for various narcotic-related offenses.

Prior to trial, both defendants moved for severance, and the trial court denied both motions. During the voir dire examination of prospective jurors, the trial judge asked defense counsel whether they wanted to pool their peremptory challenges or exercise them individually. The following colloquy occurred: MR. KARCESKI [counsel for Hemphill]: We each have 20 challenges.l.[ 1 ] I am only saying I don’t want to do anything at this point to upset the system or to cause an unnecessary delay, but if we are going to have a problem, ⁴⁸⁵ I just don’t know whether we take a chance and go with it now or hope it works out.

If it doesn’t and we come up short, I think the court is well aware under [Dean v. State, 46 Md.App. 536 , 420 A.2d 288 (1980)], we have created a tremendous monster and the only way to rectify it is to begin again. I don’t want to commit myself, and I know the court is not asking us to do it, but I don’t want to commit myself to a certain number of challenges. We have 20, and I will do the best I can under the situation. THE COURT: Okay.

I will ask each defendant’s attorney to exercise his challenges and I will keep score on it. I just asked, are you going to consult with one another and pool and have 40 between you or each one exercise independently? MR. KARCESKI: I think we will exercise our independent right to challenge.

THE COURT: Then don’t confer with one another during the selection. Do it independently. You cannot. MR.

KARCESKI: I don’t think there is anything that forbids us from speaking— THE COURT: I am instructing you, you get 20 challenges, and you get 20 challenges. Let’s not play this game of saying you will exercise it independently, but yet you want to confer on it. MR. KARCESKI: I note my objection.

I will note my inability to comment on the court’s ruling at this point. THE COURT: Go ahead. MR. LYONS [Counsel for Clark]: I take exception to it.

Later during the course of the juror examination, defense counsel again complained that they had not been allowed to confer with each other: THE COURT: This is the first time I have been in trial where the defense counsel haven’t agreed to—perfectly all right to confer together, but you all don’t want to do that. I don’t see what difference it makes. You had 20 challenges, and you could confer. It doesn’t make any difference whether he takes 30 and you take 10 or not. ⁴⁸⁶ You each insisted on the 20, and if you do that, you will bite the spike— MR.

KARCESKI: Your Honor— THE COURT: I am not going to argue about it. MR. KARCESKI: The reason why I take 20 or we pool it, if I exhaust my challenges, I may have certain remedies in the appellate court that I don’t have if I don’t exhaust all my challenges. So, suppose we took 38, who are we to say we exhausted the challenges when it comes to whatever argument is left, and if the court rules, I think we did make an exception early on about a challenge for cause—maybe something else that escapes me for the moment.

So, I think each defendant is entitled to 20, and that is why I requested it on behalf of Mr. Hemphill. And I continue my request for mistrial, Your Honor. THE COURT: I will deny your request, both of you. The jury was selected, 2 and appellant was tried and convicted of possession of heroin.

The court imposed a sentence of three years imprisonment, all but one year suspended, and three years supervised probation to commence upon release. Clark appealed to the Court of Special Appeals and raised the sole issue of whether the court erred in refusing to allow counsel for Clark and for his co-defendant to confer. The intermediate court, in an unreported per curiam opinion, affirmed the trial court’s judgment. We issued our writ of certiorari to consider the important question presented.

Appellant contends that fundamental fairness and due process dictate that co-defendants who have been forced to accept the disadvantage of a joint trial may not be deprived of one of its few benefits—consultation between counsel for co-defendants on matters of trial strategy. He argues that the manner in which peremptory challenges are exercised is an important trial strategy, which is grounded in the “un ⁴⁸⁷ fettered” right of the defendant to his peremptory challenges. The State rejoins that because there was no statute or court rule which prohibited the trial court’s conduct, the court acted within its sound discretion. The State also maintains that appellant’s right to exercise his peremptory challenges was not impaired so as to deny him a fair trial.

In State v. Tichnell, 306 Md. 428 , 509 A.2d 1179 (1986), we said, Under the Sixth Amendment to the Constitution of the United States the accused in all criminal cases is entitled “to have the Assistance of Counsel for his defense.” Argersinger v. Hamlin, 407 U.S. 25, 27 , 92 S.Ct. 2006 [2007], 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 339 , 83 S.Ct. 792 [793], 9 L.Ed.2d 799 (1963). There is no distinction between the right to counsel guaranteed by the Sixth Amendment and Art. 21 of the Maryland Declaration of Rights which declares “ ‘That in all criminal prosecutions, every man hath a right ... to be allowed counsel____’ ” Harris v. State, 303 Md. 685 , 695 n. 3, 496 A.2d 1074 (1985). In McMann v. Richardson, 397 U.S. 759 , 771 n. 14, 90 S.Ct. 1441 [1449 n. 14], 25 L.Ed.2d 763 (1970), the Supreme Court said “that the right to counsel is the right to the effective assistance of counsel.” Our analysis in Tichnell was based upon the charge that counsel’s performance did not measure up to the proper standard of effective representation. In the case before us today, however, we are concerned with restrictions imposed by the court which are alleged to impede counsel in his effort to effectively assist the defendant.

As the Supreme Court stated in Herring v. New York, 422 U.S. 853, 857-58 , 95 S.Ct. 2550, 2553 , 45 L.Ed. 593 , 598 (1975): The right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the tradition of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments____ The right to the assistance ⁴⁸⁸ of counsel has thus been given a meaning that ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process. A fundamental characteristic of our system of justice is the guarantee that neither the court nor the state will impede counsel in his efforts to render effective assistance to the defendant. The Supreme Court has pointed out on numerous occasions that where counsel’s effectiveness is impaired by action of the court or the state placing a marked restraint upon counsél’s tactical or strategic judgment, the defendant’s right to assistance of counsel has been violated. In Herring, supra, for example, the Court, recognizing that “closing argument is a basic element of the adversary process in criminal trials,” held that a statute which denies such argument violates the sixth amendment right to assistance of counsel. 422 U.S. at 858 , 95 S.Ct. at 2553 , 45 L.Ed. at 598.

See also Yopps v. State, 228 Md. 204 , 178 A.2d 879 (1962). In Geders v. United States, 425 U.S. 80 , 96 S.Ct. 1330 , 47 L.Ed.2d 592 (1976), the Court held that where a defendant was deprived of his right to consult with his counsel during an overnight recess, defendant was denied his right to effective assistance of counsel. See generally Annot., 5 A.L.R.3d 1360 (1966) (discussing state court decisions on scope of accused’s right to communicate with his attorney). In Brooks v. Tennessee, 406 U.S. 605 , 92 S.Ct. 1891 , 32 L.Ed.2d 358 (1972), the Supreme Court held that a Tennessee statute which required that a defendant “desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case” was in violation of the sixth amendment right to the assistance of counsel.

The Court stated that: ⁴⁸⁹ Id. at 612 , 92 S.Ct. at 1895, 32 L.Ed.2d at 364. See also Ferguson v. Georgia, 365 U.S. 570 , 81 S.Ct. 756 , 5 L.Ed.2d 783 (1961) (holding that a statute which allowed a defendant to make an unsworn statement to the jury, but denied counsel the right to question the witness on direct examination denied the defendant the right to assistance of counsel). Justice O’Connor recounted the principle set forth by these