Walker v. State

JAMES R. EYLER, J. This is an appeal from an order of the Circuit Court for Montgomery County, denying a petition for post-conviction relief, based on ineffective assistance of counsel, filed by LeBon Walker, appellant. Relying on United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), ²⁵⁸ appellant contends that the circuit court erred by failing to presume prejudice because of counsel’s lack of participation at trial. We hold that the circuit court was correct in concluding that Cronic did not apply in this case. Instead, the circuit court properly applied the two prong test announced in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and found that (1) appellant’s own conduct determined the strategy of his attorney, and (2) due to the overwhelming nature of the State’s evidence, appellant suffered no prejudicial effects from the actions of his attorney.

The circuit court correctly concluded that appellant’s ineffective assistance of counsel claim had no merit, and thus, we affirm the circuit court’s judgment. FACTUAL SUMMARY Appellant was charged by indictment with nine counts of theft over three hundred dollars and one count of conspiracy to commit theft. 1 Appellant was released on bond pending trial. Eight days prior to the beginning of trial, appellant absconded from the jurisdiction. 2 3 On January 13, 1993, the State filed a motion seeking a bench warrant. When appellant failed to appear for trial on January 18, 1993, the trial court granted the State’s motion to try him in absentia.

Appellant was tried by jury, in absentia, on January 18 through February 2, 1993.® Appellant’s counsel, Larry Greenberg, Esq. (“Mr. Green-berg”), declined to actively participate in the trial, expressing his view, based on conversations with appellant prior to the ²⁵⁹ day appellant absconded, that appellant could not get a fair trial. He continued: Moreover, in reviewing my conversations with my clients, and their view of the past history of the case, I unhesitatingly believe that they would not want me in any way to participate any further in this trial. I will not further validate these proceedings by my participation and I respectfully ask this court to excuse my appearance from this case.

If the court orders me to remain here, I will do so, but I shall not in any way participate further in the trial.” [4] After the State adduced testimony from forty-two (42) witnesses and introduced three hundred twenty-four (324) exhibits into evidence, appellant was convicted on all counts. Appellant was apprehended in Zambia nine months after the trial and was returned to the United States. On January 14, 1994, the circuit court sentenced appellant to a total of ²⁶⁰ twenty-four (24) years in prison, with credit for time served. 5 On March 4, 1994, appellant noted an appeal to this Court. Prior to this Court’s consideration of the case, the Court of Appeals, on its own motion, issued a writ of certiorari to address whether a trial court may permit a criminal trial to proceed in the defendant’s absence, if the defendant is informed of when the trial will begin and then fails to appear on that date.

The Court of Appeals affirmed appellant’s convictions, rejecting his claim that the trial court erred by trying him in absentia. Walker v. State, 338 Md. 253, 261 , 658 A.2d 239 (1995), cert. denied, 516 U.S. 898 , 116 S.Ct. 254 , 133 L.Ed.2d 179 (1995). Appellant’s claims of ineffective assistance of counsel were not addressed by the Court because they had not been raised and decided in the trial court. Id.

On July 31, 2003, the court conducted a hearing on appellant’s petition for post-conviction relief. At the end of the hearing, the court orally denied post-conviction relief, and on September 3, 2003, executed an order to that effect. On October 2, 2003, appellant filed an application for leave to appeal the denial of post-conviction relief, which was denied by this Court on April 26, 2004. . Appellant filed a motion to reconsider on May 4, 2004.

By order dated August 23, 2004, this Court granted the application and transferred the case to the regular appeal docket. Appellant’s ineffective assistance of counsel argument is presented in two parts. First, appellant argues that Mr. Greenberg’s failure to subject the State’s case to “meaningful adversarial testing,” and his silence throughout the trial, amounted to the constructive denial of counsel. Second, appellant argues that Mr. Greenberg’s silence constituted structural error warranting a new trial.

DISCUSSION Standard of Review The question whether appellant is entitled to a presumption of prejudice is a question of law. In the absence of ²⁶¹ such a presumption, the two part test described in Strickland governs, and the appropriate standard of review is that articulated in State v. Jones, 138 Md.App. 178, 209 , 771 A.2d 407 (2001), aff'd, 379 Md. 704 , 843 A.2d 778 (2004): The standard of review of the lower court’s determinations regarding issues of effective assistance of counsel “is a mixed question of law and fact.... ” ... We “will not disturb the factual findings of the post-conviction court unless they are clearly erroneous.” ... [T]he appellate court must exercise its own independent judgment as to the reasonableness of counsel’s conduct and the prejudice, if any.... Within the Strickland framework, we will evaluate anew the findings of the lower court as to the reasonableness of counsel’s conduct and the prejudice suffered....

As a question of whether a constitutional right has been violated, we make our own independent analysis by reviewing the law and applying it to the facts of the case. Id. at 209, 771 A.2d 407 (citations omitted). I. Ineffective Assistance of Counsel Our analysis on this issue is best accomplished in two steps. First, we must determine whether the circuit court erred in not presuming ineffectiveness.

If we conclude that the circuit court did not err in that regard, although not argued on appeal, we shall address whether the circuit court correctly applied the Strickland standard to the facts of the case. A. The Right to Counsel Generally The right of criminal defendants to effective legal counsel is guaranteed in both the Sixth Amendment of the United States Constitution 6 and Article 21 of the Maryland ²⁶² Declaration of Rights. 7 Lawyers in criminal cases “are necessities, not luxuries.” Gideon v. Wainwright, 372 U.S. 335, 344 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963). Without the presence of an attorney to safeguard the defendant’s rights, “the right to a trial itself would be ‘of little avail.’ ” Cronic, 466 U.S. at 653 , 104 S.Ct. 2039 (quoting Powell v. Alabama, 287 U.S. 45, 53 , 53 S.Ct. 55 , 77 L.Ed. 158 (1932)). Unless the defendant receives the effective assistance of counsel, “a serious risk of injustice infects the trial itself.” Cuyler v. Sullivan, 446 U.S. 335, 343 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980).

The State violates a defendant’s right to effective assistance of counsel when it interferes with the ability of a defendant’s attorney to make independent decisions as to how to conduct the defense. Strickland, 466 U.S. at 686 , 104 S.Ct. 2052 . The Supreme Court addressed this issue on several occasions prior to issuing its decision in Strickland. See id.

(discussing previous ineffective assistance cases). An attorney himself, however, can also deprive a defendant of the right to effective counsel by failing to render adequate legal assistance. Id. This class of cases, presenting claims of actual ineffectiveness, occur more frequently, and were definitively addressed by the Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

See Wiggins v. State, 352 Md. 580, 603 , 724 A.2d 1 (1999), cert. denied, 528 U.S. 832 , 120 S.Ct. 90 , 145 L.Ed.2d 76 (1999); Oken v. State, 343 Md. 256, 283 , 681 A.2d 30 (1996), cert. denied, 519 U.S. 1079 , 117 S.Ct. 742 , 136 L.Ed.2d 681 (1997); Bowers v. State, 320 Md. 416, 423 , 578 A.2d 734 (1990). There, the Court stated, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. In Strickland , the Supreme Court established a two-part test for determining whether counsel was ineffective: ²⁶³ First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687 , 104 S.Ct. 2052 . Thus, under Strickland\ a defendant must establish both unreasonable performance by counsel and prejudice to his defense in order to succeed in a post-conviction action.

B. The Presumption of Ineffectiveness Appellant argues that the post-conviction court should have presumed that Mr. Greenberg was ineffective because of his non-participation at trial. Appellant maintains that applying the Strickland standard, instead of the presumption of ineffectiveness analysis described in United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), constituted reversible error. Before discussing Cronic , we note that the Supreme Court recognized in Strickland that both prongs of the ineffectiveness test, deficiency and prejudice, could be presumed in certain cases. 466 U.S. at 692, 104 S.Ct. 2052 . The presumption of ineffectiveness is very limited, however, and includes only those cases where a defendant is actually or constructively denied counsel altogether, or where the state actively interferes with counsel’s consultation with or representation of a defendant.

Id. In many cases where ineffectiveness is presumed, the State is either directly responsible for the harm suffered by the defendant, or else could have easily prevented the harm, but failed to do so. Id. The Strickland Court also identified cases in which counsel has an actual conflict of interest as a third type of case in which there is a limited presumption of ineffectiveness.

Id. In that situation, however, prejudice is presumed if the defendant is able to demonstrate that the conflict caused a deficiency in performance. Id. ²⁶⁴ Accord, Smith v. Robbins, 528 U.S. 259, 287 , 120 S.Ct. 746 , 145 L.Ed.2d 756 (2000). In Cronic , the Tenth Circuit Court of Appeals reversed a conviction, based on the overall circumstances, utilizing a presumption of ineffective assistance of counsel.

The defendant in Cronic was represented by a young lawyer with a real estate practice who had never tried a jury case before. 466 U.S. at 648, 104 S.Ct. 2039 . The district court appointed the attorney to represent the defendant only twenty-five (25) days before trial, even though the government had been preparing the case for four and a half (4$) years. Id. The Supreme Court reversed, holding that no presumption of ineffectiveness was applicable, and remanded the case to the state court for a determination of actual ineffectiveness under Strickland.

Id. at 667, 104 S.Ct. 2052 . The Cronic Court recognized in dicta that, when counsel is denied at a critical stage of the proceedings, ineffectiveness may be presumed. Id. at 659 , 104 S.Ct. 2039 . The Court further explained, “[similarly, if counsel entirely fails to subject the prosecutions’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Id. “There are circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. at 662 , 104 S.Ct. 2039 .

In Smith v. Robbins, 528 U.S. 259, 284-289, 120 S.Ct. 746 , 145 L.Ed.2d 756 (2000), the Supreme Court reiterated the three categories of cases in which ineffectiveness is presumed. Id. at 287 , 120 S.Ct. 746 . The categories in Smith were drawn directly from Strickland: denial of counsel, “various kinds of state interference with counsel’s assistance,” and “when counsel is burdened by an actual conflict of interest.” Id. (citing Strickland, 466 U.S. at 692 , 104 S.Ct. 2052 ).

The Court further elaborated on presumed prejudice in its decision in Mickens v. Taylor, 535 U.S. 162, 166 , 122 S.Ct. 1237 , 152 L.Ed.2d 291 (2002). In Mickens , the Court again stated that the Cronic exception to case-by-case inquiry applies only when ²⁶⁵ assistance of counsel has been denied entirely, or during a critical stage of the proceeding, or when defendant’s attorney actively represented conflicting interests. The Maryland Court of Appeals first addressed the presumption of ineffectiveness in Redman v. State, 363 Md. 298 , 768 A.2d 656 (2001). The Redman Court quoted a case from the First Circuit stating, [T]he approach suggested [by Cronic ] is in all events the exception, not the rule — and it can be employed only if the record reveals presumptively prejudicial circumstances such as an outright denial of counsel, a denial of the right to effective cross-examination, or a complete failure to subject the prosecution’s case to adversarial testing.

The Cronic Court itself warned that, in most cases a showing of actual prejudice remained a necessary element. The Court stated: “there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” Id. at 311, 768 A.2d 656 (quoting Scarpa v. DuBois, 38 F.3d 1, 12 (1st Cir.1994) (citations omitted)). The Redman Court declined to presume prejudice when an attorney in a capital murder case failed to inform his client of a defendant’s absolute right to removal to a different court under the state constitution. Id. at 313 , 768 A.2d 656 .

The Court stated that trial counsel’s failure to inform Petitioner óf his constitutional right to automatic removal, without more, does not necessarily render the resulting criminal trial fundamentally unfair or unreliable. Unlike counsel’s absence during a critical part of the trial or counsel remaining silent throughout the trial, failing to remove a trial is not a circumstance “so likely to prejudice the accused that the cost of litigating [its] effect in a particular case is unjustified.” Id. (emphasis in original) (citing Cronic, 466 U.S. at 658 , 104 S.Ct. 2039 ). Courts have specifically applied the Cronic presumed ineffectiveness exception in cases in which the defendant was ²⁶⁶ entirely unrepresented, 8 in which defense counsel fulfilled none of the functions of an attorney, 9 and in which defense counsel was absent from the courtroom during a critical stage of the trial. 10 As previously noted, even before Cronic , the Supreme Court found error without any showing of ineffectiveness when counsel was absent, 11 or was otherwise prevented from assisting the accused during a critical stage of the defense. 12 Cronic has also been applied in the sleeping lawyer ²⁶⁷ context, when an attorney was physically present but asleep during important parts of the trial. 13 C. The Applicable Legal Standard Appellant argues that, under Cronic , prejudice should be presumed as a result of his attorney’s resolution to “not in any way participate” in appellant’s trial.

The Supreme Court observed in Cronic that the right to effective counsel is the right of the accused to require the government’s case “to survive the crucible of meaningful adversarial testing.” Cronic, 466 U.S. at 656 , 104 S.Ct. 2039 . “[I]f the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” Id. at 657 , 104 S.Ct. 2039 . Appellant analogizes this case to other cases, discussed above, in which trial counsel was absent, intoxicated, asleep, or refused to participate. He alleges that trial counsel’s lack of activity on his behalf had the same effect as if there had been no attorney in the courtroom. ²⁶⁸ Maryland has not considered an ineffective assistance case in which an attorney has remained silent throughout a trial. We are guided by precedents established by the Supreme Court and persuaded by the interpretations of other state and federal courts. 1.

Smith v. Robbins, 528 U.S. 259 (2000) In Smith v. Robbins, the Supreme Court reiterated the three categories of cases in which ineffectiveness, or at least prejudice, should be presumed. 528 U.S. at 284-89 , 120 S.Ct. 746 . Ineffectiveness should be presumed if counsel is denied or the state interferes with counsel’s assistance, and prejudice should be presumed if counsel is burdened by an active conflict of interest. See id. at 287 , 120 S.Ct. 746 . None of those conditions is satisfied in this case.

Clearly, appellant was not denied counsel. Mr. Greenberg had more than six months to consult with appellant and prepare arguments prior to the trial date, and did, in fact, speak to appellant about the case on several occasions. Prior to the beginning of the trial, Mr. Greenberg argued strenuously against trying appellant in absentia. Once the trial began, Mr. Greenberg was present in the courtroom, awake and sober, throughout the entire trial process.

The State did not interfere with counsel’s assistance in any way. Mr. Greenberg was fully prepared to try the case. Appellant does not allege that he was prevented by the State from consulting with Mr. Greenberg in any way, or at any time, before, during, or after the trial. Mr. Greenberg never testified to any conflict of interest at the post-conviction hearing, nor does appellant argue that a conflict of interest existed.

Therefore, this case does not fall into one of the three categories of cases in which the Supreme Court has determined that ineffectiveness or prejudice should be presumed. 2. Warner v. Ford, 752 F.2d 622 (11th Cir.1985) The Eleventh Circuit Court of Appeals decision in Warner v. Ford, 752 F.2d 622 (11th Cir.1985), is persuasive. In ²⁶⁹ Warner , the Eleventh Circuit specifically addressed the Sixth Circuit’s decision in Martin v. Rose, 744 F.2d 1245 (6th Cir.1984). 14 In Warner , the Eleventh Circuit considered a claim of ineffective assistance of counsel in a case involving defense counsel’s silence during the defendant’s trial. The defendant in Warner was convicted of four counts relating to an armed robbery.

Two co-defendants were tried in the same proceeding with the defendant in that case. Defendant’s attorney did not actively participate in the trial, except to move for a directed verdict on one count, request a mistrial three times, and to recommended that his client not take the witness stand when he was called by his co-defendants to testify in their defenses. Id. at 624 . In finding that Warner was not entitled to a presumption of prejudice, the Eleventh Circuit acknowledged the Sixth Circuit decision in Martin , but distinguished Warner’s case on five grounds: (1) Martin denied the charges against him in subsequent proceedings; 15 (2) the testimony of complaining witnesses against Martin was subject to question; 16 (3) Martin was a single defendant, while Warner was one of three co- ²⁷⁰ defendants; (4) the evidence against Martin was not as great as that against Warner; and (5) Martin’s defense counsel was not prepared at the time of the trial, while Warner’s attorney professed to be ready to proceed.

Id. at 624-25. After making these distinctions, the Eleventh Circuit further elaborated upon the relevant inquiry as to whether counsel’s decision to stand mute during the trial would warrant a presumption of prejudice: Silence can constitute trial strategy. Whether that strategy is so defective as to negate the need for a showing of prejudice to establish ineffective assistance of counsel must be judged on a case-by-case basis. Washington has established that courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, [466] U.S. at [688-91], 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95.

Thus, in order for a petitioner with an ineffective assistance of counsel claim to prevail over his former counsel’s assertion of strategy, he must “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (citation omitted). Warner, 752 F.2d at 625 . The facts in this case are more similar to the facts of Warner than the facts of Martin .

Though Walker professed his innocence before trial, and continues to deny that he was guilty of the charges brought against him, the documentary and testimonial evidence against him was “overwhelming.” Appellant was one of three co-defendants, and though his own attorney did not actively participate in trial, counsel for Ms. Hall did challenge the case presented by the State. Finally, Mr. Greenberg had six months to prepare for the trial. He received “voluminous” discovery, and discussed the case with his client several times prior to appellant’s flight from the country. Furthermore, Mr. Greenberg testified that he was prepared to actively represent appellant at trial, but chose not to deliberately because of appellant’s absence.

Under the ²⁷¹ reasoning of the Eleventh Circuit set forth in Warner , prejudice should not be presumed in this case. 3. United States v. Sanchez, 790 F.2d 245 (2d.Cir.1986) The case before us can be distinguished from other cases in which courts presumed prejudice by the fact that appellant was tried in absentia after absconding from the country to avoid going to court. Appellant had full knowledge of the date and time of his trial, yet chose not to appear. Appellant’s obstructive conduct, which necessitated that he be tried in absentia, was the reason Mr. Greenberg adopted a strategy of silence, obviously hoping for a reversal on direct appeal.

Appellant now complains that the strategy he forced Mr. Greenberg to adopt constituted ineffective assistance of counsel. The post-conviction court relied on the reasoning expressed by the Second Circuit Court of Appeals in United States v. Sanchez, 790 F.2d 245 (2d. Cir.1986), cert. denied, 479 U.S. 989 , 107 S.Ct. 584 , 93 L.Ed.2d 587 (1986), to support its decision not to apply the Cronic presumed prejudice standard. In Sanchez , as here, the trial court ruled that Sanchez be tried in absentia after he failed to appear for trial.

Id. at 248 . Defense counsel’s “limited defense activity” in the case consisted solely of moving for judgment of acquittal and objecting twice to the court’s jury instruction regarding Sanchez’s absence. Id. at 248, 253 . The Second Circuit rejected Sanchez’s claim of ineffective assistance of counsel, noting, in part, that the defense attorney had not remained silent, but, rather, had “in fact participated by objecting to the trial in absentia and to the flight instruction and by moving for judgment of acquittal.” Id.

Doing this and nothing more, the Court concluded, constituted trial strategy. Id. In rendering its decision in the case at bar, the circuit court quoted Sanchez , stating, “[appellant’s] own obstructive conduct precluded his attorney from pursuing an intelligent active defense.” The court hesitated to reverse the judgment in this case for fear that such a decision would essentially “reward ²⁷² [appellant] by allowing him to intentionally sabotage his own defense.” 17 4. Walker v. State, 338 Md. 253 (1995) Though the Court of Appeals did not decide the issue of ineffective assistance of counsel, instead advising that such a claim should be brought in a post-conviction action, we cannot discount the guidance offered in the Court of Appeals opinion deciding the first appeal in this case.

There, acknowledging ²⁷³ appellant’s assertion that Mr. Greenberg’s “silent strategy” constituted ineffective assistance, the Court of Appeals stated “Walker ... had a lawyer representing [him] at trial. Green-berg expressly stated that his non-participation served the wishes and the best interests of his clients .... we will not ignore the fact that there was a lawyer in the courtroom on the appellant’s behalf.” Walker, 338 Md. at 261 , 658 A.2d 239 . We, too, refuse to ignore that Mr. Greenberg consciously adopted a trial strategy. The presumption discussed in Cronic and other cases is a