Wooten-Bey v. State

ROSALYN B. BELL, Judge. Ronald Nathaniel Wooten-Bey was convicted by a jury in the Circuit Court for Prince George’s County of felony murder, attempted robbery with a deadly weapon, and the use of a handgun in the commission of a crime of violence. 1 The trial court imposed sentences of life imprisonment and 20 years, to be served consecutively. 2 Wooten-Bey raises the following issues on appeal: —Was it reversible error for the trial court to deny Wooten-Bey access to his counsel during a luncheon recess? ⁶⁰⁷ —Did the trial court improperly advise Wooten-Bey about his right not to testify? —Did the trial court strike prospective jurors for cause without a sufficient basis? —Should the trial court have admitted evidence offered by the defense purportedly showing that Wooten-Bey voluntarily surrendered? —Did the trial court improperly restrict the cross-examination of a prosecution witness? —Were the trial court’s jury instructions incorrect and biased in the prosecution’s favor? —Does the rule of lenity operate so as to prevent Wooten-Bey’s conviction of both conspiracy to rob and attempted robbery with a deadly weapon? We affirm, and hold that Wooten-Bey received a fair trial. We explain, addressing each issue raised by Wooten-Bey in the order in which it appears above.

Facts relevant to each issue will be provided as necessary. RIGHT TO COUNSEL Appellant testified in his own defense. Near the close of his direct testimony, appellant’s attorney asked the trial judge if appellant could continue his direct testimony after the luncheon recess: “MR. CHRISTMAS [appellant’s attorney]: Your Honor, I think I have about five more minutes, but I’m not sure.

May I inquire if we might take a luncheon break, and I can finish within five minutes. I may have even less then [sic] that, if that is agreeable? “THE COURT: All right. [Jury Foreman], and ladies and gentlemen, we will indeed break until 1:30 for lunch. In case he’s fooling, normally I don’t break until 1:15, but I’ve already ordered the jail cases to be here at 1:00. All right.

Mr. Wooten-Bey, you are a sequestered witness sir, which means you may not now discuss with anybody, including Mr. Christmas anything about your testimony on the witness stand, because you are sequestered. ⁶⁰⁸ “MR. CHRISTMAS: I think I do have the right to talk about what I may ask him. “THE COURT: Under no circumstances may you talk to a witness under oath on the witness stand. You, or Mr. Harvey [State’s Attorney], or anybody. That witness is sequestered, and under oath, and going through their testimony.

As opposed to a sequestered witness outside, you can talk to. But not once the witness is sequestered by the oath, they’re not to be approached by anybody. And with that, we’ll—please keep the admonitions in mind, [jury foreman], and ladies and gentlemen, and we’ll recess for lunch until 1:30.” The trial judge then qualified this statement, 3 telling defense counsel that he was not forbidding all consultation between appellant and his attorney during lunch, only consultation concerning appellant’s “prospective testimony.” When the trial court reconvened after lunch, appellant’s attorney had only two brief questions for his client before finishing his direct examination. 4 Cross-examination and redirect then ensued. After the prosecutor had completed his recross-examination, appellant’s attorney informed the trial court that, although he wished to rest the defense, appellant wanted to resume the stand because he felt he had been “rushed” through his testimony.

The trial judge excused the jury for a recess and the following colloquy took place: “THE COURT: Well, now that he’s off the stand, Mr. Christmas, how about taking the opportunity, if you feel ⁶⁰⁹ it will be fruitful, of talking with him, and see what it is he wants to say, for the purpose of being able to advise him only. Not for advising me. That would be strictly confidential, what he tells you, and what you tell him. And then if he still feels that way, I’ll inquire of him.

If that is what he wants to do, the State says they have no objection. I’ll let him do it. It’s his trial. But I’ll talk to him like a Dutch Uncle first.

You want to talk to him ...? “MR. CHRISTMAS: Yes. “THE COURT: Why don’t I take a five minute recess, so you can talk to the man, and maybe I can help out the situation too.” When the trial court reconvened after appellant and his attorney had conferred, appellant no longer wished to retake the witness stand, and the defense rested. Appellant was convicted by the jury, and defense counsel filed a motion for a new trial, claiming, inter alia, that the trial judge had denied appellant his Sixth Amendment right to consult with counsel. We agree with appellant that the trial judge erred in imposing any restriction on appellant’s right to consult with his attorney during the luncheon recess.

We decline, however, to impose a per se rule of reversal where the denial of access was brief, limited in scope, and where the trial judge gave counsel and appellant time to confer when it became apparent that they needed to do so, thus curing any constitutional defect. In Geders v. United States, 425 U.S. 80, 91 , 96 S.Ct. 1330, 1336 , 47 L.Ed.2d 592 (1976), the Supreme Court held that a trial judge’s order denying the defendant all access to his attorney during a 17-hour overnight recess violated the defendant’s constitutional right to counsel. The Court explicitly declined to reach the question of whether a denial under other circumstances (presumably during circumstances involving a shorter period of time) would violate a defendant’s constitutional rights. ⁶¹⁰ In Geders , the Court stated that witness sequestration orders could not be applied to a defendant in the same manner in which they could be applied to nonparty witnesses: “But the petitioner was not simply a witness; he was also the defendant. A sequestration order affects a defendant in quite a different way from the way it affects a nonparty witness who presumably has no stake in the outcome of the trial.

A nonparty witness ordinarily has little, other than his own testimony, to discuss with trial counsel; a defendant in a criminal case must often consult with his attorney during the trial. Moreover, ‘the rule’ accomplishes less when it is applied to the defendant rather than a nonparty witness, because the defendant as a matter of right can be and usually is present for all testimony and has the opportunity to discuss his testimony with his attorney up to the time he takes the witness stand.” Geders, 425 U.S. at 88 , 96 S.Ct. at 1335 . The Geders court found that there were methods other than a deprivation of counsel to accomplish the intended goal of a witness sequestration order. One method is a skillful cross-examination designed to elicit signs of witness coaching.

The evidence of coaching may then be incorporated into an opposing party’s closing argument. Geders, 425 U.S. at 89-90 , 96 S.Ct. at 1335-1336 . The method most important for our analysis here is trial court control of the timing of a defendant’s testimony. Geders, 425 U.S. at 90-91 , 96 S.Ct. at 1336-1337 .

In holding that the 17-hour deprivation required a new trial for the defendant, the Geders court reversed the decision of the Court of Appeals for the Fifth Circuit, which had held that the defendant’s failure to claim that he was prejudiced by his inability to consult with his counsel was fatal to his appeal. Geders, 425 U.S. at 86 , 96 S.Ct. at 1334 . Implicit in the Geders holding, therefore, is that prejudice need not be shown where the deprivation has been complete and of 17-hour duration. ⁶¹¹ The question of whether a per se rule requiring reversal and retrial should be automatically applied for any deprivation of the right of a criminal defendant to consult with his attorney has not been answered by the Supreme Court. Nor has this precise question been addressed by the Court of Appeals of Maryland.

The United States Court of Appeals for the Fourth Circuit has held, however, that it would not apply a per se rule of reversal where the deprivation occurred during a 15-minute recess, and where it had been shown that the defendant had been well represented by competent counsel throughout the proceedings, and where he had not been denied access to his attorney during numerous other recesses. Perry v. Leeke, 832 F.2d 837, 845 (1987). 5 Although we are not bound by an interpretation of the federal constitution made by the Fourth Circuit, see United States ex. rel. Lawrence v. Woods, 432 F.2d 1072, 1076 (7th Cir.1970), cert. denied, 402 U.S. 983 , 91 S.Ct. 1658 , 29 L.Ed.2d 148 (1971), we are persuaded by the analysis contained in Perry , finding it in keeping with the Supreme Court’s view expressed in Geders . The facts in the instant case are even more similar to those in Perry than to those in Geders .

The defendant in Perry was on the witness stand and had completed direct testimony when the trial judge ordered a 15-minute recess. Perry’s attorney tried to speak to Perry during the recess in order to advise him of his rights on cross-examination. The trial judge refused to allow the consultation because of concern that Perry would be coached. Perry, 832 F.2d at 839 .

In holding that this denial of the right to counsel did not mandate reversal, the Fourth Circuit stated that its previous position that it was always reversible error for a trial judge to prevent a defendant and attorney from consulting, United States v. Allen, 542 F.2d 630 (4th Cir.1976), cert. ⁶¹² denied, 430 U.S. 908 , 97 S.Ct. 1179 , 51 L.Ed.2d 584 (1977), and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907 , 103 S.Ct. 1879 , 76 L.Ed.2d 810 (1983), was no longer viable in light of the Supreme Court’s reasoning in United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), and Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 reh’g denied, 467 U.S. 1267 , 104 S.Ct. 3562 , 82 L.Ed.2d 864 (1984). Strickland and Cronic both concerned claims of ineffective assistance of counsel. In these cases, the Supreme Court held that the analysis of claims alleging a denial of assistance of counsel must center on prejudice because the purpose behind the Sixth Amendment is to ensure that criminal defendants receive a fair trial. Cronic, 466 U.S. at 658 , 104 S.Ct. at 2046 .

Therefore, “the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Strickland, 466 U.S. at 696 , 104 S.Ct. at 2069 . A complete denial of counsel during a critical stage of trial, however, will mandate automatic reversal. Cronic, 466 U.S. at 659 and n. 25, 104 S.Ct. at 2047 and n. 25. The standard is whether the defendant received a fair trial in which “evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Strickland, 466 U.S. at 685 , 104 S.Ct. at 2063 .

Counsel’s assistance must be such as to “justify reliance on the outcome” of the defendant’s trial. Strickland, 466 U.S. at 692 , 104 S.Ct. at 2067 . The Perry Court found that it made little sense to distinguish between situations involving ineffective assistance of counsel and those involving a brief denial of counsel, stating that ineffective assistance of counsel throughout a trial “is far more likely to have a prejudicial effect than the deprivation at issue here.” Additionally, it noted that the Supreme Court had blurred any distinction by describing Geders in later opinions as both a denial of counsel case, and as a case involving ineffective assistance of counsel. Perry, 832 F.2d at 841 . ⁶¹³ The Perry Court, quoting Rose v. Clark, 478 U.S. 570 , 106 S.Ct. 3101 , 92 L.Ed.2d 460 (1986), stated that “[a] per se rule of reversal is ‘the exception and not the rule’ under any circumstances.” Perry , at 842.

Such a rule is only warranted where the error is of the type that threatens the overall reliability of the trial. One of the major concerns of the Perry Court in imposing a per se rule in all situations involving even a brief denial of counsel was the high administrative and emotional price to be paid. The passage of time makes it difficult to find witnesses who have retained a clear memory of events, and makes a second prosecution problematical. “Even if an effective retrial is possible, it imposes enormous costs on courts and prosecutors, who must commit already scarce resources ‘to repeat a trial that has already once taken place.’ It imposes costs on victims who must ‘relive their disturbing experiences.’ While ‘prejudicial error’ would require a retrial regardless of the inconvenience, those who participated in the initial proceedings should not be compelled to confront these dreadful events a second time if the first trial has been fair. Retrials, moreover, may lack the reliability of the initial trial where witness testimony was unrehearsed and witness recollections were more immediate.” Perry, 832 F.2d at 843 (citations omitted).

The Court in Perry went on to determine that Perry had suffered no prejudice because he had failed to show that the brief deprivation altered his performance on cross-examination. The trial record before the Perry Court indicated that Perry “took full advantage of his rights on cross-examination and placed his version of events before the jury.” Perry, 832 F.2d at 843 (footnote omitted). Other factors, such as the overwhelming nature of the physical evidence against Perry, the vigor and competence of Perry’s attorneys, the brief duration of the deprivation, and the fact that there was no other claimed defect in the long trial persuaded the Court that Perry received a fair trial even if the 15-minute deprivation was error. Perry, 832 F.2d at 844 . ⁶¹⁴ In Clark v. State, 306 Md. 483 , 510 A.2d 243 (1986), cert. denied, 479 U.S. 1084 , 107 S.Ct. 1286 , 94 L.Ed.2d 144 (1987), the Court held that prejudice need not be proved where the trial court prohibited consultation between defendant’s counsel and counsel for co-defendant regarding their joint exercise of peremptory challenges.

The Court went on to state, however, that the State may show that the deprivation was harmless beyond a reasonable doubt. The Court in Clark held that the trial court’s error impaired the defendant’s right to effective assistance of counsel because “effective representation means representation in which the attorney is unhindered in the lawful pursuit for knowledge which might benefit the client.” Clark, 306 Md. at 489 , 510 A.2d 243 . In the instant case, although the trial judge erred in denying appellant access to his attorney during the luncheon recess, the error was cured. When the court reconvened, the trial judge called a brief recess expressly for counsel to confer with his client.

It is evident that the conference was fruitful because afterward appellant no longer wished to prolong his testimony. Appellant would also have had time during this conference to ask any questions he had concerning his rights. We are unpersuaded that the trial judge’s error in denying appellant access to his attorney in the instant case threatened the reliability of the trial. As in Perry , it is clear that appellant had an opportunity to and did confer with his counsel during other court recesses.

The record reveals that appellant’s attorney made diligent defense efforts for his client, including a fully argued new trial motion based on the deprivation. 6 As in Perry , appellant ⁶¹⁵ had a sufficient opportunity to present his story to the jury. The trial record shows that appellant testified at length, and was an articulate witness. Again, as in Perry , there was ample evidence from which the jury could find appellant guilty of the charge. Appellant did not deny that the shooting occurred and that he was present at the time.

The handgun involved was found in appellant’s car. Other witnesses testified to appellant’s involvement. The jury in the instant case also had appellant’s written statement to consider, his flight from the scene, and his failure to go to the hospital for treatment of his gunshot wound. Appellant was admittedly deprived of his right to counsel for a longer period of time than was the defendant in Perry .

In Geders , the Court did not require that prejudice be shown primarily because of the length of the deprivation and strategic importance of overnight consultation before the next day’s trial. Geders, 425 U.S. at 88 , 96 S.Ct. at 1835 . The hour-long deprivation here does not rise to the level where prejudice to appellant’s case can be presumed, as it was in Geders . Moreover, in the instant case, the trial judge remedied the deprivation by calling a recess for consultation shortly after lunch.

As pointed out in Geders, 425 U.S. at 90 , 96 S.Ct. at 1336 , a trial judge has the inherent power to “direct that the examination of the witness continue without interruption until completion.” The trial judge in the instant case could have required defense counsel to finish direct examination before the luncheon recess—indeed, the trial judge could have required that direct and cross-examination be completed without interruption. ⁶¹⁶ Although the Court of Appeals in Clark did not require that prejudice be shown, the deprivation involved there was very different from that in the instant case. What was prohibited in Clark was consultation between two attorneys in a joint trial. As a result of the deprivation, a concerted effort to choose jurors was impossible. In Clark, the effect of such a deprivation was immediately apparent, and affected the overall fairness of the conviction.

In the instant case, there is no immediately ascertainable effect on appellant’s conviction. By our holding today, we impose no requirement that a criminal defendant divulge the contents of privileged consultations with his attorney in order to establish prejudice. Rather, we are stating that, where the deprivation is short enough so that prejudice cannot be presumed and it is apparent that the proceeding was fundamentally fair, a per se rule of reversal and retrial will not be applied. For the above reasons, we hold that appellant has failed to show that the deprivation of counsel, which occurred during the luncheon recess, compromised his right to a fair trial.

Under these circumstances, we cannot conclude that the deprivation would have altered the jury’s verdict. RIGHT TO REMAIN SILENT Appellant contends that the trial judge’s on-the-record explanation of his constitutional right not to testify was misleading enough to constitute reversible error. We disagree and explain. The portion of the explanation that appellant cites as erroneous is as follows: “THE COURT: ...

Let me see if I can address it to you in layman’s terms. If you choose not to take the witness stand, part and parcel of what goes along with that is the possible disadvantage that somebody on that jury panel is going to say, look, this guy is obviously guilty, because guilty people hide. And innocent people are willing to talk. ⁶¹⁷ “That could happen, and all the judges instructions in America can not overcome a person who is of contrary mind, if you know what I mean. If I sit there and say you can’t do this, and they say, the hell I can’t.

So if you don’t testify, obviously one of the disadvantages that could go along with not testifying, it doesn’t mean it will. If they listen to my instructions to a fair-thee-well, and most jurors do. “It’s my experience they follow judges instruction’s [sic] right down the line. Then that adverse part would not play a part. I can not tell you, you’re saying to me, but what is this business about Harvey getting to cross examine me?

Well, if you do take the witness stand, Harvey, Mr. Harvey will have the right to cross examine you. He may choose not too. Although honesty impels me to say, I can’t conceive of that.” (Appellant’s emphasis.) What appellant fails to mention is that this was the second time during the trial that the judge had touched on the right to remain silent. In fact, the portion appellant contends as error was in reality a continuance of a previous discussion between appellant, his attorney, and the trial judge.

Before a jury had been impaneled, appellant’s attorney requested and was granted an in camera hearing. At this hearing, the attorney asked to be released, informing the trial judge that he and appellant were “diametrically opposed” in regard to a defense. 7 The trial court declined to release Wooten-Bey’s attorney. After the State’s Attorney asked the trial judge to make an explicit finding that appellant did not intend to represent himself at trial, the following exchange occurred: ⁶¹⁸ “THE COURT: Well, let’s find out from [appellant] what he is asking for. What would you like? “[APPELLANT]: Ideally, I would like Mr. Christmas to be able do [sic] handle my case.

But if he, as he has stated, has problems with a defense in my behalf, I believe whole heartedly, that my greatest defense is going to be me on the stand. It basically boils down to, your Honor, what I believe to be the truth, and what the State is presenting. And his witnesses will have to testify on that behalf, and I’ll have to testify for the defense. “That is basically the way it was in the first trial. Legal tactics, I’m not a lawyer.

So to answer Mr. Harvey, I don’t wish to represent myself____” (Emphasis added.) The trial judge, obviously concerned that appellant understood the ramifications of his decision to testify, went on at some length to instruct appellant in this regard. During the ensuing discussion, appellant received a detailed explanation of his right to remain silent and, if appellant chose not to take the stand, “the Court’s instruction to the jury in the strongest of terms, will be that they may not in anyway what-so-ever consider your silence in deciding upon your guilt or innocence.” The trial judge went on to say that such an instruction was appellant’s right and that, if the jury disregarded the instruction, it “would be in total violation of their office.” Additionally, appellant fails to mention that the trial judge had, just minutes before the allegedly misleading explanation, at his counsel’s request, informed appellant that both the federal and state constitutions afforded him the absolute right not to testify and that appellant was not required to prove his innocence. A long exposition to the accused on his right not to testify at his trial is unnecessary. Indeed, the trial judge covered the basics in the passages we have referred to above.

In Griffin v. California, 380 U.S. 609, 615 , 85 S.Ct. 1229, 1233 , 14 L.Ed.2d 106 , reh’g denied, 381 U.S. 957 , 85 S.Ct. 1797 , 14 L.Ed.2d 730 (1965), the Supreme Court held that it was a ⁶¹⁹ violation of the Fifth Amendment for a jury to consider an accused’s failure to testify in his own defense. In Carter v. Kentucky, 450 U.S. 288, 805 , 101 S.Ct. 1112, 1121 , 67 L.Ed.2d 241 (1981), the Court held that a criminal defendant has a Fifth Amendment right to a cautionary instruction forbidding the jury from drawing any inference from an accused’s failure to testify. The question here, however, is not the existence of these rights, but whether appellant was misled and induced by the trial judge’s explanations into taking the stand, thus risking the jury’s exposure to his prior criminal record. We have taken the trouble to detail these parts of the trial judge’s explanation excluded in appellant’s assignment of error in order to show the breadth of the full comments made to appellant.

It is apparent from appellant’s statements contained in the trial record, supra, that he had made a decision