Walker v. State

892 A.2d 547, 391 Md. 233, 2006 Md. LEXIS 71
CourtCourt of Appeals of Maryland
DecidedFebruary 10, 2006
Docket21, September Term, 2005
StatusPublished
Cited by24 cases

This text of 892 A.2d 547 (Walker v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. State, 892 A.2d 547, 391 Md. 233, 2006 Md. LEXIS 71 (Md. 2006).

Opinions

RAKER, J.

In this post-conviction appeal, petitioner asks this Court to decide whether the presumption of prejudice set out in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), applies to his claim of ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. We shall answer this question in the negative and hold that in order to establish ineffective assistance of counsel, petitioner must satisfy the two prong test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): that counsel’s performance was deficient and that the deficient performance prejudiced the defendant.

I.

Petitioner, Le’bon Walker, Patricia Lee (Walker’s wife), and Anna L. Hall (Lee’s mother), were indicted by the Grand Jury for Montgomery County with conspiracy to commit theft and nine counts of theft, in violation of Md.Code (1957, 1992 [238]*238Repl.Vol., 1993 Cum.Supp.) Art. 27, § 342.1 Trial was scheduled for January 18, 1993, and both Walker and his wife were notified of the trial date and location. Walker and his wife were released on bond approximately eight days before trial; they absconded from the jurisdiction. Based upon information provided to the Circuit Court by the Pre-Trial Services Unit, the Circuit Court issued bench warrants for Walker and his wife. Neither defendant was apprehended before the trial date.

Walker’s case was consolidated for trial with the eases of his wife, Patricia Lee, and Lee’s mother, Anna Hall. On January 18, 1993, the cases were called for trial before the Circuit Court; Walker and Lee failed to appear. Anna Hall was present and was represented by counsel. Following a hearing concerning the absence of Walker and Lee, and over defense counsel’s objection, the trial court proceeded in absentia. After the jury was sworn, defense counsel again argued to the trial court that his clients could not get a fair trial in absentia and said that he believed that they would not want him to participate in the proceedings. The following colloquy took place on January 19, 1993:

“[DEFENSE COUNSEL]: After careful and considerable thought overnight, I believe that the defendants cannot get a fair and impartial trial in this case by being tried in absentia. It is clear from our jurisprudence that trials in absentia are not the rule in this country, it violates the common law; it violates the Confrontation Clause of the Sixth Amendment to the Constitution of the United States, and it violates Article 21 of the Maryland Declaration of Rights. As the Supreme Court indicated in no uncertain terms in the Crosby [v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993)] case, which we reviewed yesterday, the Supreme Court does not sanction trials in absentia. Your Honor recalled, the fact pattern is, I would [239]*239say identical to the case here and the Court unanimously ruled under [Federal Criminal! Rule [of Procedure] 43 that defendants could not be tried in absentia. The Maryland Rule and the Federal Rule are both there for the protection of the defendant, to use as a shield, as brought out yesterday, and I believe because of that and without the defendants’ presence here, I cannot effectively represent my clients, and to proceed on their behalf in any way would be a sham. Moreover, in reviewing my conversations with my clients, and their view of the past history of this case, I unhesitatingly believe that they would not want me in any way to participate any further in this trial. Therefore, I will not 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.
[THE COURT]: May I ask you this, [defense counsel], do you believe as a strategy of defense of your clients and in their best interests, that it would be appropriate for you not to actively participate in the examination of any witnesses? Is that correct?
[DEFENSE COUNSEL]: I do believe that.
[THE COURT]: Okay. Are you expressing that because you think that is the best way to zealously safeguard the interests of your clients and protect them in this criminal proceeding?
[DEFENSE COUNSEL]: I believe that I could not—by participating in the trial, by cross-examining witnesses, without having the benefit of my clients next to me to talk to and obtain information from them, that it would be ineffective assistance of counsel.
[THE COURT]: Well, recognizing that certainly the ideal situation would be for them to be here with you and able to give you immediate feedback, have you made a decision of your trial strategy in protecting their interests, that it is in their best interests for you to take a passive role?
[DEFENSE COUNSEL]: Yes, I have made that decision.
[240]*240[THE COURT]: Okay. So, your motion is to be excused from trial?
[DEFENSE COUNSEL]: That would be my motion, that I be excused at this time.
[THE COURT]: Okay. Well, for the reasons I believe that I stated upon the record yesterday, and in the ruling that I make, I will deny the motion for you to be excused from the trial, and I believe as we discussed, you are required to participate in their defense since the trial against them is proceeding, and I believe you have stated upon the record that you propose to follow what you believe to be the rules of professional responsibility that apply to you and the manner which you have chosen to safeguard their rights.”

Following the Circuit Court’s denial of defense counsel’s request to be excused, the Court proceeded with the jury trial. Defense counsel waived opening statement, made no trial motions or objections, did not call any witnesses, and did not cross-examine any of the State’s witnesses.2 During a discussion with the Court regarding jury instructions, defense counsel raised the possibility of arguing jury nullification in his closing argument based on his opinion that it was impossible for Walker and Lee to get a fair trial in absentia:

“[DEFENSE COUNSEL]: Your Honor, I was thinking about summation and telling the jury that they should acquit the defendants because this whole proceeding is unconstitutional.
[THE COURT]: Well, I won’t permit you to make that argument to the jury. That is not argument, that is jury nullification. That is an improper argument to make for the jury. If your position is ultimately sustained, it would be on the appellate level, not by the jury.
[241]*241[DEFENSE COUNSEL]: I have been trying to get some support for that, and I will try to find some additional research.”

The court did not allow counsel to argue that the trial in absentia was unconstitutional, and counsel renewed his request at the end of the discussion:

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Walker v. State
892 A.2d 547 (Court of Appeals of Maryland, 2006)

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Bluebook (online)
892 A.2d 547, 391 Md. 233, 2006 Md. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-state-md-2006.