Clark v. State
| Docket Number | 25-2022 |
| Decision Date | 31 August 2023 |
| Parties | DAMIEN GARY CLARK v. STATE OF MARYLAND |
| Court | Maryland Court of Appeals |
IN THE SUPREME COURT OF MARYLAND[*]
Argued: March 3, 2023
Circuit Court for Howard County Case No. C-13-CR-18-000001 Fader C.J Watts Hotten Booth Biran Gould Eaves, JJ.
[**]
In this case, we must determine whether trial counsel's failure to object to a trial court's order prohibiting any consultation about the case, i.e., a no-communication order, between Damien Gary Clark, Petitioner, and trial counsel during an overnight recess prior to the final day of testimony in Mr. Clark's murder trial resulted in the actual denial of the assistance of counsel, as guaranteed by the Sixth Amendment, such that prejudice is presumed under the second prong of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). This determination is necessary to resolve Mr. Clark's contention that he was provided ineffective assistance because of trial counsel's failure to object to the nocommunication order by the trial court. If Mr. Clark was denied the assistance of counsel in violation of the Sixth Amendment, under the framework set forth by the Supreme Court of the United States in Strickland concerning the presumption of the prejudice, Mr. Clark need not show prejudice; rather, prejudice would be presumed. On the other hand, if there was no actual denial of the assistance of counsel, Mr. Clark must prove both deficient performance and prejudice under Strickland.
On postconviction review, the Circuit Court for Harford County ruled that the nocommunication order, and trial counsel's failure to object, denied Mr. Clark the assistance of counsel in violation of the Sixth Amendment and presumed prejudice, ordering a new trial. The Appellate Court of Maryland[1] reversed the judgment of the circuit court, reasoning that no "actual deprivation" of the assistance of counsel occurred, and concluded that Mr. Clark could not show prejudice. See State v. Clark, 255 Md.App. 327, 331, 345, 347, 279 A.3d 1121, 1123, 1131-32 (2022). Under the Appellate Court's approach, Mr. Clark was required to demonstrate that he desired or wanted to speak with counsel during the overnight recess and that as a result of the no-communication order he was "actually deprived" of the opportunity to do so. Id. at 341-43, 345, 279 A.3d at 1129-31 (citation omitted).
We hold that, given the length and scope of the no-communication order, preventing communication between Mr. Clark and trial counsel about the case, and trial counsel's lack of objection which permitted the order to go into effect, the order presented a serious impediment to Mr. Clark's right to consult with counsel in violation of the Sixth Amendment and Articles 21 and 24 of the Maryland Declaration of Rights and, under the framework set forth in Strickland, prejudice is presumed. We conclude that Mr. Clark did not need to show or demonstrate that he wanted to confer or would have conferred with his counsel during the overnight recess but for the trial court's order as a condition precedent to the presumption of prejudice due to an actual denial of the assistance of counsel. Given the duration of the order (which covered a lengthy overnight recess) and the scope of the order (which applied to all communications about the case), the order prevented communication between Mr. Clark and trial counsel and constituted the actual denial of the assistance of counsel in violation of the Sixth Amendment and the Maryland Declaration of Rights. Thus, prejudice is presumed.
The record shows no strategic or other value to trial counsel's failure to object, and the failure to safeguard Mr. Clark's right to consult with counsel for such an extended period of time during such a critical stage of the trial was error. As such, the circuit court correctly concluded that trial counsel's failure to object was objectively unreasonable and that counsel's performance was deficient. We reach the same conclusion. Accordingly, we reverse the judgment of the Appellate Court of Maryland and uphold the circuit court's order of a new trial for Mr. Clark, as trial counsel's performance was deficient and Mr. Clark was prejudiced.
On April 18, 2018, in the Circuit Court for Howard County, Mr Clark was charged with second-degree murder, attempted second-degree murder, and first- and second-degree assault resulting from an altercation in a convenience store between him and two other men. During the fight, Mr. Clark wounded the two men with a knife, resulting in one's death. At trial, Mr. Clark raised the issue of self-defense.
On the fourth day of trial, February 14, 2019, Mr. Clark testified. Mr. Clark's directexamination concluded at the end of the day, and he was due to return to the witness stand the following day for cross-examination. Before adjourning, the trial judge instructed Mr. Clark that he could not to speak to anyone about the case, including his own lawyers, prior to resumption of his testimony:
Mr. Clark's trial counsel failed to object to the instruction from the trial court. The next day, Mr. Clark underwent cross-examination, and the defense rested.
On February 19, 2019, the jury found Mr. Clark guilty of voluntary manslaughter, attempted second-degree murder, and two counts of second-degree assault. The jury acquitted Mr. Clark of second-degree murder and first-degree assault. The trial court sentenced Mr. Clark to 50 years of incarceration.
On June 29, 2020, the Appellate Court of Maryland affirmed the convictions in an unreported opinion. See Damien Gary Clark v. State of Maryland, No. 486, Sept. Term, 2019, 2020 WL 3498463, at *1 (App. Ct. Md. June 29, 2020). Addressing Mr. Clark's contention that the trial court deprived him of his Sixth Amendment right to counsel with its instruction, the Appellate Court concluded that Mr. Clark's argument was not preserved because of the lack of an objection, despite acknowledging that the contention had merit. See id. at *7-8. The Appellate Court declined to "hold on direct appeal . . . that the failure to object constitutes ineffective assistance of counsel as a matter of law" because of the lack of a developed record on the matter, although the Appellate Court could not "think of any reason why counsel would opt not to object to the trial judge's instruction that Mr. Clark not consult with his attorney overnight." Id. at *8. Without the ability to assess "the possibility, however slim, that counsel had a legitimate strategic or tactical reason for letting the instruction go," the Appellate Court left the issue for Mr. Clark to pursue in postconviction proceedings. Id.
On February 19, 2021, Mr. Clark filed a petition for postconviction relief and reiterated the argument that the trial court's instruction and his trial counsel's failure to object violated his Sixth Amendment right to counsel. On July 29, 2021, the circuit court held a hearing on Mr. Clark's petition and the State of Maryland's Respondent's, response. Mr. Clark's trial counsel, Tony Garcia, testified that, at the time of Mr. Clark's trial, he had been practicing criminal law for over 20 years, including time as a prosecutor and defense attorney, and he had tried over 100 trials of all types.
In response to a question from Mr. Clark's postconviction counsel regarding his reason for not objecting to the trial court's no-communication order, Mr. Garcia testified: Mr. Garcia testified: "[T]he answer is that I just didn't have anything to go over with him because I thought he was doing good on the witness stand." Mr. Garcia elaborated that at the time he could not call and speak to Mr. Clark in the jail, but had to meet him in person and "the issue would have been, did I want to go back downstairs in the sheriff's lockup and see [Mr. Clark] that day[.]" However, Mr. Garcia added that "at the end of each day, I would always ask [Mr. Clark] if he had any questions or anything like that." In response to Mr. Clark's postconviction counsel's question about whether he was familiar with Geders v. United States, 425 U.S. 80 (1976), Mr. Garcia testified that he was not, but that he knew that Mr. Clark had a right to speak with him: "I know he had a right to talk to me and if he said he had anything to say, I would have talked to him."
On cross-examination, Mr. Garcia testified that he had extensively prepared Mr. Clark for his testimony, both direct- and cross-examination, and that he did not have any concerns at the conclusion of Mr. Clark's direct-examination that he would have addressed in a meeting with him. Mr. Garcia testified that he could have objected but that in the moment he "didn't have anything to ask [Mr. Clark]," and Mr. Clark "didn't say, hey, I want to talk to you." The State asked Mr. Garcia: "Had Mr. Clark said, I want to speak to my...
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