State v. Clark
| Docket Number | 1614, Sept. Term, 2021 |
| Decision Date | 28 July 2022 |
| Citation | 255 Md.App. 327,279 A.3d 1121 |
| Parties | STATE of Maryland v. Damien Gary CLARK |
| Court | Court of Special Appeals of Maryland |
Argued by: Jer Welter (Brian E. Frosh, Atty. Gen. on the brief), all of Baltimore, MD, for Appellant
Argued by: Andrew Cryan (Principal Counsel of Justice Beyond Bars on the brief), all of Randallstown, MD, for Appellee
Panel: Graeff, Nazarian, J. Frederick Sharer (Senior Judge, Specially Assigned), JJ.
In February 2019, Damien Gary Clark, appellee, was tried by a jury in the Circuit Court for Howard County on charges of second-degree murder, attempted second-degree murder, and several counts of assault. Appellee testified on his own behalf, and at the conclusion of his direct testimony, the court instructed him not to speak with anyone, including his attorney, during the overnight recess. Defense counsel did not object to the court's instruction. The jury convicted appellee of voluntary manslaughter, attempted second-degree murder, and two counts of second-degree assault. The court sentenced appellee to 50 years’ incarceration. On appeal to this Court, we affirmed appellee's convictions in an unreported opinion. See Clark v. State , No. 486, Sept. Term, 2019, 2020 WL 3498463 (filed June 29, 2020).
Appellee then sought post-conviction relief. After a hearing, the post-conviction court granted appellee a new trial, finding that he received ineffective assistance of counsel due to counsel's failure to object to the trial court's no-communication instruction. The State filed an application for leave to appeal, which we granted.1
The State appeals and presents three questions for this Court's review, which we have consolidated into the following question:
Did the circuit court err in granting appellee a new trial based on a finding that he received ineffective assistance of counsel?
For the reasons set forth below, we shall reverse the judgment of the circuit court and remand for further proceedings consistent with this opinion.
For purposes of this appeal, we need not discuss the underlying crimes in detail. We do note, however, that the crimes were serious. On December 25, 2017, appellee stabbed two men, killing one of them.
Appellee testified on his own behalf on the fourth day of trial. After he completed his direct testimony, with the State's cross-examination scheduled to begin the next day, the court instructed appellee, as follows:
Defense counsel did not object to the court's instruction.
On appeal from his convictions, appellee argued, among other things, that the trial court erred in instructing him that he could not speak with his attorney during the overnight recess. Clark , slip op. at 11–12. He asserted that this order denied him his Sixth Amendment right to counsel "after a critical day of testimony." Id. at 13. The State argued that appellee had failed to preserve this issue for appeal because he failed to object to the court's instruction, and instead, he acquiesced to it. Id.
In our unreported opinion, we concluded that the argument was not preserved for review. Id. We noted that unpreserved claims of error generally are best addressed through an ineffective assistance of counsel claim at post-conviction proceedings. Id. at 14. We affirmed appellee's convictions. Id. at 33.
Appellee subsequently filed a petition for post-conviction relief alleging, among other things, that he received ineffective assistance of counsel due to trial counsel's failure to object to the trial court's instruction that he not speak to counsel during the overnight recess between his direct and cross-examination. He argued that counsel's failure to object was not a strategical error, but rather, it was due to ignorance of the law. Appellee also argued that trial counsel's failure to object prejudiced him because "the court impinged upon his constitutional right to counsel, which [trial counsel] permitted by failing to object."
On July 29, 2021, the court held a hearing. Trial counsel testified that, at the time of appellee's trial in 2019, he had been practicing criminal law for more than 20 years, and he had worked on 30–40 homicide cases. Counsel acknowledged, however, that at the time of trial, he was not specifically aware of Geders v. United States , 425 U.S. 80, 88–89, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), a case in which the United States Supreme Court held that an order restricting an accused from consulting with counsel "about anything" during a lengthy overnight recess was improper. When asked why he did not object to the court's instruction not to communicate with counsel after appellee's direct testimony, counsel stated that he felt no need to object because there was nothing to discuss with appellee:
At the time, I didn't think there was anything for us to talk about that evening. We had talked that morning, I guess when I delivered the suit to him. We talked during the trial, right before lunch. I believe, you know, at every break. It's not like I can leave here and call him. You know, I can't call into [the jail] at that time, they have it now, because of all the COVID. So, the issue would have been, did I want to go back downstairs in the sheriff's lockup and see him that day? And before we went down—at the end of each day, I would always ask him if he had any questions or anything like that. So, the 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.
On cross-examination, counsel stated that he had prepared appellee for his testimony, stating that they had practiced approximately eight to ten hours. At the end of appellee's testimony, counsel had no concerns that needed to be addressed. He stated:
We talked all day. We talked in the morning, every break, lunch break or break to do this and that and sit at the trial table, go back and forth. After lunch before we sat down, we talked. O[r] if we wanted to go down, we'd go down and talk to him. At the end of the incident, you know, at the end of that day, I think he was sitting up here [on the witness stand] but I didn't have anything to ask him, and he didn't say, hey, I want to talk to you.
Counsel acknowledged that he should have objected to the court's instruction, but he reiterated that he did not have anything to say to appellee that he was prevented from saying to him, and appellee did not ask to speak to him. The following exchange then occurred:
Trial counsel's paralegal and appellee also testified at the post-conviction hearing. Neither one, however, testified regarding the trial court's instruction to appellee not to talk with anyone after his direct examination.
On September 28, 2021, the post-conviction court granted appellee's request for post-conviction relief. It found that the trial court's instruction was inconsistent with the holding in Geders , 425 U.S. at 88–89, 96 S.Ct. 1330. The court summarized trial counsel's testimony during the post-conviction hearing, as follows:
Trial counsel conceded in testimony that he "probably should have objected" to the trial court's instruction. Trial counsel testified that he had spoken to [appellee] every morning before court started during the trial, and during breaks each day. Trial counsel and [the paralegal] both testified that they had spent hours with [appellee] preparing for trial. Trial counsel testified that he and [the paralegal] had practiced for hours questioning [appellee] so that he would be prepared for his direct and cross examination. Trial counsel...
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Clark v. State
...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 We hold that, given the length and scope of the no-communication order, preventing communication between Mr. Clark an......