Walker v. State
| Decision Date | 10 February 2006 |
| Docket Number | No. 21, Sept. Term, 2005.,21, Sept. Term, 2005. |
| Citation | 391 Md. 233,892 A.2d 547 |
| Parties | Le'Bon WALKER a/k/a L.B. Walker, Sr. v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Fred Warren Bennett (Rachel Marblestone Kamins, Bennett & Bair, LLP, Greenbelt, on brief), for petitioner.
Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen., on brief), for respondent.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
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.
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 Repl.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 cases 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:
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:
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:
The jury found Walker and Lee guilty on all counts alleged in the indictment.3 Nine months later, Walker and Lee were apprehended in Zambia, returned to the United States, and sentenced to a term of incarceration of twenty-four years in the Division of Correction with credit for 390 days for time served. Walker noted a timely appeal to the Court of Special Appeals, and this Court granted certiorari on its own initiative to consider whether a trial court may try a defendant in absentia consistent with a defendant's common law right to be present at trial and a Sixth Amendment right to confrontation. Walker v. State, 338 Md. 253, 658 A.2d 239 (1995) ("Walker I"). This Court affirmed, holding that the trial court did not err in proceeding to trial in the defendant's absence, leaving for another day the question of effective assistance of counsel. Id. at 261-62, 658 A.2d at 243.
Walker filed a petition for post-conviction relief in the Circuit Court for Montgomery County pursuant to the Uniform Postconviction Procedure Act, Md.Code (2001, 2005 Cum.Supp.) Criminal Procedure Article, § 7-102, alleging, inter alia, that defense counsel's trial strategy was merely to do nothing at all, which amounts to a "total breakdown" in the adversarial process, thereby presumptively prejudicing him under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The Circuit Court denied relief on all grounds, ruling that Walker was not prejudiced by his counsel's performance. In rejecting Walker's presumption of prejudice argument under Cronic, the post-conviction Court stated as follows:
"The first ground that counsel is seeking, Mr. Walker, is seeking, to set aside the verdict in this case and to assign a new trial to Mr. Walker is the application of the United States v. Cronic decision. That's when the decision of counsel to refuse to participate in the trial in this case without the consent of client's counsel, is a failure to subject the prosecution's case to meaningful adversarial testing.
That there is this presumption of unreliability. I have to say that I agree with what [...
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