Walker v. State

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In the Circu it Court for M ontgom ery County Criminal No. 63524 IN THE COURT OF APPEALS OF MARYLAND No. 21 September Term, 2005 LE BON WALKER A/K/A L.B. WALKER, SR. v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Raker, J. Bell, C .J., dissen ts. Filed: February 10, 2006 In this post-con viction appeal, petitioner asks this Court to decide whether the presumption of prejudice set out in United States v. Cro nic, 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 perform ance preju diced the d efendan t. I. Petitioner, Le bon Walker, Patricia Lee (Walker s w ife), and Anna L . Hall (Lee s mother), were indicted by the Grand Jury for M ontgomery County w ith conspirac y 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 Janua ry 18, 1993, an d both W alker and h is wife were notified of the trial date and location. Walker and his wife were released on bond approxim ately eight days before trial; they absconded from the jurisdiction. Based upon information provided to the Circu it Court by the Pre-Trial Services U nit, the Circuit Court issued bench warrants for Walker and his wife. Neither defendant was apprehen ded before the trial d ate. 1 Article 27, § 342 has been re codifie d as M d. Cod e (2002 , 2005 C um. Su pp.) Criminal Law Article, § 7-104 and has been revised to reflect theft of property or services with a v alue of $500 o r more. Walker s case was consolidate d 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; Walk er and L ee faile d to app ear. 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 abse ntia. After the jury was sworn, defense counsel again argued to the trial court that his clients co uld not get a fair trial in absentia and said that he believed tha t they w ould not want him to participate in the proceedin gs. The fo llowing co lloquy took pla ce on Jan uary 19, 1993 : [DEFENSE COU NSEL ]: After care ful and co nsiderable 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 Rig hts. As the Suprem e 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 say identical to the case he re and the Court unanimo usly ruled und er [Federa l 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 defenda nt, to use as a sh ield, as broug ht 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 w ould be a s ham. M oreover, in reviewing my conversa tions 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 -2- 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 tria l. [THE COUR T]: May I ask you this, [defense coun sel], do you believe as a strategy of defense of your clients and in their best interests, that it would be appro priate for you n ot to actively participate in the examination of any witnesses? Is that correct? [DEF ENSE COU NSEL ]: I do believe that. [THE COUR T]: Okay. Are you expre ssing 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 benef it of my clients ne xt to me to talk to and obta in information from them, that it w ould be ineffective assistance of counsel. [THE COU RT]: W ell, recognizin g 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 i t is in their best interests for you to take a passive role? [DEFENSE CO UNSEL]: Yes, I have made that decision. [THE COU RT]: O kay. 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 discuss ed, you are required to participate in th eir -3- 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 safegu ard 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 w ith the Court regarding jury instructions, defense counsel raised the po ssibility of arguing jury nullification in his closing argument based on his opinion that it was im possible fo r Walker a nd Lee to get a fair trial in absentia: [DEFENSE COUNSEL]: Your Honor, I was thinking about summation and tellin g the jury th at the y should acquit the defenda nts becaus e this who le proceed ing is unco nstitutional. [THE COU RT]: W ell, I won t pe rmit you to make that argument to the jury. That is not argument, that is jury nullification. That is an improp er argume nt to make for the jury. If your position is ultimately sustained, it would be on the appellate level, not by the ju ry. [DEFENSE COU NSEL ]: I have been trying to get some support for that , and I w ill try to find some a ddition al resea rch. The court did not allow counsel to argue tha t the trial in absentia was unc onstitutional, and counsel renewed his request at the end of the discussion: 2 Before the jury was sworn, defense counsel raised objections and cross-examined a pre-trial services supervision caseworker from the Department of Corrections, whom the State ca lled to sh ow tha t Walk er and h is wife had ab scond ed. -4- [DEFENSE COUN SEL]: Just for the record, I just want to take exception to the Court s ruling that I canno t argue jury nullification as the Court determined it this morning. [THE COU RT]: O kay. And so that this is clearly on the record, what you had proposed is to argue to the jury that proceeding against [W alker and L ee] in their ab sence is un constitutiona l. [DEF ENSE COU NSEL ]: That is corre ct. [THE COUR T]: And since I think th at is contrary to the law, and I give [the jury] binding instructions on the law, I think I have no choice but to [instruct] you that you can t argue that. Than k you. The jury found Walker and Lee guilty on all counts alleged in the indictmen t.3 Nine months later, Walke r and Lee were app rehended in Zamb ia, returned to th e United S tates, and sentenced to a term of incarceration of twenty-fo ur 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 C ourt granted certiorari on its own initiative to consider whether a trial court may try a defend ant in absentia consistent with a defendant s common law right to be presen t at trial an d a Sixt h Am endm ent righ t to conf rontatio n. Walker v. S tate, 338 Md. 253, 658 A.2d 23 9 (1995) ( Walker I ). This Court affirmed, holding tha t the trial court did not err in proceeding to trial in the defendant s absence, leaving for another day the question of eff ective a ssistanc e of co unsel. Id. at 261- 62, 658 A.2d a t 243. 3 The jury found Hall guilty of one cou nt of conspiracy to commit theft and seven counts of theft over value of $300. The jury was unable to reach a verdict as to the two other counts of theft over value of $300 , and the Sta te subsequ ently entered a n olle prosequi a s to those two counts. -5- Walker filed a petition for post-conviction relief in the Circuit Court for M ontgomery County pursuant to the Uniform Postconviction Procedure Act, Md. Code (2001, 2005 Cum. Supp .) Criminal Procedu re Article, § 7-102, alleging , inter alia , that defense counsel s trial strategy was me rely to do noth ing at all, which amounts to a total breakdown in the adversarial process, thereby presumptively prejudicing h im under United Sta tes v. Cron ic, 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 counse l is seeking, M r. 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. T hat s whe n the decisio n of coun sel 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 presum ption of un reliability. I have to say that I agree with what [United States v. Sanchez, 790 F.2d 245 (2d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 584, 93 L. Ed. 2d 587 (1986)] says. I find that here, Mr. Walker s own obstructive conduct precluded his attorney from pursuing an intelligent [and] active defense. Therefore, the concerns of Cronic are not invoked. Therefore, the general test of effectiveness of counsel applies under Strickland. I would also point out that I ve listened to [defense counsel s] testim ony. I ve reviewed the record and [defense counsel s] testim ony. Although, I understand what you are saying, that there is nothing that reflects the actual consent, or direction or instruction by Mr. Walker from [defense counsel] n ot to -6- participate, but he did have voluminous discovery, six months of pre-trial preparation, [and] consultation with his client. It was [defense counsel s] p erception, b ased upo n his discuss ions with Mr. Walker, that he would not have wanted [ defense c ounsel] to participate in th e trial. In addition, the conduct of the trial [c]ourt in this regard is, again, appropriate to the record. That is Judge Harrington meticulou sly went over . . . [defense counsel s] decision. [Defense counsel had] every opportunity to participate. [Judge Harrington] specifically asked him on the record: do you believe as a strategy of def ense of you r clients and in their bests interest that it would be appropriate for you not to actively pa rticipate in the examination of any witnesses. Is that correct? [Defense counsel] responded, that he did believe that, which is consistent with what he said here on the witness stand. [H]e believed it was in Mr. Walker s best interest to not zealously represent Mr. W alker at trial. If I were to set aside the verdict in this case, it would in essence [reward] Mr. Walker for his efforts to sabotage this case and reward him by allow ing him to intentionally sabotage his own defense. I agree that, as was said in the Sanchez case, that would defy both the purposes of the Sixth Amen dment and com mon sense. Walker noted a timely appeal to the Court of Special Appeals. The intermediate appellate court, in a w ell-reasoned and thoro ughly researched opinion, affirmed, holding that Cronic was inapplicable, that the Circuit Court properly applied the two prong test announced in Strickland, and that Walker s ineffective assistance of counsel claim was without merit. Walker v. S tate, 161 Md. App. 253, 868 A.2d 898 (2005). Judge James R. Eyler, writing for the unanimous panel, noted that [t]he presumption of ineffective ness is very limited . . . . and includes only those cases where a defendant is actually or constructive ly denied counsel altogether, or w here the state actively interferes with counsel s -7- consultation with or representation of a defendant. Id. at 263, 868 A.2d at 904. The court explained as follow s: The State did not interfere with counsel s assistance in any way. [Defense counsel] was fully prepared to try the case. [Petitioner] does not allege that he w as preven ted by the State from consulting w ith [defen se counse l] in any way, or at any time, before, du ring, or after th e trial. [Defense counsel] never testified to an y conflict of interest at the post-conviction hearing, nor does [petitioner] argue that a conflict of interest existed. Therefore, this case does not fall into one of the three categories of cases in which the Supreme Court has determined that ineffectiveness or prejudice should be presumed. Id. at 268, 868 A.2d at 907. We granted Walker s petition for Writ of Certiorari to decide the following question: Should prejudice be presumed un der United Sta tes v. Cron ic where trial counsel, b y his silence and non-participation at Mr. Walker s first jury trial, failed to subject the prosecution s case against Mr. Walker to meaningful adversarial testing and denied Mr. Walker his Sixth Amendment right to the effective assistance of counsel? Walker v. State, 387 Md. 462, 875 A.2d 767 (2005). We agree with the Court of Special Appeals and shall affirm the denial of petitioner s request for post-conviction relief. II. Petitioner s sole argum ent in this app eal is that because his defense counsel did not participate at trial, he was denied effective assistance of counsel under the Sixth Amendment to the United States Constitution and that prejudice shou ld be presumed u nder United States -8- v. Cron ic, 466 U.S. 648, 10 4 S. Ct. 2039, 80 L .Ed.2d 657 (198 4).4 By remainin g silent, petitioner contends, defense counsel failed to subject the State s case to meaningful adversarial testing and that trial counsel s complete lack of activity on [his] behalf had the same effect as if he had no representation in the courtroom at all, and thus, counsel was constructively absent from the proceeding. The State argue s that United States v . Cronic does not a pply to petitioner s claim because defense counsel was present throughout the entire trial and that counsel s limited participation was based on a trial strategy designed to benefit petitioner. Asp ects of this strategy included a vehem ent argum ent that trial in absentia was unconstitutional and an effort to argue jury nu llification on th e ground s that the proceeding was u nconstitution al. Further, the State contends that trial counsel s strategy was b ased upon cou nsel s determination of Walker s wishes and his best interests under the circumstances. In addition to undertaking a legitimate trial strategy, the State contends that trial counsel did not leave the State s case untested. The State notes that trial counsel attended trial and bench conferences, responde d to the trial court s inquiries regarding admission of exhibits, and that the State s evide nce w as challe nged b y counse l for W alker s c o-defe ndant, H all. 4 Petitioner does not argue before this Court that his counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 10 4 S.Ct. 2052, 80 L .Ed.2d 674 (198 4). -9- III. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to the assistance of counsel and applies to the states through the Due Process Clause of the Fourte enth Amendmen t.5 See Gideon v. Wainwright, 327 U.S. 335, 342, 83 S. Ct. 792, 795-9 6, 9 L. Ed. 2d 799 (1963). It is beyond qu estion that the right to counsel is the right to effective assistance of cou nsel. See Strickland, 466 U.S. at 686, 104 S. Ct. at 2063. In order to assess the adequ acy of counsel s assistance under the S ixth Am endmen t, ordinarily we apply the two-part test enunciated by the Supreme Court in Strickland, which requires that a defendant show that counsel s re presentation was def icient, i.e., that it fell below an objective standard of reasonableness, and that any deficiency in counsel s performance was p rejudici al. Id. at 687-88, 104 S. Ct. at 2064; see Florida v. Nixon, 543 U.S. 175, 188-89, 125 S. Ct. 551, 561 -62, 160 L . Ed. 565 (2 004); Bower s v. State, 320 Md. 416, 424-25, 578 A.2d 734, 739 (1990). Prejudice requires a showing that counsel s errors were so egregio us that they dep rived the de fendant o f a fair trial a trial whos e result is reliable. Strickland, 466 U.S . at 687, 104 S. Ct. at 2064. We have framed the test for prejudice under Strickland as requiring the petitioner to show that there is a substantial 5 The Sixth Amendmen t provides, in pertinent part, as follows: In all criminal pro secutions, the accused s hall enjoy the right . . . to have the Assista nce of Coun sel for h is defen se. -10- possibility that the outcome of the proceeding would have b een dif ferent. Bowers, 320 Md. at 426-27, 578 A.2d at 738. In deciding a petitioner s ineffective a ssistance claim under Strickland, judicial scrutiny of counsel s performance must be h ighly deferential. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. When a court decides an ineffective assistance of counsel claim, it must judge the reasonableness of counsel s conduct on the facts of the particular case, viewed from the time of cou nsel s co nduct. Id. at 690, 104 S. Ct. at 2066 . Further, the court may determine the reasonableness of counsel s actions in accordance w ith petitioner s statements and actions bec ause cou nsel s cond uct typically is based on informed strategic choices made by the defendant and on information supplied by the defendant. Id. at 691, 104 S. Ct. at 2066. In United Sta tes v. Cron ic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. E d. 2d 657 (1984 ), decided the same day as Strickland, the Suprem e Court es tablished that certain deficient performances of couns el justified a pe r se presum ption of ine ffectivene ss under the Sixth Amen dment. See id. at 658-659, 104 S. Ct. at 2046. The Court identified three situations implicating the right to co unsel that involved circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Id. at 658, 104 S. Ct. at 2046-47 . The first situa tion was w here the ac cused w as comp letely denied counsel. Id. at 659, 104 S. Ct. at 204 7. Comp lete denial of counsel includes, for example, when counsel was either totally absent, or prevented from assisting the accused during a -11- critical stage of the proceeding. Id. at 659 n .25, 104 S. Ct. at 2047 n. 25. The second situation warranting a similar presumption of prejudice w as if coun sel entirely fails to subject the prosecution s case to meaningful adversarial testing because this results in an adversary process itself [that is] presumptively unreliable. Id. The final situation was in cases similar to Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1 932), where the accused faces circumstances in which it is not likely that any attorney could provide effective assistance.6 Id. at 659-661, 104 S. Ct. at 2047-48. With the exception of these three situations, a defendant must articulate how specific errors of counsel undermined the reliability of the f inding of guilt, i.e., the defendant must prove actual prejud ice. See Cronic, 466 U.S. at 659 n.26, 104 S. Ct. at 2047 n. 26. Petitioner argues that h is claim fits within the second exception identified in Cronic because his trial counsel, although present in the courtroom, failed to subject the State s case against Walker to meaningful adversarial testing, thereby warranting a presumption of 6 In Powell v. Alabama, 287 U.S . 45, 53 S. C t. 55, 77 L E d. 158 (19 32), the def endants had been indicted for rape. The trial judg e appointe d all mem bers of the bar to represent them for the purposes of arraign ment sh ortly befo re the tria l. Id. at 56, 53 S. Ct. at 59. An out-of-state attorney appeared on the day of the trial, wishing to represent the defendants, but requested a continua nce for m ore time to p repare the d efendan ts case and to learn the local procedure. The trial cou rt decided th at the out-of -state attorney w ould repres ent the defenda nts immed iately with whate ver help the loca l bar cou ld prov ide. Under these circumstances, the Court did not examine the counsel s actual representation of his clients at trial, but deemed the trial inherently unfair, presuming prejudice without any further inquiry. See id. at 58, 53 S. Ct. at 60. The Court held in Powell that the failure of the trial court to give the defendants a reasonable time and opportunity to obtain adequate counsel violated the Du e Proce ss Clau se of th e Four teenth A mend ment. Id. at 71, 53 S. Ct. at 65. -12- prejudice. We disagree. Since Cronic was decided, the Supreme Court has made clear that the Cronic exception to the general rule requiring proof of prejudice based on deficient performance is a very narrow exception, and that for the exception to apply, the [attorney s] failure must be complete. Florid a v. Nix on, 543 U.S. 175, 190, 125 S. Ct. 551, 562, 160 L. Ed. 2d 565 (2004) (quoting Bell v. Cone, 535 U.S . 685, 696-6 97, 122 S . Ct. 1843, 1851, 152 L. Ed. 2d 914 (2 002)). In Bell v. Cone, 535 U.S. 6 85, 122 S . Ct. 1843, 1 52 L. Ed . 2d 914 (2 002), a dea th penalty case before the Court on review of a grant of the writ of habeas corpus by the United States Court of Appeals for the Sixth Circuit, the Court reversed, holding that the Strickland test rather than Cronic exception applied in a nalyzing petition er s claim of ineffective assistance of counsel at his sentencing hearing. Id. Petitioner argued that in the sentencing proceeding, his counse l failed to mount some case for life after the State introduced evidence in the se ntencin g hearin g and m ade clo sing arg umen t. Id. at 696, 122 S. Ct. at 1851. The Court rejected his argument, explaining the applicability of Cronic as follows: When we spoke in Cronic of the possibility of presuming prejudice based on the attorney s failure to test the prosecutor s case, we indicated that the attorney s failure must be complete. We said if counsel entirely fails to subject the prosecution s case to meaningful adversarial testing. Here, respondent s argument is not that his counsel failed to oppose the prosecution throughout the sentenc ing procee ding as a w hole, but that h is counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic, the diff erence is not of degree but of k ind. -13- Id. at 696, 122 S. Ct. at 1851 (citations omitted). In analyzing de fense counsel s decision to waive summa tion, the Co urt noted tha t considering the options a vailable to co unsel, [n]either option . . . [s]o clearly outweighs the other that it was objectively unreasonable for the Tenness ee Court o f Appe als to deem counsel s c hoice to waive argument a tactical decision about which competent lawyers might disagree. Id. at 702, 122 S. Ct. at 1854. The Court found that becau se defense coun sel failed to challenge specific asp ects of the State s case rather than e ntirely fail to subject the [State s] case to mea ningfu l advers arial testin g, Strickland provides the proper framework for reviewing the defendant s ineffective assistan ce of c ounse l claim. See id. at 697- 98, 122 S. Ct. at 1 851-5 2. In Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004), the Supreme Court again emphasized the limited availability of the Cronic excep tion. The Court reiterated as follows: Cronic recognized a narrow exception to Strickla nd's holding that a defendant who asserts ineffective assistance of counsel must demons trate not only that h is attor ney's performance was deficient, but also that the deficiency prejudiced the defense. Cronic instructed that a presumption of prejudice would be in order in circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. The Co urt elaborate d: [I]f coun sel entirely fails to subject the prosecution s case to meaningful adversarial testing, then there has been a denial of Sixth A mendm ent rights that makes the adversary pro cess itself pres umptively unreliab le. We illustrated just how infrequently the surrounding circumstances [will] justify a presumption of ineffectiveness in Cronic itself. In that case, we reversed a Court of Appeals ruling that ranked as prejudicially inad equate -14- the performance of an inexperienced, under-prepared attorney in a com plex m ail fraud trial. Id. at 190, 125 S. Ct. at 562 (citations omitted). This Court has recognized the narrow reach of Cronic in analyzing ineffective assistance of cou nsel clai ms. See e.g., Red man v. S tate, 363 Md. 2 98, 311, 768 A.2d 656, 663 (2001). In Redman, we embraced the following interpretation of Cronic, as stated by the United S tates Court o f Appe als for the F irst Circuit: In our view, the Court s language in Cronic was driven by the recognition that certain types of conduct are in general so antithetical to effective assistance for example, lawyers who leave the courtroo m for long stretches of ti me during trial are unlikely to be stellar advocates in any matter that a case- bycase analysis simply is not worth the cost of protracted litigation. No matter what the facts of a given case may be, this sort of conduct will almost always result in prejudice. But attorney errors particular to the facts of an individual case are qualitatively different. Virtually by definition, such errors cannot be classified accordin g to likelihood of causing prejudice or defined with sufficient precision to inform defense attorneys c orrectly jus t what c onduc t to avoid . Consequently, the Cou rt has decline d to accord presump tively prejud icial statu s to them . Redman, 363 Md. at 311-12, 768 A.2d at 663 (quoting Scarpa v . DuBois , 38 F.3d 1, 12-13 (1st Cir. 1 994)) (c itations o mitted). Similarly, the Court of Special Appeals rejected Walker s argument that prejudice should be presum ed under Cronic. The court reasoned as follows: The facts in this case are more similar to the facts of Warner [v. Ford, 752 F.2d 622 (11th Cir. 1985)] than the facts of Martin [v. Rose, 744 F.2d 1245, 1250-51 (6th Cir. 1984)]. Though Walker -15- professed his innocence befo re trial, and continues to deny that he was guilty of the charges brought against him, the documentary and testimonial evidence against him was overw helmin g. [Petitioner] was one of three co-defendants, and though his own attorney did not activ ely participate in trial, counsel for Ms. H all did challenge the case presented by the State. Finally, [defense counsel] had six months to prepare for the trial. He received voluminous discovery, and discussed the case with his client several times prior to [petitioner s] flight from the country. Furthermore, [defense counsel] testified that he was prep ared to active ly represent [pe titioner] at trial, but chose not to deliberately because of [petitioner s] absence. Under the reasoning of the Eleventh Circuit set forth in Warner, prejud ice sho uld not be pres umed in this ca se. Walker v. State, 161 Md. App. 253, 270-71, 868 A.2d 898, 908 (2005 ). In addition, the court pointed out the practical effect of applying the Cronic standard as essentially abolishing trial in absentia . The cou rt noted as fo llows: We fear that if we allow a new trial in this case, it will open the door for criminal defendants to engineer an automatic new trial by failing to app ear for trial. If de fense cou nsel, with or without consent, then choo ses not to participate, and if the defenda nt is not successful on direct appeal, the defendant will obtain a new trial on ineffective assistance of counsel grounds. We decline to open the doo r for suc h man ipulatio n of the system. Id. at 273, 868 A.2 d at 910. W e agree w ith the Cou rt of Specia l Appeals and also reje ct petitioner s argum ent. Defendants wou ld have a foolproo f defense for a new trial if prejudice were pre sumed in every case in w hich the de fense cou nsel with an absent client elects to remain silent or p articipate minim ally. Cf. Toomey v. Bunnell, 898 F.2d 741, 744 n. 2 (9th Cir. 1 989); Harding v. Lewis, 834 F .2d 853 , 859 (9 th Cir. 1 987). -16- Courts around the country have interpreted Cronic very narrowly, thereby requiring a showing of actual prejudice rather th an pres uming prejud ice. See, e.g., Moss v. Hofbauer, 286 F.3d 851 , 862 (6th Cir. 2 002) (ref usin g to a pply Cronic where defense counsel failed to make an opening statement, cross-examine two witnesses, make objections, and call defense witnesses, because the omitted conduct was not the equivalent of being physically or mentally absent fro m the cou rtroom); Chadwick v. Green, 740 F.2d 897, 90 1 (11th Cir. 1984) (holding that when Cronic and [Strickland] are read in conjunction, it becomes evident that Cronic s presumption of prejudice applies to only a very narrow spectrum of cases where the circumstances leading to counsel s ineffectiveness are so egregious that the defendant was in effect denied any mea ningfu l assistan ce at all ). See also Turrentine v. Mullin, 390 F.3d 1181, 1207-09 (10th Cir. 20 04); James v. Harrison, 389 F.3d 450, 454-56 (4th Cir. 2004) ; Fink v. Lockhart, 823 F.2d 204, 206 (8th Cir. 198 7); United States v. Sanchez, 790 F .2d 245 , 254 (2 d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 584, 93 L. Ed. 2d 587 (1 986); State v. Da vlin, 658 N.W.2d 1, 13 (Neb. 2003 ). In the instant cas e, as a result of Walker s and Lee s failure to appear for trial, defense counsel found himself in the unenviable position of having to represent absent defendants. As a trial strategy, he de cided essen tially to remain silent, to protect the record as best as he could under the circumstances, to participate minimally, and to argue jury nullification the latter of which the Circuit Court did not allow. Under the circumstances presented herein, the strategy couns el employed was not su ch that it falls w ithin the narro w excep tion to -17- warrant a presumption of prejudice. Defense counsel s conduct was not so an tithetical to effective assistance that the Cronic presum ption o f prejud ice sho uld app ly. See Scarpa, 38 F.3d at 12. Moreover, his conduct did not amount to the complete failure of representation at every aspect of the trial proceeding, as contemplated by the Bell Court. See Bell, 535 U.S. at 697, 1 22 S. C t. at 1851 . In a motions hearing on Jan uary 18, 1993, defense counsel argued forcefully that Walker did not acquiesce to be tried in absentia . Prior to the beginn ing of W alker s trial, on January 19, 1993, defense co unsel, once again, argue d vehemently that trial of Walk er in absentia was unfair and in violation of the Sixth Amendment to the United States Constitution and Article 21 of the M aryland Dec laration of R ights, and an nounced that he would not in any way participate in the trial. Couns el characteriz ed his decis ion not to participate in the proceedings as a strategic choice because he unhesitatingly believed that [his clients] would not want [him] in any way to participate further at this trial, and that he could not participate in the trial by cros s-examin ing witnes ses, withou t having the benefit of [his clients next to him] to obtain information and engage in consultations. The following exchange occurred between Walker s post-conviction counsel and defense counsel at Walker s post-conviction proceeding on July 31, 2003 regarding defense counsel s tria l representatio n of Wa lker: [POST CONVICTION COUNSEL ]: You have put on the record that you believe that your clients wou ld not wan t you in any way to participate. -18- [DEF ENSE COU NSEL ]: That is corre ct. [POST CONVICTION COUNSEL] : That w as don e thoug h, was it not, sir, without any consultation with M r. Walker? [DEF ENSE COU NSEL ]: That is corre ct. [POST CONVICTION COUNSEL]: And without any consultation with, since you had two clients at that time, Ms. Walker. [DEF ENSE COU NSEL ]: That is corre ct. [POST CONV ICTION COUN SEL]: That was your opinion. [DE FEN SE C OU NSE L]: A bsol utely. [POST CONVICTION COUNSEL ]: But your opinion was not based upon legal research as to what your duty was as opposed to what you th ought you sh ould do, co rrect? [DEFENSE COUNSEL ]: My opinion on that specific question was [based on] my conversations with my clients and how they viewed the trial, at least to that statement, that I believe that my clients would not wa nt me to particip ate. That was my own belief. [POST CONVICTION COUNSEL ]: That was because you had, had discussions prior to trial. Mr. Walker believed that this was, in some respects a racist proceeding against him. He had an interracial ma rriage, correc t? [DEF ENSE COU NSEL ]: That is corre ct. [POST CONVICTION COUNSEL ]: And he had no great love for [the pro secutor] co rrect? [DE FEN SE C OUN SEL] : That w as an un derstate ment, yes . -19- This post-conviction colloquy further supports the conclusion that defense counse l s minimal participation was a strategic decision, borne out of unusual circumstances, rather than a constructive denial of counsel, which would require a presumption of prejudice under Cronic. See Martin v. McOtter, 796 F.2d 813, 820 (5th Cir. 1986) (concluding that counsel s decision to forego argument at the sentencing phase of Martin s trial did not constitute a constructive denial of counsel such as to render a showing of Strickland prejudice unneces sary ); Vickers v. S tate, 898 S.W.2d 26, 28 (Ark. 1995) (recognizing that matters of trial tactics and strategy, which can be matters of endless debate by experienced advocates, are not groun ds for p ost-con viction r elief ). Defense counsel further testified at the post-conv iction proce eding that h e had bee n Walke r s counsel f or approx imately six months, had conducted volumin ous discov ery and had many, man y conversation s with Walker before Walker absconded. Counsel was prepared to actively represent Walker, and once Walker absconded, counsel s decisions were grounded in what he thought his client would w ant, based o n his interactio ns with him prior to trial. Petitioner directs our attention to a few cases in which courts have held that the attorney s refusal to participate in the trial justified application of a presumption of prejudice under the Six th Am endm ent. See United States v. Swanson, 943 F.2d 1070 (9th Cir. 1991); Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984); State v. Harvey, 692 S.W.2d 29 0 (Mo. 1985 ). We find these cases distinguishable from the case sub judice. -20- In United States v. Swanson, 943 F.2d 1070 (9th Cir. 1991), the defendant was charged with armed robbery. Defense counsel acknowledged his client s guilt in closing argumen t, concedin g the elem ent of intimid ation and th at his client was the perpetrator of the offense. Id. at 1074. Fu rthermore, h e informe d the jury repea tedly that the def endant s g uilt beyond a reasonable doubt could not be questio ned. See id. at 1076-1078. The United States Court of App eals for the N inth Circuit viewed this conduct as constructive denial of counsel during a critical stage of the proceeding, thereby warranting a presumption of prejudice under Cronic. See id. at 1075-76. The court reasoned that when the defense attorney argued to the jury that no reasonable doubt existed, the defense shouldered part of the governmen t s burden of persu asion. T he co urt pointed out that the governm ent f ailed to identif y any strategy that could justify defense counsel s betrayal of his client. Id. at 1075. Here, Walker s attorney determined that the best strategy was not to actively participate. He neither c onced ed his c lient s gu ilt nor sh oulder ed the S tate s bu rden of proof . In State v. Harvey, 692 S .W.2d 290 (M o. 1985 ), prior to jury selection, defense counsel requested a continuan ce, noting tha t he was totally unprepar ed to begin the defense of his client in a ca pital murde r case. Id. at 291. Up on the cou rt s denial of h is request, defense counsel announced his intention to only sit at the counsel table, and not participate, asserting that he was unprepared and physically exhausted because of his work in another capital murde r case. Id. At both trial and sentencing, defense counsel remained almost entirely mute, participating o nly in voir d ire and f iling var ious po st-trial mo tions. Id. at 293. -21- In the sentencing phase, counsel presented no eviden ce as to m itigation . Id. at 292-93. On direct appeal, the Missouri Supreme Court rejected the contention that defense counse l s minimal participation in the procee dings wa s a strategic choice, consented to by the defenda nt, and thus, held that the defendant was constructively denied counsel within the meaning of Cronic. Id. at 293. An important factor in the court s decision was that the defendant was present during the trial, and the trial court had not inquired as to whether the defendant knowingly and voluntarily was relinquishing his right to effective assistance of couns el. See id. at 293. In the case sub judice, trial counsel had represented Walker for six months, conducted discovery, and was prepared to put on Walker s defense. It was the defendant who impeded this representation by failing to appear for trial. Furthermore, in Harvey, defense counsel d id not discuss this stra tegy of non-representation with his client, while in the instant case, defense counsel assumed attorney silence was the strategy Walker would want him to employ under the circumstances. In sum, Walker s attorney made a strategic calculation in an unusual situation, which is a far cry from Harvey s counsel, who was unprepared and searching for a way out of the case. In Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984), the defendant was indicted for the offenses of criminal sexual conduct in the first degree, incest, sodomy, and crimes against nature, arising from an incident involving him and his two minor s tepdau ghters. Id. at 1247. The trial court den ied defen se counse l s motion to d ismiss and m otion for a c ontinuanc e in -22- which he alleged that he was unprepared to the try ca se. Id. Thereafte r, defense c ounsel, without fully explaining the situation to his client or obtaining his client s consent, did not cross-examine any state witnesses, make any objections, call any witnesses for the defense, make any closing argument, or object to any part of the c ourt's ch arge to th e jury. Id. On appeal from denial of habeas relief, the United States Co urt of Ap peals for the Sixth Circu it held that this lack of participation deprived Martin of effective assistance of counsel at trial as thoroughly as if [counsel] had been absent, warranting a Cronic presumption of prejudice. Id. at 1250-51. The court held that even thou gh counsel s actions w ere unquestio nably trial strateg y, they did no t constitu te soun d trial stra tegy. Id. at 1249. The court reasoned that: Martin had denied participation in the offense; he had a strong defense that he cou ld present; he had no cr iminal recor d and cou ld take the stan d and testify on his own behalf, and that the State s case, based solely on the step-daug hters testimon y, could have b een ch allenge d by cros s-exam ination. Id. at 1250 -51. In the instant case, Walker s post-conviction counsel does not allege which arguments the jury did not hear and which evidence it did not see b y trial counsel s fa ilure to participa te more fully in Walker s trial. In Martin, attorney silence w as an unre asonable trial tactic for a client on trial for criminal sexual conduct because had Martin s attorney participated, Martin could have testified that he did not commit the crimes with which he was charged . . . [and] [e]v en if Ma rtin had not testified, the girls testimony could have been subjected to cross-examination or questio ned in f inal argu ment. Id. at 1250 -51. U nlike, Martin, the -23- case against Walker was built upon substantial documentary and testimonial evidence. Here, the record refle cts no defense Walker could have asserted if counsel had behaved diff eren tly. Moreover, in the instant case, defense cou nsel argued repeatedly to the C ircuit Court that trial in absentia was unconstitutional, cited rules to the Court, attended bench conferences during the trial, sought to make a closing argument, and responded to the Court s inquiries regarding a dmission o f State exh ibits. As the S tate points o ut, counsel for codefendant Hall challenged the State s evidence in front of th e jury, which w as to the ben efit of all thr ee def endan ts. We note that in the cases cited by petitioner, each defendant was present at trial and never waived h is right to effective assistance of counsel. Even if a defendant absconds prior to trial, the right to effective assistance of counsel is no t waived auto mati cally. As petitioner points out, it is well-established that a defendant s waiver of the Sixth A mendm ent right to counsel must be know ing and intelligen t. See Fare tta v. Californ ia, 422 U.S. 806, 835, 95 S. Ct. 2525, 2 541, 45 L . Ed. 2d 56 2 (1975); State v. Renshaw, 276 Md. 259, 265-66, 347 A.2d 219, 224 (1975 ). By failing to appear, howev er, the defen dant puts the attorney in the difficult position of deciding how best to put on a defense if a continu ance is denied and the trial judge proceeds in absentia. Whether non-participation or silence is a reasonable strategy should depend upon the circumstances of each case. See Warner v. Ford, 752 F.2d 622, 625 (11th C ir. 1985 ). -24- Silent strategy is the phrase often used to describe an attorney s decision either not to participate at trial or to partic ipate m inimally. Cf. Warner, 752 F.2d at 625 ; Walker I, 338 Md. at 261, 658 A.2d at 243; Keith Cunningham-Parmeter, Dreaming of Effective Assistance, 76 Temp. L. Rev. 827, 869-875 (2003). Some courts have recognized an attorney s decision to remain silent as a legitimate, strategic choice worthy of deference und er Strickland. See generally United States v. Sanchez, 790 F.2d 245 (2 nd Cir.) , cert. denied, 479 U.S. 989, 107 S. Ct. 584, 93 L. Ed. 2d 587 (1986) (applying Strickland to defendant s ineffective assistance of counsel cla im where defendant had absco nded prior to trial and trial counsel s participation was limited to objection to trial in absentia and a fligh t instruction an d to moving for judgment of acquittal); Warner v. Ford, 752 F.2d 622 (11th Cir. 1985) (applying Strickland to defendant s ineffective assistance of counsel claim, where trial counsel s participation was limited to a motion for a directed verdict, a request for a mistrial, and a recommendation that his client not take the witnes s stand) . See also Martin v. McCotter, 796 F.2d 813 (5th Cir. 1986) (applying Strickland to defendant s ineffective assistance of counsel claim, where trial counsel rem ained silent at the sentencing ph ase of his client s trial). In Warner v. Ford, 752 F.2d 622 (11th Cir. 1985), the United States Court of Appea ls for the Eleventh Circuit considered a claim of ineffective assistance of counsel involving defense counsel s s ilence durin g trial in the fac e of ov erwhe lming e videnc e of gu ilt. Id. at 625. Two co-defendants were tried in the same proceeding with Warner, and Warner was convicted of fou r count s of arm ed robb ery. Id. at 623-24. Warner s attorney did not -25- participate in the trial, except to move for a directed verdict on one count, request a mistrial three times, and recommend that his client not take the stand when his client was called by his co-def endan ts to testif y in their de fenses . Id. at 624. On appeal from the D istrict Court s denial of habeas, the Eleventh Circuit applied the Strickland analysis to Warner s claim of ineffective assistance o f counse l, deciding tha t a case-by-case inquiry is more suitable than a presum ption o f prejud ice, wh en the silent stra tegy is at is sue. Id. at 625. The Elev enth Circuit explained as follows: Silence can c onst itute trial s trate gy. Whether that strategy is so defective as to negate the need for a showing of prejudice to establish ineffective assistance of counsel must be judged on a case-by-case basis. [Strickland] has establish ed that courts must indulge a strong presum ption that counsel s conduct falls within the wide range of professional assistance. Thus, in order for a petitioner with an ineffective assistance claim to prev ail over his former counsel s assertion of strategy, he must overcome the presumption that, under the circumstances, the challenged action mig ht be considered sou nd trial strategy. Id. at 625 (citations omitted). The Warner Court concluded that defense counsel s representation of Warner was not so defective as to entitle Warner to relief without any show ing that h is attorne y s cond uct preju diced h im. Id. In United States v. Sanchez, 790 F.2d 2 45 (2d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 584, 93 L. Ed. 2d 5 87 (1986 ), Sanchez did not appear for trial on the scheduled date. His attorney, the co-defendant, and the co-defendant s attorney were present, and the trial procee ded in S anche z s abse nce. Id. at 248. Defense counsel engaged in limited defense activity, consisting of objecting to the trial itself, a request for a flight instruction, and a -26- motion for jud gmen t of acq uittal. Id. at 248, 253. The jury returned a v erdict of gu ilty against Sanchez on two c ounts, and Sanchez claimed ine ffective ass istance of c ounsel. Id. at 248. The United States Court of Appeals for the Second Circu it rejected Sanchez s ineffective assistance o f counse l claim, refusin g to invoke Cronic where a defendant by his own obstructive conduct precludes his counsel from pursuing an intelligent [and] active defen se. Id. at 254. The Second Circu it recognized the silent strateg y as appropria te in some cases, noting as follows: Here, there is no evidence that Sanchez made any effort to commu nicate with or othe rwis e coo pera te with his atto rney. There is no evidence that Sanchez consulted with his attorney regarding his decision not to attend the trial, and not to be available during the week s preceding trial. Where an attorney is confron ted with su ch a client, whose uncooperativeness precludes any reasonable basis for an active defense, the strategy of silence perhaps in hopes that the government will produce insufficient evidence or that the government or court will commit reve rsibl e error m ay actually constitute a defense strategy. Certainly, the right to counsel does not impose upon a defe nse a ttorn ey a du ty unilaterally to investigate and find evidence or to purs ue a f ishin g expedition by cross-examination, or to present opening or closing remarks on the basis of no helpful information, or to object without purpose, on behalf of an unc oopera tive and unava ilable clie nt. Id. at 253 ( citations omitted ). Simply because silence is the product of trial strategy, however, does not insulate attorney conduct f rom review . Strategic dec isions mus t nonetheless be supported by reasonab le profession al judgme nt. See Strickland v. Washington, 466 U.S. 686, 690, 104 S. -27- Ct. 2052, 2066, 80 L. Ed. 2d 674 (198 4). Wheth er silence a s a strategy is reaso nable is to be determined on a case by case basis, under the standards set forth in Strickland. See id. at 691, 104 S. Ct. at 2066 (noting that the reasonableness of counsel s actions may be determined or substantially influenced by the defendant s own statements or actions. Counsel s actions are usually based, quite properly, on informed strategic choices made by the def endan t and on the info rmation supplie d by the d efend ant ). We hold that the post-conviction court did not err in rejecting the Cronic standard in this case and th at Strickland v. Washington provides the proper framework for review of Walker s ineffective assistance o f counse l claim und er the Sixth A mendm ent. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER. -28- IN THE COURT OF APPEALS OF MARYLAND No. 21 September Term, 2005 __________________________________ LE BON WALKER A/K/A L.B. WALKER, SR. v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ___________________________________ Dissenting Opinion by Bell, C.J. __________________________________ Filed: February 10, 2006 Strickland v. Washington, 466 U. S . 668, 104 S . Ct. 2052, 80 L. Ed. 2d 674 (1984) enunciated the test for resolving a defen dant s claim of ineffectiveness of counsel, indicating in the process that the critical inquiry must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id. at 685-86, 104 S. Ct. at 2063-64, 80 L. Ed. 2d at 692-93. The test the Court a nnounc ed assesses the likelihood that the assistan ce rendere d pursuan t to counsel s obligation to make the adversarial testing process work in the particular case, id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695, was outside the wide range of p rofessiona lly competent assistance. Id. It stated the test: The defendant mu st show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confid ence in the outc ome. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.1 The Court also was clear: Judicial scrutiny of counsel's performance must be highly deferential. Id. 1 This Court has characterized the test somewhat differently, substituting reasonab le possib ility, Bowers v. State, 320 Md. 416, 427, 578 A.2d 734, 739 (1990), for the phrase, rea sona ble p roba bility, use d by Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 8 0 L. Ed . 2d 674, 698 (1984). We explained: Substantial possibility, of course, is the term we used to d efine the may well standard we adopted in Yorke [ v. State, 315 Md. 578, 556 A.2d 230 (19 89)]. We think the standard , as so define d, aptly describes the prejudice standard the Supreme Court adopted in Strickland. United States v. Cro nic, 466 U.S . 648, 659, 1 04 S.Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984) is an exception to Strickla nd v. W ashington; it pre sum es un constitutionality, under the S ixth Amendment right to effective assistance of counsel, when defense counsel entirely fails to subject the prosecution s case to meaningful adversarial testing. 466 U.S. at 659, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668. The purpose of this, and the other exceptions outlined in Cronic, is to avoid lengthy, costly, and unnecessary litigation when the adversarial process clearly has been compromised. Id. at 658, 104 S. Ct. at 2046, 80 L. Ed. 2d at 667. In the situations identified in Cronic, 466 U.S . at 658-59, 1 04 S. Ct. at 204647, 80 L. Ed. 2d at 667-68, the circumstances are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified, id. (See also Strickla nd, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696, stating th at [p]r ejudice ... is so likely that case-by-case in quiry into prejud ice is no t worth the cos t. ), and they involve impairme nts of the Sixth Am endment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696 (citing Cronic, 466 U.S. at 659, 104 S.Ct. at 2047, 8 0 L.Ed .2d at 66 8.). Because Cronic is an exception to Strickland and conte mplates a m eaningful adversarial testing of the State s case, as with Strickland, see 466 U. S. at 694, 104 S. C t. at 2068, 80 L. Ed. 2d at 697-98, deference to trial strategy must be paid when determining its applica bility. Cronic, 466 U.S. at 658, 204 S.Ct. at 2046, 80 L.Ed. 2d at 667. A trial -2- strategy, to be entitled to deference, as contemplated by Cronic, I would h ave thoug ht, would have the inten t, if not th e effec t, and a re asonab le possib ility, see Bowe rs v. State, 320 Md. 416, 427, 578 A.2d 734, 739 (1990), of furthering the defendant s interests. Thus, the strategy should be a potentially effective approach, that is not only available, but which also has a re asonab le, legally v alid bas is. Counsel for Le Bon Walker, the petitioner, after making the pre-trial argument that it was unconstitutional to try the petitioner in absentia, and, when that argument was unsucce ssful, attempting to excuse himself fro m the trial and later proffe ring to the court a jury nullification argument, wh ich was also rejected, rema ined silent throughout t he trial, failing to make a n opening statement to the jury, to call witnesses, to cross examine the state s witnesses, to make objections, to make any motions or to make any substantive closing argumen t to the jury. This strategy, characterized by these omissions, the majority effectively says, see Walker v . State, ___ Md. ___, ___, ___ A. 2d ___, ___ (2006) [slip op. at 17], constituted a reasonable trial strategy, a meaningful adversarial testing of the prosecution s case within the meaning of Cronic, 466 U.S. at 659, 104 S. Ct. at 2047, 80 L. Ed.2d at 668, a nd, thus , entitled to defere nce. I do not a gree. Fi rst, I question whether counsel s actions reasonably can be considered a trial strategy; certainly, it cannot be logically characterized as reasonable. App aren tly, the sole basis for counsel s failure, refusal is perhaps more a ccurate, to participate in the trial was his intention to make a ju ry nullification argu ment. -3- Such an argument is impro per, see Stevenso n v. State, 289 Md. 167, 178, 423 A.2d 558, 564 (1980 ); Franklin v. State, 12 Md. 236, 1858 WL 3 251, 2 ( 1858) , and, thu s, imper missible . Counsel should have kno wn, theref ore, that he w ould not b e allowed to argue tha t the jury could nullify the discretion ary ruling entrus ted to, and m ade by, the trial court; he should have known that, because such an argument is improp er, it would be determin ed by the trial court to be unreasonable an d would be prohib ited. It should h ave been clear to any reas onable attorney that a jury nullification argument would be a fruitless gesture, a failure. It is just as clear, or should be, that if a trial strategy simply has no chance of f urthering counsel s client s inter ests, it can not rightly, or in any sense, be considered reasonab le and is sim ply not entitled to even the slightest deference. Her e cou nsel s strate gy was no s trategy at all. 2 Unless counsel s refusal to participate at trial was trial strategy, it is absolutely clear, beyond any doubt, tha t counsel fail ed to subject the prosecution s case to any meaningful adversarial testing and, thus, failed to provide effective assistance under Cronic. Indeed, on this record it is quite clear that he neither tried to do so, nor intended to. Certainly the fact that the petition er s counse l made on e, initial argum ent to the co urt, outside the jury s presence, that the in absentia issue, decided only a short time earlier, 2 Holding in reserve, for use during closing argum ents to the jury, of a jury nullification argument, in which the jury would be asked to disregard all that had transpired because the court chose to proceed with trial in the defendant s absence is about as reasonab le and as likely to succeed as holding in abeyance an argument already rejected by the trial court during pre-trial proceedings, to be sprung on the jury during closing arg ument. -4- rendered him incapable of fully representing his client did not meaningfully test the prosecution s case. In doing so, he was, in essence, arguing a point which had already been decided by the court and, thus, was not an issue in the prosecution s case against the petitioner which it was required to prove. Nor was the jury nullification argument a testing of the State s case an d it was no t intended to be. It merely w ould have invited the jur y to disregard the State s evidence and the trial cou rt s discretionary ruling, on policy grounds, not reject the State s case on the merits. The majority, relying on Warner v. Ford, 752 F.2d 622 (11th Cir. 1985), and U.S. v. Sanchez, 790 F.2d 245 (2 nd Cir. 1986), holds that the petitioner s counsel, by not participating in the petitioner s in absentia trial, acted strategic ally. Walker v. State, __ Md. __, __ A.2d __ (2006) [slip op. at 25-28]. It determ ined that, because the court must indulge a strong presumption that counsel s conduct f alls within the wid e range of pro fession al assista nce, id. at __, __ A.2d at __ [slip op. at 26], a petitioner must overcom e the presum ption that his counsel s actions constitu ted trial str ategy. Ac cordin gly, it opine s, a case-by-case a nalysis under Strickland is the proper proced ure. Id. at __, __ A.2d at __ [slip op. at 26-28]. Neither Warner nor Sanchez proves the majority s point regarding the case sub judice. In Warner, defense c ounsel did not participate in voir dire, made no pretrial motions, made no opening statement, did not cross examine the State s witnesses, did not call any defense witnesses, d id not object to any of the State s evidence, offered no defense evidence, and made no closing argument. 752 F.2d at 624. He did move for a directe d verdict, and -5- moved for a m istrial thre e times, h owev er. Id. at 625. At post-conviction proceedings, defense counsel tes tified that his silence reflected a trial strategy in the face of overwhelming evidence against his client. Id. The trial c ourt, relyin g on that t estim ony, found a sufficient basis on which to conclude that counsel s silence was a reasonable trial strategy. Id. It distinguished the case from Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984), infra, in that Warner had admitted his guilt, so his case was not subject to much question, the evidence against him was overwhelming, and counsel had testified that he was p repared . Id. The cou rt found, ac cordingly, no in effectiven ess of cou nsel. 3 In Sanchez, the defendant also was tried in absentia. He had met his attorney once, 790 F.2d at 248, and the n was release d on ba il, from w hich he did not return. Id. Therefore, Sanchez s counsel stood silent during the e ntire trial, except that h e made tw o objection s to the court, one re garding its decision to try his c lient in absentia , id., and the second, when he joined Sanchez s co-defe ndant s m otion for jud gment of acquittal. Id. The Eleventh Circuit 3 It legitimately and logically may be argued that defense counsel in Warner v. Ford, 752 F.2d 622 (11th Cir. 1985), as a matter o f fact, did su bject the pro secution s c ase to meaningful adversarial testing in that he made substantive motions during trial, before the jury. The office of such motions, by their very nature, is to call th e prosecu tion s case into direct question. In response to such a motion, we may assume, because judges are presumed to know th e law and to follow it, Bank of the United States v. Dandridge, 12 Wheat. 64, 25 U.S. 64, 69-70, 6 L.Ed. 552, 554 (1827); Schow gurow v . State, 240 Md. 121, 126, 213 A.2d 475, 479 (1965); Albrech t v. State, 132 Md. 150, 156, 103 A. 443, 445 (1918), that the court critically and impa rtially evaluated the evidence and foun d it sufficient. Defense counsel in this case made no such motions. -6- Court of Appeals found that Sanchez had not been denied effective assistance of counsel, stating that where, as here, the defend ant by his ow n obstructiv e conduc t precludes h is counsel from pursuing an intelligent active defense, the concerns of Cronic... are not involved.... Id. at 254. The decisive an d critical concern expressed by the court in Sanchez, that Sanchez could have forever blocked his being brought to justice and prevented his own trial from ever being held, by re fusing to coop erate an d evad ing arre st, id., is not present in this case, at least to anywhere near the extent that it was in Sanchez. While that is a concern that can be, and often is, expressed in e very case in w hich the issu e of trial in absentia is a poss ibility, it was especially acute in Sanchez, being the prime rationale for the decision. No such magnitude of conce rn is warran ted in this case. While Sa nchez did not coope rate with his counsel, the petitioner had done so until the time of his flight. Sanchez had a history of obstructive conduct; Walker did and does not. The concerns underlying the Sanchez decision are simply not present in the case sub judice. The right to the effective assistance of counsel is thus the right of th e accused to require the prosecution s case to survive the crucible of meaningful adversarial testing... if the process los es its characte r as a confr ontation be tween ad versaries, the constitutional guarantee is violated. Cronic, 466 U.S. at 656-7, 104 S. Ct. at 2045-46, 80 L. Ed. 2d at 666. The purpose of Cronic is to maintain the integrity of the adversarial system, which depends -7- on a balance of power between prosecution and de fense. Id. at 655, 104 S.Ct. at 2044-45, 80 L. Ed.2d at 665. This, in fact, is the reason for the Sixth Am endmen t right to coun sel. Gideon v. Wainw right, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 805 (1963). As we have seen, the Supreme C ourt has characterized the ineffective assistance proscribed by Cronic as a complete failure to test th e State s case, Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 551, 562, 160 L.Ed.2d 565 (2004); Bell v. Cone, 535 U.S . 685, 697, 1 22 S. Ct. 1843, 1851, 152 L. Ed. 2d 914, 928 (2002) if counsel is denied during a critical stage of the trial, or if no attorney could have provided defendant with effective assistance given the surrounding circumstances. Thus, the proper focus is on whether there was a failure actu ally to test the prosecution s case me aningf ully. Id. at 659, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668. To be sure, the Cronic holding is narrow, as the Supreme Court made clear in Bell v. Cone, 535 U.S. at 697, 122 S . Ct. at 1851, 152 L. Ed. 2d at 928, observing: When we spoke in Cronic of the possibility of presuming pre judice based on an attorney s failure to test the prosecutor s case, we indicated that an attorne y s failure mus t be comp lete. We said if counsel entirely fails to subject the prosecution s case to meaningful testing. Cronic, supra, at 659, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668 (emphasis added). In that case, defense counsel had cross-ex amined the prosec ution s witnesses, had not called any defense witnesses, and waived closing argum ent. Id. That the Cronic holding is n arrow do es not, however, indicate that the test it announced is meaningless. -8- Requiring a comple te failure to test the State s case does not me an that, for a defendant to succeed, defense counsel must be shown to have done absolutely nothing to test the State s case. Just because c ounsel m ay have ope ned his m outh at some point during the trial to make a comment or offer some other non-substantive or innocuous expression does not mean he or she has meaningfully tested the prosecution s case. In several sleeping lawyer case s, atto rneys who napped during at least one critical stage of the trial have been found to have failed to provide effective assistance even when, during their conscious moments, they expertly cross-examined state witnesses, objected, and introduced evidence. See Tippins v. Walke r, 77 F.3d 682, 686 (2d Cir. 1996) (when a n attorney wa s repeated ly unconscious at trial for periods of time during which the defendant s interests were at stake a structural flaw occurred, resulting in prejudice, even though attorney put on defense and called witnesses during times of consciousness); Javor v. United States, 724 F.2d 831, 83335 (9th Cir. 1984) (unconscious or sleeping counsel is inherently prejudicial, as partial absence is prejudicial as a matter of law, despite attorney having presented vigorous, adequate argumen ts during times of co nsciousne ss); Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (prejudice presumed when attorney has slept or remained unconscious through critical stages of the trial regardless of counsel s ade quacy when aw ake). Thus, an attorney can meaningfully fail to test the prosecution s case even though he may have said something during trial, an d not rema ined com pletely silent. -9- Although not an in absentia case, Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984) , is instructive. There, the d efendan t was tried, on several cou nts, for the sex ual abuse o f his stepchildren. Id. at 1247. Prior to trial, Martin s counsel [hereinafter counsel ] filed several pretrial motions, inc luding a m otion to dism iss for den ial of a s peedy tria l. Id. When these motions were not heard before trial started, counsel determined that he would rely on [his] Motio ns, id., which reliance would be reflected by his declining to participate at trial; he would not put on any proof or cross exam ine witn esses. Id. Although he refrained from participating in jury selection, he did make an opening statement to the jury. In that statement, Counsel explained that he would n ot participate in the trial and gave reasons for that decisio n. Id. Consistently thereafter, counsel did not cross-examine witnesses, did not call any witnesses, did not object, and did not make a closing argument. Martin was convicted. On habeas corpus review, the Sixth Circu it Court of Appeals reversed. Having determined that counsel s conduct was a deliberate trial tactic, id. at 1249, an d fully cognizant of the re quirem ent that it a fford m uch de ferenc e to suc h decis ions, that court concluded that counsel s decision to rely on that tactic was unreasona ble, counsel s failure to particip ate bein g due to his misu ndersta nding o f state law . Id. That and the fact, specifically noted by the court, that Martin had a good defense meant, said the court, that counsel had not rendered professionally competent assistance. Id. It concluded that Martin demonstrated both prejudice under Strickland, and that there was no meaningful -10- testing of the prosecution s case und er Cronic, i.e., that the attorney s lack of participation deprived Martin of effective assistance of counsel at trial as thoroughly as if he had been absent. Id. at 1250 . Martin s counsel had done something at trial, he was not, as here, completely nonparticipatory he had filed pretrial motions, argued that they should be heard, and then, once he had decided on his trial strategy, shared it with the jury, explaining that he intended to remain silen t and why. 4 Nevertheless, on the basis of what he did not do, challenge the State s case in a meaningful way, the court found that his actions amounted to a com plete lack of meaning ful adversarial testing under Cronic. Comparing the perform ance of M artin s coun sel to that of th e petitioner s, it is apparent that, there is little to choose with respect to the level and nature of the legal assistance rendered. Perhaps counsel for Martin provided a degree of assistance better than that rendered by petitioner s cou nsel - unlike th e petitioner s c ounsel, w ho addre ssed only the court with regard to his strategy, Martin s counsel addressed the jury, the very body charged with observing and determining the outcome of the adversarial proceedings. In no way, in any event, can the representation by petitioner s counsel be considered to be qualitatively different, an d certainly it was not better, than that rendered by Martin s counsel and, so , is entitled to no gr eater de ferenc e. 4 The majority states that Martin was not advised of his counsel s trial strategy, but Martin was in the courtroom when his counsel clearly explained to the jury the purpose of his silence. -11- The majority distinguishes Walker from Martin because M artin had a g ood, likely truthful defense and because the evidence against him was not overwhelming, as it was against Walker. Walker v. State, __ Md. __, __ , __ A.2d __, __ (2 005) [slip op. at 23-24]. Such an analysis places the cart before the horse it argues, in essence, that Walker was not deprived of effective assistance of counsel beca use h e wa s gui lty anyw ay. Furthermore, the Martin court s discussion of Martin s strong defense a nd likely innocence has nothing to do with its Cronic analysis. The court performed both a Strickland, Martin v. Rose, 744 F.2d at 1249-50, and a Cronic , id., analysis, finding that Martin had not received effective assistance under either standard. Martin, 744 F.2d at 1251. That Martin had a strong defense in the face of limite d evide nce, the refore, went to whether, under Strickland, he had been prejudiced. Id. at 1249. In so concluding, the court described several actions which counsel could have undertaken, and wh ich wou ld have be en consiste nt with his role as co unsel; his failure to do any of them amounted to prejudice under Strickland. Id. at 1250. Sp ecifically the court state d: While arguing his motion to dismiss or continue, Martin s attorney told the court that Martin had stated that he denied the charges against him. The attorney knew that Martin was willing to testify and had no criminal record. The only direct evidence against Martin w as the testimo ny of his stepdaughters; if Martin had been called to testify the jury would have heard his denial and his theory that the girls were encouraged to falsify the incident, and would have been able to judge the credibility of the defendants and of his stepdaughters in reaching a verdict. Martin, 744 F.2d at 1250. -12- In addressing Cronic, the Martin court focused on whether counsel s fa ilure to participate in the trial mad e the adve rsarial proces s unreliable. It c oncluded that counsel s refusal to participate m eant that M artin was u nable to subject the prosecu tion s case to meaningful adversarial testing, and thus the Cronic test failed as well. Id. at 1250-51. It explained : Because his attorney refu sed to particip ate in any aspe ct of the trial, Martin was unable to subject the government s case against him to the crucible of meaningful adversarial testing - the essence o f the right to effective assistance of counsel. The attorney s total lack of participation deprived Martin of effective assistance of counsel at trial as thoroug hly as if he had b een absen t. This was constitutional error even without any show ing of p rejudice . Id. at 1250-51 (citations om itted). Whether, therefore, the state s case against Walker was strong or weak is immaterial to a Cronic analysis; regardless of what type of case the state has, it still must be subjected to mean ingful a dversa rial testing . Cronic presumes ineffective ass istance wh enever it is clear that the adversarial system has so broken down that it is impossible for prejudice to be avoided, Cronic, 466 U.S. at 656, 104 S.Ct.at 2045, 80 L.Ed.2d at 665; that occurs when the tools essential to the adversarial system are not utilized, with the result that there is, in reali ty, no adversity of position. That Martin perhaps had a stronger defense than Walker does not mean the test applicable to each case is different, that one is entitled to greater assistance - adversarial testing, if you will - th an the o ther. After-the-fact evaluation of the strength of the State s -13- case should not be a factor in the application of the test, with one result, a finding of effective assistance, obtaining when the evidence of guilt is strong, and another, a finding of ineffective assistan ce, wh en it is w eak or n ot so stro ng. Cronic does not re quire that the adversarial testing be successful, or likely so, just that it be meaningful. It follows, therefore, that howev er strong the evidence of the petition er s appare nt guilt, it certainly was p ossible f or his atto rney mea ningfu lly to test the prosec ution s c ase. Martin is not alo ne.. See also United States v . Swanson, 943 F.2d 1070, 10 74 (9th Cir. 1991) (attorney s concession of a lack of reason able doub t to the jury was f ailure to subject the prosecu tion s case to m eaningfu l adversarial testing and, thus, a failure to provide effective assistance under Cronic). See also Tippins v. Walker, 77 F.3d 682, 68 6 (2d Cir. 1996) (when an attorney was repeatedly unconscious at trial for periods of time during which the defendant s interests w ere at stake a structural flaw oc curred, resulting in prejudice, even though attorney put on defense and called witnesses during times of consciousness); Javor v. United States, 724 F.2d 831, 833-35 (9 th Cir. 1984) (unconscious or sleeping counsel is inherently prejudicial, as partial absence is prejudicial as a matter of law, despite attorney having presented vigorous, adequate arguments during times of consciousness); Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (prejudice presumed when attorney has slept or remained unconscious through critical stages of the trial regardless of counsel s adequ acy when awa ke). -14- The majority makes several other arguments in support of its conclusion that the petitioner s counsel rendered effective assistance: the State s case was meaningfully tested by the petitioner s co-defen dant, Walker v. State, __ Md. at __, __ A.2d at __ [slip op. at 33]; the petitioner s co unsel had a sufficien t period of tim e to prepare for trial and was prepared, id. at __, __ A .2d at __ [slip op. at 20]; the evidence against the petitioner was overwhelming and, so, there was little that the petitioner s counsel could h ave do ne. id. at __, __ A.2d at __ [slip op. at 23 ]; a decision in the petitioner s favor invites abuse, in that defendants will be able to disrupt trials and avoid b eing br ought t o justice . id. at __, __ A.2d at __ [slip op. at 26-27 ]. Non e of the se argu ments is persua sive, if e ven rele vant. First, that the attorney for the petitioner s co-defendant subjected the State s ca se to meaningful adversarial te sting with re spect to that atto rney s client is an in sufficient b asis on which to a rgue that the case against the petition er was m eaningfu lly tested. The sixth amendment right is a personal right, Texas v. Cobb, 532 U.S. 162, 172, 121 S. Ct. 1335, 1343, 149 L. Ed.2d 321, 331(2001); thus, the petitioner had a right to his own effective counsel, in the State s c ase against him. It is immaterial that a co-defendan t s counsel was effective in the State s ca se against tha t co-defen dant. The m ajority does not c ite any case in which the Sup reme C ourt, or any court, for that matter, has held that the meaningful adversarial testing requirement can be satisfied, or is satisfied, as to all defendants, by the efficient and effe ctive represen tatio n of a co- defe ndant by that co-defend ant s co unsel. I certainly k now o f none and ha ve bee n unab le to find any. -15- Second, the amount of preparation time defense counsel has or the extent of defense counsel s actual preparation is not necessarily predictive of his or her actual perform ance in an in absentia situation. Inde ed, it may not be material to that situation at all. However much preparation time the petitioner s counsel had to prepare this case for trial and however well prepared he actually wa s certainly did no t inure to the p etitioner s ben efit in this case. The record refle cts a complete failure of representation of the petitioner whatever counsel s level of pre parednes s and how ever long it to ok to achie ve that level. Third, and as d iscusse d abov e, Cronic presumes prejudice in certain situations. Thus, whether the petitioner was guilty, or how voluminous the proof of that guilt, is not the proper question. T he only releva nt question is whether , by doing noth ing, or as clos e to nothing as one could get, counsel discharged his responsibility to render effective assistance of couns el. By doing nothing, coun sel did not further his client s interest in having the gears of the adversary system engaged, to the end of testing the strength of the State s case. The majo rity, noting the overwhelming evidence against the petitioner, suggests that it cannot conceive of a way in which defense counsel could have any more meaningfully tested the state s case. Walker v. State, __ Md . at __, __ A .2d at __, [slip op. at 23]. It take s little imagination to realize the obvious he could and shou ld have, at the least, tested the State s witnesses ability to recall, observe and relate accurately that to which they offered testim ony. -16- Finally, the ma jority s con cern tha t defen dants w ill abuse the system , and successfu lly so, were the C ourt to find a Cronic exception in cases w here defe ndants have delib erately rendered themselves unavailable for trial is, to my mind, terribly overblown and unrealistic. As I piece it together, the fear is that defendants, on a broad scale, will abscond to avoid a trial already scheduled, knowing that, if their attorneys remain silent, they will get a new trial. I have not the slightest doubt that attorneys, officers of this Court, held to high ethical standard s of c onduct, w ill no t so easily b e use d or s o eas ily acq uiesce in this w ay. This case does create a concern with respect to attorney representation in in absentia cases. After this case, no meaningful review of attorney performance will be possible or necessary in this kin d of ca se. This Court has provided a blueprint f or attorneys fac ed with trial in absentia, one that w ill insulate them from findings of ineffective assistance of counsel: adopt a strate gy to do nothing; that strategy even can be coupled with one that does not make sense or that is improper. Why, with this high level instruction, would, or should, an attorney do anything beyond remaining silent? After all, the Court has instructed that a non-p articipato ry strategy is e nough , and to do more would, or could, subject the attorney to post-conviction proceedings at which he could be d etermined to have provided ineffe ctive ass istance. -17-

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