Taylor v. State

428 Md. 386

51 A.3d 655

Grayson Darnell TAYLOR

v.STATE of Maryland.

No. 95, Sept. Term, 2011.

Court of Appeals of Maryland.

Aug. 24, 2012.

Reconsideration Denied Sept. 20, 2012.

Geraldine K. Sweeney, Chief Attorney (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.

Edward J. Kelley, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

BARBERA, J.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established the now well-known two-pronged test for determining whether a criminal defendant received the effective assistance of counsel that is guaranteed by the Sixth Amendment to the United States Constitution. The test laid out in Strickland burdens the defendant with establishing both “that counsel's performance was deficient” and that counsel's errors “prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. This general rule has an exception, however. The defendant is excused from proving the prejudice prong of the Strickland test upon a showing that counsel was “burdened by an actual conflict of interest,” id. at 692, 104 S.Ct. 2052 that is, the conflict is one that “actually affected the adequacy of [counsel's] representation,” Cuyler v. Sullivan, 446 U.S. 335, 349–50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Upon such a showing by the defendant, prejudice to the outcome of trial is presumed. Strickland, 466 U.S. at 692, 104 S.Ct. 2052.

In the present case we consider whether Petitioner, Grayson Darnell Taylor, is entitled to the Cuyler v. Sullivan “conflict of interest” presumption of prejudice in connection with his ineffectiveness of counsel claim. The conflict of interest stems from defense counsel's filing suit against Petitioner for unpaid legal fees while representing him in his criminal case. For the reasons that follow, we hold that this is a conflict of interest that is governed by the Sullivan rubric. Petitioner, however, is entitled under the Sullivan rule to the benefit of the presumption of prejudice only if he can show that the conflict of interest is “actual” in the sense that it in fact had an adverse effect upon counsel's performance. Applying that rule to Petitioner's case, we further hold that a remandis necessary for development of the record on the question of whether Petitioner can show that defense counsel's conflict of interest adversely affected his representation of Petitioner.

I.

The grand jury for Dorchester County returned an indictment charging Petitioner with distributing and possessing a controlled dangerous substance on December 7, 2005.¹ Petitionerwas arrested on the charges in that case in September 2006 and a week or so later retained attorney Christopher Robinson (Robinson) to represent him in that case as well as in a separate criminal case that was scheduled for trial a few days hence and ultimately resulted in a nolle prosequi.

When Petitioner retained Robinson to represent him, Robinson required that Petitioner and Jenette Anderson (Anderson), Petitioner's girlfriend at the time, sign the representation agreement so that “[Anderson] would ultimately be responsible for making payment on the note.” ² According to Robinson, “[Petitioner] had told me he was unemployed and I wasn't—and they were asking me to jump into a case with two days to prepare and I wasn't going to turn my life upside down unless I was going to get paid.” The agreement established a flat fee of $6,000 for Robinson to represent Petitioner in both of Petitioner's then-pending criminal cases and required either Petitioner or Anderson to pay Robinson $250 the subsequent Friday, as well as $100 every Friday thereafter until the fee was paid.

Petitioner's trial in the present case was scheduled originally for December 12, 2006. On that day, trial was postponed until January 9, 2007. On December 15, 2006, Robinson filed a civil complaint seeking judgment against both Petitioner and Anderson for the unpaid fees due under their agreement. ³Robinson ultimately obtained a judgment of $6,000 against Petitioner and Anderson on February 23, 2007, after Petitioner's trial but before sentencing. Later in 2007, presumably after the representation had terminated, Robinson sought to garnish Anderson's wages in satisfaction of the judgment.

The testimony given at Petitioner's trial on January 9, 2007, revealed that, on December 7, 2005, a confidential informant, whose identity was later revealed as Kevin Williams, purchased rock cocaine from an unidentified male in Cambridge, Maryland. The transaction occurred in Williams's car, which had been equipped with a hidden camera. The camera captured and recorded the transaction, and Petitioner was later identified by Corporal Scott Henry as the man who sold Williams the rock cocaine.The videotape of the transaction was admitted into evidence and played (and replayed) for the jury.

Petitioner's defense at trial was that he was not the seller observed in the videotape. On the morning of Petitioner's trial, before the jury was selected, Robinson, on behalf of Petitioner, sought permission to call Anderson as an alibi witness in support of that defense theory. Robinson proffered that Anderson would testify that after Petitioner finished work most nights he would return to Anderson's home in Salisbury and spend the night, and, therefore, he was not always present in Cambridge, where the incident occurred. Robinson explained, though, that Anderson could not testify specifically about Petitioner's whereabouts on the evening of the incident. The trial court did not permit Anderson to testify as an alibi witness because Robinson had not timely disclosed his intention to call her, as the State had requested notice of all alibi witnesses. Robinson did not call Anderson to testify for any other purpose. Ultimately, the jury convicted Petitioner of both counts: distributing and possessing a controlled dangerous substance. At no time before or during the trial was the trial court made aware of Robinson's pending lawsuit against Petitioner.

Robinson filed a Motion for New Trial on behalf of Petitioner, which the trial court heard and denied on March 5, 2007. The court then proceeded immediately to sentencing. At that point, Petitioner attempted to interrupt, stating, “Hold up. Now, can I say something?” The court responded that Petitioner should sit down because he was represented by counsel. Both Robinson and the State argued as to the appropriate sentence, and then the court turned to Petitioner, asking “would you like to say anything?” The following exchange occurred:

[Petitioner]: Yes, sir. Your honor, first of all, in this whole case I wrote for a new trial based on newly discovered evidence.

The Court: I've already ruled on the new trial. I need to talk to you about your sentencing.

[Petitioner]: But they never brought up anything that I sent him. I mean—

The Court: He is, he is your attorney.

[Petitioner]: All right. Well, I'm going to say this, Your Honor. The whole time I'm going through this whole trial I've been trying to talk to my lawyer and tell my lawyer things that I want to say. Ain't nothing been said. It's just like with today.

I mean, him and State's Attorney have been constantly talking about my trial, instead of talking about the best interests of me. And my life is on the line right here. I've been found guilty of a drug charge that I didn't have nothing to do with.

I know I'm innocent. I sit back and I listened to this whole trial. I'm amazed. (Inaudible word) got mad, got upset. You know, told me to be seated. But I can't be seated no more. I mean, this is really hurting me. I done wrote this attorney several times. He sued me before I even got a chance to come to court for my trial for to get money for this case and that's not—he didn't even get a chance to defend me in this case, yet I'm in court to be sued for money for this case before I'm even tried. That's a conflict of interest. He never even give me a chance. Anything that I told him to speak about—he never attacked the witness's credibility or anything. Nothing.

* * *

He don't know nothing about me. He don't even want to talk to me, but yet he's my attorney. He's not helping me in no type of way. This is effecting me. I told him a while ago to speak about this and the newly discovered evidence. What did he do? Do you think he put it up here? He don't even speak about it.

* * *

The Court: What you're complaining about, this is not the time or the proceeding to claim or complain about that. What we're dealing with right now is your sentencing and you need to tell me about your sentence.

* * *

[Petitioner:] Christopher Robinson should have to be (inaudible word.) I'm going to go to the attorney grievance on him. It's just that simple, because I just think I got the cold case. And I'm sorry for speaking the way I'm speaking, but it's just out of anger because I feel as though I had told him and told him time again. He doesn't even want as much to take my phone calls. Let alone to come in here and try to defend me, but yet he wants $6,000 and wants to know how much my mom's house is worth. What is all that for? That had nothing to do with my case. If you're representing me, represent me. You're not representing me. [Sic.]

(Emphasis added.) The court did not elicit from Robinson a response to any of what Petitioner had just said, Robinson did not offer a response, and there was no further exchange between the court and Petitioner on the subject of the above colloquy. The court then turned to the discussion about Petitioner's criminal history, following which the court sentenced Petitioner to fourteen years' incarceration. The hearing then concluded.

Petitioner, represented by new counsel, appealed the judgment of conviction. Petitioner presented several claims of error, none of which...