                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #027


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 26th day of June, 2019, are as follows:



PER CURIAM:


2012-KA-0508      STATE OF LOUISIANA v. JEFFREY CLARK (Parish of West Feliciana)
                  The United States Supreme Court granted certiorari to remand for
                  further consideration in light of McCoy v. Louisiana, 584 U.S. —,
                  138 S.Ct. 1500, — L.Ed.2d — (2018). With the benefit of
                  additional briefing and oral argument, and after further
                  consideration,  we   again  affirm   appellant’s  conviction   and
                  sentence.

                  AFFIRMED.

                  Retired Judge Hillary Crain appointed Justice ad hoc, sitting for
                  Justice Crichton, recused.
06/28/19


                            SUPREME COURT OF LOUISIANA


                                        No. 2012-KA-0508

                                    STATE OF LOUISIANA

                                              VERSUS

                                        JEFFREY CLARK


        ON REMAND FROM THE UNITED STATES SUPREME COURT



PER CURIAM∗

          After his second trial, appellant Jeffrey Clark was found guilty of the first

degree murder of Captain David Knapps, which was committed on December 28,

1999, during a failed attempt to escape from the Louisiana State Penitentiary at

Angola, where appellant was serving a life sentence for first degree murder.1

Appellant’s first trial ended in a mistrial after opening statements in the guilt phase

because the prosecution informed the jury that appellant was already serving a life

sentence.2 Following his second trial, appellant was found guilty of first degree

murder and sentenced to death. Appellant’s conviction and sentence were affirmed

on appeal. 3

          The United States Supreme Court granted certiorari to remand for further

consideration in light of McCoy v. Louisiana, 584 U.S. —, 138 S.Ct. 1500, —


∗   Retired Judge Hillary Crain appointed as Justice ad hoc, sitting for Crichton, J., recused.
1
 State v. Clark, 492 So.2d 862 (La. 1986) (affirming appellant’s conviction for the first degree
murder of Andrew Cheswick but vacating the sentence of death).
2
    State v. Clark, 10-1676 (La. 7/17/10), 39 So.3d 594.
3
    State v. Clark, 12-0508 (La. 12/19/16), 220 So.3d 583.
L.Ed.2d — (2018).4 With the benefit of additional briefing and oral argument, and

after further consideration, we again affirm appellant’s conviction and sentence for

the reasons that follow, in addition to the reasons stated previously in State v.

Clark, 12-0508 (La. 12/19/16), 220 So.3d 583.

         In McCoy v. Louisiana, 584 U.S. —, 138 S.Ct. 1500, — L.Ed.2d — (2018),

the United States Supreme Court determined that the violation of the defendant’s

Sixth Amendment-secured autonomy was a structural error that is not subject to

harmless-error review. Thus, the Supreme Court found that this court had erred in

affirming McCoy’s three first degree murder convictions and death sentences

because the trial court did not permit McCoy to replace his retained counsel on the

eve of trial, and McCoy’s trial counsel conceded that McCoy murdered his victims

despite the fact that McCoy “vociferously insisted that he did not engage in the

charged acts and adamantly objected to any admission of guilt.” Id., 138 S.Ct. at

1505. In determining that a structural error had occurred in McCoy, the Supreme

Court explained:


         The Sixth Amendment guarantees to each criminal defendant “the
         Assistance of Counsel for his defence.” At common law, self-
         representation was the norm. See Faretta v. California, 422 U.S. 806,
         823, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (citing 1 F. Pollock & F.
         Maitland, The History of English Law 211 (2d ed. 1909)). As the laws
         of England and the American Colonies developed, providing for a
         right to counsel in criminal cases, self-representation remained
         common and the right to proceed without counsel was
         recognized. Faretta, 422 U.S., at 824–828, 95 S.Ct. 2525. Even now,
         when most defendants choose to be represented by counsel,
         see, e.g., Goldschmidt & Stemen, Patterns and Trends in Federal Pro
         Se Defense, 1996–2011: An Exploratory Study, 8 Fed. Cts. L. Rev.
         81, 91 (2015) (0.2% of federal felony defendants proceeded pro se ),
         an accused may insist upon representing herself—however
         counterproductive that course may be, see Faretta, 422 U.S., at 834,
         95 S.Ct. 2525. As this Court explained, “[t]he right to defend is
         personal,” and a defendant’s choice in exercising that right “must be
         honored out of ‘that respect for the individual which is the lifeblood of
         the law.’ ” Ibid. (quoting Illinois v. Allen, 397 U.S. 337, 350–351, 90

4
    Clark v. Louisiana, 138 S. Ct. 2671, 201 L.Ed.2d 1066 (2018) (Mem).
                                                2
      S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring));
      see McKaskle v. Wiggins, 465 U.S. 168, 176–177, 104 S.Ct. 944, 79
      L.Ed.2d 122 (1984) (“The right to appear pro se exists to affirm the
      dignity and autonomy of the accused.”).

      The choice is not all or nothing: To gain assistance, a defendant need
      not surrender control entirely to counsel. For the Sixth Amendment, in
      “grant[ing] to the accused personally the right to make his defense,”
      “speaks of the ‘assistance’ of counsel, and an assistant, however
      expert, is still an assistant.” Faretta, 422 U.S., at 819–820, 95 S.Ct.
      2525; see Gannett Co. v. DePasquale, 443 U.S. 368, 382, n. 10, 99
      S.Ct. 2898, 61 L.Ed.2d 608 (1979) (the Sixth Amendment
      “contemplat[es] a norm in which the accused, and not a lawyer, is
      master of his own defense”). Trial management is the lawyer’s
      province: Counsel provides his or her assistance by making decisions
      such as “what arguments to pursue, what evidentiary objections to
      raise, and what agreements to conclude regarding the admission of
      evidence.” Gonzalez v. U.S., 553 U.S. 242, 248, 128 S.Ct. 1765, 170
      L.Ed.2d 616 (2008) (internal quotation marks and citations omitted).
      Some decisions, however, are reserved for the client—notably,
      whether to plead guilty, waive the right to a jury trial, testify in one’s
      own behalf, and forgo an appeal. See Jones v. Barnes, 463 U.S. 745,
      751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

      Autonomy to decide that the objective of the defense is to assert
      innocence belongs in this latter category. Just as a defendant may
      steadfastly refuse to plead guilty in the face of overwhelming
      evidence against her, or reject the assistance of legal counsel despite
      the defendant’s own inexperience and lack of professional
      qualifications, so may she insist on maintaining her innocence at the
      guilt phase of a capital trial. These are not strategic choices about how
      best to achieve a client’s objectives; they are choices about what the
      client’s objectives in fact are. See Weaver v. Massachusetts, 582 U.S.
      ––––, ––––, 137 S.Ct. 1899, 1908, 198 L.Ed.2d 420 (2017) (self-
      representation will often increase the likelihood of an unfavorable
      outcome but “is based on the fundamental legal principle that a
      defendant must be allowed to make his own choices about the proper
      way to protect his own liberty”); Martinez v. Court of Appeal of Cal.,
      Fourth Appellate Dist., 528 U.S. 152, 165, 120 S.Ct. 684, 145 L.Ed.2d
      597 (2000) (Scalia, J., concurring in judgment) (“Our system of laws
      generally presumes that the criminal defendant, after being fully
      informed, knows his own best interests and does not need them
      dictated by the State.”).

McCoy, 138 S.Ct. at 1507–1508 (emphasis in original).

      The Supreme Court in McCoy recognized that a capital defendant might not

share in his counsel’s objective of avoiding the death penalty; instead, an accused

may prefer not to admit that he killed family members, as in McCoy’s case, or may

                                          3
“hold life in prison not worth living and prefer to risk death for any hope, however

small, of exoneration.” Id., 138 S.Ct. at 1508 (citations omitted). Thus, “[w]hen a

client expressly asserts that the objective of ‘his defense’ is to maintain innocence

of the charged criminal acts, his lawyer must abide by that objective and may not

override it by conceding guilt.” Id., 138 S.Ct. at 1509 (emphasis in original)

(citations omitted). Still, the Supreme Court observed, “Trial management is the

lawyer’s province: Counsel provides his or her assistance by making such

decisions as ‘what arguments to pursue, what evidentiary objections to raise, and

what agreements to conclude regarding the admission of evidence.’” Id., 138 S.Ct.

at 1508 (quoting Gonzalez v. United States, 553 U.S. 242, 248, 128 S.Ct. 1765,

1769, 170 L.Ed.2d 616 (2008)).

      The Supreme Court distinguished the situation presented in McCoy from

those presented in Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565

(2004) and Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).

In the former case, Nixon’s autonomy was not overridden by his counsel because

Nixon “was generally unresponsive” throughout discussions regarding trial

strategy, during which counsel made clear the intention to concede guilt. McCoy,

138 S.Ct. at 1509 (citation omitted). In contrast, the Supreme Court observed that

McCoy “opposed [counsel’s] assertion of his guilt at every opportunity, before and

after trial, both in conference with his lawyer and in open court.” Ibid. Therefore,

“[p]resented with express statements of the client’s will to maintain innocence,

however, counsel may not steer the ship the other way.” Ibid. (citations omitted).

With respect to the latter case, the Supreme Court found that the difference

between McCoy and Nix was that Whiteside informed his counsel that he intended

to commit perjury, and McCoy had not. Id., 138 S.Ct. at 1510 (observing that

McCoy’s counsel “harbored no doubt that McCoy believed what he was saying”

                                         4
with respect to his alibi). Instead, counsel’s “express motivation for conceding

guilt was not to avoid suborning perjury, but to try to build credibility with the

jury, and thus obtain a sentence lesser than death.” Ibid.

      Based on the foregoing, the Supreme Court found that “counsel may not

admit her client’s guilt of a charged crime over the client’s intransigent objection

to that admission.” Ibid. In addressing the dissent and comparing this court’s

affirmance in McCoy to decisions in other jurisdictions, the Supreme Court

observed:

      [H]ere, the defendant repeatedly and adamantly insisted on
      maintaining his factual innocence despite counsel’s preferred course:
      concession of the defendant’s commission of criminal acts and pursuit
      of diminished capacity, mental illness, or lack of premeditation
      defenses. . . . These were not strategic disputes about whether to
      concede an element of a charged offense . . . ; they were intractable
      disagreements about the fundamental objective of the defendant’s
      representation.

Ibid. (citations omitted). The Supreme Court concluded:

      [Defense counsel] was placed in a difficult position; he had an unruly
      client and faced a strong government case. He reasonably thought the
      objective of his representation should be avoidance of the death
      penalty. But McCoy insistently maintained: “I did not murder my
      family.” App. 506. Once he communicated that to court and counsel,
      strenuously objecting to English’s proposed strategy, a concession of
      guilt should have been off the table. The trial court’s allowance of
      English’s admission of McCoy’s guilt despite McCoy’s insistent
      objections was incompatible with the Sixth Amendment. Because the
      error was structural, a new trial is the required corrective.

McCoy, 138 S.Ct. at 1512.

      In his petition for certiorari, appellant Clark framed the issue as “Whether

the Louisiana Supreme Court’s rule—that an indigent defendant must accept his

trial counsel’s decision to concede his guilt of second degree murder over his

express objections or represent himself—vitiates the voluntariness of petitioner’s

waiver of counsel?” Pet. at i. In his brief following remand, appellant contended



                                          5
that his Faretta5 waiver was “unknowing, unintelligent and as such involuntary

because it was predicated on the incorrect instruction that his choice was to

represent himself or have his counsel admit his guilt of some of the elements of the

offense.” Supp. Br. at 8. Thus, appellant claimed he was forced to choose between

“structurally deficient counsel or none at all.” Id. at 9. Appellant concluded that

“[t]he trial court’s McCoy error denied [him] both . . . the right to counsel and the

right to be fully and correctly informed concerning the rights he was waiving.” Id.

at 10. These contentions can only be evaluated after examining the context in

which the waiver occurred in some detail.

         Before his first trial, appellant at various times sought to remove appointed

counsel, asserted his right to self-representation, was permitted a hybrid

representation (in which he both represented himself and had the assistance of

counsel), and withdrew his assertion of his right to self-representation. During

those times, appellant indicated a desire to retain private counsel, complained

about appointed counsel’s workload and failure to communicate with him,

contended his defenses were antagonistic with codefendants who had not yet been

severed for trial, and indicated that if “forced to choose between having his court

appointed attorneys or having direct access to the law library . . . [he] will invoke

his right to self-representation.” Pro se motion, R. Vol. 4 at 730. Ultimately,

appellant withdrew his waiver before his first trial and permitted appointed counsel

to make opening remarks, during which counsel conceded that appellant was

involved in the attempt to escape but denied he participated in an intentional

homicide. As noted above, appellant’s first trial progressed no farther than opening

remarks.

         Just before the commencement of his second trial, appellant again asserted

5
    Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
                                                 6
his right to represent himself. The district court then held an extensive Faretta

colloquy with appellant, which spans nearly 40 pages in the record and was

described previously in State v. Clark, 12-0508, pp. 60–63 (La. 12/19/16), 220

So.3d 583, 636–639. Appellant requested, and was permitted, a hybrid

representation in which he could choose the degree to which he or counsel

participated in every aspect of trial.

       The district court conducted an additional inquiry with appellant in

chambers into whether there was a conflict between appellant and counsel over

defense strategy. 6 Appellant described what he characterized as a “difference of

opinion” with counsel. According to appellant, it was counsel’s opinion that “the

only way to save me from the death penalty, should I be convicted, is to convince

the jury to trust him.” For counsel to gain that trust would require, in appellant’s

view, “throwing me under the bus” by asking the jury to find appellant guilty of

second degree murder so that he could receive a sentence of life imprisonment.

Appellant, however, stated that he would prefer to be sentenced to death rather

than life imprisonment because, among other reasons, he believed he would have

better access to appellate resources to challenge his conviction thereafter, as long

as he faced capital punishment. Appellant also expressed his belief that it was in

his best interest to be the one “to present the truth” to the jury.

       Additional discussion on the nature of the hybrid representation occurred the

next day in chambers between the court, appellant, and defense counsel. After

defense counsel expressed logistical concerns with serving as appellant’s co-

counsel (rather than standby counsel), and in particular that their strategies could

conflict, appellant indicated that he was not yet certain what his strategy would be.


6
  The transcript of the proceedings conducted ex parte and in chambers was originally sealed, but
later unsealed in response to an unopposed motion by the State. Material quoted within this
paragraph come from pages 28–31 of this formerly sealed transcript.
                                               7
Nonetheless, appellant reiterated that he did not want an admission to be made that

could result in a life sentence. Appellant also indicated that he, as lead counsel,

wished to make an opening statement and examine the witnesses (with the

exception of any experts).

      The district court acceded to appellant’s wishes and recognized him as lead

counsel. Once trial commenced, appellant made an opening statement, which drew

heavily on counsel’s opening statement from his first trial, in many parts almost

verbatim. Appellant admitted that he was recruited at the last minute to assist in the

attempt to escape but claimed he was assured that no one would be hurt in the

attempt. Appellant also admitted he was present when Captain Knapps was

attacked, although he claimed he tried to intervene on his behalf. Finally, it is also

noteworthy what appellant told the jury about his decision to represent himself:

      The constitution gives myself and each and every other person in
      America who may be accused by the state a right to represent
      themselves. I’ve invoked that right because it’s important to me that
      you ladies and gentlemen of the jury get an opportunity to gauge the
      type of person I am better than if I talk and look at you—I mean better
      if I talk and look at you, rather than if I just sit mute at defense
      counsel.

R. Vol. 44 at 8178.

      After reviewing the record, we cannot agree with appellant that a structural

error was imminent, that appellant was compelled to forego the assistance of

counsel and represent himself to prevent one, or that appellant’s decision was

vitiated by the manner in which the district court conducted the Faretta colloquy.

In our prior decision, we rejected appellant’s claim that “his decision to represent

himself during certain portions of his trial, while knowingly and intelligently made,

was involuntary due to his ‘attorneys’ unilateral decision to concede [his] guilt of

first degree murder over [his] objection.’” State v. Clark, 12-0508, p. 60 (La.

12/19/16), 220 So.3d 583, 636–637 (quoting from appellant’s brief and finding that

                                          8
“[t]he record shows that the factual basis of this argument is false”). We similarly

find the factual basis for appellant’s present arguments lacking.

       Counsel did not concede appellant participated in a murder of any degree,

and the record does not show that counsel had determined to do so. While

appellant did express concern that counsel would “throw him under the bus” and

make a concession that could result in a life sentence, appellant made other

comments minimizing his disagreement with counsel, and indicating that appellant

had not yet completely decided what his defense would be but that his strategy was

converging with that of counsel. What is clear is that during opening remarks at

appellant’s first trial, counsel flatly denied that appellant was involved in the

murder and denied that appellant had the requisite specific intent, which statements

appellant echoed during his opening remarks at the second trial. The record here

does not establish that counsel planned to concede defendant’s guilt in a homicide

over appellant’s objection in an effort to save appellant’s life.7

        The record also does not establish that appellant was forced to make a

choice between representation that would compromise his autonomy or no

representation at all. The district court allowed appellant to choose a hybrid

representation in which appellant decided the contours of his and his co-counsel’s

roles in every aspect of the trial. Appellant also offered several reasons for his

choice that did not implicate any disagreement with counsel at all, such as his

desire to better engage with the jury.

       Finally, the record does not show that the district court misinformed

7
  Appellant, however, also suggests that counsel planned to admit appellant’s guilt of “some of
the elements” of the charged offense. Given the distinction drawn in McCoy, 138 S.Ct. at 1510,
between “strategic disputes about whether to concede an element of a charged offense” and
“intractable disagreements about the fundamental objective of the defendant’s representation,” it
is not clear whether such a concession would necessarily constitute a structural error. Regardless,
other than appellant’s participation in the attempt to escape, which was also admitted by
appellant at trial (and by appellate counsel when seeking review, Pet. at 5), those elements have
not been identified by appellant.
                                                9
appellant during the Faretta colloquy and associated discussions in chambers. We

previously approved of this extensive Faretta colloquy in State v. Clark, 12-0508,

pp. 62–63 (La. 12/19/16), 220 So.3d 583, 637–639, and the United States Supreme

Court’s decision in McCoy v. Louisiana, 584 U.S. —, 138 S.Ct. 1500, — L.Ed.2d

— (2018), does not render it deficient even in hindsight.

      The record shows that appellant and counsel were aligned in their strategy to

deny involvement in the murder while admitting participation in the attempt to

escape. While the nature of their disagreement is not clear, it is clear that this

record does not reflect an intractable disagreement about the fundamental objective

of the representation. Appellant offered several reasons for his decision to assume

the mantle of lead counsel, and was thoroughly and correctly advised by the

district court, before the court permitted him a hybrid representation. We find that

there was no violation of appellant’s Sixth Amendment-secured autonomy here

comparable to that in McCoy v. Louisiana, 584 U.S. —, 138 S.Ct. 1500, —

L.Ed.2d — (2018), nor was one implicated in his decision to represent himself

with the assistance of qualified co-counsel. Therefore, for the reasons expressed

here, and for the reasons expressed previously in State v. Clark, 12-0508 (La.

12/19/16), 220 So.3d 583, we affirm defendant’s conviction and death sentence.

      In the event this judgment becomes final on direct review when either: (1)

the defendant fails to petition timely the United States Supreme Court for

certiorari; or (2) that Court denies his petition for certiorari; and either (a) the

defendant, having filed for and been denied certiorari, fails to petition the United

States Supreme Court timely, under its prevailing rules, for rehearing of denial of

certiorari; or (b) that Court denies his petition for rehearing, the trial judge shall,

upon receiving notice from this court under La.C.Cr.P. art. 923 of finality of direct

appeal, and before signing the warrant of execution, as provided by La.R.S.

                                          10
15:567(B), immediately notify the Louisiana Public Defender Board and provide

the Board with reasonable time in which: (1) to enroll counsel to represent the

defendant in any state post-conviction proceedings, if appropriate, pursuant to its

authority under La.R.S. 15:178; and (2) to litigate expeditiously the claims raised

in that original application, if filed, in the state courts.

AFFIRMED




                                             11
