REMAND FROM THE UNITED STATES SUPREME COURT
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.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. Following his second trial, appellant
was found guilty of first degree murder and sentenced to
death. Appellant's conviction and sentence were affirmed
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 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.
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 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
McCoy, 138 S.Ct. at 1507-1508 (emphasis in
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 "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)).
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" 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.
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