See Clark, 255 Md. App. at 360, 279 A.3d at 1140 (Nazarian, J., dissenting). The dissent pointed out that Bailey, 657 F.2d 21, was the basis for the Fourth Circuit's reasoning in Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), and, in turn, in Perry, which the Supreme Court rejected in that case. See Clark, 255 Md. App. at 360-62, 279 A.3d at 1140-41 (Nazarian, J., dissenting).
In November of 1985, more than four years after his trial and more than two and one-half years after the denial of certiorari, Perry sought a writ of habeas corpus in federal district court. The district court granted relief on the basis of our earlier decisions in United States v. Allen, 542 F.2d 630 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977), and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983), which held that it is always reversible error for a trial court to prevent a defendant and his counsel from conferring during a recess, no matter how brief. We granted en banc review to determine whether Allen and Stubbs continue to govern in light of the Supreme Court decisions in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Third and Fourth Circuits hold that no deprivation occurs in the absence of an objection. See Bailey v. Redman, 657 F.2d 21 (3d Cir. 1981), and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). As we noted above, Crutchfield's lawyers did not object, move for a mistrial, or ask to discuss testimonial or non-testimonial aspects of the case with him after the trial judge instructed them not to confer with Crutchfield. As to the first alleged violation, we are unable to find any evidence that Crutchfield's lawyers actually wanted to talk with him during the recess, or that Crutchfield desired to consult with his counsel. If the record reflected such a desire by either, we would find that the trial judge's admonition constituted reversible error.
"I agree with the Fourth Circuit decision in [United States] v. Allen, [ 542 F.2d 630 (1976), cert. denied, 430 U.S. 908 (1977)], which held the Sixth Amendment right to counsel is so fundamental that it should never be interfered with for any length of time absent some compelling reason. See also Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982)[, cert. denied, 461 U.S. 907 (1983)]. To allow defendants to be deprived of counsel during court-ordered recesses is to assume the worst of our system of criminal justice, i. e., that defense lawyers will urge their clients to lie under oath.
In United States v. Conway, 632 F.2d 641 (5th Cir. 1980), this Court held that a sequestration order issued to a defendant witness during a lunch recess which interrupted his cross-examination constituted grounds for reversal of his conviction under the rationale of Geders. See also Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983) ("any restriction upon a defendant's access to his counsel during a recess, whether the recess be extended or brief, is constitutionally impermissible."); United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976) (order directing defendant not to converse with anyone during a one-hour lunch break during direct examination held to be a violation of Sixth Amendment right to counsel); United States v. Allen, 542 F.2d 630 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977) (holding that "a restriction on a defendant's right to consult with his attorney during a brief routine recess is constitutionally impermissible," and reversing the conviction of a co-defendant witness ordered not to talk to her lawyer during an overnight recess); United States v. Vesaas, 586 F.2d 101, 102 n. 2 (8th Cir. 1978) (expressing in dicta the court's "grave doubts that even a brief restriction on a criminal defendant's
The Third and Fourth Circuits hold that no deprivation occurs in the absence of an objection. See Bailey v. Redman, 657 F.2d 21 (3d Cir. 1981), [cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310, reh. denied, 455 U.S. 995, 102 S.Ct. 1624, 71 L.Ed.2d 857 (1982),] and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983)." Allen involved a routine recess.
After exhausting his state appeals, Mr. Perry sought a writ of habeas corpus in the United States District Court for the District of South Carolina. The district court granted Mr. Perry relief, citing United States v. Allen , 542 F.2d 630 (4th Cir. 1976), and Stubbs v. Bordenkircher , 689 F.2d 1205 (4th Cir. 1982), "which held that it is always reversible error for a trial court to prevent a defendant and his counsel from conferring during a recess, no matter how brief." Perry v. Leeke , 832 F.2d 837, 839 (4th Cir. 1987).
Relying on many of the factors just addressed, the Romano court found Geders controlling despite the testimonial limitation on the judge's order, and found a sixth amendment violation. 736 F.2d at 1436-37; see also Stubbs v. Bordenkircher, 689 F.2d 1205, 1206 (4th Cir. 1982) (trial court order not to discuss testimony during lunch hour held "constitutionally impermissible"), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). In short, the district judge's order violated the sixth amendment.
¶25 A Fourth Circuit case is instructive on the necessity of showing an actual deprivation of the right to consult with counsel in order to obtain reversal of a conviction based on a trial court's temporary limitation of the defendant's access to counsel. In Stubbs v. Bordenkircher, 689 F.2d 1205, 1207 (4th Cir. 1982), cert. denied, 461 U.S. 907 (1983), the trial court prevented the defendant's meeting with his attorney during a recess while the defendant was on the witness stand: [T]here was no objection by either counsel or the petitioner to the trial court's admonition nor does the record disclose that either the attorney or the petitioner at any time requested permission for a consultation.
Id . It also, we note, squares with the decisions of two of our sister circuits. See Stubbs v. Bordenkircher , 689 F.2d 1205, 1207 (4th Cir. 1982) ("[I]n order to obtain relief a petitioner must show a ‘deprivation’ of his Sixth Amendment rights by demonstrating that he wanted to meet with his attorney but was prevented from doing so by the instruction of the trial judge."); Bailey v. Redman , 657 F.2d 21, 23–24 (3d Cir. 1981) (holding there was no Sixth Amendment violation where the defendant "fail[ed] to demonstrate that he was actually ‘deprived’ of his right to consult with his attorney").