Graeff, Reed, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
appeal, the State of Maryland, appellant, challenges the
August 25, 2015, Order of the Circuit Court for Baltimore
City, which granted the petition for post-conviction relief
filed by appellee, Donta Newton, on the ground that he
received ineffective assistance of counsel. The Court granted
appellee a new trial on charges of first-degree murder, use
of a handgun in a crime of violence, and possession of a
regulated firearm by a prohibited person.
appeal, the State presents the following questions for this
1. Did the post-conviction court err in concluding that trial
counsel was ineffective in failing to object to the
State's rebuttal closing argument?
2. Did the post-conviction court err in concluding that trial
counsel was ineffective in strategically agreeing to permit a
non-deliberating alternate juror into the jury room in order
to avoid another potential mistrial?
3. Did the post-conviction court err in concluding that
appellate counsel was ineffective in failing to raise on
appeal a waived argument that was not subject to plain error
review and, if not, did it err in granting relief in the form
of a new trial?
reasons set forth below, we answer these questions in the
affirmative, and therefore, we shall reverse the judgment of
the circuit court.
AND PROCEDURAL BACKGROUND
September 20, 2004, at approximately 10:00 p.m., the victim,
Jerrell Patillo, went to "hang out" with friends in
Baltimore City. He and appellee were talking, and appellee
unexpectedly shot Mr. Patillo in the back. Mr. Patillo fell
to the ground, and appellee attempted to shoot Mr. Patillo
again. The gun malfunctioned, however, and Mr. Patillo was
able to flee. While Mr. Patillo was running away, appellee
shot Mr. Patillo a second time in the left buttock. Mr.
Patillo survived the attack.
was charged in the Circuit Court for Baltimore City with,
inter alia, attempted first-degree murder and
various handgun-related charges. Appellee's first trial
began on February 3, 2006. On February 7, 2006, due to
various problems with juror absences and scheduling conflicts
that prevented a verdict by 12 jurors, the court declared a
same day, the court empaneled another jury, and a second
trial began. Shortly after the direct examination of Mr.
Patillo, the court excused one of the jurors due to a medical
discussed in more detail, infra, at the conclusion
of all the evidence, and clearly in response to the previous
mistrial and the departure at that point of one alternate
juror, the court stated:
I have never done this before, but I might suggest that,
generally, I excuse the alternate juror, but I need your
answer anyway. I am open to any request that you want to keep
the alternate in the courtroom or let the alternate go to the
Jury Room with instructions not to participate, in light of
my past experience in the case.
parties agreed to allow the remaining alternate juror to sit
in the jury room while the jury was deliberating, with
instructions that the alternate juror was not to participate
in deliberations unless one of the 12 jury members was
excused. The court then instructed the alternate to go into
the jury room while the other twelve jurors were
deliberating, but the court instructed all the jurors that
the alternate was not to participate in the deliberations.
The original 12 jurors subsequently issued a unanimous
verdict of guilty on all charges.
February 13, 2006, the circuit court sentenced appellee to
life on the attempted murder conviction, plus consecutive
time on the other convictions. On February 22, 2008, this
Court affirmed appellee's convictions in an unreported
opinion. Newton v. State, No. 2827, Sept. Term, 2005
(filed Feb. 22, 2008). On June 13, 2008, the Court of Appeals
denied appellee's petition for writ of certiorari.
Newton v. State, 405 Md. 65 (2008).
March 16, 2012, appellee filed a petition for post-conviction
relief. He raised the following grounds in support of his
Ineffective assistance of counsel because trial counsel:
1. failed to object to an alternate juror being present in
the jury deliberation room during jury deliberations;
2. failed to object to inadmissible evidence including,
hearsay evidence, leading question and Detective
Nicholson's opinion that it was not unusual for a victim
not to know why he was shot;
3. failed to object to erroneous jury instructions as to
reasonable doubt, attempted first-degree murder, attempted
second-degree murder and possession of a handgun;
4. failed to object to the State's highly prejudicial
closing argument that the prosecutor did not call more
witnesses to testify for fear of retaliation, when the State
admitted there was no evidence that any of the threats could
be traced to petitioner;
5. elicited harmful testimony suggesting Petitioner's
participation in a drug selling organization; and
6. failed to move to strike a juror who stated that he
suffered from depression and continuing on the jury would
cause him to miss a long held doctor's appointment to
address the condition.
trial court and appellate court erred in denying
Petitioner's motion to dismiss the case based on double
jeopardy; there was no manifest necessity to declare a
mistrial in the first trial and appellate counsel erred in
failing to raise the issue on appeal.
trial court erred in ordering the alternate juror to be
present during deliberations and appellate counsel erred in
failing to raise the issue on appeal.
Petitioner is entitled to a new trial in light of the
cumulative effect of the errors alleged.
subsequent hearing in the Circuit Court for Baltimore City,
defense trial counsel, who had been in practice for more than
40 years and had tried more than 500 felony cases, addressed
the issue of the alternate juror. He testified that he had a
reason for not objecting to the alternate going into the jury
room, explaining that, in addition to the fact that the
judge, whom he respected, suggested it, he did not want
another mistrial if one of the original 12 jurors was unable
to continue. Counsel believed that there was a
"significant chance" that appellee would be
acquitted of the charges, based on his belief that the trial
had gone well, as well as his conversations with jurors after
the first trial, who indicated that they "were 10 to 2
for acquittal and moving in that direction."
February 22, 2013, the circuit court granted appellee's
petition for post-conviction relief in the form of a new
trial, finding that appellee's trial counsel rendered
ineffective assistance of counsel because he failed to object
to: (1) "the presence of an alternate juror during jury
deliberations"; and (2) "the State's closing
arguments." Additionally, it found that appellee's
appellate counsel was ineffective in failing to "raise
the issue of the alternate juror being present in the
deliberation room on appeal."
March 25, 2013, the State filed an Application for Leave to
Appeal. On July 22, 2014, this Court issued an order
remanding the case to the circuit court to consider, with
respect to permitting the alternate juror to be present
during jury deliberations, "whether trial counsel's
representation was not ineffective because he had a valid
tactical reason for not objecting to the trial judge's
March 31, 2015, the circuit court held another
post-conviction hearing. On August 25, 2015, the circuit
court issued a second Memorandum Opinion and Order, again
granting appellee a new trial on ground that his attorneys
were ineffective. In addition to its previous findings, the
court found that, although trial counsel "may have had a
tactical reason for not objecting to" the alternate
juror being present in the deliberation room, it was not
based on a "valid tactical or strategic reason."
The court also found that appellee was prejudiced, given that
there was no evidence to rebut the "presumption of
prejudice" that occurs when an alternate is present in
September 21, 2015, the State filed a second Application for
Leave to Appeal. This Court granted the application on
February 3, 2016.
facts will be discussed as necessary in the discussion that
in State v. Smith, 223 Md.App. 16, 26-27 (2015),
this Court set forth the applicable standard for reviewing
claims of ineffective assistance of counsel on appeal from a
grant of post-conviction relief:
The Sixth Amendment to the United States Constitution
guarantees all criminal defendants the right to the
assistance of counsel. Strickland v. Washington, 466
U.S. 668, 684-85 (1984). Both the United States Supreme Court
and the Court of Appeals have recognized that "the right
to counsel is the right to the effective assistance of
counsel." McMann v. Richardson, 397 U.S. 759,
771 n. 14 (1970); Mosley v. State, 378 Md. 548, 557
(2003). In order to prevail on a claim of ineffective
assistance of counsel, a defendant must establish that trial
counsel's performance was constitutionally deficient and
that the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687; Mosley, 378
Md. at 557.
In discerning whether counsel's performance was
deficient, we start with the presumption that he or she
"rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment." Strickland, 466 U.S. at 690;
Bowers v. State, 320 Md. 416, 421 (1990). Our review
of counsel's performance is "highly
deferential." Kulbicki v. State, 440 Md. 33, 46
(2014). We look to whether counsel's "representation
fell below an objective standard of reasonableness."
Harris v. State, 303 Md. 685, 697 (1985). We assess
reasonableness as of "the time of counsel's
conduct." Strickland, 466 U.S. at 690.
To satisfy the prejudice prong of Strickland, a
defendant must 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 confidence in the outcome."
Id. at 694. The ultimate inquiry is whether
"'counsel's errors were so serious as to deprive
[the petitioner] of a fair trial, a trial whose result is
reliable.'" Oken v. State, 343 Md. 256, 284
(1996) (quoting Strickland, 466 U.S. at 687).
Determinations by the post-conviction court regarding
ineffective assistance of counsel claims are mixed questions
of law and fact. State v. Purvey, 129 Md.App. 1, 10
(1999). We will not disturb the factual findings of the
post-conviction court unless they are clearly erroneous.
Evans v. State, 151 Md.App. 365, 374 (2003);
State v. Jones, 138 Md.App. 178, 209 (2001). We will
make our own independent analysis, however, based on our own
judgment and application of the law to the facts, of whether
the State violated a Sixth Amendment right. Jones,
138 Md.App. at 209. Absent clear error, we defer to the
post-conviction court's historical findings, but we
conduct our own review of the application of the law to the
defendant's claim of ineffective assistance of counsel.
Evans, 151 Md.App. at 374 (citing Cirincione v.
State, 119 Md.App. 471, 485 (1998)).
citations omitted.). Thus, to prevail on a claim of
ineffective assistance of counsel, a convicted defendant must
show both that counsel's performance was
deficient and that prejudice resulted.
State's first contention is that the post-conviction
court erred in ruling that appellee received ineffective
assistance of counsel due to trial counsel's failure to
object to a portion of the State's rebuttal closing
argument. In this argument, the prosecutor, in response to
defense counsel's argument that the State presented no
witnesses to the shooting except the victim, stated that
other witnesses did not want to get involved because they did
not want retaliation. Appellee contends that his counsel was
ineffective in failing to object to the prosecutor's
comments because they were "incompetent, inadmissible,
and highly prejudicial."
State contends that the rebuttal argument was not improper
argument, and defense counsel's lack of objection shows
that the comments were not unfairly prejudicial. In any
event, the State argues that, even if the prosecutor's
remarks were improper, they were "brief" and
"relatively innocuous, " and therefore, the
comments did not prejudice appellee, and counsel's
failure to object did not constitute ineffective assistance
trial, the State called only two witnesses in its
case-in-chief, the victim, Mr. Patillo, and Detective Daniel
T. Nicholson, IV, the detective who responded to the
shooting. During direct examination of Detective Nicholson,
the following colloquy occurred, addressing why the State had
so few witnesses:
[PROSECUTOR:] Were there other people who saw the shooting?
[DETECTIVE:] Yes, ma'am.
[PROSECUTOR:] And did any of them wanna [sic] come forward?
[DETECTIVE:] No, ma'am.
[PROSECUTOR:] Detective, in your history as being a Baltimore
City police officer and detective, is this common for people
not to want to come forward?
[DEFENSE COUNSEL:] Objection.
THE COURT: Overruled.
[DETECTIVE:] It's very common.
[PROSECUTOR:] Detective, also in your experience as a
Baltimore City police officer and detective, is it common for
people to give you false information at the scene so that
they don't have to be involved?
[DEFENSE COUNSEL:] ...