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State v. Newton

Court of Special Appeals of Maryland

September 30, 2016

STATE OF MARYLAND
v.
DONTA NEWTON a/k/a JASON JONES

          Graeff, Reed, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Graeff, J.

         In this 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.[1] 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.

         On appeal, the State presents the following questions for this Court's review:

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?[2]
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?

         For the reasons set forth below, we answer these questions in the affirmative, and therefore, we shall reverse the judgment of the circuit court.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         Appellee 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 mistrial.

         That 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 issue.

         As 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.

         Both 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.[3]

         On 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).

         On March 16, 2012, appellee filed a petition for post-conviction relief. He raised the following grounds in support of his petition:

         A. 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.

         B. The 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.

         C. The 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.

         D. Petitioner is entitled to a new trial in light of the cumulative effect of the errors alleged.

         At the 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."

         On 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."

         On 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 ruling."

         On 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 deliberation.

         On September 21, 2015, the State filed a second Application for Leave to Appeal. This Court granted the application on February 3, 2016.

         Additional facts will be discussed as necessary in the discussion that follows.

         STANDARD OF REVIEW

         Recently, 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)).

         (Parallel 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.

         DISCUSSION

         I.

         Closing Argument

         The 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."

         The 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 of counsel.

         A.

         Proceedings Below

         At 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:] ...

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