Argued: May 9, 2017
Court for Baltimore City Case No. 104310025
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
postconviction cases, we must often navigate the fine line
between a defendant's right to a fair trial on the one
hand and the legal system's interest in finality on the
other. Today we are faced with the question of whether a
postconviction petitioner's trial counsel was
constitutionally ineffective in consenting to the presence of
an alternate juror during deliberations. We also address
whether his appellate counsel was ineffective in failing to
argue that the alternate juror's presence was plain
AND LEGAL PROCEEDINGS
evening of September 20, 2004, Jerrell Patillo went to
"hang out" with old friends in Baltimore City,
including Petitioner Donta Newton. While Newton and Patillo
were talking, Newton, for no apparent reason, began shooting
at Patillo. A bullet struck Patillo in the back, and he fell
to the ground. Newton attempted to shoot him again, but his
gun jammed, and Patillo fled down the street. After Newton
cleared his gun, he ran after Patillo, shooting at him. A
second bullet struck Patillo in his left buttock. He survived
was charged with attempted first-degree murder and various
handgun-related offenses in the Circuit Court for Baltimore
City. His case was tried twice. On February 7, 2006, the
first trial was declared a mistrial due to juror absences and
scheduling conflicts. The court empaneled another jury and
the second trial began that same day. During the second
trial, the court excused one juror due to illness, and an
alternate was seated in his place. Another juror requested to
be excused because he had a doctor's appointment the next
day. The court declined his request.
close of the trial, the court called State and defense
counsel to the bench, and the following exchange ensued:
THE COURT: 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.
[PROSECUTOR:] Your Honor, I would not object to the second
one with instructions not to participate unless we excuse a
juror. I agree.
THE COURT: Send all of them to the jury room?
[DEFENSE COUNSEL:] Yes.
THE COURT: With the instruction not to participate?
[DEFENSE COUNSEL:] Yes.
THE COURT: All right.
[DEFENSE COUNSEL:] Fine. I'm just thinking maybe you
could expand on that a little bit and tell them why-
THE COURT: Alternates are not to participate in the
[DEFENSE COUNSEL:] Fine.
[PROSECUTOR:] That's fine, Your Honor.
sending the jury to deliberate, the court instructed the jury
Now, I'm going to ask that the alternate juror go to the
jury room, stay with the jury until they reach a decision.
However, you are the alternate juror, therefore, you are not
to participate in any of the discussion. Sit and listen
carefully and the reason for that is, heaven forbid something
should happen that causes one of the  jurors not to be
able to return or continue, you could become the [twelfth]
juror. Please, the 12 jurors, understand that the alternate
is not to be involved in the discussion, so don't let
her. I think everybody will understand to participate in
that, perhaps, she needs to be there to hear everything going
on, so that in the unlikely event she is needed as a juror
she can step right in without missing a beat, so to speak.
jury deliberated for approximately two hours and twenty
minutes. Before the jury returned, the following exchange
occurred at the bench:
[PROSECUTOR:] Your Honor, any verdict of guilty, I don't
know what is appropriate to make sure Juror No. 13,
alternate, did not speak or did not participate. I want to
put on the record just to make sure. I don't know if that
is appropriate or not.
[DEFENSE COUNSEL:] I don't see the need for it. You
instructed. You don't have an indication to the contrary.
THE COURT: I agree.
jury found Newton guilty on all counts. He was sentenced to
life imprisonment for attempted first-degree murder and two
consecutive five-year sentences for the handgun-related
charges. Newton appealed his convictions.
appeal, Newton argued that the trial court failed to properly
instruct the jury regarding reasonable doubt, attempted
first-degree murder, and the handgun-related offenses. He
also contended that he was not properly advised of his right
to testify. Newton did not argue that the presence of the
alternate juror during deliberations was plain error. The
Court of Special Appeals rejected Newton's arguments and
affirmed his convictions in an unreported opinion. Newton
v. State, No. 2827, slip op. at 5, 7 (Md. Ct. Spec. App.
Feb. 22, 2008).
March 2012, Newton filed a petition for postconviction relief
in the Circuit Court for Baltimore City pursuant to the
Uniform Postconviction Procedure Act ("UPPA"),
Maryland Code (1957, 2008 Repl. Vol.), §§ 7-101
through 7-109 of the Criminal Procedure Article
("CP"). He raised several grounds for relief,
including violations of his right to effective assistance of
counsel under the Sixth Amendment of the U.S. Constitution
and Article 21 of the Maryland Declaration of
Rights. Specifically, Newton alleged that: (1) his
trial attorney was ineffective because he failed to object to
an alternate juror being present in the jury room during
deliberations in violation of Maryland Rule
4-312(g)(3); (2) his appellate counsel was ineffective
in failing to argue that the alternate juror's presence
during deliberations was plain error; and (3) the trial court
erred in permitting the alternate to sit in on deliberations.
In February 2013, the postconviction court found in favor of
Newton, agreeing with him on all three issues. Accordingly, the
court granted Newton a new trial. The State appealed.
Court of Special Appeals reversed. The intermediate appellate
court held that Newton's attorney made a valid strategic
decision when he agreed to let the alternate sit in on
deliberations, and therefore was not ineffective. State
v. Newton, 230 Md.App. 241, 270-71 (2016). The court
further held that Newton's appellate counsel's
performance was not deficient because it was unlikely that
the presence of the alternate would be deemed plain error,
especially given that trial counsel had agreed to the
arrangement. Id. at 272- 73. The court did not
address whether the trial court erred in instructing the
alternate to sit in on deliberations. Id. at 245
granted Newton's Petition for Certiorari to consider the
1. Did the postconviction court correctly conclude that
Newton's trial counsel was ineffective in consenting to
the presence of an alternate juror during deliberations?
2. Did the postconviction court correctly conclude that
Newton's appellate counsel was ineffective in failing to
raise the issue of an alternate juror's presence during
we answer these questions in the negative, we shall affirm
the judgment of the Court of Special Appeals.
review of a postconviction court's findings regarding
ineffective assistance of counsel is a mixed question of law
and fact. Harris v. State, 303 Md. 685, 698 (1985).
Because we are not finders of fact, we defer to the factual
findings of the postconviction court unless clearly
erroneous. Id. at 698. But we review the court's
legal conclusion regarding whether the defendant's Sixth
Amendment rights were violated without deference.
Id. at 697 (citations omitted). We