Newton v. State, 86, Sept. Term, 2016.
| Citation | 168 A.3d 1,455 Md. 341 |
| Decision Date | 23 August 2017 |
| Docket Number | No. 86, Sept. Term, 2016.,86, Sept. Term, 2016. |
| Parties | Donta NEWTON v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
455 Md. 341
168 A.3d 1
Donta NEWTON
v.
STATE of Maryland
No. 86, Sept. Term, 2016.
Court of Appeals of Maryland.
August 23, 2017
Argued by Lisa J. Sansone (Law Office of Lisa J. Sansone, Baltimore, MD), on brief, for Petitioner.
Argued by Michelle M. Martin, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland, Baltimore, MD), on brief, for Respondent.
Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.
Adkins, J.
In 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 error.
FACTS AND LEGAL PROCEEDINGS
On the 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 his injuries.
Newton 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.
At the 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?
[PROSECUTOR:] Yes.
[DEFENSE COUNSEL:] Yes.
THE COURT: With the instruction not to participate?
[PROSECUTOR:] Uh-huh.
[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 discussion.
[DEFENSE COUNSEL:] Fine.
[PROSECUTOR:] That's fine, Your Honor.
Before sending the jury to deliberate, the court instructed the jury and alternate:
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 [12] 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.
The 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.
The 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.
On 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 , 178 Md.App. 754 (2008).
In 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.1 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 (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.3 Accordingly, the court granted Newton a new trial. The State appealed.
The 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, 146 A.3d 1204 (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, 146 A.3d 1204. The court did not address whether the trial court erred in instructing the alternate to sit in on deliberations. Id. at 245, 146 A.3d 1204 n.2.
We granted Newton's Petition for Certiorari to consider the following questions:4
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 deliberations?
Because we answer these questions in the negative, we shall affirm the judgment of the Court of Special Appeals.
STANDARD OF REVIEW
The 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, 496 A.2d 1074 (1985). Because we are not finders of fact, we defer to the factual findings of the postconviction court unless clearly erroneous. Id. at 698, 496 A.2d 1074. But we review the court's legal conclusion regarding whether the defendant's Sixth
Amendment rights were violated without deference. Id. at 697, 496 A.2d 1074 (citations omitted). We "re-weigh" the facts in light of the law to determine whether a constitutional violation has occurred. Id. at 698, 496 A.2d 1074 (citations omitted).
DISCUSSION
Newton urges us to affirm the judgment of the postconviction court granting him a new trial. He argues that his trial counsel was deficient because he failed to object to an alternate juror being present during...
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