Brockington v. Grimstead

EYLER, DEBORAH S., J. In the Circuit Court for Baltimore City, Joyce Grimstead, the appellee/cross-appellant, brought a medical malpractice action against McNeal Brockington, M.D., the appellant/crossappellee. The case was tried to a jury for six days and resulted in a verdict for Grimstead in the amount of $4,414,195, including $3,000,000 for non-economic damages. On a motion for remittitur, the non-economic damages award was reduced to $545,000, for a total judgment of $1,959,195. The parties noted a timely appeal and cross-appeal, posing two questions for review, which we have rephrased as: By Brockington: ³³¹ I. Did the trial court commit reversible error by allowing two alternate jurors to attend jury deliberations and then substituting the alternates for two regular jurors during the deliberations?

By Grimstead: II. Did the circuit court err in the amount by which it reduced the jury’s award of non-economic damages? We answer Brockington’s question in the affirmative and therefore shall reverse the judgment and remand the case to the circuit court for further proceedings. Our disposition of that question obviates the need to address Grimstead’s question.

FACTS AND PROCEEDINGS On November 14, 2003, Grimstead filed suit against Brockington, alleging that he negligently failed to diagnose and treat her cancer of the retroperitoneum 1 during the five-year period in which he was her primary care physician. When Grimstead’s cancer eventually was diagnosed by another physician, in November of 2002, her prognosis was extremely poor and her probable life expectancy was short. Because the issues on appeal are procedural, we shall not give a detailed recitation of the facts that gave rise to the malpractice allegations. Grimstead prayed a jury trial.

The case came on for trial and jury selection began on November 1, 2005. After voir dire, but before selection of the jury, the judge discussed with counsel the number of alternates and the size of the jury, and asked whether they would consent to a verdict from five jurors if circumstances so required. Counsel for Grimstead consented but Brockington’s counsel did not. The judge reviewed counsel’s peremptory strikes and expressed concern that Grimstead’s lawyer had “managed to challenge ... the first five whites on the panel.” He noted ³³² that the remaining available jurors all were African-American and told counsel he was not “going to allow that.” Brockington’s lawyer interposed a Batson challenge. 2 Counsel for Grimstead put on the record his reasons for each peremptory strike.

The court found that the reasons given for striking one potential juror were improper, in that they were based on gender, and the reasons given for striking another potential juror, number 263, were “absolutely specious.” 3 It also found, however, that Brockington’s lawyer had stricken three of the same five potential jurors. On that ground, the court seated the jury, but reserved swearing in the jurors until the following day. The next morning, the court told counsel that it had “secured [potential juror number 263]” and that, if they needed to “cure that issue,” he could be seated as “Juror Number Four. Then they would all be bumped down by one.” After further discussion with counsel about Grimstead’s asserted reasons for striking each of the five jurors, the court made a finding that potential juror number 263 was improperly stricken by Grim-stead’s counsel and that the most appropriate remedy was to seat him as Juror Number 4.

The court did so, over Grim-stead’s objection. The originally seated Juror Number 4 became Juror Number 5, and so forth. The resulting jury consisted of six regular jurors and four alternate jurors. 4 The jury was sworn and trial commenced. ³³³ On November 9, 2005, at the close of all the evidence, six regular jurors and two alternate jurors remained. 5 Later that day, after closing arguments, the court sent the regular jurors and the alternates home for the evening, and instructed all of them to return in the morning. The court and counsel then had the following discussion about the alternate jurors: THE COURT: Counsel, I think tomorrow I am still going to have the two alternates just sit without participating in the discussion and if we need one, we do.

If we don’t, so be it. If any of you have any vigorous objection to that, let me know now. [COUNSEL FOR PLAINTIFF]: I have a vigorous objection, Your Honor. THE COURT: You do? [COUNSEL FOR PLAINTIFF]: Yes. THE COURT: To sitting in, but not participating in the discussion? [COUNSEL FOR PLAINTIFF]: Absolutely.

Completely unnecessary. If [all the jurors] return tomorrow, [the alternates] should be dismissed. THE COURT: You know, I’ve had a medical malpractice case involving one of the [defense] attorneys here where the jury deliberated for five days, and I worry about situations like that in setting the stage. If you can come in with some authority, tomorrow morning I’ll entertain it.

I’ve done this in several other cases and no one’s ever objected to having the [alternate] jurors sit in — my jury room is rather large— have the two alternates sit somewhere in the corner, just sit there and not participate in the discussion in the event that ³³⁴ one of them was pressed into service. So we will see where we are [tomorrow]. When court reconvened the next morning, November 10, the judge asked Grimstead’s lawyer whether he had “some authority to the contrary” on the issue of the alternate jurors being present for, but not participating in, deliberations. Responding that he had not had time to research the issue and thus had no authority to offer, counsel nevertheless argued: I’m just trying to be pragmatic about this, and I’m thinking how can [the alternate jurors] be sitting in a room, and not participate, and if they are deliberating for hours, they are going to certainly hear everything that is going on.

So when you say, they are not participating, I think they are participating. They are hearing everything. They are going to be hearing debates. It’s inevitable they are going to hear that....

But I understand the Court’s concern. If the Court is going to insist that the alternates remain, I would object, and I would, at a minimum, ask that they be somehow, I don’t want to use the word quarantined, but I’d rather them not be there, because it may be impossible to prevent them from participating, just, even if the Court just gives them instructions. Just like you told them not to discuss the case, and they did, and I think hearing this and making faces, I don’t see how they are going to divorce the process, even in a large room, they are hearing. I would feel more comfortable with them being somewhere separated.

Grimstead’s co-counsel interjected that, if an alternate juror were present in the jury room, but not deliberating, and a regular juror then were excused and replaced, deliberations would have to start “from scratch,” because the alternate would not have been participating in the deliberations previously. Thus, isolating the alternate jurors was preferable and would be no less efficient. Broekington’s counsel responded: Your Honor, I think the last trial [before you], which finished two weeks ago, we did the same thing, Your Honor ³³⁵ suggested. I didn’t object then.

I don’t object now.... We wouldn’t agree to take less than six. The trial judge noted that he had used this same procedure many times previously without any objection. Moreover, he did not believe that the courthouse had an available location to sequester the two alternate jurors during deliberations, as Grimstead’s lawyer had proposed.

The judge did not “see where there [was] any harm” in the alternate jurors’ listening to, but not participating in, the deliberations until such time as it might become necessary to substitute them. Taking the court’s statement as its ruling, Grimstead’s lawyer asked, without withdrawing his objection, that the court instruct the alternate jurors not to react with facial expressions while they listened to deliberations. The jury then was called in and instructed as follows: The first six of you are the jury panel. The two in the back row are alternates.

The six of you will participate in the discussion and try to resolve the issues that you have to decide. The two alternates will sit in the jury room, but you will sit apart from the jury. Sit on the sofa. You can listen in on the discussion, but you are not to participate.

The reason I am doing this is because if there is a problem, we have to have six jurors. And if we should unfortunately lose one of you for whatever reason, we will have an alternate. So the six will sit at the table and participate in the discussion, and the two alternates remain in the jury room, you will listen to discussion, but you are not to participate. And I can’t emphasize that enough.

To the two alternates, during the discussions that you hear, I want you to remain as neutral as possible. You are not to make any facial expressions or body expressions whether you agree with something you hear or disagree with something you hear. You are not to reflect how you ³³⁶ feel about anything. Just sit there and listen and remain as neutral as possible.

The jurors retired to the jury room to begin deliberations shortly before 10:00 a.m. That afternoon, the court received two notes: one from an alternate juror seeking to be excused until such time as he was needed to actually deliberate and the other from the jury foreperson reporting that “we are deadlocked at three and three.” Brockington’s lawyer stated that, if the jury had not reached a verdict by the end of the day, “we would be inclined to move for a mistrial.” The court announced its intention to allow deliberations to continue until the end of the day and to deny the alternate juror’s request to be excused. Later that afternoon, the jurors were brought into the courtroom, reminded that the next day (a Friday) was a court holiday (Veteran’s Day), and told that they need not report. They were instructed to return on Monday to continue deliberations.

The court also acknowledged receipt of the two notes, but told the jurors that they would need to continue their deliberations. When the jurors reported on Monday morning, November 14, Juror Number 4 presented the court a letter from his doctor and a note in which the juror asked to be excused from service. In the note, the juror stated that he was scheduled to receive immunization shots the next day, November 15, for an upcoming trip to Indonesia. According to the doctor’s letter, the juror had a “damaged heart” and should not have been serving on a jury at all.

Counsel were asked their views about Juror Number 4’s request, to which Brockington’s lawyer responded: Your honor, juror number 4 was a juror in whom we have had the greatest confidence because he seemed to be from my observations, one of the most attentive, jurors. He was taking notes the whole time. We feel it would be extremely prejudicial to the defense to have him stricken at this time. ³³⁷ Counsel added that, because the jury apparently was deadlocked, it would be prejudicial to “disturb the dynamics of the jury for either side.” Grimstead’s lawyer disagreed and moved to replace Juror Number 4 with one of the alternate jurors. Juror Number 4 was the person who was the subject of the Batson violation by Grimstead’s counsel during jury selection; and who had been seated on the jury to remedy the violation.

Brockington’s lawyer suggested that the jury, as constituted, be allowed to deliberate until the end of the day. The court agreed, prompting Grimstead’s counsel to inquire why the alternates had been retained if they would not be used to substitute under these circumstances. The court responded: “[T]wo things. First of all, he [referring to Juror Number 4] was one of the initial jurors and that’s something that weighs with me.

Secondly, I’m not impressed at all with his [excuse].” Juror Number 4 then was called before the court and instructed to keep deliberating for the rest of the day. Before deliberations resumed, the jurors were given an Allen charge. 6 At 2:00 p.m. that same day, the jury foreperson again sent a note to the judge stating that the jurors were deadlocked, three to three. The jury was instructed to continue deliberating. At 4:35 p.m., Brockington’s lawyer moved for a mistrial, asking the court to declare a hung jury if the jurors did not return a verdict that day.

Counsel also objected to any substitution of an alternate juror for Juror Number 4. He advanced five reasons in support. First, a substitution would undo the previously imposed Batson remedy. Second, Alternate Juror Number 1, who ostensibly would replace Juror Number 4, was female while Juror Number 4 was male.

This was problematic because, during jury selection, Grimstead had improperly cited gender as a reason for striking a juror. ³³⁸ Third, the court had not excused Alternate Juror Number 2 when he raised work-related concerns on day one of the deliberations. Fourth, We also took a look at some case law and there is a 2004 case actually that received considerable publicity, ... [Stokes v. State,] 379 Md. 618 , 843 A.2d 64 and that case stated that ... “There can be no doubt that despite his good intentions and attempt to cure the air, the judge erred by allowing the alternates to attend any part of the jury deliberations.” So, at this point, while we did not object to the court permitting alternates to go to deliberate, at this point if the court is prepared to substitute juror number four with one of the alternates we do object and we no longer waive that objection, we make the objection that the alternates not be permitted to participate in the deliberations. And last, Brockington’s counsel observed that, if Juror Number 4 were excused, counsel for both parties would be entitled to talk to him if they were so inclined. Thus, they could find out the status of the deliberations midway through, which would be “very intrusive to the jury functioning[.]” In summarizing his positions, Broekington’s counsel redirected the court’s attention to Stokes, stating: Obviously we could waive it, but at this point I no longer waive my objection to the alternates being in the jury room and witnessing the deliberations. [Stokes ] is a complicated case, it’s a criminal case, but Maryland [R]ule 2-512[ (b) ] addresses alternate jurors and it states at the very end of that sub[ ]paragraph and I quote, “An alternate juror who does not replace a juror shall be discharged when the jury”— THE COURT: That’s a criminal statute you’re reading. [COUNSEL FOR DEFENDANT]: No, actually, I’m reading from the civil.

The criminal one is identical on that and has the same sentence____2 — 512[ (b) ] and it states that “an alternate juror who does not replace a juror shall be discharged when the jury retires to consider it’s verdict.” And ³³⁹ of course we could waive that. [Grimstead’s counsel] did not waive it. I waived it earlier, but I no longer waive it. Grimstead’s lawyer countered that defense counsel had “already waived any argument he ha[d]” about the alternates being allowed in the jury room during deliberations and argued that Juror Number 4 should be replaced with an alternate. The court denied the motion for mistrial; asserted that it had complied with Stokes by instructing the alternate jurors not to participate in the deliberations; and excused Juror Number 4 from further service.

The remaining members of the jury then were dismissed for the day. Thereafter, the court briefly discussed with counsel a note it had received from Juror Number 6 requesting to be excused because her employer would no longer pay her. The court declined to excuse that juror because “[s]he doesn’t have a medical excuse.” Shortly after 10 a.m. the next day, November 15, the court received a letter from Juror Number 5’s doctor stating “he’s off work/jury duty [November 15]-[November 16, 20]05.” The court called in the jury and dismissed Juror Number 5, without any inquiry. It then substituted Alternate Juror Number 1 for the previously dismissed Juror Number 4 and substituted Alternate Juror Number 2 for Juror Number 5.

The jury as reconstituted was sent to the jury room to deliberate. The court did not instruct the jurors about the process they should follow, i.e., whether they should start deliberating anew or pick up deliberations where the original jury had left off. Brockington’s lawyer renewed his objection to the substitution of alternate jurors for regular jurors: Both [excused] jurors are the most educated jurors on this panel. [Juror Number 4] has 18 years of education. [Juror Number 5] has 16 years of education. The jury was deadlocked three to three.

I obviously don’t know how they’re voting, who’s voting which way, but I would tend to think ³⁴⁰ because of the tremendous sympathy in this case that it favors me to have the most educated jurors on the panel. ... I think the Stokes case is directly on point and under the circumstances it’s improper at this point to let the alternates now start deliberating once the other members of the jury were no longer able to deliberate and I do not, I am not willing to go with less than the six original jurors who were asked to deliberate, so I object, your honor. The court reasserted that, by instructing the alternates not to participate in deliberations prior to their substitution, it had complied with Stokes and therefore defense counsel’s “motion is denied.” 7 Later that afternoon, the court received a note from the jury asking for clarification of the instruction on the law of proximate causation. At that time, Brockington’s counsel renewed his objection “to this process” and cited to a second case, Hayes v. State, 355 Md. 615 , 735 A.2d 1109 (1999), as authority for the proposition that alternate jurors may not be substituted for regular jurors once deliberations have begun.

The court asked for the case citation from counsel, but opined: I wanted to point out that in civil [cases], there are procedures for alternates to deliberate if agreed by counsel and ironically it was [counsel for the defendant] who did not object to the alternates going in along the procedure I outlined and [counsel for plaintiff] obviously is not objecting at this juncture to that process or procedure. Defense counsel responded that he believed that he could object at “anytime before the jury verdict comes back.” At 3:07 p.m., the jury reached a verdict. Before the verdict was taken, Brockington’s lawyer “renew[ed his] objection for the umpteenth time to this process.” ³⁴¹ As discussed above, the jury found for Grimstead and awarded her $4,414,195 in damages. Brockington filed a timely motion for new trial or, if that request were denied, for remittitur pursuant to the statute capping recovery of non-economic damages.

See Md.Code (2006 RepLVol.), § ll-108(b) of the Courts and Judicial Proceedings Article (“CJ”). The court denied the new trial motion, but granted a remittitur, reducing the total damages awarded to $1,959,195. DISCUSSION (a) Contentions Brockington contends the trial court erred as a matter of law by not discharging the two remaining alternate jurors when the regular jurors retired to deliberate; by allowing the alternate jurors to sit in on deliberations as observers; and by substituting the alternate jurors for two regular jurors in the midst of deliberations. He argues that Rules 2-511 and 2-512 and Maryland case law interpreting them make plain that alternate jurors may not be retained after the regular jurors retire to deliberate, may not observe or participate in deliberations, and may not be substituted for deliberating regular jurors.

He maintains that these missteps by the court were legal rulings, which are to be reviewed de novo for error; and that the rulings were legally erroneous. He further maintains that this error was presumptively prejudicial and therefore requires reversal of the judgment. Grimstead does not contest the legal underpinnings to Brockington’s contention. Instead, she argues that Broekington consented to the alternate jurors’ being retained after the regular jurors retired to deliberate and to the alternate jurors’ being present in the jury room during deliberations; and that, by doing so, he waived any objection to the actual substitution of alternate jurors for regular jurors during deliberations, as the implicit purpose of his original agreement to retain the ³⁴² alternates was to allow substitutions to happen, if necessary.

She maintains that Brockington’s objection to the substitutions immediately before they were made was “a complete about-face” by which he “attempted to withdraw [his] consent to the procedure for dealing with alternate jurors” for the “cynical” purpose of “manipulat[ing] the jury process” to keep on the jury the two regular jurors he thought would be favorably disposed to the defense. Grimstead further asserts that, because Brockington consented to the process that led to the substitutions, the trial court’s rulings should be evaluated for abuse of discretion, not legal error; and that the court did not abuse its discretion. In reply, Brockington argues that he did not waive the issue of alternate juror substitution because he timely and repeatedly objected to the court’s rulings substituting the two alternate jurors for regular jurors during deliberations. He notes that the objections brought the controlling law to the court’s attention before it made the substitution error, and if granted, would have averted that error.

He points out that, given that objections must be contemporaneous, see Md. Rule 2-517(c), the issue of alternate juror substitution did not arise until the jurors were deliberating, and that he objected at every step once the issue did arise; therefore, he did not waive an objection to the alternate juror substitution issue. He also asserts that at no time before the issue of substitution arose did his counsel consent to alternate jurors being substituted for regular jurors; at the very most, defense counsel agreed to the alternate jurors being present during deliberations, which is not the same as consenting to substitution. Alternatively, Brockington argues that the requirements of Rule 2-512 are structural, and cannot be waived in any event. (b) Applicable Law On Alternate Jurors In Maryland, civil litigants enjoy the right to a trial by a jury of no less than six members in all causes of action in which the amount in controversy exceeds $10,000 and a jury ³⁴³ trial rightfully could have been demanded at common law.

See Md. Decl. of Rights, Art. 5; CJ § 8-421(a); Md. Rule 2-511(b). They may, however, consent to “accept a verdict from fewer than six jurors if during the trial one or more of the six jurors becomes or is found to be unable or disqualified to perform a juror’s duty.” Md. Rule 2-511(b). In addition to the selection of six regular jurors, the court may allow the selection of alternate jurors, as provided in Rule 2-512(b): (b) Alternate Jurors. The court may direct that one or more jurors be called and impaneled to sit as alternate jurors.

Any juror who, before the time the jury retires to consider its verdict, becomes or is found to be unable or disqualified to perform a juror’s duty shall be replaced by an alternate juror in the order of selection. An alternate juror shall be drawn in the same manner, have the same qualifications, be subject to the same examination, take the same oath, and have the same functions, powers, facilities, and privileges as a juror. An alternate juror who does not replace a juror shall be discharged when the jury retires to consider its verdict. (Emphasis added.) Although there are no appellate decisions construing Rule 2-512(b), the Court of Appeals twice has interpreted its criminal counterpart, Rule 4-312(b), which is nearly identical.

The criminal rule provides: (b) Alternate jurors. (1) Generally. An alternate juror shall be drawn in the same manner, have the same qualifications, be subject to the same examination, take the same oath, and have the same functions, powers, facilities, and privileges as a juror. (3) Non-capital cases ... [T]he court may direct that one or more jurors be called and impanelled to sit as alternate jurors.

Any juror who, before the time the jury retires to consider its verdict, becomes or is found to be unable or disqualified to perform a juror’s duty, shall be replaced by ³⁴⁴ an alternate juror in the order of selection. An alternate juror who does not replace a juror shall be discharged when the jury retires to consider its verdict. (Emphasis added.) In Hayes v. State, 355 Md. 615 , 735 A.2d 1109 (1999), the Court of Appeals construed the directive in Rule 4-312(b)(3) that alternate jurors be discharged “when the jury retires to consider its verdict.” There, the defendant was tried by a jury for robbery with a deadly weapon and related charges. Following closing arguments, the court discharged the only remaining alternate juror and instructed the regular jurors to retire to the jury room.

Shortly thereafter, the court reconvened after learning that a juror had fallen ill “before [the members of the jury were to] begin deliberations.” Id. at 618 , 735 A.2d 1109 . The court informed the parties that, although the alternate juror had been excused, he had not yet left the courthouse. The court recalled the previously excused alternate juror and announced its intention to substitute him for the ailing juror. Defense counsel objected, arguing that the regular juror did not appear ill earlier in the day.

The court made the substitution over defense counsel’s objection, stating, “deliberations will now be begun. They have not yet begun.” Id. The newly constituted jury returned a conviction. On appeal, the defendant argued in part that “an alternate juror may not be substituted after the jury retires to deliberate.” Id.

Noting that the issue was one of first impression, the Court of Appeals considered several possible meanings of the phrase “when the jury retires to consider its verdict,” opining that it could refer to the point at which the judge directs the jury to retire, the time when the jury actually leaves the courtroom (whether or not it intends to report directly to the jury room to begin deliberations), the time when the jury enters the jury room to begin deliberations and closes the door, or when the jury actually begins to discuss the case behind the closed door. ³⁴⁵ Id. at 622 , 735 A.2d 1109 . The Court observed that the effect of a violation of the rule similarly was a matter of first impression. For guidance, the Court looked to decisions of the federal courts and various state courts interpreting comparable local statutes or rules. The cases fell into two categories: those in which an alternate juror was substituted prior to the commencement of deliberations and those in which the substitution occurred after deliberations had begun.

In the former category, the cases all had upheld the substitution. In the latter category, the results varied depending upon the precise wording of the applicable statute or rule and whether an objection had been raised. The federal courts consistently had sustained substitutions occurring in both categories of cases. At that time, Federal Rule of Criminal Procedure 24(c) contained language identical to Rule 4-312(b)(3), permitting substitution of an alternate juror for a regular juror “prior to the time the jury retires to consider its verdict.” (Emphasis added.) Rule 24(c) recently had been amended, although the amendment had not yet been approved by Congress or taken effect, 8 to provide as follows: When the jury retires to consider the verdict, the court in its discretion may retain the alternate jurors during deliberations.

If the court decides to retain the alternate jurors, it shall ensure that they do not discuss the case with any other person unless and until they replace a regular juror during deliberations. If an alternate replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew. ³⁴⁶ The Court of Appeals observed that the recent amendment essentially “authorized, in a more direct way, what many Federal courts had been doing anyway, using a very liberal harmless error analysis to sustain what were clear violations of the [prior version of the] rule.” Id. at 626 , 735 A.2d 1109 (recounting a litany of cases in which federal district courts had ignored the mandates of Rule 24(c) in its prior form and federal appellate courts had upheld the rulings for harmless error or non-prejudice 9 ). According to the Court, this practice culminated in United States v. Olano, 507 U.S. 725 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993), in which a 14-juror panel initially had been selected, with the consent of the parties, with none designated as alternates until after closing arguments. At that time, the court designated two jurors as alternates and allowed them to return to the jury room with the regular jurors.

The alternate jurors were instructed not to participate in the deliberations. The defendant did not object. During the deliberations, one of the alternate jurors was excused. The other alternate juror remained with the jury until it rendered its verdict, convicting the defendant.

On appeal, the Court of Appeals for the Ninth Circuit reversed, holding that Rule 24(c) was violated, the error was plain, and the violation was inherently prejudicial. The Supreme Court granted certiorari and vacated the Ninth Circuit’s judgment. The Court agreed that Rule 24(c) was violated and that the error was plain, but held that the defendant did not demonstrate prejudice, i.e., that the “error ‘affect[ed] substantial rights’ within the meaning of [Federal Rule of ³⁴⁷ Criminal Procedure] 52(b).” Olano, supra, 507 U.S. at 737 , 113 S.Ct. 1770 . The Court of Appeals in Hayes rejected the federal approach, holding: We are not at liberty, in a decisional context, to change the language of Rule 4 — 312(b)(3), and we refuse to embark on the Federal approach of circumventing the rule through an expansive harmless error or presumptive non-prejudice doctrine that is entirely foreign to our jurisprudence---- [W]e conclude that an alternate juror who remains qualified to serve may be substituted for a regular juror who is properly discharged, until such time as the jury enters the jury room to consider its verdict and closes the door.

Hayes, supra, 355 Md. at 635 , 735 A.2d 1109 (emphasis added). Such a standard is practical and workable, the Court reasoned, because “compliance with it can be established through objective and extrinsic evidence” rather than by requiring inquiry into what went on behind closed doors, i.e., when deliberations actually started. This approach, according to the Court, “involves a minimum of inconvenience, moots the argument that an alternate juror, once formally discharged, may not be recalled, and should assure that alternate jurors remain qualified to substitute until the time that substitution is no longer permissible.” Id. at 637 , 735 A.2d 1109 (footnote omitted). Because the alternate juror in Hayes had been substituted after the jurors had entered the jury room and closed the door, the Court reversed the conviction.

Five years later, in Stokes v. State, 379 Md. 618 , 843 A.2d 64 (2004), the Court of Appeals considered the legal effect, if any, of the presence of alternate jurors in the jury room during deliberations, without substitution. There, the defendant entered a plea of not criminally responsible and elected a bifurcated trial pursuant to Rule 4-314. That Rule gives the defendant a “single continuous trial in two stages”; the issue of guilt is tried first and, if the defendant is found guilty on any count, the issue of criminal responsibility then is tried. Md. Rule 4-314(b).

The same jury hears both stages of the ³⁴⁸ trial. The Rule also requires that at least two alternate jurors be selected and that they be “retained throughout the trial.” Id. Twelve regular jurors and four alternates were selected and the guilVinnocence stage of the trial commenced. At the conclusion of that stage, the trial court instructed all sixteen jurors as follows: Madam Forelady, ladies and gentlemen, under the Rule 4-314 that creates a bifurcated trial, at the present time, you are all jurors.

You are not both jurors and alternates, even though we so designated you. Id. at 623 , 843 A.2d 64 . The jurors then were instructed that their verdict had to be unanimous. Defense counsel objected to the alternate jurors’ being permitted to deliberate, but the objection was overruled.

The jury deliberated for 30 minutes that day, recessed for the weekend, deliberated an additional two hours the following Monday, and then sent a note to the court asking, “Do alternates count?” Id. In the discussion with counsel that followed, the trial judge said that he understood the requirement in Rule 4-314, that alternate jurors be “retained throughout the trial,” to mean that the alternate jurors were to deliberate during the first stage of the bifurcated trial but were to be discharged prior to deliberations in the second stage. After further discussion, the court reconsidered and decided to instruct the alternate jurors that they were to be “mere observers” during deliberations in the first stage. The jurors were so instructed and all sixteen again retired to the jury room.

Defense counsel renewed his objection to the presence of the alternate jurors in the jury room during deliberations. The jury convicted the defendant on three counts. The defendant subsequently withdrew his plea of not criminally responsible in exchange for a favorable sentencing recommendation from the State. After sentence was imposed, he appealed his conviction.

The Court of Appeals granted certiora ³⁴⁹ ri prior to disposition in this Court. 376 Md. 543 , 831 A.2d 3 (2003). The Court of Appeals reversed the convictions. It held that, even in a bifurcated trial pursuant to Rule 4-314, it was error to allow alternate jurors “into the jury room to deliberate” and that, once deliberations commenced with the alternate jurors participating, the “error could not be cured.” Id. at 629-30 , 843 A.2d 64 . The Court noted that “under Maryland law, unlike the procedure in some other states, an alternate juror may not be substituted” after jury deliberations have begun.

Id. at 630 , 843 A.2d 64 . Accordingly, “the deliberations of the regular jurors are of no concern to the alternates.” Id. 10 The Stokes Court next addressed the effect of the error. Characterizing alternate jurors not as strangers to the jury, but as third parties, the Court emphasized, as it had in Hayes , the sanctity of the jury room when deliberations are underway. Once the jurors enter the jury room with the alternates, it is extraordinarily difficult to determine what occurred because “inquir[y] into jury motives is, to a large degree, proscribed by rule [5-606].” Id. at 635 , 843 A.2d 64 (quoting Jenkins v. State, 375 Md. 284, 316 , 825 A.2d 1008 (2003)).

The Court held that a presumptive prejudice standard should apply, stating: We consider the presence of alternate jurors during the jury deliberations as sufficiently impinging upon the defendants’s constitutional right to a jury trial as guaranteed by the Maryland Constitution and Maryland Rules of Procedure to create a presumption of prejudice. Jury