State v. Newton

Opinion by 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 ²⁴⁵ 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 ²⁴⁶ 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. 3 ²⁴⁷ 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 appel-lee’s petition for writ of certiorari. Newton v. State, 405 Md. 65 , 949 A.2d 653 (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 ²⁴⁸ 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.” ²⁴⁹ 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 , 115 A.3d 210 (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 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (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, 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970); Mosley v. State, 378 Md. 548, 557 , 836 A.2d 678 (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, 466 ²⁵⁰ U.S. at 687, 104 S.Ct. 2052 ; Mosley, 378 Md. at 557 , 836 A.2d 678 . 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 , 104 S.Ct. 2052 ; Bowers v. State, 320 Md. 416, 421 , 578 A.2d 734 (1990). Our review of counsel’s performance is “highly deferential.” Kulbicki v. State, 440 Md. 33, 46 , 99 A.3d 730 (2014). We look to whether counsel’s “representation fell below an objective standard of reasonableness.” Harris v. State, 303 Md. 685, 697 , 496 A.2d 1074 (1985).

We assess reasonableness as of “the time of counsel’s conduct.” Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 . 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 , 104 S.Ct. 2052 . 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 , 681 A.2d 30 (1996) (quoting Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 ).

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 , 740 A.2d 54 (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 , 827 A.2d 157 (2003); State v. Jones, 138 Md.App. 178, 209 , 771 A.2d 407 (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 , 771 A.2d 407 . 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. ²⁵¹ Evans, 151 Md.App. at 374 , 827 A.2d 157 (citing Cirincione v. State, 119 Md.App. 471, 485 , 705 A.2d 96 (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 ²⁵² 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:] Objection.

THE COURT: Overruled. [DETECTIVE:] All the time. [PROSECUTOR:] And do you have any reasons for that? [DETECTIVE:] Fear for retaliation for themselves or their loved ones who live in that area or possibly on that block. During closing argument, defense counsel noted that the police went to the scene of the crime and “talked to everybody [they] could.” He noted, however, that the only witness to the crime presented by the State was the victim. Counsel stated: We don’t hear anything from anybody else. We don’t know anything from anybody else. * ⅜ * The issue is, was [appellee] there that night, and there is nothing other than this man Mr. Patillo saying so, and you are left over and over and over again with this great big hole. ²⁵³ In the State’s rebuttal closing argument, the prosecutor responded to defense counsel’s comments as follows: The best evidence, Ladies and Gentlemen, is what you have.

You have the individual who says this is who shot me. He described him. He described how he was shot, where he was shot, all of which is consistent with what is on the body and the crime scene evidence we do have .... Detective Nicholson clearly stated that there [were] a lot of people giving information.

They didn’t want to be involved. They don’t want a retaliation. They don’t want to come to court. Ladies and Gentlemen, please use your common sense, please use your knowledge of what you heard here, please use your knowledge from reading newspapers, watching the news in Baltimore City.

Ladies and Gentlemen, why do people not want to come to court? Why do people not want to testify? You know it, and I know it. Mr. Patillo came to testify because the worst has already happened to him, nothing worse could happen.

There was no objection to these comments. In his post-conviction petition, appellee argued that his trial counsel was deficient because he did not object when the “State made improper rebuttal arguments by blaming its lack of identification witnesses on possible eyewitness’ fear of retaliation.” 4 The post-conviction court agreed that trial counsel was deficient, and it concluded that the deficiency resulted in prejudice to appellee. The court explained: The State urged jurors to use their knowledge from newspapers and from watching the news in Baltimore City. Those statements invited the jury to speculate about information outside of the evidence presented at trial and were beyond the bounds of fair comment.

The State’s closing remarks were likely to have influenced the jury, causing prejudice to [appellee’s] case. ²⁵⁴ B. Closing Argument Generally It is well established that “ ‘attorneys are afforded great leeway in presenting closing arguments to the jury.’ ” Pickett v. State, 222 Md.App. 322, 329 , 112 A.3d 1078 (2015) (quoting Degren v. State, 352 Md. 400, 429 , 722 A.2d 887 (1999). Accord Swells v. State, 196 Md.App. 254, 270 , 9 A.3d 123 (2010), cert. dis’d as improv. granted, 421 Md. 659 , 28 A.3d 704 (2011). “ ‘As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range.’ ” Donati v. State, 215 Md.App. 686, 730 , 84 A.3d 156 (quoting Wilhelm v. State, 272 Md. 404, 412 , 326 A.2d 707 (1974)), cert. denied, 438 Md. 143 , 91 A.3d 614 (2014). Nevertheless, there are limitations upon the scope of a proper closing argument. The Court of Appeals has emphasized that “ ‘counsel should not be permitted by the court, over proper objection, to state and comment upon facts not in evidence or to state what he could have proven.’ ” Pickett, 222 Md.App. at 330 , 112 A.3d 1078 (quoting Wilhelm, 272 Md. at 413 , 326 A.2d 707 ).

Accord Lee v. State, 405 Md. 148, 166 , 950 A.2d 125 (2008) (improper to make comments “that invite the jury to draw inferences from information that was not admitted at trial”). In other words, although “ ‘liberal freedom of speech should be allowed,’” arguments of counsel “‘are required to be confined to the issues in the cases on trial, the evidence and fair and reasonable deductions therefrom, and to arguments to opposing counsel.’ ” Id. at 163 , 950 A.2d 125 (quoting Wilhelm, 272 Md. at 413 , 326 A.2d 707 ). “Reversal is required, however, only ‘where it appears that the remarks of the prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused.’ ” Pickett, 222 Md.App. at 330 , 112 A.3d 1078 (quoting Spain v. State, 386 Md. 145, 158 , 872 A.2d ²⁵⁵ 25 (2005)). As the Court of Appeals explained in Spain, 386 Md. at 159 , 872 A.2d 25 : When assessing whether reversible error occurs when improper statements are made during closing argument, a reviewing court may consider several factors, including the severity of the remarks, the measures taken to cure any potential prejudice, and the weight of the evidence against the accused. U.S. v. Melendez, 57 F.3d 238, 241 ([2d] Cir.1995); see also Henry v. State, 324 Md. 204, 232 , 596 A.2d 1024, 1038 (1991) (finding that “[i]n determining whether reversible error occurred, an appellate court must take into account ‘(1) the closeness of the case, 2) the centrality of the issue affected by the error, and 3) the steps taken to mitigate the effects of the error’ ” (citations omitted)).

C. Analysis The State contends that defense counsel did not render ineffective assistance of counsel in failing to object to the rebuttal closing argument for two reasons. First, the State argues that the failure to object was not deficient conduct because the prosecutor’s remarks were proper. It asserts that “the comments were supported by Detective Nicholson’s testimony that other witnesses to the shooting were unwilling to come forward, and that it is not unusual for witnesses to be unwilling to cooperate because of a general fear of retaliation.” Moreover, the State contends that the comments were made “in direct response to defense counsel’s criticism that the State did not produce any other witnesses besides [Mr.] Patillo,” and pursuant to the “opened door doctrine,” a prosecutor may introduce “otherwise irrelevant evidence in order to respond to an argument made by defense counsel.” Finally, it asserts that the prosecutor’s argument was “a matter of common knowledge,” stating that “[witnesses’ unwillingness to cooperate with the police because of fear of retaliation has long been the subject of newspaper and television coverage.” It disagrees with the circuit court’s conclusion that the state ²⁵⁶ ments could lead the jury to speculate about information outside the record, stating that the prosecutor’s “argument was directed to one point—the general fear of retaliation that makes witnesses to violent crime reluctant to cooperate with police. There was simply nothing to speculate about.” Second, the State asserts that, even if the remarks were improper and defense counsel was deficient in failing to object to them, the remarks were “not so prejudicial as to warrant a new trial.” It contends that the disputed remarks constituted only a small fraction of the prosecutor’s closing remarks, and she “did not in any way suggest that [appellee] had threatened any witnesses or was responsible for the witnesses]’ lack of cooperation.” Appellee argues that the post-conviction court properly found ineffective assistance of counsel based on defense counsel’s failure to object to the comments in the State’s rebuttal closing argument.

He disagrees with the State that defense counsel “opened the door” to the comments, stating that “[pointing out a lack of evidence does not ‘open the door’ to inadmissible and impermissible comments by the State.” He contends that the comments about retaliation were improper because “there was absolutely no evidence whatsoever that [appellee] threatened” anyone, and “[a]ny mention of retaliation was completely inadmissible, because it was totally irrelevant absent a connection with [appellee].” He asserts that the State “attempted to inflame the jury’s emotions by imploring the jury to think about stories in the newspaper and on television news shows regarding retaliation against witnesses.” He disputes the State’s assertion that the comments were proper given the common knowledge of the jury regarding the fear of retaliation, asserting that the contention “does not address the inadmissibility of threats of retaliation absent a connection to [appellee].” In addressing this issue, we note that we disagree with appellee’s argument that the comments here were not “about the general reluctance of witnesses to come forward,” but rather, they were an argument that “the State failed to call ²⁵⁷ eyewitnesses because [appellee] would retaliate against them.” The prosecutor said nothing to indicate that appellee was responsible for the witnesses’ fear. To the contrary, the State’s reference to newspapers and television made clear that she was referring to a general fear of retaliation, as opposed to appellee specifically, as the cause of the State’s lack of witnesses willing to testify. The prosecutor was merely explaining that the jurors should not be surprised by the lack of witnesses in this case because it is common for witnesses to refuse to cooperate. We conclude that this was a fair response to defense counsel’s criticism regarding the State’s lack of .witnesses, especially given Detective Nicholson’s testimony that other witnesses did not want to come forward, a common scenario given witnesses’ “fear for retaliation.” 5 Under these circumstances, we cannot conclude that defense counsel’s failure to object was “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 .

Because defense counsel was not deficient in failing to object to the rebuttal argument, the circuit court erred in finding ineffective assistance of counsel in this regard. II Alternate Juror’s Presence During Deliberation The State next contends that the post-conviction court erred in ruling that appellee’s 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.” It asserts that the trial strategy to acquiesce to the ²⁵⁸ presence of the alternate in the jury deliberation room was reasonable because trial counsel “believed, at the time, that it was in the best interests of his client.” Moreover, the State contends that the circuit court erred in ruling that there was a “presumption of prejudice that the State was required to rebut,” noting that, “under Strickland, there is no presumption of prejudice and it is [appellee], not the State, who is required to demonstrate that counsel’s strategic decision affected the outcome of the proceeding.” Because appellee “did not attempt to demonstrate, much less succeed in demonstrating, actual prejudice, the post conviction court erred in granting post conviction relief on this issue.” Appellee argues that, pursuant to the Maryland Rules and Stokes v. State, 379 Md. 618 , 843 A.2d 64 (2004), it was error to permit an alternate juror to be present in the jury room during deliberations. He contends that the post-conviction court correctly determined that trial counsel rendered deficient performance in failing to object to the presence of the alternate in the deliberation room, and there was “no reasonable strategic reason for failing to do so.” Appellee argues that “trial counsel’s performance was not based upon a valid tactical decision,” but rather, “it was based upon a misunderstanding of the law,” and “ignorance of the law cannot be the foundation” of a “reasonable” trial strategy. With respect to prejudice, appellee argues that the trial court did apply a Strickland standard of prejudice.

In any event, he contends that, pursuant to Stokes , a presumption of prejudice is permissible when an alternate is in the jury room during deliberations. A. Proceedings Below Directly after the court instructed the jury, the following colloquy occurred: 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 ²⁵⁹ 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.

After closing argument, the-court gave the following instruction regarding the alternate juror: 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 twelve jurors not to be able to return or continue, you could become the 12th 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. Thereafter, the jury, including the alternate, retired to the jury room for deliberation. ²⁶⁰ Approximately 2 hours and 20 minutes later, the jury reached its verdict. Before the jury read its verdict in court, the following colloquy at the bench occurred: [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. [PROSECUTOR:] I just wanted to make it clear.

I just didn’t know. THE COURT: I see. At the November 20, 2012, post-conviction hearing, appel-lee’s trial counsel was asked about the decision to permit the alternate juror to sit in on the jury’s deliberations. He stated that he did not have a specific recollection why he