State v. Newton

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1751

September Term, 2015

______________________________________

STATE OF MARYLAND

v.

DONTA NEWTON
a/k/a JASON JONES

______________________________________

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

JJ.
______________________________________

Opinion by Graeff, J.
______________________________________

Filed: September 30, 2016
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.

1
On February 3, 2016, this Court granted the State’s Application for Leave to
Appeal the circuit court’s order.
2
As appellee notes, the Court’s order granting leave to appeal phrased the question
that the State could appeal somewhat differently, i.e., “Did the post-conviction court err in
awarding Newton a new trial on the ground that the trial court erred in ordering that an
alternate juror be present in the jury room during deliberations?” The State’s question
presented, however, accurately reflects the question presented to this Court in its
application for leave to appeal, and it reflects the issue pertinent to this appeal.
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.

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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

3
The record reflects that the jury reached a verdict after 2 hours and 20 minutes.

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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

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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.

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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).

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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

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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:] Objection.

THE COURT: Overruled.

[DETECTIVE:] All the time.

[PROSECUTOR:] And do you have any reasons for that?

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[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.

***

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.

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

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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.

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 (2015) (quoting

Degren v. State, 352 Md. 400, 429 (1999). Accord Sivells v. State, 196 Md. App. 254, 270

(2010), cert. dis’d as improv. granted, 421 Md. 659 (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 (quoting Wilhelm v. State, 272 Md. 404, 412 (1974)), cert. denied,

438 Md. 143 (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

4
Although trial counsel testified at both post-conviction hearings, he did not testify
regarding why he did not object to the prosecutor’s rebuttal comments regarding witnesses’
fear of retaliation.

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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 (quoting Wilhelm, 272 Md. at 413). Accord

Lee v. State, 405 Md. 148, 166 (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 (quoting Wilhelm, 272 Md.

at 413).

“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 (quoting Spain v. State, 386

Md. 145, 158 (2005)). As the Court of Appeals explained in Spain, 386 Md. at 159:

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

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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 “[w]itnesses’ 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 statements 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

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[appellee] had threatened any witnesses or was responsible for the witness[es]’ 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 “[p]ointing 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 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

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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. 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

5
The prosecutor’s brief comment asking the jurors to use their common sense, as
well as other knowledge from “reading newspapers, watching the news,” to assess “[w]hy
do people not want to testify,” was not, as appellee asserts a “highly improper” reference
to a specific case of retaliation. Rather, the prosecutor’s reference reflected the common
knowledge that witnesses in Baltimore City often are not willing to cooperate with the
police in criminal trials because of fear of retaliation. See Wilhelm v. State, 272 Md. 404,
440 (1974) (prosecutor’s comments regarding number of murders in Baltimore City in last
year not improper because “widespread publicity” made that fact common knowledge).

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juror into the jury room in order to avoid another potential mistrial.” It asserts that the trial

strategy to acquiesce to the 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 (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.

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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 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

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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.

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, appellee’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 did not object to the alternate

juror being permitted to be present during deliberations, but he could surmise why he did

not object. The following then occurred:

[PC COUNSEL:] Why do you surmise?

[TRIAL COUNSEL:] Because there had been a mistrial because of a juror’s
failing to show up; because I thought the case would -- to use the vernacular,
playing in our direction, the Defense direction, and I didn’t want another
mistrial. And [the trial judge] suggested it, and I have a great deal of respect

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having begun my practice in ‘71, probably beforehand, then I saw no harm
and only good coming from it.

[PC COUNSEL:] So is it your testimony that you didn’t object to him
sending the alternate juror back to deliberations because you didn’t want a
mistrial?

[TRIAL COUNSEL:] Correct.

[PC COUNSEL:] Okay. And are [you] familiar with Maryland Rule 4-312
regarding what’s to be done with alternate jurors at the conclusion of the case
and the beginning of deliberations?

[TRIAL COUNSEL:] Yes.

[PC COUNSEL:] Okay. And what does that rule provide?

[TRIAL COUNSEL:] They’re to be dismissed.

[PC COUNSEL:] Okay. So can you explain where your fear of a mistrial
came from?

[TRIAL COUNSEL:] If we lost a juror again.

[PC COUNSEL:] During deliberations?

[TRIAL COUNSEL:] Yes.

The court then asked defense counsel to read the last four lines of his letter to the

Appellate Division of the Public Defender’s Office. Counsel complied, reading: “We

proceeded to empanel a new jury which found [appellee] guilty. I spoke with members of

the first jury after they were released and the indication was they were 10 to 2 for acquittal

and moving in that direction.”

Counsel stated that he believed that the evidence against appellee in the second trial

was the “[s]ame as the first trial,” and he believed that he had a chance of an acquittal with

the second jury. When asked what that belief was based on, counsel stated: “It was, one,

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an analysis of the case, and two, the discussions with the jurors after the first mistrial.” On

cross-examination, defense counsel testified that allowing the alternate juror to go into the

deliberation room was trial strategy, and he thought appellee “had a significant chance of

being found not guilty.”

On March 31, 2015, after this Court remanded the case to the circuit court to address

specifically whether defense counsel had a “valid tactical reason” for not objecting to the

alternate juror going to the jury room during deliberations, the circuit court held a second

post-conviction hearing. Trial counsel again testified that he did not object to the alternate

juror being present in the jury room because he wanted to avoid another mistrial. Counsel

stated that, at the time, he was not aware of Stokes, which post-conviction counsel

summarized as holding “that the presence of an alternate was a fundamental error of

constitutional proportion regardless of whether the defense counsel consented or failed to

object to the presence of the alternate.” The following then occurred:

[PC COUNSEL:] Okay, so had you known about the Stokes case that said
that if there was an alternate juror present during deliberations that that would
invalidate the verdict, would you have acquiesced to the presence of an
alternate in the deliberations?

***

[TRIAL COUNSEL:] Probably.

[PC COUNSEL:] Okay. Would you have taken [the trial judge] up on his
alternate theory of allowing the alternate juror to stay in the courtroom during
deliberations in case another juror, a regular juror would be --

THE COURT: Well, let me make sure I understand. If you were familiar
with Stokes -- is that what you’re asking him?

[PC COUNSEL:] Yes.

-19-
THE COURT: Would you still let the alternate go in the room, and you said
yes?

[TRIAL COUNSEL:] No, I said probably not.

***

[TRIAL COUNSEL:] I mean, if you know about Stokes and it’s almost like
you would get a free shot that you could, but that would be kind of unethical
if you knew about Stokes to allow that free shot to happen. That’s what [is]
just going through my head, you know, it’s kind of a tactical move but it’s
an unethical tactical move, so I wouldn’t do it.

[PC COUNSEL:] So would it be a valid tactical decision? Valid?

[TRIAL COUNSEL:] Well, with the knowledge of Stokes, no.

On cross-examination, the prosecutor established that counsel had testified in the

prior hearing that he did not object to sending “the 13th juror” to the jury room during

deliberations as a matter of strategy because he thought there was “a good chance of

winning” the case. There had been “a lot of jury issues,” and he thought “it was a good

idea to send the juror back.”

After the hearing concluded, the circuit court issued a second memorandum opinion

and order granting appellee’s petition for post-conviction relief. The post-conviction court

concluded that “Stokes clearly establishes that the presence of an alternate juror in the

deliberation room is a fundamental irregularity of Constitutional proportion,” and

therefore, it “is legal error.” The court stated:

Even though trial counsel may have had a tactical reason for not objecting to
the court instructing the alternate juror to be present in the deliberation room,
it was not based on a valid tactical or strategic reason. Therefore, in failing
to object to the alternate’s presence in the deliberation room, trial counsel
acted deficiently. Hence, trial counsel’s representation was ineffective in

-20-
that trial counsel did not have a valid tactical reason for failing to object to
the presence of the alternate juror in the jury deliberation room.

Furthermore, the presence of alternate jurors during deliberations
creates a presumption of prejudice. Hayes v. State, 355 Md. 615 (1999). No
evidence was presented to rebut this presumption of prejudice created by the
alternate’s presence during deliberations in [appellee’s] case.

B.

Analysis

The State makes multiple arguments in support of its contention that “the

post-conviction court erred 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.” We begin with the State’s contention that the circuit court’s

conclusion that defense counsel did not have a valid tactical reason to acquiesce to the

alternate’s presence in the jury room was erroneous because it was based on the “mistaken

belief that Stokes prohibits the presence of more than 12 jurors in the jury room during

deliberations under any circumstances, including by stipulation of the parties.” In that

regard, the State asserts:

Stokes does not stand for the proposition urged by the court below that
trial counsel cannot strategically agree to the presence of a non-deliberating
juror in the jury room. In Stokes, the Court of Appeals held that a trial court
committed reversible error when it permitted alternate jurors to participate
in deliberations, over defense counsel’s objection. Stokes did not address the
question raised in this appeal, whether defense counsel may stipulate to the
presence of more than 12 jurors in the jury room. This question was
expressly left open in Stokes: “We express no opinion as to whether a
defendant may stipulate to more than twelve persons on the jury.”

(citations omitted.).

-21-
Appellee argues that the post-conviction court “correctly held that the presence of

third parties during jury deliberations is not permitted and is grounds for a new trial.” He

contends that the “Court of Appeals in Stokes held that reversible, incurable error occurs

when an alternate is permitted in the jury deliberation room,” and that trial counsel was

deficient for not objecting to the presence of the alternate juror in this case. He asserts that,

“[h]ad trial counsel objected, this case would be exactly on point with Stokes, and reversal

would be mandated.”

As the parties note, the Court of Appeals in Stokes v. State, 379 Md. 618, 629 (2004),

held that it was error for the trial court, over the objection of the defendant, to send an

alternate juror into the jury room during deliberations. The Court stated that “[t]he

Maryland Rules, implementing the right to a jury trial, clearly distinguish between alternate

jurors and regular jurors and no rule or statute permits more than twelve into the jury room

during deliberations.” Id. at 633.6 The Court noted that alternate jurors have “been likened

to . . . stranger[s] to the proceedings,” stating: “‘Once the prescribed number of jurors

becomes “the jury,” then, and immediately, any other persons are strangers to its

proceedings. Their presence destroys the sanctity of the jury.’” Id. at 633-34 (quoting

United States v. Beasley, 464 F.2d 468, 469 (10th Cir. 1972)). In support of its holding,

6
Maryland Rule 4-311(b) provides that a jury in a criminal case “shall consist of 12
persons unless the parties stipulate at any time in writing or on the record that the jury shall
consist of any number less than 12.” Rule 4-312(g)(3) provides: “When the jury retires to
consider its verdict, the trial judge shall discharge any remaining alternates who did not
replace another jury member.”

-22-
the Court stated that “almost every court that has considered the issue of the presence of

an alternate juror during deliberations has found it to be error.” Id. at 634.

The Court then addressed the consequences of such an error, noting that other courts

were divided on whether the error was per se reversible error, prejudice was presumed, or

harmless error concepts applied. Id. The Court ultimately determined that the presence of

alternate jurors during the jury deliberations created a presumption of prejudice.

Concluding that “[j]ury deliberations are private and are to be conducted in secret,” the

Court held that “[t]he presence of alternate jurors who have no legal standing as jurors

injects an improper outside influence on jury deliberations and impairs the integrity of the

jury trial. Prejudice must be presumed where alternates breach the sanctity of the jury

room.” Id. at 638.

Pursuant to Stokes, there is no question that it is error to send an alternate juror into

the jury room during deliberations, even with instructions not to participate in

deliberations. Accord Grimstead v. Brockington, 417 Md. 332, 351-55 (2010) (allowing

alternate jurors in jury room during deliberations in civil case required reversal). And if

that occurs and the defense objects, prejudice will be presumed on direct appeal.

The State argues, however, that Stokes is not dispositive in the present case, for

several reasons. Initially, it asserts that Stokes “specifically left open the issue of whether

a defendant may stipulate to the presence of more than 12 jurors.” In support, it relies on

the following language set forth by the Court in a footnote:

Unlike several other states, Maryland permits the substitution of an alternate
juror only before the jury begins to deliberate on the case, and not after

-23-
deliberations have commenced. . . . We express no opinion as to whether
a defendant may stipulate to more than twelve persons on the jury. In
the case sub judice, the record is clear that appellant objected to more than
the twelve jurors deliberating on the case.

379 Md. at 629 n.5 (citations omitted) (emphasis added).

This language is not helpful to the State in this case. The parties here did not

stipulate to more than 12 jurors deliberating on the case. Indeed, the alternate juror was

specifically instructed not to participate in the deliberations. The record makes clear that

the parties never intended for the alternate to participate in deliberations as a thirteenth

deliberating juror.

We do agree with the State, however, that Stokes did not hold that a defendant

cannot, for tactical reasons, agree to a procedure where an alternate juror sits in the jury

room during deliberations, and it cannot be read to say that such a situation requires reversal

of a conviction. To be sure, the Court cited State v. Bindyke, 220 S.E.2d 521, 531 (1975),

where the Supreme Court of North Carolina stated that the presence of an alternate during

deliberations was a “fundamental irregularity” that vitiates the verdict, even if defense

counsel consented. The Court in Stokes subsequently stated, however, as follows:

Since the Supreme Court decision in United States v. Olano, 507 U.S. 725,
113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), some jurisdictions have modified
this view on the issue, particularly when there was no objection below and
the threshold issue on appeal is whether the issue is preserved for appellate
review, and then the matter is considered under the plain error doctrine. See
id. at 739, 113 S.Ct. at 1780, 123 L.Ed.2d at 523 (stating “the issue here is
whether the alternates’ presence sufficed to establish remedial authority
under Rule 52(b), not whether it violated the Sixth Amendment or Due
Process Clause”). The issue of preservation for appellate review or waiver is
not an issue in the case sub judice because appellant objected to the presence
of alternate jurors in the jury room.

-24-
Stokes, 379 Md. at 639 n.10.7

Subsequent to Stokes, this Court specifically rejected the argument that a

defendant’s conviction should be reversed if an alternate juror is present for jury

deliberations, when defense counsel failed to object. In Ramirez v. State, 178 Md. App.

257, 284-86 (2008), cert. denied, 410 Md. 561 (2009), we held that a defendant waived his

complaint regarding prejudice due to the presence of an alternate juror by failing to raise

this claim in the circuit court. Thus, it is clear that permitting an alternate to be present in

the jury room during deliberation does not automatically entitle a defendant to a new trial.

With this background in mind, we turn to the issue presented here, whether

counsel’s decision to allow the alternate juror to go into the jury room was a valid tactical

decision. There is no doubt that it was a tactical decision. As indicated, defense counsel

stated that he agreed to the alternate’s presence during deliberations because he thought

there was a “significant chance” of an acquittal, he wanted to ensure that the second trial

did not result in another mistrial, and he “saw no harm and only good coming from” this

decision. The question is whether it was a valid tactical decision under the Strickland test.

If so, that is the end of the inquiry.

7
In United States v. Olano, 507 U.S. 725, 739 (1993), the Supreme Court stated that
“the presence of alternate jurors during jury deliberations might prejudice a defendant in
two different ways: either because the alternates actually participated in the deliberations,
verbally or through ‘body language’; or because the alternates’ presence exerted a
‘chilling’ effect on the regular jurors.” The Court held, however, that where the defendants
“made no specific showing that the alternate jurors in this case either participated in the
jury’s deliberations or ‘chilled’ deliberation by the regular jurors,” the error did not amount
to “plain error.” Id. at 739-40.

-25-
The State argues that, “[w]hether a trial strategy is reasonable is determined on a

case-by-case basis and depends on whether the strategy furthers the defendant’s interest,

not on whether it is ‘legal error.’” It asserts that counsel’s decision here was intended to

further appellee’s interests, and “[t]here was no evidence to rebut the strong presumption

that trial counsel’s strategic decision made in order to avoid another mistrial was

reasonable.”

The parties cite no Maryland authority, nor are we aware of any, that directly

addresses whether acquiescing to the presence of an alternate juror during deliberations is

a valid trial strategy when such a presence is not permitted. The Court of Appeals of

Georgia, however, addressed a very similar set of circumstances in London v. State, 580

S.E.2d 686 (Ga. Ct. App. 2003).

In London, the trial “court expressed its intention to allow [an] alternate juror to

witness the jury’s deliberations so that the alternate would be privy to the discussion in

case a juror had to be excused, thereby avoiding the need to start deliberations anew with

the alternate. London’s counsel consented to the arrangement.” Id. at 781. The court

subsequently instructed the jury, including the alternate, that the alternate was to “sit

through the deliberations,” but she was not to participate. Id.

After London was convicted of aggravated assault and related crimes, he appealed,

arguing that the “trial court erred in allowing an alternate juror to go out with the jury to

the jury room and to witness deliberations in violation of” a state statute that prohibited

alternate jurors from witnessing the jury’s deliberations. Id. at 780. The appellate court,

-26-
similar to the holding in Stokes, agreed that, “if an alternate juror does, in fact, sit in on the

jury’s deliberations over the defendant’s objections, there is a presumption of harm to the

defendant that the State must overcome.” Id. at 781. The court concluded, however, that,

“although London would have had the benefit of a presumption of harm under these

circumstances if the trial court had sent the alternate juror to witness deliberations over

trial counsel’s objections, counsel’s consent to the arrangement waive[d] this error.” Id. at

782.

The court also rejected London’s argument that trial counsel’s failure to object to

the presence of the alternate juror during jury deliberations “constituted ineffective

assistance of counsel,” stating that, as “‘a general rule, matters of reasonable tactics and

strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.’” Id.

(quoting Grier v. State, 541 S.E.2d 369, 372 (2001)). It explained that, “[d]uring the

motion for new trial hearing, trial counsel testified that he did not feel it was necessary to

object to the court’s plan to allow the alternate juror to witness the deliberations due to the

trial court’s jury instructions that the alternate was not to participate in deliberations.” Id.

The court held that “[t]rial counsel’s strategies and tactics do not constitute deficient

performance.” Id.8

8
The court also held that London did not satisfy the prejudice prong of the
Strickland test, stating that, “although London would have been entitled to a presumption
of harm if counsel had timely objected to the trial court’s plan,” London was “no longer
entitled to this presumption of harm in a claim of ineffective assistance of counsel. Instead,
he has the burden of proving that he was prejudiced by counsel’s alleged oversight.”
London v. State, 580 S.E.2d 686, 688 (Ga. Ct. App. 2003). Because (continued . . .)

-27-
Here, as indicated, the evidence is clear that counsel’s acquiescence to the alternate

juror remaining in the jury room during deliberations was a tactical decision. And the basis

for the decision in this case was stronger than in London; counsel believed that this strategy

would be beneficial for appellee, believing that he could obtain an acquittal if there was an

ultimate verdict, as opposed to risking a mistrial if there was another problem with a juror.

Appellee argues, however, that defense counsel was unaware of the decision in

Stokes, holding that it was improper to have an alternate juror present during jury

deliberations, and “a decision based upon an error of law is not a reasonable trial strategy.”

He asserts that “ignorance of the law cannot be the foundation” of a “reasonable” trial

strategy.

In support, appellee cites State v. Peterson, 158 Md. App. 558, 594, 597 (2004), in

which Peterson’s conviction was reversed for ineffective assistance of counsel, despite that

trial counsel testified that he made a strategic decision not to pursue a defense based on

battered spouse syndrome. In that case, however, this Court held that the “decision not to

introduce battered spouse syndrome evidence was not a product of trial strategy; it was a

consequence of trial counsel’s not being adequately familiar with the law.” Id. at 597

(emphasis added).

In this case, by contrast, the decision clearly was a matter of strategy, albeit one not

sanctioned by law. And it was a strategy that could have worked to the benefit of appellee.

(. . . continued) London did not present any evidence that “the alternate juror’s presence
had any impact on the outcome of his trial,” he had not “carried his burden of demonstrating
ineffective assistance of counsel.” Id.

-28-
We agree with the State that a strategic decision made under these circumstances is not

deficient conduct under the Strickland standard. To adopt a rule that a decision based on a

misunderstanding of the law is per se ineffective assistance of counsel, even if it is a well-

reasoned tactical decision under the facts of the case, would put a defendant in a

“heads-I-win; tails-you-lose” situation, where an accused could take a position at trial that

has the potential to be beneficial, and it if did not work out, he could get a new trial on the

ground that it was not a valid tactical decision. See Chappee v. Vose, 843 F.2d 25, 33 (1st

Cir. 1988) (rejecting the argument that a trial strategy that results in a violation of

procedural rules constitutes per se deficient representation, and refusing to permit the

defendant to “reap a windfall” by creating a “heads-I-win, tails-you-lose” situation); State

v. Peoples, 141 A.3d 350, 358 (N.J. Super. Ct. App. Div. 2016) (refusing to allow defendant

to “build an [ineffective assistance of counsel] claim into his case” because doing so would

“guarantee[] him a basis for reversal” in the event of “an adverse verdict”). We decline to

adopt such a rule. Counsel here made a tactical decision that he reasonably believed would

be beneficial to his client. In light of the high deference that this Court must give to

counsel’s decision making under Strickland, 466 U.S. at 690, and given the strong

presumption that counsel’s conduct “falls within the wide range of reasonable professional

assistance,” id. at 689, we hold that counsel’s conduct was not deficient. Appellee did not

receive ineffective assistance of trial counsel.

-29-
III.

Ineffective Appellate Counsel

The State next argues that the post-conviction court “erred in concluding that

appellate counsel was ineffective in failing to raise on appeal” a “claim of error as to the

presence of the alternate juror in the jury room.” It contends that, “[b]ecause trial counsel

affirmatively agreed to permit the alternate juror into the jury room, this claim was not

subject to appellate review, even under the plain error doctrine.” Therefore, appellate

counsel was not ineffective for failing to raise it. We agree.

We begin with a review of the Strickland standard as it relates to appellate counsel.

The Court of Appeals in Gross v. State, 371 Md. 334, 350 (2002), stated:

[I]n assessing the effectiveness . . . of appellate counsel in failing to raise
[claims] on appeal, Strickland’s performance and prejudice prongs naturally
overlap because the questions of whether counsel’s performance was
adequate and whether it prejudiced the petitioner both will turn on the
viability of the omitted claims, i.e., whether there is a reasonable possibility
of success. . . .

The Sixth Amendment does not require an attorney to argue every
possible issue on appeal. An advocate does render ineffective assistance of
counsel, however, by . . . omitting on direct appeal a claim that would have
had a substantial possibility of resulting in a reversal of petitioner’s
conviction. The crucial inquiry is whether confidence in the reliability of the
conviction is undermined by the failure to . . . raise the claims on appeal.

(citations omitted).

One factor in determining whether appellee’s claim had a possibility of success on

appeal is whether that claim was waived at trial. Ordinarily, an appellate court will not

decide an issue “unless it plainly appears by the record to have been raised in or decided

by the trial court.” Md. Rule 8-131(a). Accord Sutton v. FedFirst Fin. Corp., 226 Md.

-30-
App. 46, 80 n.18 (2015), cert. denied, 446 Md. 293 (2016) (declining to address an

argument that was not made below).

To be sure, appellate courts have discretion under Md. Rule 8-131(a) to address an

unpreserved issue. As the Court of Appeals has explained, however:

It is a discretion that appellate courts should rarely exercise, as considerations
of both fairness and judicial efficiency ordinarily require that all challenges
that a party desires to make to a trial court’s ruling, action, or conduct be
presented in the first instance to the trial court so that (1) a proper record can
be made with respect to the challenge, and (2) the other parties and the trial
judge are given an opportunity to consider and respond to the challenge.

Chaney v. State, 397 Md. 460, 468 (2007). Accord Robinson v. State, 410 Md. 91, 104

(2009) (appellate court’s “prerogative to review an unpreserved claim of error, however, is

to be rarely exercised and only when doing so furthers, rather than undermines, the

purposes of the rule”). Indeed, as we indicated, in Ramirez, 178 Md. App. at 285-86, which

was decided after appellee noted his appeal in this case, this Court held that the accused

waived his right to assert error on appeal regarding the presence of the alternate juror during

deliberations when he did not raise the issue in the circuit court.

Given this case law, we agree with the State that, had appellate counsel raised the

alternate juror issue on direct appeal, it is unlikely that a court would review the issue under

the doctrine of plain error. This is especially so given that defense counsel affirmatively

agreed to the procedure suggested by the Court. See Nash v. State, 191 Md. App. 386,

402-03 (appellant is not entitled to reversal of his conviction based on a procedure to which

he stipulated and agreed), cert. denied, 415 Md. 42 (2010). Accord Gilliam v. State, 331

Md. 651, 691 (1993) (“As [defendant] did not object to the course of action proposed by

-31-
the prosecution and taken by the court, and apparently indicated his agreement with it, he

cannot now be heard to complain that the court’s action was wrong.”), cert. denied, 510

U.S. 1077 (1994); Watkins v. State, 328 Md. 95, 99-100 (1992) (where party acquiesces in

court’s ruling, there is no basis for appeal of that ruling), overruled on other grounds,

Calloway v. State, 414 Md. 616 (2010). Under these circumstances, appellate counsel was

not ineffective for failing to raise the claim on appeal.

JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE
CITY REVERSED. COSTS TO
BE PAID BY APPELLEE.

-32-