STATE OF MARYLAND v. DONTA NEWTON a/k/a JASON JONES
Court of Special Appeals, Graeff, Sept. 30, 2016,
Ineffective Assistance- In IAC analysis, a trial strategy contrary to law may still be valid trial strategy where holding otherwise would allow trial counsel to win either way

Affirmed by CoA

Where defense counsel allowed alternate juror to sit with jury during deliberation, contrary to MD Rule, th0is was still considered valid trial strategy. To allow per se violation would give defendant benefit on a win and automatic redo on a loss (which is more accurate than the “heads I win, tails you lose” analogy used by the court.

BPD – Det. Daniel Nicholson IV testified generally with regard to witness intimidation and reluctance

Where defense counsel commented on scarcity of prosecution witnesses, no ineffective assistance of counsel for failure to object to prosecution statement referencing detective’s testimony that generally witnesses are reluctant to come forward out of fear of retaliation.

13th Juror – it is error to send an alternate juror into the jury room during deliberations, even with instructions not to participate in deliberations. And if that occurs and the defense objects, prejudice will be presumed on direct appeal. Where defense allows, prejudice not presumed.

13th Juror- After accepting alternate juror at trial, not IAC for appellate counsel not to reply on plain error review and raise claim on appeal