Grimstead v. Brockington

RAKER, J. dissenting, joined by HARRELL and RODOWSKY, JJ.

I respectfully dissent. I would reverse the Court of Special Appeals and affirm the judgments of the Circuit Court for Baltimore City. I would hold that, under the particular circumstances of this case, the Circuit Court did not err by allowing two alternate jurors to be present during jury deliberations in this civil case (after being instructed by the court, in clear language not to participate in jury deliberations, but rather to sit mutely in a corner and pay attention to the course of *358 deliberations) and by substituting the alternates for two regular jurors who were excused during the deliberations, after respondent agreed expressly to the alternates’ presence during jury deliberations, but who attempted later to withdraw his consent to the procedure only when the trial court, for cause, designated the alternates to replace regular jurors who could not continue but whom he preferred. Thus, this is really a matter of waiver.

There is very little, if any, dispute, as to the relevant facts. Dr. Brockington agreed to the trial court’s intended procedure. In response to the court’s inquiry, respondent’s counsel replied as follows:

“Your Honor, I think the last trial, which finished two weeks ago, we did the same thing. Your Honor suggested. I didn’t object them. I don’t object now.”

Dr. Brockington had no objection to the alternate jurors sitting in the deliberations, and at least implicitly, deliberating if necessary.

The presence of alternates during jury deliberations and the substitution of those alternates for regular jurors after deliberations have begun are not always and necessarily two separate and distinct issues. See Maj. op. at 352-53. It was clear to all counsel and parties that the judge permitted the alternates to be in the jury room to insure that there would be a sufficient number of jurors to enable the jury to reach a verdict in the event any of the original jurors could not continue their service. The judge clearly was not engaging in a “feel good” or reward gesture for alternate jurors’ having sat through the entire trial. Everyone in the courtroom understood the goal of permitting the alternates in the jury room.

The majority opinion sees two separate issues here—one, the presence of alternates during the jury deliberations, and two, the substitution of those alternates for regular jurors after deliberations have begun. It may well be that there can be separate issues, under certain circumstances, such as when an appellate court is considering whether reversal is required *359 when an unauthorized alternate juror is in the jury room, but the jury had not yet begun to deliberate. But here, it is a single issue. Everyone in the courtroom understood the judge’s intention, and respondent agreed to the procedure without expressing any reservations or limitations.

Although the procedure employed by the trial court is not provided for in the Maryland Rules, the fact that it is not provided for explicitly, or even that the Rule is silent as to the procedure, does not mean that the parties and the court cannot agree to a different procedure than is provided for in the Rule. The majority says that the provisions of Rule 2-512(b) cannot be waived. In the context of preservation for appellate review, the majority is correct; failure to object at the trial level to the presence of alternate jurors in the jury room during deliberations ordinarily will not be considered to have waived the issue on appeal. But the cases referred to by the majority for the waiver of appellate review do not stand for the proposition that a party cannot agree to a procedure that differs from the Rule.

Particularly egregious here is the fact that respondent agreed to the alternates sitting in the jury room, and participating if necessary, and only attempted to withdraw his consent when it became apparent that he was losing jurors that he considered favorable to his side. A party cannot acquiesce or agree to a procedure and then complain about the ruling when things appear to turn to his disadvantage. See Smith v. Gulf Oil Co., 995 F.2d 638, 645-46 (6th Cir.1993) (holding that, although the trial court violated Federal Rule 47(b), waiver principles apply in the alternate juror context); cf. United States v. Cencer, 90 F.3d 1103, 1109 (6th Cir.1996) (holding that a defendant waives his right to object to a post-submission substitution of an alternate juror when he voluntarily agreed to the procedure); United States v. Guevara, 823 F.2d 446, 448 (11th Cir.1987) (holding that “[wjhere the defendant knowingly consents to the addition of an alternate juror, as was obviously the case here, he waives any challenge to that procedure on appeal.”).

*360 Affirming the trial court in this case does not undermine Hayes v. State, 355 Md. 615 , 735 A.2d 1109 (1999), and Stokes v. State, 379 Md. 618 , 843 A.2d 64 (2004). Those cases remain good law. It is just here, respondent agreed to the procedure, and by doing so, waived any objection to it.

I would hold that deviation from the requirements of Maryland Rule 2-512 is waivable and that respondent waived any objection to a deviation from the Rule by agreeing at the trial level to the procedure suggested by the trial judge.

I am authorized to state that Judge GLENN HARRELL and Judge LAWRENCE RODOWSKY join in the views expressed in this dissenting opinion.